People v. Perez

PAULSEN, J. pro tem.

Appellant was charged by indictment with two counts of murder. Count one charged that on the 16th day of May, 1952, he murdered one Michael Henderson. Count two charged that on the 15th day of May, 1952, he murdered one Joseph Lenz. Appellant entered a plea of not guilty and of not guilty by reason of insanity to each count of the indictment. At the conclusion of the trial of the issues raised by the pleas of not guilty, the jury returned a verdict of guilty of murder of the second degree as to each count. Thereafter, the same jury, following a trial upon the pleas of not guilty by reason of insanity, returned verdicts finding appellant was sane at the time of commission of each offense. This is an appeal from the judgment and the order denying a motion for a new trial.

The only grounds urged for a reversal are: (1) Alleged misconduct of the district attorney, and (2) refusal of the trial judge to admonish the jury in respect thereto. The alleged errors are set forth in an affidavit of the trial judge filed pursuant to this court’s order permitting such augmentation of the record. It is thus attested:

“That during the closing arguments of James B. McKinney, in the trial of the defendant Jose Perez, on the issue of the plea of not guilty by reason of insanity, said Deputy District Attorney began his argument by stating substantially as follows :

“ ‘In my opinion you jurors caused a miscarriage of justice by your verdict returned finding this defendant guilty only of murder in the second degree. ’

“That counsel for the defendant strenuously objected at this stage of the proceedings and cited this argument as being extremely prejudicial misconduct on the part of the Deputy District Attorney, and asked the court to instruct the jury

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to disregard these remarks and to admonish Counsel for the People ;

• “That the Court failed to instruct the jury as requested, and failed to admonish Counsel for the People, it merely asking the Deputy District Attorney to proceed with his statements and arguments dealing with the trial of the case at hand.”

The argument advanced on behalf of appellant is that the deputy district attorney’s remarks so influenced the jury that they concluded they must find the appellant was sane at the times the homicides were committed in order to rectify á mistake in not finding him guilty of murder of the first degree.