People v. Cessena

JENNINGS, J.

The defendant, who had been convicted of violating section 288 of the Penal Code, moved for a new trial. The motion was granted. The trial court specified that the motion was granted on' the grounds of errors of law and insufficiency of the evidence, both of which were urged by the defendant in support of the motion. Prom the order granting the motion the People appeal.

Appellant particularly complains that, on the hearing of the motion, the trial court erroneously admitted certain evidence consisting of an affidavit and the testimony of a member of the jury before whom the action was tried. It is contended that the evidence thus received was improper in that thereby the attempt was made to show that, in arriving at a verdict of conviction, the jury took into consideration the fact that the respondent had, on another occasion prior in time to that stated in the complaint, committed a similar offense. It is urged that the effect of the evidence thus received was to impeach the verdict on the ground of misconduct of the jury. Numerous California decisions are cited which declare that the rule is established in this state that a juror may not impeach the verdict of a jury of which he was a member except to prove that the verdict was reached by lot or chance. It will here be assumed that the contention with respect to the admission of the above-mentioned evidence is correct and that the trial court erred in its reception. It appears, however, from the record on this appeal that before granting the motion for a new trial, the court having theretofore denied respondent’s motion to strike the objectionable evidence from the record, reversed its ruling, struck out the evidence and then proceeded to grant the motion for a new trial on the two grounds heretofore specified.

Appellant maintains that the transcript on appeal conclusively shows that no errors of law were committed during the trial of the action and that the evidence then submitted is ample to sustain the verdict. It is then declared that when the evidence erroneously received on the hearing of the motion for a new trial is eliminated, it is obvious that the trial court abused its discretion in granting the motion and the order from which this appeal has been taken must,

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therefore, be reversed. It- is particularly observed that respondent did not testify during the trial and the record shows no conflict whatever in the evidence which tended to prove respondent’s guilt of the offense with which he was charged.