People v. Crossland

DRAPER, J.

Defendant was charged with being a person convicted of felony who was in possession of a gun capable of concealment on the person (Pen. Code, § 12021). He appeals from judgment of conviction entered upon jury verdict. The sole claim of error is that the trial judge, in comments made to the jury after its deliberation had begun, unduly influenced the jury’s verdict.

The jury retired at 1:50 p. m. of the second day of trial. It returned three times for reading of evidence and for further instructions. At 9 :38 p. m., the court again had the jurors returned to the courtroom, and was told that they stood 10 to 2, but without any intimation as to whether the majority favored acquittal or conviction. The court, after stating that “this situation . . . sort of baffles me,” said: “What’s the problem? I don’t want you to say who said what, but let’s get at it here. If I may say, this is probably the most simple ease I have ever tried in my twelve years as a Superior Court Judge, and I have heard over a thousand trials. What’s the point?” After further discussion, the jury was sent back at 9 :45 p m. to resume its deliberations, and returned at 10:08 p. m. with a verdict of guilty.

This case is not within the rule requiring reversal where the trial judge controls the verdict by direct expression to the jury of his view that the defendant is guilty or that his

[119]

testimony is not to be believed

(People

v.

Graham,

156 Cal.App.2d 525 [319 P.2d 677], and cases there cited). Nor is it controlled by the proscription of insistence upon a verdict after the trial judge knows that the votes for conviction predominate

(People

v.

Baumgartner,

166 Cal.App.2d 103 [332 P.2d 366];

People

v.

Walker,