People v. Flavin
Before: Burnett
Synopsis
Criminal Law—Competency of Jurors—Prejudice.—The statement of a juror in a grand larceny case that he will hold it against the defendants if they do not testify and that the circumstance of their being prosecuted excites in his mind some suspicion of their guilt, • does not show him incompetent, if he further asserts that he will be governed by the law and will start in with the presumption of innocence and require the prosecution to prove the guilt of the defendants beyond a reasonable doubt.
Ib.—Opinion of Juror as to Merits of Case.—The statement of a juror in a grand larceny case that he has read of the case in the papers, talked about it and formed an opinion as to the guilt of the defendant, does not show him incompetent, if it further appears that he has not talked with any of the witnesses, that the discussions have been in a casual way, “merely of public rumor,” with people who knew no more of the case than he, and that he will not consider the circumstance at all if sworn as a juror but will “go solely by the evidence and the instructions.”
Id.—Judgment—Time for Pronouncing—Section 1191 of Penal Code. Where the verdict in a grand larceny ease is rendered on the sixteenth of the month, and the court fixes the twentieth as the date for pronouncing judgment, but on that day continues the case until the thirty-first to hear a motion for a new trial, the court does not thereby lose jurisdiction to pronounce judgment, particularly if both dates were appointed at the request of the defendant. This is a substantial compliance with section 1191 of the Penal Code, providing that after a plea or verdict of guilty, “the court must appoint a time for pronouncing judgment, which much not be less than two, nor more than five days after the verdict or plea of guilty; provided, however, that the court may extend the time not more than ten days for the purpose of hearing or determining any motion for a new trial, or in arrest of judgment.”
[245]
BURNETT, J.
The appellants, with one John 0. Carroll, were jointly charged with grand larceny. Carroll was tried separately, and appellants, by consent, together. A full statement of the facts is found in
People
v. Carroll, 20 Cal. App. 41, [128 Pac. 4], and also a complete answer to the contention of appellants that the evidence was insufficient to support a conviction for grand larceny, as the evidence for the people at the two trials was substantially the same.
Appellants complain of the ruling of the court in denying their challenge for cause of certain persons examined to serve as jurors.
One of these was John 0. Derr and the point is that he declared that he would hold it against defendants if they did not testify and also that the circumstance of their having been charged with a crime and of being prosecuted by the district attorney excited in his mind some suspicion of their guilt. His answers, however, were such as might be expected from any layman. When his attention was called to the law on the subject he asserted that he would be governed by it and that he would start in with the presumption of innocence and require the prosecution to prove the guilt of defendants beyond a reasonable doubt before he would vote for conviction. The fact is that the venireman appears to have been unusually intelligent and to have answered the questions more frankly than is customary and the whole examination creates the impression that he would have been a fair and impartial juror.
The answers of D. A. Aldrich to questions propounded by counsel for appellants would rather indicate a condition of mind militating against a fair trial, but, after an explanation of the law bearing upon the matter, his responses to the inquiries of the court and of the district attorney justified the ruling in denying the challenge. He declared: “I would be willing to follow the rules of the law and the instructions of the court” and that he would and.could “look at the testimony the prosecution presents here and judge the guilt or innocence of the defendant entirely upon the evidence admitted by the court.”
Of course, the trial judge was in a much better position than this court to determine the condition of the mind of
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