People v. Williams

NOURSE, J.

This is an appeal by the state from an order of the trial court granting the defendant a new trial after his conviction upon an information charging him with a violation of section 270 of the Penal Code. A new trial was granted by the trial court upon the ground that- the verdict was contrary to the law and the evidence. Defendant was charged under the section of the code with a failure, without lawful excuse, to furnish his minor child with necessary food, clothing, shelter, and medical attendance. The prosecution thus assumed to prove the omission on the part of defendant to make provision for his minor child in the four instances specified in the information. At the close of the people’s ease the defendant moved the court to advise the jury to bring in a verdict in favor of the defendant on the ground that the evidence was insufficient to convict the defendant. The court then charged the jury as follows: “Ladies and gentlemen of the Jury, the Court in this ease deems the evidence insufficient to warrant a conviction, and the Court now advises you to acquit the defendant. You, however, are not bound by the advice of the Court. The case is submitted to you under the advice of the Court to acquit this defendant because of the insufficiency of the evidence, under the statute, to justify a conviction, but, as I have said, the jury is not bound by the advice of the Court.’.’ The court thus left the matter with the jury without further instruction on the law of the case. The jury disregarded the advice of the trial court and brought in a verdict of guilty.

On this appeal the state assumes that the only question involved is one of law, and predicates its argument upon a

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misconception of the record. From the reporter’s transcript it appears that respondent’s motion was made upon the ground that the evidence was insufficient to convict the respondent, and from the clerk’s transcript it appears that the charge to the jury, as above quoted, was made upon the same ground. Thereafter the respondent moved for a new trial upon the ground that the verdict was not sustained by the evidence. The trial court then asked counsel for the respondent if he did not mean that the verdict was contrary to the law and the evidence and the motion was thus amended. In ruling upon the motion the trial judge then stated that it was his opinion that the evidence was insufficient to justify the verdict, and that the new trial was granted upon the ground that the verdict was contrary to the law and the evidence. By referring to a recital of the proceedings made by the clerk of the court the state has made it appear that the new trial was granted only upon the ground that the verdict was contrary to law, but the record is so clear in showing the grounds of the motion when made and the terms of the order of the trial court in granting the motion that we must conclude that the clerk’s recital was error. In fact, the entire record shows that the parties at all times contemplated that the issue before the court was the insufficiency of the evidence and that questions of law were merely incidentally involved.