People v. Rubbattino

FINCH, P. J.

By separate counts in the information the defendant was charged with three unlawful sales of intoxicating liquor. He was convicted on all of the three counts and his motion for a new trial was denied. This appeal is from the judgment and the order denying a new trial. The appeal is submitted upon the appellant’s opening brief, filed after the cause was called for oral argument.

Appellant contends that the court “committed prejudicial error in placing the jury in the custody of the sheriff and his deputy after said sheriff had been disqualified in the case.” The record does not show that the jurors were placed in charge of the sheriff or his deputy. All that ap

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pears in that connection is the following, taken from the clerk’s and the reporter’s transcripts, respectively: “The court now reads its instructions to the jury and the jury now retire in charge of two sworn officers.” “The clerk swears two officers to take charge of the jury, and the jury then retires to deliberate.”

During the impanelment of the jury the sheriff, on the order of the court, summoned ten persons as a special venire. The clerk’s transcript contains the following record of proceedings when these ten persons appeared in court: “The court orders that C. E. Brown be excused. . . . The defendant now interposes a challenge to the special venire of jurors summoned by the sheriff on the ground the sheriff of Napa County swore to the complaint in the cause. The court orders that the challenge be allowed and that the nine persons summoned on the special venire be discharged.” A special venire was thereafter summoned by an elisor appointed by the court with the consent of both parties. There is no further reference in the record to the disqualification of the sheriff. If he was one of the officers placed in charge of the jurors during their deliberations, the record does not show that defendant made any objection thereto. Under such circumstances it must be held that the. disqualification was waived. In

People

v.

Le Doux,

155 Cal. 535, 544 [102 Pac. 517], it was held that where a sheriff is disqualified to summon a jury his deputy is likewise disqualified. In