People v. Miles

Defendants were convicted on an information charging that on August 22, 1903, they were guilty "of the crime of setting and using a set-net in the waters of the state for the purpose of catching fish (a misdemeanor) committed as follows: That said [naming the defendants and the date] did, then and there willfully, unlawfully and feloniously in the waters of the state of California, to-wit, in the Sacramento Slough, in the said county of Sutter, . . . set and use a certain set-net, that is a net which was then and there secured and was not free to drift with the current and with the tide, for the purpose of catching fish, . . . contrary to the form," etc.

The trial court denied defendants' motion for a new trial and entered judgment on the verdict. Defendants appeal from the judgment and order.

1. The jury retired to consider their verdict some time in the forenoon. They came into court for further instructions as to the form of the verdict they might return. Again, a second time, they came into court and stated that they had come to an agreement as to one of the defendants, and passed up the verdict to the court. Counsel for defendant objected to the reading of the verdict unless it was as to both defendants. The trial judge told the jury that he could receive the verdict, but he thought they should attempt to arrive at a verdict in both cases if they could do so, inasmuch as they had not been out long. The instructions were again read to the jury and they retired. This was just before noon. The jury came in a third time at ten minutes past three and informed the court that they had changed their mind as to the partial verdict and had then not agreed on any verdict. A juryman informed the court of the number of ballots taken and how the last vote stood. The court said to them that he thought they "would be able to arrive at some kind of a verdict." The sheriff was instructed to provide supper for them, as they had no dinner, and they again retired. A fourth time they returned into court, but at what time does not appear except that it was before six o'clock. The foreman informed the court that there had been no agreement and he did not *Page 638 think it possible that they would agree. Another juryman thought it doubtful. Another juryman said the last ballot showed a change. Another juryman said there was some disagreement as to the testimony of one of the witnesses and it was read to the jury. Another juror said there might be a change after a while. Another said: "I think we had better try it once more." TheCourt. — "I think so, too. It seems there has not been a full discussion of the matter, from what has been said and from the changes that have been made." The court told the jury "that it costs several hundred dollars to get a jury together to try a criminal case. It is an expensive matter. If there is a mistrial in a criminal case the district attorney may bring it on for trial again, and a great expense attaches to the trial of such cases. . . . If you think there is any possibility of arriving at a verdict, and thus saving the county the expense of a retrial, I am willing to read the instructions to you again. . . . It will save a good deal of expense if this case can be finally determined by this jury, but, as I said before, I have no desire to force you to retire again to the jury-room if there is no possibility of your arriving at a verdict. . . . You are all taxpayers, — you would not be in the jury-box if you were not all on the assessment-roll of the county, — and it should be your desire more than that of any others that the county should be saved as much expense as possible." A juryman offered to show the trial judge the different votes taken. The Court. — "I do not wish to see it. All I want to know is whether there is a probability of your arriving at a verdict as to both of the defendants or as to one of them. You must arrive at a verdict if you do at all solely from the evidence and the instructions given you, not from any convenience to any of you or any inconvenience to any of you by reason of being kept in the jury-room."