People v. Bonney
Before: Baldwin
Synopsis
Whebe defendant was convicted of murder, and on motion for new trial, it appeared that three of the trial jurors, after their retiring but before verdict, went for a few moments to a privy, accompanied by the Under Sheriff, who testified that during their absence from the jury-room they had no communi- . cation with any one, nor with each other: Held, that the separation of the three jurors from their fellows was not cause for new trial.
The People v. Bachus (5 Cal. 275) on this point goes to the verge of if not beyond the true rule; but that case does not conflict with the decision here.
Where, under section two hundred and ninety of the Criminal Practice Act the jury, during a trial for murder, are permitted to viero the scene of the alleged crime in custody of the Sheriff, without the presence of the prisoner: Held not to be error; and that this “ view ” is not any part of the trial within the meaning of the statute requiring the presence of the prisoner on such trial.
Held, further, not to be good reason for setting aside the verdict, that the Court permitted the jury during such trial to withdraw to the front of the Court House in custody of the Sheriff, and without the presence of the prisoner to view a “ buggy ” as to which a witness was testifying, and in which the prisoner and deceased drove off together on the day of the alleged murder, particularly as the prisoner neither objected to the “ view,” nor asked permission to accompany the jury.
It is discretionary with the Court to permit the jury to make this “view,” and possibly the Court would grant the prisoner the same right.
Where, on trial upon an indictment for murder, the jury returned into Court and said they had agreed upon a verdict, which, on being read by the Judge, was found to be: “We, the jury, find the prisoner guilty as charged in the bill of indictment,” and the Judge thereupon, without communicating to the prisoner or his counsel the nature of the verdict—they being present and demanding it—told the jury verbally that their verdict was not in proper form, and that they must retire and designate in their verdict in which degree they found the prisoner guilty, and the jury then retired and shortly returned with a verdict specifying that they found the prisoner guilty of murder in the first degree : Held, that this verbal direction to the jury to retire, etc., was not a charge necessary to be in writing; that it amounted to nothing more than a direction to the jury that they must act—must find a verdict on the issue, which was whether defendant was guilty, and if so, in what degree.
It is not error for the Court to permit a witness to be sworn for the prosecution, although his name was not indorsed on the indictment.
Baldwin, J. delivered the opinion of the J. concurring.
The defendant was convicted of the crime of murder in the first degree. His counsel assigned several errors, which we shall consider in their order.
1. The first is, that three of the trial jurors separated from their fellows after the jury had retired, and before the return of their verdict. This assignment seems to rest on the fact that these jurors retired for a few moments to a privy, and the Under Sheriff who accompanied them testifies, that during their absence from the jury room, they held no correspondence with any one, nor with each other. The case of the People v. Backus (5 Cal. 275) is relied on ; but that case—which goes to the verge of the true rule, if not beyond—does not support the assignment; for the Court say, the correct rule is to grant a new trial on account of the separation, if it were such as that the jury might have been improperly influenced. Here the facts show that the jurors were in the custody of the officer, and not only is there no probability, from the circumstances, of any improper interference, but express proof, uncontradicted, that there was none. (See People v. Lee, 17 Cal. 78.)
2. It is assigned that the jury should not have been permitted to view the scene of the alleged murder, except in the presence of the prisoner, this view being a part of the trial, in the theory of the ‘ counsel, and the prisoner required to be present during the entire progress of it; and,
3. That the jury were permitted to see the buggy, as to which testimony was given. We see nothing in these two points requiring a detailed notice. The Court had the discretion to permit the jury to view these physical objects; and this was neither in contemplation of the act or otherwise any part of the trial. It was rather a suspension of the trial to enable the jury to view the ground, etc., [446]that they might better understand the testimony. We do not see what good the presence of the prisoner would do, as he could neither ask nor answer questions, nor in any way interfere with the acts, observations or conclusions of the jury. If he had desired to see the ground that he might be assisted in his defense by the knowledge thus obtained, possibly the Court would have granted him the privilege ; but the fact that the jury went upon the ground without being accompanied by him is no good reason for setting aside the verdict, especially as he neither made objection nor asked permission to accompany them at the time.
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