People v. Miller

By the Court, Currey, C. J.: The defendant was indicted with one Ellen Quinlan for the crime of grand larceny, to which she pleaded not guilty, and upon the trial of the issue joined was found guilty and sentenced to imprisonment in the State Prison. She moved for a new trial on the following grounds :

First—That the verdict of the jury was rendered in her absence. Second—That the Court erred in matters of law on the trial to the defendant’s prejudice. Third — That defendant had discovered evidence after the trial which, with reasonable diligence, she could not have discovered before then and which if produced and taken as true would have required a verdict of not guilty. The motion was denied, and judgment was then pronounced upon the verdict.

First—The evidence relating to the point first made was conflicting and the Judge who tried the cause and passed upon the motion did not express himself satisfied that the defendant was absent'when the verdict was rendered. The statute provides that if the indictment be for a felony the defendant must appear in person before the verdict is rendered, (Crim. Prac. Act, Sec. 415,) and a verdict rendered against a defendant in such case when the trial has been had in his absence will be set aside upon motion for a new trial. (Ib. Sec. 440.) The trial was not had in the defendant’s absence. She does not claim that she was absent except at the time when the jury came into Court and announced their verdict and while the same was being recorded by the Clerk. She was there, according to her own story, before the jury were discharged, and knew what the verdict was, and had the opportunity to demand the polling of the jury. It is not pretended she was in any manner prejudiced in respect to a substantial right by reason of her momentary absence; and, assuming that she was absent as claimed on her behalf, and that the proceeding which transpired during that interval was irregular, it must be held to be an error or mistake of [101]no injurious consequence to the defendant and in nowise rendering the verdict invalid. (Ib. See. 601.)

Second—The error of law which the defendant assigns as having occurred on the trial to her injury was, that the Court refused to allow the defendant to continue the examination of Ellen Quinlan, who was called as a witness on the part of the prosecution, and whose examination, after it had been commenced, was abandoned by the District Attorney. After the witness had commenced giving evidence, and before she had proceeded to any considerable extent, the District Attorney suggested to the Court his dissatisfaction and surprise at its tenor and effect and his entire want of confidence in its truth, and refused to examine her further. The defendant’s counsel then asked her to proceed with her narrative, to which the District Attorney objected, maintaining that the examination of the witness on the part of the defendant should be confined at that stage of the trial to a cross examination as to the matter which had been elicited from her on her direct examination by the District Attorney. The Court sustained the objection, saying at the same time that, as to new matter, the defendant would make the witness her own. To this ruling the defendant excepted. Of the correctness of this decision we think there is no room for doubt. It was in accordance with well settled principles of the law and needs no argument in its support.