People v. Mortimer

By the Court: The questions to be determined on this appeal are: First— Did the Court below err in directing that the counsel for the prosecution open and conclude the argument to the jury, there being two counsel on each side? Second—Did the Court err in refusing to continue the cause on the application of the defendant ? Third—Ought a new trial to have been granted, on the ground that after the verdict was rendered the defendant ascertained for the first time that the juror McLaughlin, before the jury was impaneled, had formed and expressed an unqualified opinion as to the guilt of the accused, and had actual bias against him?

The decision of the first question must turn upon the proper construction of section six of the Penal Code, which is in these words:

“Sec. 6. No act or omission, commenced after twelve o’clock, noon, of the day on which this Code takes effect as a law, is criminal or punishable, except as prescribed or authorized by this Code, or by some of the statutes which it specifies as continuing in force and as not affected by its provisions, or by some ordinance, municipal, county, or township regulation, passed or adopted under such statutes and in force when this Code takes effect. Any act or omission commenced prior to that time may be inquired of, prosecuted, and punished in the same manner as if this Code had not been passed.”

Under the Criminal Practice Act, as it stood prior to the adoption of the Penal Code, we held in the case of the People v. Fair, 43 Cal. 137, that in a capital case, where [117]there are two counsel on each side, they must alternate in their argument to the jury. But the rule is changed by section one thousand and ninety-three of the Penal Code, which provides that “the District Attorney or other counsel for the people must open and the District Attorney may conclude the argument.” The defendant in this case was indicted for murder, alleged to have been committed before the Penal Code took effect; and at the trial the people and the defendant were each represented by two counsel, and the counsel for the defendant claimed the right to alternate with the counsel for the prosecution in the argument to the jury. But the Court "decided that the counsel for the prosecution must open the argument, and that the District Attorney might conclude it, which ruling is assigned as error. It is contended for the defense that under section six of the Penal Code, above quoted, it was the duty of the Court to conduct the trial in all particulars as though the Code had not been adopted. It is claimed, in other words, that the forms of procedure provided in the Code have no application in any particular to trials for offenses alleged to have been committed before the Code took effect, and the argument is based upon that portion of section six which provides that any act or omission commenced prior to the taking effect of the Code “may be inquired of, prosecuted, and punished in the same manner as if this Code had not been passed.” It is said the word “may” in this sentence will be construed as “must,” and that the terms “inquired of” and “prosecuted * * * in the same manner as if this Code had not been passed,” necessarily imply that the forms of procedure provided in the Code were not intended to apply in any particular to that class of cases. But we will be aided somewhat in interpreting this clause, by section four of the Penal Code, which is in these words :