People v. Ah Oon (1880) · DecisionDepot

People v. Ah Oon

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1880 No. No. 10,555Published

Before: McKinstry

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Holding. The trial court committed reversible error by making statements to the jury that constituted findings of fact regarding the nature of the gambling game, thereby violating the constitutional prohibition against judges charging juries on matters of fact.

Issues

Whether the trial court's oral remarks to the jury regarding the nature of the game constituted an impermissible finding of fact.
Whether the trial court erred by providing instructions that were not in writing and were unsupported by evidence.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The jurors were entitled to a confirmation or else a modification of the legal proposition contained in that instruction; they were not supplied with either, in unambiguous terms, but were furnished instead with a finding of fact.”

Synopsis

Appeal from a judgment of conviction, and from an order denying a new trial, in the Superior Court of Fresno County. Holmes, J.

McKinstry, J.: The information alleged that defendants, jointly, on, etc., “ did deal and carry on a certain banking game, commonly known as ‘ tan,’ with certain devices,” etc. A verdict of guilty was rendered against all.

As part of its charge, the Court instructed the jury: “If the evidence shows that one or more of defendants were guilty of playing at one banking game, and one or more of defendants at another, and the defendants were not playing at the same timo and place, and in the same game, the jury must acquit.”

The jury returned into Court for further instructions. Then took place certain proceedings, which are herein after recited at length, not because they exhibit an exemplary model of the decorum which should characterize the demeanor of counsel, but in order that it may be made to appear that the jury must have been, or at least may have been, led up to their verdict by assertions of fact emanating from the bench.

After retiring to their room for deliberation as to a verdict, the jury were returned into Court, and were in the jury box at the time the reporter entered the room, whereupon the following proceedings were had:

The Court (to the reporter).—You may state that the jury came in and asked the Court—

Mr. Edwards.—If the Court please, I would like for the juror to state what he is asking for, and for the reporter to take it down.

The Foreman.—The jury asked instructions or an explanation from the Judge as to the meaning of one of the instructions, as to whether it .means, that, if part of defendants were playing the game at one table and part at another table, and all the same game, whether they were instructed that the defendants were not guilty; or as to whether part of the defendants were playing at one table and part at another, and at a different game, that they were not guilty ? That is the thing we desire to know.

[190]The Court.—The Court instructs the jury that, from the reading of the instruction, that the expression, or the words, “ at one game,” does not change the character of the game charged in the indictment of tan; that the same game can be carried on at two separate tables, and still preserve the same characteristics. If the words “ at table ” had been used instead of “ at game,” it would alter the instruction. Is that all you desire?

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Without any comment upon the confusion which pervades the scene thus photographed, produced in part at least by numerous ’ interruptions and persistent argumentation—not to mention the kindly efforts of counsel to relieve the Judge of the labor of instructing the jury by discharging that judicial function for him—it clearly appears from the colloquy above reported, that the questions of the jurors had reference to the instruction already given and recited above—in itself clearly expressed and easily understood—and would have been fully [193]answered by its substantial repetition. The jurors were entitled to a confirmation or else a modification of the legal proposition contained in that instruction; they were not supplied with either, in unambiguous terms, but were furnished instead with a finding of fact. The language employed by some of the jurors also conveyed a very plain intimation that they had already reached the conclusion, upon the evidence, that defendants when arrested were severally conducting separate games. The statement of a juror, * * * “but there was two games of the same kind,” was immediately followed by the remark of the Court, “ There could be two dealers and only one game.” This remark—as well as the previous declarations of the Court, “the same game can be carried on at two tables,” and “the same game can be played at the same time at two separate tables, and yet constitute the same game”—could only have been understood as a statement of a fact, and was therefore violative of the Constitution. (Art. vi, § 19.) It was more than an abstract speculation, based a priori upon the illimitable possibilities. The exigencies of the case did not demand of the Court or jury to hazard a conjecture, that amongst the innumerable inodes by which men, civilized and savage, indulge their passion for gambling, there might he a game of chance conducted contemporaneously by two dealers. Gambling in the concrete was before the Court and jury, the spirit of gambling as materialized in tan.

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