People v. Nichols

Thornton, J.: The defendant was, upon information and trial, convicted of burglary in the first degree, and sentenced to one year’s imprisonment. From the judgment defendant appealed. He also moved for a new trial, which was denied, and from the order denying his motion he also appealed.

The cause was submitted to the jury, and they retired for deliberation. As appears from the bill of exceptions, they deliberated two hours and a half before agreeing; and having agreed, they were conducted into the Court by the Sheriff, when their names were called by the Court, and all answered. The Court asked the jury if they had agreed upon a verdict, and the foreman answered that they had, and handed a paper to the Court. The Court looked at the paper, and handed it to the Clerk, saying: “Mr. Clerk, record the verdict.” The defendant asked that the verdict be read before it was recorded. The Court refused the request, and defendant excepted. The bill of exceptions further shows that the Clerk copied the verdict from said paper into the permanent minutes of the Court,read it to the jury, and asked: “Gentlemen of the jury, is this your verdict ?” Some of the jurors answered “Yes,” and none expressed any dissent. The Court then directed the Clerk to poll the jury. The Clerk thereupon asked each juror: “ Is this your verdict ?” and each answered in the affirmative. The jury were then discharged.

It is provided in the Penal Code that when the jury have agreed upon their verdict, they must be conducted into Court by the officer having them in charge. Their names must then be called, etc. (P. C., § 1147.) When the jury appear they must be asked by the Court or Clerk whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same. (P. C., § 1149.) When a verdict is rendered, and before it is [520]recorded, the jury may he polled, at the request of either party, in which case they must he severally asked whether it is their verdict, and if any one answers in the negative, the jury must he sent out for further deliberation. (P. C., § 1163.)

It is urged upon us that the defendant was injured by the course taken by the Court in this case, in ordering the verdict to be recorded before it was read or declared. There was in the course pursued by the Court a palpable irregularity, which would never have occurred if the provisions of the Penal Code had been looked to by the Court. But has the defendant been prejudiced in any substantial right ? For by the statute this Court is commanded, after hearing an appeal, to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. (P. C., § 1258.) And a further command is laid upon us by Section 1404 of the same Code, in these words: “Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.”