People v. Price

Morrison, C. J. This defendant was informed against in the Superior Court of San Joaquin County for the crime of grand larceny, committed by feloniously stealing from the person of another the sum of eleven dollars, and on the trial the jury rendered the following verdict: —

“We, the jury in the above-entitled cause, find the defendant guilty, and recommend him to the mercy of the court.”

A motion for a new trial was made in the case which was denied by the court, and the appeal is prosecuted from the judgment as well as the order denying the motion for a new trial.

There are two points made in the appeal, the first of which is that the jury did not hear the instructions given by the court. There is no evidence that the instructions were not heard by the jury excepting the affidavit of the attorney that he did not hear them, and therefore it by no means satisfactorily appears that the point is well taken in fact; but conceding that it is, it furnishes no reason in law for our interfering with the judgment. If it be true, as a matter of fact, that the jury did not hear the instructions of the court, because, as stated, there was so much noise in the court room at the time, the court should have been requested to repeat the instructions in such a manner and at such a time that they could have been heard by the jury. It would be unfair to the prosecution to allow the case to go to the jury under such circumstances, and then set aside the verdict, if adverse to the defendant for any such reason.

The other point is that the verdict is a nullity, inasmuch as it does not conform to section 1157 of the Penal Code, which provides that “ whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty.”

The only question in the case is whether the crime with which the defendant was charged and of which he was convicted is distinguished into degrees. If it is, the verdict of the jury is clearly imperfect and bad under the foregoing section of the Penal Code.

By section 486 of the Penal Code “larceny is divided into [352]two degrees, the first of which is termed 6grand larceny’; the second ‘petit larceny’”; and by section 487, grand larceny is •committed in either of the following cases: —

“ 1. When the property taken is of a value exceeding fifty dollars.