People v. Kalkman

Searls, C. — The defendant was convicted of an assault with intent to commit robbery.

The appeal is from the final judgment entered therein, and from an order denying a new trial.

It appeared at the trial that the prosecuting attorney had received information from which he supposed an attempt had been made to bribe one or more of the jurors, and upon the close of his testimony for the prosecution, he called A. J. Towner, one of the jurors impaneled in the case, and interrogated him in relation thereto.

The testimony of the juror failed to show the attempted bribery. Thereupon the prosecuting officer, at the request of the court, stated that he was informed that morning by one Hathaway that he (Hathaway) was offered one hundred dollars to hang the jury. Hathaway was a juror in attendance upon the-court, but not a juror in this particular case.

Both counsel for the people and the defendant thereupon asked for a full investigation of the matter, and the court, after discharging the jury, and instructing them to leave court, heard further testimony tending to show that whatever offers of bribery had been made came from an intoxicated reporter, who was quite unconscious of any attempted wrong.

After a portion of the testimony had been taken, [214]counsel for defendant contended they were entitled to have the jury present to hear the testimony.

The court held in substance that the jury was not entitled to hear the testimony on this point, and that he would give them proper instructions on the subject.

It is sufficient to say that no exception seems to have been taken on behalf of defendant to the action of the court in sending the jury out during the investigation of this question. Waiving this technicality, however, and we are of opinion no error was committed.

The investigation was as to a matter entirely dehors the trial, and the jurors had practically heard nothing pertaining to it except the statement of the prosecuting attorney.

The jury was instructed by the court very fully, and most explicity, that they must divest their minds of any and all statements, except those admitted in evidence, whether from counsel or witnesses, and that they were “ not to consider at all the matter that was investigated, growing out of the placing of one of the jurors on tit© witness-stand. The court instructs you, you are to dismiss that matter entirely from your minds in considering this case; you will not consider it at all as bearing upon the ease in any shape or form whatever.”