People v. Brady

Searls, C. J. The defendant was charged by information with the crime of murder, alleged to have been committed in the county of Colusa, on the twenty-first day of June, 1885, by the killing of one W. A. Bristow.

He entered a plea of not guilty, and upon a trial had was found guilty of murder in the first degree, and the punishment fixed at imprisonment for life in the state prison.

The first point made by the appellant is, that the verdict is contrary to and not warranted by the evidence; that at most it only made a case of manslaughter, and was lacking in the elements from which malice is presumed.

The testimony was, as is usual in such cases, more or less contradictory, and it only need be said that there was testimony which, if credited by the jury, demanded from them the verdict rendered. As they were the sole judges of the degree of credit to be']given to the testimony, the verdict cannot be disturbed for the cause indicated in the error assigned.

It is further urged that the court erred in refusing a new trial upon the ground of error committed in discharging a juror, and in refusing to discharge the remainder of the panel and to commence de novo and impanel a jury.

It appears from the record that after the jury was sworn to try the cause, and before any evidence was taken, Henry Gurnsey, one of the jurors, was taken sick, and being unable to continue on the jury, was discharged by the court; counsel for defendant excepted to this action of the court, and requested that the remaining [492]eleven jurors be discharged, and that their names, in common with all others summoned, be placed in the jury-box, and that the jury be impaneled anew to try the cause.

The court declined to pursue this course and retained the eleven jurors, subject to the right of counsel to challenge said jurors. Defendant interposed no challenge. The prosecution challenged one of the eleven peremptorily, and thereupon the jury was filled and sworn in the usual manner.

Section 1123 of the Penal Code provides: “ If, before the conclusion of the trial, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged. In that case a new juror may be sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterward impaneled.”