People v. Thornton (1888) · DecisionDepot

People v. Thornton

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

California Supreme Court Jan 3, 1888 No. No. 20346Published

Before: McKinstry, Paterson, Sharpstein

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Holding. The court held that a new trial was required because the jury separated without leave of court after retiring to deliberate and because the jury received evidence out of court by reading a pamphlet that had not been taken into the jury room.

Issues

Did the jury's movement to a restaurant and bar constitute an unauthorized separation under the Penal Code?
Did the jury receive evidence out of court by reading a pamphlet in the courtroom that was not taken into the jury room?
Was the admission of hearsay testimony regarding a witness's statement reversible error?

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“A new trial on this ground should have been granted, and the order denying it must be reversed.”

“By listening to the reading of it, we think they must have received evidence out of court, which on retiring for deliberation they did not take with them. That, in our opinion, entitles the defendants to a new trial.”

Synopsis

Appeal from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial.

The libel of which the defendants were convicted was ■contained in a pamphlet published by them, entitled Life of Horace Bell.” The further facts are stated in ■the opinion of Mr. Justice Sharpstein.

Opinion — Sharpstein

Sharpstein, J. The defendants were tried on an information for libel. They were convicted, moved for a new trial, which was denied, and from the judgment and •an order denying a new trial, have appealed. One of the .grounds on which they moved for a new trial is, that “ the jury separated, without leave of the court, after retiring to deliberate upon their verdict.”

1. The record shows that the jury retired to their room about ten p. m. to deliberate upon their verdict, and after remaining there two hours or more, and before agreeing upon a verdict, they left their room, accompanied by the officer having them in charge, and went across the street from the court-house to a restaurant and ordered supper. While that was being prepared, three of the jurors went to a bar, not more than [483]twenty-five feet distant from the officer and the other jurors, and ordered some drinks, which were given to them. After that they rejoined the officer and the other jurors. They then partook of the supper prepared for them, and returned to the court-house; but instead of going into the jury-room, went into the court-room, and there continued their deliberations until they agreed upon a verdict of guilty.

Did that constitute separation within the meaning of subdivision 3 of section 1181, Penal Code? This question is not a new one in this court. In People v. Brannigan, 21 Cal. 337, the court, Field, C. J., delivering the opinion, said: “The statute regulating proceedings in criminal cases provides that when the jury do not agree, after a case has been submitted to them, without retiring for deliberation, one or more officers shall be sworn ‘ to keep them together in some private and convenient place, and not to permit any person to speak to them, nor to speak to them themselves, unless it be to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed.’ And it empowers the court to grant a new trial ‘ when the jury have separated, without leave of the court, after retiring to deliberate upon their verdict, or been guilty of any misconduct tending to prevent a fair and due consideration of the case.’ The object of the first provision is to remove the jury from all improper influences in their deliberations; and the object of the second provision is to permit a remedy where the jury have been subjected to such influences, or been themselves guilty of misconduct tending to affect the purity of their verdict.”

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Dissent — McKinstry

McKinstry, J., dissenting. I dissent. The statement of the witness which the court refused to strike out was made while he was at work in the printing-office of one of the defendants, upon the pamphlet containing the [487]alleged libelous matter. The declaration was part of the res gestee. But even if error, it could not have injured the defendants.

The “ Life, of Horace Bell ” was admitted in evidence, and was by consent considered as read. The reading of portions of the pamphlet by one of the jurors to the others was not, in my opinion, the reception of evidence out of court, within the meaning of section 1181 of the Penal Code. The evidence had been received in court. Nor can I perceive that it was. misconduct in the jurors, —such as prevented a fair and due consideration of the case,—for them to read portions of a pamphlet which was in evidence, “and considered read.” If there were other documents in evidence which explained the pamphlet,—of changed its effect,—that fact should have been shown by the defendants, who moved for a new trial.

Did the jury “ separate”? (Pen. Code, sec. 1181.) I do not think the affidavits on motion for new trial show a separation.

In People v. Kelly, 46 Cal. 357, it was held that the facts that the jury, after they retired for deliberation, were conducted by the officer having them in charge to the dining-room of a hotel, where they remained together for three quarters, of an hour, that one of the doors of the room was opened and accessible to strangers, and that the officer in charge was absent from the room for a few minutes during the period named, were insufficient to constitute misconduct on the part of the jury; there being affidavits that no person in fact conversed with the jurors.

But even if it should be conceded that the affidavits show a “ separation,” in that it appears therefrom that three of the jury went apart from the others a distance of twenty or twenty-five feet, the rule is firmly established that the separation of the jury is but prima facie ground for new trial. Its effect is always subject to be [488]rebutted by proof that no improper influence reached the jurors. The rule is so laid down in People v. Brannigan, 21 Cal. 337, cited in the prevailing opinion herein. And it seems to have been so ruled in Arkansas, Connecticut, Virginia, Georgia, Tennessee, North Carolina, Illinois, Indiana, New York, Mississippi, Minnesota, New Hampshire, Massachusetts, Rhode Island, New Jersey and Wisconsin.

As a general rule, a verdict cannot be impeached by the affidavit of a juryman, but such affidavit is admissible in support of the verdict. In the case at bar the motion was based on the affidavit of the defendant. Three.of the jurymen, including two of the three said to have separated from the others, testified that the three were continuously in the presence and sight of the other jurors, and of the officer in charge, and not more than twenty or twenty-five feet distant from them. Further, that they did not converse with any person, and did not speak to any person, except to ask the bar-keeper for the “ drinks ” they desired, or in the language of one of the affidavits, to “ nominate their beverages.” It does not affirmatively appear that any of them drank of that which could intoxicate, and one of the three paid for what they drank.

The evidence was amply sufficient to overcome any inference that the jurymen might have been approached or improperly influenced.

Moreover, it has been held that when the evidence with respect to the misconduct of a juryman is substantially conflicting, the action of the trial court in refusing a new trial will not be disturbed. (People v. Anthony, 56 Cal. 399.)

McFarland, J., and Thornton, J., concurred with Mr. Justice McKinstry.

People v. Thornton

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Synopsis

Opinion — Sharpstein

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Concurrence — Paterson

Dissent — McKinstry

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