People v. Fitzpatrick

McFarland, J. The defendant was convicted of the crime of receiving personal property (several head of cattle), knowing the same to have been stolen; and he appeals from the judgment, and from an order denying a new trial.

1. What, at first glance, seems to be the most important contention made by appellant is, that the court erred in ordering the jury to be conducted to a corral to view a certain steer alleged to have been one of the cattle stolen. The court seems to have thought that the order was permissible under section 1119 of the Penal Code. But that section only provides that a similar order may be made “ when, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred”; and as a steer is not a" “place,” it is quite evident that the order made in the case at bar is not [540]within the provision of that section of the code. If, therefore, the proper objection to the proceeding had been made by appellant, a very serious question would have arisen. It is true that the order of the court recites that “the reporter, clerk, deputy sheriff, judge of the court, and the defendant will accompany the jury in this view, and the defendant’s counsel,” but it does not appear that they did so, or that the court assembled at the place where the steer was, as an organized court, and conducted the examination in the usual way, as a part of the regular trial. The order appointed Samuel Miller, one of the witnesses, “to show and point out said animal to the jury.” There does not appear to have been any opportunity for counsel to examine, or cross-examine, Miller, or to call the attention of the jury to the particular features of the brands and marks on the animal about, which there was a conflict of evidence. The record merely states that “the jury inspected the steer.” It is difficult to see, therefore, how the proceeding can be taken out of the rule that a jury must base its verdict upon evidence regularly introduced before it during the trial, and must not receive evidence out of court, although it seems to have been countenanced in People v. Bonney, 19 Cal. 446.

But the appellant did not object upon the ground that the proceeding itself was irregular, illegal, or unauthorized, and the attention of the court was not called in any way to that view of the subject. The ground of the objection to the order was that “the animal in question has not been shown to be in the same condition it was when the animal is alleged to have been received by the defendant.” To which counsel for the prosecution responded: “We don’t claim the brand is the same; but that the ear-marks and dewlap is the same.” The order for the view having then been made, counsel for defendant said: “To which order the defendant excepts on grounds heretofore stated in objecting to the motion.”