People v. O'Brien

Criminal Law — Jury—Venire — Sheriff’s Return — Judgment Roll — Record upon Appeal. —The return of the sheriff upon the venire under which a trial jury was summoned in a criminal case is not a part of the judgment roll, and constitutes no part of the record upon appeal from the judgment, when not incorporated in a bill of exceptions.

Id. —Misdescription of Names of Jurors — Unimportant Error. —The misdescription of the names of some of the jurors summoned to try the cause in the return upon the venire is not ground for a new trial or for arresting a judgment; and a mere dissimilarity of names, which may rest wholly upon a clerical or typographical error, without any showing that all the jurors who sat at the trial were not actually summoned, is not ground for reversal of the judgment of conviction.

Id. — Challenge of Jurors — Bill of Exceptions — Minutes of Court — Conflict in Record. — Where the bill of exceptions states that the defendant did not offer to challenge, and did not challenge, any of the jurors, and the minutes of the court show that six jurors were peremptorily challenged by the defendant, the statement in the minutes will be accepted, upon appeal, as true.

Id. — Instruction as to Right of Challenge — Error without Prejudice. — Though it is error for the court to fail to instruct the defendant that if he intends to challenge an individual juror when the juror appears and before he is sworn, still if it appears from the record that the defendant’s rights were fully understood by him and his counsel, and that the privilege of challenging jurors was actually exercised, the error is without prejudice to any substantial right, and is not ground for reversing the judgment of conviction.

Id. — Absence from Trial of Co-defendant — New Trial. — A showing that a defendant accused of felony was absent from the trial of a co-defendant, without any showing that he was absent from his own trial, is not ground for a new trial.

Id. —Robbery — Instruction as to Fear. •—When the court, in its charge upon the trial of a defendant accused of robbery, defines robbery as it is defined in the Penal Code, and then explains the fear by means of which the taking is constituted robbery, if the property is taken through its influence, the explanation is proper, if there is evidence tending to show that the taking of the property was accomplished by means of both force and fear.

Id.—Instruction as to Verdict—Larceny. — Where the evidence all tends to prove that the defendant, if guilty of any crime, is guilty of robbery, an instruction to the jury that their verdict should be guilty or not guilty, and omitting all reference to the question of larceny, is not ground for reversal.