People v. Deegan
Before: Foote, Haven
Synopsis
Criminal Law — Larceny — Evidence — Cross-examination — Conversation with Defendant. — Upon the trial of a defendant charged with larceny, a witness for the prosecution who had merely testified that he saw the defendant on the night of the alleged stealing, but had not testified in chief as to having any conversation with him, cannot be cross-examined in relation to such conversation, nor can the defendant introduce such conversation in evidence in his own behalf.
Id. — New Trial — Misconduct of Jury — Affidavit of Juror — An affidavit of a juror seeking to impeach the verdict for his own misconduct is not admissible, and cannot be used upon a motion for a new trial.
Id. — Intoxication of Juror. —The fact that a juror drank intoxicating liquors out of court, and that at the recess on the day the verdict was rendered he-was for a time under its influence, does not vitiate the verdict, if it appears from the affidavits of other jurors and the officer in charge of the jury that the juror, while sitting or deliberating as a juror, was sober, intelligent, and in a fit condition to understand and deliberate upon the evidence, and determine the verdict.
Id. —Intoxication in Court. — If a juror is palpably intoxicated in court, the defendant should object to his serving, before the jury is permitted to retire.
Opinion — Foote
Foote, C. The defendant was convicted by a jury, of the crime of larceny,—the theft of a calf. From the judgment rendered in the premises, and an order denying him a new trial, he appeals.
The evidence upon which he was tried is mainly circumstantial, but we see no reason to declare, as the defendant contends we should, that the jury were not warranted in returning the verdict of guilty.
In the progress of the trial, a witness for the prosecution, Mr. Zeilor, testified that he saw the' defendant and those claimed to have been with him, on the night of the alleged stealing, at Selma, in Fresno County, between eight and nine o’clock in the evening. Then, upon cross-examination by defendant’s counsel, the witness said he had no conversation with them. When his memory was refreshed by a further question, he was about to state what he had said to them, and presumably what they said to him, when the district attorney [604]objected on the ground that the testimony sought to be elicited was not in cross-examination of anything brought out by him in his examination in chief.
The court sustained the objection, and the defendant excepted, and assigns this ruling of the court as prejudicial error.
If the people, for the purpose of criminating the defendant, had asked for this conversation, it would have been admissible, and then the defendant could have cross-examined the witness in relation to the matter. This was not done, and as the defendant’s conversations could not be introduced by him in chief, for the reason that it is not permissible for a man charged with crime thus beforehand to manufacture evidence for himself, so it could not be admissible in cross-examination if brought out by the defendant for the first time. Besides, what appears to have been said, and which it was the evident purpose of defendant’s counsel to bring before the jury, is testified to by defendant afterwards. So that no prejudicial error was committed as to the matter.
The last and most important ground upon which the appellant bases his contention for a reversal of the judgment and order is, that one of the jurors was guilty of the misconduct of drinking intoxicating liquors during the progress of the trial, and to such an extent as to disqualify him for the performance of his duty in such capacity.
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