People v. Ellsworth (1891) · DecisionDepot

People v. Ellsworth

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

California Supreme Court Dec 30, 1891 No. No. 20780Published

Before: McFarland

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Holding. The court affirmed the defendant's conviction for second-degree burglary, finding the evidence sufficient and concluding that the trial court's failure to inform the defendant of his right to challenge jurors was not prejudicial because he was represented by counsel.

Issues

Whether the evidence was sufficient to justify the verdict.
Whether the district attorney's opening statement was deficient.
Whether the prosecution sufficiently proved venue.
Whether the court's failure to inform the defendant of his right to challenge jurors under Penal Code section 1066 constituted reversible error.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The evidence was sufficient to justify the verdict”

“The appellant suffered no prejudice from the neglect of the court to inform him of his right to challenge jurors as provided in section 1066 of the Penal Code, as he was represented by counsel”

Synopsis

Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

The information accused the defendants of a burglary committed in the city and county of San Francisco, at No. 929 Folsom Street. At the conclusion of the statement by the district attorney of what the prosecution intended to prove, defendant’s counsel moved to dismiss the information, upon the ground that the facts stated, if proved, would not justify a conviction, and also moved the court to instruct the jury to acquit the defendant upon the same ground. The court denied both motions. The only proof of venue was, that the house at No. 929 Folsom Street was entered, and goods stolen therefrom which were found in possession of the defendants at the Milton House, corner of Howard and Third streets. Further facts are stated in the opinion of the court.

McFarland, J. The appellant was convicted of burglary in the second degree, and appeals from the judgment and order denying him a new trial.

The evidence was sufficient to justify the verdict; and it was immaterial whether or not the district attorney fully stated all the evidence and facts in his opening-statement to the jury.

There was sufficient proof"of the venue (People v. McGregor, 88 Cal. 140), although, as to that matter, the prosecution showed great carelessness.

We see no error in the matter of instructing the jury.

[596]The appellant suffered no prejudice from the neglect of the court to inform him of his right to challenge jurors as provided in section 1066 of the Penal Code, as he was represented by counsel (People v. Mortier, 58 Cal. 266), unless we are to assume that his counsel was incompetent. Courts, however, should never allow such a point to get into a case. If judges, when trying criminal cases, would keep the code before them, and look into it occasionally, they could avoid many technical exceptions which arise out of the failure to perform mere routine duty. We see no error in the record.

Judgment and order affirmed.

De Haven, J., Sharpstein, J., Garoutte, J., and Harrison, J., concurred.

People v. Ellsworth

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