People v. Sansome
Synopsis
Criminal Law—Evidence—Failure of Defendant to Testify—Comment by District Attorney—New Trial—Waiver of Error Where the defendant in a criminal case fails to testify in his own behalf, the district attorney has no right in addressing the jury to comment upon such failure; hut error in making such comments can only be availed of on motion for new trial, and is waived unless properly presented upon the record of such motion.
Id.—Viva Voce Motion for New Trial—Statement of Grounds—Bill of Exception—Where, upon appeal from an order denying a viva voce motion for s, new trial in a criminal case, the bill of exceptions fails to show that the alleged error was stated as a ground of the motion, or that the attention of the trial court was called to it, the alleged error must he regarded as waived.
Id.—Misconduct of Jurors—Drinking of Intoxicating Liquors.—The drinking of intoxicating liquors by some of the jurors, in a criminal action, after the case was submitted to them and before verdict, while in charge of an officer who had taken them out to dinner, is not such misconduct on their part as to warrant a reversal of the judgment, if they were not affected by the liquor which they drank.
Id.—Setting Aside Information—Preliminary Examination—Substitution of Justice of Different Township.—An information cannot be set aside upon the ground that the defendant was examined and held to answer by a justice of the peace of a different township from that of the justice before whom the complaint was filed, and who issued the warrant for the arrest, where it appears that such other justice was called in pursuant to section 105 of the Code of Civil Procedure to act as a committing magistrate, in place of the justice who issued the warrant and at his request.
Id.—Testimony of Accomplice—Instruction as to Matter of Fact.—It is not allowable in a criminal prosecution, where a witness is claimed to have testified as an accomplice, to instruct the jury as to the matter of fact Whether the witness was an accomplice of the defendant.
Id.—Burglary—Possession of Stolen Property—Sufficiency of Proof.—In a criminal prosecution for burglary, where it was proved that a burglary had been committed, and that property then stolen was subsequently found in the possession of the defendant, a verdict of conviction will not be reversed upon the alleged ground of absence of proof connecting the defendant with the commission of the burglary.
Id.—Refusal to Arrest Judgment—Non-appealable Order.—An order denying a motion in arrest of judgment in a criminal case is not appealable.
The Court. — The defendant was charged by information with the crime of burglary, committed at Iowa Hill, in the [237]county of Placer, on the tenth day of May, 1891. He was arraigned and pleaded not guilty to the charge. At the trial witnesses were called and examined by the people and by defendant, but the latter did not take the stand and testify in his own behalf. At the conclusion of the evidence the district attorney made an opening argument to the jury, speaking about thirty minutes. Defendant’s counsel then declined to make any argument at all. The court thereupon instructed the jury, and they retired to deliberate upon their verdict. Within a reasonable time the jury returned and presented to the court their verdict, finding the defendant guilty of burglary in the second degree. Time was then fixed for pronouncing judgment, and when that time arrived counsel for defendant moved the court in arrest of judgment and for a new trial, but upon what grounds does not appear from the record, except that in support thereof he presented, read, and filed five affidavits to show misconduct on the part of certain jurors. The time for passing sentence ■was then, on motion of the district attorney, postponed to give him time to procure and file counter-affidavits, and within the time allowed counter-affidavits of nine of the jurors were filed. The court subsequently denied both motions, and stated, as one of the reasons for doing so, that at the time the motion for new trial was submitted, the court called upon and requested the attorney for defendant to designate and draw the attention of the court to any errors alleged to have been committed, and to the particulars wherein he claimed that the evidence was insufficient, and that the request was not complied with or attempted to be complied with. The court then entered judgment that the defendant be punished by being imprisoned in the state prison for the term of nine years. From this judgment and the order denying his motion for new trial and his motion in arrest of judgment, the-defeudant appeals.
The principal grounds presented and relied upon for a reversal of the judgment are as follows:—■
1. While the district attorney was making his opening speech to the jury, he remarked: “True, we have not shown that defendant was in the immediate vicinity of Iowa Hill about the time of the burglary, but Mr. Conroy has testified that he believes he saw this defendant in the town of Auburn on the [23830]
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