People v. Azoff

Temple, J. The defendant was convicted of murder in the first degree and sentenced to suffer death. «

The appeal is from the judgment and from an order denying a new trial, but no part of the evidence is brought up, neither is there complaint of any ruling at the trial, or of an instruction given or refused.

The motion for a new trial was upon the ground of misconduct on the part of the jury in that they received [633]evidence out of court. Upon the hearing of the motion the court refused to consider the affidavit of a juror which tended to show that the jury had read a newspaper report of the trial, or to permit the jurors themselves to testify orally to the same effect, but did permit the district attorney to read an affidavit of a juror, and other jurors to testify that nothing that they had read had influenced their verdict. The correctness of these rulings is questioned by this appeal.

The question as to whether the affidavit of a juror will be received to impeach the verdict was very early considered in this state, and has been frequently passed upon and always decided in the same way. The effect of the earlier cases cannot be better expressed than in the language of Chief Justice Sanderson in Boyce v. California Stage Co., 25 Cal. 460. He says: “ In respect to these points this case was decided upon the authority of Turner v. Tuolumne Water and Mining Co., 25 Cal. 397. We there hold that although there was some conflict of authority .... the affidavits of jurors could not be received for the purpose of impeaching their verdict. By so doing we did not establish the rule for the first time in this state; on the contrary, we merely affirmed a rule which was established as early .as the first volume of California Reports, and has been strictly adhered to from that time to the present. In the case of People v. Baker, 1 Cal. 403, Mr. Justice Bennett said: “ We consider it a settled rule, founded upon considerations of necessary policy, that the testimony, of a juryman cannot be received to defeat his own verdict.’ In Amsby v. Dickhouse, 4 Cal. 103, Mr. Chief Justice Murray said: ‘It is well settled that a juror cannot be allowed to impeach his own verdict. The reason of this wholesome rule of law is too obvious to require any explanation.’ The same rule was declared in Castro v. Gill, 5 Cal. 42, by Mr. Justice Heydenfeldt. In Wilson v. Berryman, 5 Cal. 45, 63 Am. Dec. 78, the rule was again reiterated by Mr. Chief Justice Murray. In People v. Wyman, 15 Cal. 75, the verdict was sought to be impeached upon