People v. Kramer

Van Fleet, J. Appeal by defendant from a judgment convicting him of forgery, from an order refusing to arrest the judgment, and from an order denying a new trial.

1. The first objection urged is misconduct of the jury; but the record does not clearly disclose that any such in fact occurred. It is stated in an affidavit by defendant’s counsel, filed on the motion for a new trial, that during the taking of evidence, and while the jury were examining certain exhibits submitted for their inspection, affiants “ saw a number of the jurors commenting upon, and arguing about,” the exhibits, and pointing out to each other similarities in the handwriting,” etc.; but these statements are positively denied in an affidavit by all the jurors, who state that they were not arguing nor discussing the exhibits, nor the similarity of the writing therein; and the statement of the facts of the incident by the judge is, in substance, that he saw the whole transaction; that he observed the jurors conversing, and at once stopped them and admonished them against discussing the evidence until they retired to the juryroom; but that he could not tell what their conversation was about, and he saw nothing which induced him to think that anything prejudicial to defendant ^had occurred. The exact character and import of the [649]acts complained of are thus left in doubt. No one pretends to state in express terms anything said by the jurors, or, in fact, that any part of their conversation was heard. Defendant’s counsel do not state in their affidavit that they heard any of the conversation, but the statement is that they “saw a number of the jurors” pointing out features of the writings and conversing about them; which leaves it to be inferred that the statement in the affidavit that the jurors were arguing about the evidence was a matter of inference and conclusion from their manner, rather than from anything that was overheard.

In the face of the positive denial by the jurors that their conduct partook of the objectionable character imputed to it, and the implied finding by the judge in support of such denial, we cannot say that the acts complained of involved any actual, much less prejudicial, misconduct. For aught that really appears, the comments of the jury, if referring to the writings at all, may have been wholly trivial and innocent, and in no way relating to their character as evidence. It is, of course, improper for jurors to discuss the case, even among themselves, during its progress and before its submission; but the mere fact of conversing in the jury box is not in itself such an impropriety as will necessarily imply misconduct. The law does not demand that the jury sit with the muteness of the Sphynx, and when jurors are observed to be talking among themselves it will not be presumed that the act involves impropriety, but in order to predicate misconduct of the fact it must be made to appear that the conversation had improper reference to the evidence, or the merits of the case. Even then, unless it be shown to have been of a character calculated to prejudice the defendant, it is not 'sufficient to work a reversal. (People v. West, 73 Cal. 345.)