People v. Superior Court

PETERS, J. The People petition for a writ of mandate to compel respondent superior court to vacate an order of mistrial, record a jury verdict, and appoint a time for pronouncement of judgment in People v. Antonia Llabora Thomas.

Mrs. Thomas, the real party in interest referred to hereafter as defendant, was charged with murder of her seven-day-old son.1 The case was submitted to the jury on May 24, 1967, and the following day the jury returned a verdict of guilty of first degree murder. After the clerk read the verdict and asked whether it was the jury’s verdict, the jurors answered in the affirmative. Defense counsel requested that the jury be polled. In answer to the clerk’s questions, the first four jurors individually stated that the verdict was theirs. The following then occurred:

“The Clerk: Joseph Schissler, is this your verdict?

Mr. Schissler: I-- I don’t know how to tell you this.

Should I tell you or--

The Court : Is that your verdict ?

[931]Mr. Schissler : I didn’t vote on it, yonr Honor.

The Court: Will you continue to poll the jury?”

The remaining jurors were polled and each answered that the verdict was his. The court thereupon declared a mistrial. The following colloquy then occurred:

“Mr. Cronin [the prosecutor] : Your Honor, this has been

a long trial. Could this man be questioned-this has been a

long trial. We must see if we’ve got a verdict.

The Court: Mr. Schissler has announced that he did not vote on the verdict. In order to have a verdict it’s required that there be a unanimous verdict of all twelve jurors.

Mr. Cronin : The foreman of the jury indicates he did vote for this verdict.

The Court : Mr. Schissler, did you vote for this verdict ?

Mr. Schissler: I went with the majority, sir.

Mr. Gray [Defense counsel] : Well then, the verdict doesn’t reflect his individual opinion.