People v. Johnston

SCOTT, J., pro tem. Defendants were convicted of robbery in the first degree and two counts of kidnaping for the purpose of robbery, and have appealed.

When court convened on the day of trial certain events transpired of which appellants 'Complain: The clerk called the roll of prospective jurors; they were sworn collectively to answer questions touching their qualifications to act as trial jurors; the court ordered: “Call 12 names, Mister Clerk”; defense counsel interposed: “At this time I object to the drawing of the names until the full panel is here, or a reason assigned why the full panel is not here;” The Court: “Call the names, Mr. Clerk”; the clerk called the names of three jurors; The Court: “The defendants are in the prisoners’ room, Mr. Mackay;” defendants were thereupon brought into court, and the following transpired: The Court: Do you want to begin all over again and call these names? Mr. Mackay: I think we better. The Court: Better what? Mr. Mackay: Better start over again. The Court: Call the names again, Mr. Clerk. Mr. Mackay: He don’t need to go back.” Twelve jurors were called into the box and examined by court and counsel.

Appellants contend that their absence from the courtroom until called in as above indicated vitiated the entire [732]proceedings and was in violation of article I, section 13 of the Constitution of California, and of the fourteenth amendment of the Constitution of the United States. In the ease of Hopt v. Utah, 110 U. S. 574 [4 Sup. Ct. 202, 28 L. Ed. 262], cited by appellants, the court defined the requirement that a defendant “be personally present at the trial” as demanding his presence “at every stage of the trial when his substantial rights may be affected by the proceedings against him”. In that case the absence of defendant while a challenge to a juror was being tried was held to be error which vitiated the verdict and judgment. Here the acts of the clerk in swearing the jurors to answer questions touching their qualifications and calling the names of three jurors were ministerial acts in no way affecting the substantial rights of defendants. The opportunity was expressly afforded them by the court, while they were personally present to have the clerk repeat these formal acts, and defense counsel then declared, “he don’t need to go back”. The inchoate objection which counsel started to interpose relating to the drawing of names until a full panel was present or their absence explained could not be considered as an objection for any purpose, and was properly disregarded by the court. No objection of that import was made when defendants were in court. The attention of the trial judge was not directed to any invasion of defendants’ rights which counsel was thus attempting to safeguard. On appeal it is not urged that defendants had exhausted all of their peremptory challenges or that they interposed a challenge for cause to any juror thus called or selected and that such challenge had been disallowed.