People v. Brendle

BARNARD, P. J. The appellant was convicted by the verdict of a jury of a violation of section 288a of the.Penal Codé and has appealed from the judgment.

The first point raised is that the court erred in restricting the appellant’s voir dire examination of prospective jurors. During this examination, after stating that [162]there had been a previous trial in which the jury failed to agree, the appellant’s counsel twice asked prospective jurors if it would have any effect upon their deliberations in this case if they should learn or hear that there had been a previous trial and that the jury had failed to agree. An objection to each of these questions was sustained, the court stating in the second instance that the general subject of inquiry was proper but that the form of the question was not correct. Thereupon, the court asked the jurors whether or not they had discussed this matter with any former jurors. He further stated: “It has been intimated here this morning that this matter has been tried” and then asked the question “Now does that fact create any impression in your mind as to the guilt or innocence of this defendant?” Subsequently, counsel for appellant stated that he wished to ask each of the jurors what effect, if any, knowledge that they might acquire during the course of this trial as to the standing of the other jury would have upon them. The court replied: “They may answer that,” but suggested that all of the jurors collectively be asked that question. Counsel for appellant replied that he would ask the particular juror then being examined and thereafter refer back to what he had asked this juror. The court expressed approval of this plan and counsel for appellant asked the question: “Mrs. Savage, if you should learn the numerical standing of the jury upon the last trial of this case would that have any effect upon your verdict?” The answer was in the negative and counsel for appellant proceeded: “Q. The fact that that jury may have stood ten to two—”. An objection then made was sustained and after a short argument the court said: “I think the matter has been sufficiently gone into and I am going to rule that we do not go into it any further. ’ ’

The appellant contends that the court committed prejudicial error in refusing to allow his counsel “to interrogate the prospective jurors as to the effect of knowledge of the numerical standing of the jury in the former trial ’ ’, citing People v. Carmichael, 198 Cal. 534 [246 Pac. 62]. It does not appear from the record that the jurors on the former trial had divided in the proportion of ten to two. Be that as it may, the uncompleted question to which an objection was sustained amounts merely to a repetition of the preceding question which was permitted. The court had asked whether