People v. Defer

GOODELL, J. The appellants were convicted of murder of the first degree and sentenced on the jury’s recommendation to life imprisonment. No appeal was taken from the judgments of conviction. A motion was made in each ease to correct the record “to make the clerk’s minutes . . . speak the truth,” and from orders denying such motions these appeals were taken. Appellants sought such correction so that the record would affirmatively show that the verdicts [733]had not been recorded before the jury was discharged. The case will be treated as if the record in the trial court had been so corrected, for the record on appeal shows that the verdicts were not so recorded.

Section 1164, Penal Code, provides that “When the verdict given is such as the court may receive, the clerk must immediately record it in full upon the minutes, read it to the jury, and inquire of them whether it is their verdict. If any juror disagree, the fact must be entered upon the minutes and the jury again sent out; but if no disagreement is expressed, the verdict is complete, and the jury must be discharged from the case. ’ ’

On submission to the jury, forms of verdict were given them in the usual way. When they returned into court the foreman handed the signed verdicts to the clerk, who handed them to the judge. The judge returned them to the clerk with the direction to read them to the jury and have the jury “declare them to be their verdicts” (Pen. Code, § 1149) which was done. The clerk put the question first to the foreman and then to the jury as a whole and received affirmative answers. To the judge’s question whether the defense wished the jury polled (Pen. Code, § 1163), counsel answered in the negative.

The judge then directed the clerk to record the verdicts. What the clerk did in response to this order was to put the county clerk’s stamp on each verdict, showing its filing on December 13,1946. Immediately after doing so, he again read each verdict to the jury and inquired whether it was their “true and lawful verdict as announced and recorded,” and affirmative answers were again given, first by the foreman and then by all the jurors.

The verdicts were not written into either the rough courtroom minutes or the official minute book until after the jury was discharged. The appellants contend that because of this failure, and the failure to read them to the jury after recordation, they were not valid verdicts and the court was without jurisdiction to pronounce judgment.