People v. Police Court of Fresno

BARNARD, P. J. This is an appeal from a judgment ordering the issuance of a peremptory writ of mandate.

In an action in the respondent court, which has the same jurisdiction as a Class A Justice’s court, one J. H. McMillan was charged in separate counts with violating sections 17043 and 17044 of the Business and Professions Code (Unfair Practices Act). The trial lasted four days and the jury brought in a verdict finding the defendant guilty. The judge read the verdict, but before anything else was done defendant’s counsel called the court’s attention to section 1161 of the Penal Code. The judge suggested a polling of the jury, defendant’s counsel expressed doubt as to whether this should be done, the district attorney said nothing, and the jury was not polled. The judge then stated that the evidence was not sufficient to prove the specific intent required by law, or any injury to a competitor, two of the three basic requirements. Giving this as a reason, he expressed the opinion that the jury had mistaken the law. He then stated that in order to return a fair verdict in the case “you should collectively reconsider the evidence with respect to those two factors,” and instructed them “to again deliberate the matter. ’ ’ He then asked whether the jury desired to go to dinner before continuing its deliberations. The district attorney [219]then started to speak saying “I am a little confused-The court then stated that he wanted no further argument at that time, and asked the jury to give an expression as to whether they wanted to go to dinner. A recess was then taken for dinner. When court reconvened the judge stated that the bailiff had informed him that the jury desired further instructions with respect to the law, and asked whether it desired to have all the instructions repeated or to have instructions with respect to any special problem. The foreman asked a question which the court answered, after which several other jurors asked questions and a number of further instructions were given by the court. The jury then retired and later reported that it was unable to agree upon a verdict. The court asked if it was desired to have the jury polled, each side replied in the negative, and the court discharged the jury.

A petition was later filed in the superior court, by the People, praying for a writ of mandate commanding the respondent court to enter on its minutes and records the verdict of guilty which was originally brought in by the jury. The only evidence produced at the hearing was the reporter’s transcript of the proceedings, in the other action, after the arguments of counsel had closed. The court found that the allegations of the petition were true and entered a judgment ordering a peremptory writ to issue requiring the respondent court to enter the verdict of guilty on its minutes. From this judgment, the respondent police court has appealed.