Territory of Arizona v. Harper ( 1881 )

By Court,

French, C. J.:

The transcript in this case fails to comply with the requirements of the rules of this court, and especially with rules 5 and 6. Six errors are assigned. The first two assignments are the exclusion of evidence as to the character of the deceased. Unless it be shown that under the circumstances the defendant might have acted in self defense, or unless the circumstances raise at least a doubt whether he might have so acted or not, the character of the deceased is not in issue. People v. Murray, 10 Cal. 309. The third and fourth assignments are untenable. The jury in this case presented their verdict regularly in all respects, and were required by the court to declare the same, which they did. It was a written verdict signed by the foreman. They were then directed by the court to deliver the same to the clerk for record. The clerk received the verdict and filed it, but without entering it in the minute book of the court read it to the jury and asked them if it was their verdict, to which they replied in the affirmative, being the second declaration by the jury affirming their written verdict. The verdict was then perfect and complete. People v. Gilbert, 57 Cal. 96. The statutory direction as to recording had its origin in the practice of verbal verdicts. For the same reason as stated in People v. Gilbert, there was no error in refusing the motion for arrest of judgment, or in refusing the motion to change or amend the minutes of the court, or in refusing to admit the testimony of the clerk or affidavits of counsel on these points. The rules of the court requiring instructions asked to be presented before the argument, the refusal to give such instructions when not so presented or not presented till after the close of the arguments, can not be assigned as errors. Waldie v. Doll, 29 Cal. 555. In this court this case was submitted without argument, and the record discloses no error whatever; the judgment must be affirmed, and it has been so ordered.

Stilwell and Porter, JJ., concurred.