People v. Sprague , 53 Cal. 491 ( 1879 )

By the Court, McKinstry, J.:

The Court below was justified in denying defendant’s motion for a continuance.

The order excluding such of the jurors as were not empanneled to try the case was not a deprivation of the right of public trial.

The wife and daughters of defendant were witnesses, and were properly included within the order which excluded from the Court-room all witnesses but the one under examination.

The Court properly held that the affidavit of a juror could not be received to impeach his verdict, and the alleged communication of the Deputy Sheriff (if it could be considered as proved) was utterly unimportant, and could not have influenced the verdict.

Defendant requested the Court to charge the jury: “ A witness false in one part of his testimony is to be distrusted in others.”

The Court gave the instruction, after inserting the word “ willfully ” immediately before the word “false,” and. refused to give the charge as asked, to which the defendant excepted.

The maxim, ‘falsus in uno, falsus in omnibus,” is not to be construed as authorizing a Court to charge that if a witness perjures himself in respect to one or more particulars, the jury must reject all his testimony. (People v. Strong, 30 Cal. 156.) The rule is that the jury may reject the whole of the testimony of a witness who has willfully sworn falsely as to a material point; that is to say, the jury, being convinced that a witness has stated what was untrue, not as the result of mistake or inadvertence, but willfully and with the design to deceive, must treat all his testimonj’' with distrust and suspicion, and reject all unless they shall be convinced, notwithstanding the base character of the witness, that he has in other particulars sworn to the truth. The third subdivision of sec. 2061 of the Code of Civil Procedure is but declaratory of the rule above considered, and by requiring a jury to distrust, necessarily authorizes them to reject all the testimony of such a witness, in a proper case. The word “ false ” is not the equivalent of “ mistake,” as contended for by defendant’s counsel; the word “ willfully ” did not change the effect of the instruction as offered.

After the jury was empanneled and sworn, the Clerk did not (as directed by sec. 1093 of the Penal Code) read the indictment and state defendant’s plea. It appears from the bill of exceptions, however, that during the empanneling of the jury the substance of the indictment. and plea were many times repeated ; that in opening the case to the jury the District Attorney stated the substance of the indictment and also defendant’s plea thereto; that in the charge of the Court the substance of the indictment and plea were again mentioned; and that the defendant made no objection to proceeding with the trial by reason of the failure of the Clerk to read the indictment or to state the plea, nor in any way referred to the omission until after the verdict had been received and entered on the minutes, and the jury polled at defendant’s request. Sec. 1404 of the Penal Code provides :

“ Heither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right”; and sec. 1258 of the same Code is as follows: “After hearing the appeal, the Court must give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

There can be no doubt that the jury were fully informed from the commencement of the trial of the precise charges against the defendant, and of the issue raised by his plea of “ not guilty.” The departure from the form or mode of presenting the issue prescribed by the statute did not prejudice or tend to prejudice the defendant in respect to a substantial right, and it is therefore the duty of this Court to give judgment without reference to an irregularity—the result of such departure.

Judgment and order affirmed.