People v. Gilbert

Morrison, C. J.:

The defendant was indicted in the Superior Court of Yolo County for the crime of embezzlement; and being tried upon such indictment, the result was a verdict of guilty. .

The verdict was as follows: “ We, the jury, find the defendant guilty, as indicted, to the sum of |¡90. L. B. Adams, foreman.”

This verdict was written in the jury-room, and was handed to the clerk by the foreman after the jury had returned into the court-room, and were seated in the box. The clerk then read the verdict to the jury from a scrap of paper which was handed to him by the foreman, and they thereupon declared that it was their verdict. The jury was then discharged by the Court from further consideration of the case. The verdict was not recorded by the clerk in the minutes until after the jury was" discharged, and had left the court-room. When the defendant was called for sentence, his counsel moved the Court for a judgment of acquittal and discharge. The Court denied the motion, and sentenced the defendant to imprisonment in the State prison. To this ruling and judgment, the defendant duly excepted, and now prosecutes this appeal.

The motion for a judgment of acquittal was properly denied. (The People v. Baza, 53 Cal. 690; The State of Iowa v. Redman, 17 Iowa, 329.)

The only remaining question in this case is, whether this Court is called upon to reverse the judgment of the Superior Court for the irregularity complained of. It is very obvious, that the proceedings in the case were not in strict conformity to § 1164 of the Penal Code, which provides, that, “ when a verdict is given, 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.”

In this case, the verdict, written by the foreman, was read to the jury, and thereupon the jurors all agreed that it was their verdict. Was the departure from the strict letter of the Code such as to require a reversal of the judgment ? Our first impression was, that the irregularity was fatal to the judgment; but a careful consideration of the question, and of the provisions of the Penal Code, has led us to a diffez’ent conclusion. If the clerk had first pasted the verdict in his rough minutes, and had then read it to the jury, the letter of the law would have been complied with ; and it is difficult to see what additional weight or authority would have been given to the verdict by that proceeding. It is a matter of fact, that the rough minutes of the clerk are often entered upon loose slips of paper, and from them they are transcribed into the minute-book; and when the minutes arc written up, the original minutes are in many instances cast aside, as being no longer useful; and if that had been done in the present case, no one would contend that there had been any irregularity in the proceeding.

There are other provisions in the Code, however, a reference to which will remove all doubt on the point under consideration. Section 1404 of the Penal Code provides, that “ neither 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 § 1258 of the same Code provides, that, “ 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.” By § 1093 of the same Code, which regulates the order of trial in a criminal case, it is provided, that, “ if the indictment be for a felony, the clerk must read it, and state the plea of the defendant to the jury.” On the trial of one Sprague, for the crime of murder, this form of procedure was omitted; and speaking of its effect upon the case, the Supreme Court says: “ 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. (The People v. Sprague, 53 Cal. 494.)

The above principle and reasoniong apply with full force to the case now under consideration ; and to hold that the omission complained of affected the validity of the judgment would be to set aside and totally disregard §§ 1258 and 1404 of the Penal Code.

The verdict, although not very artistically worded, is sufficient in substance. (People v. Leehey, No. 10,384, 4 Pac. C. Law J. 75.)

Judgment and order affirmed.

Thornton, J., Myrick, J., and McKinstry, J., concurred.