People v. O'Brien

Sharpstein, J.

One point presented by the brief of appellant’s counsel is, “that the defendant was tried by at least one, if not two, jurors who were never summoned as jurors in the case.”

The two jurors who are alleged to have sat upon the jury without being summoned were G. H. Ganivan and Theo. Zina. Among the names of those duly summoned, the two which most nearly resemble the two above mentioned were G. H. Garwin and Theo. Zen a. How a person whose name was not upon the list of those summoned by the sheriff could be called, accepted, sworn, and permitted to sit as a juror in the trial of a case is not explained. Nor is it shown that the person who sat as a juror was not the person summoned, or that the apparent difference in the names was 'not caused by a clerical or typographical error.

We think the return of the sheriff upon the venire constitutes no part of the record, and if not, it is not properly before us. The judgment roll, which will constitute a record of the action, consists of,—

“1. The indictment or information, and a copy of the minutes of the plea or demurrer;

“2. A copy of the minutes of the trial;

“ 3. The charges given or refused, and the indorsements thereon; and

“4. A copy of the judgment.” (Pen. Code, sec. 1207.)

No one wbll contend, we think, that the return of the sheriff upon a venire could be included in either of these enumerations, unless it be within the second, as a part of “ the minutes of the trial.” And as the minutes of the trial are a memorandum of what takes place in court, they would not properly include the acts of the sheriff in the service of process. What he did would appear in his return upon the process, which would constitute no part of the minutes of the court. There is no definition of the minutes of a court that would include a sheriff’s return upon the process placed in his hands for service. But if it did constitute a part of the record, we are not prepared to hold that it would constitute a sufficient ground for reversing the judgment. It is not a ground for granting a new trial or arresting a judgment. (People v. Fair, 43 Cal. 337.) Here a mere dissimilarity of names is alone relied on. In no other way is it made to appear that all the jurors who sat at the trial were not actually summoned. The point raised here may rest wholly upon a clerical or typographical error, which could not have affected or prejudiced in any manner the rights of appellant. Upon such a showing wé could not, according to established principles, reverse the judgment. "

Another point presented by appellant’s brief is, that “ it appears by the record that at the time the judgment was pronounced the defendant was not informed by the court of the nature of the charge against him, or of his plea,’ or of the verdict of the jury.”

The recitals in the judgment show that the defendant was informed of all these things, and it nowhere appears-in the record that he was not. This point appears to be based upon a misconception of the record.

The code provides that “before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror he must do so when the juror appears, and before he is sworn.” (Pen. Code, sec. 3066.)

In the bill of exceptions we find the following: “ The court, without instructing the defendant as to his right to challenge the jurors, proceeded to and did impanel a jury, said defendant O’Brien not offering to challenge, and not challenging, any of said jurors.” It appears by the minutes of the court, which constitute a part of the record, that twelve persons, whose names are given, were drawn, sworn, and examined, and that six of them, whose names are given, were “ peremptorily challenged by defendant,” and three of them, whose names are given, by the people. This seems to conflict with the statement in the bill of exceptions, that the defendant did not challenge any of said jurors. We shall accept the statement in the minutes as true, and dispose of the point as a similar one was disposed of in People v. Mortier, 58 Cal. 262, in which the court said: —

“The next point in the case is, that the failure of the court to instruct the prisoner upon his rights as to challenging jurors was error. It is true that section 1066 of the Penal Code does provide that ‘before a juror is called, the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual juror he must do so when the juror appears and before he is sworn.’ The object of this provision of the law is to protect the rights of the defendant, in the matter of challenging jurors. He should be informed of the fact that if he desires to challenge any particular juror, he must exercise that right before the juror is sworn; but it appears from the record in this case that the defendant’s rights in this respect were fully understood by him and his counsel, and the privilege of challenging jurors was exercised, to a large extent, in the case. It is true that the court omitted a duty imposed by law, but it clearly appears that the defendant was not in any manner prejudiced by the error complained of; and such being the case, the omission of the court in the matter referred to constitutes no sufficient ground for reversing the judgment. ‘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.’ ” (Pen. Code, sec. 1258.)

One of the specified grounds of the motion for a new trial is the following: “That defendant was not present at every stage of the proceedings in said action.”

A defendant against whom a verdict has been rendered is entitled to a new trial “ when the trial has been had in his absence, if the indictment is for felony.” (Pen. Code, sec. 1181.)

The defendant does not state in his affidavit that Ms trial was had in his absence, but states that he was not present at the trial of his co-defendant, Sullivan, and that his, O’Brien’s, trial was continued when he was not present in court. The affidavit fails tó show that the trial (his own trial) was had in his absence, and therefore fails to show any ground for a new trial, as the code clearly excludes all other grounds than those enumerated in said section. (People v. Fair, 43 Cal. 137.)

The court, in its charge, defined robbery as it is defined in the Penal Code, and then explained the fear, by means of which, if property is taken through its influence, it will constitute the taking robbery. The contention of appellant’s counsel is, that there is no evidence of the existence of any such fear at the time of the alleged taking of the property in this case, and therefore that the verdict is contrary to the charge of the court, and against law.

We think there is some evidence tending to show that the taking of the property in this case was accomplished by means of both force and fear. As we view it, there is nothing in the definition of robbery as given by the court, in its charge, that was calculated to confuse the jury, and we think it is easy to determine, from the charge, the correct definition of the crime with which the defendant was charged. There is no misdirection in the charge, and we think the court charged the jury upon all matters of law necessary for their information;

The court, in its charge, instructed the jury that their verdict would be “guilty or not guilty,” Appellant’s counsel insists that it was error to so instruct the jury, because, he says, “ the crimes of grand and petit larceny are both included in the offense charged against the defendant, and it was the province of the jury to determine from the evidence whether the elements which would constitute it the crime of robbery existed or not.” The evidence all tended to prove that the defendant, if guilty of any crime, was guilty of robbery. (People v. Madden, 76 Cal. 521.)

We are satisfied that the evidence is sufficient to justify the verdict, and that the court below did not err in denying the motion for a new trial on the ground that it was not.

Judgment and order affirmed.

De Haven, J., and McFarland, J., concurred.

Hearing in Bank denied.