People v. Bonney

         I. The separation of the three jurors from their fellows was not an error, unless it appears that they were tampered with, or there was an opportunity of tampering with them. (People v. Backus , 5 Cal. 207, and authorities there cited by the Attorney General; People v. Lee , 17 Cal. 79.)

         The record shows affirmatively that the jurors were not tampered with, and that there was no opportunity of its being done.

         II. As to the " views" had by the jury, the record shows that the jurors were kept together--that is, in sight--and all under the eye and the control of the officer having them in charge; consequently there was no separation. There are three answers to the objection urged by the other side.

         1st. It does not appear from the record that the defendant was not present at the view.

         2d. The statute does not require, authorize or contemplate the presence of the prisoner or the District Attorney. (Crim. Prac. Act, sec. 390.) The proper course is to place the jury under the Sheriff, and send with them a person selected to point out the premises, and after their return to examine the party sent as aforesaid, if deemed necessary. Again, section three hundred and sixty-two, in declaring the order in which the trial shall proceed, does not mention a view. When, therefore, by another section, the prisoner is required to be present during the trial, the term is used in its technical sense, as defined by section three hundred and sixty-two, and consequently the view is not a part of the trial, at which the defendant must be present.

         3d. If the prisoner was, within the meaning of the statute, absent duringa part of the trial, it must appear that some injury resulted to him in consequence of his absence to justify a reversal for that reason. (People v. Bealoba , 17 Cal. 460.)

         III. It is objected that a person was appointed by the Court to point out a buggy and the premises viewed by the jury. This course is expressly authorized by statute. (Crim. Prac. Act, sec. 390.)

         IV. The charge of the Court will sustain itself. In declaring the law, it keeps within rules well established by this Court in People v. Bealoba, and other cases; and in stating the evidence, the constitutional right of the Judge is not transcended.

         It is not true, as contended by the other side, that the Judge tells the jury to convict the defendant. It will be found, on the contrary, that every statement made by him is hypothetical in terms, or clearly is in meaning, and could not have been misunderstood by the jury.

         Neither was it error to instruct the jury that they might receive or reject portions of the defendant's confession, according to their belief or disbelief of the same, after a careful consideration of all the facts of the case. (People v. Wyman , 15 Cal. 70.)

         V. The jurycame into Court with an informal verdict, and the Court ordered them to retire and correct it.

         This was not an instruction or charge, which is required to be in writing, but was a mere direction to the jury, which it was not only the right, but the duty of the Judge to give. (People v. Marquis , 15 Cal. 38.)

         VI. It was not error to permit the examination of witnesses whose names were not indorsed on the indictment.

         If defendant was surprised by their examination, he should have moved a continuance upon that ground. (People v. Freeland , 6 Cal. 96.)

         JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.

         OPINION

          BALDWIN, Judge

         The defendant was convicted of the crime of murder in the first degree. His counsel assigned several errors, which we shall consider in their order.

         1. The first is, that three of the trial jurors separated from their fellows after the jury had retired, and before the return of their verdict. This assignment seems to rest on the fact that these jurors retired for a few moments to a privy, and the Under Sheriff who accompanied them testifies, that during their absence from the jury room, they held no correspondence with any one, nor with each other. The case of the People v. Backus (5 Cal. 275) is relied on; but that case--which goes to the verge of the true rule, if not beyond--does not support the assignment; for the Court say, the correct rule is to grant a new trial on account of the separation, if it were such as that the jury might have been improperly influenced. Here the facts show that the jurors were in the custody of the officer, and not only is there no probability, from the circumstances, of any improper interference, but express proof, uncontradicted, that there was none. (See People v. Lee , 17 Cal. 78.)

         2. It is assigned that the jury should not have been permitted to view the scene of the alleged murder, except in the presence of the prisoner, this view being a part of the trial, in the theory of the counsel, and the prisoner required to be present during the entire progress of it; and,

         3. That the jury were permitted to see the buggy, as to which testimony was given. We see nothing in these two points requiring a detailed notice. The Court had the discretion to permit the jury to view these physical objects; and this was neither in contemplation of the act or otherwise any part of the trial. It was rather a suspension of the trial to enable the jury to view the ground, etc., that they might better understand the testimony. We do not see what good the presence of the prisoner would do, as he could neither ask nor answer questions, nor in any way interfere with the acts, observations or conclusions of the jury. If he had desired to see the ground that he might be assisted in his defense by the knowledge thus obtained, possibly the Court would have granted him the privilege; but the fact that the jury went upon the ground without being accompanied by him is no good reason for setting aside the verdict, especially as he neither made objection nor asked permission to accompany them at the time.

         4. It is next urged, that the Court erred in telling the jury orally to return when they brought in a general verdict of guilty--as it is said--and " to find" in what degree " or the degree." It is said that this direction was a charge, and ought to have been in writing. We think not. Their answer was not a finding, but a failure to find. The duty of the jury remained undischarged. They were still under the control of the Court. The Court did not direct them as to the law of the case; it only told them that they must act--that they, in other words, must find a verdict on the issue, which was, whether the defendant was guilty, and if guilty, in what degree. This was no more a charge than if the Court, immediately after the argument, had told them to retire and consider of their verdict.

         5. It was not error for the Court to permit a witness to be sworn for the prosecution, because his name was not marked on the indictment. It often happens that the necessity for introducing particular witnesses arises on the trial; and justice would be greatly impeded if the rule invoked were affirmed, while no corresponding advantages would accrue from it.

         6. The last objection is, that the Judge erred in sundry particulars in assuming the guilt of the prisoner, or assuming for proven certain disputed points of fact. There is no statement of facts; and it would be difficult for us to say that the Court erred in its assumption; for all presumptions are in favor of the correctness of the acts and rulings of the Judge. We only interfere to correct an erroneous instruction on appeal where the facts are not stated, when under no imaginable state of facts could the ruling of the Judge be maintained. But apart from this objection, we see nothing in the charge in the respects criticised which sustains the assignment.

         Judgment affirmed, and the Court will fix a time for the execution of the sentence.