People v. Emmons

By an indictment found by the grand jury of Sacramento county defendant was charged with the crime “of asking and receiving a bribe,” committed in January, 1905, while he was a state senator of the thirty-second senatorial district and a member of the Senate committee on commissions and retrenchment. The money was sought and received by appellant, so it is alleged, under a promise and agreement that his official action, vote and opinion as such senator should be influenced thereby in connection with an investigation by said committee of certain building and loan associations. Defendant was convicted and sentenced to the penitentiary for a term of five years. He appeals from the judgment and the order denying his motion for a new trial.

For the reason that the record discloses no exception to the ruling of the court we are precluded from considering the question involved in the motion to set aside the indictment and the challenge to the panel of the grand jury. Any exception taken, in order to be reviewed, must be properly authenticated in the bill of exceptions, and if the defendant does not save an exception to the ruling of the court the objection is deemed to have been waived. (McCartney v. Fitz Henry, 16 Cal. 185 ; Keeran v. Griffith, 34 Cal. 580 ; Lee v. Murphy, 119 Cal. 364 , [ 51 Pac. 549 , 955] ; People v. Trask, 7 Cal. App. 103 , [ 93 Pac. 891 ].) In the last case it is said: “Defendant having reserved no objection to the action of the court above set forth we are not called upon to determine whether the course adopted by the court was erroneous or not.” That an exception is required to the ruling of the court in disallowing a challenge to the panel and in denying the motion to set aside the indictment is provided in sections 1170 and 1172 of the Penal Code. The point was made by the attorney general in his brief and it is passed by without notice in appellant’s closing brief for the reason, we assume, that its conclusiveness is recognized by defendant and his learned counsel. At any rate, we must presume in favor of the action of the court below that no exception was taken, and we are not at liberty to follow the. interesting discussion of the method by which the grand jury was selected, and of the qualification of certain of its members, in which counsel have indulged.

That there may be no misunderstanding of the position of appellant as to certain rulings of the court during the trial, we quote from his brief as follows: “The defense at the trial was based upon the falsity of the testimony that was offered for the prosecution, and the further fact that the testimony so offered was the result of a conspiracy on the part of Grange, Corbin et als., to evade a thorough examination of the Continental Building and Loan Association because of the fact that the affairs of said association had been theretofore conducted in a manner detrimental to the stock

No error was committed by the court in refusing to direct the district attorney to produce a certain writing containing a statement of the witness Bunkers. The statement ivas not signed by Bunkers; it had not been read over to him; he had heard read only a portion of it; he had not sworn to it and did not know in whose possession it Avas. What is said in People v. Glaze, 139 Cal. 157 , [ 72 Pac. 965 ], .is in point here: ‘ ‘ The statement could not have been used in evidence except for the purpose of impeaching the witness by showing thereby, that he had made statements out of court inconsistent with the testimony given by him in the trial. The only statements that can be used for that purpose, if in writing, are statements made by the witness himself, either directly in his handwriting or over his signature, or indirectly by his adoption or admission of the correctness of a written report of his statements made by some other person. He cannot be held responsible for a statement taken down by another purporting to be a report of his oral declarations, unless he has been made acquainted with the contents of such statement, and directly or indirectly admitted that it Avas correct. Unless it is shovm that there is good reason to be

Appellant complains of the action of the court in allowing witness Grange to testify to a declaration made by Jordan to the effect that defendant was trying to get evidence to enable him to have a warrant issued for the arrest of Gavin MeNab and Washington Dodge. But it is apparent that the objection to the question: “-State the conversation that took place at that time between you and him in regards to this matter if anything,” was properly overruled for reasons already stated. The court could not anticipate w'hat the answer would be, and a portion of it was certainly responsive and material. The appellant should have moved to have the objectionable portion stricken out, if he so desired, but having failed to do so it is too late now to complain. (Pe ople v. Lawrence, 143 Cal. 155 , [ 76 Pac. 893 ].)

Certain witnesses were allowed to testify as to what they did after conversations with Jordan, and it is insisted that this was error “for the reason that all of this was done without the knowledge of the defendant, and in such a manner that the defendant could not have known anything about it, and it was not in furtherance of any conspiracy that the defendant was alleged to be engaged in.” This testimony, however, was admissible on the question of whether these witnesses were real or feigned accomplices and also to trace the money that was received as a bribe. (People v. Northey, 77 Cal. 632 , [ 19 Pac. 865 , 20 Pac. 129 ], and People v. Bunkers, 2 Cal. App. 197 , [ 84 Pac. 364 , 370].) It was contended by the prosecution that these witnesses did not suggest, advise or encourage the commission of the crime and had no criminal intent, but were engaged merely in a scheme to detect, expose and punish the senators. On the other hand, defendant insisted that they had a motive in discouraging the investigation of the building and loan associations

Among the points to which most importance seems to be attached by appellant is that growing out of the testimony of one W. J. Palethorpe, a witness for the defense. It is contended that his examination was confined within limits too narrow, it being restricted to the time of the examination by him of the books of the Continental Building and Loan Association during the months of November and December preceding the holding of the alleged investigation by the committee of which the defendant was a member. The particular question to which the objection was sustained and of which ruling appellant complains is as follows: “What, if anything, did the books of the Continental Building and Loan Association show with reference to the dealing of William Corbin with the association and with reference to the condition of his accounts with that association in the year 1902?” The general objection was made and also that it was too remote and not redirect examination. The last ground was undoubtedly well taken, but we think also the court’s action was right for other reasons.

Again, if it was sought, as claimed by appellant, to discredit any witness by showing his interest or bias, there is authority for holding that the proper foundation should have been laid by suitable cross-examination of said witness. The rule is so stated in People v. Delbos, 146 Cal. 734 , [ 81 Pac. 131 ], as follows: “It was proper to impeach the motives of the prosecuting witness by proof that she had instituted the prosecution for the purpose of extorting money from the defendant, but in order to lay the foundation for such impeachment the prosecuting witness should first be directly asked if she had not begun the prosecution for that purpose.” But aside from the foregoing, assuming that it was proper to show Mr. Corbin’s interest in the investigation, the line of inquiry was indulgently permitted by the court to be pursued sufficiently for that purpose. The fact sought to be shown would have been simply cumulative. It is due the witness, however, to say that in cross-examination he declared: “I told Mr. Corbin on several occasions that the Continental was an enormously large corporation and from what I could see was financially sound.’’

The claim is made that the verdict should have been set aside on account of the separation of the jury during the trial. The court had made an order requiring the jury to be kept together, as provided in section 1121 of the Penal Code. The affidavits introduced by appellant upon .this ground are to the effect that one of the jurors was seen talking with some one not a juror in the hallway of the courthouse, and that he was heard to say: “Well, ask him.” And again, a deputy sheriff in company with one of the jurors was -seen in a store on K street. After a time the officer came out alone and got into a buggy. The juror shortly after came out of the store unattended and got into the buggy and they drove away together. Again, one of the jurors was seen standing in a crowd of people at Oak Park for some little time, separated from the other jurors.

The counter-affidavits show that a deputy sheriff took one of the jurors to said store on K street to enable him to make a purchase, that they remained together while in the store,

Appellant cites People v. Maughs, 149 Cal. 253 , [ 86 Pac. 187 ], as authority for his claim that the separation was fatal to the verdict. That case, however, is not in point. The difference between that and this is clearly seen in the following statement by Mr. Justice Henshaw: “After the jury had been impaneled and sworn and had been placed' in charge of the sheriff, and the sheriff had been sworn to take charge of the jury under section 1121 of the Penal Code, the court allowed eight of the jurors to separate and go to their homes, while the remaining four were retained in the sheriff’s custody.” It is properly said that “There is absolutely no warrant in the law for the course adopted, and the order permitting the jury to separate was error—indeed, error of such nature that the brief of the state offers no word in extenuation or justification of it.” But even in that case it is not intimated that the error would have been prejudicial if the evidence had shown that during the separation the jurors had no communication whatever with anyone concerning the case.

But there are decisions of our supreme court directly upholding the ruling of the trial court that the alleged separation did not demand a new trial.

In People v. Symonds, 22 Cal. 348 , it is held that “The mere fact that the jury in a criminal case separate without permission of the court does not require that a new trial should be granted. The presumption that the jury may have been subject to improper influences which attaches to the fact of such separation may be removed by an affirmative showing that no injury to the defendant resulted therefrom.”

In People v. Adams, 143 Cal. 209 , [ 101 Am. St. Rep. 92 ,. 76 Pac. 954 ], the distinction is shown between a separation during the progress of the trial and one after the cause is submitted to the jury. It is there said: “As to the former-there is no law requiring the jury to be kept together, although the court may order them to be so kept; and it is not necessary in the case at bar to consider the significance of" a violation of such an order. But it is provided in the-Penal Code (sec. 1128), that after the jury have finally retired for deliberation they must be kept together; and one of the express grounds for a new trial is ‘when the jury has, separated without leave of the court after retiring to deliberate upon their verdict.’ (Sec. 1181.)”

The distinction is an important one, and it has been overlooked in some of the decisions. Whatever may be the rule-in the former case whenever the jury separates without leave of court after the case is submitted the burden should be cast upon the prosecution to show that the defendant has not been injured thereby. But, as we have seen, the separation of which complaint is made here occurred before the case was submitted, and the showing by the appellant was exceedingly meager and its effect was entirely overcome by the evidence for the people.

Appellant inveighs especially against the conduct of the majority of the jurors in partaking too freely of intoxicating-liquors during the trial of the case. If the affidavits for appellant were not controverted, we should be constrained to hold that some of the jurors drank to excess and more than is consistent with that clarity of judgment and equipoise of' conscience essential to a proper discharge of the important duties of a juror. But the counter showing was amply sufficient to justify the court in finding that not one of the jurors was under the influence of liquor at any time, and no intoxicants at all were consumed after the jury had retired to deliberate upon a verdict. The character of the showing made by the people is illustrated by the following quotation from the affidavit of Mr. Chambers, the deputy sheriff who had charge of the jury: “Dr. G-.

The court committed no error in giving the instruction as to the corroboration of an accomplice. Appellant selects one sentence therefrom and makes it the basis of the criticism that “It is not the law that proving the identity of the defendant, namely, that he is the man charged with the offense, is sufficient, much more than that is needed.” The instruction treats of the two phases of the question separately, to wit, the commission of the offense and the identity of the one committing it, and it is neither “misleading” nor “improper”; and besides, it appears to have been given at the request of appellant and hence he cannot complain.

The court was justified in refusing the following instruction: “If the jury believe from the evidence herein that the witness, Harry Bunkers, was induced or influenced to become a witness and testify in the case by any promise of

Again, the practice by specific instructions of calling the attention of the jury to the testimony of a particular witness should not be encouraged. It is better, as was done here, to instruct the jury as to the principles of law involved and leave their application to the facts—where it belongs under our system—to the jurors themselves.

The court fully and clearly directed the jury as to its duty and power of judging the evidence and determining the credibility of witnesses; for example: ‘‘You will weigh carefully the testimony of each and all of the witnesses in the case, and give to the same just such credit as you conscientiously believe it entitled to; and in considering what weight you will give to the testimony of any and all the witnesses in the case, you will consider the character and appearance of the witnesses upon the stand, the consistency and reasonableness of their statements, their apparent interest and desire to tell the truth, their feelings, motives and conduct so far as made known to you by the evidence during the course of the trial of this case.” After hearing that and the other instructions given, if any juror would not understand that it was his duty to consider any promise of immunity made to a witness as affecting his credibility he would be incapable of enlightenment.

As to the other criticisms' of the action of the court in reference to instructions, we deem it sufficient to say, in the

The only other matter that we deem worthy of notice arises from the ruling of the court upon the following question addressed to one Patrick Kelly in support of the motion for a new trial: “State whether or not you had a conversation with him (Mr. Amariah Johnson, one of the jurors) last February, 1905, in this city concerning the charge against the defendant?” The general objection was made to the question, and the district attorney urged that “if offered for the purpose of showing bias or prejudice on the part of juror Johnson, they are precluded from showing such fact at this time, that the bias or prejudice of any juror who may be sworn to try a criminal case cannot be shown for the first time on motion for a new trial.” The defendant offered to' prove by the witness that he had a conversation with the said Johnson before he was sworn as a juror, in which the latter stated “that he had attended the examination before the Senate committee which investigated the charge, and that all these senators, including the defendant, were guilty and ought to be punished, and that every one of them should be convicted, and that he was certain of their guilt.” The said juror had stated on his voir dire that all he knew about the ease was what he read in the “Sacramento Union”; that he attended the meeting of said Senate committee one night,, but that he was up in the gallery and couldn’t hear anything that was said; that he had never discussed the matter with, anyone except the members of his own family, and that he' had no opinion about the case.

The attack of appellant is really, addressed to the qualification of the juror, although it is claimed that his declarations under oath, in view of his alleged statements to the-witness Kelly amount to such misconduct as to entitle appellant to a new trial. But it is clear that such misconduct, as far as the rights of appellant are concerned, is unimportant except as it relates to the qualification of Johnson as a fair,.

But whatever may be the rule in other jurisdictions, it has been decided in this state that the qualification of a juror is not a ground for -a motion for a new trial. In People v. Azoff, 105 Cal. 635 , [ 39 Pac. 59 ], it is said: “If public policy prohibits the jury from impeaching their verdict by their affidavits, it must follow that the same policy will prevent its being done by statements made by the jurors.” To the same effect are People v. Soap, 127 Cal. 411 , [ 59 Pac. 771 ] ; People v. Dobbins, 138 Cal. 694 , [ 72 Pac. 339 ],

In People v. Fair, 43 Cal. 137 , the question is elaborately discussed, and it is held that “The fact that a juror had formed and expressed an unqualified opinion of the guilt of the accused, is not, under our practice, ground for a new trial, when the objection is taken for the first time after the trial, upon affidavits showing disqualification.-’ ’

In People v. Boren, 139 Cal. 215 , [ 72 Pac. 899 ], it is said: “Another ground upon which it is contended a new trial should have been granted is that an uncle by marriage of the district attorney was a member of the trial jury; that this fact was unknown to the defendant or his counsel until after the trial; that defendant’s peremptory challenges had not been exhausted; and that if these facts had been known, defendant would have challenged him peremptorily. These facts appear by affidavit, but constitute no ground for a new trial. Section 1181 of the Penal Code specifies the only grounds upon which a new trial may be granted, and this objection is not included in the grounds there stated. An objection to a juror must be taken before the juror is sworn to try the cause; but the court may, for cause, permit it to be taken after the juror is sworn and before the jury is completed.”

Appellant, upon suggestion of diminution of the record, was permitted to file in this court his affidavit, which appears to have been filed in the office of the county clerk of Sacramento county October 24, 1905, in which he sets out that he “did not learn of the alleged misconduct of the juror A. Johnson until after the trial ended and the verdict had been rendered in the above-entitled action.” It is obvious that this is an attempt to amend the bill of exceptions, but admitting that we can consider the said affidavit, it is not authenticated in any manner by the trial judge, nor is there anything to indicate that it was used upon the said motion for a new trial.

We have given all the points.made by appellant careful consideration, but we are entirely satisfied that the record discloses no prejudicial error.

The defendant was fairly tried and justly convicted, and the judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the. district court of appeal, was denied by the supreme court on May 11, 1908.