People v. Selby

Defendant was charged, by an indictment in seven counts, with seven separate offenses, one being alleged in each count. In four of the counts he was charged with robbery. In the remaining three he was charged with assaults with intent to murder. He was acquitted under each of the counts charging robbery.. He was found guilty as charged under two of the three remaining counts and guilty of an assault with a deadly weapon under the third. He appeals from the judgments and from an order denying his motion for a new trial.

Appellant was concerned in certain transactions which occurred not far from midnight, between August 12 and 13, 1924. Out of these transactions a charge of murder was made against him. The events out of which grew the seven charges above mentioned took place early on the morning of the 13th. They commenced with the arrival of appellant at a store in which the woman with whose murder he was charged, with her husband, had an interest. There is much evidence in the record which tends to prove that appellant went to the store to “get” the husband, against whom he

Immediately after appellant was locked out of the store he went to another place of business near at hand, which was kept by a man and his wife. Appellant knew the wife, but not the husband. As he entered the place he asked that the husband be pointed out to him and upon the request being complied with he fired a shot at that individual. He then turned and fired at the wife, the shot striking her in the hip. He fired another shot at her which did not take effect, and left the place. Out of these events arose two of the charges of assault with intent to murder.

[1] Appellant contends that the verdicts of the jury acquitting him under some of the charges contained in the indictment and convicting him under the others are incon

Unfortunately for appellant’s contention the record does not bear out the assertion that insanity was the sole defense presented at the trial. Appellant requested the court to instruct the jury as follows: “To establish the offense of larceny from the person which under the law is grand larceny, and which is an offense included in the offense of robbery as charged in the first four counts of the indictment, it is necessary for the prosecution to prove, beyond a reasonable doubt, not only that the defendant at the time of the securing of the property was actuated by a felonious intent to steal and convert said property to his own use, but they must also prove to your satisfaction and beyond a reasonable doubt that the defendant, at the time of stealing said property, if you find that he did steal it, intended to deprive the owner thereof of the same permanently, and not merely temporarily. The test of law to be applied to the facts and circumstances for the purpose of determining the ultimate facts as to a man’s intent in this respect is—did he intend to permanently deprive the owner of his property? If he did not intend so to do, there is not that felonious intent which is a necessary part of the crime of grand larceny. The intent must in all cases be an intent to deprive permanently the owner of his propérty.” This proffered instruction was not given as requested, but was read to the jury in the following modified form: “To establish the offense of larceny from the person, which under the law is grand larceny, and which is an offense included in the offense of robbery, it is necessary for the prosecution to prove, beyond a reasonable doubt, that the defendant at the time of the securing of the property was actuated by a felonious intent to steal said property including the intent to deprive the owner thereof of the same permanently, and not merely temporarily.”

It is plain from the instruction requested by appellant that he saw in the evidence a possible failure upon the part of

[2] The deliberations of the jury over their verdicts were extended over a long period of time. After nearly seventy-one hours had elapsed without a conclusion of its labors being reached the jury returned to the courtroom. What then transpired is shown by the minutes of the court: “Defendant, counsel and jury present at 2:10 P. M., jurors ask for further information. Additional instruction is given and indictment is read by the clerk.” The “additional” charge which the trial judge then read to the jury was in the following language: “It sometimes happens that when jurors enter the jury-room they make emphatic expressions of the opinions they have in the case and of their firm determination to adhere to them. Such emphatic declarations of opinions are rarely productive of good. By their emphatic expression of opinion, a sense of pride is enlisted and a juror subsequently, though advised that the position he has announced is not tenable, hesitates from receding from that position, for the reason that he has already expressed his determination to adhere to it. I would advise you, ladies and gentlemen, to hold your minds in a state of abeyance for a while, so you may fully and freely interchange views with each other and each individual juror hold his mind so open that he may receive the suggestions and remarks of his fellow jurors and that his remarks may. be entertained and received in the same spirit. I think that by observing this rule, interchanging fully between yourselves your views upon the evidence, that there is more likelihood

It is contended that when this supplemental instruction was given “the jury was misinstructed as a matter of law and coerced into bringing in a compromise verdict.” In support of this claim of error appellant calls attention to the period of seventy-one hours which had passed when the jury returned to the court, and he also points to the further fact that the trial body returned with its verdicts two and one-half hours after the additional charge had been given. These circumstances are not evidence that the jury was coerced into a conclusion of its labors. Naturally, there is nothing in the record to show what stage in its performance of duty had been attained when it came in for further instructions. As against the circumstances cited by appellant we may justly indulge any one of several assumptions. These are that when the jury came into court for additional instruction: 1. It had come to a conclusion under all of the charges except one and that it had proceeded far in its deliberations as to that one. 2. It had come to a conclusion as to all of the charges under which it later declared that appellant was innocent and had proceeded far in its deliberations as to the remaining charges. ' 3. It had come to a conclusion as to all of the charges .under which it later declared that appellant was guilty and had proceeded far in its deliberations as to the remaining charges. As it is incumbent upon an appellant in every appealed cause to show error in order to bring about a reversal, we here may properly make any of these assumptions for the reason that appellant shows us nothing to contradict any of them. The circumstances relied upon by appellant do not therefore

Several cases are cited in support of appellant’s contention that the supplemental instruction was an incorrect statement of the law governing the conduct of jurors during their deliberations in' the jury-room. The first of these is People v. Miles, 143 Cal. 636 [ 77 Pac. 666 ], but there the court upheld the judgment which was sought to be reversed because of the giving of the instruction which was assailed. The portion of the report upon which appellant relies is found in a concurring opinion containing a cautionary statement as to the giving of like instructions to that in question in the future. In People v. Conboy, 15 Cal. App. 97 [ 113 Pac. 703 ], after quoting the instruction to which objection was made, the court said: “These remarks amounted to a plain intimation that the court thought the evidence in the case warranted a verdict of guilty, and that the jury should so find. ’ ’ We can see no such objection to the instruction here in question. People v. Carder, 31 Cal. App. 355 [ 160 Pac. 686 ], in the reasons which the court gave for condemning the questioned instruction, was much like People v. Conboy. The court said: “We think it quite apparent that from the statements of the learned trial judge the jury must have concluded that he was convinced of the defendant’s guilt and that as honest men it was their duty to so find.” In Peterson v. United States, 213 Fed. 920 [ 130 C. C. A. 398 ], the questioned instruction was objectionable principally because the trial judge practically told a minority of the members of the jury that they should yield their views of the cause to that of the majority. We can perceive nothing in any of these decisions which aids appellant here.

[3] Upon principle we think there is no valid objection which can be made to the instruction which now lies before us. The trial judge did nothing more than tell each member of the jury that he should not finally make up his mind

Judgments and order affirmed.

Finlayson, P. J., and Craig, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 29, 1926.