People v. Revenko

Appellant was charged with the crime of rape alleged to have been committed upon a girl twelve years of age, and upon trial was found guilty. Pursuant to the authority granted under section 264 of the Penal Code the jury recommended that he be punished by imprisonment in the state prison, and he was sentenced accordingly. The appeal is taken from the judgment of conviction and the order denying his motion for a new trial.

No briefs have been filed by either party to the appeal and only one point was urged by appellant as ground for re

Said section 1128 of the Penal Code provides in part that if the jury does not agree upon a verdict before retiring from the courtroom to deliberate “an officer must be sworn to keep them together in some private and convenient place and not to permit anyone to speak to or communicate with them, nor to do so himself, unless by order of the court, or to ask them whether they have agreed upon a verdict . . . ”; and appellant concedes that if, the bailiff, in thus communicating with the jury, acted under instructions from the court there was no irregularity in the proceeding. But basing his contention upon the assumption that the action of the bailiff was not authorized by the court, he argues that the proceeding constituted a violation of the provisions of said code section and therefore entitled him to a new trial, citing People v. Brannigan, 21 Cal. 337 .

We find no merit in the point for the following reasons: It is a well-settled rule on appeal in criminal cases that as to matters not required by law to be entered upon the minutes, it will be presumed in the absence of anything in the record to the contrary that the law has been complied with. (People v. Russell, 156 Cal. 450 [ 105 Pac. 416 ]; 8 Cal. Jur. 570.) In other words, error will not be presumed, it being incumbent upon the appellant to produce a record affirmatively showing the same (8 Cal. Jur. 569). There is no legal requirement that the directions which the court

Moreover, before a judgment of conviction may be reversed for an irregularity, it must affirmatively appear that the substantial rights of the defendant have been prejudicially affected thereby (Pen. Code, sec. 1404; People v. Watts, 198 Cal. 776 [ 247 Pac. 884 ] ; 8 Cal. Jur. 599); and the burden of showing such prejudicial tendency is also upon the defendant. In the present case appellant docs not claim nor is there anything in the record before us from which the fair inference could be drawn that the communication complained of influenced the jury in the slightest degree in its deliberations or that by reason of the communication its verdict did not truly represent its unanimous conclusion, fairly and honestly arrived at. It would seem, therefore, that whatever irregularity there may have been in the proceeding, it did not operate to appellant’s injury.

The case of People v. Brannigan, supra, cited and relied upon by appellant, is essentially different in its facts from the present one, the reversal there being placed upon the ground that the officer who had been sworn to keep the jury together, in violation of his oath, allowed the members thereof to separate; and, furthermore, that case was decided in the year 1863, at which time it was the law of this state that substantial error being shown was presumed to be injurious unless the contrary was made to appear, and no such contrary showing was made; whereas in the present state of the law, before a reversal may be ordered, substantial injury as well as error must be made affirmatively to appear (People v. Merritt, 18 Cal. App. 58 [ 122 Pac. 839 , 844]).

The judgment and order appealed from are therefore affirmed.

Tyler, P. 'J., and Campbell, J., pro tem., concurred.