People v. Werwee

Defendant Werwee was convicted in a jury trial of forcible rape and attempted violation of section 288a, Penal Code. His motion for a new trial was denied. Proceedings for imposition of sentence were suspended and defendant was placed on probation. He appeals from the order denying his motion for a new trial.

The sole ground of appeal is that after the cause was submitted and while it was under consideration by the jury the court, after admonishing the jurors, and with the expressed consent of counsel in open court, ordered their release to go home for the night and to return to court the following morning for further deliberation. The jurors went to their homes, convened on the following day and returned verdicts of guilty.

The point was raised on motion for new trial, whereupon 11 of the jurors were sworn and testified that during the separation, while they contacted and conversed with many people, they did not converse with anyone and were not communicated with concerning the case. It was stipulated that the 12th juror, if called, would testify to the same effect.

Defendant’s contention is that the power of the court to permit separation of the jurors is limited by sections 1121 and 1128 of the Penal Code; that under section 1121 separation may be permitted only “. . . before the submission of the cause to the Jury”; that by express mandate of section 1128 of the Penal Code, the jurors, after submission of the cause, must be kept together in charge of an officer, who must not permit any person to speak to or communicate with them, with the exception that when the jury is composed of both men and women and it becomes necessary to retire for the night, the women must be kept separate and apart from the men, and that the separation of the jurors overnight was such an irregularity as to have required the grant

There is a familiar rule, relied upon by the attorney general, that the presumption of prejudice, which all courts agree arises when there has been a separation, may be overcome by evidence that the jurors did not discuss the merits of the case and were not subjected to any possible influence during the separation. The problems involved in the separation of jurors have been discussed in many eases. (People v. Backus, 5 Cal. 275 ; People v. Lee, 17 Cal. 76 ; People v. Bonney, 19 Cal. 426 ; People v. Brannigan, 21 Cal. 337 ; People v. Symonds, 22 Cal. 348 ; People v. Moore, 41 Cal. 238 ; People v. Thornton, 74 Cal. 482 [ 16 P. 244 ]; People v. Wheatley, 88 Cal. 114 [ 26 P. 95 ]; People v. Bemmerly, 98 Cal. 299 [ 33 P. 263 ]; People v. Dinsmore, 102 Cal. 381 [ 36 P. 661 ]; People v. Hawley, 111 Cal. 78 [ 43 P. 404 ]; People v. Adams, 143 Cal. 208 [ 76 P. 954 , 101 Am.St.Rep. 92 , 66 L.R.A. 247 ]; People v. Maughs, 149 Cal. 253 [ 86 P. 187 ]; People v. Cord, 157 Cal. 562 [ 108 P. 511 ]; People v. Carson, 49 Cal.App. 12 [ 192 P. 318 ]; People v. Knight, 63 Cal.App. 63 [ 218 P. 79 ]; People v. Cross, 64 Cal.App. 443 [ 221 P. 684 ]; People v. Page, 86 Cal.App. 148 [ 260 P. 591 ]; People v. Murphy, 92 Cal.App. 729 [ 268 P. 927 ]; People v. Truesdell, 124 Cal.App. 360 [ 12 P.2d 476 ]; People v. Martin, 87 Cal.App.2d 581 [ 197 P.2d 379 ]; People v. Lloyd, 98 Cal.App.2d 305 [ 220 P.2d 10 ].)

In the leading case of People v. Brannigan, 21 Cal. 337 , it was conceded there had been a separation of the jury after submission and the rule was laid down that the burden was upon the People to prove defendant was not prejudiced rather than upon him to show prejudice. It was said that the separation raised a presumption of prejudice which might be

The question whether the accused has suffered prejudice is a judicial one and has always been so regarded. If it is a factual question it must be judicially determined under recognized procedure. There can be no judicial determination of a fact in question when there is no opportunity to present the evidence on both sides of the issue. This does not mean that the opposing parties must have equal opportunities, but it does mean that there must at least be a reasonable opportunity for verification or refutation on the part of each party of the evidence produced against him; otherwise the determination would be of no more value than one made ex parte. Our courts have rejected the idea that the burden is ever upon the accused to prove actual prejudice from separation of the jury. Manifestly, he could not sustain that burden when evidence of the facts was unavailable to him. And it has been ■ emphasized, when only the jurors know what their conduct has been, that their unsupported affidavits are the weakest sort of evidence. When there has been a prolonged separation, during which jurors moved about at will, affidavits or testimony of the jurors that they had not discussed the case or been guilty of other misconduct would be a mere formality, and not capable of refutation by the accused. To give such evidence effect as proof of absence of prejudice, against a helpless defendant, would be as illogical as to give the same effect to the presumption that the jurors had faithfully performed their lawful duties. In People v. Backus, 5 Cal. 275 , the court said (p. 275) : “During the trial of this case in the Court below, after the Court had adjourned, and directed the jury to be kept together under the control of an officer, one of the jurymen absented himself from the jury room without the custody of the Sheriff for the period of two hours.

“The statute of this State provides that the jury may separate by leave of the Court. In the present case the juror left his fellows without such permission. How far this would vitiate the verdict is a disputed point among the Courts of the various States of the Union; it is universally conceded that it is an irregularity. In New Hampshire, Connecticut,

“The latter rule we think is the correct one, because it would be impossible in almost every case for the prisoner to establish the fact of any corrupt or improper communications between the juror and others. This doctrine is substantially sustained by the Supreme Court of Massachusetts in the case of the Commonwealth v. Roly, 12 Pick., 519 and in a late case (decided in 26 Miss., 78 —Organ v. The State,) in which the whole doctrine is reviewed. In the latter case the Court says:-—‘If any separation is to be allowed without incurring the imputation of irregularity—for what length of time, and for what purpose may it be; how frequently may it be practiced, and to what distance may it extend-—by what means are communications between the juror and other persons which may take place, and which must necessarily be secret, to be disclosed V

“In the present case the consequences of the jury’s separation is sought to be avoided by the affidavit of the juror himself, that he left the room by consent of the prisoner’s counsel, and that no improper communication had taken place between himself and anyone else during his absence. The first fact is denied by the appellant’s counsel; and, even if it was true, we are at a loss to conceive how his consent could excuse the consequences of an act which could only be permitted by the Court. Neither can the affidavit of the juror be admitted to purge his conduct from the imputation of corruption or impropriety—for, say the Court in the case just cited, if a party had been guilty of any corruption he would not hesitate to conceal the same by direct perjury.”

The courts have been accustomed to classify as separation of jurors all manner of removal of one or several jurors from the immediate presence of the others. Many of the occurrences have been of such a trivial nature as not to constitute separation in a legal sense. Technical and brief separations, when they deserve that appellation, are of common occurrence and unavoidable. Many of those described in the cases listed above were of that character. All the au

If it should be contended that a defendant under such circumstances waived his right to claim irregularity in the separation of the jury by consenting to it, our answer would be that he could not waive the right to have the statutory procedure observed. The Hawley ease and the authorities therein cited so held, and there is no want of additional authority to the same effect. (Dibbles v. State (1921), 89 Tex.Crim.App. 427 [ 231 S.W. 768 ]; Osborne v. State (1939), 136 Tex.Crim.App. 125 [ 124 S.W.2d 366 ]; Hepp v. State (1934), 46 OhioApp. 360 [ 188 N.E. 664 ]; State v. Lamoreaux (1932), 62 N.D. 55 [ 241 N.W. 595 ]; People v. Casino (1920), 295 Ill. 204 [ 129 N.E. 145 , 34 A.L.R. 1102 ].)

The jury system, which our Constitution and statutes preserve in all respects which embrace its fundamental principles and established procedure, is an institution in which all the people of the land have a vital interest. It is safe to say that among the features which have led to its preservation, and the confidence which is generally reposed in it, none have been of more importance than the rules by which the

Section 4% of article VI of the Constitution does not apply in the ease of a substantial abridgement of the right to a jury trial. (People v. Diaz, 105 Cal.App.2d 690 [ 234 P.2d 300 ].)

Section 1258 of the Penal Code, enacted in 1872 and found in the chapter governing appeals to the Supreme Court, reads: “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.” The decision in the Hawley case was of necessity a holding that the separation of the jury affected a substantial right of the defendant. Since there has been no material change in the statutory law, that decision directly supports our conclusion that the proceedings now under review resulted in a miscarriage of justice.

The order denying the motion for new trial is reversed. There being no judgment or sentence the purported appeals therefrom are dismissed.

Wood (Parker), J., and Vallée, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied August 28, 1952. Gibson, C. J., and Spence, J., were of the opinion that the petition should be granted.