People v. Morales

The defendant was charged with the crime of manslaughter in connection with the death of her four-year old granddaughter. A jury found her guilty and she appeals from the judgment and from an order denying her motion for a new trial.

It is first contended that the evidence is insufficient to sustain the verdict. The story disclosed by the testimony in this case is a pathetic one and it would serve no useful purpose to set forth any of the details here. A very general reference to some of the facts brought out in the evidence will be sufficient. The little girl had been living with the appellant for some months, having been abandoned by her father and mother. Apparently, the appellant resented the presence of the child and certain extra work and attention required by the child, and it rather clearly appears that she developed a dislike for the little girl. The testimony of a number of witnesses shows a continued course of neglect, exposure and abuse over a period of more than three months preceding the death of the child. This included not only depriving the child of proper food and exposing her to the elements in very cold weather, but also repeated and frequent

Some contention is made that prejudicial error appears in that the jury was allowed to take three exhibits into the jury room without having made any request for them. In its instructions the court told the jury that it was entitled to take the exhibits if it so desired. While no such request was made the clerk of the court handed to the jury three exhibits, being two photographs of the dead body of the little girl and a leather strap with which, according to the evidence, the appellant had sometimes whipped the girl. Before the jury brought in its verdict counsel for the appellant called the matter to the attention of the court and the court offered to have the only remaining exhibit, which was a blackboard used during the trial, sent in so that all of the exhibits would be before the jury. Counsel for the appellant replied that it was unnecessary to do this. It is now contended that although the jury was entitled to take these exhibits it was error to permit this to be done without a specific request therefor from the jury. Assuming, but not holding, that any error appears no prejudice is shown and any possible error in this regard would not justify a reversal.

The main point raised is that the appellant is entitled to a new trial under sections 1043 and 1181 of the Penal Code because the instructions were reread to the jury in her absence. Insofar as material here section 1043 provides that ‘ ‘ The defendant must be personally present at the trial, ’ ’ and

In People v. Soto, 65 Cal. 621 [ 4 P. 664 ], a similar thing occurred. However, in that case, the irregularity was discovered before the jury had reached a verdict and the instructions were again read to the jury in the presence of the defendant and the jury was further instructed to disregard what had taken place in the defendant’s absence. In holding that any error had been cured the court there said: “It is manifest no injury could have been done defendant by reason of that which occurred while he was absent.” In People v. Guareno, 22 Cal.App.2d 82 [ 70 P.2d 504 ], the defendant was seized with a coughing spell while the instructions were being read to the jury. He was permitted to go into the judge’s chambers, which adjoined the court room, and thence into a lavatory. He returned to the court room within a few minutes and it was contended on appeal that his temporary absence required the granting of a new trial. The court referred to the fact that it did not affirmatively appear that the defendant was not within hearing at all times and then pointed out that it was unnecessary for the defendant to except to any of the instructions being given in order to protect his rights, and that the defendant might waive his statutory right to be present during the time in question. It was then held that no prejudice appeared and the judgment and order denying a new trial were affirmed. In People v. White, 20 Cal.App. 156 [ 128 P. 417 ], the jury was taken to view the premises

While, unquestionably, such a defendant has a right to be present at all stages of his trial, the principle running through the cases just cited is that a mere technical violation of that right is not necessarily ground for reversing a judgment of conviction. In each ease the determining question has been whether or not any prejudice to the substantial rights of the defendant appears. In two of the cases it was held that this right might be waived by the defendant under the circumstances and in one, People v. White, supra, it was held that the defendant’s attorney could, and did, waive the right by failing to make any demand or objection when he knew that the defendant was not present.

These principles are especially applicable in view of the provision of section 4% of article VI of our Constitution that a judgment shall not be set aside “for any error as to any matter of procedure,” unless it appears that the error has resulted in a miscarriage of justice.

Applying these rules here we are unable to hold that there was any possible prejudice to this appellant and we are not of the opinion that any miscarriage of justice has resulted. Not only was the evidence of guilt unusually convincing in this case, but it is inconceivable that the presence of the appel

The judgment and the order denying a new trial are affirmed.

Marks, J., and Griffin, J., concurred.