Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing 22 Cal. 349 at 354.
Appeal from the Sixth Judicial District.
COUNSEL:
I. The examination of the juror Tutt showed that he was wholly incompetent to act in the case, and the challenge should have been sustained.
The defendant was certainly entitled to a fair and impartial trial, and this he could not have, unless he had an unprejudiced jury to try the charges against him. A juror who had made up his mind could not be considered impartial.
In the case of The People v. Reyes , 5 Cal. 349, this question arose, and was very fully considered by the Court. The Court said: " Wherever the right of trial by jury exists, the law in all cases contemplates that each and every person who sits in a cause shall have a mind utterly free from all bias or prejudice, of any kind whatever. If the juror is prejudiced in any manner, he is not a fit person to sit in the box."
In the case of The People v. Gehr , 8 Cal. 361, the Court said: " A challenge for causeis warranted when the juror on his voir dire states that it would require proof to change the opinion then existing in his mind. The fact that the juror further said that he could try the cause impartially, was entitled to no consideration. Few men will admit that they have not sufficient regard for truth and justice to act impartially in any matter, however much they may feel in regard to it, and every day's experience teaches us that no reliance is to be placed on such a declaration."
II. The jury was allowed to separate without the permission of the Court. About this point there can be no controversy. It is distinctly proved by the affidavits. As this question has been several times considered by this Court, and lately, very fully, in the case of The People v. Brannigan, we do not propose to make any argument to sustain it. The facts upon this point so clearly shown by the affidavits referred to, when squared by the law laid down in the Brannigan case, settle this point beyond a doubt.
III. Sec. 232 of the Criminal Practice Act (Wood's Digest, 288,) requires the names of all the witnesses who are to be examined on the trial, for the prosecution, to be indorsedupon the indictment.
This law is intended for the protection of the defendant. If the names of all the witnesses for the State are upon the indictment, the defendant has an opportunity of knowing what he has to meet. If the witnesses are not truthful, he can take the necessary steps to impeach them; but if they are forced upon him, without a moment's notice, he has no opportunity of showing their character, or rebutting or contradicting their testimony. If the Court was justified in overruling the defendant's objection to the witness testifying, it most certainly should have granted a continuance, on the defendant's motion and on his affidavit of surprise.
In the case of The People v. Freeland , 6 Cal. 98, the Court said: " I understand the rule to be, that any witness may be introduced upon the trial by consent of the Court, notwithstanding he was not before the grand jury, subject only to the right of the prisoner to a postponement, in case such evidence should operate as a surprise upon him." This application is within the rule as thus stated.
J. W. Coffroth and Geo. R. Moore, for Appellant.
Thos. H. Williams, for Respondent.
JUDGES: Norton, J. delivered the opinion of the Court. Cope, C. J. and Crocker, J. concurring.
OPINION
NORTON, Judge
On petition for rehearing, Norton, J. delivered the following opinion. the other Justices concurring: A petition for a rehearing is made in this case on two grounds.
1st. That the Court in its opinion did not speak of the affidavit of C. H. George in considering the point as to the separation of the jury, and the petition asserts that he testified to something material which was not stated in the affidavits of the other two witnesses.
The affidavit of George was not specified, because in it he not only stated nothing material which was not stated in the other affidavits, but in fact did not say that the jury were separated, or that any of them were at any time separate or apart from the others, which fact was directly stated in the other affidavits. The Court considered all the affidavits, and particularly specified those which contained not only everything material for the prisoner which was in the affidavit of George, but also some expressions in addition which had a more direct reference to the point raised.
This witness George was produced and examined on the motion for a new trial in regard to his affidavit and the facts it specified. Also, eleven of the twelve jurors were examined, as well as the two Sheriff's officers who had charge of the jury, and two other persons, to wit, Penny and Bidleman. The testimony of all these persons concurs in showing that no injury resulted to the prisoner from the facts alluded to in the affidavits.
2d. That the Court, in speaking of the application for a continuance on the ground of surprise by the introduction of the witness R. Snap, stated that no affidavit or other evidence of surprise was introduced when the motion was made, and the petition says that it appears by the record that the prisoner's counsel offered to make an affidavit if time was given to prepare it, when the prosecution considered the affidavit made, and to be filed as of that date.
We do not find anything to this effect in the record. On the contrary, in the minutes of the proceedings on the motion for a new trial, the Court is stated to have said, in speaking of the motion for a continuance: " It was for them to show the fact that they were taken by surprise; they did not make the showing and I overruled it."
It also appears by the testimony of the Clerk of the Court that no affidavit was filed when the motion for a continuance was made, and that there is none on file. The only affidavit which can be considered as applying to the matter in any way, and which is the one referred to in the petition for rehearing, is the one made by the prisoner some days after the trial, and which was used on the motion for a new trial. The effect of this affidavit we considered in our former opinion. It may be further said in regard to the testimony of the witness Snap, that it appears that this was a second trial, and that the same witness was examined on the former trial, and the prisoner therefore must have been informed of the testimony he could give, and that he would probably be again called on the second trial.
Rehearing denied.