State v. Jones

7 Nev. 408

• Court: Nevada Supreme Court
• Decided: January 15, 1872
• Status: Published

Opinion

By the Court,

Lewis, C. J.:

The defendants were indicted, tried and convicted of grand larceny for the stealing of three horses. A motion for new trial was regularly made, denied and an appeal taken, upon which several errors are assigned; the first, being an illegal separation of a juror named Wilkin from his fellows, after the submission of the case. This assignment is founded upon an affidavit setting out substantially that the juror, in company with the officer placed in charge, left the jury room and visited his residence some five hundred yards from the jury room; that whilst passing through the streets several persons spoke to him; but there is no showing whatever that anything was said in his hearing respecting the trial, nor that the officer in whose charge he appears to have been was not constantly at his side. There is, therefore, no evidence that there was an opportunity, or even a possibility of tampering with the juror, unless it can be presumed that it could be done whilst he was in the immediate presence of the officer; a presumption totally inadmissible.

The rule upon this head is now well settled to be that the separation of the jury, even though unauthorized by the court, when there is no opportunity of abuse, is not a ground for setting aside the verdict. 2 Graham & Waterman on New Trials, 502. ' Here the affidavits on behalf of the prisoners warrant the conclusion that 'the juror w'as constantly attended by the sworn officer of the court. Under such circumstances, no case can be found holding that the separation is illegal. Indeed, it can hardly be said that there is a legal separation, where one juror in charge of an officer leaves the others, who are left either under lock and key, or under the immediate charge of another officer. The Supreme Court of New Jersey, State v. Cucuel, 31 N. J. 257, sum up a very able discussion of this question in this manner: ££ Erom the foregoing view of the topic discussed, it will be perceived that it was entirely competent for the court to authorize the jury, or any of them, to visit their homes in the company of one of its sworn officers. So it was equally legal for the court to permit, under the same supervision, the jury or any of its members to ride or walk out for exercise. All that the defendant can demand as a right is that the court should not sanction the withdrawal of the jury, in whole or in part, during the trial from the presence of the c.ourt or its officers'.” There is no showing here that this separation, if it might be so called, was not authorized by the court.

But if this can be called a separation, that of itself is not such irregularity as will vitiate a verdict. Although so held in a few cases, the great weight of authority is the other way: hence, if it be shown that there was no possibility of prejudice to the complaining party resulting from such separation, it will not warrant a reversal of the verdict. See the cases on this point fully collated in 2 Graham & W. on New Trials, 534. It is true, if there be the least suspicion of abuse or tampering where there is such separation, the verdict will be set aside. But in this case there is nothing shown upon which to ground any such suspicion ; and' the affidavit of the juror is pointed that he had no conversation with any person respecting the trial. Such affidavit is by the great majority of the courts received to rebut any suspicion of abuse or tampering, and is undoubtedly the better rule. 2 Graham & W. 515.

It may be conceded, that if the party complaining shows such separation as would afford even an opportunity of abuse, that may be sufficient to throw the burden of showing no abuse on the other side. In this case we think there was really no legal separation, and if there were, it is shown by the state that nothing prejudicial to the defendant resulted from it; and thus the case is brought directly within the rule of the general current of decisions, which is that the verdict will not be interfered with.

The second assignment is, the misconduct of one of the jurors, defendant claiming that he became intoxicated while deliberating on the verdict. The mere drinking of spirituous liquors, when not furnished by the prevailing party, is now pretty well established not to be such irregularity or misconduct on the part of the jury as will vitiate a verdict. And so we have held. Richardson v. Jones et al., 1 Nev. 405. It became necessary, therefore, for the defendant to show that the juror drank .so much as to produce intoxicating effects upon him, thereby rendering him incapable of considering the case with that clearness, impartiality and calm consideration which is expected of every juror in his deliberation upon a verdict. Whether the juror drank so much as to affect his mental faculties in the least, was a question upon which there ivas a decided conflict of testimony. The question of the juror’s condition was therefore one of fact, with which this court has nothing to do, its jurisdiction being limited to questions of law alone. We may say, however, that a judge‘at nisi prius should never hesitate to set aside a verdict in a criminal case, where there is even a suspicion that any juror was in the least affected by intoxicating liquor during the progress of the trial, or the deliberation upon the verdict.

The third assignment is, that the court below erred in admitting a deposition in eyidence against the' prisoner — counsel arguing that, under the constitution of the United States, Art. VI of the amendments, the prisoners were entitled to be confronted by the witnesses against them. But this article of the constitution is applicable only to the federal courts, and is in no wise a restriction upon the pow'er of the states, and in no respect applicable to state courts. Barker v. The People, 3 Cowen, 701. It was entirely competent for the state, therefore, to make provision as it has done, that in certain cases and under certain circumstances, depositions'may be received against the prisoner. Sections 157 and 171 as amended'in 1867, page 125, of statutes of that year. When a deposition is offered, it is -true, the person offering it should accompany it with prooí that it was taken in conformity with-the statute; and, if the proper objection be made, it should not be admitted until such preliminary proof is made. In this case the only objection interposed was, that the deposition was “incompetent evidence.” Such objection was altogether too general'to reach the failure on the part of the prosecution to make the preliminary proof that the deposition was taken in accordance with the statute. Had the objection been pointed to, and specified that, as the ground upon which it wms made, the state might perhaps very readily have supplied the omitted evidence. But under the general objections here made, it would be impossible to understand that it was intended to rely upon the point that this preliminary proof was not made.

In criminal as well as in civil cases, the objection should be so pointed that the attention of the court below may be directed to the exact point, so that the objection may be then obviated, if it be one of that character. Kite v. Kimball, 10 Cal. 277; Martin v. Travers, 12 Cal. 244; Dreux v. Domec, 18 Cal. 83; Leet v. Wilson, 24 Cal. 398. The authorities require the objecting party to place his finger upon the point of objection. If the objection be one which might have been obviated or remedied, as in this case, and the objection is not sufficiently specific, it will not afterwards avail the party. The objection here was too general to entitle the defendants to rely upon the failure to make the proof preliminary to the admission of the deposition; because, if specified at the time, it might have been cured. See also Sharon v. Minnock, 6 Nev. 377.

It is next argued that the indictment does not conform to the requirements of the statute, and is defective in not charging the “ acts of defendants to have been without authority of law, or an equivalent allegation.” True, the indictment does riot contain the allegation which it is claimed it should, to make it conform to the statutes. It, however, contains all the essential facts constituting the larceny — facts which show that the taking was without authority of law, and was unlawful — rand that is sufficient. It is charged that the defendant-feloniously did steal, take, and lead away the property of the complaining witnesses; particularly describing it. This sufficiently shows the fact that the taking was contrary to law, and fully obviates the objection made to the indictment.

Again, it is argued that the judge, below erred in addressing tbe jury in this manner: “ The court is not desirous of punishing the jury, but as it is a great expense to the county, and a venire of seventy-five jurors has already been exhausted, and this trial has taken up a great deal of time already, and it is very doubtful if another jury can be got in the county to try these men, I will give you an instruction upon the point on which you were in doubt last night, and it may aid you to make up a verdict.” This address was delivered orally, and was excepted to by counsel.

The objection urged against this is, that it is an oral charge, and second, that it had a tendency to prejudice the defendant' by urging the jury to avoid further deliberation, or careful Consideration of the case, and agree upon a verdict.’

The address is not open to the first objection, because it is in no sense a charge. It was not a statement of the law governing the case, nor an instruction in any manner directing the jury how to find the verdict. This was no more a charge than that which came in question in the case of the People v. Bonney, 19 Cal. 426, where the jury were told orally that their verdict was'not in proper form, and that they must retire and designate-in the verdict in which degree they found the prisoner guilty; and it was held to be no error because not' a charge. Nor can we perceive how these remarks of tbe judge were calculated to encourage the jury to find an inconsiderate verdict. The law of the ease had been previously given to them, and they were fully aware of the gravity of the duty imposed upon them. Clearly, the immediate tendency of these remarks was simply to induce a more careful and anxious consideration of the case — to let the jury understand that they should make an effort to agree upon a verdict simply, but not contrary to the evidence, law, or the rights of the defendants. No such conclusion can properly be drawn from the remarks. Nor would it be warranted when taken in connection with the instructions given wherein the rights of the defendants are fully guarded. It is true such remarks had better not be made, but still in this case we are unable to see that the defendant could have been prejudiced by what was said.

It is further argued that the court erred in charging the jury that “ the defendants might be found guilty regardless of the guilt or innocence of Big Ben.” Unquestionably this was correct. The evidence tended to show that the horses were stolen either by the man J ackson or Big Ben, which of the two does not satisfactorily appear, and that the defendants were accessories before the fact. This appears to have been the theory of the prosecution. Now, if the man J ackson stole the property, and the defendants were connected with him, they could be found guilty, regardless of whether Big Ben had any connection with the' matter or not. This proposition is self-evident, and this is all that the instruction amounts to when taken in connection with the other portions of the charge, which clearly instruct the jury as to what constitutes an accessory before the fact, and what is necessary to justify his conviction. They learned from that charge that it is always essential that there be a principal in the crime, although under the.statue of this state it is not necessary that he be convicted of the crime, or that the accessories be indicted as such : for it is expressly provided that they may be indicted and tried as principals. All' that the jury could have understood by the instruction complained of then, was, that although there must have been a principal in the larceny, with whom the defendants should be shown to have been connected, it was not necessary to show that Big Ben was that person.

The refusal to give the instructions asked by defendants was not error, for the reason that the first, second, fourth and fifth entirely ignore the fact that the-defendants may have advised and counseled the taking of the horses by some third person, and ask an acquittal, if the jury was satisfied that they did not personally take the property ; whereas, there was some evidence-tending to show that they may have so “ advised or encouraged ” the stealing, and thereby become guilty as accessories.

The third instruction was properly rejected because, under the statute of this state, it is not essential to the conviction of accessories before the fact that the prosecution first prove the guilt of the principal. It was only necessary to show that a larceny had been committed, and that the defendants, if they "were present, aided and assisted, or if not present, that they advised or encouraged it. The instruction would seem to assume that the principal should be identified and his guilt proven; whereas it is oniy.necessary first to prove the unlawful taking, and then that the defendants had such connection with them as would bring them within the statute. But, if it is to be understood by it that it was necessary for the state to establish the fact that a larceny, or the principal offense, had been committed by some one before the defendants could be convicted as accessories, then, although in that light the instruction might be considered correct, still its refusal is not error, for the reason that the court in another instruction had so given the law to the jury, charging them that it was necessary for them to find that the theft had been committed, that the horses had been feloniously taken, before they could convict defendants, and in another instruction the character of their connection with the larceny was clearly and correctly explained. Hence the refusal of this instruction was not error.

The last assignment of error is that the evidence does not warrant the verdict. There is some evidence tending to that end; enough at least to make their guilt a question of fact, and thus deprive this court of jurisdiction. This may be a hard case; if so, the board of pardons is the proper tribunal to grant relief.

Judgment affirmed.