Summary
In People v. Dinsmore, 102 Cal. 381 [36 P. 661], also relied upon by appellant, it appeared that a witness became indisposed while testifying, and that a continuance of sixty-three days was ordered.
Summary of this case from People v. LyonsOpinion
Department One
Appeal from a judgment of the Superior Court of Kern County, and from an order denying a new trial.
COUNSEL:
Carroll Cook, Mahon & Laird, and S. N. Reed, for Appellant.
Attorney General W. H. H. Hart, and Deputy Attorney General Charles H. Jackson, for Respondent.
JUDGES: Garoutte, J. Harrison, J., and Paterson, J., concurred.
OPINION
GAROUTTE, Judge
[36 P. 662] Appellant Dinsmore was convicted of the crime of rape, and appeals from the judgment and order denying his motion for a new trial. Many grounds are relied upon for a reversal of the judgment and the granting of a new trial, some of which we will proceed to notice.
We think the evidence sufficient to support the verdict. The course adopted in the impanelment of the jury was irregular, and not in line with the established practice (see People v. Russell , 46 Cal. 121); but it is not necessary to determine whether or not the irregularity occurring in the formation of the jury was prejudicial to the rights of appellant. We also think the information is sufficient to support the verdict and judgment. Many of the objections made thereto are technical in the extreme, and it is now too late to bring them to the attention of the court. The information appears to have been filed October 15, 1892, while it charges the offense to have been committed October 28, 1892. It is entirely apparent that a mistake has occurred in the stating of one of these two dates, and this mistake might well have been corrected by the trial court by some appropriate proceeding, but we think no such irregularity is here presented as to be fatal to the case. The information alleged in terms that the acts charged were committed prior to the day of its filing, and in the year 1892, thus bringing the offense without the bar of the statute of limitations. The particular date alleged in the information was not material to the sufficiency of the charge, and we see nothing in this point to justify a new trial of the action.
The remaining objection to which we shall direct our attention is more serious, and we are satisfied demands a new trial of the case. During the progress of the trial, and some days after the jury had been impaneled and evidence taken, a witness for the people, while upon the stand, became indisposed, and unable to proceed further in giving her evidence. At the suggestion of the court, physicians examined her condition, and reported that it would not be safe for her to again take the witness stand for the purpose of continuing her testimony within the next two months. Thereupon, against the objection of the defendant, the court made an order continuing the case for a period of sixty-three days, instructing the jurors to return into court at that time, and allowing them to return to their homes and there remain until the expiration of the continuance. We cannot countenance the procedure here taken, and feel that the action of the court was such an abuse of the discretion reposed in it, that another trial must be had. The prosecution was placed in a peculiar and embarrassing position by the sudden sickness of the witness, if her testimony was important; at the same time the conditions were occasioned by no fault or act of the defendant, and no right of his should be sacrificed, or even jeopardized, thereby. The offense of which the defendant was charged was a peculiarly aggravated one, and one which was well calculated to arouse the feelings and passions of the people of the surrounding county; and, while it will not ordinarily be presumed that jurors have been improperly influenced simply because an opportunity for the practice of improper influence has been presented, still, this case is an exceptional case, and presents a most exceptional state of circumstances. The court is required to instruct the jury at every adjournment as to their duties and especially as to their conduct during the time extending over an adjournment. The law is most jealous of these matters in the interests of justice to all parties, and its care and anxiety to have a fair and impartial jury in every case is fully exemplified by the provisions of both constitution and statute. These twelve jurors returning into the jury-box after roaming at large throughout the county and state for a continuous period of sixty-three days, associating with their neighbors and friends and the world at large during all this time, and without the care and protection of the court for this long period, are not the jurors the law contemplates for the trial of a defendant charged with a serious offense. Conceding them to have been ideal jurors when the court declared the continuance, the chances largely preponderate that, under the circumstances here depicted, one or more of them did not return to the box at the expiration of the continuance in the same frame of mind as to the case as when he left it. It is highly improbable that all of them returned with minds uninfluenced by some circumstance occurring during their long vacation. While the question as to what constitutes a reasonable continuance for the purpose of securing the personal attendance of a sick or absent witness is one necessarily resting largely in the discretion of the court; and, while we do not attempt in this case to establish any fixed rule, and, indeed, while it would be impossible to lay down any fixed rule by which all cases presenting this question could be determined, still, we are well satisfied that the course here adopted must not be allowed to pass into a precedent.
It is ordered that the judgment and order be reversed, and the cause remanded.