People v. Werwee

• Decision Date: 01 August 1952
• Docket Number: Cr. 4792
• Citation: 246 P.2d 704,112 Cal.App.2d 494
• Parties: PEOPLE v. WERWEE.
• Court: California Court of Appeals Court of Appeals

Page 704

246 P.2d 704

112 Cal.App.2d 494

PEOPLE v. WERWEE.

Cr. 4792.

District Court of Appeal, Second District, Division 3, California.

Aug. 1, 1952.

As Corrected Aug. 6, 1952.

Hearing Denied Aug. 28, 1952.

Smith & Wymore, by Milo S. Smith, San Pedro, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Dept. Atty. Gen., for respondent.

SHINN, Presiding Justice.

Defendant Werwee was convicted in a jury trial of forcible rape and attempted violation of § 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 eleven 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 twelfth 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 granting of a new trial. He relies upon People v Hawley, 111 Cal. 78, 43 P. 404, a case which fully supports his position. There the jurors, with the consent of the defendant, were allowed to separate late in the evening and reassemble the following morning. The court, citing authorities, stated, 111 Cal. at page 85, 43 P. at page 405: 'Our statute permits such separation in all cases before the submission of the case, in the discretion of the court, but expressly provides that, after retiring to deliberate upon their verdict, they must be kept together. Pen.Code, § 1128. The court, therefore, had no authority, either under the statute or at common law, to permit the separation; nor could the consent of the defendant or his counsel operate to empower or excuse the violation of an express provision of the statute.' We deem this holding to be controlling in the present case.

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 cases. 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, 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 overcome by evidence as to the conduct of the jurors and others with whom they had been in contact. There being no such showing by the People the judgment was reversed. The nature of the separation was not shown, although, if the jurors had been sent home for the night, the opinion doubtless would have stated that important fact.

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: '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, North Carolina and Indiana, it has been held that the mere separation of the jury is not sufficient of itself to authorize the Court to set aside the verdict, but that the party must show facts and circumstances tending to establish improper influence, while in Virginia and Tennessee it has been held that if the separation was such that the juror might have been improperly influenced by others, the verdict would have been set aside.

'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. Roby, 12 Pick. 496, 519 and in a late case, Organ v. State, 26 Miss. 78, 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?'

'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 authorities which have applied the rule that a presumption of prejudice may be overcome by evidence to the contrary were necessarily grounded in the fact,...