State v. De Lea

• Citation: 36 Mont. 531
• Parties: STATE v. DE LEA.
• Decision Date: 13 February 1908
• Court: United States State Supreme Court of Montana

36 Mont. 531

STATE

v.DE LEA.

Supreme Court of Montana.

Feb. 13, 1908.

Appeal from District Court, Silver Bow County; Michael Donlan, Judge.

Frank De Lea was convicted of larceny, and appeals. Affirmed.

The following instruction as to reasonable doubt was given: “A reasonable doubt is not a mere imaginary or possible doubt, but a substantial doubt, based upon reason and common sense, and induced by the facts and circumstances attending the particular case and growing out of the testimony. It is such doubt as will leave one's mind after a careful examination of all the evidence, in such condition that he cannot say that he has an abiding conviction to a moral certainty of the defendant's guilt as charged.”

The first sentence of Pen. Code, § 2442, used as an instruction, is as follows: “A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself but may be sworn and may testify in his own behalf and the jury in judging his credibility and the weight to be given to his testimony may take into consideration the fact that he is defendant and the nature and enormity of the crime of which he is accused.”

Maury, Tempelman & Hogevoll, for appellant.

Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for the State.

HOLLOWAY, J.

Frank De Lea was convicted of the crime of grand larceny and appeals from the judgment.

1. Objections are made to the proceedings in the case. It is said the court erred: “(a) In not causing a copy of the indorsements upon the information, including the list of witnesses, to be delivered to the defendant at the time of his arraignment. (b) In permitting the verdict to be filed without having the names of the jurors first called by the clerk. (c) In receiving the verdict in the absence of the defendant.” These objections must be answered, if at all, by the record.

(a) The minutes of the trial court show: “This day, September 22d, defendant being present in person and by counsel, Mr. J. G. Brown, whose name is by the court ordered entered as counsel for defendant, and the county attorney being present on the part of the state, being then asked, defendant states that his true name is Frank De Lea as charged in the information. Defendant waives reading of the information and accepted a copy thereof, on application of Mr. J. G. Brown. Saturday, September 29th, 1906, at 10 o'clock a. m. is by the court fixed as date for the entry of a plea herein. *** September 29th. This day defendant being present in person and by counsel Mr. J. G. Brown, and the county attorney being present on the part of the state, thereupon defendant pleads not guilty to the offense charged in the information, which plea is by the court ordered entered.” It is not contended that the original information does not contain the names of the witnesses for the state; but it is contended that the minutes fail to show that the copy delivered to the defendant contained the necessary indorsements. It would appear from section 1893, Pen. Code, that the indorsements on the information are not considered part of the information; but, however this may be, by asking for and obtaining time to plead, and afterwards, without objecting, pleading to the information, the defendant waived these defects in the arraignment. 12 Cyc. 348; People v. Lightner, 49 Cal. 226.

(b) The next contention is that the minutes fail to show that the names of the jurors were called before the verdict was delivered, as required by section 2142, Pen. Code. The minutes do show the presence of the 12 men constituting the jury while the case was being tried. With respect to what occurred after the case was submitted the minutes recite: “The jury retired in charge of a sworn bailiff to consider of their verdict and later returned into open court and submitted their verdict which is in words and figures as follows, to wit: [Title of Court and Cause.] ‘We, the jury in the above en titled action, find the defendant Frank De Lea guilty of the crime of grand larceny and leave his punishment to be fixed by the court. M. L. Mustard, Foreman.’ Which verdict was filed and read in open court and in the presence of the jury who on being asked state that such is their verdict.” While these minutes do not meet the requirements of the Code, we hardly think any other fair inference can be drawn than that the jurors were, in fact, all present. Certainly there is not anything here to suggest that the jurors were not all present; and the evident purpose of the provision of section 2142 above for calling the names of the jurors is to insure their presence before the verdict is delivered. A case presenting precisely this same question, and under a similar statute, is Norton v. State, 106 Ind. 163, 6 N. E. 126. In the opinion in that case it is said: “Under the alleged error of the court in overruling appellant's motion for a venire de novo, the only point made by his counsel is based upon their construction of the provisions of section 1829, Rev. St. 1881, and the alleged noncompliance of the trial court therewith. This section provides as follows: ‘When the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and, if all appear, their verdict must be rendered in open court. If all do not appear, the rest must be discharged without giving a verdict, and the cause must be tried again at the same or next term. The defendant shall have the right, in all criminal cases, to have the jury polled.’ It is not claimed by appellant that the jury had not all appeared when their verdict herein was rendered in open court; but it is claimed that their names were not called prior to such rendition of their verdict. Although the statutory provision requiring that the names of the jury must be called is mandatory in form, and although we think that such provisions ought always to be strictly complied with, yet we can hardly regard the omission to call the names of the jury as a material or fatal error, unless it further appears that the jury did not, in fact, all appear at the time their verdict was rendered in open court. To such an error, conceding it to be such, as the one here complained of, section 1891, Rev. St. 1881, seems to us peculiarly applicable, so far as our consideration of the error is concerned. In that section it is thus provided: ‘In the consideration of the questions which are presented upon an appeal, the Supreme Court shall not regard technical errors or defects, or exceptions to any decision or action of the court below, which did not, in the opinion of the Supreme Court, prejudice the substantial rights of the defendant.’ In the case at bar, if the jury all appeared at the time their verdict was returned into open court, as we must assume they did, in the absence of any showing to the contrary, then we are of opinion that the omission of the court to have the names of the jury called, even if erroneous, did not prejudice the substantial rights of the appellant.” Another case identical in its facts is People v. Rodundo, 44 Cal. 538, in which it is said: “It is now claimed that the court erred in receiving the verdict without first calling the names of the jurors. The statute provides that, when the jury have agreed upon a verdict, they shall be conducted into court. ‘Their names must then be called, and, if all do not appear, the rest shall be discharged without giving a verdict.’ Crim. Prac. Act, § 414. Undoubtedly it was an irregularity to receive the verdict without first calling the names of the jurors; but, if all were in fact present and declared the verdict, it was an irregularity which in no way prejudiced the defendant. Section 601 of the Criminal Practice Act provides: ‘Neither a departure from the form or mode prescribed by this act in respect to any pleadings or proceedings, nor an error or mistake therein shall render the same invalid unless it have actually prejudiced the defendant or tended to his prejudice in respect to a substantial right.’ The record shows that the ‘jury’ returned into court and reported the verdict, and it is not even suggested by counsel that the jurors were not all present and agreed. *** On the whole, we see no error in the case which prejudiced the defendant in respect to any substantial right, and the judgment is therefore affirmed.” Our Penal Code contains provisions similar to those referred to by the Indiana and California courts. See sections 2320, 2600, Pen. Code.

(c) The third contention is that the minutes do not show that the defendant was present when the verdict was returned. The minutes do show the presence of the defendant during the trial up to the time the jury retired to consider of their verdict. Then, after the recital last above set forth, the minutes proceed: “Defendant thereupon waived the polling of the jury. *** Defendant thereupon waives time for sentence and elects to be sentenced at this time.” The word “thereupon” first used in this quotation is significant in this connection. Webster defines it to mean: “Upon that or this; immediately; at once; without delay.” Substituting in the minutes, then, the meaning of the word “thereupon” for the word itself, and the minutes would say that the jury returned into open court and submitted their verdict, which verdict was filed and read in open court and in the presence of the jury, who, on being asked, stated that such was their verdict. Upon this happening, the defendant immediately waived the polling of the jury and asked to be sentenced at this time. Pen. Code, § 2141, provides that the defendant, if charged with a felony, must be present when the verdict is received; and it is generally held, and we think correctly, that this fact must affirmatively appear; but it must be conceded that by every fair intendment this record is a sufficient showing of the defendant's presence when the verdict was received. Just...