Opinion
Rehearing Denied. Beatty, C. J., Dissented from the Order Denying a Rehearing.
Appeal from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B. N. Smith, Judge.
COUNSEL:
The neglect of the court to admonish the jury as to their duty not to converse with any one on any subject connected with the trial, or express or form any opinion thereon until the case should be finally submitted to them, was reversible error. (McLain v. State, 101 Yerg. 241; 31 Am. Dec. 573; 1 Chitty's Criminal Law, 634; People v. Thompson , 84 Cal. 598; People v. Brannigan , 21 Cal. 338; Riley v. State, 9 Humph. 654; McCann v. State, 9 Smedes & M. 465; People v. Mulkins, 18 Kan. 16; State v. Snyder, 20 Kan. 308; State v. Lantz, 23 Kan. 730; 33 Am. Rep. 215; State v. Stockhouse, 24 Kan. 445; State v. McKinney, 31 Kan. 571; State v. Hendricks, 32 Kan. 559.) The variance between the allegation of the information as to the ownership of the building and the proof was fatal. (People v. Christian , 101 Cal. 471; People v. Arras , 89 Cal. 223; People v. Oreileus , 79 Cal. 178; People v. Allen , 61 Cal. 140; People v. Hughes , 41 Cal. 234; People v. McNealy , 17 Cal. 333; Moynahan v. People, 3 Colo. 367.)
Byron L. Oliver, for Appellant.
Attorney General W. F. Fitzgerald, and Deputy Attorney General Charles H. Jackson, for Respondent.
The failure of the court to admonish the jury upon separating was not such an error as would warrant the reversal of the judgment, as it was not shown to have prejudiced the defendant. (12 Am. & Eng. Ency. of Law, 373; People v. Murray , 85 Cal. 351; State v. Anderson, 4 Nev. 266; Flanegan v. State , 64 Ga. 52; Hunter v. State , 43 Ga. 484; People v. Goldenson , 76 Cal. 328.) The variance between the information and proof as to ownership of the building was immaterial. (Pen. Code, sec. 956; People v. Anderson , 80 Cal. 205; People v. Watson , 72 Cal. 403; People v. Hughes , 41 Cal. 237; People v. Potter , 35 Cal. 110; People v. Bitancourt , 74 Cal. 188; People v. Ribolsi , 89 Cal. 496; People v. Handley , 100 Cal. 370; State v. Cunningham, 21 Iowa 433; Dignowitty v. State, 17 Tex. 521, 67 Am. Dec. 670; 12 Am. & Eng. Ency. of Law, 765.)
JUDGES: In Bank. Garoutte, J. Harrison, J., Van Fleet, J., and McFarland, J., concurred. Henshaw, J., dissented.
OPINION
GAROUTTE, Judge
[48 P. 219] Defendant was convicted of a felony, and prosecutes this appeal from the judgment and order denying a motion for a new trial.
1. The jury were selected to try the defendant at the morning session of court, and an adjournment was then taken until 2 o'clock p. m. of the same day, at which time the introduction of evidence was begun. During the time of adjournment the jurors were not in the custody of the officer, neither had they been admonished by the court upon their duty, as demanded by section 1122 of the Penal Code. Complaint is now made that the course practiced at the trial constituted substantial and material error. The fact that the jurors separated during this period of time furnishes no ground for complaint; for section 1121 of the Penal Code leaves that matter to the discretion of the court. But a failure of the court to admonish the jurors as to their duty during the hours of separation is certainly an objectionable practice, and not countenanced by the statute. It seems that such omission upon the part of the court occurred but once during the progress of the trial, and at such time the introduction of evidence had not commenced. In the trial of criminal cases the court cannot be too careful in planting itself firmly upon the statute, and a strict compliance with its provisions is always time and labor well spent. But the error in this regard is technical, and not of that importance to demand a reversal of the judgment and a new trial.
2. The information charges the building injured to be the property of T. D. Stimpson. Upon the trial it was developed that the legal title to the property stood in the name of Mrs. T. D. Stimpson (the wife). It appeared that T. D. Stimpson paid the taxes upon the property, and was residing with his wife and other members of the family in the building at the time the offense is charged to have been committed. Under such circumstances his possession of the premises was entirely sufficient to support the allegation of the information as to ownership.
There is no merit in the remaining assignment of errors.
For the foregoing reasons the judgment and order are affirmed.