¶1 I concur in the opinion of Justice Van Dyke. In People v. Howard, 143 Cal. 316, I approved the concurring opinion of the chief justice, in which it was held error to refuse an instruction similar to defendant’s instruction No. 20 here involved. At that time my attention had not been called to the ease of the People v. Rodley, 131 Cal. 259, cited in the opinion of Justice Van Dyke. Upon further consideration of the question I am satisfied that the refusal of such an instruction should not be considered an error of sufficient importance to justify a reversal in any case where the jury are fully instructed that the verdict must be based upon the evidence alone. Each juror is required at the beginning of the trial to take an oath that he will well and truly try the matter in issue and a true verdict render according to the evidence. (Code Civ. Proe., sec. 604; Pen. Code, sec. 1046.) The proposed instruction assumes that an instruction from the court is necessary to inform a juror that this oath means that he is to act upon his own judgment, or that it is necessary to inform him that, after having taken such an oath, it would be a violation of it to render a verdict because a majority of the jury believed it to be according to the evidence, although he himself did not so believe. The ■defendant has no right, as matter of law, to be so safeguarded against the misconduct of the jurors. Section 1258 of the Penal Code provides that this court on appeal must disregard “exceptions which do not affect the substantial rights of the parties.” An exception which involves nothing more important than the failure of the court to protect the defendant against the very remote contingency that some juror may so misunderstand or disregard his oath and the other instructions, or the equally remote contingency that such a *757 juror would be prevented from so doing by an instruction such as that here involved, does not, in my opinion, affect the substantial rights of the defendant.
144 Cal. 748
78 P 284
People v. Perry
Decided September 21, 1904
California Supreme Court · decided 1904-09-21
<p>Criminal Law—Burglary—Evidence—Character por Honesty and Integrity—Cross-Examination—Misconduct op District Attorney.—Upon a prosecution for burglary, where witnesses have testified to the defendant’s general good character for honesty and integrity, it was not misconduct for the district attorney to ask the witnesses on cross-examination whether they had heard that he was charged with burglary and convicted of petit larceny in another county at a specified time, if the district attorney had reasonable cause to believe that such were the facts, although the facts were not proven in the case.</p> <p>Id.—Scope op Cross-Examination—Knowledge op Accusation, or op Acts Inconsistent with Good Character.—Where a witness has testified to the defendant’s general good character, his opinion and the value of it may be tested by asking the witness on cross-examination whether he has ever heard that the person in question has been accused of doing acts wholly inconsistent with the character attributed to him, by asking him as to his knowledge of specific acts and with reference to such specific acts themselves for the purpose of overcoming the effect of his testimony upon direct examination.</p> <p>Id.—Misconduct as to Questions Asked out of Court.—It was not misconduct for the district attorney to ask some of the character witnesses out of court if they had heard of the charge of burglary and conviction of the defendant of petit larceny; and he is not bound by the answers given by them when not on the witness-stand.</p> <p>Id.—Misconduct in Argument to Jury—Instruction op Court—Presumption.—It was not prejudicial misconduct for the district attorney to answer a question put to him in argument, why, if the defendant had been convicted of petit larceny, he had not charged it in the complaint, by stating that when the information was drawn he did not know the facts, where the court directed the jury not to pay the least regard to the matter one way or the other. It is to be presumed that they followed the instruction of the court.</p> <p>Id.—Friendliness op Witness for Dependant—Impeachment—Harmless Evidence.—Where a witness for the defendant stated on cross-examination that she was not very friendly with the defendant, the refusal of the court to strike out the testimony of the under-sheriff in rebuttal that he had seen the witness and other ladies, including defendant’s wife, kiss the defendant during the trial in the courthouse corridor, which was admitted simply for the purpose of showing the friendly feeling between the witness and defendant, cannot be ground for reversal, it being clear that it did not affect the substantial rights of the defendant.</p> <p>Id.—Degree of Burglary—Instruction.—An instruction that if the defendant entered the building in question in the night-time,—viz., between sunset of one day and sunrise of another day,—with the intent to commit larceny, the jury should find him guilty of burglary in the first degree, is correct, and in strict compliance with the statute.</p> <p>Id.—Emphatic Instructions.—Instructions merely stating the law too emphatically furnish no ground for reversal.</p> <p>Id.—Baseless Bequests.—Bequested instructions without evidence upon which to base the same were properly refused.</p> <p>Id.—Harmless Befusal of Instruction—Seasonable Doubt—Duty of Each Juror—Instructions Given.—The refusal of a requested instruction that “if, after a consideration of the whole case, any juror should entertain a reasonable doubt, it is the duty of such juror entertaining such doubt not to vote for a verdict of guilty, nor to be influenced in so voting, for the simple reason that the majority should favor a verdict of guilty,” is harmless, where the court instructed the jury that they must determine the case according to the evidence, and that no juror could conscientiously base his verdict upon any other consideration, and repeatedly and correctly instructed them upon the law of reasonable doubt.</p>
Applies CA PEN § 1258
Relies on People v. Rodley · People v. Howard
Good law ✅— No negative treatment on recordhow we know
Decided 1904-09-21
How this case has been cited
Cited by 27 later decisions — most recently April 1980 · most notably 27 Cal. 3d 1 - People v. Green (1980), 18 Cal. App. 72 - People v. Burke (1912)
2 federal appellate · 25 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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