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tribution or to appeal therefrom has expired, such indebtedness or embezzlement until the and defendants were not parties thereto. last-named date, and that plaintiff and his (11) Defendants received no money or con- assignors have been cognizant of all the sideration for becoming sureties, and be- facts since said date. This was subsequent lieved Bowman to be honest, and acting in to the decree of distribution, which was engood faith, and that no money ever came tered January 15, 1884. The facts charged into Bowman's hands as executor. The tes- do not constitute such fraud as entitles the tator had no money at the time of his death, sureties to attack the decree of distribuand the executor imposed upon them, the tion. Much controversy had existed as to court, and the community; pretended to have the extent of the liability of an executor funds of the estate, when in fact there were and his sureties for debts and demands due no funds in such estate, and he had none, or to become due from him to the testator either of his own or belonging to such estate. of the estate which he represented. Our (12) Plaintiff is seeking by this action at law Code of Civil Procedure, with a view, as may to fraudulently avail himself of Bowman's be supposed, of setting all such questions at wrongful acts, and recover from them. (13) rest, has provided (section 1447) as follows: Defendants had no knowledge or means of “The naming of a person as executor does knowledge of Bowman's wrongful acts until not thereby discharge him from any just 1885, when they communicated all the facts claim which the testator has against him, to plaintiff and his assignors. (14) That by but the claim must be included in the inreason of the matters stated plaintiff is guil- ventory, and the executor is liable for the ty of fraud in seeking to recover. (15) Bow- same, as for so much money in his hands, man was not, as executor, accountable to when the debt or demand becomes due." the estate or to plaintiff for the $15,000 so Thus it will be seen the law treats a debt embezzled by him, and it was not collectible or demand due from the executor, from the by him, by reason of his insolvency before, time it becomes due, as so much money in at the time of, and after the death of said his hands. This debt was due, as is shown Nicholas Treweek, by reason whereof, with- by the pleading, long before the death of the out any fault in him as executor, he could testator, and hence was properly included in not collect it from himself as an individual. the inventory as money in the hands of the Sureties are entitled to stand upon the pre- executor. The law required him to so recise terms of their contract, and in the pres- port it, and, had he failed to do so, and taken ent case the bond is limited to the duties the oath required of him by section 1419, cast upon the principal, and the liabilities he would have been guilty of perjury. The of the sureties cannot be extended. Lacoste sureties are presumed to have signed the v. Splivalo, 64 Cal. 35, 30 Pac. 571; City of bond in view of the law as it existed, and San Jose v. Welch, 65 Cal. 358, 4 Pac. 207; are as liable as they would have been had Brown v. Lattimore, 17 Cal. 93; U. S. v. section 1447 been incorporated in the bond. Cheeseman, 3 Sawy. 425, Fed. Cas. No. 14,- This debt was as money in the hands of the 790. The condition of the bond in this case executor, and as such was a part of the is as follows: "Now, therefore, if the said estate for the due administration of which Arthur W. Bowman, as such executor, shall the sureties became liable, just as they did faithfully execute the duties of the trust for the residue thereof. The poverty or according to law, then this obligation shall riches of their principal-the condition of be void; otherwise to remain in full force the estate, where and how invested-were and effect.” The decree of distribution en- proper subjects of inquiry for the sureties in tered in the superior court, and the order of determining whether or not to become resuch court in passing upon and approving sponsible, but cannot be urged as reasons to the account of the executor, were, in the ab- excuse them from the liability which they sence of fraud, binding upon the executor assumed. Nor can the representations of and his sureties, although the latter were their principal as to his financial position, or not parties to the proceeding. Irwin his failure so to do, avail the sureties. Backus, 25 Cal. 214; McClellan v. Downey, Should such circumstances prevail to re63 Cal. 520; Chaquette v. Ortet, 60 Cal. 595 lease sureties, it is apprehended few would Fox v. Minor, 32 Cal. 112; Murdock v. be bound. The executor was liable, under Brooks, 38 Cal. 596; Brodrib v. Brodrib, the law, as for money in his hands, and the 56 Cal. 563.

sureties must be presumed to have known it. The question remains, is there any such Beyond this, and stripped of verbiage and fraud charged in the fifth defense and cross accessories which cannot control in the decomplaint as entitled the defendants here to cision, and the simple fact remains that Bowattack the decree of distribution? The gra- man was insolvent, and the sureties were not vamen of the charge of fraud is: That Bow. aware of that fact nor of his indebtedness man, the executor, had the money in his to the estate. The case serves to illustrate hands; had embezzled it in the lifetime of the wisdom of Solomon, where he says (Prov. the testator; concealed this fact from the xi. 15): “He that is surety for a stranger sureties; led them to believe, and they did shall smart for it, and he that hateth suretybelieve until May, 1885, that he was solvent. ship is sure." That they knew nothing of the facts as to The other errors assigned are not impor


tant, and do not call for a reversal. The of such misconduct as to entitle defendant judgment and order appealed from are af- to a new trial. The first assignment under firmed.

this head is that the jury read published accounts of the trial in a newspaper, to the

prejudice of defendant's rights. It appeared (105 Cal. 486)

on behalf of defendant on the motion that PEOPLE v. LEARY. (No. 21,123.)? the Salinas Daily Journal, published at Sal(Supreme Court of California. Jan. 5, 1895:) inas City, where the trial was had, printed, CRIMINAL LAW-MISCONDUCT OF JURY-ORAL IN- from day to day, a synopsis or résumé of the STRUCTIONS, PARTIAL INSANITY.

evidence in the case, and that on various 1. The reading by a jury, during a murder occasions during the progress of the trial, trial, of newspa per accounts correctly reporting the proceedings, and containing nothing of

but prior to their retiring for deliberation, an unfair or prejudicial character, is not such copies of the paper fell into the hands of the misconduct as will require the granting of a jury, and were read by some of them, includnew trial.

ing the matter therein relating to the trial; 2. The fact that several half-pint flasks filled with intoxicating liquor were introduced

and that on one occasion one of the jurors into the jury rooin by jurors during the early made a suggestion that "they got that mighty stages of the trial, and that some of them drank

straig t," or some such remark,-referring therefrom, is nct such misconduct as necessitates a new trial, where none of the jurors were

to an account of the trial in the paper. In affected by the liquor, and none was drank rebuttal of this showing, the prosecution during the deliberations of the jury.

were permitted to put in the testimony of 3. Under Pen. Code, $ 190, which provides that one found guilty of murder in the first de

the members of the jury to the effect that gree shall suffer death or imprisonment for they were not influenced in any manner whatlife, “at the discretion of the jury," the court ever in considering the case or rendering has no power to review the action of the jury

their verdict by anything they read in the in fixing the penalty. 4. On a murder trial, the jury returned into

paper in question. This evidence was incourt for further instructions, in the absence

admissible for such purpose (People v. of the official reporter, but all the other officers Stokes (Cal.) 37 Pac. 208); but, in the view of the court and defendant and his counsel were present. Questions were asked of the

we take of the question, this was immacourt, some of which were answered orally

terial. It is not claimed by defendant that without being reduced to writing, and some the matter published contained anything of by reading instructions previously given. The

an essentially prejudicial character, or that. language of the court was, however, preserved in the bill of exceptions, and it appeared that

the evidence or proceedings were in any man. nothing whatever was said to the jury except ner garbled, unfair, or even incorrectly rewhat in substance and more in detail had been

ported, or in any instance intended or nectold them before in the charge of the court. Hdd, that there was no violation of Pen. Code,

essarily calculated to improperly influence $ 1093, which requires the charge of the court or prejudice the minds of the jury. To the to be in writing or taken down by the official contrary, counsel for defendant in his brief reporter.

refers to the statements in the paper as “pre5. On a murder trial it appeared that the killing was done under the influence of anger

pared by a person apparently fair and imnot caused by any adequate provocation, and partial,” and frankly admits that he does not after the lapse of a sufficient cooling time. base his claim for a reversal upon the ground There was evidence that defendant was to some extent mentally unsound as a result of long

that the jury had imperfect or inaccurate continued abuse of intoxicating liquors, though

reports of the trial; but his contention would not insane to the extent of not knowing what he seem to be, substantially, that the mere fact was doing, or that his act was a crime. Held,

that the jury has been permitted to read that it was not error to instruct that any partial defect of understanding, which might cause de

matter in a newspaper referring to the trial, fendant more readily to give a way to passion which might possibly in some manner inthan a man ordinarily reasonable, cannot be juriously affect their minds, immediately considered for any purpose. Beatty, C. J., dissenting.

raises a presumption of improper influence

which affords ground for a new trial. This, In bank. Appeal from superior court, Mon

we think, is carrying the doctrine beyond terey county; N. A. Dorn, Judge.

a point where it can be sustained on reason William Leary was convicted of murder

or authority. Certainly counsel bas referred in the first degree, and appeals. Affirmed.

us to no case going to such length. The rule W. A. Kearney and C. F. Lacey, for ap- upon the subject is correctly stated, we think, pellant. Atty. Gen. Hart, for the People. in People v. McCoy, 71 Cal. 397, 12 Pac. 272,

one of the cases cited by defendant, where VAN FLEET, J. Defendant was convicted it is said: “The reading of newspapers by of murder in the first degree, and sentenced jurors while engaged in the trial of a cause to be hanged. He appeals from the judg. is an act of inattention to duty which ought ment and an order overruling his motion for to be promptly corrected, and, if the newsa new trial. Several grounds are urged for paper contains any matter in connection with a reversal, which we shall notice in the or- the subject-matter of the trial which would der in which they are presented and dis- be at all likely to influence jarors in the percussed by appellant, though not in the logical formance of duty, the act would constitute sequence in which they arise on the record. ground for a motion for a new trial.” Jf the

1. It is claimed that the jury were guilty matter, in other words, be such as would

1 Rehearing denied

from its character, or the manner or connec- such as to make the impression that there tion in which it is stated, be calculated to was any frequent or considerable drinking by prejudice or injuriously affect the minds any of the jurors at any time, and a number of the jury, a presumption of improper in- of them drank none at all. As one or two of fluence arises, and a new trial will be grant- the jurors expressed it, “the liquor was drank ed, without requiring defendant to show that in little swallows just before going to meals." harm has in fact been done his cause. But There is no pretense on the part of any one the application of this rule does not help that any member of the jury became in the defendant. The several articles complained least intoxicated or affected by the liquor so of are found in the transcript, and we have as to impair his faculties, or in the least intertaken pains, not only to examine them at fere with the proper discharge of his duties; length, but to carefully compare the state- in fact, the evidence shows clearly to the ments of the evidence therein with the eyi- contrary. Under these facts, it is contended dence in the case as presented in the record, that there is disclosed such misconduct upon and find nothing therein calculated to mis- the part of the jury as to render a new trial lead or improperly affect the minds of the necessary. But we cannot agree with this jury. The matter is exceptionally free from contention. The cases of People v. Gray, 61 objectionable features, such as expressions Cal. 164, and People v. Lee Chuck, 78 Cal. of opinion or misleading statements. In fact, 317, 20 Pac. 719, relied upon by defendant, we may add that, if all newspaper reports involved an essentially different state of facts of criminal proceedings were as fair, impar- from those presented here. In both of those tial, and circumspect as would seem to have cases the evidence tended to establish that been the desire here, there would be few the jurors had drank liquor or were under its instances in which verdicts would have to influence after the jury had retired for delibbe set aside by reason of improper influence eration upon their verdict. In the Gray Case, through the press.

while the evidence disclosed that the jury had A second ground urged under this head is drank large quantities of malt and spirituous that the jury were guilty of misconduct in liquors during the antecedent stages of the the use of intoxicating drink. The jury were trial, the reversal is rested upon the ground kept in charge of the sheriff during the trial, that the evidence afforded "strong reason to and not permitted to separate, and, when not suspect that one of the jurors drank so much engaged in the trial or going to and from while deliberating on the verdict as to unfit their meals, they were kept in a room by him for the proper discharge of his duty." In themselves, under the care of an officer, and People v. Lee Chuck, Mr. Justice Works, who not permitted to go about town. It appears wrote the opinion, went further, and held, that during the trial, which lasted some five in effect, that, where it appeared that the or six days, and more particularly, as the jurors drank liquor while deliberating on evidence shows, in the early stages of the their verdict, the question as to whether it trial, including the time before the jury was had any effect on their minds was immaterial, entirely completed, several pocket flasks of as injury would be presumed, and a new trial whisky were introduced into their room by granted. This view of the law, however, was members of the jury, without the knowledge concurred in by but two other justices, the of the court or parties, and some of the jurors chief justice expressly dissenting from it, would now and then take a drink "on the while concurring in the judgment. As the sly,” as expressed by one juror, and “surrep- case was in bank, it is doubtful if the opinion titiously," as put by another; although it does can be regarded as authority on this point. not appear from the showing that there was This is merely by the way, however, as any studied effort upon the part of those who neither of those cases supports the defendhad the liquor to conceal the fact. There is ant's position, the essential element upon some disparity in the statements as to the which they rest being lacking in the facts of number of flasks that were had in the jury this case. Whatever may be the rule elseroom in all; the majority of the jurors putting where, it is now well settled in this state the number they saw at different times at that the mere fact that a member or memnot more than two or three, while one put it bers of the jury have been guilty of using as high as five or six. All who mentioned the strong drink during the trial is not of itself character of the bottles, however, described sufficient ground for a new trial, where the them as balf-pint pocket flasks or bottles; evidence is such as to rebut the presumption and the strong preponderance of the show- of injury flowing therefrom to the defendant. ing, in fact the general consensus, was that In the case of People v. Deegan, 88 Cal. 602, there was little, if any, liquor drank in the 26 Pac. 500, it is held that the fact that a room after the first day or two of the trial, juror drank intoxicating liquors out of court, and none after the jury retired for delibera- and that at the noon recess on the day the tion. One juror said he saw one bottle of verdict was rendered he was for a time under "something red” in the room while the jury its influence, does not vitiate the verdict, if it were deliberating, but this was shown by an- appears that the juror, while sitting or de other juror to have been medicine prescribed liberating as a juror, was sober, intelligent, for him by a doctor, and procured by per- and in a fit condition to understand and delibmission of the court. The evidence is not erate upon the evidence, and render a proper verdict. In the case of People v. Sansome, verdict, were to furnish ground for retrial, 98 Cal. 239, 33 Pac. 202, where it appeared very few verdicts could be sustained, and the that after the submission of the case, when administration of crimlnal justice would be the jury were taken to dinner, two of their rendered difficult indeed. number drank whisky, but not to an extent 2. It is next objected that “the verdict is to intoxicate them, it is said: “It is argued against law and evidence." We do not unthat the admitted indulgence in intoxicating derstand counsel as attacking, under this liquor by two of the jurors constituted mis- head, the sufficiency of the evidence to justiconduct on the part of the jury sufficient to fy the jury in finding the defendant guilty of reverse the judgment. We do not think this murder, but the contention seems to be that position can be maintained. If the two jurors the facts of the case were not such as to warwho drank a little liquor were not affected rant the infliction of the death penalty. We by it,-and, in view of the conflicting affi- confess to some cloudiness of apprehension of davits and the action of the court below, it this point, and are at a loss to understand exmust be assumed they were not,-then it actly upon what ground counsel expects us to would seem that neither law nor sound reason review the action of the jury in this respect. would require the judgment to be reversed The law submits to the jury, under the inon this ground.” See, also, People v. Wil- struction of the court, the question as to the liams, 24 Cal. 31; People v. Brannigan, 21 degree of murder, if any, of which the deCal. 339; People v. Dennis, 39 Cal. 625; Peo- fendant is guilty in any instance; and secple v. Symonds, 22 Cal. 319; People v. Bem- tion 190 of the Penal Code further provides merly, 98 Cal. 299, 33 Pac. 263.

that one found guilty of murder in the first But it is contended by defendant that degree "shall suffer death or confinement in "smuggling" the liquor into the jury room the state prison for life, at the discretion of without the knowledge of the court or parties the jury." Whatever may have been the acevinces such a total misconception by the tuating consideration in the minds of the leg. jurors of the importance of their duties and islature in enacting section 190,-whether beobligations as of itself to cast grave suspicion cause they believed there are instances of on the verdict, and warrant a new trial. The murder falling within the definition of muract of carrying liquor to the jury room clan- der of the first degree, which, because characdestinely is undoubtedly a very reprehensible terized by a less degree of atrocity or other dereliction of duty on the part of a juror, if mitigating circumstances, call for a milder done willfully or wantonly, and, upon coming punishment than that of death, or whether to the knowledge of the trial court, should their reason was something else,-the fact rebe severely punished, and cause the verdict mains that they have confided the power to to be jealously scrutinized. But that it should affix the punishment within these two alternanecessarily vitiate the verdict we cannot con- tives to the absolute discretion of the jury, cede. It might well happen that investigation with no power reserved to the court to review in a given instance would disclose that the their action in that respect. liquor had been procured innocently or under 3. It is contended that the court committed a supposed or actual necessity, with no intent error in giving the jury certain instructions to drink it for the mere love of it. It is a orally, which were neither reduced to writing matter of common knowledge that many men nor taken down by the shorthand reporter. require daily a certain quantity of artificial The facts with reference to this point are restimulant to maintain their physical, if not cited in the bill of exceptions, from which it mental, equilibrium,-some by reason of phys- appears that after the jury had retired for ical ailment, others because of long years of deliberation they returned into court for furhabit, -and to be deprived of it is to be un- ther instruction. The defendant and his counfitted for their usual functions to perhaps as sel, and all the officers of the court, except the great a degree as another might through over- official reporter, were present when the folindulgence. Such a man upon a jury might, lowing proceedings took place: “The court if locked up for days, feel, without thought said to the jury: 'Have you agreed on a verof impropriety, that it was necessary and dict?' The foreman answered: “We have justifiable for him to take a small quantity | not.' The foreman then handed to the court of liquor to his jury room. Such an instance, the form of verdict theretofore given to the juin no way affecting the juror's capacity, ry to use if they found him guilty of murder should not necessarily set aside a verdict free in the first degree, and fixed his punishment from all other legal exception. After all, the for life, and said to the court: 'Can we bring act, if wrongfully done, is but an act of mis- in that verdict?' The court orally answered, conduct, differing only in degree from any without reducing the same to writing: 'Yes; other, and the pertinent question is whether if it is your verdict. If you agree to that, it it has resulted in injury to the defendant. can be returned.' Some juryman then asked: In this instance that question was involved 'Can we bring in that verdict on the same evin the ruling of the lower court denying the idence as the other one? The court made no motion for new trial, and we cannot upon the answer to that question, except by reading facts say that it was wrong. If every relaxa- from the written instructions as follows: tion from the strict line of duty on the part 'Should the verdict of the jury convict the deof jurors, irrespective of its effect upon their fendant of murder in the first degree, the law permits the jury to award the penalty. This point made with the most earnest and zealou3 may be death or imprisonment for life in the scrutiny, and we are unable after such examstate's prison. Some other questions were ination to discover any error affecting the asked by the jury relating to the grades of the substantial rights of the defendant or waroffense, and the court said, orally, without re- ranting a reversal of the case. The judgment ducing it to writing: 'I will read the instruc- and order are therefore affirmed. tions as to grades of the offense;' and thereupon read to the jury the written instructions

We concur: MCFARLAND, J.; HARRI. theretofore read to them, defining the grade

SON, J.; DE HAVEN, J.; GAROUTTE, J. of the offense, but gave no oral instructions. One of the jurymen then asked this question: 'Can we bring any one of the six verdicts

BEATTY, C. J. I dissent. As to the irgiven us we agree on?' The court answered,

regularities and misconduct of the jury, they 'Yes'; which answer was not reduced to writ.

were probably not sufficient to justify the suing. The court then asked the defendant if

perior court in granting a new trial. What he had any suggestions to make or desired

drinking of intoxicating liquors was done ocanything further, and his counsel answered:

curred during the various recesses and ad*No; nothing.' None of the questions asked

journments of the court prior to the submis

sion of the cause. by the jurors were reduced to writing. The

It was slight in amount, jury then retired for further deliberation."

and seems to have produced no perceptible efConceding that this amounted to an oral in

fect. The worst feature of it was the secrecy struction, we cannot perceive wherein the de

with which it was done, the efforts at confendant could be in any wise injured by what

cealment manifesting a consciousness on the took place. The language of the court has

part of the offending jurors that they were vibeen preserved, and it appears that nothing

olating their duty. But since it does not apwhatever was said to the jury except what in

pear that any juror was intoxicated or sensi. substance, and more in detail, had been told bly affected by what he had taken during the them before in the charge of the court. They

trial, or that there was any drinking after the were instructed upon no new point, and what

cause had been submitted to the jury, the was said in no way qualified what had been court was justified in holding that the defendtheretofore given them. It was held in Peo- ant had not been prejudiced. The reading of ple v. Cox, 76 Cal. 281, 18 Pac. 332, that, al- the newspaper reports of the trial was a viothough it is error to charge a jury in a crim

lation of the admonition which the judge is inal case orally, yet, where the record shows required to give to the jury at each recess or that the language used, which was not taken adjournment of the court, not only by the ofby the reporter, merely led up to an instruction fending jurors but by the officer in charge. which was properly taken down, and did not As to this irregularity, however, as well as affect nor in any way qualify the charge which the other, it may be safely concluded that the was taken down, it is not ground for reversal. defendant was not prejudiced because the reThere is no distinction in principle between ports so read consisted merely of a fair and the effect of what was done in that case and truthful statement of the evidence given in what occurred here. If any more absolute

court and of the line of defense. It was, neyrule was intended to be announced in People ertheless, serious misconduct on the part of V. Hersey, 53 Cal. 574, it is to be taken as the jurors to disregard the admonition of the modified by what is held in the Cox Case. In court, and it is no merit in them that what this connection we have carefully examined they read happened to be of a character which the complaint made as to several instructions the court can hold to have been harmless. If, of the court, and are unable to discover error as well might have happened, it had been of in any of them. The criticism in appellant's a different character, their misconduct would closing brief as to the effect of certain in- have necessitated a new trial. structions is not justified. The charge is to Neither do I think that the judgment or orbe considered as a whole, and, so regarded, der appealed from should be reversed bewe do not think it open to the construction cause of the oral instructions to the jury put upon it. The charge seems to cover the given by the court in the absence of the of. whole case very fairly and correctly, and in a ficial reporter. But my views upon that manner to leave no misapprehension in the point differ radically from those stated in minds of the jury arising from any particular the opinion of the court, and because I think or isolated part.

the decision, as it stands, will lead to mis4. A considerable number of other points chievous consequences, I feel bound to state are urged in the able and ingenious brief of the reasons for my dissent. It is, to my appellant, based upon objections to the mode mind, clear from the record in this case, and of securing the jury, alleged improper conduct that part of it copied into the opinion of the of the prosecuting attorney, and rulings of the court, that the trial judge did orally instruct court on questions of evidence, and some oth- the jury in the absence of the official reers. To discuss each one of these in detail porter. The jury came into court, and by would unnecessarily extend this opinion and several questions sought information for serve no useful purpose. Having in view the their guidance in finding a verdict. These gravity of the case, we have examined each questions were answered, and the answers

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