tant, and do not call for a reversal. The Judgment and order appealed from are affirmed.

(105 Cal. 486)

PEOPLE v. LEARY. (No. 21,123.)1 (Supreme Court of California. Jan. 5, 1895:) CRIMINAL LAW-MISCONDUCT OF JURY-ORAL INSTRUCTIONS-PARTIAL INSANITY.

1. The reading by a jury, during a murder trial, of newspaper accounts correctly reporting the proceedings, and containing nothing of an unfair or prejudicial character, is not such misconduct as will require the granting of a new trial.

2. The fact that several half-pint flasks filled with intoxicating liquor were introduced into the jury room by jurors during the early stages of the trial, and that some of them drank therefrom, is nct such misconduct as necessitates a new trial, where none of the jurors were affected by the liquor, and none was drank during the deliberations of the jury.

3. Under Pen. Code, § 190, which provides that one found guilty of murder in the first degree shall suffer death or imprisonment for life, "at the discretion of the jury," the court has no power to review the action of the jury in fixing the penalty.

4. On a murder trial, the jury returned into court for further instructions, in the absence of the official reporter, but all the other officers of the court and defendant and his counsel were present. Questions were asked of the court, some of which were answered orally without being reduced to writing, and some by reading instructions previously given. The language of the court was, however, preserved in the bill of exceptions, and it appeared that nothing whatever was said to the jury except what in substance and more in detail had been told them before in the charge of the court. Held, that there was no violation of Pen. Code, § 1093, which requires the charge of the court to be in writing or taken down by the official reporter.

5. On a murder trial it appeared that the killing was done under the influence of anger not caused by any adequate provocation, and after the lapse of a sufficient cooling time. There was evidence that defendant was to some extent mentally unsound as a result of longcontinued abuse of intoxicating liquors, though not insane to the extent of not knowing what he was doing, or that his act was a crime. Held, that it was not error to instruct that any partial defect of understanding, which might cause defendant more readily to give away to passion than a man ordinarily reasonable, cannot be considered for any purpose. Beatty, C. J., dissenting.

In bank. Appeal from superior court, Monterey county; N. A. Dorn, Judge.

William Leary was convicted of murder in the first degree, and appeals. Affirmed. W. A. Kearney and C. F. Lacey, for appellant. Atty. Gen. Hart, for the People.

VAN FLEET, J. Defendant was convicted of murder in the first degree, and sentenced to be hanged. He appeals from the judgment and an order overruling his motion for a new trial. Several grounds are urged for a reversal, which we shall notice in the order in which they are presented and discussed by appellant, though not in the logical sequence in which they arise on the record. 1. It is claimed that the jury were guilty 1 Rehearing denied

of such misconduct as to entitle defendant to a new trial. The first assignment under this head is that the jury read published accounts of the trial in a newspaper, to the prejudice of defendant's rights. It appeared on behalf of defendant on the motion that the Salinas Daily Journal, published at Salinas City, where the trial was had, printed, from day to day, a synopsis or résumé of the evidence in the case, and that on various occasions during the progress of the trial, but prior to their retiring for deliberation, copies of the paper fell into the hands of the jury, and were read by some of them, including the matter therein relating to the trial; and that on one occasion one of the jurors made a suggestion that "they got that mighty straight," or some such remark,-referring to an account of the trial in the paper. In rebuttal of this showing, the prosecution were permitted to put in the testimony of the members of the jury to the effect that they were not influenced in any manner whatever in considering the case or rendering their verdict by anything they read in the paper in question. This evidence was inadmissible for such purpose (People v. Stokes [Cal.] 37 Pac. 208); but, in the view we take of the question, this was immaterial. It is not claimed by defendant that the matter published contained anything of an essentially prejudicial character, or that the evidence or proceedings were in any manner garbled, unfair, or even incorrectly reported, or in any instance intended or necessarily calculated to improperly influence or prejudice the minds of the jury. To the contrary, counsel for defendant in his brief refers to the statements in the paper as "prepared by a person apparently fair and impartial," and frankly admits that he does not base his claim for a reversal upon the ground that the jury had imperfect or inaccurate reports of the trial; but his contention would seem to be, substantially, that the mere fact that the jury has been permitted to read matter in a newspaper referring to the trial, which might possibly in some manner injuriously affect their minds, immediately raises a presumption of improper influence which affords ground for a new trial. This, we think, is carrying the doctrine beyond a point where it can be sustained on reason or authority. Certainly counsel has referred us to no case going to such length. The rule upon the subject is correctly stated, we think, in People v. McCoy, 71 Cal. 397, 12 Pac. 272, one of the cases cited by defendant, where it is said: "The reading of newspapers by jurors while engaged in the trial of a cause is an act of inattention to duty which ought to be promptly corrected, and, if the newspaper contains any matter in connection with the subject-matter of the trial which would be at all likely to influence jurors in the performance of duty, the act would constitute ground for a motion for a new trial." If the matter, in other words, be such as would

from its character, or the manner or connection in which it is stated, be calculated to prejudice or injuriously affect the minds of the jury, a presumption of improper influence arises, and a new trial will be granted, without requiring defendant to show that harm has in fact been done his cause. But the application of this rule does not help defendant. The several articles complained of are found in the transcript, and we have taken pains, not only to examine them at length, but to carefully compare the statements of the evidence therein with the eyidence in the case as presented in the record, and find nothing therein calculated to mislead or improperly affect the minds of the jury. The matter is exceptionally free from objectionable features, such as expressions of opinion or misleading statements. In fact, we may add that, if all newspaper reports of criminal proceedings were as fair, impartial, and circumspect as would seem to have been the desire here, there would be few instances in which verdicts would have to be set aside by reason of improper influence through the press.

A second ground urged under this head is that the jury were guilty of misconduct in the use of intoxicating drink. The jury were kept in charge of the sheriff during the trial, and not permitted to separate, and, when not engaged in the trial or going to and from their meals, they were kept in a room by themselves, under the care of an officer, and not permitted to go about town. It appears that during the trial, which lasted some five or six days, and more particularly, as the evidence shows, in the early stages of the trial, including the time before the jury was entirely completed, several pocket flasks of whisky were introduced into their room by members of the jury, without the knowledge of the court or parties, and some of the jurors would now and then take a drink "on the sly," as expressed by one juror, and "surreptitiously," as put by another; although it does not appear from the showing that there was any studied effort upon the part of those who had the liquor to conceal the fact. There is some disparity in the statements as to the number of flasks that were had in the jury room in all; the majority of the jurors putting the number they saw at different times at not more than two or three, while one put it as high as five or six. All who mentioned the character of the bottles, however, described them as half-pint pocket flasks or bottles; and the strong preponderance of the showing, in fact the general consensus, was that there was little, if any, liquor drank in the room after the first day or two of the trial, and none after the jury retired for deliberation. One juror said he saw one bottle of "something red" in the room while the jury were deliberating, but this was shown by another juror to have been medicine prescribed for him by a doctor, and procured by permission of the court. The evidence is not

such as to make the impression that there was any frequent or considerable drinking by any of the jurors at any time, and a number of them drank none at all. As one or two of the jurors expressed it, "the liquor was drank in little swallows just before going to meals." There is no pretense on the part of any one that any member of the jury became in the least intoxicated or affected by the liquor so as to impair his faculties, or in the least interfere with the proper discharge of his duties; in fact, the evidence shows clearly to the contrary. Under these facts, it is contended that there is disclosed such misconduct upon the part of the jury as to render a new trial necessary. But we cannot agree with this contention. The cases of People v. Gray, 61 Cal. 164, and People v. Lee Chuck, 78 Cal. 317, 20 Pac. 719, relied upon by defendant, involved an essentially different state of facts from those presented here. In both of those cases the evidence tended to establish that the jurors had drank liquor or were under its influence after the jury had retired for deliberation upon their verdict. In the Gray Case, while the evidence disclosed that the jury had drank large quantities of malt and spirituous liquors during the antecedent stages of the trial, the reversal is rested upon the ground that the evidence afforded "strong reason to suspect that one of the jurors drank so much while deliberating on the verdict as to unfit him for the proper discharge of his duty." In People v. Lee Chuck, Mr. Justice Works, who wrote the opinion, went further, and held, in effect, that, where it appeared that the jurors drank liquor while deliberating on their verdict, the question as to whether it had any effect on their minds was immaterial, as injury would be presumed, and a new trial granted. This view of the law, however, was concurred in by but two other justices, the chief justice expressly dissenting from it, while concurring in the judgment. As the case was in bank, it is doubtful if the opinion can be regarded as authority on this point. This is merely by the way, however, as neither of those cases supports the defendant's position, the essential element upon which they rest being lacking in the facts of this case. Whatever may be the rule elsewhere, it is now well settled in this state that the mere fact that a member or members of the jury have been guilty of using strong drink during the trial is not of itself sufficient ground for a new trial, where the evidence is such as to rebut the presumption of injury flowing therefrom to the defendant. In the case of People v. Deegan, 88 Cal. 602, 26 Pac. 500, it is held that the fact that a juror drank intoxicating liquors out of court, and that at the noon recess on the day the verdict was rendered he was for a time under its influence, does not vitiate the verdict, if it appears that the juror, while sitting or deliberating as a juror, was sober, intelligent, and in a fit condition to understand and deliberate upon the evidence, and render a proper

verdict. In the case of People v. Sansome, 98 Cal. 239, 33 Pac. 202, where it appeared that after the submission of the case, when the jury were taken to dinner, two of their number drank whisky, but not to an extent to intoxicate them, it is said: "It is argued that the admitted indulgence in intoxicating liquor by two of the jurors constituted misconduct on the part of the jury sufficient to reverse the judgment. We do not think this position can be maintained. If the two jurors who drank a little liquor were not affected by it, and, in view of the conflicting affidavits and the action of the court below, it must be assumed they were not, then it would seem that neither law nor sound reason would require the judgment to be reversed on this ground." See, also, People v. Williams, 24 Cal. 31; People v. Brannigan, 21 Cal. 339; People v. Dennis, 39 Cal. 625; People v. Symonds, 22 Cal. 349; People v. Bemmerly, 98 Cal. 299, 33 Pac. 263.

But it is contended by defendant that "smuggling" the liquor into the jury room without the knowledge of the court or parties evinces such a total misconception by the jurors of the importance of their duties and obligations as of itself to cast grave suspicion on the verdict, and warrant a new trial. The act of carrying liquor to the jury room clandestinely is undoubtedly a very reprehensible dereliction of duty on the part of a juror, if done willfully or wantonly, and, upon coming to the knowledge of the trial court, should be severely punished, and cause the verdict to be jealously scrutinized. But that it should necessarily vitiate the verdict we cannot concede. It might well happen that investigation in a given instance would disclose that the liquor had been procured innocently or under a supposed or actual necessity, with no intent to drink it for the mere love of it. It is a matter of common knowledge that many men require daily a certain quantity of artificial stimulant to maintain their physical, if not mental, equilibrium,-some by reason of physical ailment, others because of long years of habit,-and to be deprived of it is to be unfitted for their usual functions to perhaps as great a degree as another might through overindulgence. Such a man upon a jury might, if locked up for days, feel, without thought of impropriety, that it was necessary and justifiable for him to take a small quantity of liquor to his jury room. Such an instance, in no way affecting the juror's capacity, should not necessarily set aside a verdict free from all other legal exception. After all, the act, if wrongfully done, is but an act of misconduct, differing only in degree from any other, and the pertinent question is whether it has resulted in injury to the defendant. In this instance that question was involved in the ruling of the lower court denying the motion for new trial, and we cannot upon the facts say that it was wrong. If every relaxation from the strict line of duty on the part of jurors, irrespective of its effect upon their

verdict, were to furnish ground for retrial, very few verdicts could be sustained, and the administration of criminal justice would be rendered difficult indeed.

2. It is next objected that "the verdict is against law and evidence." We do not understand counsel as attacking, under this head, the sufficiency of the evidence to justify the jury in finding the defendant guilty of murder, but the contention seems to be that the facts of the case were not such as to warrant the infliction of the death penalty. We confess to some cloudiness of apprehension of this point, and are at a loss to understand exactly upon what ground counsel expects us to review the action of the jury in this respect. The law submits to the jury, under the instruction of the court, the question as to the degree of murder, if any, of which the defendant is guilty in any instance; and section 190 of the Penal Code further provides that one found guilty of murder in the first degree "shall suffer death or confinement in the state prison for life, at the discretion of the jury." Whatever may have been the actuating consideration in the minds of the legislature in enacting section 190,-whether because they believed there are instances of murder falling within the definition of murder of the first degree, which, because characterized by a less degree of atrocity or other mitigating circumstances, call for a milder punishment than that of death, or whether their reason was something else,-the fact remains that they have confided the power to affix the punishment within these two alternatives to the absolute discretion of the jury, with no power reserved to the court to review their action in that respect.

3. It is contended that the court committed error in giving the jury certain instructions orally, which were neither reduced to writing nor taken down by the shorthand reporter. The facts with reference to this point are recited in the bill of exceptions, from which it appears that after the jury had retired for deliberation they returned into court for further instruction. The defendant and his counsel, and all the officers of the court, except the official reporter, were present when the following proceedings took place: "The court said to the jury: 'Have you agreed on a verdict? The foreman answered: 'We have not.' The foreman then handed to the court the form of verdict theretofore given to the jury to use if they found him guilty of murder in the first degree, and fixed his punishment for life, and said to the court: 'Can we bring in that verdict? The court orally answered, without reducing the same to writing: 'Yes; if it is your verdict. If you agree to that, it can be returned.' Some juryman then asked: 'Can we bring in that verdict on the same evidence as the other one?' The court made no answer to that question, except by reading from the written instructions as follows: 'Should the verdict of the jury convict the defendant of murder in the first degree, the law

point made with the most earnest and zealouз scrutiny, and we are unable after such examination to discover any error affecting the substantial rights of the defendant or warranting a reversal of the case. The judgment and order are therefore affirmed.

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 given us we agree on? The court answered, 'Yes'; which answer was not reduced to writing. The court then asked the defendant if he had any suggestions to make or desired anything further, and his counsel answered: 'No; nothing.' None of the questions asked by the jurors were reduced to writing. The jury then retired for further deliberation." Conceding that this amounted to an oral instruction, we cannot perceive wherein the defendant could be in any wise injured by what took place. The language of the court has been preserved, and it appears that nothing whatever was said to the jury except what in substance, and more in detail, had been told them before in the charge of the court. They were instructed upon no new point, and what was said in no way qualified what had been theretofore given them. It was held in People v. Cox, 76 Cal. 281, 18 Pac. 332, that, although it is error to charge a jury in a criminal case orally, yet, where the record shows that the language used, which was not taken by the reporter, merely led up to an instruction which was properly taken down, and did not affect nor in any way qualify the charge which was taken down, it is not ground for reversal. There is no distinction in principle between the effect of what was done in that case and what occurred here. If any more absolute rule was intended to be announced in People v. Hersey, 53 Cal. 574, it is to be taken as modified by what is held in the Cox Case. In this connection we have carefully examined the complaint made as to several instructions of the court, and are unable to discover error in any of them. The criticism in appellant's closing brief as to the effect of certain instructions is not justified. The charge is to be considered as a whole, and, so regarded, we do not think it open to the construction put upon it. The charge seems to cover the whole case very fairly and correctly, and in a manner to leave no misapprehension in the minds of the jury arising from any particular or isolated part.

4. A considerable number of other points are urged in the able and ingenious brief of appellant, based upon objections to the mode of securing the jury, alleged improper conduct of the prosecuting attorney, and rulings of the court on questions of evidence, and some others. To discuss each one of these in detail would unnecessarily extend this opinion and serve no useful purpose. Having in view the gravity of the case, we have examined each

BEATTY, C. J. I dissent. As to the irregularities and misconduct of the jury, they were probably not sufficient to justify the superior court in granting a new trial. What drinking of intoxicating liquors was done occurred during the various recesses and adjournments of the court prior to the submission of the cause. It was slight in amount, and seems to have produced no perceptible effect. The worst feature of it was the secrecy with which it was done, the efforts at concealment manifesting a consciousness on the part of the offending jurors that they were violating their duty. But since it does not appear that any juror was intoxicated or sensibly affected by what he had taken during the trial, or that there was any drinking after the cause had been submitted to the jury, the court was justified in holding that the defendant had not been prejudiced. The reading of the newspaper reports of the trial was a violation of the admonition which the judge is required to give to the jury at each recess or adjournment of the court, not only by the offending jurors but by the officer in charge. As to this irregularity, however, as well as the other, it may be safely concluded that the defendant was not prejudiced because the reports so read consisted merely of a fair and truthful statement of the evidence given in court and of the line of defense. It was, nevertheless, serious misconduct on the part of the jurors to disregard the admonition of the court, and it is no merit in them that what they read happened to be of a character which the court can hold to have been harmless. If, as well might have happened, it had been of a different character, their misconduct would have necessitated a new trial.

Neither do I think that the judgment or order appealed from should be reversed because of the oral instructions to the jury given by the court in the absence of the official reporter. But my views upon that point differ radically from those stated in the opinion of the court, and because I think the decision, as it stands, will lead to mischievous consequences, I feel bound to state the reasons for my dissent. It is, to my mind, clear from the record in this case, and that part of it copied into the opinion of the court, that the trial judge did orally instruct the jury in the absence of the official reporter. The jury came into court, and by several questions sought information for their guidance in finding a verdict. These questions were answered, and the answers