Daily Los Angeles herald., 1880-10-21

1truCtlUuo Wof9 80 UKluS III y veE-
dict one single way
Mr.. Edwards defendants
except to the couysrsation had be-
tween the court and the Juror, 1t
being oral and not In writing, on
tho ground that the Court has no
authority to have any communities
ton with the jurors except upon
instructions.
Mr.. Grsdy-That's all right; the
Court 0int giving no Instructions.
Mr.. Edwards-I only objected to
the conversation.
The Court-Mr. Reporter, you
have taken down all 1 have said In
you notes?
The Reporter-Yes sir.
The Court (reading from paper)-|
The Court will instruct the Jury
that they have the discretion to
acquit or convict from the evid-
ence, and that the words at the
same game, as used in the last in
do not change the
character of the game as charged
In the Information; that the same
game can be played at the same
time at taDo separate tables and
yet constitute the same game.
A juror (Mr. Marks)-That is
clear; understand that.
Mr.. Edwards-Tbe defendants
except to the last instruction given
by the Court.
The jury then retired for deliber.
alton, and upon being returned into
Court soon thereafter the following
proceedings were had:
: The Clerk (after having called
the list Of jurors, and all respond
ing to their names)-Gentlemen,
have you agreed upon verdict?
The foreman-We have. (Fhe
verdict was thereupon handed to
the Court, by him read and passed
to the Clerk, who recorded the
same upon the minutes of the
Court.)
The Clerk (readipg from the min
utes)-'We, the jury, find the
three defendants guilty as charged.
]. M. Fucker, foreman So say
you all? (Answers in the affirma-
tive.)
At the request of defendants at.
torney, the jury was polled, and
each Of the Jurors stated that the
foregoing was his verdict"
Without any comment upon the
confusion which pervades the scene
thus photographed, produced in
Fart at least by numerous INTERRUPT
tions and persistent augmentation
mot to mention the kindly
efforts of counsel to relieve the
Judge of the labor of instructing
the jury by discharging that judi
cial function for HINT clearly APP
pears from the colloquy above re-
ported, that the questions of the
jurors had reference te the instruc.
ton already given, and recited
abOve-in itself clearly expressed
and easily understood-and would
have been fully answered by its
substantial repetition. The jurors
were entitled to confirmation or
else modification of tbs legal
proposition contained in IT, t in
struction; they were not sl pplled
with either, in unambiguous terms,
but were furnished instead with a
finding of fact. The laDgue ge en-
ployed by some of the Jurors also
conveyed very plain intimation
that they had already reached the
conclusion, upon the evidence, that
defendants when arrested were sew
orally conducting separate games.
The stateme OF juror y
"but there was two games of the
same kind" was i'm mediately fol-
lowed by the remark Of the Court,
"Fhere could be two dealers and
only one game" This remark-as
we'ras the previous declaration of
~ 1rt, 1.-THE same game can be
+ don, ] On at two tables" and "the
same game can be played at the
same time at two separate tables
and yet constitute the same game"
could only have been under
stood as statement of fact, and
was the refore violative OF the Con-
stitution. (Art. W., Sec. 10 y
It was more than an alb
stract speculation based q priori
upon the .illimitable possibilities.
Tho eAlgencies of the case did not
demand of the Court or jury to
hazard conjecture that amongst
the innumerable modes by which
men, civilized and savage, indulge
their passion for gambling, there
might be game of chance con-
Quoted contemporaneously by tUo
dealers. Gambling in the ION.
crete was before the Court and
jury-the spirit of gambling as
materealized in "Tan."
The suggestion that the court
below only intended to say that
two dealers and two tables did not
conclusively establish more than
one game, and the jury were still
at liberty 10 find but one game, will
not remove the vice of the charge
And this for at least two reasons;
First; the question Is not what the
court intended to say, but what the
court said, and second; inasmuch
as the evidence tended to prove
that defendants were severally en-
gagged in distinct transactions,
while there was no evidence tend
ing 10 prove that the two transac-
tons constituted one game, the in
struction-if it had been what it is
suggested 1t was intended to be-
would have been inapplicable to
the facts, and liable to the ohjec.
ton that 1t might mislead the jury.
No expert had sworn that there
could be two dealers in one game
OF Tan, and If an expert had 30
sworn, the court would not have
been Justified in assuming that the
witness testified to the truth. Nor
was the game fully explained by
the witnesses, or its peculiarities
agreed upon. Unless therefore the
court could take judicial notice OF
its constituent elements, and was
also authorized to inform the Jury
as to what they were, it was erro |
TO charge the jury that there might
be one game OF tan conducted by |
two dealers at two tables and at |
The same time.
Judgment and order reversed |
and cause remanded for a new
rial. MCKINsTRY, J.
Wa pOrour. MnK pr