People v. Van Vleck

I concur in the judgment. The Supreme Court has refused to disapprove of similar instructions. (People v. Miller, 177 Cal. 404, 409 [ 170 Pac. 817 ], citing People v. Valencia, 32 Cal. App. 631 [ 163 Pac. 865 ].) Moreover, the court did give the usual and appropriate instruction to the effect that if any juror should entertain a reasonable doubt of the guilt of the defendant, it is the duty of such juror not to vote for a verdict of guilty, nor to be influenced in such voting by the single reason that a majority of the jurors are in favor of a verdict of guilty.

But, while the questioned instruction is not legally erroneous, I think that there is no small degree of absurdity in the giving of such instruction, which undertakes to tell jurors how they should regulate their expressions of opinion to each other in the jury-room. The principles out of which such an instruction grows would perhaps better be inculcated in the juror during his school days, or be developed in the characters of his ancestors.

Defendant was convicted of a violation of section 288 of the Penal Code, and upon this appeal raises one point only: That the trial court erred in giving to the jury the following instruction:

Appellant contends that a fair reading of this instruction is susceptible of no other interpretation than that a defendant is to be convicted by the will of a majority of the jurors, and that this will of the majority must be followed by the minority of the jury, and that whenever such a situation develops, it is the duty of the minority to give in to the view of the majority and render a verdict accordingly. Further, that the words “and attitudes” in the second sentence of the second paragraph of the instruction imply to a juror that he should not have any opinion about the case until the majority opinion of the jury has been secured and then that the individual juror who may not have such opinion is in duty bound to agree with the majority.

We believe that there was nothing in the instruction given whereby the jury could infer that the trial judge believed the defendant to be guilty of the crime charged. No intimation was given as to how the court regarded the evidence. Apparently the…