Leary

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 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 *490 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…

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 *499 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 thise irregularity, however, as well as the other, it may be safely concluded that the defendant…