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[IN BANK.]

PEOPLE 2. MURRAY.

[94 CALIFORNIA, 212.]

NEW TRIAL - EVIDENCE ON MOTION FOR. When, on the hearing of a motion for a new trial in a criminal case, evidence is introduced showing that the jury had read newspaper articles during the trial, claimed to have a tendency to influence their verdict, the rebutting evidence of the jurors themselves, that the reading of such articles did not influence, nor tend to influence, them in any way prejudicial to the accused in rendering their verdict, is admissible.

Hunsaker, Britt, and Goodrich, for the appellant.

W. H. H. Hart, attoney-general, and W. H. Layson, deputy attorney-general, for the respondent.

FOOTE, C. The defendant was tried and convicted of the crime of murder. He appealed to this court from the judgment rendered in the premises, and from an order refusing a new trial. The judgment was affirmed, but the order denying a new trial was reversed. The case is reported in 85 Cal. 350361, where it was said, among other things: "The order deny. ing the defendant a new trial is reversed, with instructions to the court below to vacate the same and rehear the motion, allowing the defendant to introduce the evidence excluded on the former hearing, and the people to rebut the same by other evidence, if it is desired."

Accordingly, the motion for a new trial was again heard, and the evidence, which showed that the jury had read newspaper articles during the trial, which it is claimed had a tendency to influence their verdict, was allowed to be introduced in the defendant's behalf.

The people then showed, over the objections of the defendant, by the jurors themselves, that the reading of those articles had not tended to or had influenced them in any way prejudicial to the defendant in rendering their verdict.

The admission of this rebutting evidence is urged by the defendant as prejudicial error. And upon the determination of that question the whole matter turns.

In the former decision this court said: "An attempt on the part of any person, whether through the medium of a newspaper or otherwise, to influence a jury by any improper means to bring in a verdict against a defendant is a palpable violation of his right to a fair and impartial trial, and if it appears to the court to have had such an effect, a new trial should be

AM. ST. REP., VOL. XXVIII. -8

granted. There can be no doubt as to the intention or palpable effect of the articles above set out. It was the clear intention of the publishers of this paper to intimidate the jury, and by abusing other jurors who had returned verdicts of acquittal, to induce them to find the defendant guilty, and impose upon him the extreme penalty of the law. Whether they had that effect upon the jury or not was a question that the defendant had a right to have determined by the court on his motion for a new trial. The defendant should have been allowed to make the proof, with leave to the people to show, if possible, that these particular articles were not read by the jury, or if they were, that they were not in any way influenced by them: People v. Goldenson, 76 Cal. 328, 353."

The evidence of the jurors was in support of their verdict, and it is plainly evident the appellate court intended that the trial court should permit the defendant to introduce the evidence he did on the hearing of the motion, and that the people might show, if they could, either that the prejudicial articles in the newspaper were not read by the jury, or that, if they had read them, that "they were not in any way influenced by them."

In obedience to this command of the superior tribunal, the court below allowed the people to rebut what might be a presumption that the jury were influenced by the articles which they had read, and to show by their evidence, if it could be done, that the jury had not been thus influenced, and thus sustain their verdict.

This view of the matter is in accordance with the case of People v. Goldenson, 76 Cal. 352, and cases cited, where it is said: "One of the grounds upon which defendant asked for a new trial was, that the jury had been guilty of misconduct, by which a fair consideration of the case had been prevented. The substance of the misconduct charged consisted in the jurors having disobeyed the admonition of the court about reading newspaper articles during the trial, which reflected on the defendant. All of the jurors filed affidavits denying fully the charges of misconduct preferred, and insisting that no admonition of the court had been disobeyed, and that no newspaper articles or anything else, save the evidence and the charge, influenced them in finding their verdict. These affidavits were allowable, and are conclusive upon the point made: People v. Hunt, 59 Cal. 430; People v. Dye, 62 Cal. 523."

In thus following the views of the appellate court, we per

ceive no prejudicial error on the part of the court below, and advise that the order denying a new trial be affirmed.

BELCHER, C., and VANCLIEF, C., concurred.

The COURT. The order denying a new trial is affirmed.

NEW TRIAL AFFIDAVITS OF JURORS. - Affidavits of jurors are admissible to support their verdict: Tenny v. Evans, 13 N. H. 462; 40 Am. Dec. 166, and note; McDade v. State, 27 Tex. App. 641; 11 Am. St. Rep. 216; Grottkau v. State, 70 Wis. 470. Affidavits of jurors are admissible to deny alleged misconduct on their part, when urged as a ground for new trial, and are con clusive as to whether newspaper articles were read by them which influenced their verdict: People v. Goldenson, 76 Cal. 328,

[IN BANK.]

SOUTHERN CALIFORNIA LUMBER COMPANY v. OCEAN BEACH HOTEL COMPANY.

[94 CALIFORNIA, 217.]

JUDICIAL SALES-FORECLOSUSE OF LIEN-SAFE AFTER RETURN DAY. The only process provided in California for the enforcement of a judg. ment foreclosing a lien upon specific property is that prescribed by sec tion 684 of the Code of Civil Procedure, requiring that such judgment be enforced by a "writ" reciting the judgment and directing a sale of the property. Such "writ" is not an "execution" so as to make it return. able within a certain time, as in the case of executions, and a sale under such "writ" may be made after the return day thereof.

JUDICIAL SALES AFTER RETURN DAY.—Where a judgment is not a lien upon property, but a levy under execution is made prior to or upon the return day of the writ, a sale of the property levied upon may lawfully be made after the return day. If a judgment is a lien upon prop erty, or designates the property to be sold, no levy is necessary to a sale, and the property may be lawfully sold after the return day of the writ. JUDICIAL SALES-SETTING ASIDE SALE MADE AFTER RETURN DAY. Where a judgment is a lien upon property, the time within which it may be sold is directory and within the control of the court; and in the absence of proof that injury has resulted from delay in making the sale, it should not be set aside merely because it was not made before the return day named in the order of sale.

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Wellborn, Stevens, and Wellborn, and F. W. Ewing, for the appellant.

Works, Gibson, and Titus, for the respondent.

HARRISON, J. On December 1, 1888, the plaintiff obtained a judgment against the defendant, foreclosing a material-man's lien upon a block of land in the city of San Diego, and direct

ing a sale of the property, and the application of the proceeds to the payment of the amounts adjudged to be due.

On October 8, 1889, a writ for the enforcement of this judg ment was issued and placed in the hands of the sheriff of the county. By the writ the sheriff was commanded to proceed to advertise for sale and sell the property, and to make and file his report of the sale with the clerk of the court within sixty days after his receipt thereof. In obedience to this command, the sheriff published and posted notice that he would sell the property on a day named, and within the time limited for the return of the writ, but no sale was ever made pursuant to that notice, "action thereon having been indefinitely postponed pursuant to an agreement by the parties plaintiff and defendant that there should be no sale prior to February 24, 1890." The sheriff retained the writ, and subsequently again published and posted notice that he would sell the property thereunder on February 24, 1890; and on that day he sold the whole block to the plaintiff for the sum of $451.40.

The block sold consisted of fifty-four lots, as shown by an official plat on file in the office of the county recorder, and at the time of the sale was of the value of five thousand dollars.

On February 21, 1891, the defendant moved the court to vacate and set aside the sale made by the sheriff as aforesaid, upon two grounds: 1. Because the property consisted of fiftyfour lots, and was sold as a whole; 2. Because the property was advertised for sale and sold after the return day of the writ.

The court overruled the motion on the first ground, and sustained it on the second ground, and thereupon made and entered its order vacating the sale. From this order the plaintiff appeals.

The Code of Civil Procedure, the chapter headed "The Execution," provides:

"Sec. 681. The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement.

"Sec. 682. The writ of execution must be issued in the name of the people," etc.

"Sec. 683. The execution may be made returnable at any time not less than ten nor more than sixty days after its receipt by the sheriff," etc.

"Sec. 684. . . . . When the judgment requires the sale of property, the same may be enforced by a writ reciting such

judgment, or the material parts thereof, and directing the proper officer to execute the judgment, by making the sale and applying the proceeds in conformity therewith."

The only process provided in this state for the enforcement of a judgment foreclosing a lien upon specific property is that prescribed by the section of the code last quoted. The writ here in question was issued in the name of the people, and pursuant to the provisions of that section. It is, however, claimed by appellant that a "writ" so issued is not an "execution," within the meaning of section 683, and hence that there is no limitation of time within which it must be made returnable.

A writ of execution is defined to be "process authorizing the seizure and appropriation of the property of a defendant for the satisfaction of the judgment against him": Anderson's Law Dict. When issued upon a judgment running generally against the property of the defendant, it is an authority to the sheriff to seize of the property of the defendant a sufficient amount to satisfy the judgment. As the judgment itself does not specify the property which is to be taken, none of the property of the defendant is affected thereby, or charged with the lien of the judgment, until it is taken by the sheriff under the writ. "Until a levy, property is not affected by the execution": Code Civ. Proc., sec. 688. As the sheriff can justify an interference with the possession by the defendant of any of his property, only upon the production of a writ therefor, it is incumbent upon him to show that a seizure of the particular property is within the scope of his writ; and if, by the terms of the writ, such seizure is authorized only within a limited period of time, a seizure after that time has expired is unauthorized, and the sheriff is liable for a trespass. If, however, the sheriff has taken the property within the lifetime of the writ, it has then become lawfully subject to be applied in satisfaction of the judgment, and a sale thereof may be made at any time thereafter: Rorer on Judicial Sales, sec. 872.

"Wherever some statute does not provide otherwise, an officer who has entered upon the execution of the writ before the return day thereof, by a seizure of or levy upon property, may, after the return day, and after the actual return, continue to hold the property, and may prosecute such further proceedings as may be necessary to convert such property, whether it be real or personal, into money for the purpose of satisfying the judg ment": Freeman on Executions, sec. 106. The levy may be made at any time during the last day of the writ, and the

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