Appellant insists that the court erroneously instructed the jury as follows: "To justify the killing of another in self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary, and it must appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline further struggle before the mortal wound was given." The giving of an instruction identical with the one under consideration was fully sustained in the case of People v. Bruggy, 93 Cal. 483, where it is said: "The court was stating an abstract proposition of law pertaining to the right of self-defense possibly too liberally for a defendant, as it omits the qualification that it must appear to him as a reasonable man," etc. Indeed, appellant admits that the giving of like instructions has heretofore been held free from error. There is no merit in the contention that the order in which the instructions were given was calculated to mislead the jury. Taken as a whole (People v. Bruggy, 93 Cal. 486; People v. Weber, 149 Cal. 345), the charge fairly and correctly declared the law applicable to the case, and no ground exists for claiming the jury were misled thereby to the prejudice of defendant. Lastly, it is contended that defendant's motion for a new trial should have been granted upon the ground of a separation of the jury after the case had been submitted to them for decision; and also on account of misconduct of the officer in charge of the jury. The facts as shown by the testimony of the people, which we must, owing to conflicting evidence touching the subject, accept as true, are as follows: The case was submitted to the jury on June 2, 1908. On the following day, they having failed to reach a verdict, the officer charged with their custody conducted them to a public dining room in the Elder House, where they dined. About one o'clock p. m., and before they had finished dining, a fire occurred in a building about a block distant from the hotel which caused considerable commotion. At the same time, the proprietress of the hotel stated that the roof of her house had become ignited; whereupon her brother, Juror Cottle, left the table which was occupied by the jury, and, accompanied by his sister, went to the kitchen for the purpose of getting a hose to attach to a water hydrant. He was absent from the presence of the officer but a few seconds, and upon his return the other jurors were leaving the table. All of them went upon the street, except Juror Kellenberg, who left the other jurors and went upstairs upon a porch, where he assisted in holding a ladder by means of which some one climbed to the roof and extinguished the flame with a bucket of water. On this occasion Kellenberg was absent from the other jurors ten or fifteen minutes. When he came down from the porch he went across the street, which was about 66 feet in width, where he remained with three other jurymen for a period of ten minutes or more, during which time other members of the jury were upon the sidewalk on the opposite side of the street next the hotel. According to Kellenberg's testimony, quite a number of people were on the sidewalk tramping up and down. To use his language, "they were spotted around in every direction". It is admitted by the officer having the jury in charge that they were for a time separated in the sense that the members thereof were upon opposite sides of the street, but such separation continued, he says, "only just long enough for me to go across the street and drive them all back". The jurors returned to the dining room and completed their meal about 1:30 p. m., and, as appears from the minutes of the court, brought in a verdict of guilty on the same day at 2:30 p. m. We think it clear from the evidence of Juror Kellenberg and that of the officer that the jury, which brought in a verdict shortly after reconvening, did separate at a most critical time for defendant and under circumstances which might result in great prejudice to his rights. The act of the officer in taking the jury to this public dining room after the case had been submitted to them was in direct violation of his sworn duty, under the provisions of section 1128, Penal Code, "to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them". After the submission of the case (except by order of court) a separation of the jury, without regard to the cause of such separation, and communications held between members of the jury and outsiders, even though in the presence of the officer (unless by order of court), are presumed to be prejudicial to the rights of the defendant. Upon motion for a new trial based upon such irregularity a verdict of guilty should be set aside, unless it be shown affirmatively by the prosecution that defendant was not prejudiced thereby. (People v. Brannigan, 21 Cal. 338; People v. Hawley, 111 Cal. 78; People v. Adams, 143 Cal. 208.) The purpose of the statute (sec. 1128, Pen. Code) is to secure the defendant in a criminal case against any interference with the action of the jury, whether from the hostility of personal enemies or public prejudice. "If such protection be not afforded, suspicions are excited and confidence in the justice of their decision is destroyed. It would seem therefore but reasonable, where an irregularity has been committed which may have affected the jury, that the government seeking to uphold their action should be called upon to show that no injury to the prisoner has followed from the irregularity complained of." (People v. Brannigan, supra.) The evidence offered by the prosecution is, in our judgment, inadequate to show that the rights of defendant were not prejudiced by the misconduct of the officer and jury. Juror Kellenberg testified he did not communicate with anyone regarding the case, but he does not pretend to know that other jurors were free from misconduct in this respect. None others testified upon the subject. It is true that Juror Cottle was absent for a short time only, and the officer testified he did not think it possible for him to have talked with anyone, yet the record shows that this short period afforded opportunity for communication between him and his sister, at whose house the widow and family of deceased were guests. While the officer admits that the members of the jury were scattered from sidewalk to sidewalk on either side of a street 66 feet in width, necessitating his getting them together, he says: "The jurymen were in my view all the time and did not talk to anyone or have any chance to talk with any outsiders, because I had them rounded up pretty close, and I didn't want them to be mixed up with the outsiders, and I had them standing all together, with the exception of Kellenberg, who was up on that porch maybe fifteen or sixteen feet high, just above my head, and I could see what he was doing." Conceding, as claimed, that they talked to no one, there is nothing in the evidence of the officer which negatives the fact that outsiders might not have communicated with or made suggestions to the members of the jury. Moreover, the circumstances attending the separation were such that rendered it impossible for him to know as a fact that no outsider communicated with any member of the jury. The facts do no justify the conclusion which he draws therefrom. As said in People v. Adams, supra, which was a case where the jury had been divided into three groups and assigned to three different sleeping rooms upon different floors of a hotel, the doors to which were locked by the officer and who, as here, testified that no communication was had between the members of the jury and outsiders: "It is evident that this statement was of no value, for, in the first place, he could not have been present at the same time at all of the rooms on the three different stories, if he had kept awake," which he did not do. "Nothing less," says the court, "than the affidavits of the jurors would be sufficient to establish that fact." So where the jurors, as here, were separated for some considerable length of time and scattered among outsiders walking to and fro, thus affording opportunity for communication, nothing less, we think, than the affidavit of each juror so separated from the officer in charge would be sufficient to controvert the presumption of prejudice which the law attaches to the separation of the jury after the submission of the case. Juror Kellenberg testifies to the fact that some stranger spoke to Juror Sellers, but he did not remember what was said between them. The officer in charge of the jury testified to conversations had between Juror Sellers and two outsiders and that the conversations did not relate to the subject under consideration by the jury. It does not appear, however, whether or not either of the two men was identical with the stranger referred to by Juror Kellenberg. While it may not have been prejudicial, the fact that the jury during the trial, and while deliberating upon their verdict, were boarded at the hotel where the widow and children of the deceased were guests, was a circumstance which might create an atmosphere charged with bias and prejudice. Where possible, the occasion for objections and criticism upon such grounds should be avoided. An examination of the points presented by appellant other than those herein discussed discloses no merit. For the reasons given, the judgment and order appealed from are reversed. We concur: ALLEN, P. J. SHAW, J. Civil No. 629. Second Appellate District. July 21, 1909. S. C. LONG, Plaintiff and Appellant, v. AMERICAN SURETY COMPANY (a Corporation), Defendant and Respondent. APPEAL-DISMISSAL-FAILURE TO FILE POINTS AND AUTHORITIES WITHIN PRESCRIBED TIME-ABSENCE OF EXCUSE FOR DEFAULT.-An appeal will be dismissed, in the absence of any showing which tends to excuse a default of four months in filing points and authorities. Appeal from the Superior Court of Kern County--J. W. Mahon, Judge. For Appellant-W. W. Kaye, V. T. Watkins of Counsel. For Respondent-T. F. Allen, Norman Williams of Counsel. Motion to dismiss an appeal for failure to file points and authorities. The court, under a misapprehension of the facts disclosed by the record heretofore made an order denying the motion. The appeal is from an order of the trial court denying plaintiff's motion for a new trial. The transcript was filed on October 22, 1908 (not November 21st, as stated by appellant's affidavit). On November 18th, pursuant to stipulation filed, this court made an order granting appellant thirty days' additional time within which to file his points and authorities. This extension of time expired on December 21st, and, so far as disclosed by the record, no further stipulation was filed herein, and no order made further extending the time. On April 1, 1909, appellant not having filed his points and authorities, respondent served notice on his attorney that it would, on April 26, 1909, move the court for an order dismissing the appeal upon the ground of appellant's failure to file such points and authorities within the time prescribed by the rules therefor, which notice of motion was filed in this court on April 7th. Thereafter, on April 24th, appellant delivered to the clerk of this court his points and authorities, which, however, were not filed, owing to the time therefor having elapsed. It thus appears that the points and authorities were not presented for filing until the expiration of a period of more than four months after the expiration of the time for filing the same. At the hearing of the motion, appellant's attorney presented affidavits of himself and his stenographer, from which it appears that on February 1, 1909, he applied to T. F. Allen, respondent's attorney, for a stipulation extending the time within which he might file his points and authorities; that Allen refused to make any stipulation granting further extension of time for such purpose, but stated to appellant's attorney that he would not take advantage of appellant's failure to file his brief in time and would not move to dismiss "the appeal on the ground of the appellant's failure to comply with the provisions of rule 4" of the supreme court governing this court. (This rule has no application whatever to the case.) It is further averred that owing to pressure of other professional engagements during the period extending from the time of filing said transcript to April 1st affiant did not have time to prepare ap pellant's points and authorities, the preparation of which required three or four days careful labor. It is also averred that appellant had stipulations from, respondent extending the time to February 1, 1909. No such stipulations were filed, however, and no order made by this court based thereon extending the time as required by subdivision 5 of rule II, nor were such stipulations presented upon the hearing. It appears, therefore, that more than a month elapsed after appellant's default before application was even made on February 1st for a further extension of time, at which time appellant had no existing right to file points and authorities, and that respondent refused to grant the same. Conceding, but not holding, that an affidavit of an oral statement made under such circumstances to the effect that the respondent would not take advantage of such default might be considered in opposition to a motion to dismiss, and accepting this statement at its full value, it could not be construed as effective in extending the time beyond a reasonable time. Appellant took no step in the matter until the lapse of nearly three months, and after service and filing of notice of motion to dismiss. Under the rules, 30 days is regarded as a reasonable period within which to file points and authorities, yet in this case appellant is claiming more than four months, without any showing that can be regarded as an excuse for his default. Rule II of this court provides that appellant shall file his points and authorities thirty days after the transcript is filed, and by subdivision 5 of said rule it is provided that "the time above limited for filing points and authorities shall not be extended except by order of the court upon stipulation of the parties, or an affidavit showing good cause therefor". Rule V provides if "appellant's points and authorities be not filed within the time prescribed, the appeal may be dismissed on motion, upon notice given". In order that the court may control its calendars and dispose of its business in an orderly and convenient manner, a compliance with these rules must be exacted from litigants. No hardship can result therefrom, for the rules themselves provide for the granting of further time to perform the acts required upon a proper showing. (Shain v. People's Lumber Co., 98 Cal. 120; McCabe v. Healey, 139 Cal. 30; Coats v. Coats, 146 Cal. 443.) No showing is made which even tends to excuse this long continued default, and it is respondent's right to have the rule for dismissal of the appeal enforced. (McCabe v. Healey, 139 Cal. 30.) The order heretofore made is, therefore, vacated and set aside; and for the foregoing reasons it is now ordered that respondent's motion be granted and the appeal be dismissed. We concur: ALLEN, P. J. SHAW, J. |