presence of alternate jurors after submission but before commencement of deliberations held not to justify granting of a new trial
How later courts described this case
- presence of alternate jurors after submission but before commencement of deliberations held not to justify granting of a new trial
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by People v. Valentine, 28 Cal. 2d 121 (1946)
12 Cal.2d 720, 87 P.2d 1014 (1939), overruled on other grounds in People v. Valentine, 28 Cal.2d 121, 169 P.2d 1 (1946), where the California Supreme Court held the momentary presence of two alternate jurors in the jury room before the jury had begun its deliberations did not invalidate the jury’s verdict.
The opinion
SHENK, J., Concurring.
I concur in the judgment. I see no escape from the conclusion that the homicide was murder of the first degree. I am convinced, however, that the defendant suffered provocation which would weigh *776 greatly in Ms favor if the court, in the exercise of its power under section 1181 of the Penal Code, could properly modify the judgment. The “judicial commutation” authorized by that section does not comprehend the power to reduce the penalty within the first degree, from death to life imprisonment. That function is exclusively with the jury in the first instance and then with the Governor in the exercise of his constitutional power of commutation.
Langdon, J., concurred.