People v. Currie

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[Crim. No. 1794. First Appellate District, Division One. December 12, 1934.]

THE PEOPLE, Respondent, v. HARRY CURRIE, Appellant.


Anthony S. Devoto for Appellant.

U.S. Webb, Attorney-General, and Seibert L. Sefton, Deputy Attorney-General, for Respondent.


The Court.

The defendant was charged in an indictment containing several counts with grand theft and violations of the Corporate Securities Act. Two of the counts charging grand theft were dismissed and he was found guilty on the remaining charges. He has appealed from the judgment of conviction and the order of the trial court denying his motion for a new trial on seven of the counts charging grand theft.

Four grounds for reversal are urged, namely, the misconduct of a witness for the prosecution and of the trial [3 Cal. App. 2d 33] court; error in the admission of certain testimony, and that the evidence is insufficient to sustain the verdict.

[1] It appears from testimony taken upon the hearing of defendant's motion for a new trial that during the pendency of the trial, on an occasion when the jurors were leaving the courtroom following an adjournment, two or more of them were accosted by a person who as a witness for the prosecution had testified that she purchased stock in the company respecting which it was alleged that defendant had made false representations. This person stated to said jurors that she hoped the jury "would be good to them" and would "give us a square deal", and that she was a widow "and had lost her money". None of the jurors replied. There was testimony that the trial judge was advised of the incident previous to the submission of the cause to the jury, and also that counsel for the defendant did not learn of it until after the verdict had been returned and the jury discharged.

Defendant claims that the trial court erred in not admonishing the jury to disregard these remarks, and that this with the fact that the same were made entitled him to a new trial. It is not contended that any juror was guilty of misconduct; and it is clear from the testimony of those accosted that they were not influenced by the statements.

The facts are similar to those in People v. Pyle, 44 Cal. App. 130 [185 P. 1019], wherein it was held that the refusal of a new trial was not erroneous. While the trial court might properly have admonished the jurors to disregard the statements we cannot say that the error, if any, was prejudicial or that the refusal of a new trial was in the circumstances an abuse of discretion. To the same effect as the case mentioned are the following decisions: State v. Allen, 89 Iowa, 49 [56 N.W. 261]; State v. Johnson, 141 La. 775 [75 So. 678]; State v. Crane, 110 N. C. 530 [15 S.E. 231] In Downer v. State, 10 Ga. App. 827 [74 S.E. 301], cited by defendant, it appears that the juror approached actively participated in a discussion of the merits of the cause, which was not the fact in the case at bar.

[2] The transaction which led to the accusations against the defendant involved the sale of stock in a gold mining company, it being alleged that he misrepresented the condition of the mine. Two mining engineers were permitted to testify, [3 Cal. App. 2d 34] over objection by defendant, as to certain physical conditions, namely, the results of assays of ore from the mine, and the amount of ore which had been blocked out. The engineers' examination was made subsequent to the alleged misrepresentations, and it is urged that such testimony was for that reason incompetent. It clearly appears that the ore-body remained unchanged in character. Furthermore, one of the misrepresentations claimed was that certain ore had been blocked out. According to the testimony of the engineers this statement was untrue, as was the representation as to the assay value of the ore. There was no error in the admission of the testimony objected to.

People v. Raplee, 75 Cal. App. 38 [241 P. 892], relied upon by defendant, is not a holding to the contrary as the facts were not similar to those in the present case; and the same is true of People v. Hines, 5 Cal. App. 122 [89 P. 858]; San Diego Land etc. Co. v. Neale, 88 Cal. 50 [25 P. 977, 11 L.R.A. 504], also cited by defendant.

[3] The evidence shows that the defendant on numerous occasions misrepresented the condition of the mining property as to its development, the value of its ore and the amount thereof which was being produced. While conflicting, the evidence sufficiently shows that these representations were untrue, and that persons who purchased stock relied upon them and were thereby deceived to their injury.

Other points made by the defendant are without merit and require no discussion.

Evidence which the jury believed amply supports their verdict, and the record discloses no error which would justify the conclusion that there was a miscarriage of justice.

The order and judgment appealed from are affirmed.

A petition for a rehearing of this cause was denied by the District Court of Appeal on December 27, 1934, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 10, 1935.

Primary Holding

Race-neutral practices may cause minority groups to be statistically underrepresented, but this does not give rise to a representative cross-section claim based on systematic exclusion.


Currie appealed convictions of second-degree murder, attempted robbery, and unlawful possession of a firearm by a felon. Although he had received a jury trial, he argued on appeal that the trial court should have quashed the master jury list and jury venire because his Sixth Amendment right to trial by an impartial jury drawn from a representative cross-section of the community had been infringed. He argued that African-Americans were statistically underrepresented on the lists of potential jurors in the county. The trial court disagreed and held that he had not made out a prime face case that African-Americans were excluded from county venires in an unconstitutional manner.



  • Lawrence T. Stevens (Author)

The Sixth Amendment right to an impartial jury attaches throughout the jury selection process, including the master list, venires, and peremptory challenges. Three elements must be shown to make out a prima facie case that the fair cross-section requirement was violated. These are that the allegedly excluded group is a distinctive group in the community, its representation in venires is not fair and reasonable in relation to its proportionate representation in the community, and the statistical underrepresentation results from the group's systematic exclusion during jury selection. The first two prongs of the test are satisfied because African-Americans are a distinctive group in the community, and they represent a much greater percentage of the county's adult population than of the people who appear for jury duty.

The third element is where the defendant failed to provide sufficient evidence to make out a prima facie case. This is a long-standing problem, arising from the failure of African-American jurors to appear in response to a summons. The procedures that the county uses to select and summon residents for jury service are race-neutral, and it is not required to take further steps to mitigate the problem to prevent a systematic exclusion claim. The district in the county that has the highest concentration of African-Americans has a disproportionately high rate of failure to appear for jury service, and the county cannot be held accountable for that statistic. The Sixth Amendment does not extend so far as to create an affirmative requirement that venires arising from a neutral selection procedure are supplemented to account for external factors affecting jury composition. In addition to showing a statistical disparity, the defendant needed to prove that part of the county jury selection process was unconstitutionally biased against African-Americans.

Case Commentary

The distinctive groups that are generally subject to the fair cross-section requirement usually are defined as those that are covered by the Equal Protection Clause of the Fourteenth Amendment. They tend to consist of groups with cognizable characteristics related to race, ethnicity, gender, and religion, rather than age or education. States differ as to whether economic status is a sufficiently cognizable characteristic to find that a group is distinctive enough to fall within this requirement. The federal government's Jury Selection and Service Act provides that it is.

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