The defendant was convicted by a jury, of the crime of larceny,—the theft of a calf. From the judgment rendered in the premises, and an order denying him a new trial, he appeals.
The evidence upon which he was tried is mainly circumstantial, but we see no reason to declare, as the defendant contends we should, that the jury were not warranted in returning the verdict of guilty.
In the progress of the trial, a witness for the prosecution, Mr. Zeilor, testified that he saw the' defendant and those claimed to have been with him, on the night of the alleged stealing, at Selma, in Fresno County, between eight and nine o’clock in the evening. Then, upon cross-examination by defendant’s counsel, the witness said he had no conversation with them. When his memory was refreshed by a further question, he was about to state what he had said to them, and presumably what they said to him, when the district attorney *604objected on the ground that the testimony sought to be elicited was not in cross-examination of anything brought out by him in his examination in chief.
The court sustained the objection, and the defendant excepted, and assigns this ruling of the court as prejudicial error.
If the people, for the purpose of criminating the defendant, had asked for this conversation, it would have been admissible, and then the defendant could have cross-examined the witness in relation to the matter. This was not done, and as the defendant’s conversations could not be introduced by him in chief, for the reason that it is not permissible for a man charged with crime thus beforehand to manufacture evidence for himself, so it could not be admissible in cross-examination if brought out by the defendant for the first time. Besides, what appears to have been said, and which it was the evident purpose of defendant’s counsel to bring before the jury, is testified to by defendant afterwards. So that no prejudicial error was committed as to the matter.
The last and most important ground upon which the appellant bases his contention for a reversal of the judgment and order is, that one of the jurors was guilty of the misconduct of drinking intoxicating liquors during the progress of the trial, and to such an extent as to disqualify him for the performance of his duty in such capacity.
The affidavit of the juror himself, seeking to impeach his verdict, is not admissible. (People v. Gray, 61 Cal. 183; 44 Am. Rep. 549.)
There were other affidavits introduced on the part of the defendant, which went to show that during the recess of the court, from twelve to two o’clock on the day when the verdict was rendered, that the juror in question was intoxicated in a saloon in Fresno; that he had been during that week under the influence of intoxicating *605liquors, and that on the day of the verdict, during recess of court, as heretofore stated, he came home greatly under the influence of such liquor, stupid and irrational; that he went to sleep, and was awakened by the deputy sheriff and taken back to court in a condition not fitting him for the service of a juror; that he drank a tumblerful of whisky, and was intoxicated during that recess above mentioned; that the juror was drunk in a saloon, between the hours of twelve and two on the day in question.
There is no doubt of the fact that the juror drank the intoxicating liquor during the recess. But the affidavits for the people, mainly by the fellow-jurors of the one charged with misconduct sufficient to vitiate the verdict, is to the effect that at no time during the trial did they perceive that the juror was intoxicated in any degree, but that, on the contrary, he was sober, intelligent, and perfectly able to consider evidence and exercise judgment in deliberating thereon, and that on the day of the rendition of the verdict, after they had retired to consider it, the juror, Wade, discussed in a reasonable and sensible way the different facts as shown by the testimony in the case, and in every way indicated that he was thoroughly able and in a condition to perform his duty as a juror.
The affidavit of Deputy Sheriff Pickett shows that he saw the juror Wade come into the court-house where the trial was had, with George Z. Moore, another deputy sheriff, at half-past two o’clock of the day of the verdict; that he has known the juror for about twenty, years; that he particularly observed him from that time until about five o’clock, p. m., while on the jury, and that there was nothing in his appearance and actions to indicate intoxication; that he was placed in charge of the jury at five, p. m., and remained in charge of them until about 5:30, p. m., until they arrived at a verdict, when he returned with them to the court-room; that he met the *606juror in question about fifteen minutes after the verdict had been returned, and had a conversation with him, and that he then appeared thoroughly sober.
Deputy Sheriff Moore swore that during all the days of this trial, — 18th, 19th, and 20th of June, 1890,—he was in the court-room, and observed the juror Wade; that he appeared to be thoroughly sober and intelligent, and in a condition to perform his duties as juror; that he has known Wade personally about ten years; that on the 20th of June, 1890, at about 2:15 o’clock, p. m., he went to Wade’s house, and entering it saw Mrs. Hill, and asked where Wade was, to which she replied: “ There he is; just wake him up”; that he did wake him, and that they proceeded to the court-house, a distance of a quarter of a mile, together; that during that walk he talked with Wade, and he was sober and intelligent, and did not appear in any way under the influence of intoxicating liquors; that they reached the court-house about 2:30 o’clock, p. m.; that he remained there in the courtroom some time before the case was submitted to the jury, and observed no action or appearance on the part of Wade indicating that he was drunk or intoxicated.
It thus appears that the court was justified in believing that while sitting as a juror in the box, or considering the verdict, Wade was sober, intelligent, and in a fit condition to understand and deliberate upon the evidence, apply the instructions of the court, and form and express a fair opinion as to what the verdict should be.
There is no doubt that he did drink intoxicating liquors out of court, and that at the recess, at least, he was for a time under its influence. The question then is, whether, as a matter of law, the verdict in which he concurred, and which he assisted in making, was vitiated by his drinking, and its effect upon him outside of the court, when not sitting as a juror?
We cannot say that it was. If, while in his capacity of juror, he was sober, heard the evidence, understood *607and appreciated it and the instructions of the court and argument of counsel, and was then able intelligently to understand, deliberate, and determine what should be the verdict, with his fellow-jurors, we are unable to perceive that the verdict was arrived at accompanied by misconduct on the part of the juror while performing his duty. He was guilty of drinking mo're than he ought, when out of court, but does not seem ever to have been under its influence while sitting or deliberating as a juror. At those times his mind was clear, and no misconduct is shown to have occurred.
We do not think that there is anything opposed to this in the cases of People v. Gray, 61 Cal. 164, 44 Am. Rep. 549, or People v. Lee Chuck, 78 Cal. 318.
If, as the defendant seems to think, the juror was palpably intoxicated in court, and he or his counsel perceived it, objection should have been made before the jury was permitted to retire. ' (Ipswitch v. Fernandez, 84 Cal. 639.) But, as we have seen, the trial judge was justified, under all the evidence before him, in believing the juror sober during the performance of his duty as a juror on the trial, and while deliberating upon the verdict.
For these reasons, we advise that the judgment and order be affirmed.
Vanclief, C., and Fitzgerald, C., concurred.
The Court.—For the reasons given in the foregoing opinion, the judgment and order are affirmed.