The opinion
McFARLAND, J., dissenting.
I dissent, and think that the order of the trial court granting a new trial should be affirmed.
The state constitution provides that no person shall be compelled in any criminal cause to be a witness against himself; and section 1323 of the Penal Code declares that the neglect a defendant to testify as a witness “cannot, in any manner, prejudice him, nor be used against him on the trial or proceeding.” In the case at bar the defendant did not testify, and the district attorney, in his address to the jury, willfully and deliberately called attention to the fact that defendant had not offered himself as a witness, and based an argument against him upon the fact that he had not testified. I do not understand that any one contends that this was not a gross violation of the provision of the code above mentioned, and of defendant’s rights under it, or that it could be held to be not prejudicial, or that it should not warrant a reversal provided there is any way to review it/ and that defendant’s counsel took proper steps to have it reviewed. But defendant made a motion for a new trial upon all statutory grounds; the motion was granted by the trial court on account of the said misconduct of the district attorney above stated; the people appeal from the order granting the new trial, and, of course, there is no appeal by •defendant from the judgment. It is therefore contended that .as misconduct of the district attorney is not expressly made one of the grounds of a motion for a new trial, by section 1181 of the Penal Code, therefore, the order granting a new trial was erroneously made in the case at bar, and that, as there is no appeal from the judgment, there is no Way for defendant to have the said misconduct of the district attorney reviewed,, no matter how flagrant and prejudicial it may have been.
It is intimated that the point sought to be made might be •considered upon an appeal from a judgment; but I do not
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see how that could be if it cannot be a ground for a new-trial. The judgment would not show any erroneous rulings, or action by the court; and on such appeal the judgment could be reversed only on the general ground that a verdict founded in whole or in part upon the effect of a violation of the law by the district attorney would be a verdict contrary to law. But subdivision 6 of section 1181 expressly enumerates as a ground for a new trial “when the verdict is contrary to-law. ” If a verdict' founded upon the misconduct of the district attorney is not a verdict contrary to law, then it cannot be touched either on appeal from the judgment or on motion for a new trial. It seems to me that such a verdict is clearly contrary to law, and therefore was within the sixth, subdivision of section 1181. If a point made is that “the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial,” then, of course, the motion would be based on subdivision 5 of said section; but in the case at. bar the point is not that the court misdirected the jury in. a matter of law. Has not the phrase in subdivision 6 “contrary to law” some meaning? Suppose that that section had only enumerated two grounds for a motion for a new trial—first, “that the verdict is contrary to the evidence,” and second, that the verdict “is contrary to law.” In that event could not a motion for a new trial be based on the ground that the verdict is against law? And yet the section as it stands limits the grounds “contrary to law” only by the-case where the court has misdirected the jury as to some-matter of law. Other kinds of verdicts contrary to law are-embraced in subdivision 6, and therefore the only question is. this: Is a verdict based on such misconduct of the district attorney, as is shown in the case at bar, “contrary to law”?' and in my opinion, as before stated, it is clearly so. It is. founded upon and the result of a direct violation of law.
And certainly in a criminal case such a construction of a. provision of law as would enable a defendant to present the-merits of his case should be followed, where it is permissible.. The question has not been definitely settled by this court, adversely to these views, and they were followed in
People
v.
Sansome,
98 Cal. 225 , [ 33 Pac. 202 ], and
People
v.
Sing Lee,
145 Cal. 190 , [ 78 Pac. 636 ]. The opposite view would
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make section 1323 of the Penal Code a mere ineffectual and nugatory declaration which could be violated by the district attorney at his pleasure without any redress whatever on the part of the aggrieved defendant. It would be akin to Dogberry’s charge to the watch:—
“Dog.—You shall comprehend all vagrom men; you are to bid any man stand, in the prince’s name.
“Sec.
Watch.—How if a’ will not stand?
“Dog.—-Why, then, take no note of him, but let him go; and presently call the rest of the watch together and thank God you are rid of a knave.”