People v. Terry

SCHAUER, J., Concurring and Dissenting.

With Justice White I concur in the majority's affirmance of the judgment adjudicating defendant’s guilt of murder in the first degree and I also concur in Justice White’s dissent from the reversal of the judgment insofar as it relates to the penalty for the offense.

Even if I assume for purposes of the opinion that under the present state of decisional law (which appears to me to be demonstrably unrealistic; see People v. Love (1961) 56 Cal.2d 720, 731-733 [21-27], 734, 739 [ 16 Cal.Rptr. 777 , 17 Cal.Rptr. 481 , 366 P.2d 33, 809 ] ; People v. Love (1961), ante, p. 748 [ 17 Cal.Rptr. 481 , 366 P.2d 809 ] ; People v. Kidd (1961) 56 Cal.2d 759, 771 [ 16 Cal.Rptr. 793 , 366 P.2d 49 ]) the majority are correct in holding that the trial court erred in three respects 1 during the proceeding to determine penalty, I find no legitimate basis for reversal of the judgment. The errors related by the majority, whether considered singly or in combination are so trivial when viewed against the overwhelming abundance of proof of defendant’s guilt, *573 and of his character as demonstrated by his sustained course of conduct and the nature of his crimes, as to make the assumed errors de minimis.

The majority refer to their decision in People v. Love, supra, wherein they stated (p. 731 of 56 Cal.2d) that “it is not a matter of common knowledge that capital punishment is or is not a more effective deterrent than imprisonment,” and hold that the prosecuting attorney erred in suggesting to the jury that the death penalty would have been a more effective deterrent than so-called life imprisonment proved to be in certain cases which he mentioned by way of illustration, and which are more particularly described in the margin here (fn. 1) as well as in the majority opinion. As for myself, I am quite convinced that if, for example, the person mentioned by the prosecutor as having been sentenced “Ten to life” in 1947, and as being back on trial for a similar offense in 1951, had on the first occasion received the death sentence and been executed, he would have been so deterred that he would not have been back again for a similar offense four years later. Yet, the majority insist it is reversible error to argue to a jury that a man who has been executed is more effectively deterred from further crimes than a man who has been imprisoned and paroled.

As pointed out by Justice White, this court is under constitutional mandate not to reverse a judgment “for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. [Amendment adopted November 3, 1914.]” (Cal. Const., art. VI, §4%.)

In the record before us I find no basis whatsoever for an objective conclusion that any error or combination of errors has resulted in a miscarriage of justice. Accordingly, obedient to the mandate of our Constitution, I would affirm the judgment in its entirety.

McComb, J., concurred.

The petitions of the respondent and of the appellant for a rehearing were denied May 16,1962. Schauer, J., McComb, J., and White, J., were of the opinion that the petition of plaintiff and respondent should be granted and that the petition of defendant and appellant should be denied.

The asserted errors are:

1. As to admission of evidence: The receipt in evidence of a telegram sent during the trial to the state’s witness Wilson (who had been defendant’s companion on the day defendant murdered Police Officer Vernon J. Owings) by the wife of the brother of defendant’s wife, reading: “Does your cigarette taste different, lately? Switch from hots to Kools,” and signed: “Lucky.”

2. As to illustrating argument by reference to matters of public record or general knowledge: The prosecutor “argued that the authorities are forced to parole prisoners because not enough prison space is provided for all of the felons who are convicted in California.” In his argument he also mentioned “eight eases we have got in . . . California of paroled first-degree murderers who repeated when they got out” and stated that the defendant’s counsel when arguing “didn’t tell you about this Coors’ case, where the guy who killed this Mr. Coors up in Colorado, is an escapee doing life on murder. ...” The majority further relate the prosecuting attorney’s reference to an asserted conversation between a judge and a psychiatrist concerning a man who had raped a “little 3-year old,” and to an earlier case he had tried. Of the earlier-case defendant, the prosecutor said “Ten to life, in 1947. In 1951 I was right in this courtroom trying him again for another armed robbery.”

3. As to arguing the deterrent effect of the death penalty: The majority opinion states that “The prosecuting attorney argued the greater deterrent effect of the death penalty and supported his argument by the recitation of facts [seemingly all matters of public record or general knowledge] not in evidence of the same character as those held prejudicially erroneous in People v. Love [1961], supra, 56 Cal.2d 720, 730-733 .”