People v. Burns

PETERS, P. J.

I concur in the reversal of the order denying the motion for .a new trial and of the judgment.

I agree with the majority opinion that the evidence, while highly conflicting, is sufficient to sustain the conviction. I further agree, for the reasons set forth in that opinion, that the defendant was denied a fair trial. I further agree that the introduction into evidence of the photographs of the deceased, under the circumstances here existing, was error of a most serious nature. But I cannot agree that the evidence of the assault committed some 13 years before the offense here involved is claimed to have been committed, was admissible.

The majority opinion has collected the cases that indicate that many exceptions exist to the rule that evidence of- other crimes is normally not admissible. No doubt those exceptions have been greatly extended in recent years. (See People v. Peete, 28 Cal.2d 306 [ 169 P.2d 924 ] ; People v. Westek, 31 Cal.2d 469 [ 190 P.2d 9 ]; People v. Dabb, 32 Cal.2d 491 [ 197 P.2d 1 ] ; People v. Zatzke, 33 Cal.2d 480 [ 202 P.2d 1009 ].) But those cases at least recognize that the rule exists. (See, also, People v. Albertson, 23 Cal.2d 550 [ 145 P.2d 7 ].) The *554 reason for the rule is obvious. The defendant in a criminal ease is not being tried because he is a man of bad character, but because he is charged with having committed a specific offense. He is called upon to meet the charge contained in the indictment or information, and is not called upon to meet charges that sometime in the past he committed, or may have committed, other offenses. Even a very bad man should not be convicted on general principles. Even such a person must be proved guilty of the offense charged. Thus, the normal rule is and should be that the prosecution is prohibited from introducing evidence that will show, or that may tend to show, that the accused has committed any crime wholly independent of the offense for which he is on trial.

To that rule there are certain exceptions, all based on the fundamental premise that where evidence of another crime is directly relevant to proving some element of the crime charged or in disproving some defense, such evidence is admissible." Thus, if the evidence of the other crime tends to establish, as to the crime charged, motive, knowledge or intent, the absence of mistake or accident, a common pattern, plan or scheme, or the identity of the person charged, evidence of other crimes is admissible. In determining whether proof of a prior crime falls within one of these exceptions, a rule of common sense must be applied. This is particularly true where the prior crime is remote as to time. While it no doubt is the law that, generally speaking, where the evidence may fall within one of the exceptions, remoteness goes to weight rather than to admissibility (People v. Peete, 28 Cal.2d 306 [ 169 P.2d 924 ] ; People v. Morani, 196 Cal. 154 [ 236 P. 135 ] ; People v. Hall, 25 Cal.App.2d 336 [ 77 P.2d 244 ] ; People v. Miner, 96 Cal.App.2d 43 [ 214 P.2d 557 ]) and that considerable discretion in this regard must be allowed the trial court (People v. Arrangoiz, 24 Cal.App.2d 116 [ 74 P.2d 789 ]), it is obvious that there is a line of reasonableness beyond which the evidence is not admissible. That line was passed in the present case.

Here the evidence of the prior assault is sought to be justified on the ground that it falls within the common pattern, plan or scheme exception. In other words, because defendant was charged and convicted some 13 years before of assaulting a woman, while under the influence of liquor, in which case she charged that he had first attempted sexual intercourse and then threatened to commit an unnatural sex act, it is now claimed that those facts are relevant in proving that, while *555 under the influence of liquor, some 13 years later, he brutally beat the deceased and murdered her. While sex, in a general sense, was undoubtedly present in both cases, there is not one word of testimony that defendant attempted sexual intercourse in the instant case or threatened or attempted to perform any unnatural sex act. The evidence is to the effect that the deceased undressed herself, and the condition of her clothes is mute and potent evidence that this was true. If intercourse was intended, it quite evidently would have been voluntary on the part of the deceased. But even on the question of intercourse, the prosecution witnesses conceded that there was no evidence that such had been accomplished. While there are some general similarities between the two offenses, there is not sufficient similarity to indicate a common plan, pattern or scheme.

Thirteen years elapsed between the first offense and the one here claimed to have been committed. There is no evidence of any connecting link between these two offenses. So far as the record is concerned, defendant never committed any similar offense during the 13-year interval. Does evidence that a man assaulted a woman in 1937 logically tend to rebut his denial that he beat another woman to death in 1950? Does evidence of that one step from rectitude 13 years ago tend to show a common plan, pattern or scheme? I think not.

Every court that has considered this problem recognizes the highly inflammatory and prejudicial effect of such testimony, but admits it in some cases because of its direct relevancy in proving some fact properly before the court, or in disproving some defense proffered by the defendant. But certainly there is a limit beyond which the prosecution may not go. The connection between the two offenses must be so direct that evidence of the commission of the prior offense reasonably tends to prove that the accused committed the offense with which he is charged. It must do more than merely raise a suspicion that such is the fact. The inference must be a reasonable one.

In the instant case, while the admissible evidence is sufficient to sustain the finding of guilt, the evidence is highly conflicting. This was a close case. This is demonstrated by the fact that two prior juries disagreed. The prosecution, in evident recognition of the weakness of its case, produced this woman and the arresting officer to testify as to this prior offense committed 13 years before. The prosecution must be *556 charged with knowledge that these witnesses would testify not only to the prior assault, but would also testify that the defendant threatened the woman there involved with committing upon her a revolting, disgusting and unnatural sexual act. There is not one word of evidence that this factor existed in the present ease. It is quite apparent that this evidence was produced solely for the purpose of discrediting this defendant in the eyes of the jury. It is equally evident that it would tend to and did have this effect. Under such circumstances I believe that this evidence was not relevant, was too. remote, and should have been excluded. In my opinion, this is an additional ground for the reversal.

A petition for a rehearing was denied March 18, 1952. Peters, P. J., voted for a rehearing and filed the following opinion:

PETERS, P. J

I vote for a granting of the rehearing on the sole ground that, in my opinion, the admission of the evidence relating .to the prior crime was error of a most prejudicial character.

Respondent’s petition for a hearing by the Supreme Court was denied March 31, 1952. Carter, J., filed the following opinion:

CARTER, J.

In voting for a denial of respondent’s petition for a hearing in this case I wish to state that I am in full accord with the views expressed in the concurring opinion of Mr. Presiding Justice Peters in said ease.