People v. Albertson

TRAYNOR, J., Concurring.

I agree with the conclusion in the majority opinion that it was prejudicial error to admit the evidence with regard to the assault of August 30, 1941. This evidence, in my opinion, was insufficient to enable a"¡ reasonable jury to conclude that it was more probable that defendant committed the assault than that he did not. J

There were other prejudicial errors that constitute additional reasons for reversing the judgment. There was, first, the reading from the transcript of defendant’s testimony at the former trial and the subsequent contradiction of that testimony by witnesses called by the prosecution. If the testimony of a witness at the first trial of a case does not contain assertions concerning material facts, it is irrelevant at a second trial and therefore inadmissible. Even if the witness testified to material facts, his declarations at the first trial are hearsay at the second trial and not admissible under section 1870(8) of the Code of Civil Procedure unless “the witness is deceased, or out of the jurisdiction, or unable to testify.” None of these reasons exists in the present case. The- admission of this testimony, therefore, was not proper unless permitted under other exceptions to the hearsay rule.

False statements by a defendant to those investigating the commission of the crime are admissible if they indicate consciousness of guilt. Although hearsay, they are receivable as admissions and are proveable because they are regarded as assertions by the accused tending to show guilt. Thus, such statements have been held admissible because they in *582 volved an attempt by the accused to establish a false alibi (People v. Miller, 19 Cal.App.2d 708 [ 66 P.2d 448 ]), the giving of false explanations for the possession of goods allegedly stolen (People v. Cox, 29 Cal.App. 419 [ 155 P. 1010 ]; People v. Martin, 16 Cal.App.2d 515 [ 60 P.2d 1014 ]), the denial by a defendant that he knew his codefendant, immediately subsequent to the wrecking by that codefendant of a stolen car in which the defendant was a passenger (People v. Zabriski, 135 Cal.App. 169 [ 26 P.2d 511 ]), and the denial by defendant that he had delivered carpets to a thief when the question was whether the carpets had been delivered innocently or as part of a scheme to defraud (People v. Cole, 141 Cal. 88 [ 74 P. 547 ]). Similarly, in People v. Arnold, 43 Mich. 303 [ 5 N.W. 385 , 38 Am.Rep. 182 ], the falsehood consisted of a fictitious reason for being present at the scene of the crime.

It has never been suggested, however, that every falsehood voiced by the defendant between the time of the crime and the trial can be admitted on this basis, for it is well known that all persons are liable to make errors in the description of past events. Consciousness of guilt is proved, not by evidence of such slips, but by fabrications which, like devious alibis, are apparently motivated by fear of detection, or which, like devious explanations of the possession of stolen goods, suggest that there is no honest explanation for incriminating circumstances and thus are admissions of guilt. Before evidence of false statements by a defendant may be received, the court must determine whether the falsehood is one that may be reasonably construed as implying such an admission; otherwise evidence might be received that is in no way relevant to the issues and therefore seriously prejudicial to the defendant because it indicates to the jury that he is a dishonest person.

The errors proved by the prosecution in the present case have none of the characteristics of such admissions. Prom the transcript of defendant’s testimony at the former trial, it appeared that defendant answered “No” when asked whether he had said to one of the officers in the course of the investigation, “I did not pass any opinion on the man (Kmetz) outside of that he was twenty years older and that he had two children, and that if she wanted to consider these things, if she actually loved the man there was no objection.” Defendant answered “Yes” when asked whether he had told *583 any of the officers investigating the ease of a conversation he had described with O’Connor, the person who he alleged had robbed him of his ear and clothes at the time of the assault on Kmetz, to the effect that O’Connor had worked as a railwayman. He expressed considerable doubt, however, as to which officer he had spoken of the conversation but indicated that it might have been Officer Bowers. After the transcript was read, Officer Bowers took the stand and testified that defendant had not described this conversation to him but had made the statement set forth concerning Kmetz. Parts of the transcript were also read containing an admission by defendant that he had filled out an application for a. job stating falsely the extent of his education as well as a statement by defendant that he knew no one named Crocker, which was followed by testimony, induced by the exhibit of one of defendant’s notebooks, that he knew a woman named Hedwig Crocker, aged ninety.

These errors were not indicative of consciousness of guilt. It is irrevelant that defendant made out a false employment application and could not remember a Mrs. Crocker. A. guilty person would have no reason to withhold the statement concerning the age of Kmetz, for such a statement is one that any friend of the girl might make. The statement that “if she actually loved the man there was no objection’’ does not indicate any hostility to the deceased. Defendant’s assertion that he had told Officer Bowers of his conversation with O’Connor cannot reasonably be regarded as an admission of guilt, particularly in view of his doubt as to whether he had or had not mentioned the matter to Officer Bowers. There was, therefore, no legitimate ground for the admission of this evidence. Its admission permitted the prosecution to do indirectly what it could not do directly, namely, attack the character of the accused for veracity, a trait that, unless he takes the stand, is not involved in a trial for murder and is therefore not a proper subject of inquiry. (People v. Burke, 18 Cal.App. 72 [ 122 P. 435 ]; People v. McMillan, 59 Cal.App. 785 [ 212 P. 38 ]; People v. Derrick, 85 Cal.App. 406 [ 259 P. 481 ]; People v. Peterson, 120 Cal.App 197 [ 7 P.2d 366 ]; see 1 Wigmore on Evidence, 3d ed., p. 438.)

In addition, evidence was introduced that several of the police officers told defendant they did not believe his story when he described how O’Connor took his car and clothes. *584 These declarations were hearsay (People v. Yeager, 194 Cal. 452, 486 [ 229 P. 40 ]) and expressions of opinion on the part of the officers. Had defendant remained silent when the officers expressed these opinions, they might have been admitted on the theory that defendant conceded their truth by his silence. He protested, however, that his story was true, and there was therefore no ground for admitting the officers’ declarations. (People v. Teshara, 134 Cal. 542 [ 66 P. 798 ]; People v. Lapara, 181 Cal. 66 [ 183 P. 545 ]; People v. Yeager, supra; People v. Ayhens, 16 Cal.App. 618 [ 117 P. 789 ]; People v. Wilson, 61 Cal.App. 611 [ 215 P. 565 ].)

The trial court erred again when, of its own volition, it instructed the jury as follows: “You are further instructed that a defendant in a criminal case cannot be compelled to be a witness against himself, and that the defendant in this case has the privilege of declining to take the witness stand and testify. The Constitution of the State of California provides as follows: ‘In any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the ease against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.’ Constitution of California, Article I, section 13.”

This instruction was prejudicially erroneous, for it imposed no limitations on the jury as to what consideration it could give defendant’s failure to testify and left the jury free to infer guilt from that fact alone. The jury is not free under the constitutional provision to give defendant’s failure to testify any consideration it sees fit, any more than court or counsel are free to make any comment thereon they see fit. (See People v. Ottey, 5 Cal.2d 714, 724 [ 56 P.2d 193 ].) Before the constitutional amendment it was error to comment on the defendant’s failure to take the stand or to advise the jury that it could draw inferences unfavorable to him on that account. (People v. Tyler, 36 Cal. 522 .) The constitutional amendment changes the rule of the Tyler case and permits such comment but does not do more. It does not relieve the prosecution of the burden of establishing guilt beyond a reasonable doubt by competent evidence. (People v. Sawaya, 46 Cal.App.2d 466, 471 [ 115 P.2d 1001 ].) If the prosecution fails to meet this burden, the jury cannot infer guilt from the failure of the defendant to take the *585 stand. If, however, the prosecution has introduced competent evidence on every element of the crime, the jury, in weighing the evidence and drawing inferences therfrom, may consider the defendant’s failure to explain evidence against him that he could reasonably be expected to explain. Under such circumstances, the jury may weigh the evidence most heavily against the accused and draw reasonable inferences that may be unfavorable to him.

Even where the prosecution has introduced evidence on every essential element of the crime, however, it is not fair to the accused to leave the jury free, under a general instruction like that in question, to give the defendant’s failure to testify whatever consideration it sees fit. There is then no protection to the accused against the jury’s weighing the evidence most heavily against him and drawing unfavorable inferences from his failure to explain matters of which he could not reasonably be expected to have cognizance. The failure of the accused to testify derives significance from the presence of evidence that he might “explain or deny by his testimony,” for it may be inferred that if he had an explanation he would have given it, or that if the evidence were false he would have denied it. (See Code Civ. Proc., sec. 1963, subds. 5 and 6.) No such inferences, however, can reasonably be drawn from the silence of the accused concerning matters outside his knowledge. The New Jersey Supreme Court, which has always allowed comment on the failure of the accused to testify, has recognized that “His failure to offer himself as a witness when his testimony could not meet or disprove any particular fact or circumstance . . . probably ought not to affect him, and if so, his silence should not be commented on or considered.” (Parker v. State, 61 N.J.L. 308 [ 39 A. 651, 653 ]. See, also, State v. Wines, 65 N.J.L. 31 [ 46 A. 702 ]; State v. Howard, 83 N.J.L. 636 [ 87 A. 436 ]; State v. Rubenstein, (N.J.Sup.) 136 A. 597 .)

If the defendant had taken the stand he would not have been obliged to explain matters for which he could not reasonably be regarded as having an explanation. Thus, in Caminetti v. United States, 242 U.S. 470 [ 37 S.Ct. 192 , 61 L.Ed. 442 ], holding that when the defendant took the stand the trial court could properly call the attention of the jury to his failure to explain matters that he could explain, the *586 court was careful to note that the trial court “did not put upon the defendant the burden of explaining every inculpatory fact shown or claimed to be established by the prosecution. The inference was to be drawn from the failure of the accused to meet evidence as to those matters within his own knowledge and as to events in which he was an active participant and fully able to speak when he voluntarily took the stand in his own behalf.” If a defendant who takes the stand is not obliged to explain matters that he cannot reasonably be expected to explain, a fortiori a defendant who does not take the stand is not obliged to explain such matters.

When a jury is instructed in general terms that it may consider the failure of the accused to take the stand, it is likely to regard his silence as indicating the truth of testimony other than that relating to matters within his knowledge. It may even assume that innocent people take the stand and that defendant is guilty because he did not. Since a conviction must be supported by something more substantial than silence, it is essential that the jury be instructed as to the limitations upon the consideration that it may give a defendant’s failure to testify.

The court also erred in instructing the jury substantially in the language of Penal Code section 1105 that, “Upon a trial for murder, the burden of proving circumstances of mitigation or that justify it devolves upon the defendant.”

The burden of proof is usually twofold. The party bearing it faces a burden of persuasion, sometimes called “the risk of non-persuasion.” This means that the issue must be determined against him if the evidence does not convince the trier of fact that it is more probable than not that the facts are as he represents them. (See 9 Wigmore on Evidence, 3d ed., see. 2486.) He also usually has the burden of going forward with the evidence, for if no evidence is introduced a verdict must be directed against him. (See 9 Wigmore on Evidence, 3d ed., sec. 2487.) In several early eases this court held that the burden placed on defendant by section 11Q5 included both these burdens and required the defendant to prove circumstances of mitigation by a preponderance of the evidence. (People v. Arnold, 15 Cal. 476 ; People v. Hong Ah Duck, 61 Cal. 387 ; People v. Raten, 63 Cal. 421, 422 ; but see People v. West, 49 Cal. 610 .) Subsequently, however, these decisions were overruled (People v. Bushton, 80 Cal. 160 [ 22 P. 127, 549 ]) and it has since been *587 uniformly held that an instruction requiring proof of circumstances of mitigation by a preponderance of the evidence is erroneous. It has been said that defendant is required only to produce enough evidence of such circumstances to raise a reasonable doubt of his guilt. (People v. Bushton, supra; People v. Elliott, 80 Cal. 296 [ 22 P. 207 ]; People v. Post, 208 Cal. 433 [ 281 P. 618 ]; People v. Madison, 3 Cal.2d 668, 676 [ 46 P.2d 159 ]; People v. Marshall, 112 Cal. 422 [ 44 P. 718 ]; see People v. Wells, 10 Cal.2d 610, 622 [ 76 P.2d 493 ].)

However illogical it is to impose on a defendant the burden of raising a reasonable doubt as to his guilt when the prosecution already has the burden of proving his guilt beyond a reasonable doubt, these decisions unquestionably have the effect of relieving the defendant of the burden of persuasion. The duty imposed by section 1105, therefore, is solely that of going forward with the evidence, of introducing evidence of circumstances of mitigation. (See 9 So. Cal. L. Rev. 405.) The code section thus has the effect merely of freeing the prosecution of the risk of a directed verdict in favor of the defendant. (People v. Milner, 122 Cal. 171, 178 , et seq. [ 54 P. 833 ] ; see 9 Wigmore on Evidence, 3rd ed., sees. 2487, 2512.) If, however, the jury is instructed in the language of section 1105, it is likely to amplify the effect of the section by concluding that it must decide that mitigating circumstances do not exist unless the defendant convinces it that the existence of such circumstances is more probable than not. An instruction in such language is therefore erroneous. (People v. Carson, 43 Cal.App.2d 40 [ 110 P.2d 98 ].)

An instruction in the language of a statute is proper only if the jury would have no difficulty in understanding the statute without guidance from the court. (See Formosa v. Yellow Cab Co., 31 Cal.App.2d 77 [ 87 P.2d 716 ]; New York & P. R. S. S. Co. v. M’Gowin Lumber & E. Co., (CCA 8th) 284 F. 513 .) It is not proper if reasonable-men might differ as to the construction of the statute, for it would delegate to the jury the function of statutory interpretation that belongs to the court. (Kansas City etc. Ry. v. Becker, 63 Ark. 477 [ 39 S.W. 358]; see People v. Ghysels, 81 Cal.App. 122 [ 252 P. 1067 ]; People v. Pagni, 69 Cal.App. 94 [ 230 P. 1001 ]; 1 Reid’s Branson, Instruction to Juries (1936) p. *588 217.) The history of section 1105 in this court makes it clear that a jury would not understand the section without guidance. Judicial interpretation has attributed to it a meaning not apparent from its language, and an instruction that fails to convey that interpretation is misleading and therefore erroneous. (See 14 R.C.L. 772.)

It has sometimes been held that if the jury is also instructed that the prosecution must prove its ease beyond a reasonable doubt, an instruction in the language of section 1105 is not prejudicial. (See People v. Hawes, 98 Cal. 648 [ 33 P. 791 ]; People v. Richards, 1 Cal.App. 566 [ 82 P. 691 ].) If the instruction as to reasonable doubt is made expressly applicable to the evidence of mitigating circumstances (see People v. Richards, supra) this conclusion is correct. If the instruction is phrased in general terms, however (see People v. Hopper, 42 Cal.App. 499 [ 183 P. 836]; People v. Leddy, 95 Cal.App. 659 [ 273 P. 110 ]), a reasonable jury might easily conclude that section 1105 creates an exception to the rule that if a reasonable doubt of the defendant’s guilt appears he must be acquitted, believing that mitigating circumstances have not been proved when it has merely been shown that it is not certain beyond a reasonable doubt whether they exist. (See People v. Marshall, 112 Cal. 422 [ 44 P. 718 ].) Cases such as People v. Grill, 151 Cal. 592 [ 91 P. 515 ]; People v. Wilt, 173 Cal. 477 [ 160 P. 561 ]; People v. McClure, 148 Cal. 418 [ 83 P. 437 ]; and People v. Attema, 75 Cal.App. 642 [ 243 P. 461 ], concerned with other criticisms of the use of the literal language of section 1105, do not establish the validity of such an instruction against the objection now urged. The case of People v. Burdg, 95 Cal.App. 259 [ 272 P. 816 ], making a contrary assumption, should be disapproved.

It may be contended that in the present case this instruction was not prejudicial because there was no evidence of mitigating circumstances. It has been recognized, however, that if there is no evidence of such circumstances an instruction under section 1105 is apt to confuse the jury and may therefore be ground for reversal. (People v. Tapia, 131 Cal. 647 [ 63 P. 1001 ].) The jury can hardly be aware that this instruction, formally declared by the court as the law applicable to the case, is irrelevant. In dutifully attempting to apply it to the evidence, it may have found significant the words “the commission of the homicide by *589 defendant being proved,” and taken them to indicate the court’s belief that this much has been proved. (People v. Tapia, supra.) It is also likely that the jury failed to observe that proof of “the commission of the homicide by defendant” must precede the application of the instruction, and concluded that the instruction placed the burden of proving some facts on the defendant and some on the prosecution, thus depriving defendant of his right to have the prosecution prove all material facts beyond a reasonable doubt. Such an error is made the more serious by use of the statutory language, giving the jury the impression that defendant was bound to prove such facts by a preponderance of the evidence. There was no justification for this instruction in the absence of evidence of mitigating circumstances, for the question of defendant’s guilt depended solely on whether or not he committed the homicide, and the jury should therefore have been given no instructions that did not relate to the determination of that question. In some cases it may be reasonable to suppose that the jury ignored an instruction of this kind. (See People v. Wilt, supra.) The verdict in the present case, however, in view of the uncertainty of the circumstantial evidence presented by the prosecution and its failure to prove any motive for the killing, suggests that the jury may well have been influenced by the court’s error.