People v. Peete

CARTER, J.

I dissent. In my opinion it was error to admit in evidence the matters pertaining to commission of the crime of 1920. In view of the volume of this evidence and the circumstantial nature of the proof as a whole, it cannot be said that the defendant was not prejudiced.

It is the settled policy of the law of this state to give effect to the universally recognized general rule of exclusion under which a defendant may be tried for no offense other than that with which he is charged (8 Cal.Jur. § 167, p. 58; People v. Albertson, 23 Cal.2d 550, 576 [ 145 P.2d 7 ] ; see, also, Wharton’s Crim. Evidence, §§343,344, pp. 483 et seq.; 20 Am.Jur. § 309, p. 287; 22 C.J.S. § 682, pp. 1084 et seq.) This *323 rule and the reasons for it are well stated in the leading case of People v. Molineux, 168 N.Y. 264, 291 [ 61 N.E. 286, 293 ; 62 L.R.A. 193 ] : “The general rule of evidence applicable to criminal .trials is that the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged. (1 Bishop’s New Crim. Pro. see. 1120.) This rule, so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of Magna Charta. It is the product of that same humane and enlightened public spirit which, speaking through our common law, has decreed that every person, charged with the commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a reasonable doubt. This rule, and the reasons upon which it rests, are so familiar to every student of our law that they need be referred to for no other purpose than to point out the exceptions thereto. The rule itself has been stated and discussed in this court in a number of eases, but we will cite only a few. In People v. Sharp ( 107 N.Y. 427 [ 14 N.E. 319 , 1 Am.St.Rep. 851 ]) it was said: ‘The general rule is that when a man is put upon trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime is wholly excluded.’ In Coleman v. People ( 55 N.Y. 81 ) it is laid down as follows: ‘The general rule is against receiving evidence of another offense. A person cannot be convicted of one offense upon proof that he committed another, however persuasive in a moral point of view such evidence may be. It would be easier to believe a person guilty of one crime if it was known that he had committed another of a similar character, or, indeed, of any character; but the injustice of such a rule in courts of justice is apparent. It would lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offenses to produce conviction for a single one.’

“In People v. Shea ( 147 N.Y. 78 [ 41 N.E. 505 ]) the rule is thus stated: ‘The impropriety of giving evidence showing *324 that the accused had been guilty of other crimes merely for the purpose of thereby inferring his guilt of the crime for which he is on trial may be said to have been assumed and consistently maintained by the English courts ever since the common law has itself been in existence. Two antagonistic methods for the judicial investigation of crime and the conduct of criminal trials have existed for many years. One of these methods favors this kind of evidence in order that the tribunal which is engaged in the trial of the accused may have the benefit of the light to be derived from a record of his whole past life, his tendencies, his nature, his associates, his practices, and in fine all the facts which go to make up the life of a human being. This is the method which is pursued in France, and it is claimed that entire justice is more apt to be done where such a course is pursued than where it is omitted. The common law of England, however, has adopted another, and, so far as the party accused is concerned, a much more merciful doctrine. By that law the criminal is to be presumed innocent until his guilt is made to appear beyond a reasonable doubt to a jury of twelve men. In order to prove his guilt it is not permitted to show his former character or to prove his guilt of other crimes, merely for the purpose of raising a presumption that he who would commit them would be more apt to commit the crime in question. ’ . . . The court of last resort in Pennsylvania thus states the rule: ‘It is the general rule that a distinct crime unconnected with that laid in the indictment cannot be given in evidence against a prisoner. It is not proper to raise a presumption of guilt on the ground that having committed one crime, the depravity it exhibits makes it likely he would commit another. Logically, the commission of an independent offense is not proof in itself of the commission of another crime. Yet it cannot be said to be without influence on the mind, for certainly if one be shown to be guilty of another crime equally heinous, it will prompt a more ready belief that he might have committed the one with which he is charged; it, therefore, predisposes the mind of the juror to believe the prisoner guilty. ’ (Shaffner v. Commonwealth, 72 Pa.St. 60 [ 13 Am.Rep. 649 ].)”

After thus reviewing the general rule, the court in the Molineux ease discusses the applicability of various exceptions, saying: “The exceptions to the rule cannot be stated with categorical precision. Generally speaking, evidence of other crimes is competent to prove the specific crime charged *325 when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial. (Wharton on Crim. Ev. [9th ed.] sec. 48; Underhill on Ev. see 58; Abbott’s Trial Brief, Crim. Trials, sec. 598.)”

First, as to motive, it is pointed out that “in every criminal trial when proof of motive is an essential ingredient of the evidence against a defendant, the motive to be established is the one which induced the commission of the crime charged. This is too simple for discussion. To hold otherwise would be to sanction the violation of the general rule under the guise of an exception to it.” In the present case, the motive which prompted the crime charged, if defendant committed that crime, was to acquire for herself the property of her victim, or to prevent the victim from reporting the forgery of the check or other misconduct. In either case the fact of the 1920 murder was of no probative value in establishing the motive for the later crime. Because of the large percentage of crimes committed for the purpose of feloniously acquiring property of another, that similarity of motive alone is not sufficient to f warrant application of the exception to the general rule.

Second, as to intent, which is distinguishable from motive, it is obvious that proof of an intent to kill Denton in 1920 was of no probative value in establishing an intent to kill another at a different time.

Third, under the facts it is clear, and indeed there is no contention to the contrary, that the exception relating to the absence of mistake or accident has no-application.

Fourth, as to plan or scheme, it is said in the Molineux ease, that “To bring a case within this exception to the general rule which excludes proof of extraneous crimes, there must be evidence of system between the offense on trial and the one sought to be introduced. They must be connected as parts of a general and composite plan or scheme, or they must be so related to each other as to show a common motive or intent running through both. . . . Some connection between the crimes must be shown to have existed in fact and in the mind of the actor, uniting them for the accomplishment of a common purpose, before such evidence can be received. This *326 connection must clearly appear from the evidence. Whether any connection exists is a judicial question. If the court does not clearly perceive it, the accused should be given the benefit of the doubt and the evidence rejected. The minds of the jurors must not be poisoned and prejudiced by receiving evidence of this irrelevant and dangerous description.” Applying this test to the present facts, it is seen that there is no evidence of common purpose, plan, or scheme. At most the prosecution showed that two isolated murders were committed, with twenty-four years intervening between them, for the apparent purpose in each case of securing the victim’s property. The death of both victims was not a means to a single goal.

Lastly, as to the exception covering identity, it is said in the Molineux ease: "There are not many reported cases in which this exception seems to have been affirmatively applied. A far larger number of cases, while distinctly recognizing its existence, have held it inapplicable to the particular facts then before the court. The reason for this is obvious. In the nature of things there cannot be many cases where evidence of separate and distinct crimes, with no unity or connection of motive, intent or plan, will serve to legally identify the person who committed one as the same person who is guilty of the other. The very fact that it is much easier to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime proves the dangerous tendency of such evidence to convict, not upon the evidence of the crime charged, but upon the superadded evidence of the previous crime. Hence our courts have been proverbially careful to subject such evidence to the most rigid scrutiny, and have invariably excluded it in cases where its relevancy and competency was not clearly shown. As was said in People v. Sharp ( 107 N.Y. 471 [ 14 N.E. 319 , 1 Am.St. Rep. 851]) such evidence ‘tends necessarily and directly to load the prisoner down with separate and distinct charges of past crime, which it cannot be supposed he is or will be in proper condition to meet or explain, and which necessarily tend to very gravely prejudice him in the minds of the jury upon the question of his guilt or innocence. ’ Such evidence gives opportunity for the conviction of an accused person upon mere prejudice instead of by evidence showing the actual commission of the • crime for which a defendant is on trial. It compels a defendant to meet an accusation not charged in *327 the indictment, which he might successfully refute if given the opportunity to do so, unembarrassed by other issues. ’ ’ In the present case the defendant was admittedly at the scene of the murder. The only issue was whether it was she or Mr. Logan who struck the blows and fired the fatal shot. How evidence of the 1920 crime could prove her identity rather than that of Mr. Logan as the murderer is obscure, unless it can be said that the two crimes show a common plan or scheme. But, as already stated, no common plan appears other than perhaps a purpose to feloniously acquire property of the victim, and that is not a sufficient connection to justify application of the exception to the general rule.

The development of the law in this state shows a departure from the early restrictions governing the application of exceptions to the general rule as defined in the Molineux case. This is evidenced by decisions such as People v. Lisenba, 14 Cal.2d 403 [ 94 P.2d 569 ], and eases there reviewed (see dissenting opinion reported in volume 89 2d of the Pacific Reporter at pages 54-108). In my opinion the pendulum has swung too far to the side of admissibility. The restrictions should be reappraised and given effect. As said in People v. Albertson, 23 Cal.2d 550, 577 [ 145 P.2d 7 ] : “The trial court, however, should be guided by the rule that such proof is to be received with ‘ extreme caution, ’ and if its connection with the crime charged is not clearly perceived, the doubt is to be resolved in favor of the accused, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt. ’ ’ (See, also, People v. Glass, 158 Cal. 650 [ 112 P. 281 ]; People v. Lane, 100 Cal. 379, 387-390 [ 34 P. 856 ]; People v. Darby, 64 Cal.App.2d 25 [ 148 P.2d 28 ]; 13 Cal.Jur. §84, p. 707; 8 Cal.Jur. § 168, p. 61.)

An indication of the policy of this state to adhere to a limited application of the exceptions to the general rule is found in section 1025 of the Penal Code, enacted in 1874, which provides that when a defendant who pleads not guilty has been charged with a previous conviction and admits the charge, “the charge of the previous conviction must not be read to the jury, nor alluded to on the trial.” Although, as the majority opinion notes, this statute, as construed and applied, does not exclude relevant evidence, or prevent the impeachment of a witness by proof of conviction of a felony, nevertheless this *328 court just recently took occasion to comment at length on the prejudice which is thrust upon any defendant charged with crime who has been previously convicted of a felony (People v. Adamson, 27 Cal.2d 478, 494 [ 165 P.2d 3 ]). So far as possible the settled policy underlying the .enactment should be given effect (see People v. Sansome, 84 Cal. 449, 451 [ 24 P. 143 ]; People v. Hobbs, 37 Cal.App.2d 8, 11 [ 98 P.2d 775 ]), and the application of exceptions to the general rule should be confined to the narrow field laid down in early cases.

The issue of remoteness is an important one. The proximity of the offense charged to the prior offense sought to be introduced in evidence is universally considered by the courts in determining whether such evidence is admissible (63 A.L.R 602; 22 C.J.S. §§ 683-689, pp. 1089-1111; 1 Wharton’s Criminal Evidence (11th ed.) § 361, p. 569; 8 Cal.Jur. § 170, p. 65). Generally it must appear that the evidence of other offenses relates to acts that occurred shortly before, or shortly after, the commission of the offense for which the accused is being tried. However, no definite time limit can be fixed, and the matter rests largely in the discretion of the court. The California Jurisprudence text writer states: “In regard to the distance of time between the principal fact and the collateral fact to be shown in proof of knowledge or intent, no precise rule can be established so far as the admissibility of the evidence is concerned. If the principle upon which this evidence is introduced is the doctrine of chances or probabilities, the remoteness of such occurrences in point of time goes to the weight rather than the admissibility of the evidence. In such cases, if the evidence has any application under the rule, whether or not it has sufficient weight to entitle it to be submitted to the jury is a question for the trial court. The question must be left in a great measure to the discretion of the judge who tries the case.” (8 Cal.Jur. § 170, p. 66.)

Under this rule, it appears that in this case the mere fact of extreme remoteness did not compel the exclusion of evidence of the prior offense by the trial judge. However, when it is considered that twenty-four years elapsed between the two crimes, eighteen of which were spent by the defendant in prison with ample time for reflection, it is at least arguable that even had she originally intended to murder a second victim, she would hardly have planned to carry out the crime by the same method which had resulted so disastrously for her in the first instance. In other words, the fact of remoteness, *329 considered with all of the other facts in this case, negatives any common plan and supports the conclusion that the trial court abused its discretion in admitting evidence of the prior offense.

In my opinion the defendant should be retried on evidence confined to the commission of the offense with which she is here charged.

For the foregoing reasons I would reverse the judgment.

Appellant’s-petition for a rehearing was denied July 2,1946. Carter, J., voted for a rehearing.