58 Cal. 2d 385 | Cal. | 1962
Defendant appeals from a judgment of conviction on two counts of attempted murder. That judgment included a denial of the motion for new trial. He was charged
On and prior to July 20,1959, defendant and his wife lived in the Pacific Palisades area of Los Angeles. They had been married for over 10 years, and had three children, aged 5, 8 and 9. Mrs. Nilson, who lived alone in the Wilshire area of the same community, was an overnight guest in the Briggs home on the night of July 19, 1959. On the morning of the 20th Mr. and Mrs. Briggs undertook to drive her home. Defendant drove the car, his wife sitting alongside of him, with Mrs. Nilson on the extreme right of the same seat. The ear was a 1958 Mercury which belonged to Mrs. Nilson, but which she had left with the Briggs for the past several months because she did not care to drive it any longer. Mrs. Briggs was familiar with its operation, she having driven a duplicate of it for some time. It was equipped with automatic transmission, operated by push buttons situate on the dash in front of the driver, and was also equipped with power brakes. After leaving the house, Briggs drove to a service station where he had both the gas tank and a spare 5-gallon can filled with gasoline. He then drove into the Santa Monica hills, which were not on the direct route to Mrs. Nilson’s home. At a point where the road ran along a canyon wall, he parked the car on the right-hand side of the road (closest to the downgrade side of the canyon), on the pavement, and parallel to the road; that is, in a normal parking position. He had stopped the car by simply removing his right foot from the accelerator pedal and depressing the emergency, or “parking” brake, with his left foot. (That brake remains engaged when the pedal has been depressed, and is released by means of a push button.) The motor was running, and the transmission was in “driving” position. With the ear in such position and condition, Briggs said something about the motor overheating, pressed the button which released the hood, and got- out.
The foregoing facts are uncontroverted. The rest of the testimony, regarding the movements of the three principal actors both before and after the occurrence, their relationship to one another, and motive or the lack thereof, was highly conflicting. As stated in respondent’s brief: “In this extraordinary and fascinating case the crucial question . . . was the conflict between mother and daughter.” The great discrepancy between the stories told by Mrs. Briggs and Mrs. Nilson, and the manner in which impeachment and rehabilitation of each was attempted, require a careful analysis of the testimony of each, not only as to the facts surrounding the alleged crime, but as to motive and opportunity for its commission.
No evidence was offered to contradict the defense testimony that there had never been any but a happy, normal connubial relationship between defendant and his wife. As evidence of motive, the prosecution attempted to show that if both Mrs. Nilson and Mrs. Briggs had died, Briggs would have inherited the considerable fortune owned by each, and also that he would have benefited by reason of recently obtained policies of life and accident insurance (totaling $600,000). That evidence was to the effect that when Mr. Nilson died (many years before the Briggs’ marriage) the mother and daughter each inherited a very sizable fortune, some of which was distributed to each heir individually, while some was distributed in joint tenancy in order that Mrs. Nilson could manage the same for their joint benefit. As a result there was, on July 20, 1959, a considerable estate to which Briggs would normally succeed. But the legal situation was not normal. In the first place, immediately prior to his marriage Briggs (at the insistence of Mrs. Nilson) had executed a disclaimer of his right to
In order to show intent, or a plan of action consistent with intent, the prosecution relied on two facts. These were the filling of the 5-gallon gasoline can, and the allegedly unexplained'“detour” into the Santa Monica hills. As to the first, Mrs. Nilson merely recited the fact that Briggs brought the empty can with him and had it filled at the service station at the time of filling the tank of the car. There was no claim made that the car tank did not need filling, or that Briggs thereafter attempted to make any improper use of the can of gas. It was evidently the prosecution’s theory that he would have done so had he had the opportunity. By way of rebuttal, both Mr, and Mrs. Briggs testified that the 5-gallon can had
Regarding the alleged detour to the scene of the alleged attempt, Mrs. Nilson testified that when the family arose on the morning of the 20th she asked to be driven home; that both Mr. and Mrs. Briggs assented, but stated that they would first take her for a drive into the mountains; that she asked why they were going on this side trip, but was unable to receive an answer from either of them; that she protested the side trip during all of the journey. Both Mr. and Mrs. Briggs testified that it was their custom to spend a great deal of their time in the Santa Monica Mountains; that they often took trips to the vicinity of the alleged attempt, both for driving and hiking; that they often took their children there on picnics and hikes; that for many years they had been looking for acreage to use as a residence on which they could live and provide their children with horses and other incidents of country life not feasible in the Pacific Palisades; that the road they took was one of the approaches to the Boy Scout camp maintained by their church, and that Mr. Briggs (being on the Scout committee) desired to interest his mother-in-law in this property in order to solicit her financial aid in a building program; that at the dinner table, on the evening of the 19th, Mr. Briggs had advised the ladies that a real estate broker had told him of a piece of land in the area which was available, and that he thought that the three of them should drive up there on the next morning in order to look it over; that Mrs. Nilson was fully aware that the trip into the hills was for the varied purposes of looking for such property, showing her the country in which they were interested, and showing her the Scout camp; that although Mrs. Nilson asked to be taken home instead, she did not object strenuously when advised of the side trip. Mr. Briggs was unable to recall the name of the alleged realtor who had advised him of the available property, or to produce his card. He claimed that the man had been a stranger to him until he met him on the previous day, and that the business card on which he had made the notes had been in his shirt
The manner in which the “accident” or “attempted murder” occurred was related solely by Mrs. Nilson, Mrs. Briggs, and the defendant, there being no other eyewitnesses. Mrs. Nilson testified that when Briggs first got out of the car he went to the front and did something with his hands in the vicinity of the motor; that he then returned to the door by the driver’s seat, reached in and pushed some of the buttons, and the ear started forward; that he then took hold of the wheel in an attempt to turn it to the right so that the car would go over the cliff; that his wife also grasped the wheel and struggled with him, but was unable to avoid the consummation of his purpose; that the car went over the edge, stopping some 60 feet down the face of the cliff, where Mrs. Briggs applied the power brakes; that neither she nor Mrs. Briggs received any wounds or injuries up to that point, although the descent was so steep that when she later got out of the ear she was unable to stand or move, and had to hang on to the brush for three hours.
Mrs. Briggs testified that she could see Briggs’ hands, and that he did not do anything to the engine; that as she was sitting in the center of the front seat, with her feet on the hump caused by the transmission housing, she (being over 6 feet tall) was off balance; that as her husband returned to the door of the car she was thrown off balance and slipped sideways to her right, causing her foot to depress the accelerator ; that at this moment her husband reached in toward the operating buttons, but was unable to depress whatever he was reaching for by reason of the movement of the car; that the car “shot” forward; that in her panic she tried to raise herself from her fallen position by grasping the wheel and pulling herself up; that in doing so, she inadvertently turned the car to the right, and so over the cliff; that it “shot through the air,” landing some 50 or 60 feet below on a narrow ledge which caused it to stop; that by this time she had been able to get her foot on the power brake which she had depressed to its fullest extent; that she noted that both she and her mother were bleeding, and thereupon she became unconscious. Briggs’ story was similar to that of his wife. He added that when the car commenced to move, he reached for and pushed at the “reverse” button, but was unable to depress it. He also stated that he tried to turn the wheel to the left (from his position outside) and being unable, he panicked and
A prosecution witness, qualified as an expert for the purpose of explaining the manner of operation of the car and its reaction to various stimuli, testified that in proper operating condition it would not move with the parking brake on, even though the engine was running and the transmission was in “drive” position, unless the engine was accelerated. He further explained that if the brake was released while in drive, without undue acceleration of the engine, the car would start forward at an ordinary speed, gathering momentum as the accelerator was applied, but that if sufficient excess acceleration was applied rapidly (that is, if the gas pedal was pushed all the way to the floor) while the parking brake was engaged, the car might shoot forward at a rapid rate at the moment the increased acceleration overcame the braking power. He also testified that if a person had sufficient mechanical knowledge, he could insert an object in the linkage where the connection from the accelerator pedal meets the carburetor, thus speeding up the engine without access to the gas pedal.
The testimony regarding the activities of each of the three participants after the car stopped for the first time is also highly conflicting. Mrs. Nilson testified that when the car came to a stop Briggs appeared at the door on the driver’s side, shouting at his wife, “Why did you put your foot on the brake?” She further stated that he looked insane, with glazed eyes, and that he was shaking all over • that he thereupon attempted to push his wife’s foot off the brake, and being unsuccessful in that attempt, went to the back of the car and obtained from the trunk
Mrs. Briggs told a different story. She testified that when she became conscious the car was stopped on the ledge, and she had her foot on the power brake; that her husband appeared at the car door looking anything but calm (she corroborated her mother only in regard to Briggs’ crazed appearance), but shouting at her to keep calm; that he first pushed the hood (which had remained up, thus blanking the driver’s view) into closed position, and then slid into the driver’s seat, stating that he would back the car up the cliff; that during all of this time her mother was shouting at her that Briggs was trying to kill them both, and that he had been beating them both with an iron bar;
Briggs testified substantially as did his wife. However, he claimed recurring short periods of black-out or unconsciousness, and was unaware of the time or manner in which Mrs. Briggs left the car. He stated that he was anything but calm, both by reason of fear and by reason of injury as he fell down the cliff after the car. He claimed to have been acting in response to certain Bed Cross training which he had received, and in which he had been admonished to attempt to create a calm atmosphere in moments of emergency. This was his explanation of his action in making believe that he could back the ear up the cliff, although he knew that such was impossible. He testified that his actual intention was to merely hold the car in place for sufficient time to arrange the ladies’ exit. He denied attacking either of the women. When he came to and found his wife gone, he continually asked her whereabouts from Mrs. Nilson, who at first gave him no reply,
The testimony of Mrs. Nilson was basic to the proseeution. To impeach her Mrs. Briggs testified to certain facts from which it can be inferred that her mother had a motive to secure the conviction of the defendant. In giving this evidence, it is reasonably inferable that Mrs. Briggs, because of the conflict between her duty to tell the truth (or help her husband, as the case may be) and her filial duty, attempted to state the facts in such a way as would soften the appearance
Mrs. Nilson took the stand on rebuttal and denied all of the
Damaging impeachment of Mrs. Briggs consisted of showing that at the preliminary hearing she had testified that Briggs had beaten the two women about the face and head when the car was at its first point of rest. (Otherwise her testimony at the preliminary hearing, including her explanation of the manner in which the accident occurred, was consistent with her testimony at the trial.) The inference that she was, at the moment, afraid of her husband, was also bolstered by her admission that she hid herself at the bottom of the canyon after leaving the car. In an attempt to rehabilitate herself, Mrs. Briggs explained that when she first regained consciousness and saw her mother and herself covered with blood, and heard her mother screaming that someone was trying to kill them, and had been beating them with a tire iron, and admonishing her to run for her life, she ran and hid in panic; that from the moment she was placed with her mother at the hospital until the moment of their release, Mrs. Nilson continuously kept stating that Briggs had beaten the two of them in an attempt to kill them both; that after their release, and during-the time that Mrs. Nilson stayed at the Briggs’ home, her mother continued such statements, never giving the daughter any peace or relief from her harangue; that because in her entire life she had been under her mother’s domination, never having doubted her word or questioned her authority, she at length came to believe that such a beating must have been administered ; that it was only when her mother, during this period, walked to the Briggs’ rock pile and picked up a rock, stating
Mrs. Nilson testified to an incident which, she claimed, occurred at her house between the dates of the preliminary hearing and the trial. According to her version, Mrs. Briggs was despondent because she had decided to perjure herself in order to save her husband. She testified that on a specific date and occasion Mrs. Briggs discussed this fact with her, and, taking a knife from the kitchen drawer, threatened to kill herself. The defense rebutted this story by producing a business associate of Mrs. Nilson (a tenant, with whom both women were arranging the details of building new premises on a piece of joint tenancy property). According to his testimony, he was present in Mrs. Nilson’s kitchen for the entire period assigned by Mrs. Nilson to this incident, having arrived before and staying later than Mrs. Briggs. He completely denied the story told by Mrs. Nilson (including the suicide threat), and corroborated Mrs. Briggs in her statement that
Another effort to discredit Mrs. Briggs’ attempted rehabilitation was made by interrogating her regarding inconsistent statements which she was supposed to have made to the police and ambulance drivers at the time she was rescued from the bottom of the canyon, and subsequently in the hospital. Each such alleged statement was read to her from an unidentified document. When she denied having made each and every such statement, the various police officers and ambulance attendants were called. Each testified that Mrs. Briggs made to them, in July of 1959, certain statements which the prosecuting attorney purported to be reading to them in haeo verba from written reports in his possession, but which “reports” were subsequently determined to be documents which the respective witnesses prepared at the district attorney’s request after commencement of trial, and after at least one such witness had had the opportunity of hearing Mrs. Briggs’ testimony at the trial.
Appellant’s first contention is that the evidence was insufficient to support the verdict. Such contention, standing alone, would warrant reversal only if there is no evidence as to some essential portion of the charge, or if the evidence as to some such portion is so improbable as to be unworthy of belief by a reasonable person. The record here will not support either such claim. Mrs. Nilson testified to facts which, if accepted by the jury, contained every essential element of the charge. If her story had gone unchallenged there could have been no claim of insufficiency of the evidence. By way of rebuttal the defense offered evidence tending to east doubt on practically every portion of her testimony, but such impeachment went only to the weight to be given to the evidence, and it was for the jury to accept or reject the original story or the impeachment. It is also true that the evidence which the defense offered in support of its explanation of an accident would, if accepted by the jury, have been sufficient to sustain
Such conclusion, however, requires further comment on the evidence. The jury was required, in order to reach a verdict, to reject the testimony produced by the defense and to accept that produced by the prosecution. In such a situation it is apparent that anything which tended to discredit the defense witnesses in the eyes of the jury, or to bolster the story told by Mrs. Nilson, assumed an importance which would not be attributable to it in an ordinary situation. Thus, even though the evidence was sufficient to sustain the verdict, its nature was such as requires close scrutiny when determining the prejudicial nature of any error.
In construing the constitutional admonition against reversal in the absence of miscarriage of justice (Cal. Const., art. VI, §4½) it has been held that reversal is proper only when, after reviewing the entire record, including the evidence (People v. Woods, 190 Cal. 513 [213 P. 951]) it appears reasonably probable that a result more favorable to the appealing party would have been reached in the absence of errors which were properly preserved in the court below (People v. Watson, 46 Cal.2d 818 [299 P.2d 243]). In the instant case, the jury was not only faced with the mentioned contradictions in the testimony of the opposing parties, and with the various attempts to impeach and rehabilitate both sides, but it also had knowledge of a situation which must have required it to ponder at great length before rejecting Mrs. Briggs’ testimony that the occurrence was the result of an accident. Inherent in Mrs. Nilson’s version is the fact that if the same was true, then Mrs. Briggs, of course, knew it to be true. Regardless of any assumed desire on the part of the wife to come to the defense of her husband, it must have been hard for the jury to believe that a woman who knew that her husband had tried to kill her would subsequently employ every effort to secure his acquittal. Pear for herself and for her children would militate against such action. If the prosecution’s theory was to be accepted (as it was), Briggs
The appellant contends that in determining the sufficiency of the evidence this court should consider the diary of Mrs. Nilson which was introduced into evidence for identification only. Although we have come to the conclusion that such diary may not be considered on this appeal, we note that if it had been properly offered and admitted it would constitute evidence of utmost significance to the defense, and most certainly would have added to the great weight of material which tended to bolster the defense witnesses and discredit
From this review of the evidence, it is our conclusion that although it is sufficient to sustain the two jury verdicts, it is so close (without consideration of the diary), that any substantial error tending to discredit the defense, or to corroborate the prosecution, must be considered as prejudicial.
Appellant contends that the trial court erred in admitting into evidence certain statements and declarations made by Mrs. Nilson at the scene of the alleged crime, and certain unanswered questions posed by the arresting officers, all over the objection of defendant. Bespondent argues that such evidence was admissible as accusatory statements, made in the presence of defendant, to which he failed to respond. Bespondent also contends that the point may not be raised on appeal for the reason that defendant did not follow up his objection when the trial court failed to rule on it.
The record shows that defendant was picked up from the road in a questionable mental and physical condition. He was drooling and incoherent. Although it was the prosecution’s theory that this condition was feigned, the ambulance attendants who found him refused to state any opinion thereon, and the prosecution failed to call the doctors who first examined him. The ambulance attendants first questioned Briggs as to whether he had done anything wrong, and he made a blanket denial. They then tied him to the stretcher, for protection, placed him in the ambulance, and drove him to the scene of the accident. At that point, and while he was in the ambulance, with the door open, Mrs. Nilson was brought
At the trial, prosecution witnesses were allowed to testify to the verbatim accusations made by Mrs. Nilson, as well as to the unanswered question subsequently asked of Briggs, all ón the theory that his failure to reply was evidence of guilt. The prosecution does not deny that the testimony in question was hearsay, and thus not admissible unless it came within the exception of undenied accusatory statement. The circumstances related above indicate that this particular testimony should not have been admitted as such an exception, at least without some showing that the defendant heard, understood, had an opportunity to deny, and was in a position wherein he was called upon to make a denial.
The exception to the hearsay rule is founded upon the proposition that the failure to deny under proper circumstances indicates a consciousness of guilt (19 Cal.Jur.2d, Evidence, §401, pp. 141 et seq.). But where there is some doubt as to whether the defendant was in a position to hear the statements, understand them, or make reply, the question of whether his failure to respond gave rise to an inference of acquiescence or guilty conscience is a matter for the trial court to determine, before admitting the testimony (idem, p. 143; see also People v. Davis, 43 Cal.2d 661, 670 [276 P.2d 801] ; People v. Yeager, 194 Cal. 452, 487 [229 P. 40]). Here, defendant called this very fact to the attention of the court by his objection in which he stated that there was no showing that he had either heard or understood Mrs. Nilson’s statements, but the court did not take any evidence then or at all on that subject before admitting the hearsay. Even if we accept the prosecution’s unproved theory that defendant was feigning his mental and physical condition,
Furthermore, the hearsay statements may not be admitted under any guise if the circumstances indicate that defendant was not entirely free to reply if he chose to do so, or that his silence was attributable to the exercise of his constitutional privilege against self-incrimination (19 Cal.Jur.2d, supra, pp. 141-142). Here defendant was not only under the custodial restraint of the police, but he had already been told that he was suspected of crime, and he had been told by the officer to keep quiet when he attempted to interrupt. For this reason, alone, the so-called accusatory statements should not have been admitted.
Some legal scholars have questioned the propriety of admitting undenied accusatory statements made while the defendant is in custody, for the reason that, in such a case, the so-called admission is not free or voluntary, and that the failure to deny while in custody, while it may indicate an abnormal state of mind, does not necessarily indicate a guilty frame of mind. (See Admissibility of Accusatory Statements as Adoptive Admissions When Defendant Is Under Arrest, 35 Cal. L. Rev. 128.) California, it is true, permits the introduction of such evidence when it is shown that defendant heard, understood, and had an opportunity to deny, but it has not permitted the unrestricted use of such evidence (People v. Simmons, 28 Cal.2d 699, 712-721 [172 P.2d 18]). In the Simmons case, after holding the admission of such statements was error, this court did not reverse because the defendant’s voluntary confession made the error nonprejudicial. But in the next year, in People v. Bob, 29 Cal.2d 321 [175 P.2d 12], the court followed the rule of the Simmons case, this time reversing. In the instant case, the fact that the defendant was told to keep quiet is much more persuasive than any factor discussed in the Bob ease.
The contention that this point should not be considered by this court because defendant failed to follow up his objection is untenable. The record shows that counsel first objected when the officer commenced his testimony by relating the statements which Mrs. Briggs was said to have made outside of the ambulance. The stated ground of the objection was that “Mr. Briggs wasn’t present.” This amounted to objecting on the ground that the evidence was hearsay, and that there had been no showing warranting an exception to the
We are urged by respondent to hold that the point under discussion may not be now considered not only because defendant failed to make the proper objection in the first instance, but further because he failed to press his objection -when the court failed to rule. Because of the intentional or inadvertent actions of the trial judge there was no opportunity to enlarge on either the objection or the motion to strike. Even if, contrary to the fact, the objection was not properly phrased,- and even if it was not stated in the most precise terms, “[w] e do not feel inclined to deprive defendant of his right to ... . be tried with competent evidence because of the oversight of his counsel in the midst of. a difficult trial to remember that he should add the word, hearsay, to the statement of his objection.” (People v. Darby, 64 Cal.App.2d 25, 33 [148 P.2d 28] ; People v. Bob, supra, 29 Cal.2d 321.) Nor do we feel inclined to require more than one objection and one motion to strike when counsel has been ignored (inadvertently or otherwise) on two occasions. The situation is analogous to that where counsel is excused from making further offer of proof when the court has once indicated its refusal to receive a general class of evidence (Costa v. Regents of University of California, 116 Cal.App.2d 445, 465 [254 P.2d 85]).
For these reasons, and without passing on the question of whether defendant’s general denial of any--wrongdoing made before the accusations were uttered, made further denial unnecessary, the admission of the accusations was error. The error was prejudicial for the reason that the erroneous admission of these accusations obviously tended to discredit defendant and to bolster the testimony of Mrs. Nilson. In view of the closeness of the evidence it is at least reasonably probable
There are certain other matters that may arise on the new trial and for that reason should be discussed.
Appellant contends that the trial court erred in allowing the prosecution to cross-examine Mrs. Briggs, and subsequently to examine its own witnesses, from documents which the prosecuting attorney obtained from certain of his witnesses after the commencement of trial, and which appeared to be (but were not) reports made prior to trial and at the time that each of such witnesses had a conversation with Mrs. Briggs. Unfortunately, trial counsel confined her objection, and counsel on appeal similarly confines his argument, solely to a question of discovery, and neither calls attention to the real error involved. It appears that prior to trial defendant had requested inspection of all reports and written documents in the possession of the prosecution. The court had made an order granting such request, and there is no claim that the prosecution failed to comply. When, at the trial, it became apparent that the prosecuting attorney was reading from a document which defense counsel had not seen, there was an immediate objection followed by discussion, argument and the presentation of evidence on the point, all in chambers. These discussions in chambers were continued, or were repeated, over several days, each time a new document was disclosed. It was there shown that when the prosecution first examined the police and the ambulance attendant as prosecution witnesses it was in possession of various police reports which had been submitted to defendant for inspection, and which contained information in summary form, only, and which did not indicate that Mrs. Briggs was the source of any of that information. At that time there had been no written memoranda made by any of the witnesses purporting to be a haec verba record of any conversation with Mrs. Briggs. But, after Mrs. Briggs had testified, the district attorney discussed her testimony with his witnesses in order to prepare for rebuttal, and discovered that they had no written reports of their conversations with Mrs. Briggs either at the scene or at the hospital. He thereupon requested them (at that later date) to make written reports to him, setting forth those conversations. Although those “reports,” made seven months after the conversations, were perused by the court and both counsel in chambers, they were not identified or placed in evidence, so they are not in the record. But the way they were used by the
In reference to these “reports,” defendant’s counsel took the position that the original order requiring inspection of documents took on the nature of a “continuing” order, and that therefore the prosecution was bound to have delivered copies, or to have allowed inspection, when the same first came into its hands (which, in each case, was several days prior to use of the document in court). The court ruled, properly, that the original order was not a continuing one, and that the prosecution fulfilled its duty when it allowed inspection of all documents then in its possession. No one having argued any other phase of the matter, the court then required the prosecution to make disclosure, in chambers, and then allowed the examinations to continue in the manner stated above. Counsel for appellant now argues that the case law regarding discovery on behalf of a defendant in a criminal case will be entirely frustrated if this practice is to be condoned. It is pointed out that a prosecutor may escape the burdens of discovery by the simple expedient of advising the police to make no written reports until after the commencement of trial. Any merit which there may be in such an argument is negated where the prosecutor is merely attempting to obtain from his own witnesses some additional material to be used by him in the actual trial. No authority has been produced which supports a claim that an attorney (prosecutor or otherwise) must subject to inspection each note he gives to or receives from a witness during trial. Such would be tantamount to requiring him to maintain his trial file open for inspection at all times. That is not the law.
The manner in which the documents were used, as distinct from the fact that they were used, created a situation which might have constituted serious error had it been called to the attention of the trial court by timely objection. In examining both Mrs. Briggs and his own witnesses the prosecuting attorney phrased each question by reading to the witnesses directly from the recently prepared documents, as if he held in his hand a transcript of a conversation which had taken place some seven months previously and purportedly transcribed at that time. In that manner he read, in haec verba, a question purportedly asked of Mrs. Briggs together with an answer purportedly given by her, and then asked the witness if such
In examining Mrs. Briggs, there is no doubt that the prosecution was entitled to ask her if she had given specific answers to specific questions during specified extrajudicial conversations, for the purpose of showing inconsistency with the testimony she had given at the trial. Such is required as foundation before she might be impeached by calling the other parties to the conversation as witnesses (Code Civ. Proc., § 2052; People v. McCoy, 25 Cal.2d 177 [153 P.2d 315]). And since the purported transcript of such conversation had never been seen, corrected or signed by her, it was not a document which the examining attorney was required to first show to the witness under the provisions of the code (Code Civ. Proe., §§ 2052 and 2054), and the examiner was entitled to refer to it for the purpose of refreshing his memory in framing his questions (People v. Singh, 136 Cal.App. 233, 243 [28 P.2d 416] ; People v. Haughey, 79 Cal.App. 541, 544 [250 P. 406]). But by reading from the documents in haec verba, as he did here, the prosecuting attorney created the impression that he was reading from an authentic and identifiable transcript of a conversation made at the time that conversation took place. He made no attempt to explain to the jury that this was not the ease, or that such a transcript (if it had existed) was not of itself evidence and could only be used to lay the foundation for the impeachment of Mrs. Briggs by subsequent testimony of the other party to the conversation (People v. Haughey, supra). Of course, the prosecuting attorney was under no duty to make such an explanation in the absence of any suggestion from defense counsel, but his failure to do so, when considered in light of his knowledge of the true nature of the document, most certainly gave the jury an erroneous impression of fact.
Much more serious was the use of the documents, in the same manner, during the examination of each of the impeaching witnesses. Relating the purported conversation in haec verba and then asking if it took place, was not required to lay a foundation, as in the ease of the examination of the witness to be impeached. Such procedure was not predicated on any showing that the witness required that his recollection be refreshed. Furthermore, if such had been the case, the manner in which recollection may be refreshed is set forth in Code of
There is no question that the documents themselves could not be introduced into evidence, nor would they constitute evidence that the conversations had taken place, even if they had been the original transcripts which they appeared to be. (In re Flint, 100 Cal. 391, 399-400 [34 P. 863].) While there was no attempt here to introduce the documents, the manner in which they were used was singularly effective in leading the jury to believe that they were original transcripts of a disputed conversation. Neither the need for refreshing past recollection (if it truly existed), nor any other requirement which might otherwise form the basis for the use of a witness’s transcribed notes, should be used as a cover to give the jury a false impression of the weight to which any testimony is entitled.
However, the problems last mentioned were not raised by appellant, and so may not be considered as error on this appeal. But, because of the necessity of another trial, for other reasons, a discussion of them has been included in this opinion so that on such retrial the possibility of error will be avoided.
Appellant also contends that he was denied a fair trial by reason of several alleged errors concerning: (1) the form of the indictment; (2) the manner in which he withdrew his plea of not guilty by reason of insanity; (3) introduction of a rock for the purpose of illustration; (4) the allegedly privileged nature of the two wills which the prosecution was allowed to introduce; and, (5) the taking of testimony at the scene of the accident. There was no error in regard to the contentions numbered (1), (2) and (3), and we have no
The judgment and order are reversed, and the cause remanded for a new trial.
Gibson, C. J., Traynor, J., Schauer, J., Me Comb, J., and White, J., concurred.
Respondent’s petition for a rehearing was denied September 26, 1962. '
The hood was hinged at the front and opened upward, so that, when raised, it would not mask a person standing by the motor from the view of persons sitting in the front seat.
The claimed error regarding the admission of these wills into evidence is disposed of near the end of this opinion.
While Briggs’ separate property did not compare in value with that of Mrs. Briggs, it is true that at the time of marriage he owned an interest in realty. Thereafter more realty was purchased with Mrs. Briggs’ money, and Briggs developed, improved and sold those properties. It follows that even if all of the same had not been placed in' joint tenancy, he would have had a considerable community interest in what became joint estate.
The testimony of this witness did not assist the prosecution. If the prosecution was attempting to show that Briggs, when at the front of the car, tampered with the linkage so as to produce an accelerated speed of the engine, it showed no such fact. In the first place Mrs. Nilson (who owned and had been the previous driver of the car) did not testify to any ‘ ‘ revving up ” of the motor while Briggs was near the engine. Moreover, the police had the car in their exclusive possession from the moment of accident until the date of trial, and had experts go over it for several other reasons, but they offered no testimony that there had ever been tampering with the accelerator linkage. On the other hand, if the prosecution was attempting to show that Briggs returned to the door and pressed the button which released the parking brake, the evidence shows that the ear would have started so slowly that Mrs. Briggs (the ordinary driver of the car) would have had ample time to turn off the motor, step on the power brake pedal, or merely steer the ear from her position next to the empty driver’s seat. In neither event could Briggs have relied on the chance that Mrs. Briggs might so slip in her seat that she would be unable to frustrate his attempt. On the contrary, the entire testimony regarding the operation of the ear tends to support the defense contention that the ear “shot” forward when the accidental application of gas, by Mrs. Briggs, overcame the braking power of the parking brake.
How any person could get' into the rear trunk and obtain a loose object (which must have slid to the front) while the car was on a grade, established by the prosecution to have been almost a cliff, remains unexplained.
The identification and admission of this rock is also subject to a claim of error which is disposed of near the end of this opinion.
She denied all possibility that either was injured during the movement of the car off the road or during its first 60-foot descent. However, the doctors who treated the women (called by the prosecution) stated that the injuries could have been produced by any blunt instrument, including objects attached to the interior of the car. Neither was requested for an opinion as to the probable cause of the injuries. The police testified to the location of the blood stains in the car, in an attempt to create an inference that they were the result of a beating, but no attempt was made to qualify them, nor were they asked for an opinion regarding whether the stains indicated injury by beating or accident. On the contrary, a defense expert testified that, in his opinion, the pattern of stains was inconsistent with the splatter . which would result from a beating about the face and head, but was consistent with injuries received by occupants of a car which moved as described above.
That either or both women originally believed a beating to have been administered by a piece of iron rather than by a rock, is demonstrated by the hospital reports which are in evidence. The history taken by the admitting physicians includes such statement, and even though the same appears on each history, there is no indication that separate histories were taken from each. The notations could have been made after interrogating Mrs. Nilson, only, and the doctors were not asked which woman gave them the information.
It is the prosecution's theory that he was feigning injury, although the facts stated above were all corroborated by the proseeution witnesses who found him. The ambulance driver, who testified to the incoherence and the drooling, did not give an opinion, either way, as to the validity thereof. Although Briggs was examined at the hospital and 'said (by the police) to have suffered no injury, no medical report of such examination was produced.
The ambulance attendant testified that this was for the patient’s safety, and not for any other reason.
Her dilemma, and the necessity for changing her story, is to be found in the fact that neither pickax, tire iron nor rock of a size capable of being used as a weapon was ever found. The hillside at the scene consisted entirely of small, loose shale. The rock subsequently identified was obtained by Mrs. Nilson (after the fact) from a rock pile in the Briggs ’ yard.
Although Mrs. Nilson denied making any such threat, the language of one of her unsolicited reports to the prosecuting attorney indicates that she did have some such thought in mind. So does the diary.
This statement is true of all such witnesses with the single exception of the newspaper photographer who took Mrs. Briggs’ picture at the scene.
In addition to such evidence which was before the jury, Mrs. Briggs’ belief in her husband’s innocence is also supported by other matters of record. She was instrumental in and spent large sums of money obtaining Briggs’ release on bail pending the trial, and accompanied him on a vacation trip to Florida during that period. She similarly spent her funds and efforts obtaining his release on bail pending appeal. When such was terminated she was the moving party who obtained bail in this court by means of an affidavit that she and the children needed his presence for their protection. She thus treated him as a husband and father, and not as a person who had tried to kill her, and who was likely to kill her children.
Although Mrs. Nilson denied under oath that she hated Briggs, in her diary she reviled him and referred to him in the lowest of terms. The diary is full of expressions of hatred for her son-in-law. It discloses no specific basis for such hatred other than the fact that Briggs had taken her daughter from her, and that he was enjoying the use of the money that “my family made.” It reveals the writer as a woman who believed that she had lost her daughter’s love and would go to any extent to regain that lost relationship. It reveals her as a mother who made insatiable demands upon her daughter’s time, and who was completely unaware that she was receiving far more of it than most married women devote to even a demanding mother. It is replete with examples which indicate her complete domination over her daughter. It also corroborates Mrs. Briggs’ testimony that it was not until after the preliminary hearing that she, Mrs. Briggs, commenced to answer or criticize her mother’s attempts to dominate her and her testimony. The diary voices suspicion of every person mentioned in it, including her daughter, without any indication of a reason or basis therefor. The diary makes the unintended revelation that the mother lived no life of her own except through her daughter. Throughout the more than one year covered by the diary, the daughter’s calls, visits and activities are detailed in minutiae on three pages out of four, without any indication that Mrs. Nilson was ever visited by or received a telephone call from any other person who was not an employee or business contact. Her typical day was spent reviewing the stock market quotations, watching TV, attending to rentals, talking to her daughter on the telephone, or waiting for the latter to call or come over. When the daughter arrived, the day was spent going to the bank, shopping, to lunch, to the beauty parlor, or attending to rentals. There is not a single mention of a visit to (or even the name of) a friend. On Christmas day (after the trial which caused mother and daughter to break off their relationship) Mrs. Nilson prepared a Christmas dinner and ate it alone. No one telephoned or came to the house.
The diary includes many items in which Mrs. Nilson's own words rebut important points in her testimony. For example, she had denied, on the stand, her daughter’s accusations that for years her mother had stated her opinion that Briggs would kill her, or send her to a “ fiery death. ’ ’ The diary reveals that after the date of the alleged crime, and months before the trial, she believed her daughter to be angry with her because all of her warnings became true.
In essence, the diary not only shows positive motive for obtaining Briggs’ conviction, it also contains material which easts grave,doubt on the credibility and mental condition of the prosecution’s chief witness.
Formerly Buies on Appeal, rule 12(a).