*1 3, One. Mar. Dist., Div. First 1952.] No. 2761. [Crim. BURNS, E. v. HUGH PEOPLE, Respondent, THE Appellant. *3 pro. per., Hagerty Emmet for Burns, in F.
Hugh E. Appellant. Attorney General, Lener, and David K. Brown, G.
Edmund Respondent. Attorney General, for Deputy propria persona from Defendant appeals BRAY, J. degree in the second of murder a a conviction represented by counsel denying a new trial. He an order argument on here. trial and at the
Questions Presented prove evidence, particularly sec- Insufficiency of the to 1. testimony, 2. Errors admission of degree murder. ond years a crime 13 of the commission of particularly judge at- Alleged misconduct of the and district 3. prior. torney.
Facts died deceased from theory prosecution It is the The defendant being defendant. beaten about head injuries falls. her death contends that was due two chil- years age, married and father of Defendant, 37 Army and was dren, sergeant a States sta- the United uniform, he Camp Saturday, tioned at Stoneman. On couple with a San Francisco other soldiers came to after stopping couple for Orinda drinks. About 6 o’clock he Myrna inwas Brownie’s Tavern where he met Mrs. Stew- art, aged 39, city. whose husband from the Burns was absent bought testified he drinks. him, that she smiled at her Both whisky. he and ginger she drank ale and In the course gave of their conversation she him name of a hotel which fussy” was not go “too and stated she would there with him evening. later in the He then went to the checked hotel, in, and returned Myrna They at the tavеrn. had more drinks. long Defendant does not know they how remained in the tavern, nor does remember leaving he tavern. given statement police Monday he stated that thing next telling remembered was the cab driver him fight “we couldn’t in his taxicab.” He also stated that he did not remember hitting Myrna, but he must have because of the driver’s statement, and then he stated that he did remember striking her in the cab. He also stated that after they got out of the cab, apologized hitting to her for her. He further stated that put driver them out of the cab. The driver p. testified that about 9 m. couple got into his cab at the Hopkins They Mark Hotel. were not drunk but evidenced drinking. had been De- particular fendant him as on, directed streets to drive drugstore stop and had him at a entered, which defendant returning approximately three minutes. first Defendant told him to drive to Twin Peaks and then told him to drive Arriving to the beach. at the beach defendant directed him along left, Highway. drive couple Great quiet way all the then, until when the driver heard *4 Myrna say, “No, don’t.” couple were embraced and he said, rough “No stuff in cab.” replied, the Defendant right.” “All Near Fleishhacker Zoo the driver made a “U” started back. turn and At Wawona said, Street defendant “Stop going We are here. over to have a drink.” The couple got “They appeared friendly.” out. At no time did the driver notice Myrna’s marks on face. There was couple pnt the did not driver cab and the fight no the his differed with trial at the testimony Defendant’s out. concerning ride testimony His officers. statement being remembered he first when he claims from the time substantially same as point up to this cab oppo- stopped was cab place of the driver. The where other side of Hitch Rack. On Mae’s site a bar called tunnel under Great pedestrian street was a concrete Highway to beach. sug- Myrna leaving the cab testified that after Defendant They started another drink. gested they had a swim before Highway. De- go across the Great up embankment to He claimed that there. fell some bushes fendant fall his were caused found on his ear scratches if by Inspector Nelder although getting up, when asked he did not know. they fingernail replied a were from right ear.) of his the back (There scatehes on were three through they it. tunnel and started He then noticed He of the tunnel. did Myrna against cement fell side although fell head head, her she hit not know whether she police he said In his statement to first towards the side. He had told cement.” slipped” and fell on “that “she (Actually the Inspector the floor was concrete. Nelder that up. They concrete.) helped He her sand, floor is loose A beach. short distance out of the on to the walked tunnel Myrna go swimming. from the tunnel undressed help her him to from asked a short distance him. She her it. Then she started helped her brassiere. He unhoоk By They completely both nude. for the water. caught fallen forward. up time he with her she had She passed thought out, had due did not answer him. He she her down drinking. to her He decided to take water difficulty lifting limp and he had revive her. She was times, tripping her carrying her. He fell with several top log. finally a over debris. he fell on of her on He Once splash got her near started to water on her. the water and top him and he rolled of her. from behind hit A breaker dry surf and to the sand. got out of the eventually her He along (Mr. walking the beach and Mrs. couple He saw asking they give him them, called to Baron). He explained Defendant over. came Baron hand. drinking and what he had tried passed out had woman they carried her to her Together where her. revive to do to to dress her. Mrs. and he started Baron were. clothes
529 got approached he his clothes off to one side and Baron so Myrna. dressed. The Barons dressed Baron and he carried through something her to the street. Baron said the tunnel getting about an ambulance. Defendant said he did not get knowing involved, want to that the woman was married already him and so was he. Baron told he involved. Defendant went across the street Hitch Rack to Mac’s and sitting asked a man and woman at a counter to call an am7 bulance, there had been an He accident. returned to Myrna. go Barons and The Barons left to to Mae’s for a cup of coffee. place, When the Barons entered decided that he everything had done he could for the woman. Defendant went towards Mac’s but continued on to the next street just, and hailed a taxi which had pas- debarked some sengers. changed He then went to hotel and into civilian clothes. then noticed ear bleeding He that his more than he had realized. He next went back to Brownie’s Tav- ern and asked Reilly, the bartender, to do him a favor, that anyone if asked if he were in there earlier in evening say to he did not see him. He then went tavern, to another had a drink and taxi, left in a which took him to his hotel got where he his suitcase. He was then Cooper to driven and Varni’s bar where he waited while the taxi driver, at defendant’s request, took his Greyhound suitcase to the bus station from which the buses leave for Camp Stoneman, it, checked and brought back key to him the receptacle. Defendant had one drink there. He asked the bartender for saying thought flashlight, he had lost his watch go at and he wanted to out the beach and look for it. This Sunday morning. 2 request was about o’clock At his he was taking Club, driven the 365 with him in the cab a woman Cooper they and met Varni’s. When closed the bar the 365 Club he returned to his hotel. He left his hotel Sunday morning 8 about o’clock and after drinking at a couple bars, getting and his suitcase at the bus station, he went to the beach and looked for his glasses wristwatch and night which hе had lost there the before. He also had lost one of his socks there. He then went couple to a of bars and then a restaurant. nothing He had had to eat since Saturday 6 morning. o’clock He returned to his hotel and Sergeant went bed. That afternoon Feller who had come down from Stoneman him waked him up started camp. back to Defendant contended that in the statement questions answers Inspector testified to Nelder twisted around. them were complete and that some of were not walking along while Mr. and Mrs. testified that Baron 11:30 that Satur- the beach between the hours of 10:30 yards beyond a nude evening day they passed 8 or give him a hand. standing, called, asking Baron man who unconscious woman, who was Lying at his feet a nude he and she breathing heavily. but Defendant stated drinking, passed out from drinking; had been she had *6 in the brought he revive her water. had her the beach to to spot defendant’s He and her to where defendant carried shivering be and Baron clothes were. The woman seemed to jacket placed took over her. defendant’s and shirt and looking Then Mrs. he for the Baron and started woman’s put he clothes. Mrs. Baron found them and and she put woman’s coat and on her. Mrs. Baron the under- dress suggested getting clothes in the woman’s hat. Baron an calling ambulance or police. he Defendant said did not get want to anything. involved Baron him told was already they suggested carry invоlved. Defendant that woman they get where a cab. Baron and defendant, could bywho dressed, then had her through then carried the tunnel to street, bringing Mrs.' Baron the underclothes and hat. carrying In place woman from lying where she was wet sand Baron did not on observe obstacles sand. Mrs. Baron log, although noticed some sort it did not obstruct path. got through their When they the tunnel Baron noticed “very woman had stout fat face or her face anything was swollen.” He did not notice about her mouth. Mrs. Baron also puffy noticed the face was and fat and there gone blood on it. Mrs. had up Baron over highway brought place and a taxi where the men had laid the by woman the side of the road. taxi driver refused to take the woman because she was unconscious but he said he police would look for a ear. Baron told de- go fendant over phone to Mac’s and for an ambulance. Defendant went Mac’s. In into less than half a minute he returned and stated they phone. that some men said would suggested Baron they go get his wife that coffee. Baron indicated to stay with the woman. Mr. and Mrs. Baron into Mac’s, went found several men there, and asked them they if had They seen a soldier come in. said anyone. had not seen police- Baron then saw two standing men there, and took them back to the woman. De- fpndant an odor had observed Baron disappeared. had heavy little was a speech His defendant. alcohol about steadily and he walked drinking, but though he had been was coherent. and hospital, ambulance to taken
Myrna was neurological Webb, specialist day. Dr. next died 10 a. m. hospital about emergency Myrna at the surgery, saw (The in evidence deeply unconscious. Sunday. She from the time regained consciousness never she dicates death.) until her She her on the beach saw Barons of a hemor face; recent there was about bruised brain dam eye her reflexes indicated right rhage lip. The the inner witness lacerations of age. had She injury had had a severe she other doctors concluded finding hematoma and a operated, a subdural He brain. surrounding membrane the brain bleeding beneath the The cause of death was intrinsic brain itself. in the brain object damage. opinion it was caused some blunt not cut. The human fist weight but would which carried face have caused A fall by repeated blows to the could it. single it, have caused nor a the sand could not overwhelm by Myrna’s ing repeatedly could it have been caused blow. Nor weight (defendant’s her falling pounds with 200 back striking weight), repeatedly a block of concrete. *7 coroner, pathologist examined de- Moon, to Dr. and found contusions and tissues lacerations. brain ceased’s organs hemorrhages opinion he found caused his neck her by pressure injuries deep caused exerted in the by traumatic pressed to the neck. The condition of by fingers neck opinion and in his could have been was traumatic brain impacts four forceful by minimum of of the human a caused to the face. fist autopsy surgeon Bosenthal, the for the coroner, testi- Dr. body examination of the he found on his contusions fied that extending jaws and down into on cheeks the neck of both aspects inner sides; upper of both lacerations lips, is, mouth; tiny multiple inside the ex- and lower tiny punctures coriations, scratches, which are over the part neck; bleeding upper under cheek and the skin eyelid upper ridge right and of the ear, left bleeding right injuries arm. He described autopsy testimony on of the brain. he found His similar respect was to that of Dr. Moon. There was blood hemorrhage in the nostrils. There was considerable and in the muscles gland, thyroid throat, larnyx, neck structure injuries to the The windpipe. surrounding the chin down under the position approximately from a extended neck injuries to the were bone. to the shoulder almost squeezing force compressive injuries a due to traumatic human hands. The brain with have been done and could multiple by traumatic, caused forceful injuries also were object could have been caused a blunt collision with Death was due to the in- face. fist to blows with the .the injuries could not have been caused the brain. The puncture excoriations about the by a fall to the sand. been made falls the sand. neck could have face and testified that when de- Reilly, the bartender at Brownie’s midnight requested tavern about he fendant returned to the anyone if witness had seen him witness, if asked say night, no. The witness stated that uniform that night the tavern earlier that defendant when Myrna wearing uniform, but was civilian he was in clothes Reilly serving testified to when he returned at this time. couple, drinks to the and that defendant was sober when him when he left earlier. saw Sergeant Sunday Feller testified that afternoon while returning camp him defendant told that he lost his glasses fight. watch and and that he had a Cooper Cooper, bar, and Varni’s testified that about 1:15 Sunday morning or 1:30 defendant came into his bar and him “he had a little trouble told out at the beach and slapped girl had around.” Pens, driver,
One taxi testified that defendant hailed flashlight him asked if he had a which he needed to use the beach where he had at lost his watch. said Pens he did not one. He drove have where hotel, de- got luggage. fendant He then drove Cooper defendant to way and Yarni’s. On the glad defendant stated that San Francisco taxi drivers were more or less close- mouthed. He being also told about swimming the beach with a woman and she drunk, hurt or the driver did which; passed remember she out and he tried to revive water; couple her in along that a came and that he told couple to wait there while he went call an ambulance, *8 managed but he to hail a cab vicinity. and left the While Cooper defendant was in and driver, Yarni’s the at defend- request, ant’s bag checked his at the gave bus station key to defendant Cooper and Yarni’s Defendant came The woman got in cab. both out a woman with him bartender tell the heard that stated to defendant she she wanted around, slapped he had another woman that The driver her. tactics on him not to the same caution use replied. did not recall whether or not defendant Investi- in the Criminal two soldiers Monday morning, On Army to de- talked States of the United gation Division him told defendant that Puckett, testified One, fendant. quarrel in a taxicab question he had night that on the cab; that her in also had struck woman; that he with a they got the cab. out of quarreled with her after he had if the asking the witness after testified that Beazley, other, said, . it was that “. . really dead, defendant woman whiskey just I drink When caused that all this. ginger ale ginger K., when I drink but water I am O. whiskey or happen.” anything can feeling get I mean ale itwith get guess “I I said, will A later short time gas for this.” chamber making denied the statements
Defendant and admissions by witnesses, except testified the above-mentioned he ad- giving complete Inspector statement to Nelder, mitted but it as forth. characterized hereinbefore set There was no evi- Myrna’s body. rape dence clothes had worn she were examined and tearing there was no еvidence of in- dication that she had not undressed herself, except, as de- her testified, fendant the removal of brassiere. Berger, autopsy surgeon
Dr. a former coroner, for the by defendant, called Myrna’s testified effect that all of injuries by have could been caused described falls defendant and contact objects with the sand or the photographs of beach showed were there. makes point
Defendant some of the fact that Dr. Webb Myrna’s skull, although bored some holes she had no skull fracture, operation may and that such have caused her explained death. Dr. Webb operation was neces- sary pressure relieve the on the brain from the hemor- rhages within the skull. There is no opera- evidence that the tion caused death. contrary, On the all evidence experts, including medical the one defendant, called she died from injury, the brain caused either from repeated defendant’s her blows falls. foregoing testimony
It is obvious recital of the justify that there sufficient in find- ing Myrna met her death as the result of admin- blows *9 534 by Assuming
istered
defendant.
the evidence
susceptible
is
might
also
of the inference that her death
falls,
justify
reversing
have been due to
that does not
us in
the verdict.
“.
. . the mere fact that
the evidence is sus
.
ceptible of
inferences,
guilt
two
one of innocence and one of
would not warrant a reversal
appel
of convictiоn. . . . The
late court
by
findings
jury
is bound
of the
where it re
jects
hypothesis
of innocence if there is substantial evi
support
dence
finding
guilt
of
as the more reasonable
hypotheses.
the two
rule,
Under this
the conviction of the
defendant herein
amply supported by
(Peo
the evidence.”
ple v. Crawford,
Second
Murder
Defendant contends
prove
the evidence fails to
sec
degree
ond
exactly
murder.
It is
clear
defendant’s
what
respect
contention
is,
general
other than his
conten
tion that
proves
Myrna’s injuries
the evidence
caused
falls rather than blows.
From the evidence
could have
gave
inferred that defendant
deceased
an unmerciful beating.
resulting
That
from such a
death
situation
degree
constitutes murder in
the second
is held
People v. Cayer, 102 Cal.App.2d
70],
643
P.2d
[228
People v. Tubby,
Admission (a) Prior Crime admissibility question in case
A is the serious prior objections, crime. defendant’s of a Over testimony the Chief of Police Qualtieri, Kane, of a Mrs. testimony Seituate, Massachusetts, was admitted. Their Qualtieri living 17, 1937, on June Mrs. disclosed that sitting Seituate, a summer resort. While she was on the along evening spoke beach defendant came to her. That After dance, he took her to dance. where defendant one, had two drinks and she took her in his car home, towards her then drove into a area off the wooded car, fists, her road, struck with his forced her out of the throat, held her her told that she would either do “private” he wanted or put what she would have kept hitting her mouth. When she refused he her in the holding face while ground by he was her down on the kept hitting throat. He her kept pleading and she go. him. Finally, he let her He was later arrested stated that he had tried “to her” but he did not make drinking heen at the doing he was as he had realize what occur, did not Defendant claimed that the incident time. charge as- pleaded guilty to a but admitted that had her brought by He said did so because girl. sault he would rail- police father on the force and have been pleaded. roaded unless he so 924], P.2d contains a 28 Cal.2d Peete,
People v. [169 certain law articles cases and review long of California list admissibility of evidence of other crimes subject of the being It the defendant tried. upon one than general exception to the rule that evidence sets forth *10 points is out offense not admissible. It and distinct another may merely be admitted not to show that such evidence “ ‘. . But whenever the case is disposition. . such criminal any prove proof of one crime tends to fact material proof admissible, is another, such and the fact the trial may prejudice tend to defendant that it minds ” (P. jurors ground for exclusion.’ 315.) is no its It says (p. 316) : proves further “The relevance evidence that charged, crimes other than be however, must examined (People Albertson, with 23 550, care. v. Cal.2d 577 [145 ” 7]; P.2d Stone, supra, 954, 983.) see 46 Harv.L.Rev. As “ ‘ general admissibility test: tests of the of evi- are: . . . does it tend logically, case nat- in a criminal dence inference, any by reasonable establish urally, and fact or to overcome people, for the material matter material If does, the defense? it sought then it is proved to be embraces commission of another whether admissible, other crime be not, whether the similar in kind crime or does ” single design part (P. 315.) of a or it be not.’ not, whether or prior evidence of the coupled ease the crime Peete In the for which the defendant of the one was on trial part the second murder strongly that of a scheme indicated acquire property by murder. by defendant Cal.App.2d Cassandras, 83 People 546], v. P.2d In [188 concerning exceptions general (p. rule stated, we exceptions years these have “In recent been so extended 279) : exception become appears to have and the that the rule exception the rule. One exceptions that is well [Citations.] in the law is that the of other crimes ad settled is pattern, scheme, design, project plan show a or missible to (See part. two crimes are a discussion 8 which the Cal. 69.) 173, p. cases, such inasmuch as Jur. the defendant § pleaded guilty has put thus issue all facts relat ing to the commission of the prior the evidence of the offense crime of a similar is of character value and admissible general that it tends to show a plan, design scheme or is of probative some direct proving value in that the crime of which charged was in fact committed (Italics him.” added.) (See, also, People Zatzke, v. 33 Cal. 2d 480 P.2d 1009].) In the Cassandras [202 case there listed a number holding of cases (p. general 280) : “The pattern, scheme plan exception frequently has been held applicable previous to show burglaries, thefts, larcenies or prior where the offenses were committed under circumstances similar to the charged.” one rape As to eases court says (p. 281) : “But prior rape where the attempt is com mitted under remarkably circumstances similar to the one charged the evidence is plan admissible to show or scheme to commit the crime fashion, though prior even rape attempt person committed on a other than the prosecutrix. In such cases the evidence that defendant com prior mitted the offense prove tends to that he committed charged.” offense
In 23 California Law Review following appears: 531, “There is no doubt that evidence of other criminal acts is prove admissible to the intent of the defendant commit the crime charged. The cause of usually similar acts is same. Recurrence of similar happenings negative tends to accident, good mistake or faith. . . . prove knowledgе,
“When evidence is offered to intent or *11 by the is assumed to have been act the When, done defendant. however, prove evidence offered plan, system is to a or design, purpose admitting it is to show that defendant did charged. proof the act From plan of a made, general sys- or a used, may tem an inference be drawn that the defendant did charged particular the act and also had a state of mind. . . . knowledge between difference or “Because of the intent design, evidence of system, or other acts when plan, and latter should be restricted to other acts prove offered to degree sufficiently high of common features to a war- with that defendant the crime inference committed for rant A being prosecuted. degree similarity lesser he is the other acts will warrant an of features of inference that doing innocently. the act did not do it person Ample holding authority plan, system design for that a exists or proved by may act be do a criminal evidence of other acts
537 though other charged, similar nature offense separate acts offenses.” constitute similarity mind,
With
rules in
let us examine
these n
both,
“picked up” of the two offenses.
In
public place.
spent
victim in a
He
considerable time with
He drank
the women.
women before the assault.
places.
Qualtieri
Both women were taken
secluded
Mrs.
severely
by
was
beaten about
face
fists. There
defendant’s
severely
was
tending
Myrna
evidence
to show
beaten
object
by
by
repeated
about
face
a blunt
or
blows
a
similarity
injuries.
human fist. There
was a
Chief
Kane
Qualtieri’s
lip
testified that Mrs.
face
swollen;
her
was cut on
Myrna’s
the inside.
face was also swollen
her lips cut on the
Qualtieri
inside. Mrs.
choked
throttled.
tending
There was
Myrna
to show that
also was choked
In
or throttled.
both cases defendant blamed
upon
his acts
drinking, but denied the
both
assault.
cases defendant
left the scene. Defendant claimed
injuries Myrna
were accidental. The similarity of the
circumstances under which
injuries
were received as well
as
similarity
of the injuries themselves
negative
tend to
accident.
People
As said in
Morani,
v.
196 Cal.
160
154,
135], quoting
P.
People
[236
from
Hickok,
Cal.App.
v.
56
13
P. 555],
quotes
which in
People
[204
turn
v. Sea
man,
evidence was court, as was done in this case. structions of the People 158 650 Glass, has v. Cal. Defendant cited [112 281], proposition prior for that the offense was not P. be admissible here. That case and others which could cited under the particular held the facts of case that evidence prior (cid:127)of offenses not far as our case admissible. So concerned, People Kynette, in 15 statement v. Cal.2d 794], referring case, applies 731 P.2d to the Glass [104 factually distinguishable it and them: “While recognizes that case exception 746.) general (P. rule.” having prior offense, occurred contends Defendant for years prior to the one 13 approximately prior Remoteness of the offense too remote. on trial was only weight evidence, of the affect held to has been admissibility. (People Morani, supra, v. relevancy or its not People Cal.App.2d 25 336 P.2d Hall, v. 154; [77 Cal. 196 ; 12 People 215 P.2d Bolton, v. Cal. ; People [8 116] 244] 96 480.) Peoplе v. Cal. Zatzke, supra, Miner, 33 Cal.2d v. 557], case, an abortion evidence of 43 P.2d App.2d [214 charged years ones prior committed abortions . lapse of time. .”. “not rendered inadmissible held (P. 52.) a pat- to show prior
Where crime is otherwise admissible not cause similarity, its remoteness should tern and particular person acted in a considered, for if a has once to be again particular results, and then acts manner with result, but claims that manner and with same same the first accidental, it cannot be said that result was second determining significance the truth incident not of incident. second
(b) Clothes Deceased received Inspector Nelder had deceased’s testified following Wednesday from the coroner on arrest clothes they Homicide Bureau defendant; had been Prideaux, investigator, the coroner’s testified to ever since. getting hospital Sunday night; kept until over untouched at the coroner’s office turned Inspector the hat and Nelder. Mrs. Baron identified coat Myrna’s body pile and dress as those she saw near slip, garter belt and the beach. She testified that the bras- night. siere were similar those she saw that Defendant clothing ground objected to the introduction of clothing not been from the beach to the that the had traced *13 object was that there no evidence (He did not hospital. were, np picked as when same condition the clothes beach.) attorney offered by at the The district Mrs. Baron marked up the evidence. The clothes were then to connect attorney again Later the district offered for identification. objected ground Defendant on them in evidence. testimony “is a substantial conflict in of witnesses that there gap clothes” and relative to the there was between up picked when Mrs. Baron at the beach time hospital. they The court them. when arrived at the admitted by ground meant the first the ob Just what defendant jection appear. Technically ground does not second was However, harm correct. no was done as no contention is any made that the clothes are different than condition when Baron last Actually, Mrs. saw them. favorable prosecution. more to defendant than
They no having forcibly show evidence of removed, been support testimony defendant’s that deceased undressed If there admitting herself. was error in them was error it prejudice. without
(c) Statement Defendant’s After defendant Camp returned was he Stoneman was taken into the office of the Homicide Detail questioned by Inspector presence Nelder in the another inspector. questions by and answers down were taken reporter. a shorthand Defendant contends that this action was improper because there attorney present repre nowas sent him. Defendant Code, 1340, cites Pеnal section which has no reference to an examination of prisoner by police. There is no evidence that defendant asked to have an attorney objected present, answering ques put tions ground. himto other
Inspector Nelder testified that had examined the reporter statement transcribed made and that it cor questions rectly forth the which he had set asked defendant objected and defendant’s answers thereto. Defendant ground typewritten statement hearsay, constituted it was not reporter and also because shown that the was not attorney available. district stated that he not and give nonavailability that he would the reasons for to judge and defendant’s counsel in jury. the absence of the including After further discussion, the citation of Fricke on Evidence, page California 315, Criminal approached counsel Then the record.” “discussion and there was off the bench happened What repaired to chambers. the court counsel and defend- the courtroom return to appear. there not On does they have problem appreciate “I stated: ant’s counsel reporter about certain situation in connection with the head as a over their I should hold it don’t think we cooperate with glad to weapon. I will withdraw and be read inspector Attorney.” When the started the District principle of stated that statement defendant Cal.App.2d by People Zammora, 66 matter established v. thought the foundation should 180], P.2d and that [152 I consider which be laid as there “are other matters circum- pyramid upon I will want to be this and which inspector was my Thereupon case at all.” scribed questions procedure forth in prompted asked set *14 26. Defendant then asked case, page 224, paragraph Zammora memory necessary his the witness if was for him to refresh it replied The witness the transaction from the statement. by the in- Thereupon that was. the statement was read it objection pro- spector from defendant. without This objected to, and sec- proper, first, cedure was because not (p. 224): in “. . . ondly, because, as said the Zammora case occupied position must be held that witness similar it the in respects presented had all to that which would have been stenographer transcript—the only the read from difference the being stenographer person who would have been the stenographic made the notes.”
(d) Magazine Photographs sought cross-examination,
On to cross- defendant Inspector concerning ap examine photographs Nelder peared in 1950. magazine November, a certain detective Apparently they duplicates were of certain exhibits which prior had been This was introduced in one of the trials. juries having disagreed trial, third two. tried to show that defendant By cross-examination maga- to the photographs given had these Nelder Inspector inspector purpose. posed for that possibly and had zine photographs that the pointed out doing It was either. denied anyone other than custody clerk and if of the were photos gave them newspaper man who took may there clerk. While have been the magazine it would of the cross-examin- unnecessary curtailment have been some prej- wanting to show bias or subject, ation obtaining publicity, inspector part of the udice prejudice ruling. there was no in the No attempt court’s inspector’s respon- made to refute the denial that he was magazine sible for photographs’ being pub- article or the lished therein.
(e) Pictures objection three photographs defendant’s
Over
de
They
pictures
admitted
evidence.
were
ceased were
neck,
torso,
the autopsy. They
taken after
face,
were
completely
particularly horrible because the head was
shaved.
large
The head shows
incisions which had been made for
together.
autopsy
pic
and were thereafter sewn
In two
practically
lips
tures
turned inside out
held
with instruments to show the cuts. Both arms showed marks
punctures
surgeon,
being
made
one
particularly
ugly.
appear
and abrasions
on the face,
Bruises
neck and
quite
arms. Most of
are
faint. No
disputed
one
the deceased received
they
them. Defendant contended that
came
striking
objects
from the fаlls
on the beach.
prosecution
they
claimed that
came
defendant’s
looking
fists and
pictures
hands. How
at the
help
would
understand
what caused them or how
could
death,
cause
difficult to understand. The completely
head,
surgical
bald
sutures,
ugly
cuts and
punctures,
lips
the inverted
with the instruments
make
attached,
body
grotesque
so
and horrible that it is doubtful if the aver
age juror
persuaded
could be
to look
pictures
at the
while
pointed
witness
out the bruises and
abrasions.
view
question
fact that no
was raised as to these bruises
and abrasions, and the fact that
viewa
of them
of no
*15
particular value
jury,
to the
it is
only pur
obvious that the
pose of exhibiting them
jury’s
was to inflame the
emo
against
tions
defendant.
In Pennsylvania
photographs
these
would be inadmissible
(Commonwealth
for that reason.
v.
Ferry,
129
130];
326 Pa.
A.
Commonwealth v.
[191
220
Dreamer,
117].)
324 Pa.
A.
In California it has
[188
photographs
been held that
of this kind are admissible even
though they show marks of the
autopsy
incisions for the
Gomez,
(People v.
Pair Trial record, trial apparent not from the reason Por some hostility, if not towards the atmosphere of judge created an defendant, highly judge his counsel. at least towards justifica- actions, times without most critical the latter’s Frequently attorney district had not ob- where the tion. interrupt testimony defendant’s jected the court would that witness and rule examination or cross-examination of subject At no did he so act when admissible. time attorney examining cross-examining a wit- the district judge time the ad- ness. time to "Whileit true judges of they were the sole the evi- monished the guilt they must no dence and that draw conclusions remarks, it is to un- or innocence from court’s difficult could have overcome evi- derstand how thesе admonitions throughout judge attitude the trial. While there dent support jury’s verdict, it was was substantial evidence degree, type case, particularly with reference to judge which made such attitude of the and the erroneous rulings prejudicial. hereafter mentioned There were some case, rather unusual features to the such as the fact voluntarily apparently herself, the deceased undressed yet beating gave it is contended which defendant unwilling her was because she was to submit to sexual inter- was, too, question There course. of de- the extent fendant’s intoxication as bearing the matter of intent. disagreements There had been two before trial.
5á3 Per- of the of the court follow. instances attitude Some important when haps in itself but added no one snow- together their increases as does size influence rolling ball downhill. examining attorney prosecution wit- district Reilly he stated that had had Reilly on redirect. never
ness day. The with defendant on that district at- a conversation him: torney “Did defendant Burns state asked then he-” time that Defendant’s counsel inter- that you just object that the witness had answered that rupted to ques- conversation and had had no defendant leading suggestive. and The court then said, tion was “Ask was made him if the statement defendant.” Defend- said, “he again objected gone has ant over [the witness] testimony in advance had talking admitted this to both [he attorney Inspеctor deputy district Nelder], he knows Thereupon the stated, what is wanted-” court “don’t make again—don’t you dare that statement make that statement added) again” (italics : that such statement im- tended to pugn integrity probity of the witness. “There has nothing been in this record to indicate that this man’s testi- mony been rehearsed ...” has court continued lectur- ing counsel, stating, “I integrity can’t have the any wit- questioned.” . ness . . Then, “don’t stand there and make gratuitous protested observations.” Counsel the statement court, whereupon said, the court “Let the speak record for itself.” The court counsel lectured further on the sub- ject allowed the district attorney to if ask the defendant had made statement witness. He replied “no.” attorney The district then stated he wanted to ask one fur- question along ther line. same Defendant’s counsel stated objected that he t.o line of examination. said, The court “No, you only object are going only question.” one objection. He then sustained the Referring to a photograph, certain defendant asked the if inspector picture. was his it replied He that it was. A little later asked him practically ques- the same attorney tion. The district objected on ground it incompetent, irrelevant and (It immaterial. actually not.) sustaining After objection the court stated: already is, “He answered it Hagerty Mr. [defendant’s counsel], re-emphasis you and the place sеek upon prejudicial to the case of People, and in the Court’s opinion just it is meemt to (Italics that.” added.) police cross-examining the Massachusetts chief de- *17 had been assured
fendant’s counsel asked if the witness police expenses paid. would be officials here that Unfortunately been so assured. that he had witness stated not your great ask, vengeance counsel to was started “But so against interrupted, this man that the-” The court then Hag- objectionable and question, said: “That is a most Mr. erty. vengeance part . .. There is no evidence of highly improper prejudicial and it most and witness, is this . . you Hagerty, have used that term. . Mr. there should that ‘vengeance’ by yourself except no use the word has been employed. jury . . deter- improperly . Let the it is most examination, if there mine, relation to the direct and cross He vengeance heart of man. is here like any in the is stand, he he been taken has every witness, other has speak truth, legal presumption and the sworn to Again testifying nothing the truth.” the truth but to if of the defendant asked same witness cross-examination a for him in was wanted or there warrant objection. Defendant, The court sustained an Massachusetts. your arguing matter, apparently said, desirous of “If interrupted say, “Just please-” Honor court then to Hagerty, a minute. Mr. or stretch wildest widest imagination you expect under the rules of evi- could question.” an dence an answer to such аbsurd cross-examining attorney defendant, and The district (the him defendant had clothes clothes examine some to asked day Defendant’s asked to question). counsel worn on the they were shown defendant. them before to to see permitted be occurred and then defend- counsel between discussion Some any just “I to know if there are want stated, ant’s counsel attorney if then stated that The district involved.” tricks counsel defendant’s would tricks involved there were following whereupon occurred: Court: it; “The know unwarranted Hagerty, is such an minute, Mr. Just your man surprised professional observation, I am clothing, you You it. have seen standing make would up attorney] walk to deputy district Mr. Brown saw [the you put clothing, this observation witness Attorney customary for the District ‘Isn’t to Mr. Brown: attorney the matters with which or the other side to show ’ clothing; You wanted to confronted f see the witness is Brown, I Now, Mr. am you talking about tricks. are now clothing you in front Mr. suggest put going to Hagerty long study and let him observe them he wants, as as long wants, analyze long as as he wants, them as as dispense verbage then Now, with such ‘tricks.’ [sic] again I admonish you, Hagerty, Mr. refrain such trick your part. observations on Now, proceed to look at proceed clothes and let then us in an orderly fashion. I surprised am your standing that a man of before this bar you should make such an observation when know it is proper for Brown, anyone Mr. for else, object an show of this kind to a preparatory questioning witness the wit- ness. Now, you all clothing. wanted do see the Hagerty your ifWell, please, it. Mr. : Honor Now, look jury you to take no ask to instruct attitude I now my your me or or the impression ease defendant from toward : I let your will determine remarks. what The Court *18 in merits, Hagerty, Mr. and due course I conduct will instruct any jury in relation to and all remarks that court may upon hereafter has made and be called to make. Mr. Hagerty: your Then I further ask Honor to instruct procedure, any is the normal jury presenting that it before any to for identification, exhibit it show to : is. procedure, counsel. It That is the Ladies The Court jury, I already of the and have remarked, Gentlemen so suggestion request you and that and the was made Hagerty. I yourself, Mr. And also tell the now that procedure any it counsel, is not the for whether for the Peo- ple engage for in defendant, gratitous observa- [sic] any being tions in reference to tricks. If tricks attempted are I court, expose will you may this be the first one to them, regardless assured, they may rest from which side come. This procedure orderly court wants obtain in this all other matters.” After some discussion counsel, between at the end of which defendant’s counsel stated that he take the would attorney’s district word that the all right, clothes were which should matter, up have ended the the court again. took it Hagerty, you Mr. do feel because Mr. Brown ‘‘The Court: clоthing was about witness, to show this he was Hagerty engaging perpetration any in the tricks ? Mr. : I feel this—That Mr. Brown away, was carried from case, neglected interest in his to follow the usual cour- tesy procedure. of trial doing : And in that, The Court playing you?” a trick on case, defendant’s counsel called de- end of Near the him con- and asked direct for further examination fendant the Plomicide Detail when cerning officeof an incident questions him about the attorney certain asked the district attorney picked that the district The defendant testified ease. room, it at shotgun a corner of the aimed up a through open, put it it and went some wall, broke down shotgun. procedure with another On cross-examina- similar unfairly admitted that he was not treated tion defendant attorney him nor the district interview did threaten way. excused asked After the witness the court testimony. materiality of the Then the defense counsel the Hagerty following materiality : occurred: “Mr. got I testimony, defendant,- as inference far Hagerty: Yes. I don’t Inference? Well, Mr. The Court: your you I question. Do Honor’s think shouldn’t understand purpose for me put him on the stand when he told have Honor, going if there that occurred? Mr. Brown: Your I argument, be outside the presence be an think should jury. defendant, The Court: Did seated as your left, you Mr. Lynch, now on tell Thomas now Attorney City County for Francisco, District San Hagerty him during had threatened the interview ? : He Mr. only that, I told me I havе a note think written to that day ago- A Very well, then, so : we effect. Court testimony will let his stand that he wasn’t Mr. threatened Lynch. Next witness. Mr. Brown : That is as far as we Very You your Honor. The Court : well. time, go at this can you Hag- position, led apparently into Mr. your client see, by himself under oath.” sustained erty, which wasn’t question objection as to ruling defendant’s *19 of defendant’s cor- of back ear photographs whether ear, on his scratches considerable discus- rectly showed following place. counsel The court and took between sion Hagerty object IWell, : will to the then' occurred: “Mr. part of calling speculation for wit- question as : Mr. see the scratches. he couldn’t because The ness Court you picture not before The picture now. Hagerty, the witness. You are not in in the hands of is now question The has chair. witness been asked this witness Hagerty: May I it? objection is overruled. Mr. see just The Now, : a moment. witness is now under The Court question you not—he been asked a examination, are has you interrupt question are not he is to answer question. Now, you him until he has answered the will Hagerty: May photo- I question? answer the see the Mr. Court Not at this—— n Mr. Hagerty graph? The : : I haven’t : : You seen it. Court Not this- mean The Mr. Brown you objecting Hagerty ? seeing are without Mr. photograph, Hagerty: objecting purely I am on the statement of Mr.. your terms, own it is the back his head. How can you kindly he see it ? Hagerty, : Mr. if will fol- Court low arguing the instructions the court and cease on mat- ters that for jury. Again are the determination of you trying are place yourself, opinion, court’s box. Let determine if scratches can be seen on photograph.” this many
There were other incidents akin of nature to those herein set forth. With background let us consider the rulings which were erroneous. cross-examining autopsy surgeon performing autopsy him whether he
asked started (Defendant head the trunk with the the deceased. hearing at a former claimed doctor had stated that started.) he was not sure where The court sustained an objection. Obviously this error as defendant was en memory findings titled to test doctor’s as to his at the autopsy ruling this manner. The manner of the court’s improper. objection After was sustained the fol Hag lowing occurred: “What difference does it make? Mr. erty basis, your : what Honor On ? I am entitled to test credibility. May suggest I man’s thing one The Court: Hagerty: you, Hagerty? Mr. Certainly, your Honor. Mr. you begin your Court: Don’t temper to lose in this you ground courtroom. Don’t ask the court what I have competent It ruled. is not nor relevant nor material on what part body the trunk began the Doctor his examination. layman patent It is even to a so that I am surprised you asked ground.” on what curtailing
The court erred in the cross-examination Pens, of the witness Inspector to whether in his talk with reported Nelder wherein he the incident between defendant and the woman cab related the conversation between her and the defendant, which he testified on the stand. theory It Avasdefendant’s in reporting the matter to the inspector the witness report had failed to that conversation. The Avitnesstestified that he did not believe he mentioned it inspector and further examination as to what he did *20 ruling. The by the prevented court’s inspector was
tell the affecting the the that as right to show had a defendant had not been very vital matter credibility of this the witness reporting the inci the witness inspector when told to “Q. At witness was: question The asked dent. of you you him the conversation overheard time, did relate to wherein made certain statements taxicab this woman Immediately upon against or accusations the defendant?” “that” answering his that he did not believe mentioned you you him, “To do refer when to the court broke in: what ’ against defendant, Hag Mr. use the word'1 accusations Hagerty erty? general to : I reference the con have Mr. versation he on stand. The Court : Has this wit related ness testified on or cross-examination that either direct companion him, woman who left with as the defendant anything, him of to, Cooper testified & Varni’s accused warning witness has testified was it that the to?” not a Pens testified was the one which referred to conversation defendant and the woman who between place cab took his woman Cooper Varni’s which the him from went him heard tell the bartender that she had said to defendаnt woman around ...” slapped another “that he had antago did not need the rather question quite clear and inquire sought help Defendant then to of the court. nistic report Inspector witness’ to Nelder concerning the further attorney the district and the without action court of this” was covered direct interrupted that “none to state ensued, and then the Considerable discussion examination. cross-examination, proper while court ruled that it was not examine him make the his own and defendant could witness n subject. defendant followed the court’s Then when the go him suggestion refused allow into the mat the court to to ground hearsay. ter on The fact that in re that was porting inspector when defendant was occurrences present cab, mentioning witness omitted a con important involved, versation as the one was a matter bring permitted defendant should been out have fully. Reilly, bartender at. cross-examination
On him if Tavern, defendant asked the Board Brownie’s serving him from an prohibited intoxicated Equalization rules question witness’ directed This was person. Myrna testifying sober credibility in objections line The court sustained bar. when counsel testimony. arguing the matter defendant’s testify the law on stated, going man is he violated “No Thereupon Hagerty, court “Now, said: Mr. stand.” *21 you improper. is most as know that observation You are suming, by implication, this man does violate the law that operation assumption in the of his business and no such is Hagerty Oh, your : justified Honor- The at all. Mr. only here, Court: The court can assume that this as witness bartender, complying pre of with law. doctrine is the sumption of innocence which has been enunciated with em phasis in case this clothes this He is trial, man. not on presumed is not be be a law violator. The saloon liquor business, business, the is a and licensed business this court certainly is going not nor jury, to assume can the that ’’ he is violating serving liquor the law when he is bar. at that The court permit also refused to defendant to ask the witness “what state of the intoxication to him.” meant Cer tainly where a witness sobriety testifies as the of another his test of sobriety, may or intoxication, inquired of be into. erred, too, refusing permit
The court the in by photographs of certain troduction of beach the question by area offered defendant. These more showed by those police, on the beach than in taken the all of debris Inspector prior Fitzpatrick were admitted at a trial. which prior photographs the had testified at trial that a fair were impression the of beach and oceanside end of the tunnel morning police photographs were taken. At this police photographs he testified that trial, looked more like the scene than did these. witness then went on to compare photographs sets of two stated that police representative” ones more of “were the area than some of those offered defendant. The court admitted those inspector representative which the testified were as as the police ones, but refused to admit those which he said were representative. testify not as didHe not that latter did represent not the condition at they the beach but that were representative as not those the police. view his prior trial, statements at which he making, admitted testimony plus testimony and his here, of defendant that they truly depicted scene, admitting the court erred in not photographs.
The second time defendant offered photographs these de- fendant’s counsel stated photographs were he took in the Thereupon course last trial. the court said: rejected by again I re- your is the court and “. .. offer yourself any activity of you refer to that took quest that any of this case. It doesn’t place last trial trial during the any taken, Hagerty, when were Mr. make difference these certainly any reference shouldn’t be made other trial - officer these whatsoever. The fact testified to rejected way compar- effect them photographs and in ing pictures did faith- said more less depict fully place condition beach at at the the time and eliminating question, depicting not so condi- these as place in question. of the at the tion beach time We are previous with what not concerned was done at the trial or trials; previous constant trials, to those reference I don’t should be believe made.” Counsel then called the Inspector Fitzpatrick court’s attention fact that had admitted trial that prior at this he had stated at a trial that representative. photographs Thereupon the court opinion here, said: “But he stated his Hagerty, has Mr. all can take into consideration, *22 testimony given as on-this trial.” cross-examining autopsy was the surgeon, defendant While question, asked the doctor hypothetical that, assuming in a and “that the decedent collapsed spot matters that at certain maybe feeling defendant that be re- the she would that and in the water, her the ocean-” by putting The district vived attorney objection. interrupted with an Thereupon the court take counsel to defendant’s task because the proceeded exactly correspond- with something not did said proof him “The opening statement. Court: Hagerty, Mr. your your part attention to one may opening I call state- got edge the decedent close That when water’s ? she ment by super strength the water and into human washed Hagerty rescue her. had to : is after- That Mr. defendant You said nothing taking about the defendant Court: The your open- You her. said in edge revive her to the water’s that she into the show was washed ing you would statemеnt effort, rescued her human defendant by super and water Hagerty your If I that, : said Honor- from the water. Mr. Hagerty-.-that say Mr. is did a that. The Court: You It wasn’t oversight. said it. You complete Court: declaration. The record shows that.” oversight. an It was assigned prejudicial defendant this as true that when It is disregard jury it com- the court instructed statement been But of the court’s as if had not said. view pletely it throughout coupled case, entire attitude with this rather jury it if court, unusual action of is doubtful could draw other conclusion but the court was that rather skeptical Particularly defendant’s of the ease. is side so you when the court a few moments later stated: “. . . are stronger position put no better position now, no it that you way, you than were when stood before the and made your opening already I have when, said, you statement made statement, why you a certain that I asked a moment ago your theory what was.” questions The court ruled that certain asked witness
Reilly prior at a impeach trial did anything not him said subject discussing this trial. ruling court said: “. . we . are transcripts not here to read testimony in any might other trial—otherwise, we as well take transcripts all our first second trials sit down and read jury, them to the we do business don’t way.” that was overmeticulous about the form
The court of defend Here is questions. an instance. Dr. ant’s Rosenthal testified Myrna’s body findings rape.” that he examined “for He on findings negative. if asked those were was then The district objected attorney ground question was am biguous. After some discussion between court and counsel attorney only objection said his question district “general.” it was Further was that discussion followed. objection The court indicated that would overrule the question asked be reread. This done, and then “Well, stated: argumentative. court You are arguing with the witness in the form of question, Mr. Hagerty. question.” him plain Obviously Ask ques argumentative. tion Following suggestion the court’s findings asked:11 Those negative, weren’t % A. right. they,’ That’s Court: ‘Were ques that’s the *23 added.) (Italics tion.” attorney objected The district then (apparently preceding question) that no foundation objection. was laid. The court sustained the then Defendant concerning examined the doctor by certain made him. tests The answer negative. last was a certain test was There upon following “Q. then, occurred: Doctor, your And of knowledge, you own know-- : Now, argu that is The Court ing, Hagerty. Mr. question, Hagerty. Ask the Mr. Mr. Hagerty I asking : am of his knowledge own if he knows. : form of your Court The The question, very words with 552 argumentative. an you your question are Put begin
which Mr, Hagerty. Mr. Hagerty: unqualified question him, to Q. your findings you know, Doctor, on those Then - Hagerty: Q. Court: That is-Mr. points-The moment, a by pathologist! : were Just confirmed Court Hagerty. object, going I am going If Mr. isn’t Mr. Brown be are object I the record to clear. You because want you arguing Ask ‘Do know whether him, with the witness. ” or not.’ (no which, Taking sum total of errors one stаnding probably prejudicial to cause alone, sufficiently throughout a reversal), coupled with attitude of the court trial, transcript an de examination of the shows that by hostility was a trial. The fendant denied fair evidenced court, frequent its of defendant’s counsel criticism (only occasionally merited) in a which least on the case degree of the had effect one, crime a close must have its jury.
Newspaper Articles a he was denied fair trial contends that Defendant they dire, jurors, on voir stated that couple because concerning case, which newspaper articles had read certain held unfriendly they but defendant, articles were it during appeared the trial Also vague impressions. merely Army purported confession to to a newspaper referred that a reported have admitted in which authorities possibly unfavorable Myrna, and matters murdering other jurors that the read the There is no to defendant. they in nor during trial, published articles had they before trial. Those who read fluenced those would be influenced expressly they stated read thereby, any opinion concern therefrom formed nor had trial, during expressly admon court, ing the case. any disregard statements in the jury that must ished the concerning case, nor should it be influenced newspapers for ad might advisable It have been court them. jurors the trial. But not to read accounts of monish deprived trial fair say we that defendant cannot People Feld, v. (See newspaper articles. because 1100].) P. Cal. [86 Attorney op
Alleged the District Misconduct charged attorney a number district Defendant has mainly charges alleged These misconduct. of incidents of are
553 upon of certain evidence which de- based the introduction upon alleged fendant was not im- contends admissible proper cross-examination witnesses. We have examined every (with in practically record and find that instance exception deceased) photographs of the the evidence proper. was admissible and the cross-examination was We find no attorney. misconduct district
Instructions give Defendant claims that the court refused to 45 some instructions, many of being instructions, alternate of- himby fered and taken Jury from the California Instruc- tions, Criminal, and two sections of the Code of Civil Pro- cedure. give any Defendant fails to concerning detail these instructions. However, compared we have the instructions given with those by the court practically and find that all those which requested applicable which were given the case were either haec verba, in substance, or were covered other instructions. judgment
The denying order a new trial are reversed. (Fred Wood B.), J., concurred.
PETERS, J. I concurin the P. reversal of the order denying motion for new trial and of judgment. .a majority opinion agree I with the that evidence, while highly conflicting, is sufficient to sustain the conviction. I agree, further for the set forth in opinion, reasons that denied a fair I agree the defendant was trial. further into the introduction evidence of photographs deceased, under the circumstances here existing, error I agree a most serious nature. But cannot assault years committed some 13 before the is claimed offense here involved to have been committed, was admissible. majority opinion has collected the cases that indicate exceptions many to the rule that exist evidence of-other normally not admissible. No exceptions doubt those
crimes
greatly
years.
(See People
have been
extended in recent
v.
28
306
Peete,
; People
Cal.2d
P.2d
Westek,
v.
31
[169
924]
9]; People
P.2d
Dabb,
Cal.2d 469
v.
32
[190
Cal.2d 491 [197
; People
Zatzke,
P.2d
v.
To that rule
of another crime
that where evidence
premise
fundamental
directly
proving some element of the crime
is
relevant
is ad
charged
disproving
defense,
or
such
some
evidence
other crime tends
Thus, if the evidence of the
missible."
motive, knowledge or
establish,
charged,
as to the crime
accident,
pattern,
a
mistake or
common
intent,
absence of
plan
person charged,
scheme,
identity
or
or
of the
evidence
determining
proof
whether
is
crimes
admissible.
of other
exceptions,
of
a rule
within one
these
falls
crime
of a prior
particularly
is
true
applied. This
must be
of common sense
no
as to time. While it
is remote
crime
prior
where
speaking,
generally
where
evidence
that,
is the law
doubt
exceptions,
goes to
remoteness
of the
may
one
fall within
admissibility (People
Peete, 28 Cal.
v.
weight rather than to
Morani,
v.
; People
Here evidence is ground pattern, justified falls within the common on the it words, In other because defendant plan exception. or scheme assaulting years 13 charged convicted some before of was liquor, the influence of in which case woman, while under charged attempted had first sexual intercourse she that he act, it now commit an unnatural sex and then threatened to proving while that, those facts are relevant claimed that years liquor, later, influence some under brutally sex, her. While beat the deceased and murdered general undoubtedly present in there sense, cases, both testimony attempted is not one word of sexual attempted intercourse the instant case threatened perform any unnatural sex act. evidence is herself, effect deceased undressed condition potent her clothes is mute evidence that this was true. If intended, quite intercourse have evidently would voluntary been part of the deceased. But even question intercourse, prosecution witnesses conceded accomplished. there no evidence that been such had While general there are some similarities between the two offenses,there similarity is not sufficient to indicate a common plan, pattern or scheme. years elapsed
Thirteen first between the offense and one here claimed to have been committed. There no connecting link between these two offenses. So far as the record is concerned, defendant never committed any similar during 13-year offense interval. Does evidence *26 a that man assaulted logically a woman in 1937 tend to rebut his denial that he beat another woman to death in 1950? Does evidence step of one that from rectitude 13 years ago tend to pattern show plan, a common or scheme? I think not.
Every problem recognizes court that has considered this highly inflammatory prejudicial effect of testi- such mony, relevancy but it in some of admits cases because its direct in proving properly court, some fact before or in dis- proving by proffered some defense the defendant. But cer- tainly beyond prosecution may there is a limit which the go. not The connection the two offenses must between be so direct that evidence prior of of commission offense reasonably prove tends to the accused committed the charged. offense with which he is It must do more than merely suspicion a raise that such is the fact. inference be must a reasonable one.
In case, the instant while the admissible evidence is suffi- ciеnt to finding sustain guilt, highly of evidence conflicting. This was a close case. This is demonstrated prior the fact juries disagreed. two The prosecution, in recognition evident of case, produced weakness its this woman and arresting testify prior officer to to this committed years offense before. must be prosecution testify would knowledge charged these witnesses testify also prior assault, but would only not with com- involved threatened woman there disgusting sexual upon a unnatural mitting revolting, her factor existed There one word of evidence that this act. is not present quite apparent that this ease. It is discrediting solely of this de- produced purpose for the equally eyes jury. It is evident that fendant this circum- would have effect. Under such tend to did relevant, I too. stances believe that this evidence was my remote, opinion, should been excluded. have ground for an additional the reversal. 18, petition rehearing A a was denied March 1952. for following Peters, rehearing for and filed the J., P. voted a opinion:
PETERS, granting of the rehearing P. for a J I vote ground that, my opinion, the admission the evi the sole prejudi prior crime error of a most relating dence .to cial character. Supreme petition hearing for a
Respondent’s Court following 31, J., Carter, 1952. filed was denied March opinion: In voting respondent’s peti
CARTER, for denial J. I I state that am in full hearing this case wish to tion for concurring opinion expressed views accord with the Peters in said ease. Presiding Mr. Justice