*1 June 30, In Bank. No. 6146. 1958.] [Crim. PEOPLE, Respondent, FRIEND, WILBERT FELIX
THE Appellant. *2 Supreme appointment Court, Sorbo, John under R. Appellant. Attorney General, and William E. Brown, Edmund G-. Deputy Attorney Respondent. James, General, for GIBSON, C. Defendant previously J. imposed appealed from a *3 judgment penalty the death in accordance with upheld a verdict. We his conviction of murder of the ' degree, first but, relating because of errors to the issue of punishment, we purpose remanded the for cause the sole redetermining (People that Friend, 749, issue. 463].) retrial, 772 death, On fixed the again automatically. (Pen. and case is us before Code, 1239, (b).) question presented subd. The § whether deprived defendant judge’s was of a fair trial comments on the evidence. morning body
One Ruth Muir’s was found on the beach La a parents. Jolla about block from the home of her Her blood, leg face was covered with a and bench which had lay nearby. autopsy been as a club surgeon used An discov- bruises, body ered numerous abrasions and lacerations on the and head and determined that death had been caused frac- injuries. multiple ture of living the skull and Defendant was police beach, questioned in a tent on the and, him, when the knowing anything killing he denied about the and re- was leased. The crime remained unsolved until when defend- years having an ant, age, ex-convict who was 44 confessed to committed it. years
In following the five killing, defendant was con- burglary, contributing victed of delinquency of a minor,1 rape. In connection with his conviction of rape, placed probation defendant years was for 25 on condition jail he undergo orehidectomy. serve six months operation performed This Thereafter, was 1941. until exception defendant’s record clear with the dog a was fine $20 stealing a relative’s in 1946 and an in 1952 for arrest causing a a disturbance while drunk in bar.
In 1955 defendant went to Detroit two months vio- probation. lation of a the terms of his About he week after him, California, probation telephoned returned his officer arranged days, to meet him in a and told him few that he had probation his that there was a his violated warrant for According hung sister-in-law, arrest. he defendant’s when up telephone, said, “Well, he will out,” murder mentioned thought a warrant, existence of and stated that he traveling.” he lowing take his fol- would suitcases and “start bar, in a evening, spending after several hours defend- telephoned newspaper reporter ant had and said he killed Miss Muir. The record does disclose other leading circumstances to defendant’s arrest. taken, Upon being into custody, police defendant told that he had committed the crime but that he had not molested the victim or taken valuables from her. In subsequent interviews he stated his drinking that he had been and had lost money playing pool that, p. m., about 9 or 10 he went looking to the beach for someone to rob because he wanted money buy removing leg more drinks. picnic After from a bench use club, as a he facing saw woman who seated ocean, up walked her, heavy behind and struck her a blow head, knocking ground. her dragged He then nearby her to a gully, where he struck her several times about with his face He her fists. cut the laces of corset awith raped knife her, rape explanation tried In her. delay years confessing crime, he said he hurting parents wished to avoid wife, and his who were *4 now dead.
Defendant did take the witness the first stand trial. At the trial he second he testified that had not been troubled by urge undergoing orehidectomy. excessive sex after charged two 1Defendant was with misconduct of a sexual nature with girls-and pleaded guilty contributing little to to one count the delin quency of a minor. telephone call from that, He when he received the denied probation which his officer, he made the statements sister-in- thought law attributed to him or that he confessed because he by the officer the arrest warrant mentioned related killing. According he to two defendant, to decided confess “ testified, tired, in rеason was weeks earlier Detroit. He One I myself running why that is like I was I turned in. Seemed something my in years, trying get all settled mind. these truth, because I way, That was one to come out with the had you set in where the truth would read once or twice the Bible last, murder, this error free, to this this and after I confessed although my in my my mind, well, was life, I free way body. there was one out and It seemed to me ... you go At about it. least can’t was to tell the truth wrong by I see I can’t see telling could that. the truth. although I by telling truth, did anything where I have lost eighteen up or nineteen gas chamber sit there close to eyes up I my what had opened months. That kind ’ ’ done. jury, giving formal instructions Before law, ladies following “Under remarks: made Constitution, I am gentlemen and under the jury, going I am in this case. evidence entitled to comment things you you certain can tell make a few comments and say binding anything is not I and, course, consider, point things just out various you disregard will you; I can it. accept it; doesn’t, why if it your views, if it coincides reject it. argument of this ease is nоt evidence. “The counsel anything you this I Neither tell evidence case. Of put their best course, this case forward foot both sides you you try get see side of the ease. Now have their judges You are all the heard evidence. up you with the it to decide what should done case. defendant this course, was brutal murder. You heard “Now, of this People, testimony here of and the facts,
all defend- Now is true that called the took witness stand. he ant he He newspapers had committed crime. did and said newspapers he he had no say time called that the second night he call. How intoxicated he recollection I not know. newspaper do called on two differ- on the witness stand the defendant “You saw questions on cross- he wouldn’t answer the when ent occasions *5 examination. Now it has been here stated he made con- questions why fession. When certain were him he asked didn’t want to answer them. When I ordered him to answer said, remember,’ them he ‘I don’t ‘Ior don’t know.’ Those questions rape were relative to the and to relative the molest- ing years of the minor elderly rape children later on several and the probation on woman which he onwas at the time picked up he was this offense. you consider, “Now can course, the various of his items confession, history his throughout his life, both before and here, after this operation. event the fact that he had this Now any has been said operation, he wasn’t trouble since the people serious Well, put probation— when trouble. we on years probation—we he on expect was comply them to with they if any degree probation law and violate init serious is revoked and the defendant to sentenced the State Prison County depending or Jail, upon character of the offense. a deterrent; always Probation is it at least I have considered put You probation you figure such. man on and ishe going to behave himself to a certain extent. Whether his behavior being probation was the result or the result operation, up you or a of both, combination to to determine. “You may saw the defendant on the You stand. consider any whether he had remorse for I this crime. heard his testi-
mony. I seemed to feel as I it that Mr. Friend heard was mostly plight concerned about his own and he not what had go Capistrano He day done. didn’t want to he went up there, according his own statements. He made the statement the dead would care I take of themselves.2 So suppose they up you do. But that his was It is statement. any whether determine he showed remorse or whether he you everything has told from the that he witness stand knew. only “He was the one at the scene that there survived give you details, one that could the full if he saw do, fit so to but he remember much about the he said didn’t rape, remember much about this didn’t or about that. you may things take all “Now those into consideration. As apparently testimony by 2This comment refers to that on defendant day following telephone probation agreed call from his officer he go grave, decorate brother sister-in-law to his mother's go, although he did not want at that time “kind stated that he person forget you when buried of more less believed that about them, let the dead take care of the dead. ...” entirely up you said, I let the your your guide.” conscience be question to be is whether the determined exceeded authority foregoing making comments. Constitution, 19 of VI of the as amended in Section article provides: “The such comment on court . . . make testimony credibility *6 the evidence and the of witness opinion necessary proper in its for the as is determination of inform the in all the case. The court shall cases that jurors judges questions of of the are the exclusive all fact credibility submitted to them and of the of the witnesses.” (Pen. provisions Code, in are contained statutes. Similar 1093, 6, 1127.) subd. § § of seems from the use the word “comment” It clear empowered judge of a trial is in section 19 article VI.that merely more the and that he do than summarize evidence opinions may analyze testimony giving critically, the his guidance jury.3 If there in of the can be doubt the history put by of section respect, to rest resort scope and to the decisions which have considered power conferred. in 1934, Prior to amendment section 19 article its testimony,” provided as VI could “state the change language in so that the would law,
well as declare
meaningless
permitting only
if
as
such action.
be
purpose
viewed
argument
by
is disclosed
the ballot
amendment
the trial
stated, “This measure
enables
favor,
in its
. . .
case;
on the facts
to comment to
express his
jurors
analysis of the
and to
give
informing
case, but
them
on the merits of the
,”4
advisory only.
are
.
time, that his views
.
same
shortly
By three
this court decided
after
cases which
is defined
Webster’s New International
3The noun “comment”
1942,
unabridged,
Dictionary,
A
“2.
note or observa
2d ed.
follows:
meaning
writing.
illustrate,
explain,
of a
or сriticize the
tion intended
.
Further
commenting;
criticism.
.
Act or
remark or
.-
.”
. . 3.
instance
Synonyms,
explanation
Dictionary
given
in Webster’s
general heading
“remark,”
p. 690,
it is
under
where
said: “Com
apparent
interpretation,
bringing
as
to
what
is not
ment stresses
out
clarify.
frequently,
by adding
help
Very
. .
in
details that
.
modern
or
implies
interpretation.
applies
use,
word
unfavorable
. . . Comment
interpretation,
remark,
criticism,
made
to a
observation
something.
elucidation
...”
was
which was
4It should be noted
this connection that
the amendment
sub
together
proposal,
with another
mitted to the voters
also
namely,
giving
adopted,
judge
13
an amendment
to section
of article I
right
testify.
criminal
failure to
comment"on
defendant’s
it was established that the
intent
voters was to
judge a
make the
real factor in the administration of justice,
referee,
rather than
that the
mere
constitutional amendment
prior prohibition against
power
removed
comment,
longer
he is
confined to a colorless reсital of the
may analyze
testimony
express
evidence but
his views
respect
credibility.
(People
Moss,
to its
v. De
[upholding
P.2d
the narration of circumstances
[50
1031]
against
tending to militate
claim
defendant’s
that he loved
shooting
People
the victim and that
accidental];
v.
Ottey,
among
but The extent to which a is free to comment on the frequently evidence is shown the fact it has been recognized may express opinion guilt a judge as to the province long defendant, innocence of the so as the defined constitutional section not invaded. (People Rupp, 371, ; People 41 Cal.2d 383 P.2d v. v. [260 1] Dail, Daugherty, People 876, ; 40 Cal.2d 893 P.2d v. [256 911] ; People Warren, 22 642, Cal.2d 658-659 P.2d v. 828] ; [140 People Eudy, 16 v. 103, Cal.2d 114 P.2d 12 Cal. 1024] [104 People Ottey, v. 41, ; 714, 2d 47 P.2d 5 Cal.2d 729 [82 359] People Yokum, Cal.App.2d ; 245, P.2d v. 145 258 [56 193] [302 People Huff, Cal.App.2d 182, 187 ; P.2d 134 v. 406] [285 Bryan Motors, Inc., Cal.App.2d v. 92 ; P.2d Pomerantz 17] 114, People Busby, Cal.App.2d 193, 440]; 119 P.2d v. 40 [206 531].)5 202 P.2d [104 com It also settled that restrict his credibility portions of a ments to of the evidence single up testimony, all the both and need sum witness (People 14, Gosden, 6 favorable and unfavorable. v. Cal.2d People Ottey, 714, ; 27-28 5 Cal.2d 728 P.2d v. [56 [56 211] People DeMoss, 469, 476-477 P.2d ; v. 4 P.2d [50 193] Cal.App.2d 101, P.2d People Wellman, 106 ; v. 141 [296 1031] 822, People Garcia, Cal.App.2d 830 P.2d ; v. 124 [269 82] Cal.App.2d 233, 238 P.2d ; People Robinson, v. 73 [166 673] ; Cal.App.2d People Keys, 903, 914 P.2d 17]; 62 [145 589] v. ; People Cal.App.2d P.2d see King, v. 205 30 [85 928] ; People People P.2d Dail, v. 657-658 828] [140 ; Kahn v. Cal.App.2d P.2d Ernst, 287, 295 114] 121 v. [263 Cal.App.2d 42, 47 Co., Fire 16 Commercial Union Ins. [60 contrary People v. 177].) Any P.2d statements People 117], v. Cal.App.2d 531 P.2d Hooper, [207 481], Mason, Cal.App.2d 699, 711 are dis Cal.App.2d 75, Talkington, approved. language always to describe use the same do not 5The cited decisions guilt regarding express judge’s power
the limitation on *8 province saying, long example, as the “so For instead innocence. ’ ’ invaded, jury some is not section of the courts that the constitutional as defined eases,’’ proper qualification but it seems clear “in used the have Ottey, substantially 5 Cal.2d nothing v. different is meant. employed point, leading 193], on is ease jury the the P.2d province defined the con phrase, long as as “so ’’ invaded, usually as been cited it has and section is not stitutional including decisions, authority subsequent which use different those Qualifying language. Dry Co., Sanguinetti v. Moore Dock power to comment evi- did not involve presence of the making granting, in the dence but the complaint as jury, of a so to increase motion to amend prayer damages. language there used was None opinion made commenting power, to limit as the intended by pointing section clear out that there was no contention that (36 p. 823.) applicable. 19 of VI was at article Cal.2d justification is There holding that a ahas right lesser to comment on punishment the evidence where than involved relating guilt where matters issue, to are in principles and the applied same determining should be power whether the properly has been Section 19 exercised. of article VI refers to “the evidence” generally, without set ting forth qualification distinction or upon as the issue which the evidence bears. The is, impor of course, evidence in fixing tant the punishment, prior appeal pointed ease it was out that “the trend is toward the more liberal pertinent admission of to the selection of penalty.” (People Friend, 764 [306 463].) Obviously, judge’s analysis of evidence relat ing punishment may be necessary jury to assist the testimony remarks on touching upon guilt, so that power to promotes comment purpose of the constitutional amendment as much оne situation as in the other. It is true jury that the has exclusive punishment discretion as to the imposed, be but no distinction can be ground made on this jury since the is also the questions exclusive of all relating guilt. fact short, regardless In of which issue being tried, respective functions of toas questions factual are the same, and neither language the constitutional purpose nor amendment underlying its adoption permits imposition of different limitations power to comment on the evidence. present judge fully complied In the ease the with the requirement be informed that commentswere binding upon seen, pointed them. As we have he out jurors beginning reject of his comment that the were free to anything they their views, which did not coincide with “judges up evidence,” were the and that it was to them done decide what was with defendant. At the con judge said, entirely clusion of his remarks the “The you your up your let the evidence conscience be guide.” *9 formal instructions which of the in the course
Moreover, jurors given upon law, the were told: subsequently were according entirely to act fixing you are free penalty, “In in the selection of your judgment. Your discretion to own by It is way or limited law. no circumscribed penalty is in is no rule of law example, For there an absolute discretion. simply you because find of death for a sentence which calls extenuating circumstances. mitigating or are no that there for a which calls sentence Similarly, there is no rule of law you that are imprisonment simply because find there of life The was also instructed aggravating circumstances.” meaningful fundamentally one, based choicemust be that the given “any weight be to con- evidence, but that could light of the evidence seemed whatever” which sideration stressing judge, that he was important jury, and the attempting might all of matters which be indicate to examples might listed what consid- account, into taken many including mentioned in ered, of the factors These 749, 768 instructions Friend, 47 Cal.2d 463]. ap- sufficiently principles on the earlier fоrth the declared set any of them was incorrect. peal, and no claim is made that urged It is misstated effect that defendant had two occasions the comment rape questions “relative to the refused to answer relative molesting years minor children several of the later and elderly rape woman” and defendant was “ ’ ’ said, I don’t to answer the court remember ordered ques The discloses that the two or “I don’t know.” record directed to answer did not which the court defendant tions rape or to The first of the relate to molestation children. pertained location of two defendant’s questions two telephone conversation with suitcases about time probation being officer, and, after directed to answer The second court, that he did recall. defendant stated night of “Did question, murder, was, which referred upon and, Park?” the court’s you go Jolla down the La think I direction, replied, “I did.” record defendant ques response to however, that, in numbеr of shows, also relating misconduct, of his to the details sexual de tions that he not remember. The comment answered did fendant respect general judge, therefore, correct was questions he types as to which defendant testified could not questions It inaccurate as to which de was remember. was then directed to fendant at first refused to answer and answer, but this than a inaccuracy constitutes no more minor prejudiced which could not have defendant. up There was no error in the comment, you “It determine whether he showed remorse or whether he you everything has told from the witness stand he knew.” preceded by It “may direction con *10 sider” by any whether defendant had remorse and was followed “you may the remark things that all take those into con sideration.” These are correct law, statements of the in accord principles with Friend, discussed jury The was thus informed that these properly
matters considered; could be it was not told that a way determination them, one other, required was order to subsequently penalty; and, select the as above, stated the court finding a mitigating instructed that of either aggravating necessary choosing was not circumstances be imprisonment tween punishment. death or life as the true, It not as defendant, asserted that comments were limited to evidence which was to unfavorable judge pointed him. The fession, jury out that defendant had made a con undergone
that orehidectomy, he had that history consider his operation, could after appear it any did not that he had been in trouble serious since It judge then. also be noted that the did not comment very some evidence which was unfavorable defendant. For example, testimony no reference was made of defend extremely ant’s damaging sister-in-law or to the inference permitted by it. Moreover, even if the as a comments regarded placing greater whole as are stress on matters defendant, adverse settlеd, it is seen, we have up not sum all evidence, need both favorable unfavorable. opinion
The judge expressed penalty noat time as to the which should be of his imposed, and none statements could reasonably regarded be degree amounting as contentious to a partisan advocacy. only He not mentioned factors favor- pointed able to defendant and out that the could consider but, respect in addition, expressed them views with temperate language. adverse Finally, considerations again emphasized he clear that made that the com- advisory question penalty were ments and that the entirely jury. was within absolute discretion circumstances, judge’s Under hold that the comments require warrant a a determination that reversal would 582' relating to right on evidence a lesser to comment has affecting previously guilt, and,
punishment than on evidence ignoring can be made without distinction discussed, such VI 19' of article section the authorization contained inaccuracy exception of the minor With the Constitution. harmful, the comments been above, noted could have which keeping Constitution were power, is no sound and there on his established limitations penalty question concluding basis fairly tried. denying af- are new judgment and order
firmed. J., Traynor, J.,
Shenk, Spence, J., concurred. J., Dissenting. my HAUER, It is SC view the trial judge’s go comments to the in the case at bar far afield proper function, from the court’s power exceed the court’s testimony “make such comment on the evidence and the credibility witness as in its necessary proper (Cal. determination the case” Const., VI, art. 19) power as that relates to the selection § for first degree province murder, solely and invade a law is *11 jury. that by (and judge by departure the trial the most serious The spelled previous in our as out deci- the law majority) from majority’s volved than the same right it has meet unmistakably is free to There is no sions 232 196 Cal. Cal. [306 opinion as to the power [7-10] Cal. 486, 496 451, 456-458 (seе People frequently been fix the comment principles 191, issue comment 463]; quoted declaration, there [302 has justification where clear to punishment at death. The 207 by holding been People v. P. [249 on the evidence matters on the evidence should be Friend 307]; see also guilt exercised.” properly 24]) recognized P. P. v. for jury that or 859]; 25]; Green is that relating holding (1957), innocence applied the fact that “The extent to which a People People (1956), here that a People is shown where that a 47 Cal.2d is guilt v. justification—indeed, determining v. majority purport 47 Cal.2d v. Ball Leary in his is punishment judge has Bollinger are Contrary by defendant . 749, in the fact that may express opinion they judge (1895), (1926), issue, 766 209, whether (1925), lesser made [13] 218- 105 199 in- . to .
583 justification by only necessity, if we are to abide but holding “a previously enunciated—for that law has punishment on right comment the evidence where is lesser relating guilt than where matters are in issue.” involved always depend obvious one. must The difference Guilt evidence, judge may on on evidence and comment may evidence; hence, he indicate an as to fact depends punishment (in on evidence. But where which case) degree murder involved the first selection depend any degree penalty need not whatsoever legislative plan and, under the as we have construed always it, include exercise of an “absolute” or must unfet- tered discretion. People unqualifiedly enunciated in v. (1957), As Friend we [11], the supra, 749, jury 764-765 discretion of 47 degree penalty in a first as to murder case absolute1 and pure conjecture, sym- on considerations of be resolved etc.; pathy, apprehension, (pp. it is the law 767-768 47 selecting insofar as Cal.2d) “that is concerned (as imprisonment between the two alternatives life or [of death]) the law does not itself nor prescribe, authorize the any innovate, circumscribing rule court the exercise we make the Hall case punishment may exercise Penal Code ing appears Leary (1895), supra, Bollinger (1925), suprа, law to the the discretion of vested these two alternatives to jury’s cretion of the was shall suffer death or confinement in the . . amended been since its 1874 amendment (1956), 1This Leary [1895, supra], .” Bollinger conditional legislature provided any Green ‘clear exercise of such (See at holding supra, the by today suggestion pp. cases (as Stats. ease also language case jury trying beyond question,’ correctly (199 punishment 224-225 of the Green amended has confided the on, was presenting palliating (pp. id., pp. determining last alone. Por . . . the law 1873-1874, p. Cal. (196 or had to be either “Every person guilty ‘ 105 Cal. 225-226 requires compliance 105 Cal. 451, 456-458) of the amended section the absolute Cal. no means new 196 Cal. intimation within the discretion, 218-219 209, death or life [section 1873-1874) same . murder in of 47 457] guided by, 191, 207, power 207) [7] we held: [5], Cal.2d), nor ease], together discretion . punishment . . . two [the with the declaration .”] of 47 of the Penal Code as amended to the law. which imprisonment; state we declared: does to affix the mitigating that the disсretion of of murder states the with that places quotation “It P. “The above first Cal.2d.) prison quotes changes 24].) language particular is clear attempt no restriction [Pen. degree—first, authority shall be with that ” In jury. law.” from circumstances. section 190 of the punishment law; “There And *12 And as we stated and, second, were made in the the People beyond question Code, life, quotation of the statute to confine its that mean circumstances . . .’ imposed the decision first at the dis portion has People Hall case its § upon v. Green (People within degree never from . . of v. v. . its discretion, but, rather, commits whole matter of
their jury; of judgment exercise and the consciences put question be deciding the accused should whether imprisonment life it is within their or for death sentenced himself, how far will determine, each he discretion alone to objectives weight of the several considerations accord protection of crime, of the of of the punishment, deterrence sympathy desirability retribution, or society, stern passion, ignorance or weak- clemency, age, sex, or human or appropriate evidence, illness (if under ness, or degree provocation not to reduce or sufficient intoxication or concerning, presumptions crime), of the or class of the imprisonment, attaching to, or life possible uncertainties death, of an executed sentence the irrevocableness not have explanatory exist which apprehension facts whatever brought to other consideration light, been they duty evidence, owe light explained to them state, and to the and the law as accused by important.” appears judge, them to be lip Although judge gave trial service to the rule that entirely up you penalty jury],” “any- “the [the you,” thing say binding whole, his I is not comments as a they if were an accurate review of such of the even evidence partisan plea upon, as he commented would constitute рenalty. only more extreme The indicated in way death; general his view that he particularize for his view. He went on to his reasons made it (“I clear that his defendant showed no remorse Friend was to feel as I heard it that concerned seemed Mr. done”) mostly plight what own and not he had about fully had not disclosed details that defendant was the . that (“He known to him one . could crime give you . do, details, full if he saw fit so to but he said rape, much remember he remember about the that”). didn’t didn’t giving Furthermore, this or about much about merely reasons, the did comment unfavorably to defendant. evidence; he misstated stand said, the defendant on witness “You saw ques- answer the he wouldn’t on two occasions when different questions were . . certain . When on cross-examination. tions When I to answer them. why want him he didn’t asked remember,’ or said, he ‘I don’t him answer them ordered rape and questions relative to the were don’t know.’ Those ‘I years children several molesting of the minor relative *13 rape elderly on which he was on later and the woman probation picked up for this offense.” the time he was questions directly, The did not answer two which defendant nothing answer, him had which the directed rape do children. One the incidents or molestation of judge’s directing to answer which in the defendant resulted was as cross-examination follows: you “Q. couple Did have of suitcases there defendant’s [at re- brother’s house when called the newspaper defendant porter] f A. Yes. “Q. they say I Where were in the house? A. can’t where. They That house. makes no were difference. question.
“The Court: Answer the exactly they Well, just “A. I don’t recall now where were in the house.”
The judge’s second incident resulted directing defendant to answer on cross-examination was as follows: “Q. you go Did down night to the La Jolla Park [on killed defendant Miss ? I think at time, A. I think Muir] story dog-gonned many has been told so getting times amI repeating thing. tired of you Friend, questions. Mr. will answer the “The Court: given your story you You give have on direct and will you questions. cross. Now answer the “By Q. you go Mr. Low: Did down to the La Jolla Park? ’’
IA. think I did. Manifestly these two incidents did not involve matters as serious those as indicated in judge’s the trial comments; they did not concern rape defendant’s offenses of and molestation of minor judge’s children. statement defendant re- questions fused to answer important about those and dam- aging seriously prejudicial matters was to defendant. prior appeal (People On in this case v. Friend (1957), supra, 749) cognizance we took of the sole and absolute discretion in the selection between the have no concern with them. two alternative but those in this duty out that the conscientious guidance is clear. He This (p. poses 766 of case, assistance of trial must, to have all discharge equally prescribed task for delicate punishment Cal.2d) course, of their “ [13] inform the guidance unless, under the instruc- judges duty, Quite punishments, and for trial specifically are the law can naturaliy jurors, jurors eager, pointed as were but his thеy give applicable tions to of guilty guilty, issue or not
they beyond shall have all reasonable doubt the found that guilty degree charged.[2] defendant is of murder the first duty they selecting When find, and if so they upon alone, should be them, devolves and on them power the absolute nature their instructed exercise that function. subject “From hereinabove and the discussion
People 209, 217-221,229- (1956), [supra, v. Green 47 Cal.2d] appears 232, it there need be no error counsel’s advancing arguments penalty as to which will better serve objectives contending or punishment, the of that the effect may ‘mitigating’ ‘aggravating,’ of or as certain evidence is provided punishment imposed, affect their of the to be selection clearly adequately in jurors every that the are and case scope They should structed as to the their of function. full People (in as Green be told accord with the law reviewed prescribing herein) the supra, beyond two (1956), and provides no for penalties law standard alternative the itself guidance punishment; of that the law their the selection imprison penalties or life provides equally the of death two automatically or at penalty ment, attaches but that neither agree upon jury unanimously their choice all until the choice verdict; that the punishment designate it in their every to their penalties committed as two is in case between the (Italics added.) absolute discretion.” neither.” two 218 [5a] Section [7] ; alternatives 480].) People ; People 190 of the Penal Code (People Since v. Brust v. Friend the law itself v. Green punishment; (1957), (1957), (1956), “clearly suggests supra, supra, gives preference 47 Cal.2d 47 Cal.2d preference equally [9] [306 states 751 penalty making selection, or basis for the neither should the suggest preference judge, by jury, comment penalty emphasize or factors which would tend to in either penalty. penalty, either fluence toward Selection emphasized, exclusively repeatedly we have and abso lutely prоvince jury. suggestion Presumptively, imposed penalty not be would not be that the death prejudicial certainly any suggestion defendant, but inherently prejudicial. imposed be it should would relating guilt on evidence to the issue As to comment Code, of the Penal of section 190.1 the 1957 enactment 2Since person guilty punishment separately if tried is found issue of imprisonment by punishable or death. an life offense aptly (1946), innocence it said in v. Robinson Cal.App.2d 233, right that “The thus potent conferred to comment on evidence is a most one. judges required but, they Trial if comment, so, are not do they extremely power should be careful to exercise the point wisdom and restraint. The need not be labored that apt give great weight members are opinion weight hint from the as to credibility witnesses, evidence or and, for that reason, unfairly rights care should be taken not to affect relating on the defendant.” And comment penalty is, indicated, to the selection of as hereinabovе a far bearing more delicate matter than comment facts guilt the issue of penalty, On the issue innocence. many extrajudicial where factors, including so factors, properly verdict, influence—indeed, jury’s alone control—the strictly scope, comment nature, should be restrained carefully Green, substance we so Brust, enunciated earlier decisions; Friend it should never extend to or encom pass any indication death inherently should be selected. an indication is Such exclusively invasion of the committed field which law is absolutely prejudicial jury, clearly and is *15 passes defendant. Comment which of the limit fairness and advocacy penalty amounts to putably of the more severe indis holdings Green, in contravention of our studied the Brust, previous long the and Friend cases as well as of rulings People of established this court in such cases as Leary People (1895), supra, 486, 493, 105 Cal. and v. Bol linger supra, 191, If are (1925), 196 we so soon Cal. 207. depart certainty clarity Brust, Green, from as the such and holdings provided again indulge and Friend and are to least part plagued many the for which had us so inconsistencies years (from People supra, 1956; (1956), v. Green 1874 see 209, 218-232) 47 bar to owe it to the bench and we specify holdings today those to be over which are intended ruled.
Simple
integrity requires
intellectual
tous
recall now the
miserable mass and mess of irreconcilable inconsistencies which
had
growing
(on
been
side)
gross
from
the one
the
errors of
People
(1874),
174,
v. Welch
through
49 Cal.
clear down
(1944),
Kolez
23
580],
Cal.2d 670
(1948),
Williams
[145
Byrd
disputed correctness the clear Leary (1895), 24], holdings of 105 Cal. P. [39 Hall Bollinger (1925), 196 Cal. P. many (1926), 859], and other 456-458 P. Cal. (at p. Cal.2d) wherein 226 of 47 we down to Green cases accepted many years “clear law which so had been beyond decision we make question” and declared “the compliance today requires law.” this at last But years than And “today,” two later is another some Green. “tоday” implicitly essentially majority recant today years ago. of the law of As brave declaration two beyond question” “clear is either from 1895 to 1956 was longer Furthermore, clear. longer no or it is no law no today the bar that we tells the bench and the decision “compliance law”; longer is longer require with that no penalty of jury in selection absolute of discretion penalty exclusively longer of unfettered; no is the selection today hold, majority jury. province Bather, of (as two penalty though the between even selection guilt, not a matter equally prescribed), unlike the issue evidence, which must be resolved on or controlled judge may on the evidence comment nevertheless life may that it selection hut intimate does warrant though it is preference even imprisonment death; function (or was) altogether has the clear that the alone may them that in selecting penalty, judge tell they should fix the at death. changes express The above indicated the law are implicit today’s majority impel decision me to reiterate principles which, although apparently longer some of the think, deserving respect. I law, are, laymen confronted with the difficult task jury of A penalty of death and that life im- selecting between the may trial assumed, look will, it prisonment likely give take them, and will be guidance as he such what intimation of the as to cue from their attempt- they should return. Instead he believes verdict accept view the trial ing jurors to influence with the law stated in inform in accord them *16 beyond 749, 767, “that supra, (1957), v. Friend provides penalties law itself prescribing alternative the two punish- of the guidance in the selection for their standard penalties of provides equally the two ment; the law penalty attaches but that imprisonment, death or life neither
589 automatically jury unanimously agree upon or at all until the punishment designate their of in their choice verdict; penalties every that the choice as bеtween the two inis ease discretion,” committed to their absolute It etc. would be a case, any, if proper rare in which it would be trial judge for a to make other pertaining comment on the law or the facts of scope selection than comment of sub- supra, pages stance of that set forth ease, the Friend 766- 509, Cal.2d, quoted large part ante, pages 768 of 47 513. improper It is for trial weight of throw the his officebehind a jury selection which is for the alone. “It any system jury obvious that under of trials influence jury of necessarily properly of great weight, lightest and that his word is re intimation deference, may prove (Starr ceived with controlling.” (1894), 614, v. United States 153 626 U.S. 38 S.Ct. 919. [14 quoted in 841], L.Ed. Bollenbach v. (1946), United States 612 U.S. S.Ct. 90 L.Ed. and in Sanguinetti Dry v. Moore Dock (1951), 36 Co. 557].) Sanguinetti In the ease, an action for dam ages plaintiff’s Act, under the Jones presence counsel jury of the complaint asked leave to amend the to increase $75,000. damages prayed $50,000 the amount of for from court, presence The trial jury, outside granted of the motion and denied defendant’s motion for mistrial on the ground plaintiff’s presenting misconduct counsel jury’s presence. motion in the The court instructed the that “The We held cess of the amount would (p. damages include [3] alleged must be of 36 making in the Cal.2d) reasonable and cannot be complaint, namely that “. motion, . . any practice $75 000.” presence ex production after jury, evidence, to increase the damages asked, amount knowledge bring and which would hearing the fact that the court after plaintiff’s permitted complaint to be amended by increasing unhcsitantly prayer damages, should be ordinarily condemned and stricken “It is, course, question elementary of fact to be determined down,” the amount (p. [4] of 36 damages Cal.2d) jury.” Sanguinetti majority It is true that the was bv a bare case of this I court but do understand that the declared such, disputed. seriously was, principles law, It were principles application rather, of thosе to the facts of the case specific In the ease which we criminal now before divided.
590 influencing us, jury it seems to me that the court’s the toas penalty, a matter selection committed the sole and abso- jury, influencing discretion of the more than its lute much any jury the civil case as to amount of damages, should be unhesitantly condemned and stricken down. analogous following Dorsey
Also are the statements (1953), 604], Barba 38 350 that Cal.2d holds power trial court does have the an in increase adequate unliquidated damages plaintiffs’ award without consent: assessment of ... [of that issues of fact shall be constitutionally guaranteed right (p. 356 damages [8] of 38 ordinarily Cal.2d) “An decided a question by jury, essential element a trial fact. by jury] and the body occupies fact-finding important jury as a so firm and system jurisprudence any place in that a our interference respect in this its function must be examined with utmost mere form of care”; a (p. jury trial to which one is [10] of 38 Cal.2d) entitled “it is not the under the right jury tо have a de Constitution, but the fundamental of a Likewise it is not mere form termination of fact.” penalty to which a is entitled defendant selection Code, right but the to have the Penal fundamental under by trial uninfluenced court. made selection my relative incongruous, sense of particularly It seems majority reach the of the that this court should result values, recently considering a claim the court in when so in this case trial must be a new damages in a civil case held there [by jury may have been “misled statements because liability.” determining proper manner of judge] trial as (1958), Butigan Cal Co. v. Yellow In expressly (even though the court Vehicle Code circum- defense in the recognizes accident unavoidable though instruction had defined, even there stances through years) many proper for held recognized as been unavoidable accident giving instruction on unavoidability an issue “may get impression that jurors separate proved, if it constitutes that, decided and to be ground thеy may be nonliability Thus defendant. determining liability .. .” proner manner of misled as to uenalty- likely jury in this that the it is more IIow much judge, damaging trial inherently statements unwarranted, inaccurate, misled case were selection miserable, is a instant case defendant The fact not make crimes, does guilty of horrible creature, friendless proper him, concept function, in what I of our view the deserving plaintiff less of a fair trial than was Butigan Co., supra. v. Yellow Cab apply The eases last cited summarized to situations concept
other than the
us the familiar
one now before
improperly
interfere
matters
*18
jury.
which are for the exclusive determination of the
The
(Jan-
supra,
(1956),
Green
47 Cal.2d
and earlier Friend
uary
apply
25, 1957), supra,
specifically
cases
concept
problem
penalty.
of selection
Since
(and
19,1957, of
return,
the latter decisions
since the
on June
improperly
consideration),
influenced verdict now under
ap-
implicit legislative
the rules there annоunced have received
proval by
September
an enactment
into
which went
effect
11, 1957, and which amended
190 of the
Code
section
Penal
adopted
provide
and
section 190.1 of that
so as to
code
separate
punishment
trial on the issue of
in the case of a
charged
person
penalty
with
offensefor
is in the
which
imprisonment.
alternative death or life
‘‘
provides
part
Section 190.1
in
pre-
Evidence
proceedings
sented at
further
on the issue
penalty,
surrounding
the circumstances
background
crime,
the defendant’s
any
history,
and
and of
in aggravation
facts
or
mitigation
penalty.”
clearly
Thus the section
accepts
suggestion in
our
the earlier
opinion (p.
Friend
763 of 47
Cal.2d,
7)
footnote
that “The character
scope
and
of evidence
pertinent
punishment
which should be
in
received
a case
jury
required
wherein the
to fix the penalty,
subject
is a
legislative
well
could
receive
attention.”
provides
Section 190.1 further
pаrt
material
that “In
any
in which
case
defendant has
guilty by
been found
a jury,
jury,
the same or
trying
and
another
of penalty,
issue
unable to reach a unanimous verdict on the
penalty,
issue of
jury
impose
the court shall dismiss the
punish-
either
ordering
ment for life in
lieu
a new trial on the issue of
jury
penalty,
impaneled
try
order a new
issue
wording
penalty
certainly
...”
The
of this new section
purport
judge
does
jury
authorize the trial
to “order a new
impaneled
try
penalty”
the issue of
and to instruct
opinion they
them that in his
at death.
fix
impose
It does authorize the trial
punish-
to “either
jury impaneled
ment for life
try
...
order a new
penalty.”
issue of
slightest
new section
indication
There
spelled
Legislature
alter the rules
out
intended to
supra,
People
(1956),
v.
this court
Green
supra,
(1957),
The sec-
Friend
Me concurred.
CARTER, J. I dissent. expressed by full Mr. I am in accord with the views Justice quoted dissenting in his The case. Schauer obviously in- of the trial were statements its did influence the rendition of tended unmistakable effect of these statements was to verdict. *19 deny free, determi- defendant the untrammeled unbiased jury punishment was as to to which defendant nation the forcibly pointed of this state. As out entitled under the law dissenting opinion, majority of court has re- in said the this judgments upon jury in civil cases where based verdicts versed compared to that shown alleged error was infinitesimal particularly by in true where this case. This the record of the alleged of comments statements error consisted may determination reached trial by which have affected the jury. Co., Sanguinetti Dry In v. Mоore Dock error, prejudicial mis much less 557], I could see no counsel for part the trial conduct, of either in that the verdict plaintiff in manner influenced majority my p. seq.), but a (see dissent, 823 et ease plaintiff which judgment a for reversed court nevertheless obviously plaintiff’s by because supported substantial to amend presence jury, moved counsel, plaintiff’s increasing demand for prayer complaint rule on damages $50,000 $75,000. The court did from granted jury, but later presence this motion a not return verdict jury could it and instructed $75,000, amount demanded of the sum of excess complaint. $75,000 a a jury returned verdict judgment entered thereon majority reversed a of this court foregoing occurrences constituted ground the sole holding. Here, agree prejudicial error. I did judge is so of the trial prejudicial misconduct however, the upon be denied. cannot glaring that its effect adverse judgment exceedingly unfortunate when my it is To mind glaring upheld in obvious and the face of in a criminal case prose- part judge, or of a trial prejudicial misconduct on the approval, as such a situation cuting attorney judge’s with the trial and upon fairness of the grave doubt casts process of both the clauses a violation of due amount to was the situation Such federal Constitutions. state and p. ante, Osslo, ease the recent p. the same 106), where dissenting opinion, ante, (see 397] judge presided as the case bar. jus- opinion that the administration my It considered many a trial throws where cases tive is defeated weight litigant conduct or state- position against a litigant. jury against such designed to influence ments conduct, there always respond to such jurors do not While of de- tendency so, which has the effect them to do is a jury. right a fair trial before litigant priving the of his correcting situations the burden this court assumes Unless might just we attention, to its when called of this character system. abolish our as well imposing the death judgment reverse the I would punishment. issue of trial on the grant new defendant July rehearing was denied petition for a Appellant’s J., were of J., McComb, J., Schauer, Carter, 1958. opinion granted. petition should be