*1 749 misdirection, is, an obvious at most, omission material speculative uncertainty a theoretical and in construction. That prejudicial forcefully could effect is demonstrated fact that appeared, the instruction has been em ployed objection, without present its form for more than during years, subjected 13 which time it has scrutiny of appellate judges innumerable trial and and attor neys. In City County Daniels v. & Francisco, San 40 Cal. 2d 614 P.2d 785], we held that it error to refuse [255 give BAJI page 205 said, “The form of that: instruction in question.” is not (See Ridings, also Cole v. 95 Cal.App.2d 136 Mangler P.2d 597]; [212 Electric Pacific Ry. Co., Cal.App.2d P.2d 774].) The record in this case alleged shows that the urged by error was not counsel nor defendants considered judge the trial on the motion for new Having trial. thus escaped detection, it seems mani fest error in the instruction absolutely without consequence. For this reason, I would granting reverse the order a new trial. In No. 5800. Bank. Jan.
[Crim. 1957.] THE PEOPLE, Respondent, v. FRIEND, WILBERT FELIX
Appellant. *3 Court, Supreme R appointment under .Sorbo, John Appellant. Brown, Attorney Edmund General, G. E. and William James, Deputy Attorney Respondent. General, for
SCHAUER, (by Defendant appeals paragraph J. virtue of (b) Code) judgment section 1239 the Penal from a imposes the death after a verdict which of murder of the found defendant first penalty, denying silent from an order defend was issue for new trial. We have concluded ant’s motion order guilt fairly judgment tried and denying a as relates" to trial should be affirmed insofar new degree, (in murder of accord conviction of ante, p. 307]) P.2d with v. Green *4 trial on for new must be and the cause remanded a reversed prejudicial there only, because were the issue of justice miscarriage (Cal. Const., of a errors which resulted of affecting solely punishment. the issue VI, 4½) art. § From defendant. offered At the trial no evidence was voluntary statements evidence, including prosecution at- abjectly honest which demonstrate officials defendant to the circumstances tempts and recount of defendant to recall killing, following appears: August defendant, after con- 31, 1936, evening On the money quantity gin losing playing suming and an unknown Defendant needed pool, along the beach La Jolla. walked might He he find. re- funds to rob victim and decided purpose picnic from or bench with the leg moved a a table Ruth until walked he saw using it as a Defendant club. from approached He her on a bench. sitting Muir alone her club, dragged to on the head with the behind, struck her rape He attempted to her. was unable nearby ditch, and a to Miss Muir carry purpose to out his rob because effectively Her death was caused frac- possessions. had no valuable injuries. many other tures of the skull and 1936. On body September 1, The was discovered golf course; he day caddy at a working as a defendant was Asked he did died. what that his victim had learned I there for two—three then, replied: "Oh, stuck around he caught Diego, a hours, off, then I took streetcar San and myself from I couldn’t thought try get away I and I’d time, night’s events, even preceding do . . .” The . . . but I dream, "like thought, seemed more less he ’’ my I did. it in mind what still had tent September 1936, police left a note on a On officers dwelling. note which defendant used as a asked defend- Defendant to his police ant to call at the station. returned at the shortly tent thereafter. found note and called He requested. questioned concerning the police He was station knowledge it, not held. killing Muir, Miss denied and was nearly mystery years, crime remained an unsolved changed his him- defendant, living, until had manner who provided self the solution.
In May, 1955, living Detroit, had defendant, who California, reporter, telephoned returned and stated that Muir. killing he to confess to the Miss Defendant wished subsequently above mentioned arrested and made the voluntary at first statements which are evidence. Police persisted them doubted his confession he satisfied veracity. explained previously that he had refrained his He confessing people he wanted to dear had not hurt because determined to confess inasmuch as his he had him, 1945, mother in and his wife in father had died in his *5 1954, and there was one left who particularly would be by shamed or hurt his confession.1 Defendant complains of the portion italicized of the fol lowing may instruction: “You not consider the matter of determining whether or not the defendant you if guilty, or find him guilty, in determining the crime degree of crime of guilty. which he is However, find the defendant of murder of the degree, you first may consequences then consider the of the possible two sen determining tences in what the defendant should prisoner A receive. sentenced to either imprison death or life may may pardoned ment he have his by sentence reduced A prisoner serving the Governor. may sentence he life paroled, hut not he years.” until has served at least seven (Italics added.) suggested
On behalf defendant it that this court should People Byrd the decision in reexamine (1954), 42 Cal.2d 505], giving 207-208 P.2d where the of the above [266 quoted approved. (See instruction was also v. Reese (1956), ante, 582].) argued 116-117 P.2d It is prosecution-slanted, analysis that the instruction is because periods (Beattie of the of time served for first Prisoners, p. 1945-1949, 34, published California Research of the of Corrections) Committee Board shows by persons time median served sentenced to life for much murder is more than seven years, particularly prisoner prior has a conviction when the felony. (Defendant’s previous criminal record, disclosed report officer’s judgment probation Authority for of the consideration Adult will be available imprisonment. be sentenced to See Pen. should defendant Code, 1203c.) § quoted portion of the instruction cor italicized (Pen. Code, rectly rules law states code §4800: during background intervening of defendant 1Illustrative report following excerpt probation years of the officer from the appear (a report have been before the which does not of sentence and is included in the was before the court at the time subject heavy during here): was a drinker and it was his record "The get During period periods he would trouble. drunken into subject burglaries crimes, was involved and sex 1937 until acts, contributing including lewd and lascivious the sex crimes delinquency rape. minors, explosure and lie indecent submitted to a orchidectomy in 1941 and since that date he was arrested but once double and that September 21, 1952, disorderly conduct, date drwnk paid $35 His interest in sex diminished for which he fine. after ’ ’ difficulty. (Italics added.) operation gave him and never more commuta reprieves, pardons authority grant general by Article upon the Governor sentence conferred tions of Code, California”; Pen. VII State Constitution a life sentence imprisoned under prisoner “No 3046: § .2 years”) calendar least seven paroled he served at until has con matters of fact quoted pertinent rules propositions than as determining the rather sidered *6 had defendant, he presumed that of to be law. to opportunity sought accorded so, to do would have been median, minimum, to facts as pertinent show other related actually first served for and maximum terms of ante, p. supra, degree (1956), (People v. Green murder. appear it does not 217.) In circumstances the factually complain giving as the of the defendant can to the of law. accurate statement of rules as in Green case, however, In this requires reversal and a trial supra, is error which new error solely punishment. Here, on the issue of the involves concept duty the that under the law it is same untenable the jury impose (or judge of to to the permit impose) the to the mitigating penalty death unless there be evidence circum implying jury’s statutory thus a limitation on the stances, function, the error arose in a different manner in but than The in the case. court its formal written instructions jury suggest, not in (supra, did as it stated Green ante, the “The 217-218), that discretion which the law invests you employed only you in is to be ... when are satisfied that lighter punishment imposed. you If should be find guilty degree murder do defendant first and not find extenu lighten punishment or circumstances it is ating facts your duty to of murder in the degree find verdict first ’’ Rather, fix at death. the formal penalty written instruc concerning subject punishment for tions first given here, quoted page ante, murder after the instruction 754, proceed as follows: provides every person guilty law this State first death confinement murder in the shall suffer prison life, the State for at the discretion If guilty. you him
finds should find defendant your degree, it to determine will penalties inflicted, penalty of the two the death which shall prosecuting attorney argument concerning 2As the stated the last (concerning parole), instruction “That sentence that he will doesn’t mean just be; may.” means that he or confinement in prison you the State for life. If fix should penalty as confinement prison you life, State your sowill indicate in verdict, using a form that will be you you handed to when retire to deliberate, you but if penalty you fix death, specify as will not penalty verdict, you in the say nothing will punishment about In determining punishment the verdict. in- shall be flicted, you entirely according are free to act your own judgment.” quoted instructions, commendably, above formal any suggestion
free fixed and by (except favored law is death insofar implication an might in a combination of from the state- circumstances arise you ment “if should fix you death, will specify say not the death the verdict, will nothing only about verdict”3) and that mitigating finding to exer- circumstances free penalty, unfortunately cise discretion as to the writ- only given formal instructions were ones ten jury. concept penalty pre- erroneous that death is the the law in absence of ferred circumstances conveyed a combination circumstances *7 which hereinafter related. and events are It is emphasized holding that not that any at the outset we such circum- events, standing alone, would necessarily stances constitute they they were combined here acquired error. But a import clearly and were gravely prejudicial erroneous on the penalty. issue subject “mitigation” injected into the attorney argument. prosecuting (As
case is devel subject properly argued that oped hereinafter, could have been pertinent mitigation had not been if evidence in effect jury’s by unduly consideration from the excluded restrictive jury adequately had and if informed definitions function, including unequivocal scope their instruc to the wholly unnecessary mitiga to find that it was tion fixing penalty at imprisonment.) life a tion as basis prosecutor summarizing said, facts “those facts After mitigation. I think it is an offense that is certainly no show certainly . . aggravated. provoca . There is no extremely I mitigation that can see the evi- and there is tion pointed out, acquires significance statement, when as hereinafter 3This argument prosecution light and the oral instruc considered quoted post. tion you dence. When arrive the position, reviewing after evidence, you feel this is a first degree case, then the question penalty play. comes into . . . penalty justified
“What is on this evidence? You will be I given, am sure, two verdict, forms of one if you feel life is proper penalty the verdict will so state. There penalty is another is the penalty. death penalty That is in which the is defendamt found degree murder jury and the makes no recommendat of first ion,[4] they and when make no only recommendation there is one Judge sentence the passes, and that execution, is the death penalty sentence. What Judge does this evidence ? show The you your tell it is a will matter within discretion. It is some thing you may look consider, over, decide. You can come your you own conclusion. INow asked at the beginning of you case prejudice this had against or beliefs the death penalty. you you All of not, you stated did felt that could vote for proper such a in a case. And asking you is all I am to do, say is to proper ‘Is this a ’ case ? The contend that proper is a case. There mitigation, is no is one factor in the case to show mitigation. What any mitigation factor is there of in this upon ? single brutal assault Ruth Muir Not one factor. aggravated “The feel that this is an offense and it justified. is an offense in which the death jury justified exercising their discretion in returning pen a alty—returning fixing[5] a verdict without penalty, a first 4Strictly speaking, say jury it is inaccurate to that the makes a “recom given privilege mendation.” Under the statute is not penalty; recommending unqualifiedly imposes rather the statute on the fixing the function and at either death or imprisonment. (Pen. Code, 190.) § prosecutor (that justified 5This statement exercising without returning penalty—returning discretion a verdict penalty, fixing degree verdict, a first which would mean the penalty”) ambiguous confusing. jurors If the understood conceivably they might—that therefrom—as could return “a ver fixing penalty,” presents dict without the same vice which in *8 People 859], v. Hall require Cal. 451 P. was held to reversal. implications jury erroneous of this statement that the could fixing penalty might return a verdict height- without themselves the by (quoted ened ante, above) rather than lessened the statement that jury] only “when [the make no recommendation there is one sen- Judge passes, tence the (Italics (1874), and that is . . . the death sentence.” added.) 49 implied partial overruling Since the v. Welch (and following basically Cal. 174 concept), the cases its erroneous in (1926), supra, v. Hall 456-458, 199 Cal. it has been the law verdict, penalty. mean degree the death . . . would " sincerely e feel that this that the de evidence [W] degree there is and that no
fendant mitigation penalty and that should the death be exercised jury mitigating in this that there no factor.” added.) (Italics “mitigation,” argued, concerning Defense as fol- counsel lows : no prosecuting attorney]
“Mr. Low said there were [the big- I think there I think mitigating circumstances. are. the is the that the defendant turned himself in. gest one fact him there have been no solution to this crime. would Without gone I have down as another unsolved crime. don’t It would you suggestion reducing for the . that to a . . offer ’’ mitigating a I think it is circumstance. argument attorney said, “I closing prosecuting . . In . lightly. think penalty I it is a serious not take the death do carefully considered I think and and matter mitigation no such in this case that there is and evidence Mr. Friend . . did. . justification what . . only question penalty. this case is . in Counsel mitigating the fact he confessed. has . . . said factor years life, of freedom nineteen nineteen has had He victim], Muir than Miss years more now [defendant’s has confessed. What is in mitiga- is dead he his wife because of that? Not one thing offense because tion in view this mitigation. brutal, unprovoked is a this case shows in woman ... We feel from upon a defenseless this evi- assault discretion, wisely, study it your use you should use dence you to the conclusion you feel come after case, and when find this is a first thought it that will over have justified.” penalty of the death imposition that case and added.) (Italics only question prosecutor, “The in
As stated (after impose trial) judge could not sentence unanimously “legal agreed had unless there was upon evidence” Here, appears at death. it must and fixed what verdict would be understood the result of silent and the developed connection, text, misleading in in consists error failing misapprehension, them, their as to the correct substantive function, to a on their the limitation and as limitation law being improper implication under would be law function judge fix the view As there was circumstances. will also unless appear text, unduly limiting, by definition, was error mitigation which could be nature punishment. the evidence considered *9 penalty.” jury this case is the That is what he told the least eleven times in that connection at he stressed the asserted “mitigation” “mitigating implied or a factor,” absence necessity finding mitigation jury were to return other than the silent verdict. Obviously greater attorney’s emphasis prosecuting of the quoted arguments persuading jury above is addressed to mitigating that there is an absence rather than that factors presence aggravating sug there is elements. This in itself gests prefers that the law that the view shall death, imprisonment, than life in the rather absence of (held mitigating circumstances. Such view erroneous in People (1956), supra, ante, pp. 209, clearly v. Green 218), is prosecutor’s portrayed opening argu statement his People proper that “The contend that this is ment case penalty]. mitigation, death There no is not [for mitigation sincerely . . one factor the case show . e [W] from this evidence that the defendant feel that mitigation murder and that there is and that by penalty jury should be exercised this the death ” mitigating there is no factor. It is true that prosecutor also said that feel that this is an offense,” by aggravated greater far the emphasis was placed mitigating on asserted absence factors. We (ante, p. held in the case that 218) “[6] lighten function of the either to not a [mitigate] pun [aggravate] ishment or increase the punishment; they have no power. clearly such The statute and equally states two punishment; gives preference alternatives as it to neither. [7] It is the function and responsibility to select, designate in their verdict, and to which of punish the two prescribed imposed ments the statute shall be in any given case.” prosecutor trying persuade
If a to select penalty, the death seem would more to point and more place consistent with the statute that he should greater emphasis argument developing his aggravating circum than the mere stances rather absence of mitigating factors. suggests no more statute should be the absence sug circumstances than it gests be life in the absence of Neither aggravating circumstances. attaches auto matically, preferentially law, case. The selec every entirely jury. is left tion in case to the recognized recognize, course,
We as we in the Green (ante, p. 231), judges prosecuting case “that trial justifiably officers have legally they understood practices could continue follow based on that line cases [the stemming v. Welch supra, Cal. 174] eommendably, many although, voluntarily of them have ac quoted ante, ceded to the admonitions hereinabove [see recognized by But it should also be all 227-229].” *10 meaning of concerned the statute been clear and had undisputed (if years for more than 30 not for than 60) more merely prior to the Green and that the Green case we “compliance (See with that law.” required ante, 226, Bollinger also 231-232; see v. 196 Cal. 25]; People Leary (1895), 191, 207 P. v. 105 Cal. [237 24].) specifically, More P. our decision in the longer refused to tolerate case we the continuance conflicting opinion, permitted lines of one which two giving, “not error” uncontrolled discretion of the on judge, cases, instructions based the Welch line of trial (without recognized other even a criticism of the while the could, in judge that the trial his sole view) discretion, latter Leary-Bollinger the statute accord with and the instruct (See ante, pp. 231-232.) 218-226 and of cases. line only case therefore is novel of the Green The law judges (of by all and in all compliance cases requires meaning ‘‘ murder) of the statute which has with ’ ’ beyond recognized question. long (People as clear been so p. 207.) Bollinger, supra, at attorney’s arguments pivotal prosecuting became a That unmistakably is made jurors’ debates clear factor follows. what readily agreement to come an jury did as to punish- began 2:38 They p.m. their deliberations at August
ment. day they p.m. on that 11:35 returned court, 1955. At following colloquy judge occurred between there jury: question ... We have a point a Foreman: “The helpful to in determining it would be us we a law and feel to know is is interpreta- wish there cm . . . What we
verdict may determining aid the law which tion whether life sentence or be a punishment maximum degree murder, is, of first a verdict does the penalty respect? legal mitigation in this If it does, law consider of such? be made available may we only thing you I can tell that it “The Court: you question: you I entirely up to folks. will ask Do any mitigating circumstances? find I opinion : am the are cir- “The Foreman mitigation. . . considered to
cumstances which . be in I am not sure how the law and I don’t know defines says either, frankly. on it what Webster dictionary me the I Court: Get and will read it to them. . International Dictionary, . . Webster’s New Second Edition, mitigate . . defines To render . follows: or become milder; mollify. moderate; To to make mild 2. or become violent, intense, pain- severe, fierce, cruel, harsh, rigorous, less presume I ful, supposed and in those cases the word ‘less’ every says violent, severe, before word. It ‘or become less ’ cruel, intense, harsh, rigorous, painful, forth, and so fierce, severe, violent, fierce, cruel, so it would mean less less less less intense, harsh, rigorous, painful. less Next less less less soften, appease; meliorate; diminish, lessen; as, temper; cold, grief, punishment or Now mitigate heat or an offense. mitigation mitigating, being means an act of or state of miti- anything harsh, gated, painful, or diminution abatement palli- afflictive, calamitous; alleviation; moderation; severe, mitigation pain, grief, rigor, punishment. ation, as, the *11 say only thing you, I can to ladies and gentlemen, is you you evidence; judges heard the are the sole as to punishment is to be in this case. what the That is you. you gave you I tell to do. I up to can’t what all the you instructions with you instructions. You have the and if any mitigating circumstances why, can find if why you looking for, up you it to are that what find you anything you about them. If I them. can’t tell want to you go back; you I will let argue more about it don’t some you you my What do want? put I bed. In want to will you why absolutely no reason shouldn’t arrive opinion there is at a verdict. try up return and to come with : “We will “The Foreman added.) (Italics
a verdict.” jury August 3, 1955, returned their a.m. on At 11:31 degree of first murder guilty found defendant verdict which punishment. and was silent as from the circumstances which us,
It is manifest jurors gained had related, been hereinabove have discharge concept that, the conscientious the erroneous6 legal justifiably in order to return the form duty, imprisonment, specifying of life of verdict “in found opposed to the form which the defendant makes recom- mitigating circumstances, mendation,” must first find enlightenment jury sought judge, the trial when entirely although “that it is subject, on the he told them ’’ up you only effectively folks, not failed to disabuse them but, rather, affirmatively joined as to their erroneous belief compounding by giving the oral instructions as to what jurors might mitigation, constitute instructions which mitigation apparently interpreted purposes to rule out for any of the evidence which the consideration mitigation.” re- thought “to be in will be foreman had answering prosecutor’s counsel, membered that defendant’s [mitigating circum- jury, “I argument, told think biggest one the fact the de- stances], I think the crime years while the remained un- nineteen fendant [after him there would in. Without himself turned solved] been prosecutor replied, to this crime.” no solution mitigation in of this offense because view is in “What mitigation.” There- thing in case shows that? one Not the court for of the asked the foreman after, when may aid the of the law which interpretation “an be a life punishment should sentence determining whether murder, of first a verdict Tnavirrmm any legal mitigation in this law consider is, does replying request, to the foreman’s respect,” judge, you Do find miti- you question: I will ask said, “. . . answered, foreman And when the gating circumstances?” are circumstances which . . opinion that there . “I am of the mitigation. to be in I am sure how may be considered dictionary judge read the ,” .. . law defines quoted colloquy by ended the hereinabove definitions why absolutely no reason my opinion “In there is declaring, at a arrive verdict.” shouldn’t jurors hearing arguments that the apparent to us It is judge must have under- and the statements of counsel *12 according (in judge) to law the view of the that stood arguing single in that there not a correct was prosecutor mitigate punishment; that defense in the evidence factor in his contention that the return and mistaken counsel was (1956), supra, ante, 6People 217-220, 231-232. v. could be considered of defendant confession foreman of and that the fixing punishment; in factors announced belief that in his was mistaken jury likewise undisputed referred facts (presumably were circumstances to be could “be considered counsel) which defendant’s appropriate shown, under mitigation.” As hereinafter tending to indicate weight of the evidence as instructions imprisonment one hand penalty on the or life that the death properly might appropriate could other be more in re argued. not correct to assert that But it was thing in this case shows fixing the “Not one penalty, lation to any more mitigation.” It to conceive of evidence is difficult a pertinent mitigating punishment7 to the end degree background of this one than murder case with the living which revealing change in defendant’s manner and confession of the culminated in his return to California theretofore unsolved crime. Barclay 40 Cal. (1953), have in mind We 321], case, a first murder P.2d 2d 157-158 [252 " guilt punishment are de the issues
it is said: Since time, danger there is that evidence at the same termined may on the former issue influence the offered instructions prejudice Accordingly, issue. to avoid on the latter verdict injection or the accused of collateral to either good evidence of the habits and ease, into the bad issues generally of the accused is held inadmissible background and the consideration of the is limited to [citations], attending the commission of the circumstances the facts and Barclay however, offense itself. [Citations.]” (People it has been said recognizes v. Larrios scope pertinent punishment character 7The required in a case wherein to fix the should be received subject legislative penalty, which could well This receive attention. long accepted (as recognized implemented since the view state has by acts) generally that, sentence laws and other the indeterminate perpetrator crime, speaking, fitted to the of the merely tailoring punishment In the crime. for most offenders complete controlling agency study person. has the benefit aof story particular controlling incident, is an In the whole life crime only being, probably, many but one board time which the one reaching seems, therefore, It in its ultimate conclusion. considers congruous jury conceivably of first a case may given responsibility selecting or death making punishment, full that determination be denied the punishments enlightenment which for less drastic is available measure of appears respect law, in this administrative board. when to the applied, continues outmoded view that must and if so inexorably crime, fit not the offender. *13 764 236,
220
241-242
P.2d 404]), concerning
Cal.
evidence
[30
bearing
which “would have had no direct
on the homicide,”
person
that “a
on trial for his life should,
against
technical
objections,
permitted
to state, within reasonable limita
tions, something
background.”
of his
We note also that the
trend is toward the more liberal admission of
perti
only
nent
penalty.
to the selection of
For
it
example,
has be
practice
come established
to advise the
con
facts
cerning
possibilities
pardon,
commutation, parole, etc.
(See People v. Letourneau (1949),
In the state of the record we think that, if the diction ary “mitigate” definitions were to be read, it was the to have instructed jury specifically the court could the exercise of their discretion consider the evidence voluntary as to defendant’s return and confession as ma selection of punishment, any terial and that in event wholly unnecessary it was to find mitigation evidence of fixing as a basis for imprisonment. at life Leary Ever since v. (1895), supra, 105 Cal. 486, recognized 496, has been the law of this state that section 190 of the Code, Legislature Penal as amended, power has “confided the to affix within these two alternatives or imprisonment] the absolute [death jury” discretion and in People Bollinger (1925), expressly supra,, 196 Cal. it was declared that “the upon places jury’s law restriction exercise such attempt discretion, nor does it to confine its exercise to cases presenting palliating (See circumstances.” (1956), supra,, ante, p. 229, also v. Green and cases Certainly cited.) under rule above stated undisputed voluntarily fact that defendant returned to California prop and confessed the unsolved crime could erly considered to constitute a sub *14 persuasive “mitigating” stantial and factor to the end of (more in accurately, process punish selecting) of jury ment. foreman was not in correct, mistaken, opinion his “that there bemay are circumstances which . . . considered to in mitigation.” Persuading be him to the contrary view, apparently judge’s was the effect of the remarks and during grave oral instructions colloquy, ly prejudicial resulting miscarriage justice. error in a of
Nothing that opinion we have said in to be con strued as holding dictionary (1) appropriate either definitions, accompanied by relevant instructions as to may law, not may be read to the (2) or that counsel properly argue the effect of in relation to the imposed. which should be In this connec point tion that, accurately we out to speaking, the issue as degree in a mitigation murder case is not of one aggravation or punishment. of of Inasmuch as the statute provides equally penalties two alternative death of and life imprisonment necessarily follows that of the function “mitigate” is not “aggravate” punishment to or to but is to penalties make the selection as between the two provided by law. intelligently To aid the to act in making selection, may properly argue their counsel their respective to views as which punishment, under all the circum shown, appropriate
stances will be more and desirable justice. cause of To end, appeals to reason the ex jury’s ercise of the may discretion proper; be so also be appeals clemency for or for stern retribution. But jury must not thinking permitted be misled into (or be to persist in an evidenced or known belief) that their discretion selection of penalty, as between either the two alternatives, way circumscribed or limited law. Their discretion within they that area is absolute and be so informed. jurors
It is an onerous task which upon perform are called They are citizens degree in the trial of a first murder case. Suddenly they are everyday life. taken from walks of finding guilt or in- responsibility confronted with being one charged for a with most nocence human responsibility crimes is a dual serious known the law. and to the on trial in defense his life one: defendant liberty brings to trial in defense the state which him society. jurors guilt (of the class its And when the find grim must discussing) they we are face business selecting imprisonment death for a fellow human or being. responsibility theirs concern- That which is ing equivocation instructions. which must be no They may responsible for the law told that the state is prescribes defines murder of the first and which every person guilty of suffer death, such offense “shall in that prison life,” confinement for event state very must terms of the further told that responsibility making statute the selection between absolutely committed life is jury. naturally jurors, discharge conscientious Quite in this as were those duty, eager, give poses a law can them. This delicate guidance the all must, clear. He judge but his for the trial task *15 they no jurors that concern with the course, inform applicable the to the unless, under instructions punishment they guilty, or not have found of issue of shall trial the guilty of beyond all doubt the defendant is reasonable that charged. they as When and murder of the first upon duty selecting penalty them, the devolves of find, so they be instructed as to the alone, on and should and them of that power nature of their in exercise function. absolute subject of hereinabove and From the discussion 217-221, (1956), supra, ante, 209, in v. in 229-232, appears that there need no error counsel’s it penalty advancing arguments to which will better serve as contending objectives punishment,8 of or in that effect penology many years and courts and writers on criminal law 8For some adjudicated legally punishment purpose is not or of have held that vengeance, but rather deterrence the offender and other should not be of rehabilitation, crime, prospective and assistance in their offenders (See Law, 1974, society. generally C.J.S., protection 24 Criminal § Cal.Jur.2d, Am.Jur., 506, p. 155; p. Law, Crim 14 15 Criminal § 1180; (1947), Law, 265, p. 516; Hall, Principles Law General Criminal inal § 130-137, 171-173, 419-421, 543, 568-569; Wharton, pp. 50-54, Criminal 1-13.) (1932 ed.), it he that there still exists Law Yet cannot denied §$ 767 “aggravating,” is “mitigating” evidence or certain imposed, provided to be affect their selection jurors clearly every adequately in that the ease in- They scope as to full their function. structed with (in be told accord the law reviewed v. Green supra, herein) beyond prescribing that two (1956), penalties provides itself no alternative the law standard guidance their in the of the punishment; selection penalties provides equally of death or life im- law the two automatically prisonment, penalty but that attaches neither jury unanimously agree upon or all until the their choice of punishment designate verdict; it in their penalties every choice as between the two is case committed to their is no rule of discretion; absolute there law which suggests that should be death unless there extenuating mitigating evidence or circumstances nor suggest penalty imprison- does the law that the shall be life aggravation ment unless offense; evidence of the very aggravated murder of the first is in its an nature one of offense, the most serious known to the it law; hence punishments carries with it the most serious known to the or law, jurors for life. The should under- stand that conscientiously consider all the arriving evidence the case at their decision but that it find essential to their choice either palliating on circumstances one hand aggravation hand; offense the other selecting insofar as (as is concerned between alternatives) the two the law does not itself nor prescribe, authorize court innovate, any rule circumscribing the exercise their discretion, but, rather, commits the whole matter of its exercise to judgment and the consciences jury; that in deciding question whether the accused authority that retribution can be considered as a factor relevant punishment. (See selection of (1949), Williams v. New York 337 U.S. 241, 1079, S.Ct. 93 longer L.Ed. 1337] Retribution is [" objective the dominant of the criminal law. Reformation and rehabili important goals tation of offenders have become jurisprud of criminal ; Pennsylvania ence”] Ashe 302 U.S. [58 S.Ct. “may penalty merely L.Ed. 43] [the state inflict a deserved to vindicate *16 the law toor deter or to reform pur the offender or for all of these poses”]. expression concept For of the stark of retribution see the (Exodus XXI, 25): 12, 24, Mosaic law that tooth, wound, man, “He that smiteth a so die, surely put Eye eye, he shall be to death. . . . for for wound for tooth hand, foot, Burning for burning, hand foot for for stripe stripe.”) for imprisonment for put or life to death sentenced for him- determine, discretion each
it within their alone weight to the of the how far he will accord considerations self, objectives crime, of punishment, of the deterrence several society, desirability protection of of the of stern retri- of the sympathy pas- or human bution, clemency, age, sex, or (if under ignorance appropriate or sion, weakness, or provocation not evidence, of or intoxication or sufficient illness presump- or crime), to reduce the class of the possible attaching to, concerning, tions uncertainties of the imprisonment, or irrevocableness an executed sen- apprehension explanatory may death, tence of or an that facts brought light, not been exist which have other con- light in evidence, whatever which sideration to the accused and to the state, owe and the law explained appears to them the judge, to them to be important. has hereinabove
As been stated the error in case this arose from a combination circumstances events. The use imply the so-called “silent verdict” form to the death together together penalty, concerning it, with instruction attorney’s prosecuting arguments also with the as to “miti- regarding “penalty gation” which the defendant of first found makes recommendation,” and fixing the “verdict without necessarily all circumstances which have penalty,” are portraying background upon related error background grew. from that foreman was question point on “a of a of law” as to the asked aid implied gained penalty, had selection expected concept law “the maximum “legal degree murder” of first unless there was miti- verdict respect,” positively declared that he was “of gation may . opinion there are which . . circumstances he mitigation” “not sure how was considered to be mitigating,” and, as is made obvious the law defines judge’s instruc- hearing the oral verdict, persuaded, after opinion. mistaken in his tions, that had been he have been any one of the circumstances which How much produce erroneous initial contributed to related duty absence of miti jury as to their concept note, need not determine. We how gating we so-called hold that the use of the that we do not ever, accompanying instruction is form with “silent verdict” its
769 in error. itself Instructions to the use of the “silent repeatedly upheld have varying verdict” been in circum (See Cal.Jur., pp. 746; stances. 24 Homicide, 745, Cal. Homicide, p. 864.) Jur.2d, given The instruction on the in subject (quoted ante, pp. 755-756) this case is No. 306 in Jury California Instructions, are, however, Criminal. We in grave view of the brought fact error forth that form fully has verdict been in disclosed our decision in People v. (1956), supra, ante, 209, bound to recognize four facts which practice reading shadow the providing instruction and accompanying an form of silent (1) practice admittedly verdict: Such is a remnant of the holding of (1874), mistaken this court Welch supra, 174, 185, 49 Cal. that “The declare that need not they agree death shall be inflicted—in on cases where cannot imprisonment—since, respect if the verdict to silent penalty, the death”; Court must the defendant sentence to (2) language used in the instruction and form of verdict jurors in some circumstances to confuse tend and lead error; (3) language may to such lend itself to the accentuation of errors such as those which occurred here relation to subject of mitigation jury; (4) the function of the practice appearance (if fact) has the it is not in an attempt justice—as punishment— to load the scales against person on trial for life. his danger
Dramatic illustration of the of the use of the type of question instruction now is found v. French 378], Cal. 176-180 P. jury, There the after an instruction had given, such retired to deliberate. They returned into court and the reported foreman agreed on had not juror verdict and that a desired further punishment. information as to juror That said, “I not am pass willing sentence ... which the man should be I think killed, because there were some circum- said, stances.” The court right have the to fix for life. ... If the jury bring guilty in a verdict murder first degree, specifying they may without the penalty, do so. . . . You are ’ ’ compelled do it. jury again again The retired and returned for information question on of punishment. juror said, same “I got impression that if the verdict was returned of degree, further, without it anything first thought penalty. my fellow-jurors inflicted the death Some of it did not. I want to certain of that.” he said, duty “I fix court think is the agreed penalty, time, at the have but same a verdict degree, of murder in the court will receive it. “If nothing specified penalty, as to the court duty perform,[9] will its what will be say. the court will not they ought jury’s duty penalty;
“I it is a to fix the think *18 to do it.”
Again jury bar, they As in the returned the retired. case at ob- Defendant’s counsel punishment. a verdict silent as to misappre- jected verdict been under a that the had returned fact, knew, the that that means jury hension “and the as is that The hang, they brought not verdict.” would have my verdict, is juror said, the that same “If that is effect the my polled and clerk jury not the was verdict.” When dissenting juror said, first asked, your this “Is verdict?” something not which could “No, if-” murmured not and verdict, said, he by if that his Asked court be heard. responsibility my is I leave “Yes, verdict, and will added.) (Italics to the court.” Judgment of death on this verdict was This court affirmed. (1874), supra, People v. Welch 49 Cal. cited and held (People (1886), supra, Cal.), v. French 179-180 of 69 " upon receiving such verdict, Of the court a judge. could doubt in the mind have As People Welch, [174,] 49 by court v. Cal. 185: declared agree guilty jury ‘If a shall that a defendant is of murder agree that the shall degree, but cannot first imprisonment life, punish or shall not declare that the duty of imprisonment, be such it will be the ment shall need pronounce judgment death. not court in cases where can that death shall be inflicted declare silent in agree imprisonment,—since, if verdict- is not must sentence defendant respect penalty, the Court to death.’ first words, convicted of murder in the person
“In other a that con- not because escape shall disagreed upon may have by verdict him a valid victed equivalent same or, which is to the punishment, question pp. 756-757, ante, 759-760. 9Cf.
thing, returned a verdict penalty.” which was silent toas
In Hall (1926), supra, 451, 456, 199 Cal. it was held, directly contrary to the Welch and the verdict not expressly . . . must overruling them, be the result of the unanimous “ [3] related Under the law decisions, agree- ment of jurors and incomplete the verdict unless, as returned, necessary it embraces the two elements; constituent first, finding the accused is of murder in the degree, and, legal secondly, evidence that the jury has fixed the jury may penalty exercise its discretion as the exercise its discretion. penalty in one of [4] ways. three fix penalty wording the death so its verdict, byor remaining penalty, may by silent as or it wording penalty so its verdict fix at imprisonment. When the death or at at for life fixed iy specific wording difficidty the verdict no definite (Italics or has been added.) encountered ...” Under a mis- apprehension holding as to the v. Welch supra, (its significance readily true Cal. except upon reading paragraph ascertainable of the last opinion denying rehearing) rendered on that case was authority proposition jury “may relied on as for the that the penalty by remaining fix . . . silent to the penalty” a silent “affords conclusive evidence verdict . . . has . . . exercised its discretion there- already shown, fixes the As *19 death.” we actually agree the Welch case that the need not holds upon they agree penalty; upon or fix the death that must and penalty only imprisonment, upon fix if it life and the is agree penalty (but agreement guilt as to of failure to as to judge the degree murder) first the must sentence defendant to death.
It is stated a note 36 California Law 628, 632, Review guilt agreed has been the upon, that “Once discretion of the by practice choosing exercised printed is in between two of these forms verdict. One of declares that the degree guilty found the defendant of first murder and recommends [10] imprisonment; other simply announces a degree finding guilty of of murder in the first and is silent as prejudicial penalty. to the This itself seems the defend jurors agree in which the cannot on the recom- ant cases 4, ante, p. 10Seefootnote 757. agreed
mendation of life that imprisonment, having after degree. defendant did commit murder in the first Judicial contrary jurors notwithstanding, may, instructions to choosing ‘simple’ no verdict, responsibility feel direct imposition or, penalty; having agreed of the death on the crime, they may of feel, after fruitless debate on punishment, cannot determination of that refuse to bring specifying only agreement in a that verdict ’’ murder. guilty is first defendant as we
Although, indicated, have above the use of the relying verdict trial on silent courts our earlier decisions error, seem, itself be held constitute it would now creating pract in the decision of the error source exposed (People (1956), supra, has been v. Green ice11 pp. ante, 224, implication that the which 3), footnote corollary (in People (1926), this court’s statement v. Hall supra, 451, 456) “When at Cal. fixed specific or for life and definite wording difficulty has encountered” verdict emphasized, as (italics added), should considered further practice itself discontinued. and that henceforth should be pp. (See (1956), ante, also v. Crooker apprehend, 753].) continued, practice, P.2d If such we contributing urged accentuating would often be conceivably could relate to prejudice of errors which punishment. conclude entire record we
After consideration
fairly
of the crime of
tried and convicted
has been
defendant
guilt
insofar as
degree,
offense is
measure
accorded the full
concerned,
that he was not
penalty. Hence,
there has been
trial on the issue
a fair
trial on
necessitates a new
justice
miscarriage
Const.,
§4½;
(Cal.
VI,
art.
issue.
232-235.)
supra, ante,
judgment
deny-
order
stated the
and
For the reasons above
adjudica-
to the
ing
trial are affirmed insofar
relates
a new
murder and
the murder
that defendant
tion
(cid:127)
judgment
question of
degree;
the first
is of
cause is
denying
new trial
reversed
order
question of such
for retrial and redetermination
remanded
sentence
for the
of a new
pronouncement
penalty only,
*20
(1874), supra,
11People
Gibson, J., Carter, J., and C. concurred. J.—Concurring Dissenting. I concur
SPENCE, and inso- I judgment affirmed, far and order are dissent as the judgment insofar and order are reversed. purporting to majority partial reversal,
The orders a rest upon authority p. its Green, ante, decision v. I P.2d am of the view that the case is Green 307]. wholly inapplicable presented and the situation here that the judgment should affirmed. appears
It appropriate my position that I first make clear respect with to the decision in the Green case. I dissented in that question case essentially where involved was one of statutory my construction. I conceded dissent that question had then an open one, plausible argu- “a ment could be made for My either construction.” dissent was upon ground based question open that the not an was decisions of court had recent settled the one; rule; recent should decisions be followed. those The majority however, determined that there, those decisions be overruled. decision case Green has a new rule which the trial courts therefore declared are now required to Under the I circumstances, follow. do believe purpose useful could be served further dissent. yield majority therefore views in the I Green placed regarding the construction upon ease section appears Penal Code. important most firmly is to consideration now have a established rule of con- guidance of bench for the struction bar in this im- relating law portant fixing field murder. for first follow, my however,
It does not acceptance of the People Green, supra, rule established join that I should partial judgment reversal here. The records present entirely the two cases different situations, present majority opinion I am the view constitutes an extension of rule of unwarranted the Green case. portion of the instruction which challenged read as case follows: “The discretion which arbitrary is not an law invests one and is to be em- *21 lighter punish- the are satisfied only you ployed when guilty of the defendant you If find imposed. ment should extenuating or facts not find do degree murder and first your duty to it is lighten to circumstances degree and fix the find a verdict penalty at death.” jury there instructed was appears that thus death” if penalty “fix at “duty” to
it was The “extenuating or circumstances.” facts did not find upon the conferred the discretion majority there held that was absolute. Under jury of the Penal Code by section 190 majority further held section, this construction it had the effect erroneous as that the above instruction was if penalty fix the telling jury that it must extenuating or circumstances. No similar not find facts it did prosecution both the present Here exists case. situation theory proceeded upon the properly defense and the question or non jury of the existence could consider circumstances, mitigating extenuating or facts or existence of They fully fixing penalty. therefore desired, if it so facts or circumstances argued question whether such dictionary trial court read to the existed, and the “mitigation” “mitigate” when definitions request made its . any imply time to not at tell here did trial court The penalty at death unless it found fix the it must jury that majority opinion The con- circumstances. mitigating such instructions, eommendably, are free” the “formal cedes that, unlike The fact is suggestion. any such in the formal instructions that told here was you inflicted, are punishment shall determining which “in judgment.” (Em- according your own to to entirely act free given informal instruction Turning to the added.) phasis dictionary definitions, the trial court was care- along with the you only thing I can tell is that “The point out ful to again, only thing And you to folks.” entirely up it is you is that heard the gentlemen, ladies say you, I can judges as to what the the sole you are evidence; up you. That I can’t in this case. to be you You gave all the instructions. have to do. I you what tell you you if can find with instructions you looking that is what case, why, circumstances you anything find them. I can’t tell up you why it is for, (Emphasis added.) them.” about argument prosecuting attorney likewise proper. discussing punishment and ab- When the claimed mitigating circumstances, Judge he will sence said: “The you your something tell it is a matter within It is discretion. you may consider, look over and decide. You can come to your own again conclusion.” And he said: feel from “We you your this evidence it wisely, use use discretion, study you feel case, and when come the conclusion after you thought it over that will find this is a first imposition case and that the the death justified.” implication sole be drawn from all the
instructions, argument formal and and from informal, counsel is that the could consider the or non- existence existence of mitigating circumstances, “if that what [was] [they looking fixing for” in penalty. The last were] implication mentioned entirely express an correct, and formal instruction to the they effect that could consider such matters, might given so desired, well have been even under the rule of the long Green so itas was made clear by the instructions, as it was here, determining that “In punishment shall be you inflicted, entirely are free to act your own according judgment”; question “entirely up punishment folks”; “you and that are judges punishment the sole as what the is to be up you.” appears this That is It case. therefore given equivalent the instructions were to an instruction that jury’s in fixing discretion was “absolute.” record, In view as summarized here and the ma- jority agree cannot opinion, majority I with the by People Green, is controlled case or that supra-, any error similar to that in the Green case which “in- the same untenable concept volves that under the law it is jury” to impose in the of mitigating absence circumstances. Permissive language by was used all times court and counsel with respect fixing the punishment, mandatory and no implications properly can be drawn therefrom. I therefore partial believe reversal majority rests upon an unwarranted and undesirable extension of the rule of the case to situation ap- which it has no plication. In conclusion, I reiterate am that I opinion that it entirely proper prosecution for counsel for the and counsel argue concerning the claimed existence or
for the defense to in a murder nonexistence of circumstances case. arguments knowledge that such is a matter common ordinarily presented practically every trial for murder. opinion may properly I am further of the that the trial court upon jury’s approved give, request, definitions properly arguments. I there- words used counsel arguments in- fore conclude that counsel’s and the trial court’s wholly par- and more unobjectionable, structions here were ticularly light explicit instructions, of the trial court’s informal, concerning jury’s formal and freedom to absolute determining exercise its to be discretion imposed.
I find no error in the record and would therefore affirm judgment entirety. and order in their In No. 5780. Bank. Jan.
[Crim. 1957.] Respondent, BRUST, THE PEOPLE, v. OSCAR HUGO
Appellant.