*1 clearly case, the is sufficient In evidence present question of It was plaintiff. in favor support a verdict loading of Brown due care as to whether used of fact testimony prove that he was tends the truck certain him, loading negligence. of selected The method guilty of stringers lumber used as between pieces the size given Wil directions truck, and the pipe rows laid on from handling tag-line and his return as to the liams loaded, pipe after rack each section pipe the truck to the deter proper to be considered in factors were some contributory negligence. mining negligence issues ground circumstances, ample there was Under these of a new trial. judicial discretion in favor exercise of The order affirmed. J., Traynor, Sehauer,
Gibson, J., J., Carter, J., J., Shenk, C. Spence, J., concurred. Aug. 16, 4657. In Bank. No. [Crim. 1946.] THE PEOPLE, Respondent, SIMMONS, ALGER
Appellant. *4 Leola Kellogg Buck Montgomery G. Appellant. Rice for Kenny, Attorney Robert W. General, Richards, and Frank Deputy General, Attorney for Respondent.
CARTER, J. questions presented by appeal con alleged cern presentation errors in the of evidence and in charging jury. By amended charged information defendant was with the
. commission of January crimes committed 5th January 22d, 1945, respectively. charged robbery Counts on January Ellingson 5th Mrs. Carrie $639.87 and of Ray Byrnes R. one package cigarettes of the value of 15 cents. charged Counts January murder on Virgil 22d of Marques, robbery of Leonard $425, E. Brown of upon and assault deadly said victim weapon with a with in tent to commit prior murder. A conviction of petty theft with prior petty theft, in June, 1942, alleged was also respect to each count. One Theodore Bernard Webb was originally named as a codefendant, pleaded guilty. but De pleaded fendant guilty, except that when the cause was called for trial he prior admitted the conviction. *5 finding jury
At the close of the returned trial the verdicts 1, 2 degree robbery 4, on and guilty defendant of first counts degree 3, recommenda- of murder of first on count without deadly a punishment, weapon, and tion as to of assault with charged in in 5. a lesser included the offense count offense was denied, trial was and defendant sentenced Motion new 5, on 4 and with for the terms counts prescribed law consecutively, and to run prior, admitted the sentences to on death 3. count original information, on arraignment
After defendant attorney repre- for the who then substituted new counsel was A senting public him later the defender and Webb. week represented up counsel defendant was substituted as and again substi- appeal. the time New counsel were then his tuted. a crimes, defendant,
At time col- of commission of the years age man, and a ored was about had criminal colored, old, Webb, years record. also about and was exception juvenile delinquency, claims that with some engaged any wrongdoing. The evi- he had not theretofore relating charged dence robberies 1 and to the counts shows following: Byrnes company a for a furniture The victim was salesman Washington Boulevard, Angeles, located West Los and Ellingson bookkeeper and cashier Mrs. was for the concern. Friday kept Saturday open On and was until nine store large evening. lighted eight and its It was well dis- separate rooms, play portray decorated each windows were advertising type Friday particular a of furniture. On eve- January closing time, ning, 5, 1945, 8:30 defen- between man store, dant entered Webb and a third followed asked to certain fur- referred as Jefferson. Defendant see Byrnes him third display niture and led window. toward Byrnes alone, poked gun When the two a at were and ordered him walk to the cashier’s office. Meanwhile Ellingson under the Webb had asked Mrs. about account him no Jefferson, name of and when told there was ac- she shaped name, long dagger pulled under count listed from to walk into her office. pocket, knife ordered her A in. few minutes later Jefferson came Ellingson
Knowing money, men Mrs. walked that the wanted general drawers. Webb was opened safe and two found the amount he found there and later not satisfied with money currency In all surplus $621.37 drawer. Ellingson pushed back silver were taken. Mrs. gagged telephone and was partition.where little there was a her dirty with a Her hands were tied behind handkerchief. brought Byrnes in. He back. was threatened Defendant cigarettes from “frisked,” package was taken person. pushed partition, He then behind made also back. floor, to lie on the and his hands were tied behind his From the robbers extracted one of the drawers of the safe *6 by manager placed had been there the store revolver which Ex- by People’s him on and which was identified the trial as 12 hibit In minutes 3. all the robberies consumed about time, loot, Byrnes after the men left their and Mrs. and Ellingson posi- soon freed themselves. On the trial both were in tive their identifications of defendant and Webb. January alleged On 9th defendant was arrested for the robbery of a robberies, service station for above and and the by his 1939 car impounded police, Pontiac was and turned by over them company. However, to a finance gave day bail procured and on same his release on writ corpus. habeas Thereafter he recovered his car. While he was liberty charged still at the crimes of January 22d, in 5, counts 4 and were committed.
On
appeal
his
question
sufficiency
defendant does not
of the evidence to sustain his conviction under count 1 for
robbery Ellingson,
Mrs.
respect
but with
to the convic
tion under
robbery
count
Byrnes,
of Mr.
he asserts
that there
no proof
package
cigarettes
was
that the
taken
the person
any
from
of the victim had
whatsoever,
value
may
that the
judicial
court
not take
notice of value.
Ju
may
dicial notice
taken, however,
be
of the fact that
an item
personal property has some value.
The amount
immate
for,
People
rial
as said in
Thomas,
v.
The evidence with reference to January 22d, the crimes of charged in 3, following: counts shows On Janu- 5.. ary 22d E. operating Leonard Brown was a service station
at Street, Angeles. Sixth Los West About in seven evening lights Mr. off all of Brown had turned the electric except in in the store the one the office. As he was about light off door, by turn defendant entered the followed holding who his ap- Webb hand a in revolver similar pearance store, to the one stolen from the furniture aforesaid grabbed hand, whereupon Exhibit 3. Defendant Brown’s Brown seized defendant the waist in an around effort to throw However, him out. eye Brown was then hit above was dazed. He gun. thinks the blow Webb with a pushed through He partition was then door into the store- room get defendant and ordered to down on his knees. When he hit iron, hesitated defendant him twice awith tire ground, him when he was hit some more.
Defendant to open next ordered Brown safe storeroom. When Brown he did said not know combina- tion, again he was hit with the tire iron. While he was down looking floor, ordered, register at he heard the cash open front say, and heard man’s voice “He will be out him a minute.” man keep with Brown ordered down, pushed floor, head his face to the and started to tie rope. his hands in back with a This completed. was npt shot, obscuring Brown heard a but because blood was sight man he did not see whether the with him at that had time left the room. It is his belief that defendant was with *7 during including him in the room period, back the entire the time the shot was fired. Pour hundred dollars was taken from hip pockets, gasoline coupons representing his ration gallons pockets drawer, were taken from his the and desk and register. repre- $40 in silver was taken from the cash This Saturday, Sunday Monday sented and After hear- business. ing got up, rope, the Brown released himself from the shot way quiet and made his to the entrance door. All was and Virgil body as he out the went he stumbled over dead Marques may in lying doorway. the front Brown been have part unconscious time while the men were inside eye required stitches; his The cut his his station. over seven jaw fractured, eyes black; both his bruised; was were face was hearing impaired. and the in his left ear diagonally A service station across the from street Brown’s operated by yell, was a Mr. Prank Pusco. a He heard looked station, toward the Brown and saw man in a colored the doorway. heard another yell, He went the office next into his home then went police, and station, phoned his (Bx. 13), which got revolver door, his automatic next and safety catch. had a was loaded but shop in repair Virgil operated and Marques rented standing flower near a garage. He was Fusco rear of the As Fusco Fusco home. next to the property on bed the station his grabbed it automatic, Marques out by his came across repair truck, and drove hand, jumped into his door. right in front stopping station, street Brown’s at corner of stood unarmed and Fusco walked across doorway and saw colored man the office. He saw a called, “Give it to Fusco Marques gun in back. had the his Marques not have go may him,” gun did not off. but the and throw a bullet into safety catch how to release the known any rate fire. At chamber, may been afraid have grab from the rear and man come Fusco saw another colored grabbed Marques Both men at Marques. of these the hand of pull down. air as he tried to gun up hand and had of the door- Marques fired fell out Then two shots were positively way. the men and Mr. Fusco within feet of any gun see identified defendant as one of them. did not He by Marques. other than that held firing of men came Mr. After the the shots the toward him, ran Fusco, thinking they following were driveway. Two shots were down the street ducked into It developed fired at him in the stomach. later and he hit shots Mr. police, that these were fired who saw Fusco running thought Upon autopsy he was robber. body wounds, Marques, it was found bear two bullet being pellet the fatal fired the re- wound made from 3. volver Exhibit
The father of Webb testified that Webb defendant left evening January 22d, home about 6 o’clock .on sedan, bearing defendant’s Pontiac license No. 18 W which defendant had recovered from the finance company January police after 9th. When the at arrived 7:15, parked scene the murder about this car was just gas station, south of with the radiator still warm. police impounded Keys fitting the ear. the car were pavement. found on the station found One of the officers *8 revolver, premises lawn of a Exhibit on the few from empty cartridges. doors the station. It contained four On morning Carter, of the 23d a Mrs. who lived at the Sanmark Hotel, Woods, saw defendant in the room of Maxine who also lived and from there Mrs. whom Carter was seek- ing to a borrow broom. Defendant told Mrs. say Carter to he had been in there bed at 6 evening o’clock the before if anyone inquired him, about her newspaper pictures showed of the robbery, and told her that his car had been stolen. He took gave from Maxine, $200 or $300 billfold and toit saying: “Well, they pick Iup if me don’t want this on me.” spoke He abusively to Mrs. Carter because she would not promise him, her boy friend, lie for and later “I said was in robbery night.” this little last January
On police 25th one of the officers found the auto- matic pistol, signboard on Exhibit near a Wilshire Boule- vard, together gas about stamps $45 with and number of a underground. A bill, glove, buried about inches dollar a gas Eight and a stamp ground. found were above loaded pistol, safety on, shells gun were with glove could not be fired. mate to the was found in the vicinity. January 27th, defendant, traveling
On had been who hiding Woods, seeking place, around with Maxine a ar- was Fontana, rested at settlement San a colored at Bernardino County, & M known as the L Defendant Ranch. had observed approach police successively had hidden pigsty, coop, ground the chicken above a tree. He only told the feared officers he arrest because had somebody stolen his used it in holdup, car and and because he had charged one been crime not want with and did to be mixed up in apprehended another. Maxine Woods also was police made a statement she which told about defen- dant’s visit her after the and her room crime travels with January him apprehension. to evade Webb was arrested on gave 30th. police. He too statements to the Webb, originally charged who was as codefendant with defendant, plea guilty, prior entered a to the trial disposed imposition of this cause his ease At present trial, sentence less than death. at in- defendant, contrary sistence of but the advice of coun- sel, public defender, Webb was called the first witness testimony replete evasions, the defense. His repudiated contradictions. inconsistencies and He his former statements, saying they had been induced abuse *9 story told police the officers. He the unbelievable that he car, ostensibly help girl defendant’s to his friend borrowed met move, picked up companion he then a whom had that he hall, looking a that pool week in after for previously a and a place rob, they to the Al- chose Brown service station. though clearly crime, Webb recalled certain details of the at professed one his direct he not to be point examination gun he or able to remember whether had the whether his com- panion Marques had it at the time was shot. At another point cross-examination, he repeatedly and after had been judge of and by disposed assured that his case had been any statement, he not Webb by would incriminate himself he and gun, testified that was the one who had the Exhibit that he himself fired fatal shot. He claimed defen- that by dant subsequent came his house the crime to retrieve to his ear and that he defendant all that had happened; told companion vanished, that having crime an expressed going intention Mexico. to
Later defendant took stand in his own behalf at- tempted by to conform his narration given of-events to that Webb. He claimed that at the time of the crime had Webb his car playing Pokena, and he in Maxine’s room stayed he 8:30, there until he left try when to to locate Webb. He also he by police claimed had been mistreated and repudiated parts a he statement had made to them. gave He a different version than did officers of his re- sponse accusatory to statements. said He that he told the dog officers that Webb lied like in his statement, a and that good story” while Maxine told “pretty parts it were untrue. sufficiency support the evidence to the verdicts under beyond 4 and 5 question. virtually
counts Defendant this, among things concedes other states in premise opening clearly brief: “In present order to most III, vital errors as to the homicide sentence, Count errors presented chiefly will their be relation that sentence. . . . emphasize III, as to Further vital errors Count homicide, adequacy this brief the evi- will contest the conspired dence to show that ac- this [defendant] Webb, complice original co-defendant, the service rob they Brown, one made the attack station of Leonard one escape, or of the robbery that in course of Virgil Marques killed as he com-' of the robbers shot and ing to rescue.” by defendant is couched in the follow-
Another concession ing language: course, “Of this brief will not contest one point of where a murder is committed law that guilty robbers, confederates, may be each both found two ease, degree and, in after proper of murder in the first adhering jury, process, the impartial fair and trial to due discretion, must determine as to each of its sole the exercise by his death or expiate the murder defendant whether he recog- prison.” in the Thus confinement state who ac- regardless he or Webb of whether was nizes that subject to Marques, at both were tually fired the fatal shot *10 of imposition a death degree murder and conviction of first penalty. actually argues if it Webb who that
But defendant through Webb, plea shot, highly fired the it is unfair than death while defen- guilty, enjoy of a sentence of less to connection, inAnd this pay penalty. the extreme dant must appeal, points raised the respect to other and also with charge that attor- his trial present the counsel for defendant of errors of defender, guilty numerous ney, public In of the defense. in his conduct omission and commission omission, public defender’s asserted of such as the the cases defendant, helpful evidence introduce available failure to objections to object preserve failure to and his asserted instructions, the appropriate request improper evidence or do not ordinarily recognize these matters present counsel that argued is But it grounds of error. furnish reversible counsel by court-appointed represented where a defendant is own choos- by counsel public official, instead of byor duty, proper the failure ing, official is derelict and such defendant to afford the failure of the court itself defense is a be con- trial, errors must fair and such process due objections proper absence of appeal despite the sidered on than that through no fault other arose fact that the errors so, none Assuming to be this representative. of defendant’s appear preju- have urged by present counsel of the matters diced defendant. public omission said to be error
The first transcript in evidence a to introduce defender’s failure hearing. This testi preliminary testimony taken on the defendant, Brown in that very be favorable to mony is said to convincing gave part then a most account of played by robbery each of the two men in the commission of the murder far and he was more definite than at the trial in his stayed room, view that defendant with him in the rear thus leaving Webb as the man in front fired the who fatal shot. point, court, objec- For a consideration of this without augmentation prosecution, permitted tion of the record transcript. A preliminary include the of the testi- review mony prejudiced by therein shows that defendant was failure to it at introduce the trial. The matters shown are at cumulative, most anything would have added little if strong showing leading to the made at the trial the conclu- Webb, defendant, sion that it was and not who was in the front shooting. office facts, at time Under the extenuating which circumstances, wholly show no it im- probable jury, believing to have been one pair robbery, murder, who carried out would any transcript have rendered had different verdict if the been introduced. The fact that Webb received a lesser sen- tence disposition than death does not affect of the cause against defendant.
Complaint is made of accusatory three instances where objection statements were received evidence without part public defender. One of the officers testified being that while defendant was Angeles driven arrest, to Los after his a conversation was had attempted wherein defendant explanation that some- one stole his car and holdup; used in a that the officer said *11 he would tell happened; defendant what that he then told defendant police investigation results of the which re- vealed the robbery circumstances under which the and mur- committed; der were that he thereupon asked defendant what thought story; he about replied, and that “I you going you. told all I am have to tell Somebody my stole car, I say.” and that is all have to
There was received in evidence a nine page state- sworn ment Woods, of Maxine wherein she recited conversations allegedly had defendant. The officers testified that handed statement was to defendant and that he read it from beginning you to asked, all?”, end. He “Did read it said, and he asked, “Well, you “Yes.” He was then what do think everything?”, of it? Did she tell to which defendant enough,”
replied, “Well, response and in to the she told you it?”, defendant question, further “What do think about nothing I you going you. I tell have said, “I told all am say.” more to a statement made
There was also received evidence The that this statement was also Webb. officers testified following read, after which the con- handed to defendant to me the state- versation had: “He handed [defendant] said, all?’ He ‘Yes.’ said, you ment I read it back and ‘Did tell all?’ I Did he said, you think about that? ‘What do every body.’ said, it all about He ‘It looks like he told said, ‘I I it?’ He have said, ‘Well, you about what do think going you I to tell you going you, I am not told all am tell said anything said, you I in there else.’ ‘Did read where you man, pistol had the you that are one that shot said, I I you said, ‘Yes, read that.’ killed the man?’ He ‘I told ‘Well, you deny said, He have do admit that or it?’ ” say.’ you going nothing I I more to you, all am to tell have Accusatory here involved statements of the character way hearsay. may find their into the plain They properly are exception to only admissions, the familiar record under the statement hearsay responds rule. If the accused nothing and hence denial, with a admission flat there is no contrary, may If, be received evidence. may admitted, prop the statement truth of the statement is erly presented A when introduced. third situation be or re face of the accusation the accused stands mute In that situation equivocal reply. an sponds with evasive or both the under certain circumstmces this court has held that deny are failure the fact of the accused’s statement and acquiescence as evidence admissible on criminal trial indicative or as of the statement of the accused the truth guilt. of a consciousness natural reac is that theory underlying this rule is to enter accusation man of an innocent untrue
tion
evasion, or
silence,
response
Where
prompt
denial.
in the
determine
court to
for the trial
equivocation, it is
made under
has been
the accusation
first instance whether
accused under
calling
reply,
whether
circumstances
response
or
conduct
statement, and whether
stood
acquiescence
give
an inference
as to
rise to
was such
judge
determines
Where the trial
guilty consciousness.
ad
is then
drawn, the statement
may
inference
be
such an
*12
713
mitted,
in proof
not as substantive evidence
of the fact as
merely
showing
serted
but
basis for
the reaction of the
People Yeager,
it.
v.
accused to
As stated in
194 Cal.
486
P.
: “It
is for the
court
the first instance
[229
40]
import
determine whether the
of the
statements
such that
proof
conduct,
it would
furnish
foundation for
and it
jury
then for the
to decide whether the accused
aware
made,
statements
whether,
were
under all of
circum
shown, they
disclaimer,
stances
for a
called
whether the ac
so,
reply
them,
cused did
if he did not
whether
do
such failure showed criminal
or a
intent
consciousness of
guilt.
propositions
If these
of fact are
resolved
favor
prosecution
given
of the
item conduct should be
upon
effect to
it is
which
entire case
entitled.” For other
general
People
Fat,
of the rule see
Lew
189
statements
v.
Cal.
People
Foo,
242
Mon
881];
Ong
P.
v.
swered Then said Pilate unto Hearest not thou many things they against ? how witness thee And he answered word; governor him never a insomuch that marvelled ’’ (Matt. 11-14; Wigmore greatly. 27, 4 chap. v. on Evidence 84-85.) 1072, pp. § qf person in the hands apparent
It also that when a is is may soundly he well and conclude that his best accusers silence, evasiveness, equivoca- or interests will served be jurisdictions reason, in a it has been tion. For this number render inad- held the mere fact of arrest is sufficient that failure, accusatory deny of the accused’s missible fact hearing. presence and These statements when made knowledge belief maintain that the common and .courts general under arrest is most that silence while men guilty accused whether be welfare of an conducive innocent; or the maintenance of silence is best stra- that custody law, and it is tegic one in the that for policy 2 (See Wharton’s Crimi- entirely consistent innocence. 1262; 115 (11th ed.) 1101; 80 A.L.R. 661, p. nal Evidence § citing from 1510; 574, p. 486, cases Colo- 20 A.L.R. Am.Jur. § Indiana, Georgia, Idaho, Iowa, Louisiana, rado, Connecticut, Ohio, Oklahoma, Nebraska, York, Island, Missouri, New Rhode jurisdictions, including decisions.) Texas, federal Other and . rule that to the more flexible California, have adhered testi- alone, may not be sufficient to render arrest, fact of mony consideration inadmissible, that such fact deserves but was accusation under which the of the circumstances one determining "the accused was afforded an made, whether naturally he was called on deny whether opportunity and (11th ed.), (See 2 Evidence Wharton’s Criminal so. to.do supra; 1517; Wigmore 4 115 on Evi- 1259; 80 A.L.R. A.L.R. cited, 80, particularly from ed.) 1072, p. and cases (3d dence § Indiana, Kentucky, Hawaii, Illinois, Alabama, California, Virginia Montana, Ohio, Pennsylvania, West Michigan, Wisconsin.) recognized decisions which announce
It' is that those part acceptance from inadmissibility the most rule of stem for (Commonwealth v. Ken precedent an early Massachusetts ney, taking 672]). op 235 Am.Dec. Courts 12 Metc. [46 have charge those decisions misconstrued posite view Kenney rule, point out case Massachusetts apart from which, existent other circumstances there were reply by prevented have arrest, would fact of mere
715 defendant, upon that it was these also, circumstances only arrest, fact that the evidence was excluded. (See 80 1266, Wigmore discussion A.L.R. 4 (3d Evidence ed.), p. 80.)
Early California cases adoption foreshadowed in this state of a limited admissibility (People Dole, rule of v. 122 Cal. 581, Am.St.Rep. ; People P. v. Estrado, 49 [55 Cal. 50] 171; People Yute, v. Ah 613; People McCrea, Cal. v. 98), Cal. question directly and when the presented, such adopted rule Kenney distinguished case was (People Amaya, seq. Cal. et 794]). P. This court no true, that, said: “It doubt to render evidence of this admissible, character the occasion and the circum stances must have been such as to afford the person accused an opportunity speak, to act or and the statement must have naturally been calling one (Green- action reply. some *14 leaf Evidence, par. 197.) on But this state it has been uniformly held an accusation of crime does call a ” arrest, reply, from person even (citing cases.) (Em under added.) phasis This rule has since been consistently followed (People Matthew, v. 194 273 424]; People Cal. P. v. [228 Ong Foo, Mon 697, 182 Cal. 703 690]; People P. v. [189 Schoon, 177 680]; People Cal. 678 P. Byrne, v. 160 Cal. [171 217, 234 521]; People 231, v. Sanchez, P. 35 Cal.App.2d [116 169]; People 235 Fallai, P.2d Cal.App. v. 99 297, [95 303 449]; People P. Shelest, v. Cal.App. 213, 62 217 [278 P. [216 People 389]; Willis, v. Cal.App. 70 469 465, ; P. [233 812] People Graney, Cal.App. v. 48 People 773 P. v. 460]; [192 Swaile, Cal.App. 12 134]; People Sullivan, 198 P. v. [107 Cal.App. 3 502 834].) P. [86
Properly applied, admissibility the limited rule of appears preferable nonadmissibility to be to that of strict ground only, on arrest point of for the determinative is not whether the defendant is under arrest at the time of the accusation, but is whether the circumstances are such that a reply is called for and the speak spon is free to taneously. Arrest is but one form of restraint that at times might response. abar free Many other forms restraint effect, have the fear, same such as physical pain, suffering, counsel, advice silence, admonition warning against as to self-incrimination, a belief that the accused will serve his best by silence, interests or physical other or mental pressure. A response any.of under these forms may restraint be such 716 guilty or acquiescence give to inference of not rise
will question on admis- consciousness, it is and thus said flexibility ac- sibility rule is to allow some that “the better (3d Wigmore cording (4 on to circumstances.” Evidence 81.) ed.) 1072, p. § rule, it has state, proper application In under first in in the trial held court at times been either surrounding cir that the stance, appeal, or the courts admissible. to render evidence cumstances were such as 32]; People v. People Cal.540, 553 P. (See Davis, 210 v. [293 Loung, 159 People Wong Kelly, ; 203 128 P. v. Cal. [263 P. 226] Weber, 325 829]; 149 Cal. People 531 v. Cal. [114 ; P. 671]; People Williams, Cal. P. v. [65 323] [86 ; McEvers, 448, 452 P.2d Cal.App.2d People 93] v. [128 People ; Cal.App.2d 241, 247 P.2d People Smith, v. 277] [77 many 299].) In 105, 111 P.2d Kazatsky, Cal.App.2d the defendant was cited, where cases, other as above even meeting accusation, the evi arrest the time of under at dence has been admitted. tendency however, growing of late be a appears,
There indulge discretion of trial broad a part on the courts too instance; in the first allowing admission of such evidence accused fully question of whether the a failure to consider the restraint; the circumstances under replied whether under reply; for a the accusation was made called whether which statement; and whether his conduct understood the accused against merely himself rule indicated desire avail give reasonably or whether it could rise self-incrimination acquiescence guilty an inference of consciousness. Obviously, repeatedly asserts, awhen defendant as did here, you going “I have all I am the defendant told tell ’’ repeatedly pressed by police officials you, and into further *15 conversation, response spontaneous is a free and not one. mental, if physical coercion, is made under It exercised police officials, this by despite fact the defendant’s replies clearly advantage a desire to take indicate of the rule against self-incrimination. Of what is it avail to warn a reply police he questioning need not defendant that unless to, anything may say wishes and that he may he be used if, against him, the event he is unresponsive under this admonition, equivocal his silence or reply is later turned against him guilt? as indicative of consciousness of growing
There is another practice in the use of the must be un- is erroneous accusatory which statement by textwriters It is described qualifiedly condemned. among police popular following language: practice “A by means tacit obtaining evidence as a means of officials of the crime reading detailed statements is that admissions companion in the or purportedly by made a codefendant complete eliciting either a con- crime with view toward silence, against an to be used fession or admission statements to whom the statement is read.” Such sought have been held to be inadmissible when to be introduced ground tacitly upon they that were Some admitted. given holdings reasons for such are that there was no necessity denying answering read, or statement the circumstances and occasions were not such as to afford accused an opportunity deny, or such as to the. (cid:127) naturally (2 call for a contradiction. Wharton’s Criminal (11th ed.) 660, Evidence p. 1098, and 80 1255, citing A.L.R. § Nebraska, cases Washington, from Carolina, South England.) objection Another form of evidence is that there placed is jury before the under guise accusa
tory statement a vast amount of hearsay testimony otherwise utterly inadmissible. Lengthy statements are taken police persons from third may may who not thereafter be (In present witnesses. case the statement of Maxine pages Woods nine long.) defendant, under arrest, then asked to read the statement. If it contains indications guilt responds with other than a flat denial, the statement is put then in evidence as an accusatory statement. Although jury may properly be cautioned to it, receive not as substantive evidence in proof of the facts asserted but merely aas basis of showing the reaction of the accused to it, the fact is that a lengthy transcript containing any amount of extraneous matter apart from the direct accusation is read into the ears of the jury and the matter remains in their during mind their (See deliberations. People Yeager, v. supra; People King, v. 7 Cal.App.2d ; P.2d Peo [46 798] ple Rhinehart, v. 79 Cal.App. 499 203]; P. People [250 Egan, Cal.App. P. 337].) possible If it were to introduce in only evidence portion of the statement of a third person or transcript of such statement which contains an accusation and the defendant’s *16 thereto, might
response the of such so effect evidence not be damaging, by if prevented but course is the fact that a incriminating witness testified that statement was made stating of, without what it testimony consisted such would be objectionable (2 as a mere conclusion Wharton’s Criminal (11th ed.) 656, pp. 1091-1093). Evidence Any practice of § introducing only objection- part evidence a of document able, hearing and without the jury whole statement a could correctly appraising not be sure of the effect of the defendant’s response reasons, to it. For practice these it been has statement, to admit the entire proper under to instructions jury, jury hearsay matter, reveal thus to a mass of otherwise inadmissible. objection
Another to this method is that the- accusation is, in speaking, a mariner of second hand. defendant is not confronted with the witness who made statement to police, but after arrest the by so-called accusation is made police by having statement, defendant read or reading it to him. such a situation, In than even more under attack, direct likely defendant would be to assume that evasion or the maintenance of justifiable silence would be a course of action, guilty. whether innocent or is,
It as already stated, for the trial court the first import instance determine the accusatory statement; is, that whether it has been made under such circumstances may that it proof furnish foundation for It is conduct. then jury for the decide, any properly statement admit ted, whether the reply accused did it, if whether he did so, not do reply or his equivocal, evasive or showed criminal intent or a guilt, consciousness of acquiescence. or It is People said in Yeager, supra, page 486, that “If these propositions of fact are resolved in of the prosecution favor the item of given conduct should be upon effect which ’' the entire case it is entitled. This way is but another saying if the jury chooses to draw from the evidence the. inference that the response acqui defendant’s does indicate escence, or a guilt, consciousness of it is in tacit ad effect a ; mission is, an admission of accusation, or in other words, of the contents of the statement. any accusatory reason, statement and a re
For this restraint, sponse a defendant under should made thereto great police questioning if the caution, considered with be insistent, has been induced has been so that judgment against or more considered persuaded his better silence, response adopted policy of make a or has trial accusatory inadmissible should be held statement judge ruling in the same should first instance. The be made *17 great hearsay appears if it that a mass extraneous matter of placed jury through this Where a will be before the device. the police under mental coercion situation is no defendant is gun compel if a were held at his head different than him. certainly be held inadmis response should talk, and questioning, the defendant has of time unless, at the sible against can be held him his reaction clearly advised been certainly the fact that the accused is And an admission. as of restraint should be an any form other or arrest under inadmissibility. No violation of pointing to factor important against can be sanctioned. self-incrimination privilege the Wigmore discussing privilege in Mr. by As stated (3d ed.) 2251, p. seq.) 308 et : “No (8 Wigmore Evidence § on upon any time may justly be called at person guilty a doubt immunity. it is the innocent that no But deserves guilt for system any permits which John Doe Under protection.. need suspicion an of on the mere officer answer forced to to be betrayal, on two rumor, secret abuses law, public or or inevitably first, always prevailed prevail; will have tyrant a local misuses his judicial officer becomes petty mercenary political ends; or or malicious sec- for discretion practiced unscrupulous by is those ondly, blackmail members a community through prose- inspiring who a of the threats of prey upon cution are able to the fears of the weak or the objection any system timid. . . . The real is that of admin- permits prosecution habitually istration which to trust compulsory proof self-disclosure as a source of must itself thereby. morally develops rely suffer The inclination mainly upon evidence, such and to be satisfied with incom- plete investigation of the other sources. The exercise begets power forgetfulness to extract just answers a power. simple limitations of that peaceful process questioning breeds bullying readiness to resort to and to physical force and torture. If right there answer, is to an right there soon expected seems be a to the answer,—that is, to a guilt. legitimate confession of Thus grows use into unjust abuse;, ultimately, jeopardized innocent are by system.” encroachments of a bad guilt police practice proving early
An comment on the History inducing is found in the through self-incrimination quoted by Law, by Stephen, F. as Mr. of the Criminal Sir J. Wigmore page great at 312: deal of laziness “There rubbing pleasanter comfortably it. It far to sit the shade poor eyes go pepper red into a devil’s than to about hunting sun evidence.” up opinion, by
In an
rendered in 1936
on Pro-
the Committee
fessional
Bar
Ethics
Grievances of the American
Asso-
ciation,
following
(Opn.
(1936
comment is made
No.
ed.), p. 294)
prosecuting attorney
attorney
: “The
is the
state,
duty
it is
not to
to see
primary
convict but
justice
is done.
To
not offer
Canon 5.
that end he should
proof
guilt
a defendant’s
statements of the defendant
in custody,
setting
traps
by
while
obtained
per-
or
duress,
suasion or
power
office,
of the custodian’s
though
even
participate
procure-
does not himself
ment
Albert,
thereof.
609;
State
La.Ann.
So.
Opinion 85; In
Robinson,
App.Div.
re
136 N.Y.
[151
589]
Supp.
(Affd.
Although the admission in evidence of these state clearly ments was erroneous, and if the evidence were con so flicting or uncertain as to guilt create a doubt as to the defendant, would be held prejudicial, case, in this in view of overwhelming guilt evidence of defendant, exclusive any erroneously evidence admitted, fact that the jury could have arrived at no other conclusion than that of guilt; and in view of the mandatory provision of section 4% of article VI of the Constitution of California, it must be held that the error was not such as to justify a reversal of the judgment. was also read in evidence
There another statement attorney made in the office of the Webb district on Janu ary Although 1945. defendant concedes that this state properly ment could have purpose been admitted for the impeaching story told Webb on the stand, witness including his admission on cross-examination that he fired shot, argues fatal reception defendant that its in evidence narrowly limiting without purpose its and effect constituted serious error. It is apparent record, however, from the prejudice. During suffered no the cross-examina tion of Webb he first testified that he not remember could giving statement, but later said he it. recalled He was *19 interrogated question it, as to each answer contained and admitted some answers and others. denied This evidence directly given by attacked the of the testimony truthfulness purpose Webb direct examination and its could not have been misunderstood. during
Defendant calls attention to three occurrences public trial which states show that the defender not did prejudice. They are as follows: properly him from protect by police 1. After a officer been cross-examined had “No public public defender defender had stated questions,” to ask the witness personally defendant wanted quiet question. The court defendant to be instructed attorney that take advised him he had care of the matter. insistence, acquiescence At and with defendant’s court, against expressed but own judgment, better public defender then asked the defendant witness whether January not arrested on robbery was 9th for a than other that of the furniture store, and the witness that it was answered explained for both The matter robberies. was in some detail. participate Defendant testified that he did not the fur robbery niture custody store and that he inwas for the other robbery. insisting In brought out, matter be de obviously subject fendant in mind proper impeach had police ment of the cannot complain officer. He now that he prejudiced by development thought of the matter which he was material to his defense. During
2. the direct examination police of another officer, the witness asked portion read of Webb statement, and not portions. cautioned to read other Defen part dant insisted that if any placed the document was go evidence, then all should in. The por court stated that the tions conceived to be by attorney admissible the district should be read that if desired, put so he could in the remainder later. procedure This was followed on cross- examination the told, witness was request, at defendant’s read the part. omitted portion This contained information pertaining to the commission defendant and Webb of an robbery other after the If robbery of the furniture store. the inclusion of erroneous, this matter was the error was invited whole, defendant. Under the record as a it was clearly prejudicial. Webb have claims that should not been
3. Defendant too at defen this witness was called witness. But called as a request, and defendant cannot specific and insistent dant’s testimony given of con was so full complain now him. as to be of no benefit to tradictions public failure of the de complains Defendant request, give motion, court of its fender to or the own allegedly points. these, vital One of instructions on two limiting purpose statement, of Webb has matter of
723 disposed point already The second is that court been of. jury testimony Webb, instructed that the of should have However, accomplice, an was to be viewed distrust. on defendant, Webb was called as a witness of since behalf giving there no occasion for the of such instruction. Melone, 71 (People Cal.App.2d 291, 505].) 297 v. P.2d [162 modifications, an in certain gave, with The court subject bearing on the by defendant proposed struction properly had denied the court If the accusatory statements. statements, accusatory there of the in evidence admission that sub necessity for an instruction no have been would jury could not have been con ject. clear that the Yet it is charge, for the reasons hereto misled fused or prejudice no from it. stated, suffered fore denying trial are and each and order a new judgment of them is affirmed. J., J.,
Gibson, Traynor, J., Schauer, concurred. Ed- C. judgment. monds, J., concurred in the judgment but I SHENK, J. in the of affirmance I concur portion opinion that the from that of the holds dissent which accusatory place In the statements were inadmissible. first properly appeal. is not question that before court on is made It conceded on the trial defendant’s counsel no objection to the admission the statements in evidence and no motion to strike or effect was limit its made. It is the rule objection that unless at is made the trial such evidence beyond may attack on appeal support be considered in judgment. Lawrence, (People v. 143 148 Cal. P. [76 893, 68 193]; L.R.A. People Peterson, Cal.App.2d v. 66 240 2 347]; 82, p. P.2d 263; Cal.Jur. 8 [152 Cal.Jur. § § p. 4 500; (1943 Cal.Jur. 10-Yr.Supp. rev.) 909.) no error the admission accu- Moreover, there was 3', of the subdivision Code Section satory statements. admission in evidence of authorizes the Procedure Civil another, presence in the and within “An declaration of act or his party, conduct relation there- the observation elsewhere, general in California, rule It is to.” tending of com- incriminate one accused when statement presence hearing, mitting a crime made and is objected denied, contradicted, or by him, both state- deny fact failure to ment and the of Ms are admissible 724 prosecution him, of a against as indicative conscious
criminal
acquiescence in
truth.
guilt,
ness
as evidence of
its
;
452
v. Lew
(People Yeager,
People
v.
194
P.
Cal.
40]
[229
Ong
Foo,
Fat,
People
182
881];
189
242
P.
v.
Mon
Cal.
[207
People
Lapara,
66
P.
697
181 Cal.
690];
Cal.
P.
v.
[180
[183
People
People
;
Here, accusations, the defendant had no reaction to show or admission to in- there would have been troduce, properly and the statements could not been re- have ceived evidence. But the defendant’s remarks did not response full In prompt constitute a denial. one accusa- “I I said, you going you. tion he have am told all to tell ’’ Somebody my car, say. stole that is all I have to With respect “Well, part, to the Woods statement he commented in *22 enough nothing she told ... I say,” have more to and in response statement, part, to the Webb he in said “It looks ’’ told, everybody. like he it all and about equivocal remarks, as, “Well, enough,”
The
such
she told
stronger against
were
defendant than if he had stood mute or
reply
said he had no
A
as,
to make.
comment
“I
such
have
’’
nothing
say,
(Peo
more to
denial
an
is
of
accusation.
Edwards, 72
ple
Cal.App. 102, 123
v.
944].)
P.
In People
[236
Egan,
Cal.App.
v.
77
279,
337],
282-3
P.
where the de
[246
reply
accusatory
fendant’s
to an
statement was that he “had
’’
nothing
say,
it was held that the
properly
statement was
‘‘
received
evidence.
accusatory
The court
The
said:
state
inment
the instant case
appellant
presence
was read to
in the
Wright,
of
appellant,
being
anything
if
asked
he had
say,
fairly
an opportunity
reply.
If,
afforded
to make a
under,
conditions,-
those
reply
he made no
accusatory
to the
statements, the circumstance of
proper
his silence was
evi
dence to
by
be considered
indicating
the jury as
an admission
guilt."
(See,
of
also, People Egan,
156,
v.
It is that because the defendant was requiring timely objection public defender the rule the trial court to the of introduction evidence should not be applied. majority opinion The does not meet this issue squarely, “Assuming so, but states: this to be none of the by urged present appear matters prejudiced counsel to have ’’ defendant. indulged. public The defender may not be assumption The counsel, any other as is also his rules as subject the same object defender to public failure of client; hence offered should foreclose it was when evidence questioned argument here point The made appeal. consideration public defender was con- the status respect to with Hough, 528- of In re Cal.2d recent case in the sidered court there said: 448], and P.2d represent appointed to public defender “. . . When crime, attorney for he becomes accused a defendant case and to the same purposes all said employed by the defendant. regularly retained and if extent as authority or more control trial court has no judge of the The practicing him before his any attorney has of other he than any from is free restraint dom- public The defender court. prosecuting authori- attorney or of the by the district ination his to act in behalf of client as if he had He is free ties. by defendant whom regularly employed and retained been would not afforded it not so his client be represents. Were right of counsel for defense’ full ‘to have assistance give federal, Constitutions, both state and to one which the plenary given public powers crime. With accused of such appointed crime, defend one accused when it defender necessarily advising of his in follows that no act client or against defending upon charge the latter him can be any light different than if act per- considered such were employed attorney regularly formed and retained In no held prosecuting defendant. sense can be that the county any respect charged are in officers the con- sequences of such an act. contention therefore *23 petitioner pleas guilty, ground is not bound on the pleading that in so he was public misled the advice of the ’’ acting attorney, defender as his well taken. any The record fails to show error in the trial of the case. Spence, J., concurred.