*1 Nо. 4844. In Bank. June 15, [Crim. 1948.] PEOPLE, THE Respondent, v. HENRY al., WILLIAMS et
Appellants. *2 Deasy Joseph Appellants. R. for Leslie C. Gillen Appellants. Amici on behalf of Lavine as Curiae Morris Linn, Dep- Howser, Attorney General, A. Clarence Fred N. Coakley, Attorney, General, District Rich- Attorney J. F. uty Attorney, and Chamberlain, Assistant District H. Chief ard Attorney, Respondent. Deputy George Nye, District charged in were Alameda SHENK, The defendants J. 1947, Arthur January 19, C. County murder on with the find- returned verdicts Nichols, a taxicab driver. degree without recom- murder of the first ing guilty of them imposing' They judgments appeal from the mendation. denying for a new orders motions penalty and from *3 death trial. Bowie December, 1946, the defendant came California whom he had “bailed with Mrs. Belle Jarrett
from Louisiana jail charge in that state and who was married some out” of on Army They serving overseas. in the States to a man United rooming house together the second floor of a a room on took Very they met the de- soon Hannah Street Oakland. friendly. with whom became fendant Williams together in Francisco on Williams were San Bowie and satisfy January 1947. To their mutual Saturday evening, somebody. They money they up” decided to “hold need for rooming and Bówie house Oakland returned to Bowie’s pistol while Williams waited outside. obtained his .25 caliber a taxi stand and hired Williams then walked to Bowie and Nichols, victim. Yellow driven Arthur C. Nichols a Cab to a fictitious address in West was directed to drive Oakland. stopped 28th and ride the cab was near Union After short sitting right, in the seat on the Bowie, who was back Streets. holdup, whereupon it was a gun brandished the and declared left, sitting reached forward and Williams, who was resisted and was struck on caught hold of Nichols. Nichols gun. the head with Bowie’s The taxicab continued motion. fired. At least two shots were cab, front in the left door was imbedded
One bullet his body death of Nichols and caused entered the the other the scene. immediately. fled from The defendants almost 30th and car fire box at collided with a uncontrolled was found Union, causing the alarm to sound. The driver jammed open against The left rear door of the cab was dead. car. side Mrs. night rest of the with Bowie spent Williams by radio that early morning next learned They Jarrett. four were arrested The defendants dead. was driver the cab drawer a bureau recovered from gun was later, the days custody as a was into taken room, and Mrs. Jarrett Bowie’s witness. material interrogated separately. At Bowie were Williams and claiming cab, in or near the that had been he denied
Williams two feet of a cab for months. been within he hadn’t that night, all that he not see Bowie at that he did He that stated slept Oakland, then went home bars in several visited story changed Sunday morning. He his when until o’clock fingerprints his were with the fact that confronted he was ’ that rear of Nichols cab. He then said door the left found on riding cab, stopped Bowie the cab that Bowie he saw blocks, got out, him few he, Williams, rode with away. Two were made Bowie statements and Bowie rode He made in evidence. another were not introduced reading hearing presence in Williams’ after statement that he which the latter admitted a statement Williams money,’’ your “hurry up give me told the driver to sought lay blame on Williams entire in that statement developed homicide. Bowie’s third statement Bowie for the outlined, substantially with the explana- as above further facts discharged first bullet was acciden- tion to effeсt tally getting was out left rear door when he cab gun right out against his arm and knocked swung back already Williams of the cab hand; who out of his *4 alongside picked up gun, and fired a shot direc- ran testimony tion Bowie’s at the trial was sub- of driver. stantially he in to testified that was the same effect. Williams Bowie; birthday going with that intended to a the cab he Street; know a party that he didn’t Bowie had on Adeline trial, gun; gun didn’t until of he see time issuing gun. a from but that he heard shot and saw flame a conclusively It established that the homicide occurred was attempted robbery an course of which both defendants unquestionable an participated, case of murder guilt (Pen. Code, 189). was fact conceded. § placing effort of each defendant was directed toward the blame on other in order to influence recommendation a of leni- ency alleged for himself. errors relied are claimed prejudicial they adversely particular affected the defendant’s for such a chance recommendation. alleged
The first error is concerned the examina who, tion request of witness Belle at the Jarrett of the prosecuting attorney, permitted facing the court to sit but with her back spectators toward some of the appears the courtroom. This to have been done effort protect by spectators. the witness from intimidation It was represented that she had been threatened and had received a jab by supposed knife some friend of of defendants, one stated be Williams. arrangement is contended that the deprived the defendants De confrontation of the witness. fendants their oblique counsel moved their chairs to an position from the witness. Counsel one of the defendants accepted prosecuting attorney the offer occupy directly latter’s chair which was almost front the wit he ness and cross-examined her position. from that Counsel for the other defendant also her cross-examined and made no objection seating arrangement. argued It is that this change in arrangement the usual affected the chances defendants leniency. for recommendations of Much stress is laid materiality importance testimony Jarrett, the witness but the record shows that the defend ants convicted were their own in prior admissions state stand, ments and independent on the witness seating arrange evidence other than from this witness. The adopted avoided, ment should have been did but it not de prive rights pub defendants confrontation a record, lic trial. In view of the entire the incident should not prejudice held have resulted in to the defendants. On cross-examination defendant Bowie was asked if felony. he had ever been convicted of a He admitted that he had been convicted Oklahoma of the of import offense ing marihuana in law, violation federal he denied that felony. the conviction was permitted prose The court objection cution over the record of conviction introduce served showed Bowie term of had 23 months in *5 felony a reformatory. a the offense federal This constituted 541). It (35 1152; under federal U.S.C.A. law Stats. § the record of is claimed in that view of Bowie’s admissions in evi- unnecessary conviction was and that its introduction prejudicial qualified dence The admission amounted to error. felony character effect a nature and denial judgment justified of the record the introduction prior order to establish the conviction. effect of assigns Defendant prejudicial Bowie error ruling denying of the court his offer to introduce evidence his statements intro prior made to officers to the statement prosecution. legal right duced evidence The basis or containing for the prior introduction of these self- statements serving excluding declarations is not disclosed. The order them shows no error.
Prejudice charged delayed ruling is because of a court admitting background in evidence the factual Objections Bowie’s life. to the introduction of such evidence were at ruling first sustained. Later the court reconsidered its subject evidence on that ap was admitted. does pear any relevant testimony offered that connection was excluded.
Prejudice assigned of the court’s refusal because at the commencement daily transcript. of the trial order a object Defendants’ counsel ruling since at first did appeared it prolonged. trial would not However, occupied the trial days the court July between 23d and June 7th, reporter’s and the transcript 1,100 pages. consists of The request daily transcript During a was not renewed. his closing argument attorney prosecuting made reference testimony to some which appeared reading he to be from a transcript. argument At the close of that counsel for Bowie fact, called attention to that but also from his own recollection supplied or notes he additional which he deemed ma matter point. terial showing partial on the There no that either daily full transcript prosecution was made to which the had error, access or was denied the defendants. No prejudice regard. misconduct or shown this charged prejudiced defendant Bowie that he was taking during of a short recess the course of his coun argument, upon completion sel’s and that thereof on the after July 3d, require noon of prosecuting the court did not attorney closing argument to commence his day, even
though appeared completed that it could not be before holiday commencement of the weekend. The court at appeared to note necessity recess, no for the usual afternoon suppose subsequently but it is reasonable to the conven- jury may ience prompted have a different conclusion. day, Friday, holiday The next was a and the case was con- Monday, July tinued to closing argu- 7th. fact that the *6 ment on behalf prosecution place was to take on the following Monday advantage disclosed no prose- undue to the prejudice cution nor to the defendants. was within the sound discretion of govern progress the trial court to conformity the trial the time with element and no abuse of discretion shown.
Defendant Bowie claims that various remarks
trial
during
court
the course of the trial
preju
constituted
dicial misconduct. Fourteen occurrences are referred to. A
review of the record and of each
complained
incident
of fails
any purpose
to disclose
to divert the course of the trial from
orderly progress.
its
Some involved a tilt between counsel and
the court
pressure;
about blood
another was a caution to
against bantering
defense counsel
witness;
a
another was a
comment on the
anything
court’s failure to see
wrong in the
remark
prosecuting
attorney that the
examination
the deceased’s widow
painful
her;
was
another was
admonition in view
holiday
of the imminent
“get down
business”;
again,
going
“the court is not
to continue
years”;
ease for
another,
family
a remark that Bowie’s
trial;
father were not on
during
two instances
Bowie’s
examination
his
rulings
counsel were
objections given
on
words,
in the
“Oh, let him answer”;
ruling
another a
on an
objection by the defense couched in
“Well,
language,
is a wee bit argumentative”;
possible
two instances of some
levity
court,
recess,
where
after a
“May
short
asked
we
stipulation
jurors
have the
that the
here?”;
are still
and when
the court
asked the
if
witness Bowie
he
“Frisco” didn’t
mean “West Oakland ... We call it West Oakland.”
Others are of a similar nature and call for no further com
disposition
ment.
We also include for
category
this
prosecution
contention
permitted unduly
emphasize the relations between Bowie and Belle Jarrett.
People Hidalgo,
v.
assigned as error and
eases
erroneous.
earlier
it been held to be
none has
People
168, and
beginning
People
v. Jones
63 Cal.
858],
Brick,
v.
P.
were reviewed and collected
[8
9],
1924), 194
where
People
(Oct.,
Cal. 679
Casade
urged
683: “It
pages
at
682 and
this court said
unduly
discretion
prejudicially affected the
instruction
*7
exclusively
which said section has
determine
jury.
by
long
in this
reposed in
But
line of decisions
giving
it
said instruction
state
has been held that
of
Jones,
People v.
early
not
In the
case
63 Cal.
erroneous.
of
jury by
168,
in the
it was held that the discretion vested
arbitrary
190
instruction
section
was not an
one. The
said
People
of
from
v.
complained
was taken word for word
68
190
Brick,
858],
giving
Cal.
P.
where it was held that
[8
again
was
instruction
not
This instruction
was
error.
Olsen,
People
125],
in
v.
122
P.
under attack
80 Cal.
[22
Substantially the
the same
same instruc-
conclusion reached.
People Bawden,
in
90
195
tion was under review
v.
Cal.
[27
204],
following
P.
the earlier decisions declined
this court
question.
Rogers,
reopen
People
v.
[170
P.
[221
907],
Reid,
v.
People
By long held this line cases has been without deviation by discretion conferred section 190 arbitrarily of the Penal Code should not be exercised for or against defendant, but be influenced should the evidence application term case. This “discretion” employed the code section is akin that conferred court, law arbitrarily on a exercised not con- justice trolled reason and under the facts particular discretion, case. fact this once exercised jury, may not appeal as to the be disturbed on always because law provided. has so And this was true as *8 prior 1927, to the crime when section 1181 of provide Penal Code was amended subdivision 6 that appeal power should have the to reduce the de- court gree notwithstanding crime the verdict of the contrary. (People Howard, 322, 1385].) 71 A.L.R. the evi- the condition any question error Aside from perpetrators against the defendants case dence in this overwhelming murder is so atrocious unquestioned and of an found have unlikely jury would very as to render given. not been had any if the instruction verdict even other ap- who counsel ably represented were The defendants The interests. protect their every effort to peared exert ruling or inci- and no fair trial a full and had defendants prejudicially have reacted during trial can be said to dent rights. to their denying a new the orders judgments of conviction and are affirmed.
trial J., Edmonds, J., Spence, concurred. Gibson, J., C. CARTER, I dissent. J. majority opinion portion that agree
I with do not denial (1) there was not a of defendants’ which holds that Jarrett, (2) that what right of the witness óf confrontation prejudicial It is conceded that was done to defendants. objections were defendants. occur- appropriate made denial of confrontation consist which constituted the rences brief, following and not stated defendant Bowie’s occupied prosecutors challenged respondent: “Two directly in counsel table front of the wit- extreme left of the jury. appellants for the ness stand and closest to the Counsel right the counsel table farthest from occupied the extreme jury and the witness stand. When the witness Belle prosecution, prosecutors called one of the Jarrett was the extreme left of placed a chair at end of the counsel facing Bellе table and so witness Jarrett appellant’s her facing back to the coun- sat body of the court. sel and to the dispute prosecutor
“A arose between counsel and the suggested concerning prosecutor’s this and it was procedure unusual reason for this confined to the court done, chambers, prosecutor explaining which was being Jarrett was fearful of the witness Belle intimidated did not wish to face either the men on spec- trial or the objection over the tators in the courtroom. Still of counsel positions appellant the aforementioned were for the resumed in the courtroom. The witness Belle Jarrett testified a low appellant’s position counsel their monotone and behind *9 her were left at the disadvantage being decided of not able to testimony, hear expressions.” her or see or observe her facial It should be added that defendants were likewise behind the witness. It cannot foregoing be doubted that the constituted a denial of meeting confrontation—of a “face to face” witness, certainly and was error. right guaranteed cоnfrontation is “In by statute.
a criminal action pro the defendant is entitled: ... 3. To duce on witnesses his behalf to be confronted with the against him, (Pen. Code, 686.) witnesses ...” And as § Ward, in People said 105 Cal. “The : 33] right of the defendant prosecution a criminal con to be fronted with the against witnesses him in presence court is one of the principles law, fundamental common can be taken from him provisions of some express right statute. As clearly this is a connected with his personal liberty, any purporting impair right statute liberally is to be construed in purpose his favor.” The chief right opportunity confrontation is the for cross- examination but important there is also purpose of al lowing the accused to meet the It “face to face.” witnesses is said: “To compliance constitute a with the constitutional right, testifying witnesses in support of the accusation against defendant must be seen and heard the accused. permitted He must be proximity be to them that he may see them and testimony. hear their It ais violation of rights his for the court to order a defendant a seat take away so far place or in such a that he cannot hear the testi mony of a him witness or see intervening obstacles, because of permit or to turn witness to his back toward the defendant so that his face cannot be (14 seen.” Am.Jur., Law, Crim. 181.) §
In the instant the witness permitted case Jarrett was testify with her back toward defendants and their counsel. Counsel were expressions not able to observe her facial while testifying on either direct or cross-examination. The condition aggravated by was further explanation permitting for foregoing, that she was afraid of attack by some cohort of one of the defendants. necessarily lack of prejudicial.
Such confrontation must impossible It prove prejudicial is for defendants to its effect. intangible nuances with which the confrontation is charac- impossible terized are appeal grasp a court on and in- nonprejudicial error. prejudicial terpret in terms which cannot deprivation of right, a fundamental right analogous to the lightly. It is somewhat considered always prejudicial of which trial, the denial public to a right “The been said: case it has error, аnd in such a rights of comparable to trial, respect, in this public They stand counsel. assistance of by jury and to the trial rights these to whether footing. questions All the same rights of the substantial *10 protection are essential for by adoption of sec affirmatively settled the accused were matter, inquiry into can be no 13 article I. There tion of in concerned, than trial is other right public far as the so mentioned.” necessity heretofore eases of exceptional 72, 290].) 80 Cal.App.2d 84 P.2d (People Byrnes, v. [190 statutory constitutional assumed that our It must be It cannot be denied that the wisely framed. provisions were important and effective here involved constitutes provision That the audible utterances of safeguard against perjury. by expression de- may fully facial refuted a witness by those who know witness when confronted meanor of the conclusively testifying falsely, has been demonstrated he is right many can be no doubt that the of in instances. There equal greater importance if de- is of to a confrontation patently right public to a trial. is obvi- than the fendant error, the effect impossible it is to meаsure of such an ous that any provisions given whatsoever, effect if are to right prejudicial. of such a it be held that denial must reason, I foregoing judgment would reverse the For the the cause for a new trial. and remand substantially I am in with SCHAUER, J. I dissent. accord by I expressed impelled Carter but am views Justice proposition appearing majority in the on another comment clearly prejudice seems to me to more show opinion which require reversal. my view, in prejudice, arises on the trial The substantial penalty guilt. on the issue I issue of rather than of question might agree guilt Shenk that on the Justice may prejudicial not be the manifest errors since under (concededly supported many in opinion his a sense statutory cites) precedents he the substantive law of this state amended, provide mandatory told to for as penalty degree imposition the death cases of first murder 90 showing mitigating
wherein there is no substantial
circum
stances,
Legislature
whereas the statute
enacted
(Pen. Code, § 190)
(People
and as construed
this court
Bollinger (1925), 25])
Cal.
does not make
mandatory
any
but,
rather,
death
casе*
in all cases com
penalties,
mits
the choice
between death
life im
prisonment, solely
jury trying
case,
to the discretion of the
it is obvious that the issues and the law as to
are
brought into
may
confusion and errors which
bear
light.
must be scrutinized in such
(Pen. Code, 190) reads, “Every person
The statute
guilty
§
degree
death,
murder
the first
shall suffer
or confinement
prison
life,
jury trying
the state
for
at
discretion of the
People
...”
Construing
same
that section this court
v. Bollinger (1925), supra,
191, 207,
have
said: “We
already quoted
pertinent part
190 of the Penal
section
Code.
(Stats.
Before the amendment of that section in 1873-74
1873-74, p. 457) it
‘Every person guilty
follows:
read as
degree
murder
the first
shall suffer death . . .’ It is clear
beyond question
language
of the amended section
person
—‘Every
guilty
murder in
shall
death,
suffer
prison
life,
for
at
confinement
state
discretion of
trying
same;
changes
’—two
. . .
were
punishment
made
the law as to the
murder in the
*11
degree—first,
first
punishment may
be either death
imprisonment; and, second,
life
that the discretion of de
termining which punishment shall
imposed
vested
jury
above†
For,
cases,
alone.
federal
as declared
the law places
jury’s
no restriction
exercise of such
discretion,
attempt
nor does it
to confine its exercise to cases
presenting palliating
mitigating
.
. . The
circumstances
‘
legislature
power
punishment
has confided the
to affix the
within these two
discretion of
alternatives
absolute
”
jury....’
Leary,
(People
24].)
105
486,
v.
496 [39
above-quoted
statute,
applicable
perti-
so far as
nent
Bollinger
in the
has never
case,
been amended
Legislature;
likewise,
holding
above-quoted
of this court
Bollinger
overruled;
in case
been
on the con-
has never
trary
majority opinion
it has been
here does
reiterated.
not
law ?
declare that it is overruled. What then is the
What
discussing
not
4500
Code.'
*We are
section
of the Penal
States,
†Winston
States,
Smith v.
v. United
v. United
Strather
(1898),
212,
[19
456].
United
L.Ed.
States
91 we, subject? Are give on trial courts should instruction to tolerate state, to continue in this resort the court last direc unauthorized defendants on the death of putting cir mitigating mandatory unless juries that death is tion to juries instruct Or would it be error be shown ? cumstances mur degree any first fix does not that the law entirely to the absolute in all such cases leaves der case but total of a jury, regardless discretion of uncontrolled circumstances, of either mitigating the selection absence of Is this court imprisonment? death or life penalties, two (see People judges prosecutors and trial to denounce continue asking 223, 682]) P.2d (1939), 13 229 v. Smith Cal.2d [88 stake,” at giving human life is instruction, “where a “ duty discharge which interfere with the of that solemn [s] rationalizing jury” time its own while at the same instruction judgments failure to reverse based on such I subject, flat whole assertion that “it is not error”? The think, reexamined, we have simul should be because taneously conflicting opinion irreconcilably extant lines of two pronouncements confusion, also attending but because (People pronouncement the one line of derives from a case (1874), which, may Welch been 174) 49 Cal. whatever have its once, longer law, value is no sound the United States Supreme very (April, 1948) Court in the recent Andres case v. United States, 880, L.Ed. -], 740 92 U.S. S.Ct. [68 having respectability authority removed such modicum of which may persisted have in the Welch case after its earlier sapping Winston v. United States U.S. 212,
S.Ct.
43 L.Ed.
459].
proce-
It must be manifest that
have here not a
we
mere
juries
dural error or error in
instructions
as such errors
commonly
are
understood. The instruction
here did
involved
merely
procedural
governing
concern
rules
deliberations;
statutory
it altered the
their
substantive
law
prescribing
the state
murder
“If
cases. The
were told:
in this case should
guilty of
degree,
find either defendant
murder in the first
also shall find the further fact that there are some
extenuating circumstances or
facts
ease as to that
*12
defendant,
pronounce
it is within their discretion to
such a
will relieve
pen-
sentence as
the defendant from the extreme
alty
jury
of the law. The Penal Code invests a
in a criminal
discretion,
case of murder with the
determining
limited to
punishments
which of two
shall
inflicted,
and that discre-
employed only
tion is to be
when
that the
satisfied
lighter penalty
imposed.
should be
the evidence shows
If
beyond all reasonable doubt either
to be
defendants
guilty murder in
degree,
but does not
some
show
first
extenuating
circumstances,
duty
it is the
facts
simple
a
verdict
murder in
toas
find
defendant,
and
responsibility
leave with the law the
fixing
punishment.”
(Italics added.)
appellant
Counsel for
Bowie,
commendably
in his
frank
helpful
and
brief, says, “Though
guilty
a man be
of a heinous
offense,
exception
there is no
respect
to the doctrine
for
the law
inspired by withholding
cannot be
protection
law,
higher duty,
and no
responsibility,
no more solemn
upon
rests
the courts than to maintain the
and
constitutional
statutory
planned
liberty
shields
and
preserve
inscribed to
under law
protect
and
each
oppression
individual from
and
wrong,
may
from whatever source it
I
full
emanate.”
am in
counsel;
accord with
opinion
my
the majority,
view,
squared
quoted
cannot be
with the
statement. Let us look
realistically
majority
at the
holding and its basis.
majority opinion
quoted
refers to the
instruction and
says,
giving
“The
same
similar instruction has
assigned
ground
been
many cases,
error and
reversal
but in none has it
held
opinion
been
to be erroneous.” The
then
“beginning
People
discusses cases
(1883),
v. Jones
”
People Brick,
63 Cal.
v.
93 jury places . . . vested in alone. law no restriction the [T]he upon jury’s discretion, attempt exercise nor does it of presenting palliating mitigat- exercise to confine its to eases or ing ...” circumstances early 1898, Supreme
As United States Court de- upon liberalizing clared its the effect views of a amendment (1898), law. In Winston federal v. United States 172 456], U.S. 303 S.Ct. 43 L.Ed. the court said: “These [19 of were three cases indictments . . . for murders committed passage January 15, of the act of . . . 1897, chap. 29, since which, the first section of ‘in all cases where accused guilty may is found of the crime of . jury murder . . the qualify by adding their vеrdict pun- thereto “without capital ’’; jury ishment and whenever the quali- return shall a verdict fied person as aforesaid the shall convicted be sentenced to imprisonment . . . for life.’ 29 Stat. L. at 487 . . . “ [p. 43 judge 457 of The instructed jury . . . L.Ed.] qualification ‘That cannot be added unless it be the unani- mous conclusion of the twelve constituting jury. men I think that should it not be added unless it be in cases that commend themselves good judgment jury, eases palliating that have circumstances which would seem to justify require it.’ . . . “ L.Ed., reversing [p. right 459 of 43 the trial court] guilty, [p. a verdict of 460 of qualify adding L.Ed.] capital punishment,’ the words ‘without is thus conferred upon jury in all cases of murder. The act does not itself the court prescribe, prescribe, any authorize nor rule de- fining circumscribing right; or the exercise of this but commits judgment of its the whole matter exercise to the and the con- jury. authority jury of sciences of to decide that punished capitally the accused not be shall not limited to court, jury, opinion cases in which the of or that there mitigating or palliating are circumstances. But it extends every in which, upon case a view evidence, whole opinion is of just that would not be or wise to impose capital punishment. How far age, considerations sex, ignorance, illness, intoxication, or passion human or weakness, sympathy clemency, or or irrevocableness of an death, apprehension executed sentence explanatory may facts brought exist which not have been light, any other whatever, consideration should be allowed weight deciding question whether accused should or
94 the act capitally punished, should committed Congress jury, the sound discretion of the and of the ’' alone. United In the recent ease Andres v. States supra, 880, L.Ed. -], 92 the United S.Ct. U.S. Supreme again the same statute as States Court considered bearing the in Winston A conviction was involved case. had not death reversed because the trial court clearly upon must unanimous instructed guilt. The that of court said: issue as well ‘1 returned, qualified If verdict is [p. of 68 S.Ct.] *14 mandatory. argues that penalty death is Government the unani properly requires jury that first construed § and, mously guilt then, of with the the the accused decide unanimity qualified whether a verdict shall same decide the death on a requires penalty returned. the statute As jury of that the acts unani guilty, verdict the contention is mously penalty. in exacts It finding guilt and the law the follows, jurors agree to add if all twelve of the cannot that capital punishment,’ original the verdict the words ‘without guilt punishment be im of and the of death must stands posed. The contends that 567 must be construed petitioner § guilt require unanimity respect punishment in to both juror one before a verdict can be returned. It follows that prevent requires penalty, can the death a verdict which although finding guilty unanimity is in accused there degree. [p. Unanimity jury of murder . in the first . . 884] required is Amend verdicts where the Sixth Seventh unanimity requirement apply. ments In criminal cases this of degree guilt crime, extends to issues—character all or jury. punishment—which are A verdict em left to the by finding jury upon in a single bodies the conclusions questions all the it. We do not think that the submitted to qualify grant authority jury by 567 to their ver § permits whereby first procedure jury dict a unanimous must a rigor. . guilt its . . find and then a unanimous alleviate general with the humani This construction is more consonant history Anglo- purpose tarian of the statute and jury system presented American than that the Government. [p. us, . . . . a seems to . . where is told 885] unanimous, response later, that their verdict must be question qualified problem to a particular directed verdicts, first-degree they if their verdict murder and is they doing, it, must unanimous so qualify desire that, reasonably if cannot all might conclude guilt unquali- agree mercy, must stand grant verdict meaning might from the men derive fied. That reasonable given proper meaning instructions other than 567§ probable. presented death eases doubts such as those here in favor of should be resolved the accused.” law Legisla- The substantive of California enacted shown, provides ture, penalty above for murder “death, degree the first shall be or confinement prison life, jury” trying state at the discretion case; majority substantive law as “construed” opinion is that for murder of the first he extenuating shall death “unless some facts circum- shown, stances” are event, which hut event, jury may reduce the imprisonment. to life Mani- festly, judicial “construction” of statute, language of which the beyond same court admits “clear question” to the contrary, all to end sustaining death sentences in cases not authorized either by the lеtter the spirit of statute, our directly contrary also policy declared by the United Supreme States Court in the case, Andres quoted. above majority here, opinion People like v. Kolez supra, 23 Cal.2d and other subsequent cases Bollinger majority, and cited does squarely over- *15 Bollinger holding any respect; the in rule squarely it does not against that it be error would declare the state to instruct the language in accord with the statute or the to refuse give given. the which instruction here was As said Jus- Traynor, in tice his dissent (p. to Kolez 674 of 23 Cal.2d), years fifty over precedents “For have accumulated condemn- ing instructions, though even court has fallen short reversing judgments because of them.” pointed Likewise as Traynor in dissent, out Justice the same this has court repeatedly prosecuting attorneys chided for requesting and giving trial courts for in question. instruction In People v. (1939), 223, Smith 13 Cal.2d 229 P.2d 682], the court [88 quoted Bollinger from the case the statement “And consid- ering the numerous occasions this court has held that section 190 . . confers . on the alone the discretion of determin- ing in punishment guilt eases of of murder in the first degree, courts, trial especially where a human life is stake, at
96 duty discharge of that interfere with solemn should not jury.” opinion proceeds: The case then “Just Smith similar, warnings by this court have ob- why this not been courts, we at a prosecuting officers and trial are served explanation of me that loss to understand.” seems to has was that which court then “at loss to understand” practice has con- all clear: The denounced been become too this it and the evil instruc- court has tolerated tinued because finally what until this court tion will continue use enforces recognized it to be law. has so often law leave the Obviously, the inconsistencies above disclosed Why away? What is the cleared confusion. are not questions make majority suggested ? To answer of the jury that that “it is error” instruct the bald assertion penalty mandatory under circumstances the death some may found, when makes it “clear well be the statute which discretionary in question” beyond that such legalism every ease, pure repetition to which no amount of verity. can add moral history majority opinion give fails to full
The only as genesis prоpagates; goes back of the error which it it (1883), 63 the Brick case far as Jones case Cal. has (1885), 858], Actually, the “error” origin; People 174, its basis earlier 49 Cal. Welch pre- shortly laid. That case arose after enactment was viously 190 of the Penal noted 1874 amendment section mur- punishment Prior to that amendment the sole Code. death; the first amendment created der of was Bollinger provided changes case; e., discussed i. may imprisonment and punishment be either death or life determining punishment shall responsibility imposed jury’s discretion.” was vested “absolute reading, verdict But the Welch case the returned a guilty mur- “We, jurors, do find defendant Welch degree, in the indictment.” charged der the first absolutely imposed verdict silent jury had not been instructed that a verdict and the penalty. (The amend- quoted form would mean the death enacted, may in ef- ment, although it had have been been certainly trial; in effect when fect at the time of it was appeal.) question which the court case was determined *16 jury had actually was whether the considered and determined to determine the at all.
97 (p. 178 of epitomized сourt held the Upon the facts above by Code, Penal as amended 190 of the Cal.): “Section ‘Every murder 28,1874, person guilty of reads: Act March death, confinement suffer in the first shall trying the life, jury at the discretion of Prison State is to of that discretion [p. . nature same . 179] statute. language reference to the ascertained qui verdict held, action tam the Virginia it was case, 5 damages. (Scott’s fix amount of Grat. should duty imposed jury 6,797.) Also, that where the fixing imprisonment, term of verdict did term, (Mills’ case, it set ascertain such should be aside. Leigh, 751.) amending “But Act Section of the Penal does Code give general juries discretion which exercised under Virginia most, their limited, statute. Here discretion is at to determining punishments which of two inflicted; shall be restricted, and we think it is still more and is to be em- ployed only where lighter pen- satisfied that the alty imposed. should be that, would seem view of the apparently growing to find disinclination verdicts of murder degree, necessary the first capital when punish- result is ment, feeling and the existence that there were nicer dis- tinctions in degree malignancy exhibited in murders than were made the letter definitions, of the statute Legislature give intended to jury, when the verdict was degree, power murder the first relieving the defend- ant of the penalty, substituting extreme and of pun- another fixing punishment ishment its stead. A verdict at imprisonment for life is analogous somewhat to the French ‘Guilty verdict, with extenuating circumstances,’ ‘ equivalent of the verdict, Guilty Louisiana capital without ’ punishment, good held in State v. (12 La.An. Rohfrischt 382); and authorized provides, statute which ‘In all punishment cases where the death, denounced law is shall be lawful for qualify by adding their verdict thereto, capital punishment.” “without And whenever the qualified shall return a verdict aforesaid, person shall be convicted sentenced hard labor for life in the State ’ Penitentiary. (Rev.Stat. p. 163.) La. question
“This view of is not by authority unsustained By in California. April the Act of 22, 1851, it was enacted: *17 98 deemed feloniously steal, etc., shall be
‘Every person who shall upon thereof, larceny, conviction shall be guilty grand any term, prison in for imprisonment the State punished by death, years, ten or year nor more than not less than one People in v. Little jury.’ 'And The of the in the discretion seem, ‘It would from the this Court said: (5 355), Cal. field Legislature Act, the intention of that was language of the when, in punishment assess jury should that they thought that the defendant discretion, their exercise of they agree If death. did not punishment of deserved the guilty, finding defendant then upon punishment, such case, In it was evi general verdict.’ they find a should object Legislature (actuated of the dently that the considered live property—as kinds of that certain the circumstance State, exposed, portions of this peculiarly stock—were equally just) was to confer other motive some affixing, discretion, a more severe power at their juries the imposed guilty of previously been on those penalty than had may say, in By reasoning view larceny. parity of we grand the first punishment for crime murder of of the former subject history legislation in this on the degree, and the elsewhere, purpose Legislature that it was the State permit jury, 190) to (by amendment of section proved brought crime of the defend facts case where the offense, statutory higher definition of within the ant severe, declare punishment of death too they believed think, therefore, imprisoned for life. We he should be if it read: suffer ‘Shall should be construed the statute jury) imprisonment of the death, (in discretion petition for prison [p. 185, . on denial of State for life.’ . . given have construction we rehearing] It results from the jury (as amended) that a 190 Penal Code Section that a defend may—in discretion—declare the exercise its punished the first shall be guilty of murder of ant agree If prison for shall in the State life. confinement degree, but the first guilty of murder of defendant is that a imprisonment for punishment shall agree that the cannot punishment shall be declare that life, or shall not pronounce duty imprisonment, it will be the Court shall need not declare death judgment of death. imprison they agree cannot cases where be inflicted—in respect penalty, is silent ment—since, if the verdict to death.” must sentence defendant the Court quoted is my part opinion no of Welch above view law; repetition hallowed the age to me neither nor has sound nothing quoted. There speciousness reasoning above is jurors holding are not the statute which authorizes agree penalty just agree on the required to on the must aught in makes death guilt; neither is there the statute which mandatory mitigating unless evidencе circumstances produced responsibility and the so recommend. punishments making placed squarely on the the selection of jury by Legislature there. and the leave it courts should People 858], But v. Brick given (and instruction was almost verbatim sub *18 quoted with) given stance identical that which was here and Belying above. the Welch (p. 192): case the court said given “There is this instruction no error. The discretion jury by arbitrary one, the statute is not an but is to be employed, People Welch, said this court in v.
179, ‘only penalty where the lighter is satisfied that the imposed.’ course, should be Of could be satis fied the facts and circumstances of the case.” From the union of the errors come, of Welch and Brick* has and still persists, grievous that plagues error which still us. con Our tinued it, particularly tolerance of holding view of the Supreme United States case, Court in supra the Andres (333 740), U.S. is even genesis. more indefensible than was its
To Abraham Lincoln is declaration, ascribed the “I shall try to correct errors shown I errors; where to be shall ” adopt they new appear views fast as shall to be true views. principle That good one, seems to me to be a not alone for the chief great executive of a justice nation but a a also for court of last I resort. think it has been shown that we have erred; very at the persist, least we that shall err if we after Andres, in adhering holdings I of Welch and Brick; think the true view is that in Bollinger which we said was beyond question” “clear duty it our that to enforce the true view. pointed
As is out in majority opinion this court cannot penalty reduce the disturbing judgment without of eon- *People contributor, appar- Jones 63 Cal. is also a ently having approved, somewhat similar instruction been there language since the exact of the instruction is not it set forth is not charged culpability. with full fixing majority jury in holding
viction; under they e., i. discretion; legal bound to exercise penalty are Certainly only upon evidence. their discretion must exercise all evi- receive and consider that must should follow therefore, apparent, It is pertinent dence that issue. as the the defendant insofar prejudicially affect errors which result in a reversal of must penalty as to is concerned trial many errors judgment. Here the cumulative еffect is so substantial directly at the issue strike defendants have been I but conclude cannot prejudiced. though majority persist perpetuating
Hence, even mandatory death absence 1874 rule justify mitigating evidence, ruling here does ruling, given, Eather, the instruction does that affirmance. noted. aggravate prejudicial moment other errors trial should be reversed and new had. The judgment Carter, Traynor, J., concurred. J., and rehearing July 8, petition for a was denied Appellants’ J., J., Traynor, J., Schauer, voted for Carter, 1948. following opinions were then filed: rehearing, and filing dissenting. majority CARTER, J., Since the of have been re- dissenting opinions in this cause letters Attorney County and District of Alameda from the ceived calling defendant Williams attention counsel for from *19 opinion majority and in the discrepancies certain by seating to the dissenting prepared me relative opinion and the various arrangement of witness Belle Jarrett the attorneys during the trial. Attached to in the courtroom attorney diagram district is a correspondence of the the arrangement participants showing seating the the various aсcuracy diagram questioned' in this in the trial. is by Williams, I respects counsel for defendant some minor substantially accept diagram being correct. The dis- difficult, in if attorney concedes his letter that “it trict impossible, glean Eeporter’s Transcript from the not positions attor- exact relative of the the various witness ” accepted I neys. reason, this as correct and accurate For brief, in the statement contained defendant Bowie’s by challenged quoted respondent, statement was not my in dissenting opinion. the same verbatim attorney by district presented diagram now From the attorneys were seated prosecuting two appears that directly front in counsel table the left half of the at right half were seated at jury, and counsel defense attorneys, alongside prosecuting the counsel table of their directly to the rear defendants were seated was seated respective counsel. The witness Belle Jarrett attorneys and to the extreme prosecuting left rear of the appears from facing left of box. It therefore one see diagram that in for сounsel for defendants to this order in necessary turn around their witness it was for them to respective opposite in from the chairs and look direction right doing counsel table. so could side see Likewise, by turning of the witness’ face. the defendants to their right left could see the of the witness’ face. side attorney Mention correspondence is made in the district accepted counsel for defendant Bowie was offered and a seat at the left end during of the counsel table the cross- examination of the place position witness. This would him in a about 7 feet from and directly in front witness. by diagram submitted situation disclosed
While the attorney arrange- respect seating to the the district in different that de- ment the courtroom is somewhat than quotation con- picted appellant from brief Bowie’s my dissenting opinion, tained in I am view that still of the right pro- defendants were denied the of confrontation as vided section 686 of and that the the Penal Code reason- ing my dissenting opinion authorities contained are applicable seating arrangement the courtroom diagram attorney. disсlosed the district submitted For this reason I disposed am the conclu- depart from there sion announced. denying re- the order I dissentfrom
SCHAUER, J. my dissent from the what is said hearing. In addition majority the effect of the emphasize I opinion wish main due of his life without deprive each defendant opinion is to deny him taking his life to process of law equal protection of law. concededly the law of California mandatorily is, death but murder cases the death, in the alternative, imprisonment either life sole (Pen. Code, 190; jury trying case. *20 discretion of the the § 102 Bollinger (1925),
People 191, 196 207 ; v. P. [237 25] People (1938), 466, ; Martin 12 Cal.2d v. 471 P.2d [85 880] People (1939), 223, v. Smith 13 Cal.2d 229 682].) P.2d [88 I, (art. 7, 13) Constitution and state the statutes §§ (Pen. Code, 190, 1042, 1157) give charged a defendant to §§ right, jury trial, murder where he waive the does not a jury to question have determine not guilt of his or and of question degree innocence class of the offense, also, but if degree, the offense be of the murder first penalty imposed. to give any pref be The law not does penalty solely erence to either leaves such selection requires and it jury, jury unanimous its penalty determination of the as it must be unanimous on questions guilt degree (People class of the crime. (1918), v. Cal.App. 248, People Lee 38 250 ; Gow P. [175 917] (1929), v. Cal.App. 702, ; Garcia 98 People 704 P. [277 747] (1934), v. Cal.App. 433].) Richardson P.2d [32 following Pertinent this connection is the discussion (speaking through Shenk) People this court Mr. Justice (although Hall 199 Cal. 456-458 859] approved, way dictum, practice this court there jury permitting express recognition respon- evade of its sibility by instructing them the death sentence would imposed, imposing sentence, when the verdict upon was subject penalty) silent “From : a consid- appears eration of our decisions it be the settled law that in charge this state the trial on a murder it first jury guilt incumbent to determine innocence guilty of the If accused. he be found of murder in the first then jury penalty. it is fix incumbent . . . the law Under the verdict such a ease must be the agreement jurors result of the unanimous and the incomplete unless, verdict returned, it embraces the two necessary elements; finding first, constituent guilty accused degree, and, secondly, of murder legal evidence jury has fixed the its duty exercise of discretion. ... was the Failing exercise its discretion fix do penalty. so upon. no determined could exercise its discretion exеrcise it one and the verdict, same verdict. When a such as one here under was, “We, ., consideration verdict . . find the [such guilty defendant . . . charged murder as crime *21 degree. indictment, first But cannot come to an of the the agreement degree punishment”], as to of dis- unanimous on its face that such discretion was not exercised as closes upon it to either is not a verdict which the court is judgment pronounce authorized to of either death or life imprisonment. receiving imposing In such a verdict and defendant, usurped the sentence of death the the court jury judgment nullity. the function of the was a its proceeding resulted in judgment therefore a mistrial and the must agree be reversed. ... We cannot defect merely the procedure’ verdict was an error ‘matter of contemplated . . . by section art. VI of the state [of 4% contrary On the the defect involved matter of sub- Const.]. right. stantial and substantive inwas effect the denial by jury. of a trial by The amendment which said section 4% ‘ was added to the designed repeal constitution was not to or abrogate guarantees accorded persons accusеd of crime by parts other of the constitution, same or to overthrow all statutory procedure rules of and evidence in criminal cases’ by jury Trial guaranteed every person [citations]. to charged felony with a and the right denial of that is in itself miscarriage justice. of . degraded . . [H]owever and hardened a criminal the may evidence disclose accused be, to he is entitled under by jury. the constitution to trial legal right effect this was denied to the defendant case at bar. The proceedings before trial court [which imposed the death amounted to the if same as sentence] court had denied the by jury defendant a trial in the first and, instance having heard the evidence and found the de- guilty, fendant proceeded impose to judgment of death. judgment may Such a though stand even there be the clearest proof guilt.” of question There is no power of the Legislature to provide that a defendant shall right have the to pun- have his ishment jury determined in its sole But, discretion. under holding majority court, right this meaningless and unenforceable and can stripped away be at the whim of a trial court; a trial can, court if desires, it so arbitrarily deprive a defendant of right trial particular issue informing jury that, contrary legislative provision, their discretion as to choice pen- alty “is employed to be only when the jury is satisfied that lighter penalty should imposed. be If the evidence . . . circumstances, extenuating does not show some facts duty simple verdict of murder in to find a defendant, with law as to such and leave responsibility fixing punishment.” According imposing responsibility instruction has no this If penalty. the extreme it is not satisfied evidence from extenuating mitigating lighter pen- circumstances that the alty imposed, should be it need make no determination as to guilty, punishment; it can arrive at a verdict re- simply responsibility “the penalty, main silent as to and leave court, Legisla- this law”—the law as declared return go ture. their deaths without the These defendants any jury unanimously, the act each of verdict of the in- jurors, selecting punishment the 12 death as the fixed, been imposed upon them has flicted. The *22 by prescribed responsibility the manner or by Legislature, “law” which contra- court-made Legislature. express provision venes the may juries in accord with section Trial courts instruct (I court would not hold Penal Code assume this mandate) legislative obey it error for a trial court thus to may with the law as this court or them accord instruct whimsy shall the fatal selection Upon has it. what declared 'Death conflicting instructions be made? paradoxically fixing may imposed be after verdicts sentences penalty. fix no they may verdicts which imposed or be after by any may governed reason or no procedure The choice of always It must always by caprice. whim reason, but or Legis- no law enacted caprice whim because there is court, by this judicially declared lature, has been and none death mandatory law-imposed which the choice in- discretionary imprisonment life penalty instruction struction shall be selected. duly administered, my are not processes view the of law given to all within the law is not equal protection degree murder, when guilty found persons
class only upon unanimous to death some are sentenced death others are sentenced to express decision of leaving the silence of because of par- capriciously declared law” law”—“the “to the this approval with the assured trial court case ticular court. J., Traynor, concurred.
Carter, J.,