*1 municipal officer, a ceeding perfunctory one in which suit, refused laying basis of has purpose for the obvious superiors. by the and his immediate to act as directed law agree with the construc- For these reasons and because Traynor, Mr. pertinent statutes Justice placed tion judgment. I concur in the 4930. No. In Bank. Feb. 1949.]
[Crim. Respondent, v. DANIEL JEROME PEOPLE, THE ZATZKE, Appellant. Gordon, and Vince M. Townsend for Jr., Walter L. Appellant. General, Frank Richards and Howser, N. Attorney
Fred Henry Dietz, Deputy Attorneys General, Respondent. A.
SHENK, The defendantwas information J. Dyer January Wayne 13, 1948, of the murder Charles Angeles in County. guilty pleaded guilty Los He and not insanity, insanity plea of reason but withdrew the after plea. the trial on the other The returned a verdict of guilty appeal judg- without recommendation. The is from the ment and denying from order a motion for a new trial. January
On 1, 1948, the in defendant became a roomer a small hotel years age in Pasadena. 22 He was of and his home Michigan. January Dyer was in On 3d took a room adjoining the defendant’s in Dyer room the same hotel. was years age 30 and unmarried. home in His was Missouri and he recently separated corps from air the service. January About manager 5th the hotel young introduced the men each other, to January and on they 7th suggestion at his gave up separate their single room for reasons of economy moved into a twin-bedded room which onwas the third floor. The Dyer defendant and friendly became and went around together, Dyer’s often car kept parking which he at a lot near the hotel. morning
About on the of Monday, January o’clock 12th, manager the pliers defendant asked the a hammer, saying he pull wished to given nail out his shoe. He was pliers and a round-headed hammer he which took to the room. evening Dyer The manager same and the together hotel went wrestling to They matches. returned to the hotel 12:20 at a. m. of the 13th. morning manager About 9 o’clock that went to the defendant’s room for his tools. He saw the defend- ant placing carpet-sweeper in the hall outside room letting manager door. Without into the room the defend- in, brought ant went tools, out the and said that since he had already swept, beds, made and cleaned the room, would necessary anyone else to do so. evening at 6 o’clock, of the 13th the defendant took
On the manager paid rent, dinner. At that time he his room having previously been in arrears of lack of because funds. Dyer asked and the The hotelman where defendant said gone Jose, Cruz, They he had San Santa “or somewhere.” parted evening Later that outside hotel entrance. tenants something below reported dripping the defendant’s room inspection from the floor defendant’s above. An room Dyer’s corpse lying pool disclosed in a wrapped a blanket of blood under head one the beds. Lacerations about the and at the of a base of the skull indicated the use round- headed striking seven more blows instrument were clothing the cause of Deceased’s death. bloodstained broken blood-spattered blanket eyeglasses, and a bloodstained were found in a suitcase. morning
The 4 o’clock on the defendant was arrested about of the 14th returning he He denied as the hotel. knowledge of the called attention to homicide until an officer Dyer stain on his killed trousers. He then admitted he and said he would all about tell it. concerning the details of the defendant’s statement ensuing time of his arrest
homicide activities signed by him on each writing, was reduced to and initialed objection page. was introduced evidence over Testimony portion stating what did after homicide. *3 independent defendant witnesses as to the activities the during day objec- January 13th over was also admitted testimony tion. The defendant’s and are to the statement following effect: morning January 13th the defendant to Tuesday went
On about 8 :30. He undressed to room returned and breakfast Dyer still in he felt was bed and lay tired. down because and asleep fell but in about 10 minutes The defendant asleep. pulled covers, down and offered bed, his Dyer over to came “go rejected saying he he sodomy,” which didn’t “an act “nobody way,” and stuff,” he was “not that damn got procured and change” up him. He going to was Dyer drawer, saying didn’t dresser from the hammer Dyer coming, where- kept kill him. on him he would let alone Dyer time. fell between the beds. hit him the first upon he room, leave the saw and started to but Defendant dressed calling bedpost trying up lift himself at the and Dyer to pillow him on a and again, placed him He hit help. thought bleeding failed, stop but and tried blankets, to misery. him him He thing put out his hit to was best nothing he there was and when saw again or three times two him, getting hands cold and that his were could do to save he placed him and white, wrapped blanket around he feet put blanket, Dyer’s He the bloodstained him under the bed. in He cleaned the eyeglasses stained and a suitcase. clothes (which still had blood room, washed the hammer tests showed gave pliers manager. to hotel He it), on and the keys Dyer’s to Dyer’s wallet, then drove car Los took Angeles $1,350. it for He the transaction sold conducted Dyer’s Dyer’s name, signed papers, in name on the title Dyer’s purchase money cheek, name on the took endorsed Dyer’s name, traveler’s checks for the amount used them making purchases including jewelry substantial for a friend named David birthday. Burnham the latter’s He previously Burnham, told who had never known the defendant to have $50, more than he expecting was inheritance. The pay also offered defendant the balance of a $300 loan incurred The Burnham. returned taxicab, Pasadena in a and after dinner with the hotel manager proceeded a night Angeles club in Los where he remained until 3:30 m. a. “to think over the thing best to do.” He then went back alleged to the hotel for purpose of sur- rendering himself, and on his arrival was the arresting met officers. body also evidence that in addition to the articles, of bloodstained
the suitcase newly- officers found clothing purchased $700 and about traveler’s checks in the defendant’s room. objection permitted the defendant’s
Over court in evi- portion dence the of the defendant’s statement which included history of his homosexual relations with David Burnham, acquired practice in 1944 when the armed serv- acting ice as a chauffeur. ground objection of the defendant’s admission concerning subsequent
of evidence his acts to the homicide they independent concerned crimes for which he was not on trial and were for that reason inadmissible. His objection to the introduction of the statement his homo- practices sexual was based on the contention that such evi- degrade dence tended him before the and was used *4 merely atmosphere to create an prejudice. of objections The extensively argued were and the permitted only evidence was specific after jury limiting instructions to the purpose the thereof. degrad of
Unquestionably evidence other crimes and ing to on the trial is practices unrelated issue inadmissible. has step character never allowed as a in Proof of bad 484 charge. particular But proof guilt on a it is well
the
proof
where
is relevant
an
settled that
to
issue
the
although
it
tends
case
admissible
also
to show
is
immoral
of other crimes. “If
conduct or the commission
the evidence
necessary
pertinent
proof
of another crime is
or
of the
justice
charged,
by excluding
one
the law will not thwart
evidence, simply
that
because it
involves
commission of
114
(People
Sanders,
216,
another crime.”
v.
Cal.
230 [46
153].)
P.
approved
The reasons
doctrine and the
many
support
fully
People
cases
thereof are
forth in
set
seq.
28
Peete,
306,
page
v.
Cal.2d
924],
at
314 et
P.2d
[169
(See, also, People McMonigle,
v.
Cal.2d
[177 P.2d
745].)
884],
People Watts,
As [247 taking property here, conduct of the and was relevant admissible show posing as the deceased And the for the crime. defend robbery as the motive history knowledge practice of his of the ant’s statement 1944 was relevant and admissible since perversion sex upon him sex advances defense of to rebut his asserted falsity Dyer. of the assertions was The truth defendant’s against of the and was resolved determination light contradictory and of the him in the of his statements independent evidence. the contention that evi becomes clear Thus it degree support verdict of first insufficient to dence the defendant In this connection merit. without
murder is no that he premeditation, shows the record asserts Dyer, advances from the claimed himself defended afterthought. All of these contentions robbery but an sufficient which was the evidence answered are perpetrator premedi of a the defendant find that undisputed facts Dyer. killing Furthermore tated no provocation for there was conclusion support and that the defendant formed upon the deceased the attack robbery The Dyer’s life as the motive. intent take correctly purpose limited instructed as jury was No by the defendant. other instruction objected evidence full and and the defendant questioned or criticized trial. fair denying order motion for new judgment and the affirmed.
trial are C, Edmonds, Spence, J., concurred. J., J., Gibson,
485 SCHAUER, punishment question of On the . I dissent. J jury “If the entire evidence the the trial court instructed circumstance is extenuating fact or it some does not show murder and leave your duty simple find a of verdict The law fixing punishment.” the responsibility the of law the punishment” ; the fixing of responsibility does bear “the squarely on contrary places responsibility on the the law quoted instruction, and jury. jury the If the the followed they dis- they not, did then did not we cannot assume that charge fixing punishment”; on “responsibility their of the contrary they responsibility the left “with the law” the by of his life jury, was theirs. Thus was trial issue death, or his denied the defendant. aspect of the case has say further on this I would All that by Mr. Justice forcefully, Shenk said, and most
already been 451, 456-458 P. 199 Cal. People (1926), Hall [249 859]. in v. “From a considera- equally applicable here. language is appears be the settled law of this tion decisions it of our charge murder it is first incum- a of in the trial on state guilt or innocence of jury to determine bent in the guilty found of murder first If he be the accused. jury penalty. on the . . . degree it is then incumbent fix a ease must be the result of the verdict Under law jurors agreement of the and the verdict is the unanimous necessary unless, returned, as embraces the two incomplete it finding guilty elements; first, a that the accused is constituent legal degree, and, secondly, evidence murder in the first of penalty in the exercise its dis- jury that the has fixed exercise of that discretion must cretion. . . . The result of the by specific either use of appear on the face verdict by or in the absence of such words neces- express words to light [p. in the the instructions. ... sary 458] inference agree defect We cannot that the in the verdict to show [failure by jury punishment] of its discretion as exercise by merely procedure’ contemplated an error in ‘matter of . VI . . section article of the state Constitution]. [of 4% contrary the defect involved matter of substantial and On right. trial substantive denial effect jury. every guaranteed person . . . Trial felony right with a and the denial is in itself miscarriage justice. degraded . . . and hard- [H]owever be, ened a criminal the evidence disclose an accused to by jury. legal entitled under the constitution to trial In 486
effect right was denied to the defendant in the case at (Italics bar.” added.) only
Not has the this case in effect been denied right by jury punishment of trial on the issue of but also, my reasons which are elucidated in dissent on rehearing People denial of v. Williams (1948), Cal.2d 78, 100-104 393], equal P.2d he has been protec- denied [195 tion also, of the law. (See, (Dec., 1948) Cal.L.Rev. *6 628-634.) judgment I would reverse the and reasons stated
For the for a new trial. remand cause Traynor, J., concurred. Carter, J., and CARTER, J. I dissent. killing Dyer I have doubt that motive
While
little
flagrant
robbery,
than
I cannot
viola
was other
condone
against
rule
introduction of evidence of other
tion of the
majority
by
in this ease. As I have
sanctioned
offenses
pointed out,
rule,
years,
this
in recent
has been
heretofore
honored in its breach than in its observance
trial
more
this
in its recent decisions
and
courts,
approved
and
court has
(See
encouraged
practice.
People
Peete,
v.
28 Cal.2d
People
;
Westek,
306
P.2d
The exceptions general rule be, said to that evidence of other prove is competent specific crimes crime when establish, (1) (2) it tends to in- motive; tent; (3) the absence of accident; (4) mistake or a common plan scheme or embracing the commission of two or more crimes so related to each proof other that of one tends to estab- lish the others; (5) identity person of the charged with the commission of the crime on trial. The authorities to this effect legion. are following evidence was adduced the cross-exami-
nation objection. of the defendant over his
Question (by Mr. Galliano, Deputy District Attorney) : Zatzke, you “Mr. it isn’t true that copulated penis your prior men with mouth on occasions to particular (It time? should be remembered that defendant had testified attempting that deceased was perpetrate an act of sodomy on him when he struck the blow.) fatal Root; object “Mrs. Which we will grounds to on the it is calling likewise for his conclusion, as men, to other assum- ing a fact not in evidence, is incompetent, irrelevant and hearsay immaterial and to this cause. ‘‘ All of which is The Court: overruled. proper Root: is
“Mrs. not cross-examination as well. “The All of which Court: is overruled. Now, there will necessity repeating objection be no that it is proper cross-examination, and hearsay, and so forth. objection That against understood to be in will be all this line testimony. “Mr. You Galliano: answer the question, sir. I “The Witness: refuse to question answer the and stand my rights Constitutional as that is a question. degrading you making Do remember
“Mr. Galliano: statement Department of Pasadena at 2:30 P. M. on the Police the 14th January year, day presence of this in the of Mr. Burlin- game, Whitecar, Wright? you Mr. and Mr. will ask at you questions you gave that time weren’t asked these these answers- Root: Now,
“Mrs. before counsel reads before objection interpose we will that it is now in the state of the answer, proper impeach- record that he refuses to it is not ment, incompetent, immaterial, calling irrelevant and hearsay proper and is not cross-examination as he anything gave asked relative to the statement that he Officers, Police and the that he fact has stood on his Con- rights stitutional so that he does not now and cannot be impeached upon question involved. Galliano, objection
“The Court: Mr. I think that respect. well taken in this Zatzke anything Mr. was not asked merely about conversation with Police Officers. He related happenings his version of the of the crime, or the kill- ing. ...” prosecution Burlingame called Officer C. H. rebuttal signed
relative to the statement made defendant and the following occurred:
“Question: Burlingame, you present Mr. were when the statement, presented Exhibit sig- to Mr. Zatzke for his nature and his initials ? I was, yes,
“Answer: sir. “Question: you At that time did see Zatzke read Mr. statement ? 1‘ Yes, sir. Answer: you
“Question: any conversation had between Was concerning reading at time state- Mr. Zatzke signing it, initialing page? of each mént, the very Mr. Zatzke to read the “Answer: told statement carefully page and to initial each if the statement was as he had dictated it.
“Question: reading indicated, after it he And so is that right ? ‘ right. That is Answer: may cross-examine. You
“Mr. Galliano: *8 questions. No McPherson: “Mr. time, your if please, I at this Honor believe
“Mr. Galliano: statement, which was excluded the other the rest of that jury. to read permissible day, would ‘ The Court: I think so. jury. I read it to the at this time offer to
“Mr. Galliano: your object If please, Honor we read- “Mr. McPherson: ground rest of the statement on the it raises ing the proper issues, not redirect rebuttal examination, collateral testimony, incompetent, irrelevant, highly immaterial, and prejudicial. objection
“The Court: The You read overruled. statement.
“I it on I already base the authorities that read to have particularly People against you, and Lane 101 California. reading Now, your please, if Honor Galliano: from “Mr. People’s duplicate, par- of which I have exact Exhibit reading starting from ticularly page 5, with line 27: “ ‘Q. long you How known David Burnham ? A. About 1944. “ you Did ‘Q. any ever have unnatural sex relations with ’ No, him ? A. sir.
“Reading from page 6: “ ‘Isn’t it a fact that on the week-end after Year’s, New year, you and David Burnham his went to cabin at Pear you at Blossom, which Yes, time went on him? down A. sir, it is. “ ‘Q. Now, many you how performed other times have same on I act him? A. know. don’t ‘ “ Q. you Have performed on person act since the date mentioned at the cabin A.? Yes. “ ‘Q. Where did occur those acts ? A. At his house. “ ‘ you Q. up your Did ever have him in room at the Rose perform those Hotel and acts ? A. Once. “ ‘Q. many you How times you would say per- have person formed these acts on of David Burnham? IA. say about ten times. would “ ‘Q. go you? Did he ever down on A. About times, three any. “ ‘Q. (By Dyer Wright) present Mr. Was ever you when having and Burnham were these acts ? A. No. “ ‘ Q. long you How practicing per- this sexual A. I version ? think it was in 1944. went overseas and was chauffeur for a Marine Colonel and he showed me how do it. “ ‘Q. you go Did Dyer? ever down A. No, sir. “ (By ‘Q. Whitecar) Mr. Did you talk ever about with him? He brought A. mentioned it. He up subject once ignored and I it.
“ , say you the time that ‘Q. You mean to that during (This ques- him ? you propositioned him never lived with way.) right. That is in the record this A. tion is written never have. “ you to to this anything that care add statement? ‘Is there ” A. No.’ if believe, which I do not
“Then other portion follows that your please, Honor is material. 1‘ right. That is The Court: ‘‘ Has Mr. Burnham arrived ? Mr. Galliano: Now, your please, Honor so the record
“Mr. McPherson: just read Mr. clear, portion will of the statement be ground that is Galliano we move to strike on the incom- rebuttal, immaterial, proper not and will petent, irrelevant, disregard it ask your ask Honor instruct to and to the your ground to on Honor at time declare mistrial this attorney prejudicial has committed prosecuting misconduct. denied, “The all of Court: The motions are each and ’’
them. charged It should be remembered that the perversion murder, committing with acts sexual not with prohibited by And yet, section 288a of the Penal Code. over cross-examination, objection, his evidence was introduced on had prove that, past, which tended to he committed particular men, these acts with other deceased defense, stated, not one. The defendant trying attempting deceased endeavored or was' or to commit sodomy him, an he act of and that struck self-defense. contention of the State was that if he committed Code, 288a, these of perversion, acts under Penal section upon other to men, certainly could have been averse 286) committing an sodomy (Pen. Code, act of with § objected deceased, and so therefore he could not have If therefore assertion of self-defense was without merit. attempt defendant had been with have to unnatural sexual relations the deceased evidence might other such acts to have been material relevant that issue. necessary kill, and the intent Presumably intent entirely are different. perversion act of
necessary commit an majority if he hold that evidence, admitting this But, in in the sexual crimes on others these to commit had intended readily kill the deceased. intended to past, he must issue absolutely irrelevant evidence is seen that the (cid:127) to murder the deceased. intended or the defendant whether exception relating to the contended that It cannot be The defendant applicable. or accident absence mistake killing the deceased. admitted relating a com- exception within
Does the case come bring Certainly To a case within not. plan mon or scheme ? system between the exception there must be evidence They sought be introduced. one offense trial parts general composite plan must connected as of a they related to each other as show scheme, or must be so *10 through running motive or intent both. Some common connection between the crimes must be shown have existed uniting actor, in the mind them for fact and of the accomplishment purpose, of a common before such evidence clearly appear can be received. connection must Some from alleged the evidence. It is perceive difficult to how defendant’s perversion part acts of with other men could be a of his killing admitted of the deceased. n only purpose: This evidence was for preju- relevant one To dice jury, the defendant in the minds of the and show him to be a depraved person likely guilty any more than of might crime of which he regard without accused to its And, very nature. it is for this reason that of evidence other crimes is excluded.
Since evidence must have been admitted because it was relevant to whether or depraved not the defendant was so that he must have guilty of the of crime murder and could not acting have been in self-defense, this court throws the rule of exclusion out of the window and makes the reason for the rule, the law. From this on, time the door is open wide for the introduction into any evidence of other crimes of which the defendant any have at time been accused whether they or not any bearing on the issue his guilt of particular crime which he is on trial. This faithfully has court stated the rule time, time after and then either added another so-called exception, or found that just did not fit the facts of case, blithely and then con doned the admission any of evidence and all pre offenses viously committed (See People defendant. v. Peete, 28 Cal.2d 306 924]; P.2d People Westek, [169 v. 31 Cal.2d 469 P.2d 9]; People Dabb, [190 v. 32 Cal.2d 491 [197 n P.2d l].) 492 necessity that this court be con- no
Presumably, there is Cal.App.2d McCarthy, People [200 v. In sistent. hearing. The District Court denied court 69], this P.2d permitted improperly court the trial having held Appeal, defendant of the during cross-examination prosecutor elicit testimony examination and on direct beyond go his the information and insuffi- included to acts not answers as inad- ease, the answers were prior ain conviction cient for testify thereby compelled to was accused because the missible conviction, and not make-weight for as a against himself felony. showing the commission of a purpose of proper direct examination made bar, In at the case good character, moral nor as to his statements sweeping no made bring matter He no state up otherwise. did he ever had not he had or committed acts of effect that ment to the him was not referred with perversion other men. sex relationship any had no such with the way. He said he had scope present case therefore outside The deceased. People Westek, 31 down in v. Cal.2d 469 the rule laid [190 he had the defendant said 9], P.2d where any boys (although I am convinced relationships with still quoted inadmissible). portion such evidence defendant shows that the cross-examina cross-examination of scope direct, practical far tion exceeded the prosecution the defendant a witness for effect made against himself. the defendant had testified that If attempting relationship deceased to have a sexual *11 engaged him of the same character defendant had with then, only might testimony other then have men, and that Then, might been to of it relevant the issue self-defense. might logically
been inferred that' defendant not have been But proposition. averse to such a to infer that because guilty he had perversion of different acts of sex with past, others in the that he not be all must averse to acts of anyone logical perversion deduction, sex with but a generality prejudice no other than effect to defendant eyes jury. precisely in the And it was this situation that designed the rule exclusion heretofore set forth was remedy prevent. to and
An analogous if, prosecution situation would exist in the .of murder, woman she had testified that she killed .the attempt resist, being raped by ,o,ther deceased in an him. to In n words, killing she admitted but claimed defense hél: of: justification. prosecution virtue as Could the in such a case testify call as witnesses other men to that the voluntarily submitted acts intercourse with them ? to of sexual say unequivo- I positively would that the answer should be and cally that such evidence would be admissible and that its prejudicial justifying introduction would be error a reversal if the guilty. defendant were found can see no distinction between such a bar, situation and the one in the case at as it obvious that such inference justify evidence would not by attempt that defendant would not the deceased resist an her against to force to submit to an act sexual intercourse her will. necessary proof of another crime is majority say that charged, the will not proof the one law pertinent
or it by excluding evidence, simply because justice thwart that crime. The crime involves the commission of another having murder, was and the defendant admitted killed the admissibility relating of the evidence deceased. As to the allegedly previously the sex crimes committed the defend- ant, majority say: “And have this to the defendant’s statement was made out of court and admitted in [which objection evidence over his of the his- cross-examination] tory knowledge practice of his perversion of sex since 1944 was relevant and admissible to rebut his asserted defense of sex him Dyer. falsity advances The truth or the defendant’s assertions was the determination of the jury and against was resolved him in light of his con- tradictory statements and of the independent evidence.” Presumably question jury, was for the during but court’s instructions to the following we find the excerpt: ‘‘The very Court: At the outset of these instructions, ladies gentlemen jury, very want to make one definite regarding that is portion statement of the statement Exhibit wherein the defendant police admitted to the he had certain young unnatural relations with Burnham. Now, that was admitted purpose for one only, and was you apply enable that evidence as to whether or not Mr. Zatzke exercised, was Ias think put it, mad, made reason killing for the Dyer was because Mr. approached him sodomy. commit an act of you the reason is that is for determine whether
“Now, guilty suddenly of those acts would a man who himself things go become mad and do the that he did. . . berserk or . *12 opening argument) (after Court of the “The ‘Part argument directed to the fact that Zatzke Mr.
quit (homosexual your I relationships). Ms tendencies direct part particularly attention to of Exhibit reference monastery join the fact that he intended to somewhere: “Question: Isn’t it a fact on the week-end after New Year’s, you Pear year, and David to his cabin at went Blossom, you Yes, at which time went down on him? Answer ’ Well, January Thursday, it is.” 1st came on therefore in Sunday Ques Saturday 3d, week-end of the 4th. many tion you How performed other times have the same act Question you him? performed Answer know. Have don’t any such act on person since the date mentioned at the Question cabin? Answer Yes. these Where did acts occur? Question you Answer At his him up home. Did ever have your room at perform the Rose Hotel and these acts ? Answer Question many you say Once. How times would you had performed person Burn- these acts on the of David ham? Answer I say Question would Did about ten times. he go ever you? down on times, any.’ Answer About three Mr. your McPherson: through Is Honor with that? - Court: Yes, your sir. assign Mr. McPherson: We desire to Honor’s remarks you misconduct and ask to instruct jury disregard Prejudicial error, bringing them. collateral issues in thing this murder The Court: trial. That gone repeatedly into during assign this trial. do not as misconduct deny or jury it. I do not instruct to dis regard it, but pay strict attention to it.” limiting
It is evident that the so-called instruction to jury general did rule, exceptions, not state the with its but prove showed that the court had admitted the evidence to alleged that a man of the defendant’s sexual could tendencies not have struck in self-defense—that if had been such a he person incapable being “bad” he past would be so aroused proposed sodomy at a act of strike would self-defense. highly of evidence more inflam- to conceive difficult likely prejudice average And, only mind.
mable admitted on cross-examination of the improperly itwas court its on the evidence defendant, but comment making forth, thus sure that the would it as set repeated capable defendant was and all heinous that the believe and offenses. crimes my proposition para- here involved is of opinion
In justice in the administration of in crim- importance mount statutory Even with all constitutional and inal cases. *13 innocence, presumption safeguards process, as due counsel, right a defend- prosecution proof burden of upon his trial with two strikes ant in a criminal case enters he is against especially true where him. This is though may have Even he the commission of a heinous crime. only issue during lifetime, the
committed other offenses crime with which required specific should to meet come within presently charged, he is unless such other offenses their commission. purview permitting proof of the rule I This rule has definite limitations which have hereinbefore application mentioned. It is in the rule that error this in the case at bar which committed. Such is situation point opinion. forth endeavored to out have set in detail, which, my opinion, the record no basis leaves opinion ques- for an honest difference of that the evidence tion does come within the be that there rule. are other factors in this case which make clear that defendant’s motive self-defense, was other than but I am unable to con- my clude from examination of the record that the result would not have been different this evidence intro- duced. I am, therefore, forced to conclude that the error was prejudicial, and judgment that the denying and order a new trial should be reversed.
Appellant’s petition rehearing for a 24, denied March Carter, J., 1949. Traynor, J., and Schauer, J., voted for a rehearing. A. No. 20164. In Bank.
[L. Feb. 1949.] FRED JR., H. BIXBY, Appellant, v. CALIFORNIA TRUST (a
COMPANY Corporation), Respondent.