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District Court of Appeal, First District, Division 1, California.


Cr. 2210.

Decided: June 03, 1942

Kenneth C. Zwerin and Fabian D. Brown, both of San Francisco, for appellant. Earl Warren, Atty. Gen., and David K. Lener, Deputy Atty. Gen., for respondent.

The defendant was charged with having committed the crime of grand theft, to wit, with having stolen a wallet containing $12 from the person of John De Matei. At the trial she sought to prove an alibi, but the jury returned a verdict finding her guilty as charged. From the judgment of conviction and the order denying her motion for new trial she prosecutes this appeal. There is no claim made that the evidence is insufficient to support the verdict. The grounds of appeal, as they are stated on the opening page of appellant's brief, are, improper interrogation of appellant by the trial court and the district attorney, and the giving of erroneous instructions to the jury.

The victim of the theft was an employee of the San Francisco board of works. The crime was committed on May 12, 1941, and De Matei fixed the time of its commission at “around 20 minutes after 9” in the evening. He was walking along the sidewalk on his way home when a sedan occupied by two women drove up along side of him and stopped. One of the occupants of the car, a colored woman afterwards identified by De Matei as the appellant, asked if he knew a man living thereabouts named Tony who played an accordion. He replied he did not, whereupon she got out of the car, approached De Matei, and looking at the car said, “Have I got a flat tire?” Thus attracting De Matei's attention, she thrust her hand into the back pocket of his pants and extracted therefrom his wallet containing $12 in currency. Realizing what had happened, De Matei called out, “Give me that wallet,” whereupon she tossed the wallet to her companion in the car, saying, “Put it away, ditch it.” She then got back into the car, and as the car dashed away it ran into another car; but the sedan immediately backed away and continued in its flight. A day or two later at the city prison De Matei positively identified appellant as the woman who had stolen his wallet, and he positively identified her again at the trial. De Matei was not a user of intoxicants, so it cannot be said that his observation of the appellant at the time his wallet was stolen was confused by indulgence in liquor.

Other evidence was introduced by the prosecution from which it may reasonably be inferred that the sedan which was used in committing the crime belonged to a man named Allen who lived in an apartment in the same house in which appellant and her husband lived, and who at the time of the trial was on probation after having been convicted in the federal court of forgery.

The evidence introduced by appellant in support of her alibi consisted of her own testimony and that given by a witness named Gilroy. Appellant claimed that she was home during the entire evening of May 12, 1941, and Gilroy gave testimony to the effect that he called at appellant's home that night between 9 and 9:30, and that appellant talked with him from a widow upstairs. Since no contention has been made that the verdict is wanting in evidentiary support, it becomes unnecessary to dwell upon the evidence more than to say that there were certain contradictions and weaknesses in the testimony given by appellant and Gilroy to justify the jury in rejecting the testimony of both. On the other hand, assuming that the jury believed that Gilroy did see and talk to appellant at her home that night, it might well have concluded from the circumstances shown by the evidence that he arrived there just after appellant had returned from the commission of the offense.

During the cross–examination of appellant it was disclosed that she had been theretofore arrested in San Francisco, Portland, and Salt Lake City on certain charges of immoral conduct, and toward the close of her cross–examination she admitted in response to questions propounded by the court that previously she had been brought before that same court on a charge of grand theft––stealing a wallet––and had been released on probation after serving a year in the county jail. Appellant contends that the asking of the questions which brought out these answers constituted prejudicial error.

The rule is, however, that “When a defendant in a criminal case makes no objection at the trial of the charge against him to any testimony offered against him, it is to be presumed that, if such testimony is legally improper and objectionable, he waives any objection he might have interposed thereto. He certainly cannot make his objection for the first time on appeal.” People v. Thourwald, 46 Cal.App. 261, 270, 189 P. 124, 128. Furthermore, “When it is apparent from the question that the answer will contain evidence necessarily inadmissible, then a motion to strike out comes too late, unless preceded by an objection to the question * * *.” People v. Williams, 127 Cal. 212, 216, 59 P. 581, 583; People v. Scalamiero, 143 Cal. 343, 76 P. 1098. Here the cross–examination revealing the matters about which complaint is now made was allowed to go on without objection or protest; and finally an objection was made to a question asked by the district attorney, but the objection was interposed after the witness had already answered it, and even then no motion was made to strike it out. Later on and after appellant had already stated that she had been arrested in Salt Lake City and in Portland and San Francisco, objection was made to the question: “What were you arrested in Salt Lake City for?” The answer was not responsive, and the question was asked again, but no objection was made thereto. Eventually the court asked appellant several questions which developed the fact that previously she had been before that court on similar charges, and had been sentenced to the county jail. But no objections whatever were made to any of those questions until the cross–examination had been finished. Thereupon counsel for appellant stated: “I think, if the Court please, I am going to object to this question by your Honor, and ask it be stricken out.” From the foregoing it is apparent that since no timely objection was made to any of the questions now complained of, the objections thereto cannot be made for the first time on appeal.

Nor may appellant now urge that the asking of the questions constituted misconduct on the part of the district attorney or the court because no assignment of misconduct was made at any time during the trial. Aside from the points above discussed, it would appear that the asking of the questions was not beyond the scope of legitimate cross–examination because by appellant's direct examination it was made to appear that during the nine years she had been married she had been living with her husband and was supported by him, which manifestly was not the truth. Therefore, by her own testimony, appellant opened the door to the cross–examination about which she now complains. People v. Hoffman, 199 Cal. 155, 248 P. 504; People v. Masolini, 107 Cal.App. 192, 290 P. 77.

Among the instructions given by the court was the following: “The effect of an alibi, when established, is like that of any other conclusive fact presented in a case, showing as it does that the party asserting it could not have been at the scene of the crime, and therefore could not have participated in it, which is, when credited, a defense of the most conclusive and satisfactory character. The fact, however, which experience has shown, that an alibi as a defense is capable of being and has been occasionally successfully fabricated, that even when wholly false its detection may be a matter of very great difficulty, and that the temptation to resort to this as a spurious defense may be very great especially in cases of importance,––these are considerations attendant upon this defense which call for some special suggestions upon the part of the Court. Hence I respectfully suggest to you ladies and gentlemen of the jury that while you are not to hesitate at giving this as a defense full weight, that conclusive effect to which, when established, it is justly entitled, either as entirely satisfying you of the innocence of the defendant, or as creating a reasonable doubt which entitles the defendant to an acquittal, still you are to scrutinize the testimony offered in support of an alibi with care, that you may be satisfied that a fabricated defense is not being imposed upon you.”

Appellant contends that the giving of the instruction constitutes reversible error. The position taken by respondent, as stated in the attorney general's brief, is that “The instruction given by the court on the subject of the defense alibi under the circumstances was not improper.” With respect to the propriety of the instruction itself, the reports disclose that the particular form of instruction here given has been challenged in twelve cases, and while the courts have criticized the instruction and advised against giving the same, in each of those twelve cases it has been held that the giving thereof did not justify a reversal of the judgment, and accordingly the judgment of conviction in each case has been affirmed. Those cases are: People v. Lee Gam, 69 Cal. 552, 11 P. 183; People v. Levine, 85 Cal. 39, 22 P. 969, 24 P. 631; People v. Lattimore, 86 Cal. 403 24 P. 1091; People v. Winters, 125 Cal 325, 57 P. 1067; People v. Wing, 31 Cal.App. 785, 161 P. 759; People v. Purio, 49 Cal.App. 685, 194 P. 74; People v. Barr, 55 Cal.App. 321, 203 P. 827; People v. Smith, 189 Cal. 31, 207 P. 518; People v. Hammer, 74 Cal.App. 345, 240 P. 56; People v. Arnold, 199 Cal. 471, 250 P. 168; People v. Johnson, 203 Cal. 153, 263 P. 524; People v. Gist, 28 Cal.App.2d 287, 82 P.2d 501.

On the other hand, there are five cases involving instructions on alibi as a defense in which the convictions were reversed; but an analysis of those five cases shows the following: In People v. Roberts, 122 Cal. 377, 55 P. 137, and People v. Garratt, 93 Cal.App. 77, 268 P. 1071, the form of the instruction given was different from the one here given, and in People v. Nichols, 69 Cal.App. 214, 230 P. 997, the court gave only a portion of the instruction here given. In each of the remaining two cases, People v. Girotti, 67 Cal.App. 399, 227 P. 936, and People v. Thorp, 104 Cal.App. 379, 285 P. 916, the instructions given were substantially the same as the one here given, but the real ground of the reversal in each case was based on certain erroneous rulings on the admissibility of evidence. Because of the foregoing differentiating reasons we are of the opinion that the above group of five cases cannot be held to be controlling over the group of twelve cases above cited which dealt with the form of instruction here given; and especially in view of the affirmance in People v. Arnold, supra, wherein many of the previous cases are reviewed.

The decision in People v. Girotti, supra, one of the cases wherein a reversal was ordered, in support of the reversal cites and quotes from five other cases, and that particular portion of the decision is quoted in People v. Nichols, supra, also reversed. But it is to be noted that in four out of the five cases so cited (the Lee Gam, Levine, Lattimore, and Smith cases), the judgments of conviction were affirmed. In the fifth case cited, People v. Roberts, supra, a reversal was ordered, but as already pointed out the instruction there was essentially different from the form of the one here given. It contained language which the court held conveyed the meaning that the burden was on the defendant to prove his innocence; and that he was required to establish his alibi defense by a preponderance of evidence, which of course is not the law.

In the present case the court gave additional instructions which obviously overcame the objectionable features pointed out in the instruction given in the Roberts case. Among the instructions so given in the present case were these: “This defendant pleaded not guilty to the charge. Hence it is incumbent in this case, as in all cases, for the State of California to establish the guilt of the defendant to a moral certainty and beyond a reasonable doubt.” “In this particular case the state contends that the defendant committed the offense in person. She had to be there to take the purse of Mr. De Matei. The defendant Mrs. Costello contends that at the time of the offense, at the time the offense was committed, if it was committed, she was at some other place, that is to say she was at her home. Naturally a defendant could not be in two places at the same time, and in this contradiction of the witnesses the jury must determine for themselves where lies the truth. In so judging you will take into consideration the appearance and the apparent candor and the fairness of the respective witnesses, the probability of their statements, its coincidence with other facts or features of the case which you may deem have been established, and, generally, those rules of ordinary experience and general observation by which intelligent people decide as to controverted propositions of fact.” And then after giving the instruction here challenged, the court gave these additional instructions: “Every defendant in a criminal action is presumed to be innocent until the contrary is proven, and in case of a reasonable doubt whether guilt has been satisfactorily shown, the defendant is entitled to an acquittal.” The court then defined the term reasonable doubt, which was followed by this instruction: “You are not bound to decide in conformity with the testimony of any witness or number of witnesses who do not satisfy your minds, as against other testimony or other witnesses who do satisfy your minds. In other words, it is the quality of the evidence, rather than the quantity, that should control you, provided, of course, it satisfies you of its truthfulness.” And further on it charged the jury as follows: “* * * you are, of course, the sole judges of the evidence in this case * * *. And a defendant's testimony should not be rejected merely because such person is the defendant. The testimony of a defendant is to be weighed in the same manner and measured by the same standard as that of any other witness in the case.”

In that state of the record, there can be no more legal justification for the reversal of the conviction herein than there was in the group of twelve cases above cited, in which the convictions were affirmed. Nor can it be held that the refusal to give appellant's proposed instructions 4 and 5 warrant a reversal. While they related to the defense of alibi, they dealt more particularly with the doctrines of reasonable doubt and presumption of innocence, and as will be seen, both of those doctrines were covered in other instructions.

In any event, the basic ground of the criticism running through the decisions against the instruction here given apparently is that the giving of such an instruction contravened the long established rule prevailing in this state that a trial court may not comment on the facts; and it is to be noted that all of the cases above cited (except the Gist case) wherein such criticism was indulged were decided prior to the adoption of the 1934 amendment to section 19 of article VI of the state Constitution, which abolished that rule and expressly conferred upon trial courts the right to comment on the evidence. It seems clear, therefore, that the criticism theretofore directed by the reviewing courts against the propriety of such construction can no longer be considered a ground for reversal.

That portion of the 1934 amendment here pertinent declares: “The court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case.” (Italics ours.) And in conformity with said amendment the legislature amended sections 1093 and 1127 of the Penal Code accordingly. The code amendments are substantially the same, and are as follows: “In charging the jury the court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case and in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court.” In the case of People v. Ottey, 5 Cal.2d 714, 56 P.2d 193, 200, (a death case) is to be found a most instructive interpretation of the scope of said constitutional amendment. On account of the length of the opinion no attempt to quote its essential portions will be made here; but from an examination thereof it will be seen that the power thus conferred on the trial court by the amendment is extremely broad. It permits the court to comment not only on the testimony of a witness, but upon the evidence generally and the weight thereof as it appears to the court. It may analyze and dissect it, comment on its bearing and weight, as it appears to the court. In so commenting it may single out the defendant's testimony for special comment. Even “Expressions of the court's opinion as to the guilt or innocence of the defendant have been held to be within the scope of ‘comment,’ so long as the province of the jury as defined by the constitutional section is not invaded.” (Citing many cases.) However, in this regard the court goes on to say that such power “should be exercised cautiously and only in exceptional cases.” A later case holding to the same effect is People v. Gosden, 6 Cal.2d 14, 56 P.2d 211, 218, a death case. In that case the trial court in its instructions stated that to its mind certain matters had not been “satisfactorily explained”; that he, the judge, saw no reason for disbelieving certain witnesses for the prosecution. It also calls attention to certain medical testimony and then gave “its opinion as to the weight of this evidence.” In a still later case, People v. Eudy, 12 Cal.2d 41, 82 P.2d 359 (also a death case) the trial court in commenting on the evidence told the jury that “an ingenious counterfeit of mental infirmity should never furnish immunity to guilt,” but the defense of insanity should be weighed fully, fairly and justly.

Stated broadly, the trial court may under the constitutional provision, comment upon the evidence as a whole or upon the testimony or credibility of any witness providing its comment is temperately and fairly made and is not argumentative or contentious to a degree which makes it characteristically an act of advocacy. Its comment is not confined to a colorless recital, by way of summing up the facts. Such a conclusion would destroy and render ineffectual the very purpose of the constitutional amendment. It is impossible to set down a hard and fast rule, each case must necessarily turn upon its own peculiar circumstances. Trial courts should, of course, be cautious in their exercise of this power with a view to protecting the rights of defendants. People v. De Moss, 4 Cal.2d 469, 50 P.2d 1031. “In other words,” said the court in People v. Ottey, supra, “it was the intention to place in the trial judge's hands more power in the trial of jury cases and make him a real factor in the administration of justice in such cases, instead of being in the position of a mere referee or automaton as to the ascertainment of the facts.” Obviously, in view of the present state of the law, the giving of the instruction here challenged can no longer serve as ground for reversal.

Allen was called as a witness by the prosecution, and by way of preliminary questions the district attorney brought out the fact that Allen had been previously convicted of a felony; subsequently, and obviously to the surprise of the district attorney, Allen gave equivocal answers concerning the use of his car by appellant; whereupon the district attorney subjected him to a cross–examination on those matters. Appellant complains that the asking of the questions was error. There is utterly no merit in the point; first, because no objection whatever was made by the appellant to the asking of any of those questions; furthermore, Allen was the prosecution's witness, so that if as such he was discredited by the asking of the questions it operated only to the prejudice of the prosecution's case.

The remaining instruction complained of was a mere commonplace instruction, and in view of the facts of the case the trial court was justified in giving it. Nor is there any merit whatever in appellant's final point that the trial judge was disqualified from trying the case. It appears from the record that the circumstances relied upon as showing disqualification were fully known to appellant before the trial began; and the code sections set up a complete procedure which may be followed where it is claimed disqualification exists. Here no suggestion was ever made, at the opening or during the course of the trial, nor at the time of imposing sentence, that the trial judge was disqualified. Complaints of this kind cannot be made for the first time on appeal.

The judgment and order appealed from are affirmed.

I dissent. As pointed out in the majority opinion, the sole person to identify the defendant or who placed her near the place of the crime, was the prosecuting witness. The prosecution failed to prove that the car possessed by Allen was the car used by the thief, and failed to connect defendant with Allen's car on the night in question. Of course, the evidence of the prosecuting witness is sufficient to sustain the judgment, and appellant makes no contention to the contrary. The state of the record, however, is important, demonstrating as it does that this is not a case where the evidence is conclusive as to defendant's guilt. Her defense was an alibi, which defense she supported not only by her own testimony, but by that of the witness Gilroy. The majority opinion refers to “certain contradictions and weaknesses in the testimony given by appellant and Gilroy.” I find no such contradictions or weaknesses in Gilroy's testimony. He told a coherent, straightforward story, and was not impeached in any way. As presented to the jury, the case was one where the jury was required to determine whether the prosecuting witness should be believed, or whether the testimony of defendant and her witness Gilroy cast a reasonable doubt on that testimony. It is obvious, that, in view of the weakness of the prosecution's case, any material error in the instructions could not help but be prejudicial to defendant.

The trial court gave but one instruction on the defense of alibi. That instruction is quoted in full in the majority opinion, and need not be repeated here. The trial court refused to give two other instructions offered by defendant. They read as follows:

“You are instructed if the evidence here produced is sufficient in your minds to create a reasonable doubt whether defendant was present at the place where the crime charged is alleged to have been committed, or was at some other place where she could not have committed it, then you must give the defendant the benefit of such doubt and acquit her.

“The Court instructs the Jury that if you do not believe from the evidence that the defendant was present at the time and place when and where the offense, if any, was committed but that she was at some other and different place or places, or if you have a reasonable doubt as whether this is the case, you will find her not guilty. The defendant is presumed to be innocent until her guilt is established by legal evidence beyond a reasonable doubt, and if you have a reasonable doubt of her guilt you will acquit her.”

The instruction given by the trial court and quoted in the majority opinion has been the subject of frequent discussion in many cases. There is no case in California that has ever held that the giving of that instruction, or any instruction substantially similar, was proper. Without exception the courts have held that the giving of such instruction was error, but have differed on whether, under the facts of the particular case, such error was prejudicial. In addition to the seventeen cases cited in the majority opinion, see, also, annotations in 14 A.L.R. 1426, and 67 A.L.R. 122, on the subject “Instructions disparaging defense of alibi,” where cases from many states are collected and discussed.

The reasons why such instruction is erroneous are obvious. The instruction refers to alibi evidence as a “defense”, which implies that it must be proved by defendant by a preponderance of the evidence. It states that alibi evidence should be scrutinized otherwise and differently from other evidence, which is not the law. The jury is told that this defense must be established to their satisfaction. That means it must be established by a preponderance of the evidence. That is not the law. No such burden is cast on the defendant. The instruction obviously casts the burden of proof on this issue on defendant.

In People v. Girotti, 67 Cal.App. 399, 227 P. 936, the same instruction here challenged was given. The court held that this constituted prejudicial error and reversed the judgment. After first quoting the instruction the court stated (67 Cal.App. page 403, 227 P. page 937): “In People v. Levine, 85 Cal. 39, 42 [22 P. 969], 24 P. [631], 632, it is said: ‘The defense of alibi is, in our judgment, not one requiring that the evidence given in support of it should be scrutinized otherwise or differently from that given in support of any other issue in a cause.’ In People v. Lattimore, 86 Cal. 403, 405, 24 P. 1091, 1092, it is said: ‘If trial courts will cease to give this particular form of instruction, the ends of justice will be equally as well subserved, and the administration of the laws less embarrassed.’ In People v. Roberts, 122 Cal. 377, 378, 55 P. 137, 138, the trial court had instructed the jury that, ‘when satisfactorily proven,’ an alibi is a good defense. The Supreme Court said: ‘When a jury is told that any particular fact must be established to their satisfaction, such statement can only mean that such fact must be established at least by a preponderance of evidence; yet there is no such burden cast upon a defendant charged with a crime, except in certain particular instances which are in no sense presented here. * * * It is thus apparent that the alibi, to be efficacious to a defendant, need not be “satisfactorily proven,” and need not be established to the satisfaction of the jury.’ In People v. Smith, 189 Cal. 31, 37, 207 P. 518, 521, an instruction substantially identical with that in the instant case was under consideration. The court said: ‘In People v. Roberts, 122 Cal. 377, 55 P. 137, a similar instruction was held to be reversible error, upon the grounds that they constitute a charge upon the weight of the evidence, and that they cast the burden of proof upon the defendant.’ If the jurors are to ‘be satisfied that a fabricated defense is not being imposed upon’ them, the burden is cast upon the defendant to satisfy them that such defense is not fabricated; that is, that it is true. The instruction not only casts an unwarranted burden upon the defendant, but casts suspicion upon his defense and the evidence produced in support thereof. It is essentially an argument against the defendant, legitimate if made by the district attorney, but an invasion of the province of the jury when made by the court. The giving of the instruction has been condoned in a number of cases where the rights of the defendants did not appear to have been prejudiced thereby. Where a defendant presents substantial proof of an alibi, the jury should be left free to pass upon the weight thereof, under the rules of evidence applicable to other questions of fact; and, if unsubstantial proof is produced, the jury may be trusted to reject it. The instruction should never be given.”

In People v. Nichols, 69 Cal.App. 214, 230 P. 997, it was held that the giving of a substantially similar instruction was reversible and prejudicial error, and that such error could not be cured by the provisions of article VI, section 4 1/2 of the Constitution. The court stated (69 Cal.App. page 223, 230 P. page 1000): In support of the giving of the above, the people rely upon the case of People v. Barr, 55 Cal.App. 321, 203 P. 827, where a similar instruction was given, and was held not to constitute reversible error. In that case, however, other cases holding the giving of such instruction to be erroneous appear not to have been considered. It is also pointed out that such an instruction should not be given. Under the provisions of section 4 1/2 of article 6 of the state Constitution, whether the giving of an erroneous instruction does or does not constitute reversible error depends, in large measure, upon the conclusion of the Court of Appeal as to whether there has or has not been a miscarriage of justice by reason thereof. If it appears to the appellate court that the conclusion of the jury would have been the same with or without the instruction, then and in that case it cannot be said that a miscarriage of justice has resulted, but, where there is a strong conflict in the evidence, and the determination of the cause depends upon the credibility to be given to certain witnesses by the jury, and the court gives an erroneous instruction which tends to disparage such witnesses in the estimation of the jury, then and in that case we think that the people are not entitled to rely upon the provisions of the constitutional provision referred to, but that the defendant has not, under such circumstances, been given a fair and impartial trial to which all persons accused of crime are entitled.”

In People v. Thorp, 104 Cal.App. 379, 285 P. 916, and People v. Garrett, 93 Cal.App. 77, 268 P. 1071, judgments were reversed where substantially similar instructions were given. The last case is particularly instructive not only because the erroneous instruction was given, and held to be prejudical, but also because a proper instruction on the question, substantially similar to those offered by defendant in the instant case, was offered and was refused. As in the instant case, the erroneous instruction was the only one given on the subject. The court stated (93 Cal.App. page 79, 268 P. page 1072):

“The giving of this instruction is also assigned as error. It is true that in a number of cases where an instruction similar to the one in question was given convictions were upheld. However, in no decision in this state to which our attention has been called has this form of instruction been given unqualified approval. On the contrary, it has repeatedly been the subject of adverse criticism. The reference in it to evidence of an alibi as a defense is objectionable. People v. Roberts, 122 Cal. 377, 55 P. 137; People v. Winters, supra [125 Cal. 325, 57 P. 1067]. There is no reason why evidence tending to show that at the time of the commission of the offense the defendant was at another place than that at which it was committed so that he could not have been a party thereto should be scrutinized differently from any other proof. As was said in People v. Lattimore, 86 Cal. 403, 24 P. 1091 * * * ‘But in this case, as in the Levine case, the charge of the court, taken as a whole, was so full and fair to the defendant that we cannot conceive that any injury resulted to the defendant from this unnecessary instruction in regard to the scrutinizing of the evidence given in support of the defense of alibi.’ In this and other decisions, where it has been said that it is undesirable to give instructions of this nature, the instructions, taken as a whole, have been full and fair and have made the law clear as to the particular issues tendered by the evidence of an alibi; but in the instant case this is not true. No other instruction was given on the subject and the one first above quoted containing a correct statement of the law was refused. The giving of a general instruction to the effect that the jury must be convinced of the guilt of the defendant beyond a reasonable doubt to convict was not sufficient to remove the prejudice to the defendant necessarily resulting from the errors above specified. People v. Visconti, supra [31 Cal.App. 169, 160 P. 410, 411].

“The record presented does not warrant upholding the judgment appealed from under article 6, § 4 1/2, of the Constitution. Without reciting the evidence in detail, it is sufficient to say that in addition to the testimony in support of the defendant's claim of alibi, a direct conflict was presented upon all other material points. It is not only possible, but quite probable, that had the members of the jury been informed that if the evidence tending to prove an alibi was sufficient to raise a reasonable doubt in their minds as to the guilt of the defendant they must acquit, the result might have been different and the defendant found not guilty.”

It is true that in several cases the courts have held that the giving of the challenged instruction was error but, under the facts, was not prejudicial. Thus in People v. Hammer, 74 Cal.App. 345, 240 P. 56, the error was held not prejudicial because the evidence given by defendant demonstrated his guilt. In People v. Arnold, 199 Cal. 471, 250 P. 168, cited by respondent, the court held that the error was not prejudicial because nine proper instructions on this phase of the law were given. The court concluded its discussion with this comment (199 Cal. page 504, 250 P. page 182): “Nevertheless, we again call to the attention of district attorneys who continue to offer, and to trial courts which continue to give them, that in so doing they assume an unnecessary risk.” In People v. Smith, 189 Cal. 31, 207 P. 518, and People v. Johnson, 203 Cal. 153, 263 P. 524, the error was held not to be prejudicial because in those cases there was no evidence of alibi. All of the other cases cited in the majority opinion fall within one of these groups.

Each case must turn on its own facts. In every case where the erroneous instruction alone was given on the defense of alibi, and no proper instruction was given, and where the defendants offered substantial evidence on this defense, the giving of the instruction has been held to be reversible and prejudicial error. That is exactly the problem here presented. The defendant offered not only her own testimony but that of a corroborating witness, to substantiate her claim of innocence. The only testimony (legally sufficient it is true to sustain the verdict) offered by the prosecution was that of the prosecuting witness. He could not identify the automobile and no other witness connected this defendant with the offense. Under such circumstances, to attack by an erroneous instruction the sole defense of defendant, to belittle and disparage that defense, to tell the jury that such defense must be proved to their “satisfaction,” (i. e., by a preponderance of the evidence) was error of a most serious and prejudicial nature. Such admitted error cannot be cured by the provisions of article VI, section 4 1/2 of the Constitution.

The majority opinion quotes several general instructions that were given, and holds that these instructions overcame the error in the alibi instruction. No authority is or can be cited for that proposition. In every case where the erroneous instruction was held to be prejudicial, it is safe to assume that general instructions similar to those quoted in the majority opinion were given. It is not sound law to hold that a general instruction can cure the error in a specific instruction. If that were the law there would seldom, if ever, be a case where any instruction could be held to be prejudicial.

The majority opinion seeks to uphold the instruction as a fair comment on the evidence under article VI, section 19, of the Constitution. The point is clearly without merit, and was not urged in the respondent's brief. The erroneous instruction did not purport to be a comment on the evidence, but a statement of the law. The trial judge correctly instructed that the jury was “bound to accept the law as given by the Court.” When the trial judge purports to instruct on the law the jury must accept his statement thereof. But the jury alone determines the facts. When the trial judge comments on the evidence, under the authority now conferred upon him, his comment is not binding on the jury. He must, under the very constitutional provision conferring the power, “inform the jury in all cases that the jurors are the exclusive judges of all questions of fact.” It follows, of course, that when the alleged comment appears as an integral part of the instructions it cannot be justified as a mere comment on the evidence.

The complete answer to this point is that the instruction was not a comment on the evidence, but a misstatement of law. It went far beyond the realm of comment, and erroneously stated the law. It told the jury to scrutinize alibi evidence differently from other evidence. It told the jury that this defense must be established to their “satisfaction,” which implies that it must be proved by a preponderance of the evidence. The instruction casts the burden of proof on defendant. In these various respects the instruction misstates the law. See People v. Hammer, supra; People v. Ross, 89 Cal.App. 132, 264 P. 314.

The majority opinion states that “the basic ground of the criticism running through the decisions against the instruction here given apparently is that the giving of such an instruction contravened the long established rule prevailing in this state that a trial court may not comment on the facts.” While it is true that that is one of the criticisms of the instruction given by the courts, it is not the “basic ground” of the criticism. The basic fallacy in the instruction is that the jury is told that alibi evidence must be scrutinized otherwise and differently from other evidence. The jury is told that this defense must be established to its “satisfaction.” That means it must be established by a preponderance of the evidence. The instruction casts the burden of proof on this issue on the defendant. That this is the “basic ground” of the decisions is amply demonstrated by the quotations set forth above.

I am also of the opinion that the questions asked of the defendant by the prosecutor and by the trial judge, which brought out that she had been arrested but not convicted on several prior occasions, constituted error. I am of the opinion that counsel for defendant raised sufficient objection to the questions.

For the foregoing reasons I believe the judgment and order appealed from should be reversed and the cause remanded for a new trial.

KNIGHT, Justice.

WARD, J., concurred.