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District Court of Appeal, Second District, Division 2, California.

PEOPLE v. DAIL et al.

Cr. 3181

Decided: March 29, 1941

Otto Christensen, of Los Angeles, for appellants Harry W. Dail and Dexter L. Lewis. Paul Blackwood, Frank Sturgis, and Frank Desimone, all of Los Angeles, for appellants Dewey Copelan and David J. Belanger. Earl Warren, Atty. Gen., Frank Richards and Eugene M. Elson, Deputy Attys. Gen., and Buron Fitts, Dist. Atty., and John Barnes, Deputy Dist. Atty., both of Los Angeles, for respondent.

These are appeals by (1) defendants Harry W. Dail and Dexter L. Lewis from judgments of guilty of conspiracy to violate sections 245 and 518 of the Penal Code; and (2) defendants David Joseph Belanger and Dewey Copelan from two judgments of guilty of simple assault after trial before a jury.

There are also appeals from the orders denying their respective motions for a new trial.

So far as material to the question which we are called upon to decide, the facts are:

Defendants Dail and Lewis, together with two other men named McKnight and Burruss, were indicted on seven separate counts. One count charged them with conspiracy to violate sections 245 and 518 of the Penal Code, five counts charged them with assault by means of force likely to produce great bodily injury, and one count charged them with extortion.

The evidence upon which the People rely to sustain the conviction was highly conflicting and was predicated principally upon the testimony of the witnesses McKnight and Burruss, who were accomplices, co-conspirators and co-indictees of the convicted defendants. At the commencement of the trial upon motion of the district attorney, pursuant to section 1099 of the Penal Code, the indictment was dismissed as to defendant Burruss. During the course of the trial it came to the attention of defendants' counsel that defendant McKnight intended to request permission to withdraw his plea of not guilty to count I of the indictment for the purpose of entering a new and different plea, to wit, that of guilty to count I of the indictment; whereupon defendants' counsel requested that this proceeding be taken out of the presence of the jury. This request was denied, and the proceedings which occurred at the time were as follows:

“The Court: Let me make this statement: Suppose, for the purpose of the discussion, that the jury is excused. Mr. McKnight entered a plea of guilty and the jury comes back. I will have to tell them that we are now confronted with only nine defendants, the matter having been disposed of as to the 10th defendant. Perhaps I won't tell them what happened, but it will leave a question mark in their minds—

“Mr. Christensen: That is all right.

“The Court:—for speculation, and undoubtedly, I presume, but I don't know—

“Mr. Barnes: I certainly am not going to leave it in a position where it can be inferred that we did not have the gentleman as a conspirator. There is only one possible inference from the fact.

“Mr. Christensen: Well, there may be an inference from the fact that you have dismissed and contemplate using him as a witness and maybe you do contemplate using him as a witness.

“Mr. Barnes: In the event that that situation took place with that certain witness, it will unquestionably appear that he has entered a plea of guilty.

“The Court: It will have to appear, because he will have to be questioned as to his rights, and so forth.

“Mr. Christensen: Well, I don't know that counsel could even question upon that proposition, because it is not evidence in this case. He may testify as to facts and things that may be within his knowledge, and on that we may cross-examine. We would have the right, of course, to show interest, whether it was on impeachment, or otherwise. It is a matter of our own election.

“Mr. Barnes: We don't have to await the assault of the defendant in order to develop that fact.

“Mr. Christensen: I don't think you have any right to develop the fact of what somebody else will do and permit that to be an implication against the other individuals. I don't think there is any such legal right *

“The Court: I quite agree with you that the court has a large, wide discretion, but at the same time the jury must be taken into consideration, and now it is our duty, as a court, and you gentlemen as officers of the court, to let the jury know as much as possible about what is going on, what I mean is about what the case is. Now it is not your duty to confound a jury or to leave a question mark in their mind. It is your duty to present the facts so that they may come to a logical conclusion as to the charges contained in the indictment. Now if this is taken absence, if this is done in their absence, and there is a stipulation as to what happened, did the People dismiss as against this man? Or what happened in the case? We are not apprising the jury of everything that they should know.

“Mr. Christensen: They are not entitled to that, if the court please, any more than they are entitled to offer in evidence the admissions or confessions of another individual as against a particular defendant. It is just a confession on the other fellow's part; it is evidence only against him and not evidence against anyone else *

“Mr. DiVecchio: If the plea was not taken in the presence of the jury I think it would become the duty of the court to tell them *

“Mr. Christensen: On the announcement and statement of the district attorney to the effect that he proposes to make a motion to dismiss a number of counts against the defendant McKnight and take his plea as to one count thereof, we move the court that such a motion and application upon the part of the district attorney be determined and disposed of by the court in the absence of the trial jury in this case *

“The Court: As I understand it there is a motion, gentlemen, that the proceedings as to the defendant McKnight be conducted outside of the presence of the jury *

“Mr. Christensen: * let the record show that counsel for defendant McKnight are also present.

“The Court: The motion is denied.”

Thereupon the following occurred in open court in the presence of the jury.

“* Mr. Warner: At this time, Your Honor, the defendant Paul McKnight, asks leave of this court to withdraw the plea of not guilty heretofore, entered to the first count of this indictment, for the purpose of entering a new and different plea.

“The Court: Is that your desire, Mr. McKnight?

“Defendant McKnight: Yes, sir.

“The Court: Permission will be granted to withdraw the plea of not guilty heretofore entered for the purpose of entering a new and different plea. Have you had advice of counsel in this matter, Mr. McKnight?

“Defendant McKnight: I have, Your Honor.

“The Court: You have discussed the matter thoroughly with your counsel?

“Defendant McKnight: Yes, sir.

“The Court: Has anybody made any promises to you of any nature as to what the punishment might be if you should take this action?

“Defendant McKnight: No, sir.

“The Court: You understand that nobody is authorized to make any such promises?

“Defendant McKnight: Yes, sir.

“The Court: And if any promises of any kind have been made, they are not binding upon this or any other court?

“Defendant McKnight: Yes, sir.

“The Court: And you are doing this freely and voluntarily, of your own will, after having had the advice of counsel, is that correct?

“Defendant McKnight: It is.

“The Court: You may rearraign the defendant on the first count of the indictment, Mr. Barnes.

“Mr. Barnes: Will you waive the complete reading of the first count, Mr. Warner?

“Mr. Warner: So stipulated.

“The Court: Mr. McKnight, you waive the reading personally of the first count of the indictment?

“Defendant McKnight: Yes, sir.

“Mr. Barnes: Mr. McKnight, the court has granted you permission to withdraw your plea of not guilty heretofore entered to count I of this indictment. To this count, how do you now plead, guilty or not guilty?

“Defendant McKnight: Guilty.

“Mr. Barnes: Now, Your Honor, in view of the defendant's plea, we move at this time, in the interests of justice, and pursuant to section 1099 of the Penal Code, to dismiss the remaining six counts in the indictment, that is, counts II to VII, inclusive, being all of the remaining counts, for the purpose of using Mr. McKnight as a witness for the state.

“The Court: The motion of the district attorney under section 1099 of the Penal Code to dismiss counts II to VII, inclusive, in the indictment will be granted *”

At the close of the trial the trial judge, after commenting upon the testimony of the accomplice-witnesses McKnight and Burruss, instructed the jury thus:

“And in this connection, ladies and gentlemen, the credibility of all of these witnesses is to be judged by you by the same standard as that of any other witness. The fact that the witness McKnight has entered a plea of guilty to one count of the indictment or that all charges against the witness Burruss have been dismissed by the Court on motion of the District Attorney, standing alone, should not discredit these witnesses or their testimony, unless, in addition thereto, there is something about their testimony or their manner of testifying or their interest in the case, or their bias or prejudice against one or any or all of the defendants which casts suspicion upon it in your minds.

“In the Court's opinion the testimony of the witnesses McKnight and Burruss was given in a calm and dispassionate manner; their answers were well considered, and on the face of their testimony and in their demeanor upon the witness stand, there was no evidence of animosity.”

Defendants rely for reversal of the judgments, among others, on this proposition:

It was prejudicial error for the trial judge in the instructions set forth, supra, to instruct the jury that (a) the credibility of the witnesses who were accomplices of defendants was to be judged by the same standard as that of any other witness, and (b) standing alone, the facts that the accomplice-witness McKnight had entered a plea of guilty to one count of the indictment and that the indictment had been dismissed against the accomplice-witness Burruss, should not discredit such witnesses or their testimony.

The foregoing proposition is tenable and is supported by the following established principles of law:

(1) The testimony of an accomplice is not to be judged by the same standard as the testimony of any other witness, but such evidence is to be acted upon with great caution and is subject to grave suspicion (People v. Coffey, 161 Cal. 433, 438, 119 P. 901, 39 L.R.A.,N.S., 704; People v. Haack, 86 Cal.App. 390, 400, 260 P. 913; People v. Swoape, 75 Cal.App. 404, 414, 242 P. 1067; People v. Dinenza, 356 Ill. 118, 190 N.E. 298; Crawford v. United States, 212 U.S. 183, 203, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; People v. Braun, 31 Cal.App.2d 593, 603, 88 P.2d 728; People v. Walther, 27 Cal.App.2d 583, 590, 81 P.2d 452).

In Crawford v. United States, supra [212 U.S. 183, 29 S.Ct. 268, 53 L.Ed. 465, 15 Ann.Cas. 392], the Supreme Court of the United States thus states the rule:

“The defendant was peculiarly situated in this case, and great care was necessary to prevent injustice to him. * Without his [Lorenz] evidence it would have been difficult, if not impossible, to convict the defendant. * But the evidence of a witness, situated as was Lorenz, is not to be taken as that of an ordinary witness of good character in a case, whose testimony in generally and prima facie supposed to be correct. On the contrary, the evidence of such a witness ought to be received with suspicion, and with the very greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses. *

“It is hardly possible to imagine a case where greater care was necessary in regard to the exclusion of proper and admissible evidence than in the case before us.” (Italics added.)

In People v. Haack, supra, 86 Cal.App. at page 400, 260 P. at page 918, Mr. Justice Plummer states the rule in these words:

“The instruction tells the jury that the uncorroborated testimony of an accomplice will not sustain a verdict, but the jury is immediately advised that, if the testimony of an accomplice carries conviction, and if the jury be convinced of its truth, the jury shall give to it the same effect as would be allowed to a witness who is in no respect implicated in the offense. This is not correct. No matter if the jury be convinced of the truth of the testimony of an accomplice, such testimony cannot be given the same effect as may be given the testimony of one who is not implicated in an offense, unless such testimony be corroborated by evidence tending to connect the defendant with the crime charged, separate and apart from the testimony of an accomplice. In any view that may be taken of this instruction, it leads to a confused state of thought, and does not place before the jury a clear or accurate statement of their province when acting upon the testimony of an accomplice.”

In People v. Dinenza, supra, Mr. Justice Herrick, speaking for the Supreme Court of Illinois, says at page 299 of 356 Ill., at page 299 of 190 N.E.:

“The testimony of an accomplice is not to be passed upon the same as the testimony of any other witness, but the rule is that his evidence is to be acted upon with great caution and is to be subjected to grave suspicion.” (Italics added.)

(2) The fact that a witness is an accomplice or co-indictee in a criminal case bears against the credibility of his testimony. The leading authority on evidence in the United States, Professor Wigmore, thus states the rule: “Accomplices and Co-indictees in a Criminal Case. It bears against a witness' credibility that he is an accomplice in the crime charged and testifies for the prosecution; and the pendency of any indictment against the witness indicates indirectly a similar possibility of his currying favor by testifying for the state; so, too, the existence of a promise or just expectation of pardon for his share as accomplice in the crime charged.” (Wigmore on Evidence, 3d Ed. (1940) 525, sec. 967.) Note the learned author states that this rule is unquestioned (see note 1 to section 967).

Applying the foregoing rules to the facts of the instant case, it is evident that the trial judge erroneously instructed the jury, for the reasons that (1) the jury were told that credibility of an accomplice's testimony was to be judged by the same standard as that of other witnesses, and (2) the fact that an accomplice had entered a plea of guilty or that the charges against an accomplice had been dismissed was not sufficient of itself to discredit the testimony of such witness.

There can be no doubt that the giving of such erroneous instructions was prejudicial to the rights of defendants and that as a result they did not have a fair trial. Since we are unable to determine from the record that, if the questioned instructions had not been given and the jury had disbelieved the testimony of the accomplice co-indictee witnesses McKnight and Burruss, they would nevertheless have returned verdicts of guilty, section 41/212 of article VI of the Constitution of the State of California is inapplicable. (See People v. Haack, 86 Cal.App. 390, 401, 260 P. 913.)

For the foregoing reasons, the judgments are and each is reversed, and new trials are ordered.

McCOMB, Justice.

MOORE, P.J., and WOOD, J., concurred.