PEOPLE v. KIRKES

Reset A A Font size: Print

District Court of Appeal, Second District, Division 3, California.

PEOPLE v. KIRKES.*

Cr. 4655.

Decided: April 29, 1952

W. P. Butcher and Canfield & Westwick, all of Santa Barbara, for appellant. Edmund G. Brown, Atty. Gen., Frank Richards, Deputy Atty. Gen., David S. Licker, Dist. Atty. of Santa Barbara County, Santa Barbara, for respondent.

On September 21, 1950, the grand jury of Santa Barbara County returned an indictment accusing Leonard M. Kirkes of the murder of Margaret Senteney on or about August 28, 1942. In a jury trial defendant was found guilty of murder of the second degree. He moved for a new trial, which was denied, and he appeals from that order and from the judgment.

Defendant assigns as error the giving of certain instructions, the admission of certain evidence, the restriction of cross-examination, the exclusion of offered testimony, and improper and prejudicial remarks of the deputy district attorney made in the course of his closing argument. The evidence of the People was wholly circumstantial; no claim is made that it was insufficient to justify the verdict.

Margaret Senteney, a single woman, 20 years of age, lived with her parents in Carpinteria. On Friday, August 28, 1942, she had dinner at home and left the house about 7:30 p. m. to go to the home of Mrs. Shepard, about a quarter of a mile distant, where she had been employed during the past week as a night companion of Mrs. Shepard. At about 10:00 o'clock a. m. on the following Sunday, her body was found lying beside a little used dirt road which led off from Toro Canyon Road, some seven miles west and north of Carpinteria. Highway 101 extends from Carpinteria toward Montecito in almost a westerly direction. About five miles west of Carpinteria, Toro Canyon Road leads from the highway to the north. The body of the deceased was found lying face down in the dirt. She had not been sexually molested. Death had been caused by strangulation and dislocation of vertebrae of the neck. A rope or wire had been placed around her neck and pulled backward. The frontal forehead bone had been crushed by a blow which, according to expert opinion, had been administered after the fatal injuries had been inflicted. There was a tear in her skirt and at the point of the tear a smear of grease. One shoe, a coat and a purse were missing and were not found. A quantity of dirt was taken from the mouth of deceased and when compared with that upon which the body lay was found to be different, indicating that the murder had been committed at another place, which, according to the evidence, could not be identified. One fingernail was bent entirely back; beneath the nails there was dirt and perhaps some loose skin. Above the left instep and upon the right calf were certain evenly spaced indentations and smudges which had been caused by pressure after death. These were photographed and compared with the pattern of a rubber mat taken from a 1939 Ford car, which they matched. Near the body were found two footprints estimated to have been made by about a number nine shoe. Upon the dirt road, in one of the few soft spots, were tire marks showing a zigzag or ‘squeegee’ pattern, as well as marks from two other types of tires.

Defendant was a graduate of Vanderbilt University, about 36 years of age, and for some eight years had been an officer of the State Highway Patrol. He lived in Carpinteria with his wife, her mother Mrs. Beckstead, and a young son. He was under investigation by the sheriff and the district attorney commencing shortly after the murder. At the trial the evidence against him consisted of the testimony of Mrs. Dorothy Egan who swore that she saw deceased enter the car of defendant shortly before 8:00 p. m., before dark, on the evening of August 28. Defendant owned a 1939 Ford business, or one-seat, Coupe which he was driving that night, and admittedly was in the same vicinity as the deceased shortly before 8:00 o'clock. A vegetable grower, Fogliani, testified that he saw defendant driving on Toro Canyon Road away from the place where the body was found between 6:30 and 7:30 Saturday morning, August 29th. There was evidence of numerous acts and statements of the defendant shortly after the crime was committed, and of circumstances of an incriminating nature to which we shall refer in some detail.

It may be mentioned here that Dorothy Egan, then about 17 years of age and unmarried, lived with her parents in Carpinteria. She testified that while she was taking an infant brother for a walk and while it was still light she saw a car starting and stopping in the vicinity of the high school grounds. She saw Margaret Senteney enter the school grounds, turn around toward the car, which was then stopped, enter the car and drive away; she recognized the car as that of defendant, in which she had once ridden; the car passed her with its lights on but she did not recognize the driver or anyone in the car. She did not testify that she knew or noticed the license number on the car, nor that she noticed any features of the car that would distinguish it from any other of the same make, model and color. She first recounted the occurrence to the district attorney in October, 1950, the month following the indictment of defendant.

At 7:30 p. m. on Friday evening defendant's car was parked for some time at a Shell Service Station on the highway, where he talked with witnesses Treloar and Wullbrandt, who was in his own car and accompanied by his son. Wullbrandt and his son testified to the conversation, and that defendant left before they did, driving down Linden Street toward the beach. Traveling in this direction it would be two blocks to Eighth Street and then three blocks to the left on Eighth Street to the nearest corner of the high school grounds, which covered an entire block. Defendant also testified to his conversation with Wullbrandt, but insisted that he left the parking lot after the Wullbrandts and went in a direction other than that testified to by them.

On Saturday, Sheriff Ross, who at the time was Undersheriff, called upon defendant to assist in the search for Margaret Senteney. Defendant complied and assisted in the investigation. Nothing was developed until Sunday morning when the body was discovered by one Caughill, a caretaker of an estate upon or nearby which the body was discovered. Caughill had gone up the dirt road toward a dump, looking for scrap metal. Upon receipt of word from Caughill, Ross and the defendant, in separate cars, went to the scene. Ross testified that defendant said he knew the vicinity and that he led the way. Arriving at the intersection of the dirt road with Toro Canyon Road the two encountered Caughill and a neighbor, Pozzbon. The four men proceeded up the steep dirt road to the point where the body lay in a more nearly level area. Ross returned to his car to send a radio message. He testified that he observed two footprints near the body and told defendant to see that they were preserved, and that on the way down to his car he observed tire tracks and marked them with some brush; that when he returned defendant was standing beside the body and had walked over the footprints and obliterated them; that he reprimanded defendant, who replied that he was sorry but that this was his first murder investigation and he was nervous; later a photographer from the sheriff's office, Bradford, and a deputy, Walker, arrived and pictures were taken. Ross and Bradford both testified that defendant again approached the body and was shoved away by Ross. Bradford and Walker testified that attention was directed to the tire marks and that they were told to walk on the other side of the road on the way up. They both testified that defendant started toward the tire marks and was called back by Ross.

An autopsy was conducted Sunday evening. Following an examination of the imprints upon the limbs of the deceased, and upon the assumption that the body had been transported in an automobile, a search was commenced for a car having a mat with a pattern comparable to the marks on the body. No other 1939 Ford Business Coupe was found in the area. Eventually, a mat was taken from a 1939 Ford Coupe which had such a pattern. A section of the mat was cut out for comparison with the photographs and was placed in evidence. Although there was no direct evidence that the rubber mat in defendant's car was of the same pattern as that of the mat produced, the original owner of the car and an intermediate owner from whom defendant purchased it, were shown the mat in possession of the officers and testified that the car had a ‘similar mat’ while they owned it. Defendant testified to the same general effect. None of these witnesses testified as to the pattern. There was evidence that Ford cars used the same type of mat in 1938, 1939, 1940 and 1941, a fact which we shall mention in another connection. There was no evidence that the mats in Business Coupes were of different pattern from those in other models. All defendant's tires had the ‘squeegee’ pattern, which fact was ascertained by the authorities. The witness Wullbrandt testified that in the evening of August 29th he met defendant in a drug store opposite the Shell Service Station, and that other persons were present; defendant asked him what time it was when they were talking across the street the night before; Wullbrandt answered that it was shortly before 8:00 o'clock p. m. Defendant said: ‘That's my alibi. By God the rest of them know what is good for them, they will be getting theirs.’ Wullbrandt testified that defendant also remarked that he had driven by the school house about the time of Margaret Senteney's disappearance and that he had seen nothing wrong.

On Monday, August 31st, defendant took his car into a garage in Carpinteria and ordered that it be lubricated, the spark plugs checked and the spare tire taken from the luggage compartment and put on the car. This was done by a young man named Moore. An order for the work was made out in triplicate by Groves, proprietor of the garage; two copies were placed in a box file in the office and the third, on cardboard, was placed under the windshield wiper on the car. It was customary to give the customer one of the copies, to keep another in the file, and throw away the third cardboard copy after the work had been done. Groves testified that on the day the work was ordered he filed two copies, and after the work was done saw defendant in the garage office going through the box file. Undersheriff Ross came to the garage to inquire about the work order, and it was discovered that the filed copies were missing from the file box. The third copy was not found at that time. Groves informed Ross that he had seen defendant looking through the files; he later told defendant of his conversation with Ross and defendant denied having tampered with the files when questioned by Groves.

On August 31st defendant had the inside of his car, including the luggage compartment, blown out with an air hose, was dissatisfied with the job, had it done more thoroughly and assisted therein. On September 1st defendant had his car washed and the back compartment blown out with an air hose at a service station in Santa Barbara. On September 2nd defendant arranged with one Boverton to have the latter paint his car. It was arranged that the work would be done September 8th. On that day defendant asked Boverton to paint the luggage compartment. Boverton replied that that was not customary but defendant insisted he wanted it done and the car, including the luggage compartment, was painted, the work being finished September 9th. Before the painting was commenced Boverton called defendant's attention to the fact that the lock on the luggage compartment was broken. The painter testified that there was no mat in the rear compartment and that the floor was in good condition.

Either around 4:00 p. m. or 8:00 p. m., August 28th, defendant had purchased a pint of whiskey and two bottles of Coca Cola from one Leibler, proprietor of a liquor store on the highway. Leibler testified that defendant came into his store September 2nd to discuss the purchase; that he was nervous and distraught; stated that everyone with tires similar to those that had left marks on the road, as his were, would be suspected, and that he needed an alibi; he asked Leibler what time he had made his purchase on the 28th; Leibler replied 4:00 o'clock, and defendant asked if he was sure it was not 7:30, to which Leibler replied that he was sure that it was not. Leibler reported this conversation to the Sheriff and Undersheriff on September 3rd.

Ray Pinker, a chemist and technician of the Los Angeles Police Department, was called into the case. On September 5th Pinker and others examined defendant's car but found it locked. That night they found it parked on the street, had it opened by a locksmith under the direction of the district attorney, breaking the lock of the luggage compartment in the process. It was discovered that there was no mat in the compartment and that a large part of the cardboard facing on the right hand side had been removed. Grease was found on the catch of the lock. The latch protruded and could catch onto articles that were pushed across it. On September 5th, defendant remarked to Pinker that he was contemplating having his car painted but was uncertain whether he should do so under the circumstances.

On September 8th defendant learned that the sheriff wished to talk with him. That night he left a note in the sheriff's office saying he would be available, and a meeting was arranged for the following day, when defendant met with the district attorney, Heckendorf, the undersheriff Ross, Pinker, and the deputy district attorney Licker. Defendant was questioned by the district attorney. He answered all questions until he was asked about a mat in his car, whereupon he stated in substance that the inquiry seemed to be centered upon him, that he was uncertain as to what he should do in answering further questions, asked Licker what he ought to do, was told that he ought not hesitate to state the facts, and finally declared that he would not answer further questions until he had received the advice of an attorney, and left the meeting. On the same day he went to see Moore and questioned him about the date when his car had been worked on. The two searched for the order slips but did not find them. Defendant then obtained from Moore, who was 17 years of age and a part time employee, a written statement to the effect that the work had been done August 24th and that there was no mat in the car at that time. Moore testified that defendant suggested the date and that he, Moore, assuming it to be correct, signed the statement. Defendant then went to Boverton's place of business, lifted the lid of the luggage compartment of his car and saw that the inside had been painted.

On September 10th defendant obtained a statement from one Hart that in the early part of July he, defendant, had deposited a rubber mat on a rubber stock pile at Hart's place of business. He also obtained a statement from one Sample that about August 1st, 1942, he had had his car lubricated at Sample's station, and that there was no mat in the car at that time.

On September 11th defendant attended another meeting with the district attorney and others who had been present at the meeting of the 9th. Defendant was accompanied by his attorney, Laselle Thornburgh. He was questioned at length by the district attorney and the interview was reported. Defendant's statement was, as far as it went, the same as his testimony at the trial, which we shall refer to later. It was generally known by this time that the pattern of the rubber mat which had been taken from the 1939 Ford could have made the marks which appeared on the body of the deceased, and defendant was questioned with relation thereto. Sheriff Ross testified that a few days after the statement was given defendant asked him if Pinker had found any hairs in the rear of his car, and asked: ‘Confidentially, did anyone say that they saw Margaret Senteney get into my car?’

The cardboard copy of the work order written up by Groves was eventually found and it bore the date of August 31st, instead of August 24th, as stated by Moore in his written statement. This record showed that the car had only traveled 661 miles since the last preceding lubrication.

Defendant testified that he knew Margaret Senteney and that she had served as a baby sitter in his home on one occasion. He testified that on August 28th he had dinner at home, drove to town, parked at the Shell Service Station, conversed with a Mr. Treloar and Mr. Wullbrandt, and that Wullbrandt left the station when a woman for whom he was waiting alighted from a bus and while he, Kirkes, was still at the station. He testified that he drove down the highway to Leibler's liquor store where he purchased a pint of whiskey and two bottles of Coca Cola around 8:00 o'clock; that he drove to the home of George Peyster, an old man who lived on Rincon Hill outside of town, a long time acquaintance whom he occasionally visited, and who was often assisted by his neighbors; Peyster had one drink, defendant had one or two; defendant returned to Carpinteria, drove around looking for some young people who had been reported to be driving recklessly, but not encountering them, he returned to his home around 9:30. Peyster later accompanied defendant to the office of Mr. Thornburgh where he gave defendant an affidavit; Peyster died in November, 1942.

In many details the testimony of defendant differed from that of Ross. Defendant testified that Ross was acquainted with the vicinity in which the body was found and led the way to the scene, defendant following. In this defendant was corroborated by Mrs. Anderson who testified that as they neared the vicinity the sheriff's car was in the lead. (A picture taken of the two cars parked at the entrance of the dirt road showed the sheriff's car parked in front of defendant's car.) Defendant denied having made the statements on the evening of August 29th which were attributed to him by Wullbrandt, although he did not deny having talked with the latter; he denied having suggested to Leibler that he purchased the liquor around 8:00 o'clock, and testified that when he asked Leibler the time the latter stated that it was about 8:00 o'clock; he denied that he had abstracted the work order in the garage of Groves; denied that he had suggested August 24th as the date when Moore did the work on his car, and testified that the two looked at a calendar and were agreed as to the date; he denied that he saw footprints or that anything was said about footprints beside the body or that Ross had told him to stay away or had pushed him back; he denied having started toward the tire tracks on the road; he testified that there was rust in the rear compartment of his car and scratches on the fenders and a dent in the fender, and that he had been considering and discussing having the car repainted for a number of months; also that the mat in the car had been torn across in the summer of 1942 when he was carrying tubfulls of sand from the beach to his son's sand pile; that he had discarded a part of the mat on the beach and in July had thrown the remainder onto a rubber pile at Mr. Hart's place of business; he had broken the cardboard on one side of the luggage compartment while on a fishing trip and had thrown parts of it away; he explained the cleaning of the car, saying it was for the removal of dirt and sand preparatory to having it painted, and he explained that the scratches on the car had been there for some time and were showing rust; he had frequently driven through Mrs. Beckstead's lemon grove which he was managing for her; he did not deny having asked Ross whether Pinker had found hairs in the back of the car, and he explained this question by referring to questions asked by the district attorney at the time he made his statement: ‘Did you ever see any human hairs in the back of your car, female hairs? You don't know how any would get in there? Or how any blood would get in there?’ which questions he had answered in the negative. He testified that he had interviewed the people from whom he had obtained statements pursuant to the request of Mr. Thornburgh that he obtain statements of any facts which he considered to be of importance.

Defendant's wife and her mother, Mrs. Beckstead, testified that defendant returned home about 9:30 the night of August 28th and did not leave the house until about 5:15 the following morning. Both testified that the mat was taken from the car and given to the rubber drive during the month of July, Mrs. Beckstead explaining how it had been torn in removing tubfulls of sand. They also testified that the cardboard had been taken out and had been used by children playing in the sandpile; both testified that defendant had been discussing for some time the repainting of his car. Defendant's father and mother, who lived in Laguna Beach, testified that defendant visited them for several days in the early part of August and told them he was planning to have his car repainted. Alfred Thurman testified that he had discussed with defendant the matter of the painting of the car; that the paint was badly oxidized and the car looked to be in need of paint. Robert Gorham testified that he examined defendant's car before it was painted, did some of the sanding, and that the paint was oxidized and the grill rusty. Mr. Long, a highway patrol officer, testified that between one and three weeks prior to August 28th he and defendant were at Boverton's place of business and that it was then arranged for Boverton to paint defendant's car. Mr. Nelson, a highway police officer, testified that prior to June, 1942, defendant had mentioned to him that he intended to have the car painted.

Mr. Hart testified that in July, 1942, there was a rubber stock pile at his service station on which a large quantity of rubber was deposited; that about July 4th defendant drove onto the lot and deposited on the pile a rubber mat. Mr. McCloskey, employed at the station, testified that defendant drove onto the lot on that occasion, did not stop at the pump or receive any service, but that he did not see whether he went to the stock pile. Mr. Sample testified that on August 1st, at his service station, defendant had his car lubricated and the oil changed; that he, Sample, had entered the rear compartment several times to remove a squeak and to check the spare tire and there was then no mat in the car. He produced the work order dated August 1st. Mr. Kendrick testified that he had serviced defendant's car; that in the previous year he had entered the back to remove a squeak and that the cardboard on the side was ragged and torn, part of it having been removed. Mr. Maddox, called in rebuttal by the People, testified that after a barbecue in the summer of 1942 when defendant had carried two pigs in the back of his car, defendant complained that he had been unable to get the smell out of the car, said he had thrown the mat on his porch and intended to give it to the rubber drive; he advised defendant to use lye to remove the odor.

Mr. Laselle Thornburgh testified that he was consulted by defendant; that shortly after defendant had given his statement Sheriff Ross told him there was skin under the fingernails of Margaret Senteney; that he told Ross that there was no mark on defendant except a small mark on one finger and he asked Ross to examine defendant physically (this was not done); that Ross had made the same statement with respect to skin under the fingernails several times, the last time shortly before the trial. He also testified that at about the same time Pinker said to him that whoever killed Margaret Senteney would in all probability have blood on his or her clothing because the skin under her nails indicated her assailant had been scratched, and also the nature of her wounds was such that the probability was that blood from those wounds would have gotten onto the clothing of the assailant. Pinker said that even though any of defendant's clothes had been dry cleaned he could tell by the aid of chemicals whether there had been blood on the clothes before they were dry cleaned. Mr. Thornburgh suggested that defendant's clothes be examined. They were not examined. He also testified that he had told Undersheriff Ross that he had been informed that a sailor was known to have driven to Carpinteria August 28th and had stated that he was going out that evening with a ‘Churchy girl.’ (Margaret Senteney sang in a Church choir.) Mr. Thornburgh called Ross a number of times and was told that nothing had been done to check the information. After two and one-half weeks Ross told him that it had been checked and nothing had been discovered.

Ross testified that after he learned that defendant had interviewed Mr. Hart and Mr. Sample he also interviewed them, and that they both told him they did not know the dates of the incidents concerning which they had given statements. Both Hart and Sample testified that they had not made such statements to Ross.

Ross and Pinker both testified that they had not made any of the statements to Mr. Thornburgh as related in his testimony.

It will be seen from the foregoing recital that the evidence which tended most strongly to connect defendant with the crime was that of Dorothy Egan. This witness, as we have said, testified to no identifying numbers or marks on defendant's car, although she did show a familiarity with the grills and the position of the lights on 1938 and 1939 Fords. Her father had operated a garage. She did not testify to any reason for failing to advise the authorities for a period of eight years of the events to which she testified. Although the district attorney in his opening statement announced that he would produce a witness who saw Margaret Senteney get into defendant's car, the identity of the witness, although requested of the sheriff, was not disclosed to defendant's attorneys until she took the stand. Some time after her cross-examination was concluded, Mrs. Egan was recalled for further cross-examination. She testified that she had lived in or near Santa Barbara, and later Santa Maria, except for a period of some five months which she spent in Connecticut following her marriage in the Spring of 1946. It was developed, through efforts of defendant's attorneys, without information received from the prosecution, that for four months in 1946 Mrs. Egan was an inmate of a State Hospital in Connecticut as a mental patient, due, she testified, to a nervous breakdown attendant upon a condition of pregnancy.

With respect to the testimony of Mr. Fogliani, it should be mentioned that he testified that he was driving about 40 miles an hour on the morning of August 29th at the time he saw and recognized defendant driving on Toro Canyon Road. Before the grand jury he had testified that the car defendant was driving was blue. Upon the trial he testified that it was not blue or red or a bright color, and also that he could not identify the make of car.

The foregoing narration of the salient features of the evidence is introductory to the ground of appeal which we shall discuss first, namely, the claimed improper and prejudicial remarks of the deputy district attorney during his closing argument. Defense counsel referred to the absence of proof of motive, stating: ‘I submit that there was no reason, that this was a crime without reason, without any motive, without any sense. A maniacal sort of thing, the work of some crazy man, without reason, not Leonard Kirkes. Some idiot. Makes more sense to me than—I don't know how else you can explain it. Think about a motive, you finally boil it down, I guess there wasn't any. Crazy act.’ Later: ‘If they have a case against this man, now, they had it eight years ago. You have had three District Attorneys in that period of time, good ones. Mr. Percy Heckendorf was the District Attorney then, later went up to be the Director of Vocational Standards of our State of California. Was there a reasonable doubt in the mind of Mr. Heckendorf, ladies and gentlemen? Was there a reasonable doubt about the guilt or innocence of this Defendant? It was his duty to prosecute all offenses in the County. Mr. Lawrence Parma succeeded Mr. Heckendorf, and he was an able District Attorney, so able in fact that he is still retained in the District Attorney's Office as a sort of special deputy. Was there a reasonable doubt in the mind of Mr. Parma, about the guilt or innocence of this Defendant, and was there a reasonable doubt in the mind of Mr. Licker of the guilt of this Defendant up until September of this year—about the guilt or innocence of this Defendant.’ Counsel commented upon the fact that Mrs. Egan had not made any report to the authorities until the month following defendant's indictment. She was not criticized for this, nor were her motives impugned, although it was pointed out that she did not know the license number of defendant's car nor anything about it which would enable her to distinguish it from other cars of the same model and color. Nothing was said by defense counsel which even remotely questioned the good faith of the district attorney or his deputy in the prosecution of defendant. Upon the contrary, it was conceded, in effect, that Mr. Licker had no doubt in his mind as to defendant's guilt at the time the prosecution was instituted. The argument of defense counsel as a whole was confined to a fair discussion of the evidence and the inferences that might be drawn therefrom.

In considering the point of misconduct it will be necessary to quote several passages from the closing argument of Mr. Weldon, the deputy district attorney.1

Those portions of the argument which we have quoted were improper for one or more of several reasons. They appealed to the sympathy of the jury for the unfortunate victim of the crime; they characterized the defendant as ‘a wolf at bay’; they drew imaginary and fanciful inferences as to the circumstances of the crime not justified by any evidence in the record; it was asserted as a fact that Dorothy Egan would have met death at the hands of defendant if she had made statements against him before he had been incarcerated; and finally, in a manner most improper and harmful, they threw against the defendant the weight, not only of the prosecutor's belief in the guilt of the defendant, but also the blunt assertion that ‘I * * * knew prior to the time that I became associated in this particular prosecution in the month of October, that this particular defendant was guilty of this particular offense.’ The excerpts we have quoted are sufficient to show the impassioned nature of the argument. It was not only positive and forceful in its assertions, but it was calculated to appeal to and arouse the sympathies and passions of the jury. The particular statements which we deem to have been especially harmful to the defendant should be considered with relation to the atmosphere that was created by the argument as a whole. The appeals to passion and prejudice could not have failed to render the minds of the jurors more receptive to the more harmful assertions which are underscored in the excerpts, and need not be repeated.

We will consider first the statement of the deputy district attorney in the passages first quoted. He reminded the jury that he had been in the district attorney's office for 19 years in order to give added weight to the remarks he was about to make. His statement as to his belief and his knowledge that the defendant was guilty, followed shortly after his introductory remarks. That the statements to which we have called particular attention were highly improper is not open to question. Arguments of prosecutors which were not justified by the record, assertions outside the record which were harmful to the defendant, and declarations intended and calculated to impress upon juries the belief of the prosecutor of the guilt of the accused, have been held improper times without number.

In a large group of cases the misconduct consisted of statements of facts not in evidence made by the district attorney in his argument to the jury. People v. Mitchell, 62 Cal. 411; People v. Bowers, 79 Cal. 415, 21 P. 752; People v. Ah Len, 92 Cal. 282, 28 P. 286; People v. Valliere, 127 Cal. 65, 59 P. 295; People v. Sing Lee, 145 Cal. 190, 78 P. 636; People v. Cook, 148 Cal. 334, 348, 83 P. 43; People v. Henderson, 4 Cal.2d 188, 192, 48 P.2d 17; People v. Brown, 81 Cal.App. 226, 239–244, 253 P. 735; People v. Westcott, 86 Cal.App. 298, 319, 260 P. 901; People v. Stafford, 108 Cal.App. 26, 290 P. 920; People v. Ford, 89 Cal.App.2d 467, 200 P.2d 867. In another group of cases the misconduct consisted of statements in final argument which indicated the district attorney was convinced of the guilt of defendant, but also indicated this conclusion was not based solely upon the evidence introduced. People v. Podwys, 6 Cal.App.2d 71, 44 P.2d 377; People v. Edgar, 34 Cal.App. 459, 467, 167 P. 891; People v. Hidalgo, 78 Cal.App.2d 926, 938, 179 P.2d 102; People v. Brown, 81 Cal.App. 226, 241, 253 P. 735; People v. Hale, 82 Cal.App.2d 827, 832, 187 P.2d 121. Other California cases involved appeals to passion and prejudice, repeated asking of questions relative to objectionable and prejudicial matter, and persistent improper comment within the hearing of the jury. People v. Lee Chuck, 78 Cal. 317, 327, 20 P. 719; People v. Mullings, 83 Cal. 138, 23 P. 229; People v. Devine, 95 Cal. 227, 231–234, 30 P. 378; People v. Wells, 100 Cal. 459, 34 P. 1078; People v. Derbert, 138 Cal. 467, 71 P. 564; People v. Derwae, 155 Cal. 592, 102 P. 266; People v. Fleming, 166 Cal. 357, 377–381, 136 P. 291; People v. Tufts, 167 Cal. 266, 271, 139 P. 78; People v. Anthony, 185 Cal. 152, 196 P. 47; People v. Braun, 14 Cal.2d 1, 92 P.2d 402; People v. Grider, 13 Cal.App. 703, 709, 110 P. 586; People v. Pang Sui Lin, 15 Cal.App. 260, 114 P. 582; People v. Terramorse, 30 Cal.App. 267, 271, 157 P. 1134; People v. Irby, 67 Cal.App. 520, 528, 227 P. 920; People v. George, 72 Cal.App. 124, 128, 236 P. 934; People v. Ephraim, 77 Cal.App. 29, 40, 245 P. 769; People v. Simon, 80 Cal.App. 675, 252 P. 758; People v. Angelopoulos, 30 Cal.App.2d 538, 549, 86 P.2d 873; People v. Freitas, 34 Cal.App.2d 684, 94 P.2d 397; People v. Duvernay, 43 Cal.App.2d 823, 111 P.2d 659; People v. Wynn, 44 Cal.App.2d 723, 731, 112 P.2d 979; People v. Lynch, 60 Cal.App.2d 133, 141, 140 P.2d 418; People v. Williams, 104 Cal.App.2d 323, 231 P.2d 554.

Many of the cases listed above are readily distinguishable from the present case upon their facts, but they are consistent in holding prosecutors to their duty to refrain from conduct which would deprive the accused of a fair trial. They state a principle of justice from which there should be no departure. Where it appeared from the record that the jurors could have reasonably entertained a doubt as to the defendant's guilt and the misconduct of the prosecuting attorney might well have influenced the result, our courts have reversed convictions so obtained. In all the reported cases there will be found no exception to this practice.

With respect to argument to the jury the improper statements that have been condemned by the courts have varied so widely in context, and the circumstances in which they were uttered have been so dissimilar, as to require that each case be considered on its own facts, under the general principles by which the propriety of argument is to be judged and questions of prejudice determined. Those principles have been stated innumerable times and with great emphasis, but too often go unheeded.

In Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 566, 87 L.Ed. 734, the court said: ‘The [prosecuting attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’

The closing argument of the deputy district attorney must be considered as coming from one who by virtue of his office and as a representative of the State wields great power and influence. A statement of the prosecutor to the jury that he believes the defendant to be guilty is weighted with the authority of his office. It is a declaration of a conclusion he has reached in his official capacity and cannot fail to make an impression upon the minds of jurors. It is a breach of the duty of fairness he owes to the defendant and the court, whether it is done in an excess of zeal, without appreciation of its impropriety, or with the intention of taking an unfair advantage. The result is the same in either case. It means that the district attorney has constituted himself a judge of the facts and has passed on to the jury his own conclusion, fortified by his experience and knowledge in such matters and by the public confidence and the prestige which he enjoys. Upon many occasions the courts have expressed strong disapproval of such unfair practices and have held it ground for reversal. We repeat the oft quoted statement in People v. Edgar, 34 Cal.App. 459, 468, 167 P. 891, 894: ‘When the district attorney declared that he would not prosecute any man he did not believe to be guilty he thereby wrongfully placed his personal opinion of the guilt of the defendant in evidence in the case. He was privileged to argue to the jury that it was his opinion, formed from deductions made from the evidence adduced at the trial, that the defendant was guilty of the crime charged. People v. Rogers, 163 Cal. 476, 126 P. 143. But his declaration to the jury that he would not prosecute any man whom he did not believe to be guilty was tantamount to an assertion that he believed in the guilt of the defendant at the very inception of the prosecution; and necessarily such belief must have been founded upon the result of the district attorney's original and independent investigation of the charge, and therefore in all likelihood was based, in part at least, upon facts which did not appear, and which perhaps could not have been shown, in evidence.’ See also People v. Podwys, 6 Cal.App.2d 71, 44 P.2d 377.

Here the deputy district attorney asserted not only that he believed, but that he knew, before he became associated in the prosecution, that defendant had committed the crime. And, as we have mentioned, this came immediately after he had laid a foundation by mentioning his 19 years of service in the office of the district attorney, and by giving what the court in People v. Edgar characterized as a ‘testimonial of the district attorney to his own integrity’. He knew all about the case and knew defendant had committed the crime. How can we have any assurance that the jurors, or some of them, did not come to the belief that if Mr. Weldon said it was so, it must be so?

We have mentioned that defense counsel in argument characterized the murder as a ‘maniacal sort of thing, the work of some crazy man, without reason, not Leonard Kirkes, some idiot’ etc. The deputy district attorney in reply said: ‘I will tell you what the motive in this case is.’ He then proceeded to draw upon his imagination and reconstruct the crime in a manner that would furnish a motive which he argued would render it more reasonable to believe that defendant was the perpetrator. If there had been some evidence of attempted sexual molestation, a motive for the murder could have been inferred from that fact. But there was no such evidence, nor, it would seem, any evidence of motive from the manner in which the murder was committed, except a fiendish desire to take a human life. Nevertheless, the deputy district attorney accused defendant of having made improper advances to the deceased, proceeded then to invent threats upon her part to expose him, thence to defendant's fear of exposure and a realization that Margaret Senteney must never be allowed to return to Carpinteria alive. ‘It meant disaster. It meant her death at that time. I mean that. I mean that,’ he said. Many intangible theories as to motive and the circumstances of the crime might occur to anyone who had heard the evidence, but they would have been speculative and unsupported by the evidence or reasonable inferences from the circumstances in evidence. Although the deputy district attorney asserted that the supposed facts could be inferred from the evidence, this shallow statement could not disguise the fact that his description of the crime was no more than a statement of his belief. It no doubt was considered by the jury in connection with the previous assertion that the deputy district attorney believed and knew the defendant to be guilty. The jury could reasonably have believed that the assertions, which went far beyond any evidence in the case, were based upon information or knowledge of facts that the speaker possessed which had not been developed in the evidence. In this respect they were more than assertions of a mere theory evolved from the evidence. In their very nature they implied there was some additional basis for the statement, ‘I will tell you what the motive in this case is.’

We turn now to the prosecutor's discussion of the testimony of Dorothy Egan. First, we remark that the criticism of defense counsel, who were put to shame for ‘this unwarranted attack upon the integrity of this young woman,’ was wholly unjustified. The witness had been treated with respect and consideration. After her cross-examination had been completed it was learned by defense counsel that she had been confined in Connecticut as a mental case for a period of about four months. She was recalled for further cross-examination and when questioned on the subject admitted that she had been so confined during pregnancy. This was characterized as ‘their attempt to belittle her testimony by casting aspersions upon her character, upon her mind, and upon her integrity.’ The statement that followed, as well as the entire criticism of counsel, was an appeal to the passion and prejudice of the jury, and we may add that, in our opinion, if there was to be criticism of counsel with respect to this witness it could more reasonably have been directed toward the office of the district attorney, than to defense counsel. The name of this witness was withheld from defendant's attorneys, although they requested it when they learned the district attorney claimed to have a witness who would testify that Margaret Senteney was seen to enter defendant's car. Inasmuch as it no doubt was known to the district attorney that the witness had been confined in a mental institution, fair play would seem to have required that this fact should not have been concealed from the defendant, and that he be given some opportunity to investigate the hospital records, and to obtain any evidence that was available as to the nature of the mental condition and stability of the witness.

But far more serious was the explanation that was given by the deputy district attorney for the silence of the witness for a period of eight years. She had not attempted to explain it. She had not been accused by defense counsel of giving wilfully false testimony, nor had it been suggested that she had any wrong motive or purpose to serve in testifying against the defendant. It had been argued, and quite properly, that she did not recognize defendant as the driver of the car and that she had not stated any reason for distinguishing the car which she saw from any other car of the same make, model and color. Nevertheless, the deputy district attorney asserted with much assurance that if the witness had come forward before the defendant was taken into custody she would have met death at his hands, declaring, ‘her life would not be worth that.’ He said: ‘You have the right to infer that this girl waited for her own safety until this defendant was apprehended.’ This was not a proper inference from the evidence, nor any more than a conjecture which could not properly be considered for any purpose. There was no evidence that any witness had been threatened, nor that Dorothy Egan had been in fear. Here, again, the deputy district attorney asserted a fact that was not in evidence, nor to be inferred from the evidence. It was of the pattern of his earlier statements which implied that he had knowledge or information of facts in addition to those that had been presented to the jury as evidence; it was inexcusable and strongly prejudicial.

We shall not give special notice to the impassioned appeal in the closing passages of the argument further than to say that they help to reveal the poisonous atmosphere which was created by the argument as a whole.

It having been established that the deputy district attorney was guilty of serious misconduct, the only remaining question is whether the misconduct constituted such a serious invasion of the rights of the defendant as to amount to a miscarriage of justice.

With respect to this matter the People urge two grounds, upon either of which it is contended defendant is precluded from complaining of misconduct. It is said that the statements of the district attorney were invited by the argument of counsel for defendant. We cannot agree. Not one word had been spoken which was critical of the motives or lack of good faith of the district attorney or his deputy. The fact that former district attorneys over an eight-year period had not instituted a prosecution, while commented upon by defense counsel, had nothing to do with the evidence to be discussed in the arguments. It was a patent fact, conceded by defense counsel, that the present district attorney considered the evidence to be sufficient to warrant a prosecution.

It is the privilege of defense counsel to go father afield in argument than the prosecutor may go. Their theories and their statements of opinion as spokesmen for the defendant have little weight as compared with similar statements of the district attorney. The reasons for this have been previously discussed. It is an untenable theory that purely argumentative statements of defense counsel ‘open the door’ to unrestrained and manifestly improper and unfair reply by the district attorney. How, in the name of justice, can the blame here be shifted from the shoulders of the guilty to those of the innocent! The improper assertions of deputy district attorney Weldon cannot be justified or excused as having been invited by the argument of defense counsel, or as fair or legitimate reply thereto. If we were to hold otherwise we would be sanctioning chicanery and the invasion of the right of accused persons to an intolerable degree.

The second ground urged by the People is that defendant did not object to many of the statements of the deputy district attorney with requests for admonishment of the prosecutor, and cautioning of the jury to disregard them. In order to give the argument validity it is claimed that if the jurors had been told to disregard the statements they would have done so and their minds would have been as free from influence as if the improper statements had not been made. We are convinced that the harm could not have been undone by telling the jurors to forget what they had just heard and to free their minds of any impressions the statements had created. In People v. Ford, 89 Cal.App.2d 467, 470, 200 P.2d 867, 869, we said: ‘As a general rule, if the harmful effect of improper statements could probably have been removed by an admonition to the jury, failure to request such admonition is regarded as a waiver of the right to rely upon the statements as misconduct. People v. Simon, 80 Cal.App. 675, 678, 679, 252 P. 758, and many cases cited. Upon the other hand, where the misconduct is of such a character that it cannot be purged of its harmful effect by an admonition, it will be considered as a possible ground for reversal in cases where the jury has been admonished, People v. Braun, 14 Cal.2d 1, 8, 92 P.2d 402; People v. Derwae, 155 Cal. 592, 597, 102 P. 266; People v. Hidalgo, 78 Cal.App.2d 926, 948, 949, 179 P.2d 102; People v. Duvernay, 43 Cal.App.2d 823, 828, 111 P.2d 659; People v. Edgar, 34 Cal.App. 459, 471, 167 P. 891, as well as in cases where no objection was made or admonition requested on behalf of the accused. People v. Wynn, 44 Cal.App.2d 723, 732, 112 P.2d 979; People v. Podwys, 6 Cal.App.2d 71, 76, 44 P.2d 377; People v. Stafford, 108 Cal.App. 26, 29, 290 P. 920; People v. Simon, 80 Cal.App. 675, 679, 252 P. 758; People v. George, 72 Cal.App. 124, 131, 236 P. 934. In either situation, where the case is closely balanced and guilt has not been so clearly established as to render it improbable that the harmful effect of the misconduct may have turned the scales against the accused, such misconduct has consistently been deemed ground for reversal. People v. Hale, 82 Cal.App.2d 827, 834, 187 P.2d 121; see also, People v. Lynch, 60 Cal.App.2d 133, 145, 140 P.2d 418; People v. Fleming, 166 Cal. 357, 381, 136 P. 291, Ann.Cas.1915B, 881; People v. Angelopoulos, 30 Cal.App.2d 538, 549, 86 P.2d 873.’ Clearly it is the exception, rather than the rule, which applies here. The assertions of the deputy district attorney cut deep. True, the court, if requested, should have informed the jury that the statements should not have been made and were to be disregarded, but the fact would remain that they had been made, and the court in its admonitions could not, of course have told the jury that the statements were untrue. Furthermore, the misconduct did not consist of only one statement, but a series of assertions which ran throughout the entire argument, not all of which, we may say, have been fully quoted. It is not to be overlooked that when defense counsel interrupt the argument of a prosecutor with objections it is a confession that the defendant has been hurt. It becomes a question of judgment whether it is the better course to continually object, and thus magnify the concern of counsel, and possibly incur the displeasure of the court or jury, or by remaining silent to attempt to minimize the harmful effect of argument to which objection could properly be made. The problem becomes more difficult and the harm more serious when the objectionable argument is made in the closing address of the prosecutor, as it was here.

One of the most damaging statements—the claimed knowledge of defendant's guilt—was made at the very beginning of the argument. Many others intervened before the assertion that defendant would have taken the life of Dorothy Egan to prevent her testifying against him. Objections would have had to run throughout the entire argument and could easily have placed defense counsel in an embarrassing position before the jury. It is the duty of the court to take the initiative in such matters. We are considering persistent and repeated improper statements of the prosecutor upon different matters. It would be unfair to compel the defendant to continually register objections, and unfair to penalize him if he failed to object. Our holding, however, is that admonitions would have been ineffectual to remove the harmful effect of the improper assertions and argument of the prosecutor.

The court gave an instruction at the request of the People,2 and refused defendant's requested instruction.3 Section 2061, Code of Civil Procedure, provides that the jury shall be instructed: ‘* * * on all proper occasions * * * 2. That they are not bound to decide in conformity with the declarations of any number of witnesses, which do not produce conviction in their minds, against a less number or against a presumption or other evidence satisfying their minds;’ and ‘that in criminal cases guilt must be established beyond reasonable doubt’. A number of proper instructions were given on the doctrine of reasonable doubt and the rules relating to circumstantial evidence. The questions are presented whether it was error to give the instruction first noted below and to refuse defendant's requested instruction, and if so, whether the error was cured by the instructions on reasonable doubt and circumstantial evidence.

The instruction given is a departure from the language of the code section. The latter declares that the jury are not bound to decide in conformity with the declarations of any number of witnesses which do not produce conviction in their minds against a lesser number or against a presumption or other evidence satisfying their minds. The instruction states that a fact may be proved by the testimony of a single witness which is opposed by that of a greater number of witnesses if the jury believes the testimony of the single witness to be entitled to the greater weight. This is a proper rule in a civil case where only a preponderance of the evidence is required to establish an essential fact. It is not a proper statement in a criminal case unless there is clearly read into it by reference to other instructions the rules pertaining to the sufficiency of circumstantial evidence and reasonable doubt. The People say that the jury must have considered the questioned instruction with the instructions on circumstantial evidence and reasonable doubt and reconciled them so as to bring about consistency and avoid confusion. We express no opinion as to whether the argument would have had validity if the instruction that was given had omitted the words (referring to the testimony of a single witness) ‘and would justify a verdict in accordance with such testimony, even though a number of witnesses on the other side might testify to an opposite set of facts.’ Now what would it mean to jurors to be told that they could base their verdict upon the testimony of a single witness if they believed that the greater weight of the evidence was on the side of such witness? In a civil case if there was a certain determinative fact in evidence upon which a verdict could be based there would be reason for such an instruction, or at least no harm in it. But if there was no such single fact to be proved, the instruction would be confusing and improper. Long v. Standard Oil Company, 92 Cal.App.2d 455, 462, 207 P.2d 837. In the present case there was no such single determinative fact, nor can there be in a case made up of many incriminating circumstances. Here there were a great number of disputed facts upon which the People relied. There was the testimony of Dorothy Egan that she saw Margaret Senteney enter defendant's car, the testimony of Fogliani that he saw defendant driving away from the vicinity where the body was found early in the morning following the murder, the testimony of Sheriff Ross that defendant walked upon and obliterated footprints near the body, and the testimony of Leibler that defendant endeavored to have him make false statements as to the hour when the whiskey was purchased. The jury may have believed that the testimony of Dorothy Egan, corroborated by that of any one or more of the other witnesses just named, would be sufficient to justify a verdict of guilty, and that without such corroboration her testimony would be insufficient. Under the instruction, belief that the testimony of Dorothy Egan was entitled to greater weight than that of the defendant, and belief that the testimony of any one or more of the witnesses, Fogliani, Ross and Leibler, thought to be essential, was entitled to greater weight than the testimony of defendant, would have justified a verdict of guilty.

The People say that the instruction in question had application only to the matter of the credibility of witnesses, and would have been so understood by the jury. This not only attributes to the lay mind too great an ability to draw fine legal distinctions, but it suggests a distinction which eludes us. How could it have related only to credibility when the jury was told that a verdict could be based upon the testimony of a single witness if from the whole case it was believed to have greater weight than the testimony opposed to it. By this statement the instruction was clearly made to relate to the weight of the evidence—to the ‘whole case’—and was brought into direct conflict with the instructions on reasonable doubt and the sufficiency of circumstantial evidence. Where the evidence is entirely circumstantial, each circumstance which is deemed by the jury to be essential to the establishment of guilt must be established beyond a reasonable doubt. It is not sufficient that each of them be established by a preponderance of the evidence. It is of course impossible to know what circumstances to which the witnesses testified were deemed essential to justify a verdict of guilty. The rule that instructions are to be considered as a whole does not remove the vice of the instruction that was given. It was entitled to the same consideration as the instructions on reasonable doubt and circumstantial evidence. It created an irreconcilable conflict. It is true the jury was told repeatedly that guilt must be established beyond a reasonable doubt, but at the same time it was given another formula for determining what evidence could form the basis of a verdict, namely, the testimony of a single witness which, upon the whole case, was believed to be entitled to greater weight than the evidence opposed to it.

The People have cited People v. Ames, 61 Cal.App.2d 522, 143 P.2d 92, in which the court said of a similar instruction that although it was erroneous there was only a slight possibility that it misled the jury. The question whether the jury may have been misled by conflicting instructions is not an abstract one. It must be related to the evidence. Ames was not a case of circumstantial evidence. The clear opportunities for harmful application to the evidence which we have pointed out were not present in that case.

If, as we must presume, the erroneous instruction was given the same consideration as each of the correct ones, the jury would inevitably have been confused, if not actually misled.

It was said in People v. Cornett, 33 Cal.2d 33, 41, 42, 198 P.2d 877, 883, in reversing the judgment: ‘Where it is impossible to determine which of inconsistent instructions were followed by the jury, conflicting instructions have been held to constitute reversible error. * * * In view of the evidence it is impossible to determine, therefore, whether or not the jury reached its verdict on the basis of the correct instructions.’ It is manifestly impossible to know whether the jury, in finding Kirkes guilty, applied the false rule that was given them, or ignored it.

A comprehensive review of the cases convinces us that it would be contrary to firmly established precedent to hold that the judgment should be affirmed, notwithstanding the grievous error in the instructions. People v. Campbell, 30 Cal. 312; People v. Valencia, 43 Cal. 552; People v. Anderson, 44 Cal. 65; People v. Wong Ah Ngow, 54 Cal. 151; People v. Messersmith, 57 Cal. 575; People v. Bush, 65 Cal. 129, 3 P. 590; People v. Williams, 73 Cal. 531, 15 P. 97; People v. Thomson, 92 Cal. 506, 28 P. 589; People v. Marshall, 112 Cal. 422, 44 P. 718; People v. Westlake, 124 Cal. 452, 57 P. 465; People v. Ford, 138 Cal. 140, 70 P. 1075; People v. Maughs, 149 Cal. 253, 86 P. 187; People v. Roe, 189 Cal. 548, 209 P. 560; People v. Dail, 22 Cal.2d 642, 140 P.2d 828; People v. Cornett, 33 Cal.2d 33, 41, 198 P.2d 877; People v. Hardy, 33 Cal.2d 52, 198 P.2d 865; People v. Neetens, 42 Cal.App. 596, 184 P. 27; People v. Reese, 65 Cal.App.2d 329, 345, 150 P.2d 571. See also, Westberg v. Willde, 14 Cal.2d 360, 371, 94 P.2d 590; Akers v. Cowan, 26 Cal.App.2d 694, 699, 80 P.2d 143, citing many cases.

Defendant complains of error in the receipt of testimony of the expert witness Pinker. We shall discuss the matter briefly. This witness, after qualifying as an expert, compared an enlarged photograph of the marks on the limbs of the deceased with a part of a rubber mat taken from a 1939 Ford automobile, and testified that the marks could have been made by such a rubber mat. He testified that a tear such as the one found in the dress of the deceased could have been made by the latch on the luggage compartment of defendant's car, and that a grease spot on her dress could have been caused by grease which he found on the latch; also that only a few of a great many cars he had examined had grease upon the locks of their luggage compartments. All this was called expert testimony, but none of it was expert testimony. The witness was in no better position, nor better qualified to draw conclusions from the facts in evidence, than were the jurors. This witness produced rubber mats taken from a number of different makes of automobiles, all of which different in pattern from that of a 1939 Ford mat. Over defendant's objections these several mats were received in evidence. The theory under which they were offered and received was that they merely illustrated the expert opinions of the witness. We are at a loss to discover what opinion they illustrated. If it was an opinion based on a comparison of the photographs with the piece of the Ford mat it was not an expert opinion, nor did the other mats tend in any manner or degree to illustrate anything to which the witness had testified. Although the testimony was admitted under an untenable theory, it was not inadmissible. The People having shown that the marks on the limbs of deceased could have been made by a 1939 Ford mat, were privileged to prove that no other automobile came with a mat of the same pattern, or to go as far in that direction as it was possible to go, by the production of as many other mats as were available. Defendant complains that the evidence with relation to the other mats was introduced for the purpose of strengthening the claim of the People that he had a rubber mat in his car at the time of the murder. We do not follow this argument. The evidence only tended to show that the marks upon the limbs of the deceased could not have been made by the types of mats that were taken from other cars. An additional reason for denying the claim of prejudice is that it was shown on cross-examination of the witness Pinker that mats which came in 1938, 1940, 1941 and perhaps 1942 Fords were the same as those that came with the 1939 models.

Another claim of error is that the court unduly restricted the cross-examination of Sheriff Ross. He was requested to name the witnesses and persons with whom he had recently discussed the case. Objections of the People were sustained. Even if greater latitude should have been allowed in the cross-examination for the purpose of showing the activity of the sheriff, who was an important witness, and possible bias upon his part, as to which no expression of opinion is necessary, the cross-examination was not restricted to any extent that was harmful to the defendant. It was shown that the sheriff had been extremely active, diligent and interested, to the extent of not only discussing the case with all the witnesses who testified for the People, but also with a number of those who testified for the defendant.

The witness Leibler was asked on cross-examination whether in his liquor business he had been under investigation by the authorities, including the sheriff. Objections to this line of questioning were sustained and the rulings are assigned as error. Inasmuch as the testimony of this witness was in direct conflict with that of the defendant, and he had been interviewed by the sheriff concerning his testimony, the utmost liberality should have been permitted in his cross-examination. It might possibly have developed facts which tended in some degree to weaken his testimony. However, it was a matter of no great importance.

Defendant assigns error in the giving of an instruction which he designates ‘an instruction placing duty on jury as law enforcing agents.’ The admonition to which the criticism is directed is thus expressed: ‘The importance of your duties requires that you consider the right of the People of the State of California to have the law properly executed * * * you should also ever keep in mind the importance to the accused of the result of your deliberations and be just to him, as well as to the People of the State of California.’ This thought was elaborated upon somewhat. It was merely an innocuous, and we think redundant, platitude that might have been dispensed with, but was harmless.

The court gave an instruction that there is no limitation of time within which a prosecution for murder must be commenced, and should have omitted another instruction which added that if defendant's guilt was established beyond reasonable doubt the jury should so find ‘irrespective of the fact that such evidence discloses that there has been a lapse of approximately eight years between the death of Margaret Senteney and the prosecution of the defendant.’ It is possible that the jury may have been led to minimize the lapse of time in considering the accuracy of the memory of witnesses.

Two alternative jurors were selected after the regular jury had been impaneled. One of them served in the place of a juror who was excused for illness. After the two alternates had been examined on voir dire, defense counsel claimed the right to exercise two challenges ‘against the chair of one alternate only.’ The court stated that if they were exercised the challenges should be used, one against one alternate, the other against the second alternate. Defendant did not challenge either alternate, and the court did not make a ruling, although it intimated what the ruling would be if challenges were exercised. There was nothing in this procedure which prejudiced defendant in any manner or which justifies his attack upon it. Under the circumstances there is nothing to review.

Having considered all the points urged by defendant which are deserving of special notice there remains the question whether the misconduct of the district attorney and the error in giving the instruction first discussed deprived defendant of a fair trial and constituted a miscarriage of justice. We are obliged to answer these questions in the affirmative.

Where the rights of the defendant have been invaded to the extent shown by what we have previously said, it is necessary that we should critically examine the entire evidence in order to satisfy ourselves as to the strength of the case of the People. We have not attempt to state all the evidence which tended in some degree to establish the guilt of the defendant. In minor respects the case of the People could have been supplemented and somewhat strengthened, and also additional facts might have been stated which tended to indicate that defendant was not the perpetrator of the crime. But further detail would only have lengthened our opinion without adding anything substantial to our outline of the evidence.

There was ample evidence to establish the guilt of the defendant. Although there was no direct testimony that he had a rubber mat in his car at the time of the murder, it is clear that if the jury was convinced that Margaret Senteney entered defendant's car, as related by Dorothy Egan, and if it was believed that defendant did have a rubber mat in his car at that time, it would have been difficult indeed to reconcile these facts with defendant's innocence. But there was other evidence to be weighed against that of the People. In calling attention to it we intend no expression of opinion as to its weight. Our references will be to some features of the evidence which it was the duty of the jury to weigh and consider. Eight years had elapsed since the murder. Dorothy Egan did not recognize defendant as the driver of the car that passed by her with its lights burning, and she did not testify to any identifying feature of the car which would distinguish it from any other gray 1939 Ford business coupe. The witness Fogliani testified he was driving 40 miles an hour when he saw defendant early Saturday morning. His testimony was conflicting and uncertain as to the color of the car. The identification was not made under circumstances which eliminated the element of mistake. We have already stated the evidence with respect to the disposition of the rubber mat as claimed by defendant and his witnesses; also the testimony touching defendant's statements to others with respect to his intention to have his car repainted, including the testimony that he made an arrangement for the repainting some weeks prior to the date of the murder. Other details of the evidence have been stated. In one view, defendant's conduct in contacting the witnesses Moore and Leibler could have been regarded as indicating a consciousness of guilt. In another view, those efforts could have been regarded as the actions of one who knew he was under suspicion and in need of evidence to establish his innocence. Defendant realized he was under suspicion. Undoubtedly it was fear that induced him to go to Moore seeking evidence that the mat was missing from his car prior to the date of the murder, although there was available to him the evidence of numerous witnesses to the effect that the mat had been removed from the car some time in July. It was fear that led him to go to Leibler in order to obtain evidence tending to prove that he had driven down the highway Friday night and not toward the beach as the Wullbrandts had testified. There was room for doubt whether the fear which defendant manifested was actuated by a consciousness of guilt or by his knowledge of circumstances which had placed him under suspicion. Although there was ample circumstantial evidence of guilt, it was not overwhelming and it fell considerably short of being conclusive. Much depended upon the credibility of witnesses. After a careful consideration of the evidence we are of the opinion that if the jurors, or any of them, after judging of the credibility of the witnesses and the weight of their testimony, had entertained a doubt as to defendant's guilt, it could not be said that it was an unreasonable doubt. If they had not been satisfied with Dorothy Egan's testimony, if they had been in doubt as to the reliability of her identification of defendant's car, or if they had entertained a doubt that the rubber mat was in defendant's car on the date of the murder, they would have been warranted in concluding that guilt had not been established beyond a reasonable doubt.

The crucial question was whether on the night of August 28th there was a rubber mat in defendant's car. It may have been considered by the jury to be a close question and difficult to decide. If any misconduct of the deputy district attorney added materially to the weight of the evidence of the People as to this disputed fact, or to the proof of other important incriminating circumstances as to which the evidence was in conflict, the rights of the defendant were thereby invaded, and prejudice resulted. We have already held the giving of the erroneous instruction to have been prejudicial.

One other matter is to be noticed. The unconflicting evidence as to the manner in which the crime was committed was sufficient to establish all the elements of murder of the first degree. And yet the verdict found defendant guilty of murder of the second degree. The reason for this can be known only to the jurors. But the finding of guilt of the lesser offense is consistent with the existence of a doubt in the minds of some of the jurors that defendant was guilty of the brutal and monstrous acts which characterized the crime.

We are forbidden by section 4 1/212 of Article VI of the Constitution to reverse a judgment ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ The court, in People v. Wilson, 23 Cal.App. 513, at page 524, 138 P. 971, at page 975, speaking through Presiding Justice Conrey, defined the term as follows: ‘The phrase ‘miscarriage of justice’ does not simply mean that a guilty man has escaped, or that an innocent man has been convicted. It is equally applicable to cases where the acquittal or the conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied. The right of the accused in a given case to a fair trial, conducted substantially according to law, is at the same time the right of all inhabitants of the country to protection against procedure which might at some time illegally deprive them of life or liberty. ‘It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging to defendants shall be respected.’ (Opinion written by Mr. Justice Sloss in People v. O'Bryan [165 Cal. 55] 130 P. 1042.)'

It is not proper for a reviewing court in determining whether a miscarriage of justice resulted from error or misconduct at the trial to be guided solely by its own opinion as to the weight of the evidence bearing upon the question of guilt. It is necessary to decide in the light of experience and by the application of seasoned reasoning whether the evidence presented to the jury critical questions of fact as to which reasonable minds might differ. Extreme caution is required to avoid usurping the functions of the jury when the decision of vital questions of fact by the jury depended upon the credibility of witnesses whose testimony, if believed, would largely, if not wholly, resolve the question of guilt or innocence. We refer especially to the testimony of defendant and his witnesses that there was no rubber mat in defendant's car on August 28th. Who can say that this crucial testimony, some of it from disinterested witnesses, did not create a problem that was difficult for the jury to solve? True, the verdict is proof that these witnesses were disbelieved, but the question is whether this conclusion was arrived at readily and freely, without the influence and pressure which the wrongful statements of the deputy district attorney inevitably exerted. When the court, after mature consideration, is in grave doubt whether the verdict was so influenced, injustice is more likely to be avoided by resolving the doubt in favor of the accused and awarding him a new trial.

We conclude that the improper statements of the deputy district attorney may have added weight to the case of the People without which a verdict of guilty would not have been returned. There can be no question that they were extremely harmful. We are persuaded that there were questions of fact which the jury found to be close and difficult to decide. This is sufficient to require a reversal of the judgment. We also hold that in view of the evidence to which it may have been applied by the jury, the erroneous instruction was so prejudicial that to give it deprived defendant of a fair trial and resulted in a miscarriage of justice.

The judgment and order denying motion for new trial are reversed.

I dissent. The evidence of guilt was very strong. Defendant, an experienced police officer, deliberately destroyed and attempted to destroy evidence, and he manufactured and attempted to manufacture evidence.

In violation of the specific order of the sheriff, defendant trampled over and obliterated footprints near the body, and he attempted to obliterate the tire tracks which were of the same design as the tread on his tires.

The imprint on the body of the victim was of the same design as the design on the rubber mat in the rear compartment of a 1939 Ford coupe. The evidence was ample to support a finding that, soon after the body was found, the defendant removed the mat from the rear of his 1939 Ford coupe. On August 31st, the day after the body was found, he had the spare tire of his automobile changed, apparently for the purpose of causing the garage boy, who changed the tire, to notice that there was no mat in the rear compartment. Then, on that day after the work had been done, defendant stole the written order for that work from the garage files, apparently for the purpose of destroying the documentary evidence which would refresh the boy's memory as to the date when he noticed that the mat was not in the rear compartment. Then, when such evidence was not available to refresh the boy's memory, the defendant, as a part of a scheme to create false written evidence that the mat was not in the rear compartment at the time of the murder, induced the boy to give him a written statement to the effect that the boy changed the tire about August 25th (3 days before the murder) and that, at said time, there was no mat in the rear compartment.

A few days after the murder, the defendant had the inside of the rear compartment of his automobile blown out three times with an air hose. After it was blown out the third time, he took the air hose and cleaned the inside of the front of the automobile, including under the front seat.

Along the side road to the place where the body was found there was brush which would touch an automobile that was on the road. Scratches, which appeared to be fresh brush marks, were on the fenders of defendant's automobile. Three days after the body was found, the defendant asked an automobile painter how soon he could paint the automobile, and told him that he was ‘in a hurry for the car.’ Six days later (September 8th, about noon) the painter, pursuant to agreement, went to defendant's home to get the automobile. At that time, when the defendant knew that he was under suspicion and that someone had broken the lock on the rear compartment and that the sheriff would interview him soon, he told the painter that he also wanted the inside of the rear compartment painted. The painter told him that it was not customary to paint the inside of the compartment, that no one was going to look in there. Defendant testified that he replied that he wanted ‘to preserve it—cover it up, cover up those rust spots, give it a shot.’ The painter called attention to the broken lock on the compartment and to the left window which was broken. (A boy had ‘put’ a ball bat ‘through the glass.’) Defendant told him to disregard the broken lock. No agreement was made to repair the window. The painting of the automobile, including the inside of the rear compartment, was completed the following day (September 9th).

With respect to defendant knowing on September 8th (at the time he ordered the compartment painted) that he was under suspicion and that he would be interviewed soon, there was evidence as follows: The sheriff testified that on September 8th at 12:30 p. m. he saw a typewritten note at the sheriff's office which recited in part: ‘Nelson [a highway patrolman] tells me you would like to ask me some questions. If you and your father will come by, I'll be glad to talk to you. After 3 P. M. please. I am working nights. Kirkes.’ Defendant left that note in the sheriff's office. On September 8th, after receiving the note, the sheriff told the defendant by telephone that he would like to talk to him at 3 o'clock on September 9th.

The next day, September 9th at 3:30, defendant went to the sheriff's office and they and the district attorney had a conversation about the case. In that conversation, in response to a question regarding defendant's automobile, he said that it was being painted. Then the district attorney, in the presence of defendant, by telephone asked the painter to hold up the painting. Apparently the painting had been finished at that time.

On September 9th, after the conversation at the sheriff's office, defendant went to the painter's place of business, ‘picked up the back of the turtle deck, dropped it’ and said ‘not let anybody touch that car until he saw an attorney.’

On the day after it was reported that the girl was missing, and before the body was found (when it was not known that she would not return), the defendant tried to obtain evidence showing an alibi for himself. On that day, after making inquiries of a man with whom he had talked on the previous evening, he said, ‘That is my alibi’ and that other persons, if they know what is good for them, ‘better be getting theirs.’

Two days after the body was found, he told the owner of a liquor store that tire imprints were found near the body and that he (defendant) ‘needed an alibi.’ At that time, he tried to get a statement from the owner that the defendant was in the store about 7:30 o'clock on the night of the murder. The owner told him he was there about 4:30 o'clock and he was positive it was not 7:30. Defendant testified that he did not tell the owner that he needed an alibi, but that he told him that one of the tire imprints was similar to the design on his tires, that a search might be made to locate cars that could have made such an imprint and he wanted to be able to make an intelligent answer—that it was a matter of forethought in order to be able to answer intelligently the questions he thought might be asked him.

A witness, who was well acquainted with the deceased, saw her get into defendant's automobile, near the school, about 7:50 p. m. on the night of the murder.

The sheriff made an extensive search in the Carpinteria area for 1939 Ford coupes, and the only one found was defendant's automobile.

A witness, who had known defendant about 20 years, saw the defendant, between 6:30 and 7:30 o'clock on the morning after the murder, driving an automobile on Toro Canyon Road toward and near the main highway—driving in a direction away from the place where the body was found.

There was grease on the lock of the rear compartment, and there was grease on the girl's skirt at a place where there was a tear.

Defendant asked the sheriff if Pinker, the investigator, found any hair in the back of the automobile, and then he asked the sheriff ‘Confidentially’ if anyone reported that he saw defendant pick the girl up.

In my opinion the argument of the deputy district attorney did not constitute reversible error. The matter as to the personal opinion of the district attorney was introduced into the case in the argument by defendant's attorney. The attorney for defendant stated in his argument that two former district attorneys, who held that office during part of the 8 years after the murder and prior to the trial, were very able district attorneys and each of them had a reasonable doubt as to the guilt of defendant. He also said that the present district attorney (Mr. Licker), who was then prosecuting the case, had a reasonable doubt as to the guilt of the defendant until September, 1950. (That was the month in which the indictment was returned.) It thus appears that defendant's attorney gratuitously brought before the jury what he considered to be the beliefs of two former, able and respected district attorneys, and what he considered to be the belief of the present district attorney until September, 1950. By those statements he sought to bring to the aid of the defendant the influence and prestige of the office of district attorney during the two former administrations and during a part of the administration of the district attorney who was then prosecuting the defendant. An implication of the argument was that the two former district attorneys, who really were capable of understanding the facts and law involved, had no faith in the case, and by reason thereof it was likely that the present district attorney had no faith in it; and that since the present district attorney was doubtful about the case until recently, when the grand jury indicted the defendant, it might be that he was prosecuting it only because the grand jury had returned the indictment. The present district attorney had announced in his opening argument that his deputy would make the closing argument for the prosecution. That deputy, who made the closing argument, had been a deputy in the office of district attorney for the past nineteen years, which period included of course the administrations of the two former district attorneys referred to by defendant's attorney. Under such circumstances, the argument of defendant's attorney as to beliefs of the former district attorneys and the district attorney who was then prosecuting the case, placed the deputy in a position whereby if he remained silent regarding said implication and did not state his belief concerning the case it might be concluded that he shared the beliefs of the former district attorneys and was making a perfunctory argument; or, on the other hand, he was placed in a position whereby if he replied to the implication and stated his belief, the defendant's counsel might claim, as he is claiming here, that such statement was a foundation for an appeal. In view of the defense argument which was calculated to place the deputy in such a position, and which argument introduced the element of personal opinion of the prosecutor, the deputy was justified in stating his belief. Defendant's counsel did not object to the statement. It might well be that no objection was made for the reason that defendant's counsel realized at that time that, in view of the implication of his own argument, the statement of the deputy was in order. (Additional counsel for defendant appears on appeal.) The denial of the motion for a new trial indicates that the trial judge, who heard the arguments and observed the manner of the attorneys in presenting them, was of the opinion that the argument of the deputy did not amount to prejudicial misconduct. Even though defendant's attorney had made such implication as to the lack of belief on the part of the present district attorney, the deputy should not have said that he knew the defendant was guilty. Such statement by the deputy, however, in my opinion, in view of the strong evidence of guilt and the said insinuation cast upon the present district attorney, was not prejudicial misconduct. In People v. Cowan, 38 Cal.App.2d 231, at page 246, 101 P.2d 125, at page 134, the deputy district attorney said that he was not asking the jury to believe that which he did not believe and ‘I will tell you I am saturated with the confidence and the knowledge that Morris Malter has told you the truth about what this conspiracy was about.’ Malter was the deputy's ‘most important witness.’ On appeal therein it was said, 38 Cal.App.2d at page 246, 101 P.2d at page 134, the deputy ‘should not have stated that he had knowledge that Malter was telling the truth. Otherwise the statement is nothing more than a summary of what should be common knowledge of the ethics to be used by a reputable prosecutor. No such official should attempt to convict defendants on evidence that he does not believe to be true. This portion of the argument was innocuous and could not be regarded as prejudicial. The insertion of the single word ‘knowledge’ into what was otherwise a harmless argument hardly had sufficient emphasis, when taken with the context, to mislead the jury, especially in view of the many and often-repeated instructions to the jury that they could not consider any statement of counsel as evidence nor give it any weight as such.'

In my opinion the deputy's argument regarding motive does not justify a reversal. The district attorney in his opening argument did not argue the subject of motive, but the defendant's attorney argued that there was no motive. He said, ‘[W]hat is the motive here? They haven't talked about it. Maybe they will. They haven't yet. What is the reason for this thing? I suppose * * * maybe they will say there was some sex motive but she wasn't touched that way and you would * * * think if that was the motive that she would have been molested, but there is absolutely no evidence of it. * * * Think about a motive, you finally boil it down, I guess there wasn't any.’ It thus appears that defendant's attorney raised the question as to motive, suggested that the prosecution might say there was a sex motive, and then argued that since there was no physical evidence of sex molestation there was no sex motive or any motive. Although it was not necessary to show a motive, that argument challenged the deputy district attorney to state, in his reply, wherein the evidence showed a sex motive or any motive. The deputy commenced his reply thereto by saying that he had been asked what the motive was in this case. Immediately thereafter he said that the jury had a right ‘to make inferences or deductions from the evidence. I will tell you what the motive in this case is.’ He then argued that there could be a sex motive without physical evidence of sexual molestation. He said that the girl, who was in a hurry to get to work, was hailed by car and she saw the defendant in it; she knew him—he was the only police officer in Carpinteria, she had been a baby-sitter in his home; and she got into the car. The deputy then said that the jury had a right ‘to infer from the evidence in this case, as I am now inferring it to you, from the evidence,’ that improper advances—which had not reached the state of sex molestation—were made to her, and she told him that she would tell her father and defendant's wife; it meant disaster for defendant if she got home; she jumped out of the car, which probably was stopped, and he followed and grabbed her, and as she lay prone upon the ground he strangled her in the manner described in the opening argument; and then to be sure she did not get home he fractured her skull. The deputy then said, ‘That can be inferred from the evidence.’ In view of his several statements that the jury could draw inferences from the evidence, I think his statement that ‘I will tell you what the motive in this case is' should be understood to mean that he would tell the jury what, in his opinion, it could infer as to motive from the evidence. The deputy was entitled to advance any theory of the case which might reasonably come within the evidence, and to state his opinion as to the inferences that could fairly be drawn from the evidence. That the girl was out of the automobile and lying prone upon the ground when she was killed could be inferred from evidence that there was dirt in her mouth and under her fingernails, one fingernail was bent back, and the strangulation and the breaking of her neck occurred simultaneously (testimony of autopsy surgeon), by means of pressure applied upward and downward at the same time, while she was lying prone upon the ground. The deputy, in making the statement as to the reason she was out of the automobile, was presenting his theory of a part of the case and was arguing that, contrary to the defense argument, there could be a sex motive without physical evidence of sex molestation. Even if he presented for the consideration of the jury an illogical or wrong theory as to motive, that should not be a basis for a reversal. Irrespective of the idea of the deputy regarding inferences as to motive that might be drawn from the evidence, the matter of inferences to be drawn from the evidence was ultimately for the determination of the jury. Furthermore, as above stated, it was not necessary that a motive be shown.

In my opinion the verdict of second degree murder did not indicate that the jury was doubtful as to guilt. In an instruction defining first degree murder it was stated in part: ‘* * * It is necessary that the act of killing be preceded by and the result of a concurrence of will, deliberation and premeditation on the part of the slayer, and if such is the case, the killing is murder of the first degree.’ In an instruction defining second degree murder it was stated in part: that second degree murder may be defined ‘as the unlawful killing of a human being * * * without the deliberation, premeditation and preconceived intent to kill essential to the crime of murder in the first degree * * *.’ Under the evidence herein the jury could find that the murder was without the deliberation, premeditation, and preconceived intent to kill essential to the crime of murder in the first degree. If it so found, then in following the instructions, the verdict would be second degree murder.

In my opinion the giving of the instructions of which defendant complains did not constitute prejudicial error. The first of those instructions was as follows: ‘The testimony of one witness entitled to full credit is sufficient for the proof of any fact and would justify a verdict in accordance with such testimony even though a number of witnesses on the other side might testify to an opposite state of facts, if, from the whole case, the jury believes that the greater weight of the evidence, considering its reliability and the credibility of the witness, is on the side of the one witness as against the greater number of witnesses.’ Defendant asserts that the instruction had no application to a criminal case because it pertained to the rule as to preponderance of evidence rather than the rule as to reasonable doubt; and it directed the jury that if it believed from the testimony of one witness that the preponderance of evidence pointed to guilt it would be sufficient to justify a verdict. The instruction pertained to the credibility of witnesses. On pages 38 and 39 of appellant's opening brief, his counsel, in referring to said instruction, said that the court then ‘gave the special instruction as to credibility.’ (Italics added.) More than twenty instructions were given wherein the jury was advised that in order to convict the defendant it was necessary that his guilt be proved beyond a reasonable doubt. Also several correct instructions on circumstantial evidence were given. When all the instructions given are considered together it appears, in my opinion, that said instruction was not prejudicial and the jury was instructed adequately. It is not necessary to refer specifically to the other instructions of which defendant complains.

In any event, I think that the provisions of article VI, section 4 1/212, of the Constitution of California are applicable herein to defendant's claim of misconduct on the part of the deputy district attorney and his claim of error in instructions. That section provides that ‘No judgment shall be set aside * * * on the ground of misdirection of the jury, * * * or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ In my opinion there was no miscarriage of justice. The defense argument amounted to an invitation to the deputy district attorney to reply as to his belief regarding the case. The statements by the deputy as to his belief or knowledge were not of sufficient importance at the time of trial, in the estimation of defendant's counsel, to justify an objection. The evidence of defendant's guilt was very strong. Before the body was found, and when defendant had not been suspected, he tried to get evidence of an alibi for himself. Immediately after the body was found he, an experienced officer, obliterated footprints (contrary to instructions) and explained that he did it because he was nervous. He knew that the imprints of tires, near the place where the body was found, were similar to the tread design on his automobile. Soon after the body was found, and when he had not yet been suspected and while he as an officer was purportedly trying to apprehend the murderer, he tried to get other evidence of an alibi. In explanation of his efforts to get such evidence he said that he wanted the evidence so that, if he should be questioned regarding the crime, he could give an intelligent answer. Also, soon after the body was found, he obtained, by trick and theft, a false statement from the garage boy that the mat was not in defendant's automobile on the date prior to the murder. Soon after the murder he had the inside of the rear compartment and the inside of the front of his automobile blown out repeatedly with an air hose. He was in a hurry to get his automobile, upon which there were fresh brush marks, painted. He explained that he had his automobile, which was three years old, painted because it needed it—the paint was beginning to thin. Prior to painting it however, he did not repair the window in which there was a hole that had been made with a ball bat. At a time when he knew he was under suspicion by the sheriff he insisted that the inside of the rear compartment of his automobile be painted, although the painter had told him that such painting was not customary. A witness saw the girl get into defendant's 1939 Ford coupe the evening the girl disappeared. In the early morning after the girl had disappeared, a witness saw defendant driving in a direction which was away from the place where the body was found. The imprint on the girl's body was of the same design as the design on the rubber mat in a 1939 Ford coupe.

Appellant's contention as to the asserted error in giving the instruction regarding the testimony of ‘one witness,’ in my opinion, is technical and, in view of all the instructions given, was harmless. Many correct instructions on reasonable doubt and circumstantial evidence were given. The said instruction regarding ‘one witness' is to be viewed in the light of common understanding of all the instructions given. It seems clear to me that necessarily, under the evidence herein, the verdict could not have been based upon the testimony of any one witness. In the case of People v. Ames, 61 Cal.App.2d 522, 143 P.2d 92, the same instruction (as that involved here) regarding one witness was given as a part of a long instruction. It was said therein, 61 Cal.App.2d at page 534, 143 P.2d at page 98: ‘This instruction is long * * *. Taken by themselves, the quoted portions, especially the second paragraph, do not correctly state the law applicable in criminal cases—that of reasonable doubt. The closing two and one half pages of the instruction are devoted to a correct statement of the law of the presumption of innocence and of the doctrine of reasonable doubt * * *. Several instructions on the presumption of innocence and reasonable doubt proposed by defendant were also given. It is firmly established that instructions must be considered in their entirety, and their effect on the jury must be weighed after they have been read together as a whole and not from some isolated paragraphs in them. After studying all of the instructions given we deem it a remote possibility that the jury could have been misled by the portions of the instruction we have quoted.’ The jury herein was instructed not to single out an individual instruction, but to consider all the instructions together as a whole. In the light of all the instructions, especially the many on reasonable doubt, it would be attributing to the jury a disregard of said last mentioned instruction to assume that the jury returned a verdict against the defendant without finding him guilty beyond a reasonable doubt.

In my opinion an examination of the entire cause shows, especially in view of the strong incriminatory evidence and the adequate instructions on reasonable doubt and circumstantial evidence, that no essential right of the defendant has been disregarded and there was no miscarriage of justice.

In my opinion the judgment and the order denying the motion for a new trial should be affirmed.

FOOTNOTES

1.  ‘I appear here today before you in a dual capacity. I appear here as a member of the District Attorney's office of this County of Santa Barbara, with which office I have been connected for 19 consecutive years, in charge of the Santa Maria office.’‘As a member of the District Attorney's Office of this County I have taken an oath to prosecute cases to the best of my ability. If, during the conduct of this trial I have been—I have appeared to you to have been overly aggressive or tenacious, then I say to you that I was following out that oath, that in all sincerity I believe, and I still believe and knew prior to the time that I became associated in this particular prosecution in the month of October, that this particular Defendant was guilty of this particular offense. I would not have been associated with the prosecution of this particular case unless I had so believed. One of the mottos of my life to which I always adhere is this: ‘This above all, to thine ownself be true and then thou canst not be false to any man.’ I appear here, secondly, as advocate for one who is not here present, and absent, her voice having been stilled on the fateful night of August the 28th, 1942. Remember that Margaret Senteney is not here present. Remember her in your deliberations as you have a right to do. * * *'‘Remember that there was an eyewitness to this transaction, who could and did have the opportunity under oath on this witness stand to tell you of the facts and circumstances surrounding that woman's death. Remember that opportunity was given to him to tell you what her last words were and what conduct on her part merited this brutal and savage, pre-meditated, wilful, and deliberate murder on her part by him. Remember that he could have told you but he saw fit not to do so. He saw fit, by fabrication, by pointing out inconsistencies, and by falsehood, to lead you astray and to tell you that someone else,—perhaps two men—did it. But he didn't do it. He reminds me of a wolf at bay, also a man-killer, who will use every means at his disposal to escape capture and extermination.’‘I see. In order to bring these facts which were known by the Defendant and his counsel, did he get up at the outset of this particular case and say ‘We are willing to stipulate to the following facts—that he owned—that Leonard Kirkes owned a 1939 Ford automobile; that at one time he had a mat similar to the mat in a 1939 Ford Coupe’. Did he stipulate to that—to those facts? No! The prosecution must put upon the proof of every fact necessary to sustain the burden of proof in this particular case. They are endeavoring and hoping in their own mind that we could not produce those facts so that they could secure a dismissal so this case would never reach a Jury. You noticed at the outset the attitude of Mr. Canfield. You noticed at the outset the difficulty we had with our witnesses, over objection after objection, with reference to Leal and to those other witnesses in the early days of this trial. Those facts were subsequently admitted to be true and why did the Defendant wish to keep them from you at that particular time? The trial of of a case of this nature——‘Mr. Canfield: Just a moment. We don't like to interrupt but the actions of counsel cannot be thrown upon this Defendant and that is not a proper argument. The Court: They have no bearing. Mr. Weldon: I have a right to argue this case—Mr. Canfield: When a prosecutor of many many years experience comes into Court and makes such statements—The Court: Well, the attitude of counsel is of no importance in the materiality in Court. Mr. Weldon: The trial of a case of this nature is analogous and similar to the playing of, say, a ball game, or football game. There are two opposing sides. They have umpires and the spectators pass ultimately upon the merits of the game. So it is with a law suit. * * *’‘The cause or reason upon which the intent of a Defendant is founded is never indispensible for a conviction. We have been asked the question, what was the motive in this particular case? Once a murder or a crime is brought home to the Defendant, the murder—the motive, becomes unimportant and immaterial, and the Court will so instruct you, but I will tell you and you have a right, as the Court will instruct you, to make inferences or deductions from the evidence. I will tell you what the motive in this case is. Mr. Westwick told you that this girl was in a hurry to get to work. She was proceeding toward that work. She was hailed by a car and she placed her hand in this position (indicating) to see who was in that car. She found out who was in that car. It was this Defendant, Leonard Kirkes, a Police Officer who knew her, a Police Officer who was, as counsel for defense said, the only Police Officer in the town of Carpinteria, a man who belonged to the same church that this girl did, a man in whose home this girl had acted as a baby-sitter. Would she hesitate to get into this car with such a man? She got in that car with him, there is no doubt about that, and then what happened? Immediately after she got into that car, and you have a right to infer that, from the evidence in this case, as I am now inferring it to you, from the evidence in this case, improper advances were made to her. True, it had not reached the state of sexual molestation. She told him, ‘If I ever get back I will tell my father. I will tell your wife. You are a Police Officer.’ And what could Kirkes do under the circumstances? It meant disaster for him if that girl ever got back to her home alive. It meant disaster. It meant her death at that time. I mean that! I mean that! And how did she come to her death? She had with her a coat, a purse, and she was dressed. When she got out of that car—and she jumped out—the car was probably stopped in order for him to accomplish what—accomplish the purpose that was in his mind. She jumped out of that car and he followed her and grabbed her and she lay prone upon the ground and left her coat and purse in that car at that time. He throttled her and strangled her in the manner described to you by Mr. Licker. To be sure that she was dead at that particular time, either in her dying moments or when she had that death rattle in her throat, he wanted to be sure she never got back to Carpinteria, and what did he do? He brutally fractured her skull. That can be inferred from the evidence in this case.'[And in speaking of the testimony of Dorothy Egan]: ‘Their attempt to belittle her testimony by casting aspersions upon her character, upon her mind, and upon her integrity, are analogous to a similar situation that occurred more than 1950 years ago about this season of the year, when a woman, also with child, was belittled and humbled by a populace that had no place for her to rest, in their minds or in their hearts or in their homes. I say, shame upon counsel, I say shame upon counsel for this unwarranted attack upon the integrity of this young woman. If the evidence discloses that she was not mentally competent at the time she saw Kirkes on August 28th, 1942, that would be one thing to bring out but to bring up an event that took place more than three years after and while she was in a delicate condition and to hold her up to ridicule in this Court, I say, shame! The court will instruct you that you have a right to make inferences and deductions from the evidence. You have a right to infer the following from the testimony of Dorothy Egan: First, that she was seventeen years of age when the incident she testified to happened. Second, that the Defendant had not been apprehended in this case until September 1950. You have the right to infer that this girl waited for her own safety until this Defendant was apprehended, until he was indicated by a Grand Jury of this County, until proceedings were had against him, to bring him to justice, before coming forward, because if she had come forward, with the knowledge that that man had of every portion of the evidence in this case, her life wouldn't be worth that.’‘Had Leonard Kirkes performed his obligations which he owed to society and lived uprightly and in accordance with the law, this case and its attending circumstances would never have occurred. But Kirkes saw fit to disregard the obligations he owed to society and demonstrate to the world that he possessed a heart fatally bent on mischief. The kinder and nobler feelings of our nature found no lodgment in his heart. He has wickedly imbued his hand in the blood of a fellow man and the blood of that fellow man now cries out from the earth against him. He has taken the life of a fellow creature and sent a creature bearing God's image unbidden into his presence. Remember, he has taken all that can never be restored except by God alone. He took away from Margaret Senteney her most valuable possession. All that a man has, will he give for his life. He gave Margaret Senteney no chance for capitulation. Not a moment of time in which to say, ‘God be merciful to me.’ But robbed her in a moment of her life. Sent her unannointed, into an undiscovered land, closed her eyes forever to the pleasant and endearing scenes of this earth, the mountains, the valley, the hills, the ocean, the flowers, the sunset, the moon and the stars, the sight of her father and her loved mother. There is a law that was penned more than three thousand years ago, that has come down the long track of time and is hoary with age: ‘Thou shalt not kill.’ The penalty for that violation was penned about the same time: ‘He that shedeth man's blood by man shall his blood be shed.’ Leonard Kirkes, you have violated that law and a dreadful penalty has attached to your violation.'

2.  ‘The testimony of one witness entitled to full credit is sufficient for the proof of any fact and would justify a verdict in accordance with such testimony even though a number of witnesses on the other side might testify to an opposite state of facts, if, from the whole case, the jury believes that the greater weight of the evidence, considering its reliability and the credibility of the witness, is on the side of the one witness as against the greater number of witnesses.’

3.  ‘You are not bound to decide in conformity with the testimony of a number of witnesses which does not produce conviction in your mind, as against the declarations of a lesser number or a presumption or other evidence which appeals to your mind with more convincing force. This rule of law does not mean that you are at liberty to disregard the testimony of the greater number of witnesses merely from caprice or prejudice, or from a desire to favor one side as against the other. It does mean that you are not to decide an issue by the simple process of counting the number of witnesses who have testified on the opposing sides. It means that the final test is not in the relative number of witnesses, but in the relative convincing force of the evidence.’

SHINN, Presiding Justice.

VALLÉE, J., concurs.