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


Cr. 4717.

Decided: March 13, 1952

Bertram H. Ross, Los Angeles, for appellants. Edmund G. Brown, Atty. Gen., and Stanford D. Herlick, Deputy Atty. Gen., for respondent.

On the afternoon of a hectic day in April, 1951, defendant was standing in the doorway of his home, with a loaded shotgun in his hand. He was facing his former son-in-law, who was standing on the front porch. The gun fired. Its charge struck the son-in-law in the face, killing him instantly. Defendant was tried for murder, convicted by a jury of manslaughter, and appeals from the court's judgment sentencing him to state's prison, and from an order denying him a new trial.

The son-in-law was divorced from defendant's daughter, and the decree had become final. There was a little girl of this marriage. The daughter and her little girl were living in the home of her father and mother.

On at least two occasions before the shooting, the son-in-law had appeared at defendant's home, under the influence of liquor, and threatened to kill defendant and his family, and had cursed everyone in sight.

On the second of these occasions he forcibly entered defendant's house, yanked the telephone off the wall, pulled a knife on defendant, kicked in the doors and broke up the furniture, including defendant's television set. For this offense he was haled into court, pleaded guilty, and was put on probation. On this occasion sheriff's officers who investigated the breach of the peace told defendant he had a right to kill the man if necessary to protect his home and family. And one of the conditions of his probation was that he was to remain away from his former wife.

On the afternoon of the homicide the son-in-law came to defendant's home three times. The first time he was met by his former wife outside the house. He demanded permission to take the little girl for a ride. The mother refused because he was obviously considerably under the influence of liquor. Then he cursed her and her father, and threatened to kill the whole family, and kicked over the garbage can. He went away before sheriff's officers could be summoned.

The second time he came on that day he kicked the front door so hard that it jarred the whole house. He did not get inside, because the door was secured with a safety chain. Again he left before peace officers could be summoned.

On the third and last time he came, he again cursed everybody, and threatened to kill the defendant and the whole family. This time he remained until officers from the sheriff's substation at Norwalk arrived. Defendant told the officers that the son-in-law could not come into his house, but that the others could. The officers advised everyone to keep the peace, but unfortunately got back into their patrol car without requiring the son-in-law to leave.

Defendant's daughter walked toward the front door of the house. Her former husband intercepted her at the front porch. His talk was loud, profane and threatening. Defendant came to his door, holding his loaded shotgun in his right hand. The girl sensed that her father was in the door. She started back into the house, bumped into her father, and the gun discharged, with the fatal result.

There is grave question whether the evidence supports even a verdict of manslaughter, when one gives to defendant the benefit of a reasonable doubt, and the presumption of innocence to which under our law he is entitled.

In any event, the judgment must be reversed for a number of errors, any one of which alone would require the same holding. These errors are as follows:

On three different occasions, called upon to rule upon the admission of evidence, a conference was held at the judge's bench among counsel for the people and for defendant and the judge. The record does not disclose what was said by any of the parties, and this court is unable to determine why the rulings were made. Criminal trials require that the defendant and the whole court, including the defendant, and others there present, shall hear what is said and see what is done by everyone. The practice of holding private conversations at the bench which no one else in the court room hears, and of which no record is made, is contrary to the standards of trial practice which it is the function of this court to maintain.

On a number of different occasions, on cross examination of defendant's witnesses, there was particularly gross misconduct by counsel for the people. Time and again he read from what he said was a transcript of questions and answers of these witnesses, at what he said was an investigation by sheriff's officers on the day of the homicide. The questions and answers as he read them did not fairly impeach the witnesses' testimony. Then when witnesses answered the question, ‘Did you so testify?’ counsel went further and argued with them, saying, ‘Now which time were you telling the truth?’ Objections to this form of question were repeatedly overruled, and motions to strike denied.

Particularly obnoxious was the cross examination of defendant's daughter. For a sample of it, consider the following:

‘Now, I ask you were you asked those questions and did you give those answers? A. I gave those answers, yes, but it is entirely wrong, of what happened, I was half out of my mind when all this happened; I was in a nervous state, to be frank with you. I don't really remember too much of what I said in that transcript that you have there.

‘Q. And you are telling us, are you, that when Mr. Haight asked those questions and you gave these answers, you were not telling the truth; is that right?’

(Objection made and overruled.)

‘The witness: What was that?

‘Q. At the time you gave these answers to Sgt. Haight's questions, you were not telling the truth, is that right?

‘Q. All right, now, when you gave that answer, was that answer true?’

(Objection made and overruled.)

‘Q. Was that answer that you gave true? A. True to the extent of what I had said there, yes.

‘Q. And that was not true?’

It would seem that any tyro at the bar should know the time-honored rules in respect of impeaching questions of this sort: First, the impeaching evidence must be plainly inconsistent with the testimony sought to be impeached. People v. Radovich, 122 Cal.App. 176, 9 P.2d 542; People v. Peter, 125 Cal.App. 657, 14 P.2d 166; People v. Smith, 25 Cal.App.2d 241, 77 P.2d 277. Secondly, when the question, ‘Did you so testify?’ is answered, no argumentative questions should follow. Interrogating a witness in terms of conclusions as to whether the former testimony is contradictory is not permissible. People v. Larrios, 220 Cal. 236, 30 P.2d 404.

No record of success in obtaining convictions in criminal cases is worth the injustice and injury inflicted upon the defendant in this case. As Mr. Justice McFarland said long ago in the case of People v. Wells, 100 Cal. 459, 465, 34 P. 1078, 1080:

‘It is too much the habit of prosecuting officers to assume beforehand that a defendant is guilty, and then expect to have the established rules of evidence twisted, and all the features of a fair trial distorted, in order to secure a conviction. If a defendant cannot be fairly convicted, he should not be convicted at all; and to hold otherwise would be to provide ways and means for the conviction of the innocent.’

The people called as a witness on rebuttal a sheriff's officer, who testified from memory as to the exact language of questions asked and answers given on the examination at the sheriff's office, none of which was in fact impeaching. The witness made no memoranda for himself. No shorthand reporter was called to testify as to what had been said. And there was no evidence that this witness had even refreshed his memory.

No man has that good a memory. It is unfair to a defendant in a criminal case to assume to prove in that way statements supposed to have been made, said to be impeaching. So far as the record before this court goes, defendant freely answered questions put to him by the sheriff's officers. His statements there and his testimony in court were to all intents and purposes the same. He stood in the doorway of his home to protect it and his family; the man who was killed had threatened them all, and on one occasion had inflicted great damage in defendant's home; and while the gun was in defendant's hand it was accidentally discharged.

The court read to the jury long and detailed stock instructions on confessions. Defendant made no confession; such portions of his statements at the sheriff's office as were read were not a confession, and no instructions on confessions should have been given. The trial court should not assume in an instruction that a defendant has confessed a crime, when he has not. People v. Strong, 30 Cal. 151; People v. Andrade, 29 Cal.App. 1, 154 P. 283.

The judgment and the order denying a new trial are, and each of them is, reversed.

I dissent.

Since appellant in his opening brief states that he ‘does not question the sufficiency of the evidence to justify the verdict’, I am not concerning myself with the factual background surrounding this prosecution, but will confine myself to the claimed legal errors which allegedly occurred during the trial.

Regarding the alleged error in the cross-examination of appellant's witnesses and in particular, during the cross-examination of his daughter, it appears in the record that at the trial this witness gave testimony at variance with statements made by her to the officers immediately following the homicide. In the instant case, the attempted impeachment of the witnesses, including appellant, was in accordance with section 2052 of the Code of Civil Procedure. Appellant's daughter was permitted to explain the apparent inconsistency in her testimony, which she did by saying that at the time she made her statement to the officers she ‘was in a nervous state, to be frank with you, I don't really remember too much of what I said in that transcript that you have there’. Proof of prior statements made by a witness, inconsistent with his or her testimony, is a recognized and proper means of impeachment, and goes to the credibility of such witness. A reading of the record convinces me that the impeaching questions were not directed to a collateral matter but had a direct bearing on the circumstances and transactions which resulted in the homicide. Since no claim is made that the evidence was insufficient to sustain the judgment of conviction, I fail to see wherein prejudicial error may be predicated upon the rulings of the court concerning the questions asked in an attempt to impeach appellant and his witness during cross-examination.

Concerning appellant's complaint that the court erroneously instructed the jury on the subject of confessions and admissions, the record reveals that the court instructed the jury that evidence was received tending to show that on an occasion other than the trial appellant made statements tending to prove his guilt of the crime charged. That such a statement may be either a confession or an admission. That a confession is a statement acknowledging a certain conduct constituting the crime for which he was on trial, disclosing his guilt of said crime and excluding the possibility of a reasonable inference to the contrary. The jury were further told that if they found that a confession was made, they were to decide whether it was true. Further, they were told that an admission is something less than a confession, which does not concede guilt, but which proves a fact of come element of the crime.

The jury were then instructed that the law forbade them to consider a confession unless it was voluntary; that they were to determine whether it was voluntary; that this rule is not applied to an admission not amounting to a confession. The court then admonished them to view with caution the testimony of any witness purporting to relate an oral admission or confession. A further instruction was given defining for the jury when a confession is involuntary.

Appellant earnestly contends that no confession is to be found in the record of this case and thus the instructions unduly stressed the definition of a confession to his prejudice in that a jury might believe from such instructions that appellant had confessed to the crime. Appellant places great reliance upon the case of People v. Strong, 30 Cal. 151, in which it was held that the giving of an instruction on confessions was erroneous where no confession was contained in the record. However, it is to be noted that in the cited case all the evidence was circumstantial. The decision indicates that no statements were made which could be construed either as a confession or admission. Without quoting verbatim the instruction in question which appears in the decision of the court, suffice it to say that the Supreme Court held that this instruction as given would have been erroneous even if there had been any degree of admission to participation in the crime because the instruction failed to advise the jury that it was for them to determine whether such evidence amounted to proof of the fact.

In the case at bar, we are not confronted with a record such as that contained in the Strong case because, in my judgment, the appellant herein did make certain statements tending to show guilt. Also, the instructions given are admittedly correct statements of the law. In the case at bar the jury were told that they were the judges of whether the statement made was a confession or an admission; that testimony indicating such statements should be viewed with caution.

Although not appearing in the majority opinion, we do find in the record evidence of extra-judicial statements made by appellant as follows: inside the house before the shooting appellant stated he would shoot the deceased if the latter came in the house. He was warned by a deputy sheriff that he might be charged with murder if he did so. When the door to the house opened later, and appellant pointed the gun in the deceased's direction, he said, ‘You can not come into this house, but the doctor can. If you do, I will shoot you.’ When the deceased requested appellant to step outside, appellant replied, ‘Why, you yellow-bellied bastard, I could shoot you without batting an eye.’ After the gun was fired, and Elsworth fell dead, appellant ran down the steps with the gun in his right hand, exclaiming, ‘Oh, my God, I did it. I did it.’ When interrogated by the officers appellant stated that it was his gun. In testifying he admitted that he had fired the gun previously that same day and had reloaded the chamber before going to the door.

Where, as here, the facts are that the defendant was in possession of a deadly weapon which he pointed at the victim, and the fatal instrumentality is that weapon, and where immediately after the shot is fired defendant declares, ‘I did it’, has he confessed to manslaughter? If the jury believed that it was voluntary manslaughter and that he pulled the trigger, or if they believed that he did not pull the trigger, but that the death arose out of the unlawful assault with a deadly weapon, then such a declaration could, in my opinion, under the circumstances of this case, be construed as a confession of the crime of manslaughter.

In any event, the question seems to me to be close enough to warrant the trial court in submitting the matter to the jury for determination. And, the instructions being proper, it must be deemed that the jury decided the question correctly. If appellant desired to clarify or amplify the instructions on admissions and confessions because of any inadequacy therein by reason of their generality, indefiniteness or incompleteness, he should have requested the same. Having failed so to do, error cannot be predicated upon the failure to give such additional instructions, People v. Reed, 38 Cal.2d 423, 240 P.2d 590; People v. Ahsbahs, 77 Cal.App.2d 244, 249, 175 P.2d 33; People v. Chavez, 100 Cal.App.2d 214, 218, 223 P.2d 44.

In the case now engaging our attention, I am persuaded that the jury could not have been misled by the giving of the general instructions on the definitions of confessions and admissions particularly where it was left to the jury to determine whether such definitions were applicable to the facts presented and where the jury might reasonably infer from the statements made that appellant did in fact confess the crime of manslaughter, of which he was convicted.

Assuming it may be difficult from the statement made by appellant whether it amounted to a confession or an admission, he was not prejudiced by the instructions given. If the statement, ‘I did it’ be rgarded as only an admission, the jury, without proper instructions might well have regarded it as a confession. The correct instructions given on the distinction between confessions and admissions served rather to aid than confuse the jury.

In my opinion, appellant's contention that error was committed in the giving of instructions on admissions and confessions because the statements of appellant upon which such instructions were predicated were introduced for purposes of impeachment only cannot be sustained. Although counsel in offering evidence may state it is for a limited purpose only, the specification of such purpose is but a reason addressed to the court, why the particular evidence should be admitted. As stated in Island v. Fireman's Fund Indemnity Co., 30 Cal.2d 541, 546, 184 P.2d 153, 156, 173 A.L.R. 896, ‘The court is not bound by the declarations of counsel that evidence is admitted for a limited purpose so as to preclude the drawing of deductions from it other than those suggested by the terms of the offer, unless injustice would follow to the opposite party by permitting such inferences. (Citations.)’ See also Isenberg v. Sherman, 214 Cal. 722, 731, 732, 7 P.2d 1006. Impeaching evidence is only to be limited where it is incompetent for any other purpose. 27 Cal.Jur., 169–170, sec. 143; People v. Barr, 134 Cal.App. 383, 387, 25 P.2d 503; People v. Holman, 72 Cal.App.2d 75, 96–97, 164 P.2d 297, and cases therein cited.

In view of appellant's concession that the evidence is sufficient to support the verdict arrived at in this case, I am persuaded that no prejudicial error is to be found in the record. I would therefore affirm the judgment.

DRAPEAU, Justice.

DORAN, J., concurs.