PEOPLE v. WATSON

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Philip J. WATSON, Defendant and Appellant.

Cr. 2973.

Decided: October 06, 1955

Gregory S. Stout, Leslie C. Gillen, San Francisco (William F. Cleary, San Francisco, of counsel), for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

Defendant Philip Watson appeals from a judgment of conviction of second degree murder.

Arlys Watson, wife of the defendant, was killed on February 15, 1953, in the San Francisco apartment she shared with defendant. The evidence that defendant committed the crime is entirely circumstantial. That evidence is by no means overwhenming, although sufficient to sustain the judgment. The closeness of the case on the evidence, however, makes it imperative to scrutinize the record carefully to determine whether any errors were committed during the trial, and, if so, to determine the effect of such errors.

In February of 1953 defendant was 26 years of age and his wife was 22. He was a corporal in the United States Army, having been inducted in March, 1951, was stationed in San Francisco, and was due to be discharged March 19, 1953. He had been in the United States Maritime Service from 1944 to 1951, reaching the rank of Lieutenant J. G. He had married Arlys in Seattle in June of 1952, they had come to San Francisco in July of that year, and planned to return to Seattle upon his discharge. The couple lived together in an upstairs apartment in San Francisco. There is no evidence that there was any friction between the two, the evidence being to the effect that they were a normal, happy and loving couple. The landlady testified that she had never heard or seen them fight, and that they appeared to be very much in love.

February 15, 1953, was a Sunday. At about 7 p. m. that night defendant telephoned to the police to report that he had just found his wife dead in their apartment. Officer Mullen responded, met defendant, who appeared to be nervous,1 and found Arlys lying in the bathtub, with her legs bent in a jack-knifed position, and with the head partially submerged, although neither the nose nor mouth was under water. The tub was filled with cool water to the level of the overflow drain, and the water was quite bloody. The walls of the bathroom were clean and the bathroom floor was dry. The officer discovered that the body was rigid, and made no effort to remove it from the tub. He noted that the bed was unmade, but that everything else in the bedroom seemed to be in order.

Inspectors Flynn and Thompson arrived, and shortly thereafter were followed by an ambulance driver and ambulance steward, the latter Zielinsky by name. These last two made a cursory examination of the body, and to better examine it removed it from the bathtub and placed it on a mat on the bathroom floor. Zielinsky testified that the body was very stiff and rigid. Zielinsky noted that there was some bleeding from a matted mass of hair in the back of the victim's head, but the wound or wounds were not visible. He observed that the hands were bruised. He removed a sheet from the bed and covered the body. At that time there was a rose-colored bedspread on the unmade bed. The landlady of the apartment, which had been rented to the Watsons furnished, testified that the rose-colored bedspread was hers, but that when the Watsons rented the apartment Arlys had stated that they had a bedspread of their own and would use the rose-colored one on the divan in the living room, and that as recently as February 9, 1953, she had seen a white bedspread on the bed. It was the theory of the prosecution that Arlys had been killed by defendant in the bedroom; that the white bedspread had become bloodstained, and that defendant disposed of it before he called the police. The white bedspread, if it existed, was not produced.

Two coroner's deputies next arrived at the apartment and the ambulance men departed. Defendant testified that he heard one of the coroner's deputies state, after he had examined the body: ‘She looks like she has been dead four hours.’ The coroner's men then cleaned up the bathroom and left with the body. Defendant testified that he then motified the military authorities,2 and then Officer Mullen told him that all there was left for him to do was to appear at the coroner's inquest in about 6 weeks, advised him against remaining in the apartment that night, and left. It may be significant that the prosecution on direct examination did not ask Mullen about this conversation or those that he had with the two police inspectors, and that, when the defense sought to do so on cross-examination, the prosecution successfully objected on the ground that it was not within the scope of the direct. It may also be significant that neither the two coroner's men nor the two inspectors were called at all by the prosecution.

The coroner's office reported the death to Inspector Nelder of the homicide detail, and he and Inspector Van Dervoort arrived at the Watson apartment to find the door locked. The landlady admitted them. Examination then and later revealed no indications of a forced entry. Money was found in Arlys' purse, and there was no evidence of robbery. The apartment, generally, seemed to be in order. Nelder ascertained from the army authorities that Watson had told them that he was going to stay at the Olympic Hotel. The two inspectors proceeded to that hotel and found that Watson had registered there but was not then in his room. They walked about the neighborhood and found Watson on the street,3 took him to the Hall of Justice, and interrogated him. The story defendant then told the police, and the story told them during subsequent extensive interrogations, and the story told as a witness at the trial, were substantially the same. Watson stated that he had last seen his wife alive at about 12:30 p. m. when he left the apartment. He admitted that Saturday, night, February 14, 1953, he and his wife had had a little disagreement over the fact that she had sent him a Valentine and he had forgotten that it was Valentine's Day, but he denied that then or at any other time had they had a serious argument. This is the only evidence of motive introduced by the prosecution.

Defendant stated that on the morning of February 15, 1953, his wife arose first, and he got up sometime after 9 a. m.; that before breakfast, and about 10 a. m., he went out to buy a newspaper and got a paper and six cans of beer, which he brought home; that while he was in the bathroom his wife, without his knowledge opened one of the cans of beer; that when he came into the kitchen reading the newspaper he attempted, without looking, to open the same can, punching a third hole in it; that he then grabbed the can and cut his finger on the barb of the opened can;4 that he wrapped toilet paper around the bleeding cut, sat down to read the paper, and awaited breakfast. They sat down to a breakfast of orange juice, bacon, waffles and coffee sometime between 10 and 11 a. m. Watson recalled that each ate half of two waffles. The garbage pail in the kitchen contained evidence that such a meal had been prepared. Five cans of beer were found in the refrigerator, and one empty and bloody can with three holes in it was found in the garbage pail.

According to Watson, after breakfast and after spending some time reading the newspaper, he asked his wife if she wanted to take a ride; that she declined, stating that she should have cleaned the apartment on Saturday while he was working, and wanted it clean because they had a house guest coming the next week, and that he should go out and enjoy himself. Defendant testified that he started to make the bed when his finger started to bleed again, and then decided to, and did, go out alone.

The apartment in which the Watsons lived was so constructed that the tenant in the apartment below could hear noises emanating from the Watson apartment. On the fatal morning between 10 a. m. when he arose, and 10:30 a. m., when he left, there were no unusual sounds from the Watson apartment. Nor were there any such sounds between 12:30 and 2:30, nor between 4:30 and 6 p. m., when he was again the his apartment. Both this tenant and the landlady could remember hearing some noises from the Watson apartment, as if furniture were being moved, Saturday. The implications that the prosecution sees in this testimony are that the murder did not take place during the period the tenant below was in his apartment, and that the Saturday noises were caused by the fact that Mrs. Watson actually cleaned the apartment on that day, and so has no reason for staying home Sunday. The next door neighbor of the Watsons heard three or more unusual thumping noises coming from the Watson apartment Sunday morning between 10:30 a. m. and 12 m., but neither he nor any other witness heard any screams or shouts emanating from the Watson apartment.

Defendant testified that when he left the apartment he took several bags of laundry with him and delivered them to a nearby laundry. This was corroborated, there being a bloodstain near the top of one of the laundry bags. He stated that he then drove to Half Moon Bay, making several stops along the way to observe the view. He saw no one he knew. He drove to Half Moon Bay to sun himself, but left in about half an hour because it became windy. After his arrest, sand was discovered in his shoes and socks which the prosecution expert testified was similar to Half Moon Bay sand. Defendant stated that he then went to Sutro's and had a swim in the hot tank, using his own swimming suit. The fact that he was at Sutro's sometime that afternoon, and had left after 5 p. m., was corroborated by the fact that the slip he had signed to check his valuables so indicated. His wet bathing suit was found in his automobile. After leaving Sutro's, defendant stated that he started towards home and stopped at a drugstore to buy his wife a heartshaped box of candy to make amends for his oversight on Valentine's Day. The purchase of this candy was corroborated by the clerk. Defendant testified that he then drove to a bar near his home and had a couple of beers, purchased a pint of ice cream in a nearby store, and arrived home about 7 p. m. Their normal dinner hour was about 8 p. m. on Sundays. The box of candy and carton of ice cream were found in the kitchen by the police. Defendant stated that upon entering his apartment he searched for his wife and found her in the bathtub; that he started to pick her up,5 found that she was rigid, realized that she was dead, and desisted, and then phoned the police.

In attacking this alibi the prosecution offered the testimony of a cab driver to the effect that he had seen defendant sometime between 12 m. and 1 p. m. on Sunday near a named bar in Daly City. This was on an entirely different route than the one defendant stated he had baken. Another taxicab driver, and also the wife of the bartender, stated that they had seen defendant near or in the bar at about 1:30 p. m. of that day. Defendant at all times denied that he had been in Daly City on the fatal Sunday.

It was the theory of the prosecution that defendant had killed his wife before leaving the apartment; that he then went out and built up an elaborate alibi, and hid the bedspread and a blanket; that he then came home before 7 p. m., cleaned up the apartment to hide the evidence of any struggle, and then placed his wife in the bathtub to make it took like an accident. Such theory is consistent with the evidence, but it certainly is not the only inference to arise from the evidence.

An autopsy on the body of Arlys revealed seven lacerations on her scalp distributed in the back and central top area of her head. She had a bruise on her forehead, her neck was bruised as if she had been choked, and she had a small discoloration on her chin. There were multiple bruises over the backs of both hands and wrists, the pathologist characterizing them as defensive contusions caused when she placed her hands over her head to ward off the blows. There was no skull fracture, but there had been extensive bleeding from the head lacerations. The brain showed multiple areas of contusions and hemorrhages. No water was present in the lungs, nor was there any evidence of a sexual attack. Death was caused by multiple traumatic injuries to the head with contusions and concussion of the brain. Death appeared to have been caused by a heavy blunt instrument. The death instrument was not found. A very small piece of black glass was found in the tub, but no object of such material was found in the apartment, nor was there evidence that the Watsons ever owned such an object. Minute particles of glass of the same material were found in the lacerations in the head of the victim.

The medical experts for the prosecution estimated that death had occurred approximately an hour after the last meal had been eaten.6 Because the time limits involved could not be exactly fixed, this would support either the theory that Arlys had been killed while defendant was still in the apartment, or the theory that she had been killed shortly after he said he left.

There was considerable evidence in relation to rigor mortis, and how long it takes to become fixed. The doctors for the prosecution testified that it takes about 8 hours after death for a body of the age and condition of this one to reach the state of rigidity that other witnesses testified the body had about 7:30 p. m. when it was discovered. This would, of course, fix the time of death at 11:30 a. m., which was before the time the defendant testified he left the apartment. The doctors all admitted, however, that there was a wide variation from normal, and that the time of death could not thus be fixed with positiveness.7

The pathologist called by the prosecution sought to fix the time the body had been immersed in the water, testifying that normally skin wrinkling in certain areas occurs after one hour's immersion, and remains present for about 22 to 24 hours. There was no skin wrinkling when he examined the body some 17 or 18 hours after it was removed from the tub.

When defendant first told his story to the police (and at all times thereafter) he stated that when he left the apartment to go to Half Moon Bay he had worn a jacket, a sport shirt and some old trousers and shoes. He told the police that these were in his room at the Olympic Hotel, where he had changed to the clothes he wore when arrested, and the described clothing was found there by the police. Included with this clothing was a pair of socks stuffed into the shoes. The soles of the socks had blood stains on them, later determined to be both ‘A’ and ‘O’ types of blood. That of defendant was ‘O’, while the blood of Arlys was ‘A’. Defendant testified that after Officer Mullen had left him in the apartment he had finished cleaning up the bathroom, including some of the bloody water that fell on the bathroom floor when the body was removed. This he had done in his stocking feet. No other bloodstains were found on any of defendant's clothing.

After defendant was taken to the Hall of Justice on the night of February 15th and interrogated, he was later returned to the apartment by the police. At that time he showed the police the beer can, then in the garbage pail, on which he had stated that he cut his finger. There were bloodstains on the can which turned out to be ‘O’ type blood. On this same visit, defendant told the police when they discovered a bloodstain on the rose-colored bedspread that it was his blood, having been put there when he tried, with his cut finger, to make the bed.

The police then took defendant to a doctor for an examination of his body. The doctor found that one knee was bruised, defendant explaining that this occurred while he was on the rifle range on Saturday. There were also scratches on his left forearm and on his left upper chest, described by the doctor as ‘recent,’ that is, within the last 24 hours, but the doctor fairly admitted ‘You can't be definite about that.’ Defendant could not explain how he had received these scratches.

Police criminologists and inspectors made several scientific examinations of the apartment, the earliest one on the morning of February 16th. Numerous small bloodstains were found on the east wall of the bedroom. This proved to be ‘O’ blood, and conceivably, if defendant's story is true, could have been thrown on the wall when defendant could have shaken his finger when it started to bleed when he started to make the bed. The bedroom rug near the east wall appeared to have been rubbed or washed, but was dry. This portion of the rug when sprayed with luminal indicated the presence of blood. A luminous reaction was found between the bed and the east wall of the bedroom, going north and then curving toward the bathroom. No bloodstains were found on the bathroom walls. During the first examinations no bloodstains were found on the living room furniture, floor or walls, but a subsequent examination disclosed a few bloodstains on the undersurface of the divan where the cushion lay on the framework. These were found to be both ‘A’ and ‘O’ blood. The police criminologist found all the stains on the rose-colored bedspread to be ‘O’ blood, but a prosecution criminologist subsequently ascertained that some of this blood was ‘A’ type.

During the several police interrogations, and at the trial, defendant admitted that he and his wife had owned a white bedspread, but testified that it had been disposed of 2 or 3 months, later fixed at about 1 month, before February 15th. At all times his story was that he had burned a big hole in the spread while lying on the bed smoking a cigarette, and that he and his wife decided to throw it away because they did not want the landlady to know that he had been smoking in bed in violation of house rules. According to defendant he had put the burned spread in a large paper bag and either he or his wife had thrown it in the outside garbage can.

There was considerable evidence about a blanket given to the pair as a wedding present by the maid of honor at their wedding, she being the girl who was the expected house guest from Seattle. She testified that the blanket was a wool, peachcolored blanket, with a wide satin binding. No such blanket was found in the apartment and defendant could not or did not account for its disappearance. He testified that he had not seen the blanket since sometime in January of 1953. The police learned about the presence of a blanket but were not sure of its color. During the police questioning defendant was several times asked the whereabouts of a yellow or lemon-colored blanket, and he stated that he could not remember ever owning such a blanket. The landlady remembered, she thought, having seen a yellowish blanket with a satin binding on the bed, but could not remember when she had seen it.

On this evidence the jury brought in a second degree murder verdict. The appellant makes several assignments of error. He first contends that his counsel was unduly restricted in the cross-examination of certain prosecution witnesses, particularly of Officer Mullen. Most of the prosecution objection here involved were sustained on the ground that the cross-examination was beyond the scope of the direct examination. Of course, section 2048 of the Code of Civil Procedure limits cross-examination of a witness to ‘any facts stated in his direct examination or connected therewith,’ but it is equally true that section 1854 of the same code provides that ‘When part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other; * * * and when a detached act, declaration, conversation, or writing is given in evidence, and other act, declaration, conversation, or writing, which is necessary to make it understood, may also be given in evidence.’ In reading the more than 1700 pages of transcript we have been impressed by the fact that quite uniformly the trial judge limited the cross-examination of prosecution witnesses, very strictly applying section 2048, but that he permitted very liberal cross-examination of defendant and his witnesses, apparently applying section 1854. Particularly in the cross-examination of Officer Mullen, the first officer to arrive on the scene, were strict limitations imposed. The prosecutor in many instances stopped just short of asking the witness about conversations he had had with the ambulance men, coroner's men, or inspectors, and then the trial judge prohibited appellant from cross-examining Mullen as to these matters. Since 4 of these men were not called as witnesses by the prosecutor, appellant was forced to go before the jury with only his recollection of such conversations and transactions. This was highly unfair to appellant. What Mullen saw and heard while he was in the apartment was part of the general transaction involved on the direct examination, and inquiry into it should have been permitted.

In situations such as the one here involved great liberality should be exercised so as to not unfairly prejudice the defendant. In People v. Whitehead, 113 Cal.App.2d 43, 247 P.2d 717, also a murder case, the judgment of conviction was reversed because of improper limitations imposed by the trial court in the cross-examination of prosecution witnesses. In the course of a discussion of the problem here involved the court, 113 Cal.App.2d at page 49, 247 P.2d at page 721 stated:

‘The proper rule would appear to be that physical acts testified to cannot be arbitrarily separated from the verbal acts accompanying them and made at the same time and place. Such ‘verbal acts' also must be considered to be admissible in order to prevent the false coloring of the event, to rebut, explain, qualify and possibly to impeach the testimony concerning the physical acts also occurring at that time and place. In other words when testimony has been introduced relative to an occurrence all parts of that occurrence, verbal as well as physical, are properly within the scope of the cross-examiner's probe. For the trial court to draw the line on a horizontal plane, thereby determining that testimony may be given as to the occurrence of physical acts but that the conversation attendant with such acts is something wholly distinct therefrom and hence may not be admitted, is artificial and may well lead to a coloring of the evidence. Thereafter since the prosecution examined the witness as to the occurrence during which the deceased was shot, it may not so limit such examination so as to preclude the cross-examiner from eliciting conversation which was a part of the same occurrence. By examining the witness as it did it thereby voluntarily opened a door which it cannot arbitrarily close, and the cross-examiner may bring out all the facts within the knowledge of such witness as had transpired at the occurrence testified to in chief, and which are material to a thorough understanding thereof. Code Civ.Proc. §§ 1854, 2048.’

There can be little doubt that error was committed in thus unduly limiting the scope of the cross-examination of Mullen. Whether such error was prejudicial, standing alone, need not be determined, inasmuch as the next error to be discussed, considered in the light of the entire record, was clearly prejudicial.

This error relates to collateral matters that the prosecution, over objection, was permitted to develop, and which could have had no purpose except to discredit and degrade the appellant. The prosecuting attorney attempted to crossexamine appellant about certain marks on one of the door frames in the apartment, which marks appellant admitted were measurements of his height at various intervals. When further questioning on this line was objected to, the prosecution, over objection, was then permitted to show that appellant had been attending gymnasium classes, the contention being that appellant did so to stretch his height beyond the 6′6′' limit fixed by the army so that he could get out of the army. The court, over objections, permitted these questions on the representation that they were preliminary. The prosecuting attorney then made an offer of proof. He stated that he wanted to prove that appellant had written a letter dated February 6, 1953, addressed to the army authorities to the effect that he was above the maximum height of 78 inches acceptable to the army, and should be permitted to get out of the army. The prosecuting attorney argued that such evidence was admissible because defendant was wearing his army uniform in court, and such evidence would show that defendant had no love for the army but was wearing the uniform in court simply to gain sympathy. Defense counsel pointed out that such questions were not only beyond the scope of the direct examination, but that defendant's motive in wearing the uniform was entirely collateral, because admittedly defendant was still in the army and was entitled, in fact required, to wear the uniform. After considerable discussion in which the trial judge wavered between several theories he ruled that such evidence was admissible on the ground that it related to the credibility of the witness. The final ruling of the court was: ‘I will allow it for the limited purpose only * * * of permitting the jury to determine in the last analysis the weight that it is to give to this line of testimony.’ The court then permitted the prosecuting attorney to cross-examine defendant at some length about his stretching exercises and about the letter to the army authorities. The defendant was compelled to explain that in January, 1953, he had attended three posture classes, and that when he had run across the army regulations as to height he had written the letter to the army authorities. He stated that he did so to see what would happen and to throw a ‘bombshell’ into the army administration. He pointed out that the letter could have had nothing to do with his getting out of the army because he was due to get out of the service in March of 1953, and would have been out before the letter could have had any effect on his status.

The admission of this testimony was clearly error and in direct violation of section 2065 of the Code of Civil Procedure. That section, after providing what answers a witness must give, states ‘but he need not give an answer which will have a tendency to subject him to punishment for a felony; nor need he give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue * * *.’ Section 2066 of the same code provides that: ‘It is the right of a witness to be protected from irrelevant, improper, or insulting questions, and * * * to be examined only as to matters legal and pertinent to the issue.’ The challenged but admitted evidence was entirely collateral and irrelevant to any issue in the case. It was the prosecution's burden to produce a convincing theory of how the crime was committed and that defendant committed it. Certainly, the casting of aspersions on defendant's reason for wearing an army uniform that he was entitled to wear, and offering evidence that defendant was trying to get out of the army had nothing to do with motive or credibility. The code sections were designed to protect witnesses from questions that are not pertinent to the issues before the court, and which have no other purpose but to degrade the witness in the eyes of the jury.

There are many cases where such tactics have been criticized and where it was held to be error to thus cross-examine on collateral matters. In People v. Fleming, 166 Cal. 357, 136 P. 291, the defendant was charged with murder and convicted of manslaughter. There the prosecution was permitted, over objection, to ask, and defendant required to admit, that he had engaged in boxing contests under an assumed name. It was held that such evidence was irrelevant and inadmissible, and tended to discredit defendant in the eyes of the jury. The court stated, 166 Cal. at page 383, 136 P. at page 302: ‘The evidence in regard to these matters was improperly before the jury for its consideration, having been admitted by the trial court over objection. If it was the determining factor with even one juryman, it materially contributed to the verdict, and in view of, to say the least, the closeness of this case on the evidence, and the very grave doubt as to defendant's guilt, it appears to us to be only reasonable to conclude that it did materially contribute to the verdict.’ The judgment was reversed.

In People v. Rodriguez, 134 Cal. 140, 66 P. 174, the defendant was convicted of burglary in the second degree. On direct examination he stated his name and then stated: “I live in Watsonville.” On cross-examination he was asked if about a year prior to trial he had in fact lived in Santa Cruz. He was compelled, over objection, to answer the questions, and when he stated that he had not then lived in Santa Cruz the prosecution produced the sheriff of the county who, over objection, was permitted to testify that defendant had, a year prior to trial, been an inmate of the county jail in that city. Even though the reference to the county jail was stricken, the error was held to be prejudicial and the judgment reversed.

In People v. Adams, 76 Cal.App. 178, 244 P. 106, a similar ruling was made in a case where the appellate court found it necessary to reverse a rape conviction because the defendant, after having testified on direct that between 1904 and 1925 his occupation was that of woodsman, on cross-examination, over objection, was compelled to disclose that in 1905 he had been in a reform school, that he once had used an assumed name, and several times engaged in prize fights. The court cited many authorities holding that it was error to thus permit cross-examination on collateral matters tending to degrade. Similarly in People v. Un Dong, 106 Cal. 83, 39 P. 12, the prosecution prejudicially cross-examined defendant as to his mode of living, such facts having no reasonable relation to the case in chief.

Under these, and other authorities that could be cited, there connot be any doubt that it was error to have permitted the challenged cross-examination of defendant. It was also error to have unduly limited the cross-examination of the prosecution witnesses. The only real question involved is whether such errors were prejudicial under Article VI, sec. 4 1/2, of the Constitution.

At the time of oral argument counsel were requested to file supplementary briefs on this subject. This was done in the hope that from the mass of conflicting cases some objective standard could be devised that would be of some material benefit to counsel and to the courts in applying the constitutional provision in the many cases where it is involved. Counsel for defendant and the Attorney General have filed excellent supplementary briefs on this subject. They have analyzed many cases on the problem. After reading these briefs, and many of the cited cases, this court has come to the conclusion that it cannot add any interpretation to the numerous ones that have already been attempted that would be of any material help in future cases in applying the section. However, it may be of some benefit if some general comments are made concerning the proper application of the section.

This section was first adopted in 1911 and was then made applicable only to criminal cases. It was amended in 1914 so as to make it applicable to civil cases as well. But long prior to 1911 the general concept involved was found in our statutory law. As early as 1851 the Legislature passed an act to regulate proceedings in criminal cases (Laws of California 1850–1853, p. 423, et seq.). By section 247 of that act (now, since 1872, substantially embodied in § 1404 of the Penal Code) it was provided that no judgment shall be ‘affected by reason of any defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.’ Section 499 of the 1851 act (now, and since 1872, substantially embodied in § 1258 of the Penal Code) provided that on appeal ‘the court shall give judgment without regard to technical error or defect, which does not affect the substantial rights of the parties.’ Section 601 of the 1851 act (now, and since 1872, substantially embodied in § 1404 of the Penal Code) provided that neither departure from form in respect to pleadings or proceedings, nor an error or mistake therein ‘shall render the same invalid, unless it have actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.’

In interpreting these sections it was held that ‘Courts have no power in criminal cases to affirm a judgment, merely because the Judges are persuaded that upon the merits of the case the judgment is right. If any error intervenes in the proceeding, it is presumed to be injurious to the prisoner, and generally he is entitled to a reversal of the judgment.’ People v. Williams, 18 Cal. 187, 194. This rule, that prejudice would be presumed from error, was followed in many cases.

Then in 1911, partially at least caused by dissatisfaction with the rules announced in People v. Schmitz, 7 Cal.App. 330, 94 P. 407, 419, 15 L.R.A., N.S., 717, and People v. Ruef, 14 Cal.App. 576, 114 P. 48, 54, Art. VI, § 4 1/2 was adopted.

There can be no doubt that the constitutional amendment accomplished several things. It certainly changed the rule that prejudice would be presumed from error. It also required the appellate courts, contrary to the rule existing prior to the adoption of the amendment, to review the evidence so as to form an ‘opinion’ as to whether the errors resulted in a ‘miscarriage of justice.’ People v. O'Bryan, 165 Cal. 55, 130 P. 1042; People v. Lawlor, 21 Cal.App. 63, 131 P. 63; People v. Ho Kim You, 24 Cal.App. 451, 141 P. 950.

But, almost from the adoption of the amendment, the courts have been troubled about the meaning of the phrase ‘miscarriage of justice.’ One possible interpretation could be that no court can reverse, regardless of the error, unless the court can affirmatively say that it is of the opinion that the defendant is innocent. While that is a possible construction of the section, no court has adopted that extreme view. See, generally, People v. Mahoney, 201 Cal. 618, 258 P. 607. But this general concept, although not expressed in words, has affected the language used in some of the cases. Other cases have emphasized the constitutional requirements of a fair trial and of due process. This difference in emphasis can be expressed as follows: One group of cases says, or implies, that an appellate court cannot reverse unless it can affirmatively say that the error did affect the verdict. The other group of cases holds or implies that a reversal is called for if the court has a reasonable doubt as to whether the error complained of did affect or could have affected the verdict. It would serve no useful purpose to cite or discuss the many cases emphasizing or applying one or the other of these rules. Suffice it to say, that in recent years the Supreme Court has definitely adopted the second of these rules. This it has done by expressing the rule in the form of a double negative. In People v. Putnam, 20 Cal.2d 885, 892, 129 P.2d 367, 371, in discussing the effect of failure to give a required cautionary instruction, the court said that such failure was prejudicial because ‘a different verdict would not have been improbable had the error not occurred.’ This rule was followed in People v. Rogers, 22 Cal.2d 787, 141 P.2d 722, and People v. Hamilton, 33 Cal.2d 45, 198 P.2d 873. In People v. Newson, 37 Cal.2d 34, 45, 230 P.2d 618, 624, the double negative approach was expressed in the following language: ‘If it cannot be said that, in the absence of the error complained of, a different verdict would have been improbable, the erroneous ruling constitutes a miscarriage of justice.’

While such interpretation may not give literal effect to the language of Art. VI, § 4 1/2, it must be remembered that that section did not expressly or impliedly repeal other relevant sections of the Constitution. The fair trial and due process provisions of our Constitution, Art. I, § 13, of Cal. Const., cannot be ignored. The right, the constitutional right, to a fair trial is a right of the guilty as well as of the innocent. Of course, if a defendant commits a crime, he should be punished. But he should only be punished after having been convicted at a trial at which admissible evidence has been introduced before a jury, and after that admissible evidence has been evaluated by a jury in a fair trial. This is a fundamental concept in our system of law, one of the basic decencies that exists in our society in the relationship we have developed between government and the individual. A lawful inquiry into guilt or innocence, even that of an evil individual, cannot be permitted to degenerate into the unlawful process of permitting the prosecution to introduce inadmissible evidence materially and adversely reflecting upon the defendant, and then escape the effect of the error by the claim that such error was not prejudicial, because, forsooth, the admissible evidence sustains the conviction, and the appellate court cannot say with conviction that the defendant is innocent. If we are to give more than lip service to the constitutional guarantees of a fair trial and due process it must be the law that, where error appears, a defendant is entitled to a new trial unless the appellate court can say, with conviction, that the error, reasonably, could not have affected the verdict. Any other rule would deny to the defendant that fair trial that is inherent in our concept of due process of law. These considerations demonstrate that the so-called double negative approach of the Supreme Court is sound.

We conclude, after reading the transcript, that, because we cannot say with conviction that, in the absence of the errors complained of, a different verdict would have been improbable, the judgment must be and is reversed, and a new trial ordered.

FOOTNOTES

1.  There was other testimony by the prosecution that on the night of February 15th defendant was not crying, smoked rapidly, was pale and tense, was emotionally flat, was white-faced and tense. An army officer who saw defendant that night found him emotionally distressed, and a friend who saw defendant on the 16th found him dazed.

2.  Defendant did not then or later make any effort to get in touch with his parents or with the parents of his wife.

3.  Watson testified that he had gone to the Olympic Hotel, changed his clothes and shaved, and then visited several bars in the neighborhood where he had drinks, and was then picked up by the police.

4.  When arrested, defendant had a deep cut on a finger of one of his hands.

5.  The clothing defendant stated that he was wearing when he tried to left his wife out of the bathtub was found, at the Olympic Hotel, and all the clothing, including the jacket, was dry. Defendant testified that he did not get any of his clothing wet when he tried to remove the body from the bathtub.

6.  This was not and could not be precise testimony. One doctor fixed the death as having occurred between 1 3/4 hours after eating, and 1.17 hours. Another prosecution expert fixed the time as between 1 and 2 hours.

7.  One expert fixed the period for full rigidity at between 2 and 12 hours, while another prosecution expert fixed it at between 4 and 12 hours. Both testified that 8 hours was the normal.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.