PEOPLE v. WEATHERFORD (1945)

Upon evidence almost entirely of a circumstantial nature, the defendant was convicted of murder in the first degree as charged in an indictment accusing defendant of killing Mary Annette Struck. The verdict fixed the punishment at imprisonment for life. On this appeal from the judgment the appellant has assigned the following errors: that the evidence was insufficient to sustain the conviction; that there was error in the exclusion of evidence; that instructions to the jury were erroneous; that the jury was instructed in the absence of defendant and his counsel; that pamphlet instructions were given to the jurors before the trial commenced; that the court erred in keeping the jury out an unreasonable length of time; and erred in substituting an alternate juror for a juror who became ill during the jury's deliberation.

The record discloses that the defendant, aged 70 years at the time of the trial, was a substantial property owner with a gross income from rentals of between $700 and $900 per month; that among other occupations defendant had been a farmer, carpenter, builder and real estate operator; there was no evidence that he had ever been arrested before; he was a married man with one son, and had been a resident of Highland Park, California, since 1922. Defendant owned, among other properties, a restaurant building known as the ‘Oh Johnnie's Cafe,’ and on December 1, 1942 the defendant and the deceased, Mrs. Struck, entered into a written agreement whereby the cafe was to be operated by Mrs. Struck who was to pay the defendant ‘5% of the gross earnings payable Monthly.’ After Mrs. Struck moved into the restaurant there were four ice boxes or frigidairs, two of them being Mrs. Struck's property and two the defendant's. From that date to the time of the murder, April 5, 1943, it appears that $22 was the total rent received by the defendant from Mrs. Struck, and that Mrs. Struck did not keep any cash register tapes or records of the business transacted in the cafe. ‘Some time the last part of January or the first part of February, 1943’, and ‘about March 20th’, one Steve Salatich, a cafe owner and operator, talked with the defendant about occupying the Oh Johnnie's Cafe; thereafter Salatich and defendant visited the cafe and Mrs. Struck showed Salatich what property was hers. After the defendant and Salatich had ‘made a deal’ the defendant went back in the cafe and talked to Mrs. Struck and reported to Salatich that the lady had ‘told him it would be three or four days and it may be perhaps a week’ before she would move, since ‘she wanted a few days to get rid of her food that she had on hand.’ Salatich told the defendant that he would pay $60 a month for three months and $75 a month thereafter, which was ‘O. K.’ with the defendant. Thereafter Salatich had several conversations with defendant wherein defendant said ‘he bought her (Mrs. Struck) out’ for $350, and later that the defendant said ‘that he gave her $50.00 more in order to get her out, and I told him it was all right, whatever he paid I would stand half the expense. * * * We were just waiting for the lady to come back. She was supposed to be away.’ Salatich ‘saw Mr. Weatherford pretty near every day,’ and ‘Some several days before Mrs. Struck's body was found’ (April 18, 1943) there was a conversation about trying to get into the cafe which had been closed since the day of the murder, April 5, 1943, wherein Salatich suggested that defendant telephone Salatich's attorney which the defendant did from Salatich's place of business, and reported that the attorney ‘suggested to him as long as he was the landlord and he had a bill of sale and there was no lease signed, that he could go ahead—go into the place.’ The transcript shows that Attorney William Ellis Lady did so advise the defendant in April, 1943; also that the defendant consulted with the Highland Park Police Department on April 17th about entering the restaurant, and stated that the tenant was gone and that he did not know where she was.

On April 18, 1943, at 9:35 a. m. the defendant, identifying himself, telephoned the police department that ‘the party had been murdered’ at the Oh Johnnie's Cafe, and that defendant knew the woman had been dead several days because he had not seen her for several days. ‘He was very excitable; his speech was somewhat incoherent at first.’ Mrs. Struck's body was found in a highly decomposed condition on the floor in a corner of the restaurant storeroom, the immediate cause of death being a compound depressed fracture of the skull, which wound could have been produced by ‘the blunt end of a hammer, although any instrument of similar shape could do that.’ No bloody garments, weapons, or other incriminating objects connected with the murder were found in the defendant's possession; nor did the defendant at any time make any confession of guilt. Upon being interviewed by the police on April 21st, defendant voluntarily surrendered all keys in his possession so that his garages and apartments could be searched. In the cafe there were no broken dishes or furniture, and no fingerprints were discovered except those of the deceased. The place was well stocked with edibles and there was some money in the cash register, Mrs. Struck's purse and elsewhere. Wires to a telephone were cut but this fact was not readily noticeable. As stated in appellant's opening brief, ‘There seems to have been some dissatisfaction on his part, and also on her part, with the (rental) arrangement.’ It also appears that the defendant had reported Mrs. Struck to the Health Department, the Police Department, and the Office of Price Administration, for investigations in their respective fields, and had complained to neighbors that Mrs. Struck was insanitary.

The defendant testified that he was not inside the Oh Johnnie's Cafe on the evening of April 5, 1943 when the murder was alleged to have been committed and said, ‘I was working in my place on Colorado Boulevard, and stayed over there.’ The testimony of Paul Farmer, a boy 15 years of age who resided with his parents about 30 feet from Oh Johnnie's Cafe, was relied upon to identify the defendant as the murderer. This evidence was that on the night in question the boy had been left alone in the house while Mr. and Mrs. Farmer were attending a theatre; that upon hearing an unusual noise coming from the restaurant, described as two people arguing, Paul looked out of a window which overlooked the rear storeroom window of the cafe, recognized the voice and person of Mrs. Struck, but could not understand the words being used, except that he heard her say, ‘No, no, no,’ at which time her hands were raised, palms away from the body. The boy also observed a man's arm ‘about up to the elbow’ clothed in ‘about medium gray’ color, which garment he did not recognize. Paul Farmer testified that the man's voice did not sound familiar at all, and that he did not recognize it although he was familiar with defendant's voice and had seen Mrs. Struck and the defendant arguing in the restaurant on two occasions during the month of March, and ‘not very long’ before April 5. On one such occasion Mr. Weatherford ‘seemed to be angry’ and Mrs. Struck ‘was even angrier’, and was cursing Mr. Weatherford; on the other occasion Mrs. Struck said, ‘I will get out when I get good and ready to.’; that Mr. Weatherford ‘has always treated her nice.’ On cross-examination Paul Farmer again stated that the voice heard on the evening of the murder was not that of Mr. Weatherford; later, on being recalled by the prosecution Paul testified, ‘I remember that I didn't know whose voice that was; it sounded like—it was familiar to me, but I didn't know whose it was; it could have been Mr. Weatherford's and it could not have been Mr. Weatherford's', and that he was not able to definitely say whose voice it was. Paul further testified that the argument continued a few minutes, ‘somebody screamed’, he became frightened, and that something black was put up over the cafe window.

In addition to the testimony just mentioned the respondent lists certain other circumstances claimed to identify the defendant as the murderer, namely that the defendant wore a grey suit-coat on week days and that the man's arm seen by Paul Farmer was clothed in grey; that defendant knew how to enter the cafe by means of a broken pane in the rear door; that defendant had ceased to speak harshly about Mrs. Struck after the murder; that a hammer was probably used in the murder and that ‘Defendant, with a carpenter's reflexes, would most naturally grab and use a hammer in a murder; that the defendant had objected to Mrs. Struck's habit of leaving neon lights on, and that the night of the murder the neon lights were turned out after the crime.’ Other alleged guilty actions after Mrs. Struck's murder included the fact that a gas jet in the cafe was found open and the gas turned off at the main, and that the defendant had at first denied and later admitted turning it off; that a boy, Patrick Shephard, had looked in the cafe window after the murder and had seen ‘something silver’ which he thought was water running, and the defendant reported that the water was running when the body was found April 18th, but that ‘water consumption testimony indicates that on April 9th, when collecting the Farmer's rent and asking about ‘noises' having been heard at cafe, defendant entered cafe and turned off the running water (which was a ‘noise’)'; that the same boy found the cafe door unlocked and when the murder was revealed it was found locked; that after discovering the body the defendant went several blocks away to report the crime from his own telephone instead of using the nearest telephone available; that the witness Deitz saw defendant enter the cafe at about 7 a. m. whereas the defendant claims he did not enter the cafe until about 9 a. m.; that four days after the murder, when collecting the Farmers' rent to the rear of the cafe, the defendant appeared ill and nervous, set down to write contrary to his previous custom, and inquired if the Farmers had heard any ‘noises' in the cafe, saying that ‘he had just come from there and he couldn't arouse anybody.’; that previous to the murder the defendant had parked his car in the neighborhood of the cafe but that after the murder he did not do so.

Two matters of evidence must now be mentioned upon which the prosecution appears to attach particular significance. The first of these is the so-called ‘hoax’ of the defendant four days after discovery of the crime when he represented to the police and so testified at the trial, that he had been attacked at his apartment during the night, knocked out, and that when he woke up he found himself tied with a towel and with a quilt over his head which quilt was burning. Police officers testified that the defendant later told them, ‘Well I made it all up myself, it did not happen.’ The defendant testified that as many as five police officers got him down in a corner, that ‘one of them kept trying to punch me in the stomach,’ and that to keep them away defendant finally said, ‘Well, have it your own way.’

Expert testimony was offered tending to show that a certain written memorandum or so-called bill of sale listing articles which Mrs. Struck had not sold to the defendant preparatory to her anticipated leaving, had been altered, erased and rewritten, the suggested effect of such alteration being that the paper had originally been ‘an informal bill of sale by Mrs. Struck to the defendant of certain of her articles in the cafe, including the ice box which defendant moved on March 25, 1943, to the Hurry Back Cafe, and given in exchange for the $350.00 that the defendant paid to Mrs. Struck,—if in fact he ever did pay it to her, * * *’ as stated in respondent's brief, and that by such alteration the defendant ‘could avariciously benefit even by Mrs. Struck's death and get her property as against her estate, particularly the last of her two ice boxes.’ There was no evidence as to when such alleged alterations were made, whether the alteration was authorized or not, or whether it was intended as a mere memorandum or otherwise. Appellant's brief suggests that ‘It is not without significance that appellant showed the instrument to the prosecution witness Salatich, not only while Mrs. Struck was alive but under circumstances that rendered it exceedingly probable that its execution would be mentioned to her.’

There was testimony by a cook, referred to as ‘3-fingered’ Jack Branum, to the effect that he had expected to go into the kitchen of Oh Johnnie's Cafe on April 1, 1943 and operate it for Steve Salatich; that the defendant told Branum that Mrs. Struck was still in the cafe and ‘it didn't look like he could get her out’ and said ‘If you will go down there and get that contract (between Mrs. Struck and defendant), put it in your pocket and bring it up here, I will pay you double what I owe you.’ (Branum had previously been cook for two men, Forbes and Burkes, who had operated the Oh Johnnie's Cafe, and claimed that the defendant should pay him $135 wages which said men had failed to pay.) This proposal to steal the contract Branum says he spurned with extreme indignation; that thereafter, on the street, Branum asked Weatherford for money and the latter said, ‘Do you want to make some money? * * * I will give you $2500.00 to get rid of that woman * * * Any way you can, for good,’ whereupon Branum ‘blew up’ and left, saying, ‘If you could pay $2500.00 why don't you pay part of what you owe me’, to which remark the defendant did not say anything. On cross-examination the witness Branum admitted that he did not like defendant, that there had been other arguments about the $135, that Branum had ‘cussed him out’, called the defendant an old tightwad, and ‘told him he wouldn't pay a graveyard debt.’ The defendant produced two witnesses who testified that the reputation of ‘3-fingered’ Jack Branum for truth, honesty and integrity was bad and that witnesses would not believe Branum under oath.

Finally, the prosecution relied upon evidence showing that on November 3, 1943, police officers entered the defendant's apartment after pounding on the door and ringing the bell without response, and upon observing a moving shadow, went out on the roof where they saw the defendant running; that defendant said, ‘Don't shoot; don't shoot. I thought it was hold up men.’ In the apartment were found memoranda such as, ‘Mail letter. Pay gas Pay water,’ which defendant explained by saying that they were for his wife, that the Grand Jury had reopened its investigation and defendant was arranging his affairs so as to be prepared to go down to the District Attorney's Office. At that time the defendant had about $1400 in his pocket, and explained that ‘it is not unusual for me to carry money in my pocket, because I do a good deal of collecting’; that he was working in the cafe every day and every night, sleeping in the daytime, and didn't take time to go to the bank.

The briefs of appellant and respondent direct special attention to an alleged error of the trial judge in giving instructions to the jury in the absence of the defendant and his counsel. The record discloses that during the deliberations of the jury the forewoman requested the bailiff to ask the judge ‘Whether or not it was the duty of the prosecution or the defense to put the defendant on the scene,’ or according to another version ‘whether it was incumbent upon the prosecution to show the whereabouts of the defendant on April 5, 1943, or whether such duty rested upon the defense.’ The bailiff relayed such message to the trial judge and was told by the judge to advise the jury ‘that they were not concerned with anything that was not in the evidence or the law as given to them by the court.’ The bailiff so advised the forewoman in the presence of all the jurors, whereupon one juror said to the bailiff, ‘In other words, the rest of it isn't any of our business,’ or said, ‘In other words, its none of our business,’ to which the bailiff replied, ‘I guess that's it’ or ‘That's just about it.’ Defendant's attorneys were not present during this procedure and were not advised concerning what had taken place.

It is obvious that the procedure adopted by the trial court did not comply with Section 1043 of the Penal Code which provides that ‘If the prosecution be for a felony, the defendant must be personally present at the trial’, and was in direct conflict with the procedure specified in Section 1138 of the Penal Code which reads as follows: ‘After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the cause, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the district attorney, and the defendant or his counsel, or after they have [been] called.’

The respondent contends, however, that any error in this regard should be regarded as harmless, citing the case of People v. Alcalde, 1944, 24 Cal.2d 177, 189, 148 P.2d 627, 632, (1944) in which it appeared that the jury foreman sent to the judge a signed note asking, ‘May we render a decision of life imprisonment and not eligible for parol?’ on which paper the judge made the notation, ‘The answer is ‘No.” The Supreme Court held the error harmless for the reason that ‘in this instance the court could not have responded by any other answer than ‘No’ or its equivalent, namely, that the jury was to be guided solely by the instructions already given.' In that case the reviewing court had held that ‘the sufficiency of the evidence to prove premeditated murder may not fairly be questioned. The record is otherwise sufficient to support the conclusion of the jury that the inferences to be drawn therefrom were consistent with the defendant's guilt and inconsistent with any other rational hypothesis.’ It should also be noted that the Alcalde case stated ‘that courts are practically unanimous in holding that private communications between court and jury are improper, and that all communications should be made in open court. Dodge v. United States, 2 Cir., 258 F. 300, 169 C.C.A. 316, 78 A.L.R. 1510.’ From this and other cases it is apparent, therefore, that the practice in question is clearly bad, and as in the case of other error, the reviewing court must decide whether, under the facts of a particular case, such error can, in fairness to the defendant, be deemed harmless. Article VI, Sec. 4 1/212 of the California Constitution provides that ‘No judgment shall be set aside * * * 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.’ And, as was said in People v. Wilson, 23 Cal.App. 513, 524, 138 P. 971, 975, ‘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 conviction has resulted from some form of trial in which the essential rights * * * 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.' While it is true that in the Alcade case previously cited and elsewhere, various errors have been deemed harmless in view of the overwhelming evidence of guilt, it is equally true, as the reverse of that proposition, that where the evidence of a defendant's connection with the crime charged, is weak, relatively unsatisfactory or approaching the borderland between guilt and innocence, a definite error in procedure may well be sufficient to turn the scales against a defendant who, without the interposition of such error, would have been acquited. So in the present case, where the evidence was largely circumstantial; where proof of the defendant's presence at the scene of the crime rested upon the testimony of a frightened, fifteen year old boy who merely observed a man's arm clothed in grey, and who did not recognize the man's voice; where no bloody garments, weapons or incriminating objects were found in defendant's possession; where there were no confessions of guilt; and finally where many if not most of the alleged incriminating circumstances were as consistent with innocence as with guilt, the error in question cannot be regarded as having been without prejudice. During their deliberations the jurors sought the advice of the trial judge on a question of the most vital importance,—whether it was incumbent on the prosecution or on the defense to show the whereabouts of the defendant on the date of the murder. To this legitimate request, an answer was returned by the judge which, through collaboration of the bailiff and one of the jurors seems to have been interpreted as meaning, ‘In other words, its none of our business.’ The instruction in question was given privately without the presence of or notice to the defendant or his counsel, in direct conflict with Section 1138 of the Penal Code; furthermore it left the jurors in darkness concerning an important matter of evidence about which they were in doubt. In view of the inconclusive nature of the evidence and since the jurors may have drawn the conclusion from the instruction that evidence of the whereabouts of the defendant was not a matter with which they were to be concerned, the procedure in question must be considered reversible error.

Appellant also complains that the court erred in giving pamphlet instructions to the jurors in advance of the trial and outside the presence of the defendant and his counsel. The booklet in question contained fifteen printed pages and was entitled ‘General Instructions concerning the duties and responsibility of trial jurors in the criminal departments of the Superior Court of Los Angeles County, California. Read and Study Them Carefully.’ Not only did such instructions deal with the general duties of jurors but they also contain captioned sections purporting to explain in considerable detail such matter as ‘Direct and Circumstantial Evidence’, ‘Credibility of Witnesses', ‘Impeachment of Witnesses', ‘Declarations of the Accused.’ At the hearing of the motion for new trial the trial judge stated, ‘It happens to be a matter within the court's knowledge that these particular instructions were drafted at the request of the Judicial Council * * * and would have been printed for distribution throughout the state * * * but for the fact the Judicial Council did not have the finances to do it.’ It is the respondent's contention that distribution of such pamphlet to the entire jury panel was neither erroneous nor prejudicial but ‘a step in the right and intelligent direction.’ Such contention cannot be upheld, particularly in view of the fact that the pamphlet contained certain statements entirely inapplicable to the case on trial, such as the following: ‘A verdict of guilty does not necessarily mean a term of imprisonment in the state prison, but may, in some cases, result in a county jail sentence, a fine, or proceedings under the provisions of the probation law.’

In People v. Cowan, 44 Cal.App.2d 155, 160, 112 P.2d 62, 65, jurors had been given a printed pamphlet of general instructions but there was ‘no showing as to what these general instructions were and nothing to indicate whether or not any possible prejudice could have resulted’, consequently the reviewing court was unable to decide whether such practice was a denial of due process of law. In People v. Tennant, 32 Cal.App.2d 1, 7, 88 P.2d 937, 940, also cited by respondent, the trial judge, half an hour before the trial commenced, in the absence of the defendant but in the presence of one of his counsel, ‘gave the assembled veniremen a short summary of the general duties of jurors' and told them, ‘This is not intended, nor shall it be considered by you as being an instruction in any case, but merely an outline of your duties * * *.’ Where ‘a jury satisfactory to appellant was thereafter selected from this venire after exhaustive voir dire examination, and proper instructions * * * were given to that jury at the conclusion of the trial’ it was held that the appellant was not entitled to complain.

In the instant case the pamphlet instructions are before the court. They were not a mere ‘short summary of the general duties of jurors' but detailed instructions on matters of law; they were apparently not seen by defendant or his counsel nor were they given in defendant's presence. Section 1127 of the Penal Code provides that ‘All instructions given (except such as may incidentally be given during the admission of evidence) shall be in writing, unless both parties request the giving of an oral instruction, or consent thereto.’ Nowhere is there any provision for the giving of printed instructions to the jury before the trial, as was done in this case, and until the legislature sees fit to change the present law, within constitutional limitations, the procedure followed in the instant case must be deemed a violation of the defendant's fundamental constitutional rights.

The impaneling of a jury is an important step in the trial itself, and the error in question is subject to consideration on an appeal from the judgment of conviction. The fact that the same jury panel may be employed in the trial of various cases during the period of jury service, does not affect the right of a defendant in a particular case to full compliance with the constitutional provisions; the impanelling of the jury in the first instance is as much a stage in the proceedings as the drawing of the jury on the day of trial. Ordinarily, the first appearance and selection of a jury panel is more or less perfunctory and the routine limited to but one function. Where, however, that routine is departed from and the panel is given general instructions that may or may not be appropriate in succeeding trials for which members of the panel may be chosen, an entirely different situation is presented. That prejudicial error could, and might be likely to, result from such practice, there can be no question. And this is especially true where pamphlets are to distributed.

Moreover, the justice and wisdom of the doctrine that a defendant in a criminal action is entitled to be tried by ‘a jury of his peers', which means his equals, has never been disputed. The foregoing doctrine, in effect, denounces professional jurors or jurors specially educated or prepared for such service. Hidden notions of superiority or importance are qualities against which a defendant is not required to be on guard. The law contemplates for a defendant in a criminal action, a jury of his ‘peers' and not his betters or superiors, actual or presumed. The distribution of such pamphlets to a jury panel, however well intended, is not authorized by the law. Manifestly, such instructions given under the apparent authority of the court would be regarded as binding when, as a matter of law, the only binding instructions are those given at the trial. The defendant's counsel in a criminal action cannot be expected nor required to uncover prejudice resulting from such procedure. And to regard such a practice trifling is to ignore the basic doctrines of criminal jurisprudence.

The due process provision of the Fourteenth Amendment bears no resemblance to mere procedure. The right of a defendant in a criminal action to be present at all stages of the proceeding has been uniformly upheld. The only exception appears to be in the state of Massachusetts where, in the trial of a criminal action, a view of the premises by the jury, in the absence of the defendant, was held not to be in violation of the Fourteenth Amendment. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 675, 90 A.L.R. 575. Such conduct was held to be valid, however, by reason of a state statute, a reason which does not apply in California. But, even in the Snyder case, the Supreme Court was divided. A dissenting opinion by Mr. Justice Roberts, concurred in by Justices Brandeis, Sutherland and Butler disputes the prevailing opinion despite the Massachusetts statute referred to. The reasoning in the dissenting opinion is especially applicable to the situation here presented.

In the light of the record it must be held, as a matter of law, that the error referred to materially and adversely affected the substantial rights of the defendant. Abuse of statutory and constitutional guaranties, in such circumstances, are not errors ‘as to any matter of procedure’ from which Section 4 1/212 of the Constitution provides an escape. The denial, in a criminal action, of constitutional and substantive statutory rights of the accused constitutes an error that in no sense is procedural. In People v. O'Connor, 81 Cal.App. 506, 254 P. 630, 636, appears the following, ‘In the case of People v. Carmichael, 198 Cal. 534, 246 P. 62, the Supreme Court, quoting from People v. Wismer, supra [58 Cal.App. 679, 200 P. 259] followed the ruling had in that case and reaffirmed the statement that section 4 1/212 of article VI cannot be relied upon to prevent reversal where the defendant has been deprived of a fundamental right in the impanelment of a jury.’ Although the term ‘procedure’ is difficult to describe or define in its modern sense as applied to the law, nevertheless, it must of necessity have a definite meaning as used in Section 4 1/212 of the California Constitution. Black's Law Dictionary, 2d Ed., page 947 contains the following definition, ‘This word is commonly opposed to the sum of legal principles constituting the substance of the law, and denotes the body of rules, whether of practice or of pleading, whereby rights are effectuated through the successful application of the proper remedies. * * *’ The law of procedure is what is now commonly termed by jurists ‘adjective law’. Bouvier's Law Dictionary, Rawle's Third Revision, vol. 2, at page 2729, with regard to the word ‘procedure’ contains the following, ‘The methods of conducting litigation and judicial proceedings. ‘Practice,’ like ‘procedure,’ which is used in the Judicature Acts, denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which, by means of the proceeding, the court is to administer; the machinery, as distinguished from its product. The word ‘adjective’ in the phrase ‘adjective law’, manifestly must be held to mean ‘something added to a substantive as an attribute; in the nature of an adjunct’ or, as further defined, ‘not standing by itself; dependent’. In other words the use of the word ‘adjective’ distinguishes the law referred to from what is commonly understood as substantive law. It is in this sense that the word procedure appears to be used in Section 4 1/212 of the Constitution.

The record in the within action reveals that the pamphlet distributed to the jurors contained a variety of instructions wholly inapplicable to the issues involved. It cannot be assumed, in the circumstances, that they were not confusing, misleading and prejudicial.

Also assigned as error is the exclusion of the testimony of the witness Orpha Hayden concerning declarations by Mrs. Struck, made to the witness some two weeks before the murder, as to the intention of the deceased to move from the cafe, etc. After testifying to an acquaintance with Mrs. Struck whom the witness saw ‘practically every day,’ an offer of proof was made to prove that the ‘witness had a conversation with Mrs. Struck about two weeks before April 3rd, at which time Mrs. Struck told her that she sold Mr. Weatherford an ice box and other trinkets in Oh Johnnie's Cafe for $350.00; that she received $350.00 in cash from Weatherford; that she asked Mrs. Struck whether Weatherford paid her in cash or check, and she said that he had money in a money belt. Then the witness asked Mrs. Struck why she kept money around there in such large amounts, and Mrs. Struck replied that money was in a safe deposit in a bank. This witness will further testify that Mrs. Struck told her that she was going to leave Oh Johnnie's Cafe, give up her business there, in two weeks, because she had sold out her interest in there to Mr. Weatherford. * * * Yes, this witness will further testify that Mrs. Struck told her because she sold her business and was through down there she was going to take her trailer and go up in the mountains, and invited the witness to be with her, spend some time as a friend, take a rest.’ To which the court replied, ‘Objection sustained. That is purely hearsay, recital of a past fact. * * * You cannot prove motive or the absence of motive by hearsay testimony. So far as declarations as to where she intended to go, the intent of the deceased is not in issue, because there is no evidence as to her having gone anywhere. * * *’

In People v. Alcalde, 1944, 24 Cal.2d 177, 185, 187, 148 P.2d 627, 632, cited in support of the argument that such evidence should have been admitted, a declaration of the decedent ‘that she was going out with Frank (the defendant) that evening stated a present intention to do an act in the future,’ and was held admissible ‘for the limited purpose of showing the decedent's intention.’ The reviewing court further said that, ‘Elements essential to admissibility are that the declaration must tend to prove the declarant's intention at the time it was made; it must have been made under circumstances which naturally give verity to the utterance; it must be relevant to an issue in the case.’ While such statements ‘are not, strictly speaking, part of the transaction’ so as to be encompassed within Section 1850 of the Code of Civil Procedure and therefore admissible on that ground, ‘They more properly fall within section 1870, subdivision 15, as one of ‘Any other facts from which the facts in issue are presumed or are logically inferable.’' It is recognized in the Alcalde case, as it is in the briefs of both appellant and respondent herein, that declarations made by a decedent are only admissible as exceptions to the hearsay rule,—in the present case as in the Alcalde case, for the limited purpose of showing the declarant's intention. It is contended by the respondent that in the instant case the matter of deceased's intention was not relevant to any issue and therefore that declarations showing an intention to leave the cafe were inadmissible. However, it is to be noted that the excluded declarations of Mrs. Struck to the witness Orpha Hayden, concerning the former's intention to vacate the cafe because of the fact that the deceased had sold out to the defendant for $350, related directly to the two chief motives for the murder as set forth in respondent's brief, namely (1) that defendant murdered Mrs. Struck because she had refused to vacate and did not intend to leave, and (2) that defendant committed the murder as a part of an ‘Avaricious plan to possess most of Mrs. Struck's property * * *’, in connection with an alleged forgery or alteration of a memorandum listing the items of equipment which Mrs. Struck was to keep. If, therefore, it be assumed for the purpose of argument, that Mrs. Struck did intend to leave the Oh Johnnie's Cafe, as indicated by her declarations, and that she had actually been paid $350 by the defendant for her equipment so that she would move, then it must follow that the motives relied upon by the prosecution lose their force and effect; the alleged forgery by the defendant becomes immaterial, and the appellant's testimony as to his purchase of the restaurant equipment, receives corroboration. While it is undoubtedly true, as declared in People v. Planagan, 1944, 65 Cal.App.2d 371, 150 P.2d 927, 943, that ‘When the perpetration of the crime has been brought home to the defendant, the motive for its commission becomes unimportant’, nevertheless the ‘absence of motive tends to support the presumption of innocence,’ People v. Albertson, 23 Cal.2d 550, 567, 145 P.2d 7, 15, quoting from People v. Tom Woo, 181 Cal. 315, 328, 184 P. 389; or as said in People v. Kelley, 208 Cal. 387, 390, 281 P. 609, 610, ‘The absence of proof of motive is a fact to be reckoned on the side of innocence.’ The matter of motive, therefore, and the deceased's intention as bearing on the motives alleged in the instant case, were clearly relevant to the issues created by the prosecution. Finally, it may be said that the declarations in question appear to meet the limitations suggested in Wigmore on Evidence, 3d Ed., Sec. 1725, ‘namely the statements must be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion.’ Many cases are there collected in which this type of evidence has been admitted. In view of the peculiar state of the evidence in this case it cannot well be doubted that the jury's consideration of these declarations as indicative of Mrs. Struck's intention, had they been admitted, might reasonably have resulted in an acquittal. The error must therefore be deemed prejudicial. Appellant also contends that the court erred in instructing the jury on matters of law, and in particular complains of an instruction defining the crime of forgery and permitting the jury to consider evidence of the alleged forgery by defendant ‘as a circumstance going towards the motive for the commission of the crime with which he is charged, or as a fact and circumstances which might tend to connect the defendant with the commission of the crime with which he is charged.’ In this connection attention is called to the fact that the trial court refused all of the defendant's requested instructions, numbered 1 to 13, as not applicable, not the law, or as covered by the instructions given, endorsing the refused requests accordingly. While it is true that some of the requested instructions might well have been given, and that the instruction hereinbefore quoted, standing alone, may have tended to unduly emphasize the alleged forgery by the defendant, nevertheless, in view of the comprehensive charge given, viewed as an entirety, it cannot be said that the defendant herein has suffered any material prejudice in this respect.

The same may be said with regard to the appellant's argument that the court erred in keeping the jury out from 10 a. m. on February 14, 1944 to the hour of 3 p. m. on February 21, 1944. Since the jury did not deliberate on Saturday or Sunday the actual time is reduced to six days, during which period an alternate juror was substituted when one of the jurors became ill. It further appears that for 14 hours and 55 minutes during Thursday morning and afternoon testimony was read to the jury by the court reporter. Note may also be taken of the point suggested by the respondent, that the alternate juror, substituted on February 18th, was entitled to a reasonable amount of time, after substitution, to deliberate with the jury. The only case cited by appellant in support of this assignment of error is Clemens v. Chicago, R. I. & P. R. Co., 163 Iowa 499, 144 N.W. 354, in which case after the jury had been out 50 hours it was given an instruction which was held to be coercive and then kept out for another 20 hours. However in People v. Selby, 76 Cal.App. 715, 719, 245 P. 792, 793, a conviction was affirmed although ‘nearly 71 hours had elapsed,’ and in People v. Phillips, 120 Cal.App. 644, 658, 8 P.2d 228, 233, the court said: ‘The mere fact that the jury was kept out for seventy-eight hours before they reached a verdict is not sufficient to show that the jury was coerced into a verdict.’ In People v. Montgomery, 32 Cal.App.2d 43, 48, 89 P.2d 184, 186, the court said, ‘We are unable to adopt the view of appellant that any reasonable inference, either in favor of, or against appellant, could be drawn from the fact that the jury took a considerable length of time in which to reach a conclusion.’ The amount of time consumed by the jury in the instant case, estimated as being slightly over 39 hours during a period of six days, appears to be more moderate than that held unobjectionable in other cases. See also 23 C.J.S., Criminal Law, § 1381, p. 1059, note 88.

In reference to appellant's final contention that the trial court erred in substituting an alternate juror for a juror who became ill after the jury had deliberated for four days, it is admitted by appellant's counsel that a similar issue had been decided to the contrary in People v. Love, 21 Cal.App.2d 623, 70 P.2d 202, and in People v. Lanigan, 22 Cal.2d 569, 140 P.2d 24, 148 A.L.R. 176. It appears from the record in the instant case that defendant's counsel waived proof of the juror's physical disability, and no objection to the substitution of the alternate juror seems to have been made. The substitution was effected pursuant to Section 1089 of the Penal Code which provides that, ‘If at any time, whether before or after the final submission of the case to the jury, a juror die or become ill, so as to be unable to perform his duty, * * * the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box, and be subject to the same rules and regulations as though he had been selected as one of the original jurors.’ (Italics added.) When reference to the constitutionality of such section and the italicized amendment, the Supreme Court of this state, in People v. Lanigan, 22 Cal.2d 569, 578, 140 P.2d 24, 29, 148 A.L.R. 176, said: ‘The constitutionality of those provisions was sustained in People v. Peete, 54 Cal.App. 333, 202 P. 51, where it was held that the right to be tried by a jury of twelve was not thereby infringed. * * * The amendment was upheld in People v. Von Badenthal, 8 Cal.App.2d 404, 48 P.2d 82, 84, where an alternate was substituted ‘after the jury had been deliberating for some time without arriving at a verdict.’' The present contention is therefore without merit.

With regard to appellant's argument that, ‘There is not a single fact from which an inference of guilt could be made’, the following rule stated by the trial judge at the hearing of defendant's motion for new trial, would seem to be applicable: ‘that where the evidence as between guilt and innocence is close, where there is room for some doubt, even though not room for a reasonable doubt, from the standpoint of the trial court and the Appellate Court, and I think properly, they should scrutinize alleged errors more closely than in those cases in which the evidence was convincing and no other result was reasonably probable.’ In reference to circumstantial evidence may be noted People v. Lamson, 1 Cal.2d 648, 653, 36 P.2d 361, 363: ‘Resting its case upon circumstantial evidence, the prosecution must not only show a set of circumstances consistent with guilt, but * * * inconsistent with any reasonable theory of innocence.’ Likewise, attention is called to the case of People v. Albertson, 23 Cal.2d 550, 580, 145 P.2d 7, 22, where the Supreme Court held that ‘Circumstantial proof of a crime charged cannot be intermingled with circumstantial proof of suspicious prior occurrences in such manner that it reacts as a psychological factor with the result that proof of the crime charged is used to bolster up the theory or foster suspicion in the mind that the defendant must have committed the prior act, and the conclusion that he must have committed the prior act is then used in turn to strengthen the theory and induce the conclusion that he must also have committed the crime charged.’

For the foregoing reasons the judgment appealed from is reversed and the cause remanded for a new trial.

DORAN, Justice.

YORK, P. J., and DRAPEAU, J. pro tem., concur.