PEOPLE v. KLOR (1948)

Appellant was accused of the crime of assault with a deadly weapon with intent to commit murder on one Kenneth Temple. He was convicted by a jury of assault with a deadly weapon. He appealed from the judgment and from the order denying his motion for a new trial.

Appellant contends: (1) that the evidence is insufficient to support the verdict, (2) that the district attorney was guilty of prejudicial misconduct, and (3) that the court erred in failing to instruct the jury on a specific point.

A brief résumé of the evidence will demonstrate the complete back of merit in appellant's first contention. Appellant was engaged in the jewelry business at 317 West Fifth Street, Los Angeles, which is about three-quarters of a block west of Broadway. Kenneth Temple was employed by a shoe company at 451 South Broadway, around the corner from the jewelry store. Virginia Lazo was also employed at the store of the shoe company. On June 12, 1946, at about 10:15 a. m., Miss Lazo went to the jewelry store to look at a wrist watch. At that time there were present in the store the appellant's wife, Howard Sogg, a Mr. Goldman, and Miss Lazo. Appellant was outside on the sidewalk. Shortly after Miss Lazo entered the store, Kenneth Temple came in and spoke to Miss Lazo and she and Temple left the store. Immediately thereafter, appellant entered the store and had the following conversation with Goldman: ‘He asked me what happened, he was standing right by the doorway and he came in and said, ‘What happened?’ And I told him that Miss Lazo, who was buying a watch from me, just about had bought the watch, and this man came in and said something to her, and I was repairing a band, or changing a band on the watch, and when I heard this other party come in, when I heard him speak, that is the first I knew of him being in there, I didn't see him come in. I lifted my face up, and he said, ‘Is that the watch you are buying?’ And I said—* * * I told him that he picked up this watch, he looked at it, compared it with his own watch, more or less threw it back at me, and he said, ‘Come with me,’ and took her by the arm and they walked out. I also told him that she had been a satisfied customer prior to this, that she had said she bought a watch or two there before, a clock or two, but she had been a satisfied customer.'

Appellant and Mrs. Klor knew Miss Lazo and where she worked. Appellant asked Mrs. Klor for the telephone number of the shoe company. She looked up the number and appellant called it and talked over the telephone. After this telephone conversation, appellant asked his wife for the telephone number of the 451 South Broadway branch of the same shoe store. He went to the telephone, called the 451 South Broadway store, talked to Temple and said: ‘I told him that it's unfair and unethical of dragging customers out of the store, and he started to use vile names against me and I hung up.’

After the second call appellant went to a showcase and obtained a 32 Smith and Wesson revolver. He became very, very excited. Goldman told him to keep his temper. He told Goldman to keep quiet. Mrs. Klor asked Klor not to get excited. He began waving the revolver back and forth, up and down, and aiming it at the door. Goldman then observed Temple at the doorway of the store. Appellant raised the gun again, waved it around and pointed it toward the doorway. Temple turned around and ran toward Broadway. Appellant pursued him Temple ran from the jewelry store to the 451 South Roadway branch of the shoe store. He was pursued the entire way by appellant, who fired four or five shots at him. One shot went through the left lung, the bullet entering the back and coming out the front. He was shot three times in the left arm and one time in the right arm. A police officer disarmed appellant and searched Temple for a weapon but did not find one. Appellant told the police officer that Temple had stolen a watch from him. Later the same day, another officer went to appellant's jewelry store and obtained from Goldman the watch which he had displayed to Miss lazo. Appellant readily admitted the shooting to this officer but claimed that he was justified in doing it.

Appellant testified that he was in the store, behind a showcase, putting watch bands on watches on a tray; that he first noticed Temple when he, Temple, was close up to the tray where appellant was working; that he heard a sound, looked up to the ceiling, saw Temple approach, swing at him, and heard him say, ‘I will take this watch for nothing’; that he, appellant, backed out of the way; that his wife, Goldman and Sogg, an employee, were in the store at the time; that Temple began to run and said, ‘What are you going to do about it?’ whereupon appellant shouted ‘Stop thief,’ and reached for a gun, which was under the showcase in a holster; that he ran out of the store, pursuing Temple, shouting, ‘Stop Thief’; that he fired one shot in the air to frighten Temple but he did not stop, and so he continued to shoot at him and pursue him; that Temple had the watch in his hand while he was running. Appellant admitted the conversation with Goldman about Miss Lazo and that he had telephoned the main office of the shoe company. He testified that when he made the second call he asked for the manager of the store and was given the name of Temple; that he talked to the manager and made the statement we have quoted. Appellant also testified that at the time Temple came into the store, after the telephone conversation, he did not know that he was the same person with whom he had talked on the telephone.

Whether appellant shot Temple in an attempt to apprehend a thief, or did it out of a rage because he felt that Temple had caused him to lose business, was a question of fact for the jury to decide. There is no merit in appellant's claim that he acted under a mistake of fact. The only support for this claim is his testimony. If, as he claims, he acted under a mistake of fact his testimony was false, as he testified that Temple took the watch and had it in his hand as he was running. His story was contrary to the other evidence and to inferences reasonably drawn therefrom. The jury did not believe him. It is significant that the watch which appellant claimed had been taken from his tray and stolen from him, had never left the premises of the jewelry store and was recovered by the police at the jewelry store immediately after the shooting. The evidence abundantly supports the verdict.

The first basis for appellant's claim that the district attorney was guilty of prejudicial misconduct is this: During the course of the trial and immediately after the conclusion of the examination of a witness, the court said to the district attorney, ‘Call your next witness.’ The following colloquy then ensued: ‘Mr. Loucks [Deputy District Attorney]: Mrs. Klor. (No response) Is Mrs. Klor here? (No response)

‘Mr. Rose [Defendant's counsel]: Mrs. Klor?

‘Mr. Loucks: Yes.

‘The Court: The defendant's wife?

‘Mr. Loucks: Yes, your Honor.

‘The Court: Do you want her as a witness?

‘Mr. Rose: Have they abolished 1881, your Honor?

‘Mr. Loucks: That is a privilege that must be claimed.

‘The Court: Has Mrs. Klor been subpenaed as a witness?

‘Mr. Rose: I have never heard of it.

‘The Court: Was she subpenaed as a witness?

‘Mr. Loucks: Officer Schmidt.’

Appellant says that the district attorney was guilty of prejudicial misconduct in thus calling for Mrs. Klor. Appellant's counsel did not make any objection or motion with respect to this conduct of the district attorney.

Appellant also says that the district attorney was guilty of prejudicial misconduct in his argument to the jury. During the course of the argument the following occurred: On one occasion Mr. Loucks said: ‘There are only five persons that you may saw were closely associated with that problem. That is the defendant, his wife, his brother-in-law, Mr. Goldman, miss Lazo—I should have said six—and Mr. Temple. The defendant has told what he has to say in this matter, and everything that the defendant told us in regard to his belief that Mr. Temple was a thief and a robber transpired in the presence of his wife.’ On another occasion, Mr. Loucks said: ‘The wife did not testify, so we only have Mr. Goldman's testimony and the defendant's testimony. * * * The defendant immediately goes to the back of the store where his wife is and there is some confusion, and who does he tell us?’ At another time Mr. Loucks said:

‘Now, in conclusion, remember the shooting is admitted, there is no controversy over the shooting. The only question is whether Temple is a thief and a robber, and I have gone over in detail the evidence to show how that is fiction, and even what the defendant tells us corroborates Goldman. And I think it is fair to say that we are entitled to know why the only other witness who is in this State did not come to tell us what——

‘Mr. Rose: I assign that as misconduct. The process of this court is available to the prosecution. If there is any witness that they claim there was a burden on us to produce, it is a misstatement of the law and contrary to law. We are not called upon to produce any witness.

‘The Court: I know that, and neither is the State, and the Court will so instruct the jury later. Now, ladies and gentlemen of the jury, remember—again let me admonish you what counsel says with respect to this case is simply their own viewpoint. And let us stay to the record, just comment on what the record in this case shows. That is for both sides. Just stay right within the record.

‘Mr. Loucks: Now, that person did not testify. Now, as his Honor has just said, all I have done is tell you how I view the evidence. I haven't tried to tell you what the evidence is, but I have given you my honest interpretation of the facts and pointed out what I consider is very essential, and that is that Mrs. Klor did not choose to testify.

‘Mr. Rose: I assign that statement as misconduct and ask you to instruct the jury, your Honor, that that remark was grossly improper.

The Court: Well, the Court has instructed this jury, and I want both counsel on both sides to confine themselves to the record in this case. Now, you ladies and gentlemen of the jury know what the witnesses testified. Now, Mr. Loucks, let us proceed with the facts in the case. I want no further comment on that matter.'

Penal Code section 1322 provides: ‘Neither husband nor wife is a competent witness for or against the other in a criminal action or proceeding to which one or both are parties, except with the consent of both, or * * * [in instances not pertinent here].’

In 8 California Jurisprudence 270, sec. 331, cited by appellant, it is said: ‘While the code contains no provision prohibiting any comment upon the failure of the wife of a defendant to testify, the reason underlying the provisions of section 1323 of the Penal Code applies with much force, as the wife is made incompetent to testify for or against her husband in a criminal action, except by the consent of both,’ citing People v. Heacock, 10 Cal.App. 450, 102 P. 543, and People v. Terramorse, 30 Cal.App. 267, 157 P. 1134. Other cases involving charges of similar misconduct are People v. Tufts, 167 Cal. 266, 139 P. 78, People v. Moore, 111 Cal.App. 632, 295 P. 1039, People v. Hodges, 116 Cal.App. 61, 2 P.2d 174, and People v. Briggs, 20 Cal.2d 42, 123 P.2d 433.

In People v. Heacock, supra, the reviewing court quoted Penal Code section 1323, as it then read, to the effect that the neglect or refusal of a defendant to be a witness could not in any manner prejudice him or be used against him on the trial, and, by way of dicta, made the statement quoted above from 8 California Jurisprudence 270, section 331, and continued (p. 457): ‘The wife may be willing to testify, but the husband may not consent and to put him in the position of refusing and subjecting his defense to comments for availing himself of a statutory right might be very prejudicial.’ In view of the fact that the judgment had to be reversed on other grounds, the court said at page 456 of 10 Cal.App., page 545 of 102 P.: ‘* * * it is perhaps unnecessary to go further than to advise that the district attorney refrain from such comment hereafter.’

In People v. Terramorse, 30 Cal.App. 267, 157 P. 1134, the judgment was reversed because of misconduct of the prosecutor. The court indicated that if the comment about the failure of the defendant to consent to his wife's testifying were the only ground for reversal, that it would not have been considered sufficiently prejudicial to have compelled a reversal.

In People v. Tufts, 167 Cal. 266, 139 P. 78, the district attorney commented upon the action of the defendant in objecting to his wife's testifying against him. Because of this and other misconduct of the district attorney, the judgment was reversed.

People v. Moore, 111 Cal.App. 632, 295 P. 1039, held that the misconduct fell short of constituting that serious and prejudicial misconduct which would justify a reversal of the judgment. Counsel for appellant at the oral argument read at length from the record on appeal in the Moore case. It appears therefrom that the trial judge, in that case, admonished each individual juror to disregard the misconduct and each juror stated that he would do so.

People v. Hodges, 116 Cal.App. 61, 2 P.2d 174, held that the comment was not sufficiently prejudicial to require a new trial.

People v. Briggs, 20 Cal.2d 42, 123 P.2d 433, was a case in which sentence of death was imposed. The district attorney, in his argument to the jury, had commented on the fact that the defendant's testimony was uncorroborated, that he had not called his wife as a witness, and stated that the People could not present her testimony. The court held at page 46 of 20 Cal.2d, page 435 of 123 P.2d: ‘The appellant made no objection to these remarks, nor did he request the trial judge to admonish the jury concerning them. Ordinarily, without timely objection, an objection of misconduct will not be considered by an appellate court. And the most that may be said in reasonable criticism of the prosecutor's statement is that it is incomplete. Obviously, he meant that he could not compel the appellant's wife to testify against her husband. Sec. 1322, Pen.Code. Considering all of the evidence shown in the record, there is no doubt of the appellant's guilt nor any basis for concluding that the remarks complained of contributed materially to the verdict. Certainly it does not amount to prejudicial error.’

A defendant may object to his wife's testifying either for or against him and she may refuse to testify. If the prosecution wishes to make something out of her failure to testify the truth of the situation should be brought out. The proper procedure for the prosecutor to pursue is to subpoena the wife and call her to the stand and thus invite an objection. People v. Briggs, 20 Cal.2d 42, 47, 123 P.2d 433. If no objection is made the wife will testify in a manner favorable to one side or the other. The procedure that was followed here, namely, for the prosecutor not to call the wife to the stand but to comment upon the fact that she was not called by the defendant was highly improper. In this manner he placed the defendant under the disadvantage, such as it may have been, of appearing to refuse to allow the wife to testify, when he had not done so, and at the same time he (the prosecutor) avoided the risk that her testimony as a witness for the prosecution might have been favorable to the defendant. The first mentioned procedure is honest and straightforward and is the legal procedure. We seriously question the good faith of a prosecutor who, without any intention of using the defendant's wife as a witness, calls out her name in the courtroom, thereby intentionally conveying to the jury his belief that her testimony would have been favorable to the prosecution, and then follows up with comment upon the failure of the defendant to call her. This procedure carries the further implication that the wife's testimony would have been adverse to the defendant under the presumption that attends the failure of a party to produce evidence that is available to him. Thus, the possibility that the refusal is on the part of the wife alone is ignored, and her failure to testify is attributed to the husband's refusal to allow her to testify because her testimony would be adverse to him, although both the husband and the wife may object to her testifying for any reason that appeals to either of them, or for no reason at all.

The conduct of the district attorney was deceptive and unfair. ‘While he may strike hard blows, he is not at liberty to strike foul ones.’ He deliberately ignored the fact that his function is largely judicial and that he owes the defendant a solemn duty of fairness, and that he must bear himself in the discharge of his duties as a minister of justice.

The court instructed the jury that: ‘But while you are the sole and exclusive judges of the facts and of the weight of evidence, you are to judge of the facts upon the testimony and other evidence produced here in court. If any evidence has been admitted and afterwards stricken out, you must disregard the matter so stricken out, entirely, and if any counsel has intimated by questions, which the court has not permitted to be answered, that certaint hings are, or are not, true, you must disregard such questions and refrain from any inferences based upon them. If counsel, upon either side, have made any statements in your presence concerning the facts in the case, you must be careful not to regard such statements as evidence, and must look entirely to the proof in ascertaining what the facts are.’

One ground of appellant's motion for a new trial was claimed prejudicial misconduct of the district attorney. The trial judge denied the motion. As stated in People v. Sarazzawski, 27 Cal.2d 7, 15, 161 P.2d 934, 938: ‘One ground of defendant's motion was asserted prejudicial misconduct of the district attorney. A trial judge is in a better position than is an appellate court to determine the probable effect of misconduct of counsel and his conclusion on that question will not be disturbed by an appellate court unless in the circumstances it is plainly wrong. Walling v. Kimball, 17 Cal.2d 364, 369, 110 P.2d 58, and cases there cited.’

Injury is not presumed from error. Prejudice must appear affirmatively to the reviewing court after an examination of the entire cause, including the evidence. The burden of showing prejudice is on appellant. Const., Art. VI, sec. 4 1/2; People v. Horowitz, 70 Cal.App.2d 675, 704, 161 P.2d 833; People v. Hermes, 73 Cal.App.2d 947, 958, 168 P.2d 44. A judgment of conviction may only be reversed when the reviewing court can say from the entire record, including the evidence, that a miscarriage of justice has resulted. People v. Baskins, 72 Cal.App.2d 728, 733, 165 P.2d 510.

The case is not a close one. The evidence was without conflict that appellant's wife was in the jewelry store, which was a very small one, during the incidents which occurred there, as narrated in the evidence. It was obvious to any juror that if appellant's story were true, he could materially aid his cause by calling his wife as a witness. The situation is like that in People v. Moore, 111 Cal.App. 632, 295 P. 1039, People v. Hodges, 116 Cal.App. 61, 2 P.2d 174, and People v. Briggs, 20 Cal.2d 42, 123 P.2d 433. It appears without doubt from an examination of the entire record, including the evidence, that appellant was guilty of assault with a deadly weapon. Upon the evidence he could well have been convicted of assault with intent to commit murder. We are of the opinion that the misconduct of the district attorney, even if prejudicial, did not result in a miscarriage of justice.

Appellant's third contention is that ‘The court erred, in failing to instruct the jury that an act done under an honest mistake of facts so that if the facts had been as the accused believed no crime would have been committed, is not a crime.’ Appellant did not present or request an instruction on this point. We recently had occasion to state the rule in this regard. In People v. Malone, Cal.App., 185 P.2d 870, 879: ‘The rule is that it is the duty of the court in criminal cases to give, sua sponte, instructions on the general principles of law pertinent to such cases where they are not proposed or presented in writing by the parties themselves. It is not the duty of the court to give such instructions upon specific points developed through the evidence introduced at the trial, unless such instructions are requested by the party desiring them. People v. Warren, 16 Cal.2d 103, 116, 104 P.2d 1024; People v. Bender, 27 Cal.2d 164, 175, 163 P.2d 8.’ Any instruction to the effect that if appellant acted under an honest mistake of facts no offense had been committed, would have been an instruction upon a specific point developed through the evidence introduced at the trial. There was no duty upon the trial court to give such an instruction in the absence of a request therefor.

We find no error in the record. The judgment and the order denying appellant's motion for a new trial are, and each is, affirmed.

VALLEE, Justice pro tem.

SHINN, Acting P. J., and WOOD, J., concur.