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PEOPLE v. DE LA ROI.
Considering the evidence in this case, I cannot concur in a judgment and sentence imposing the death penalty which rests upon a verdict of jurors who were erroneously instructed by the trial judge concerning their duties. Certain circumstances concerning the investigation of the crime and the treatment of the witnesses, my associates agree, are such ‘that any error whatsoever in the trial proceedings, which could reasonably have prejudiced the defendant, would require a reversal.’ But they say that the instruction to the jury, although directly contrary to a statutory provision safeguarding civil rights and guaranteeing a fair trial, was not prejudicial. Their determination is based upon the assumption that any disagreement concerning the testimony ‘must certainly have tended to impede or prevent rather than to facilitate or cause arrival at a verdict of guilty.’ But that conclusion can be drawn only as to disagreement between the jurors which was not cleared up by further deliberations, that is, disagreement which continued to the point of preventing concurrence in a verdict. The statute declares that during the deliberations, if there be any disagreement between the jurors as to the testimony, they must be returned into court. Who can say that there was no disagreement as to the testimony in the present case? Or, if there was such disagreement, would the same verdict have been reached if the jurors had heard read to them the testimony upon the point in dispute?
As I read the record, it is quite unrealistic to suppose that when the jurors retired to consider their verdict in this case, each one of them was of the opinion that it pointed to the guilt of De La Roi beyond a reasonable doubt. The crime was committed in the laundry of Folsom penitentiary, yet no guard or prison officer testified as to the circumstances of the killing. The testimony of the felons who were called as witnesses for the prosecution is replete with conflicts and inconsistent with the physical facts of the attack as revealed by the wounds made on the body of the victim. And these witnesses testified against a background of uncontradicted evidence showing the preferential treatment accorded them, although admittedly the principal witness for the appellant was placed in solitary confinement shortly after the murder was committed and remained there until the day of trial.
The Constitution of California provides that a judgment of conviction may not be reversed ‘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.’ (Italics ours.) Cal.Const. art. VI, sec. 4 1/212. ‘It is equally applicable to cases where the acquittal or the conviction has resulted from some form of trial in which the essential rights of the people or of the defendant were disregarded or denied.’ People v. Wilson, 23 Cal.App. 513, 138 P. 971, 975. And if when ‘the entire cause, including the evidence,’ has been examined, it appears that any erroneous procedure has prevented that fair trial which the Constitution guarantees, it is as much the duty of an appellate court to reverse a judgment of conviction as to affirm one in a case where the defendant's rights have been fully protected.
In the first decision construing the constitutional provision, it was pointed out that a defendant's claim of prejudicial error is to be considered in connection with the evidence upon which the judgment rests. ‘It is plain, of course,’ said this court, ‘that the evidende in a case, while technically sufficient to sustain a finding of guilt, may be so unsatisfactory as to render what in a plain case would be an absolutely harmless error, one of vital importance, one affording ample ground for the conclusion that it has resulted in a miscarriage of justice.’ People v. Fleming, 166 Cal. 357, 371, 136 P. 291, 297, Ann.Cas.1915B, 881. As epitomized in People v. Keaton, 211 Cal. 772, 724, 296 P. 609, 610, the theory of the constitutional provision is ‘that, where there is a strong conflict in the evidence, any substantial error in the proceedings might tip the scales and prejudice the rights of the defendant.’
The evidence in the present case certainly does not point unerringly to the appellant's guilt. The prison duties assigned to him did not require that he be in the laundry room where the stabbing occurred. And, as stated by Mr. Justice Schauer, Cal.Sup., 146 P.2d 225, 226, although ‘there was a convict-guard, or trusty, stationed at the door of the laundry building, whose duty it was to permit no unauthorized person to pass through the door. * * * The guard at the door was not produced as a witness. * * * Even the identity of the guard is not revealed, [and] * * * During the appreciable period of time which elapsed between the stabbing of Deal and his lapse into unconsciousness through loss of blood, no one appears to have asked him the name of his assailant.’
Adding to the difficulty of determining who killed Deal is the conflict between the testimony of the witnesses who described the attack upon him and the undisputed medical testimony. As described by a physician, Deal was stabbed three times. One wound, in the right forearm, was not a mortal injury. Another, in the breast, was somewhat superficial because the dagger, defliected by a tin can in the breast pocket of his shirt and also by a rib, did not penetrate sufficiently to reach the heart. The third wound, about six inches deep, on the left side of the back, caused death.
Because of the nature and extent of these wounds, it is obvious that the witness Allen's account of the attack is far from accurate. According to his story of the encounter, the cuts on Deal's forearm and below his heart must have been made prior to the stab in the left side of the back which caused death and while Deal and De La Roi were face to face. Yet it is difficult to believe that a man such as Deal, for many years accustomed to the grim realities inherent in a convict's life, would, after an assailant had stabbed him twice, turn away and leave his back undefended before his enemy.
There are many other unexplained inconsistencies in the testimony presented by the State. For example, according to the testimony of one prosecution witness, the sound of scuffling feet attracted his attention to the altercation, yet he heard no outcry, as did the laundry superintendent still farther away. And, according to the testimony of two of the witnesses who were closest to Deal when he was stabbed, De La Roi left the laundry with only a knife in his hand and was not carrying a pair of trousers, whereas three others said that he carried a pair of trousers or a bundle under his arm or in his hand.
In connection with these inconsistencies, certain evidence concerning the manner in which prison authorities treated the convicts who were to be called as witnesses should be noted. As stated in the majority opinion, ‘a problem which involved personal interest’ faced all of the witnesses who identified the appellant as the perpetrator of the crime. One of them, Trauger, quite frankly told the jury that since the stabbing, ‘I have been living in a smill building down at the sewage plant * * * I can have the lights on any time I see fit, and listen to the radio on nights as late as ten o'clock * * * and I am away from the crowd * * * I don't have to do any kind of work.’ Allen was also assigned to these quarters two or three days after he was questioned by the prison officials. But the treatment accorded prisoners who did not accuse De La Roi of the crime was quite different. Mr. Justice Schauer summarizes the record in this regard, pointing out that ‘prison officials * * * placed in solitary confinement [convicts who testified in defendant's behalf] * * * and [they] were kept there until the time of trial.’
The appellant took the stand in his own defense and declared his innocence of the crime charged. With Eddie Walker, his then cell-mate, he told the jury, he and Deal went in for the midday meal and sat together. He did not go to the laundry afterward and was not in the laundry when Deal was attacked. Fellow convicts called on behalf of the appellant corroborated much of his testimony.
Considering the evidence as a whole, the testimony of the witnesses for the State is inconsistent in some respects, and inconclusive so far as presenting an eyewitness account of the killing which sqaures with the physical facts shown by the record. Against it stand the statements of two persons who corroborate the appellant's story that he was not in the laundry when the crime was committed and the uncontradicted accounts of the treatment accorded the witnesses by the prison officials.
Moreover, there is the entire lack of evidence concerning the trousers in which the dagger is said to have been wrapped and the ownership of the weapon. From the record it may be inferred that a guard took these articles from the trash barrel. But he was not called as a witness, no attempt was made to connect the appellant with the trousers, and there is no explanation of the reason why the dagger was not examined for fingerprints.
To ascertain the truth from this irreconcilable mass of testimony was probably not an easy task for the jurors. And if any one of them was in doubt of De La Roi's guilt because of inability accurately to recall the evidence upon a particular point, he was confronted with the court's statement that the jury now had ‘all that is to be said in this case, by the respective parties and by the court.’ My associates say that if there was any disagreement between the jurors and they ‘had felt precluded from asking to be brought into court and given further information, the verdict which was returned herein could never have been reached.’ But, as has been stated, disagreement between the jurors may have been overcome by persuasion when, except for the instruction, it would have been resolved by a further consideration of the evidence. Under such circumstances, the rule stated in the recent case of People v. Dail, 22 Cal.2d 642, 140 P.2d 828, 832, to me compels a determination that the challenged instruction was prejudicially erroneous. Speaking for the court, the Chief Justice there said: ‘* * * in a close case where the evidence is sharply conflicting, substantial and serious errors vital to defendant that may have resulted in a miscarriage of justice must be regarded as prejudicial and grounds for reversal.’ This language is practically the same as that used in People v. Silver, 16 Cal.2d 714, 108 P.2d 4. By another recent decision it was held that the failure to give a cautionary instruction was prejudicial where ‘a different verdict would not have been improbable had the error not occurred.’ In conclusion, the court declared: ‘In view of the circumscribed extent of the acts alleged and the inconsistencies in the witness' testimony, it is doubtful whether the same verdict would have been rendered had the cautionary instruction been given.’ People v. Putnam, 20 Cal.2d 885, 892, 129 P.2d 367, 371.
According to the rationale of these cases, prejudice is sufficiently established under article VI, section 4 1/212, where the evidence of guilt, as shown by the record, is not clear and convincing and an error is made in an instruction vital to the defense or which may have deprived the defendant of the fair and impartial trial guaranteed by law. The record in the present case fully meets each of these requirements; accordingly I see no escape from the conclusion that the challenged instruction was prejudicial to the appellant, within the meaning of the constitutional provision.
For these reasons, I believe that the judgment should be reversed and the cause remanded for a new trial.
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Docket No: Cr. 4466.
Decided: February 24, 1944
Court: Supreme Court of California
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