Defendant appeals from a judgment of conviction of second degree murder. His wife, Arlys Watson, was killed on February 15, 1953, in their San Francisco apartment. Defendant's conviction rests on circumstantial evidence. He does not challenge the sufficiency of the evidence to support the conviction, but he argues these points as grounds for reversal: (1) the restriction of the defense's cross-examination of one of the prosecution witnesses, Officer Mullen; (2) the giving of an instruction that neither the prosecution nor the defense was required to call as witnesses all persons present "at the events involved in the evidence";
In February, 1953, defendant was 26 and his wife was 22. He was then an Army corporal, stationed in San Francisco, and was due to be discharged on March 19, 1953. The couple were married in June, 1952, and lived in an upstairs furnished apartment. Apparently there was no particular friction between them.
February 15, 1953, was a Sunday. At 7:00 that evening defendant telephoned to the police that he had just found his wife dead in their apartment. Officer Mullen was the first official at the scene. Defendant met him there and took him to the bathroom, where he found Arlys lying in the bathtub, with her legs bent in a jack-knife position and with her head partially submerged, although neither the nose nor mouth was under water. Officer Mullen noted a red-brown stain about 4 or 5 inches wide that ran down the back of the tub (from the top of Arlys' head into the water) and the water was bloody. The bathroom walls were clean and the floor was dry. He noticed that the body was rigid, and he made no effort to remove it from the tub. He saw black and blue marks on the deceased's fingers but no wounds on the body. He noted that the bed was unmade but that everything else in the bedroom seemed to be in order. Defendant appeared nervous.
Shortly after Officer Mullen's arrival, Inspectors Flynn and Thompson reached the scene, followed by ambulance driver Hynes and ambulance steward Zielinsky. The latter two, after removing the deceased from the tub to a mat on the bathroom floor, made a brief examination of the body. Zielinsky testified that the body was very stiff and rigid; that there was some bleeding from a matted mass of hair in the back of deceased's head but no wounds were visible; and that her 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
Two coroner's deputies next arrived at the apartment, and the ambulance men departed. After cleaning up the bathroom, the coroner's men left with the body. Defendant testified that he then notified the military authorities, but neither then nor later did he attempt to communicate with his or his wife's parents. He further testified that Officer Mullen told him that all there was left for him to do was to appear at the coroner's inquest in about six weeks, advised him against remaining in the apartment that night, and left.
About 9:30 that evening the coroner's office reported the death to Inspector Nelder of the homicide detail, and shortly thereafter he and Inspector VanDervoort went to the Watson apartment. The door was locked, and the landlady admitted them. The apartment appeared to be in order, and there was no evidence of breakage or a forced entry. Money was found in the deceased's purse, standing on the bureau, and there was no evidence of robbery. Nelder learned from the Army authorities that defendant was staying at a certain downtown hotel, and the two inspectors went there. Defendant was not in his room but after searching the neighborhood, they found him on the street about 10:30 that evening, and they took him to the Hall of Justice for questioning. The story defendant then told the police and during subsequent interrogation, as well as at the trial, was substantially the same. He admitted that Saturday night, February 14, 1953, he and wife had a disagreement over the fact that she had sent him a Valentine and he had failed to remember her, but he denied that they had a serious argument then or at any other time.
Defendant stated that on the morning of February 15,
According to defendant, after breakfast he asked his wife if she wanted to take a ride, but she declined stating that she wanted to clean the house in preparation for an expected house guest who was coming the next week. He stated that he then went to make the bed, that as he grasped the bedspread his finger started to bleed again, and he went to get a fresh bandage; that his wife told him that she would take care of the bed; and that he then decided to go out for awhile. He left the apartment about 12:30 p.m., first taking two laundry bags to a nearby laundromat. He then drove to Half Moon Bay, sunned himself on the beach for about half an hour, but left when it became windy. After his arrest, sand was discovered in defendant's shoes and socks. Defendant stated that he then went to Sutro's Baths for a swim, using his own swimming suit. After leaving Sutro's, defendant stated that he started toward home, stopping first about 6 p.m. at a drugstore to buy his wife a heart-shaped box of candy in view of his Valentine Day oversight; next going to a bar where he had a couple of beers, then proceeding to a nearby store to purchase a pint of ice cream, and finally arriving home about 7 p.m. The Watsons' 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 lift her, realized that she was dead, desisted, and then telephoned the police. The clothing that defendant stated he was wearing that Sunday — a civilian sports suit — when he undertook to remove his wife from the bathtub was found at the hotel where he later registered that night; and all the clothing, including the jacket, was dry. Defendant stated that he did not get any of his clothing wet at that time.
It was the theory of the prosecution that defendant had killed his wife in the bedroom before leaving the apartment that Sunday morning; that he then went out to build up an elaborate alibi, and hid or made some disposition of the bloody bedclothes — the previously mentioned white bedspread and a certain yellow blanket which the police learned had been in the apartment but which, like the white bedspread, was never found; that defendant returned home before 7 p.m., cleaned up the apartment to hide the evidence of any struggle, and placed his wife in the bathtub to make the death look like an accident.
The building in which the Watsons occupied an upstairs apartment was so constructed that the tenant below could hear any noises or sounds which might occur above him. The tenant testified that on that Sunday morning between 10, when he arose, and 10:30, when he left, there was no unusual sound from the Watson apartment; nor were there any unusual sounds between 12:30 and 2:30 p.m. or between 4:30 and 6 p.m., when he was again in his apartment. Both this tenant and the landlady in the building testified that on the preceding Saturday, February 14, they heard noises emanating from the Watson apartment, as if furniture was being moved. Upon this premise, the prosecution maintained that the homicide did not occur during the recited hours that the tenant below was in his apartment, and that the Saturday noises were caused by Mrs. Watson's cleaning activities that day, with the result that she had no reason for staying home Sunday to do the already-completed work. A neighbor in adjoining premises testified that sometime between 10:30 a.m. and 12 noon that Sunday morning, she heard three or more unusual thumping noises coming from the Watson apartment. No witness testified to hearing any screams or shouts from the Watson apartment that Sunday morning.
An autopsy on the deceased's body revealed some lacerations
The time factor was a vital element in the case, and the prosecution presented medical testimony bearing on this point. Two medical experts testified as to their examination of the contents of the deceased's stomach, one fixing the death as having occurred one hour, and the other fixing it as one to two hours after the last meal had been eaten. As noted above, defendant stated that he and his wife had breakfast between 10 and 11 that Sunday morning; and he left the apartment about 12:30 p.m. In relation to the setting-in of rigor mortis, these medical experts agreed that eight hours after death would be the normal period required for a body of the age and condition of deceased's to reach the state of rigidity which had been described by other witnesses in reciting their observations at the time they went to defendant's apartment about 7:30 p.m. that Sunday. Again this would fix the time of death as about 11:30 a.m., which was before defendant stated that he left the apartment. With regard to whether the deceased's body had long been immersed in water, these medical experts testified that normally skin wrinkling in certain areas occurs about one hour after immersion and remains present for about 22 to 24 hours. There was no skin wrinkling when the body was examined some 17 or 18 hours after removal from the tub.
The civilian clothes that defendant had worn that Sunday were found in the hotel room where he went that evening. Included with this clothing was a pair of socks stuffed into his shoes. There were bloodstains on the soles of the socks — later determined to be both "A" and "O" types of blood; the deceased's was "A" and defendant's was "O." Defendant
On Sunday night, February 15, following defendant's interrogation at the Hall of Justice relative to the homicide, defendant was asked to remove his clothes for examination of his body. At that time it was observed that defendant had some scratches and bruises on his body, apparently recent ones and as to which he was only able to give a partial explanation: a bruise on his knee attributed to rifle range practice the preceding day, Saturday, and the cut on his right index finger resulting from his opening the beer can that Sunday morning; but he could not account for scratches found on his right forearm and left upper chest.
Police criminologists and inspectors made several scientific examinations of the Watson apartment, the first being on February 16. Numerous small bloodstains were found on the east wall of the bedroom (near the bed), which proved to be "O" (defendant's) blood. The bedroom rug near that same side wall appeared to have been rubbed or washed, but was dry; and when sprayed with luminal, that portion of the rug indicated the presence of blood. A luminous reaction was found between the bed and the east wall of the bedroom, going toward the bathroom. No bloodstains were found on the bathroom walls. Examination of the living-room furniture disclosed a few bloodstains on the undersurface of the divan (both "A" and "O" blood). The rose-colored bedspread which was found on the bed (though presumably it was originally on the divan according to the prosecution's evidence as above noted) also contained bloodstains (in the main "O" type but also some "A").
On the circumstantial evidence which has been summarized, the jury returned a verdict of second degree murder. Defendant does not contend that the evidence is insufficient to support the conviction, but he relies for reversal upon four assignments of error.
First to be considered is defendant's complaint of the restriction of the defense's cross-examination of Police Officer Mullen.
But the Whitehead case involved a typical situation for application of the rule in that the object of the cross-examination was to bring out the conversation between the deceased and defendant accompanying the commission of the killing. Here, the situation differs in that the conversations, comments and remarks which the defense sought to elicit from Officer Mullen on cross-examination, though they formed no part of his testimony on direct examination, concerned conversations of third persons occurring after, rather than accompanying, the happening of the crime.
While defendant makes some general complaint concerning the alleged curtailment of the cross-examination of Officer Mullen and other prosecution witnesses, the record does not sustain his claim. On the contrary, it appears that the trial court was very liberal in the allowance of the defense's cross-examination of Officer Mullen, for his direct examination covered but 14 pages of the transcript while his cross-examination covered 80 pages. There were other instances showing the liberality of the trial court in allowing cross-examination of prosecution witnesses: Inspector Nelder's direct examination covered 86 pages, his cross-examination 169 pages; the autopsy surgeon's direct examination covered 14 pages, his cross-examination 163 pages; and another pathologist's direct examination covered 18 pages, his cross-examination 185 pages. It does not appear that the trial court misapplied the principles governing the proper limitation of cross-examination, but rather that it followed a liberal policy in its rulings.
Defendant next contends that the trial court erred in giving an instruction that neither the prosecution nor the
Defendant takes the position that since these witnesses were not called by the prosecution, it should be presumed that their testimony would not have been corroborative of the account of prosecution witnesses Mullen and the two ambulance men, Hynes and Zielinsky, but rather would have been unfavorable to the prosecution's theory. For this proposition, he cites People v. Beal, 116 Cal.App.2d 475 [254 P.2d 100], where the prosecuting witness in a rape charge failed to produce her examining physician, and there was no independent proof of the alleged offense other than her own testimony, which varied in several material particulars; and Julson v. Julson, 110 Cal.App.2d 797 [243 P.2d 558], where in a divorce action, about ten persons of a group witnessed a certain episode, no one of them was called as a witness, no explanation was given therefor despite the need for corroborating evidence, and under such circumstances the court was declared "bound to presume ... that their testimony would be unfavorable, and was for that reason suppressed." (P. 801.)
The next question concerns the court's instructions on circumstantial evidence.
Defendant argues that it was error for the court to refuse to give a requested instruction in language substantially embodying CALJIC No. 28. People v. Bender, supra, People v. Koenig, supra, and People v. Zerillo, supra, were concerned primarily with the court's error in failing to give CALJIC No. 27, although in the Koenig case the refused instruction was extended to include, in part, the principle of CALJIC No. 28. In the Zerillo case the error was held reversible error but not so in the Bender and Koenig cases.
In the District Courts of Appeal the adequacy of the instructions on the principles governing circumstantial evidence cases has been variously handled. Depending on the particular record, the court's failure to give more complete instructions on the subject was held cause for reversal in People v. Hatchett, 63 Cal.App.2d 144, 152-156 [146 P.2d 469]; People v. Rayol, 65 Cal.App.2d 462, 465-466 [150 P.2d 812], and People v. Tholke, 75 Cal.App.2d 857, 860-861 [171 P.2d 904]; but not in People v. Webster, 79 Cal.App.2d 321, 327-329 [179 P.2d 633], People v. Candiotto, 128 Cal.App.2d 347, 356-358 [275 P.2d 500], and People v. Perez, 128 Cal.App.2d 750,
Defendant finally contends that the court erred in permitting the prosecution, over objection, to develop certain alleged collateral matters through his cross-examination, and which he claims could have had no purpose except to discredit and degrade him.
Defendant's second point of objection concerns his cross-examination as to his height and related facts. On direct examination, defendant stated that he was 6 feet 6 inches tall. On cross-examination, the prosecution asked defendant about certain marks on one of the door frames in his apartment,
Section 2065 of the Code of Civil Procedure, 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: "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
This section, first adopted in 1911 with reference only to criminal cases but amended in 1914 so as to apply as well to civil cases, now reads: "No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or 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." (Emphasis added.) While it had long been provided in our statutory law that judgments would not be reversed because of technical errors or defects which did not affect the substantial rights of the defendant (Pen. Code, §§ 1258, 1404), the courts nevertheless in reviewing convictions in criminal cases had generally followed the rule that prejudice would be presumed from error and upon that basis the defendant was "entitled to a reversal of the judgment." (People v. Williams, 18 Cal. 187, 194; see also People v. Murphy, 47 Cal. 103, 106; People v. Stanley, 47 Cal. 113, 119 [17 Am.Rep. 401]; People v. Furtado, 57 Cal. 345, 347; People v. Sansome, 84 Cal. 449, 451 [24 P. 143]; People v. Moore, 103 Cal. 508, 511 [37 P. 510]; People v. Richards, 136 Cal. 127, 128 [68 P. 477].) The constitutional amendment added a new concept calling for a determination by the court that the alleged error resulted in "a miscarriage of justice." To this end the appellate court was required to review the evidence so as to form an "opinion" as to whether the assigned errors
Shortly after the adoption of the amendment, its meaning and scope were considered in People v. O'Bryan (1913), 165 Cal. 55 [130 P. 1042]. That case involved the infringement of the defendant's constitutional right not to be compelled to testify against himself in a criminal action. (Cal. Const., art. I, § 13.) Conceding the error, there remained the question of whether the character and effect of that error were such as to require a reversal under the circumstances, having "due regard to the terms of section 4 1/2 of article VI." (P. 63.) In an exhaustive discussion of the problem, the following principles were declared: That the section abrogated the former rule that prejudice is presumed from error, and allowed the reviewing court to consider the evidence to determine whether the error did in fact prejudice the defendant; that the distinction between reversible and nonreversible error does not rest upon the distinction between error relating to constitutional rights as contrasted with other rights, but that the section applies to both; that certain fundamental rights, however, are guaranteed to the defendant upon which he can insist regardless of the state of the evidence, such as the right to a jury trial and the right to protection under the plea of once in jeopardy, but that not every invasion of a constitutional right necessarily requires a reversal; that generally, error involving the infringement of a constitutional right, like any other error, requires a further determination whether the defendant has been prejudiced, and the final test is the "opinion" of the reviewing court, in the sense of its belief or conviction, as to the effect of the error; and that ordinarily where the result appears just, and it further appears that such result would have been reached if the error had not been committed, a reversal will not be ordered. Upon this basis, the error committed in the O'Bryan case was held not to be cause for reversal. (See also People v. Mayfield (1927), 85 Cal.App. 77 [259 P. 75].)
Somewhat different is the language used where the reviewing court has expressed doubt as to whether the error had affected the verdict. Such view has been stated in the form of a double negative, with a reversal required if the court is of the opinion that "a different verdict would not have been improbable had the error not occurred" (People v. Putnam, 20 Cal.2d 885, 892 [129 P.2d 367]) or "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 within the meaning of the constitutional provision. (People v. Hamilton, 33 Cal.2d 45, 51 [198 P.2d 873]; People v. Rogers, 22 Cal.2d 787, 807 [141 P.2d 722]; People v. Putnam, 20 Cal.2d 885, 892 [129 P.2d 367].)" (People v. Newson, 37 Cal.2d 34, 45 [230 P.2d 618]; see also People v. Carnine, 41 Cal.2d 384, 392 [260 P.2d 16]; and cases collected in "Appellate Review of Criminal Convictions on Appeal," 43 Cal.L.Rev. 381.)
Giving due consideration to the varying language heretofore employed in relating the constitutional amendment to the particular situations involved, it appears that the test generally applicable may be stated as follows: That a "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. Phrasing the test in this language avoids any complexity which may be said to result from the language employed in the double negative approach, and such phrasing seems to coincide with the affirmative language used in the constitutional provision.
The judgment is affirmed.
Gibson, C.J., Traynor, J., and McComb, J., concurred.
Shenk, J., concurred in the judgment.
SCHAUER, J., Dissenting.
In the majority opinion it is recognized that "It is the right of a witness [italics added] to be protected from irrelevant, improper or insulting questions, and ... to be examined only as to matters legal and pertinent to the issue." (See Code Civ. Proc., §§ 2065, 2066.) When the "witness" is also the defendant on trial for his life or liberty, failure to accord him that specifically declared right takes on vastly greater import than where the victim of the misconduct is affected only as a witness.
The majority opinion also recognizes that "The challenged but admitted evidence was undoubtedly collateral and irrelevant to any issue in the case. The casting of aspersions on defendant's reasons for wearing an Army uniform that he was entitled [apparently required] to wear, and offering evidence to show an attempt to get a discharge from the Army had no bearing on his motive or credibility in relation to the crime charged." In other words, it is conceded that the object and effect of asking the improper questions was to prejudice the defendant in the minds of the jurors.
Technical proof of guilt and effective persuasion of guilt may be quite different things. For proof of guilt to sustain the verdict on appellate review the prosecution relies upon circumstantial evidence which, while not wholly insufficient as a matter of law, is far from being overwhelming or even satisfyingly convincing as a matter of substance. Many of the suspicious circumstances are susceptible of innocent construction. The finding of guilt rests heavily upon inferences drawn in some respects from objective facts and as to other elements from opinion evidence. Certainly, resolution of the conflicting inferences and of the ultimate fact is for the jury, but when the scales of proof are so delicately balanced it should be resolved by a jury which has heard relevant evidence and which has not been prejudiced and thereby persuaded by irrelevant matters. It seems rather clear to me that the natural result of the conceded error was a miscarriage
For a more complete narration of the evidence, elaboration of the general unfair conduct of the trial, and a correct application of the pertinent rules of law, reference is made to the opinion prepared for the District Court of Appeal by Presiding Justice Peters and concurred in by Justices Bray and Fred B. Wood, Jr., reported at (Cal. App.) 288 P.2d 184.
For the reasons therein and hereinabove indicated I conclude that there has been a miscarriage of justice and would reverse and remand for a new trial.
In my opinion this case was correctly decided by the District Court of Appeal, First Appellate District, Division One, in an able and exhaustive opinion prepared by Mr. Presiding Justice Peters and concurred in by Justices Bray and Wood. (Cal. App., 288 P.2d 184.) After an exhaustive review of the evidence and an able and comprehensive discussion of the contentions of the respective parties, that opinion concludes: "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."
The majority of this court concedes, as it must, that numerous errors were committed by the trial court during the trial of this case, but concludes that such errors were not prejudicial to defendant and did not result in a miscarriage of justice, as that term is used in section 4 1/2 of article VI of the Constitution of California.
I have heretofore had occasion to discuss the applicability of this constitutional provision to both criminal and civil cases (see dissenting opinions, People v. Tarantino, 45 Cal.2d 590, 604 [290 P.2d 505], and Buckley v. Chadwick, 45 Cal.2d 183, 203, 208 [288 P.2d 12, 289 P.2d 242]), and I will not here take the time to review the authorities or discuss their applicability to the case at bar. I cannot refrain from stating that I positively do not agree with the holding of the majority here "that generally, error involving the infringement of a constitutional right, like any other error,
It is perfectly obvious to me that the concept of the framers of section 4 1/2 of article VI of our Constitution was that technical errors in instructions to the jury or in the admission or rejection of evidence or errors in pleading or procedure which could not affect the result in a case should not be relied upon as a ground for the reversal of a judgment. In fact this is what the plain language of the section states, and I am in full accord with this concept. However, the section has not been so construed by this court. In fact, the section has been invoked to affirm judgments of conviction where the errors complained of clearly and obviously affected the substantial rights of the defendant (see People v. Tarantino, 45 Cal.2d 590, 604 [290 P.2d 505]). To my mind it is perfectly obvious that this salutary provision of our Constitution has been applied in recent years in such a manner that any judgment of conviction may be upheld regardless of the grievous errors which may have been committed by the trial court because it was the view of four members of this court
A reading of the majority opinion here demonstrates that whenever the majority desires to invoke section 4 1/2 of article VI for the purpose of affirming a judgment of conviction, it simply resorts to double-talk and finally arrives at the conclusion that the judgment should be affirmed. This is precisely what has happened in the case at bar.
For the reasons stated in the opinion of the District Court of Appeal hereinbefore cited, I would reverse the judgment and grant defendant a new trial.
Appellant's petition for a rehearing was denied August 1, 1956. Carter, J., and Schauer, J., were of the opinion that the petition should be granted.