Opinion
Cr. 2659
10-19-1956
The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank CORRIGAN, Defendant and Appellant.*
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Frank CORRIGAN, Defendant and Appellant.*
Oct. 19, 1956.
Hearing Granted Nov. 16, 1956.
Peek, J., dissented.
Robert Cole, Sacramento County Public Defender, and Ralph D. Drayton, Sacramento, for appellant.
Edmund G. Brown, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., for respondent.
VAN DYKE, Presiding Justice.
Appellant appeals from a judgment based upon a verdict of guilty of the crime of first degree robbery, and from an order denying him a new trial. He contends that the evidence was insufficient to support the verdict, that the trial judge was guilty of prejudicial misconduct, and that error was committed by the court in failing on its own motion to give an instruction on alibi. We shall discuss these assignments in the order in which they are made.
There was evidence as follows: At approximately 1:30 A.M. on Sunday, May 1, 1955, two men, masked with silk stockings, entered the King of Clubs Bar at 28th and X Streets in Sacramento. Present at the bar were Mr. Tufts, bartender, and five patrons, Mrs. Roberts, Mr. and Mrs. Mitchell, Mr. Dodds and Mr. Trelease. One of the two robbers was Fred Ash and the People contended that appellant was the other. This second person wore a dark overcoat which was too large for him, a brown hat, carried a gun in his right hand and walked in a crouched position. The robbers ordered everyone into the women's rest room and told them to remain there until they (the robbers) left. When the bartender and the patrons returned to the bar it was discovered that the robbers had taken approximately $300 from the cash register; that the purses of Mrs. Roberts and Mrs. Mitchell, which had been left on the bar, were missing; that the bartender's wallet, which he had been ordered to drop as he entered the rest room, was missing, and that a tray used for holding nickels had been taken. Ash, charged as appellant's codefendant, had resided for approximately a year before his arrest on May 2, 1955, in a converted garage apartment in the rear of a home owned by Mrs. Wilma Connell. On Friday, May 6th, and again on Sunday, May 8th, Mrs. Connell received telephone calls relative to Ash. The caller on May 6th identified himself as 'Frank'. The caller on May 8th did not identify himself, but Mrs. Connell testified his voice sounded the same as that of the man who had called on May 6th. After receiving the call on May 8th, Mrs. Connell's husband and a Mr. Hunton went to the garage apartment of Mr. Ash, where they were soon followed by Mrs. Connell. Hunton testified that upon going to the apartment he began looking for a green box and discovered one in the attic. He opened the box and after the three had taken a hasty look at the contents the police were called. At the trial the box was shown to have contained the nickel tray, a dark blue overcoat, a pair of ladies' hose, the purses of Mrs. Roberts and Mrs. Mitchell, the bartender's wallet and a gun. The gun was similar to the one used in the robbery. Shortly thereafter the officers arrested appellant along with James Duran and a juvenile girl. Appellant's fingerprints were found on the gun. When confronted with the box and its contents, appellant denied ever having seen any of the items the box contained. Duran testified that appellant had asked him to come to his home; that while there he overheard a conversation between Corrigan and one Dillon relative to the making of telephone calls; that Dillon then left the apartment for the expressed purpose of making a call; that during the conversation between appellant and Dillon much had been made of the fact that Ash was in Jail. Corrigan stated that 'the heat was on' and that he hoped Ash had had sense enough to do something with the box; that he wanted the box hidden; that there was something in it 'stockings and stuff like that' and he expressed the hope that 'you guys got sense enough to get rid of that box because in the box was the stockings and the gun and these fingerprints were all over it.' Several of the patrons of the bar and the bartender testified that the coat, the hat and the stockings found in the box were similar to those worn by the robber who displayed the gun. Appellant claimed that his fingerprints were placed on the gun after he had been arrested and while being questioned by the officers, who handed him the gun and asked him if he had seen it before. The officers, however, denied that he touched the gun at any time after it had been found in the box, and on appeal we must accept the testimony of the officers. Several witnesses to the robbery testified that appellant resembled the man who had handled the gun during the robbery, although admittedly their identification amounted to nothing more than testimony as to similarity. Appellant's defense was that of alibi. Four witnesses testified to having either been with him or having seen him under circumstances which strongly supported his claim of alibi, but in resolving the issue as to sufficiency of the evidence this testimony does no more than raise a conflict with the evidence presented by the prosecution. We hold that the verdict of the jury is sustained by the record.
The claims of misconduct revolve around several examinations of defense witnesses by the trial judge and amount to contentions that during the receipt of evidence the judge in a number of instances unreasonably and unnecessarily interfered with the examination of witnesses to the prejudice of appellant, and that while appellant's witnesses were on the stand the judge commented upon their testimony in such a way as to indicate that he disbelieved them, all with the result that appellant was denied a fair trial.
The Constitution provides in Article VI, Section 19, that: 'The court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case. The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses.'
It is to be noted that the Constitution uses the permissive 'may' not only in relation to comment upon evidence and upon witness credibility, but also in relation to instructing the jury regarding the law. This latter duty is, of course, considered mandatory and it is unnecessary to cite the numerous opinions which, in criminal case, have declared that the court must instruct the jury regarding the applicable general rules of law. There seems to be a reluctance to comment on the part of trial judges not justified by the language of the Constitution. The section in its present form was enacted into the Constitution by the People in 1934 and immediately drew the attention of both trial and appellate courts. The purpose of the enactment and the evil at which it was aimed were fully discussed by the Supreme Court in People v. Ottey, 5 Cal.2d 714, 56 P.2d 193, 198. The court noted that the section had before the amendment prohibited judges from charging juries with respect to matters of fact, though permitting them to state the testimony and declare the law and then defined the purposes of the change to be as follows: To abolish the prior limitations which case law had placed upon the trial judge's participation in the trial with respect to comment on the evidence and on the credibility of the witnesses; to place in the trial judge's hands more power in the trial of jury cases and then to make him a real factor in the administration of justice in such cases instead of being in the position of a mere referee or automation as to the ascertainment of the facts; to establish the rule in this state in substantial harmony with practice in other jurisdictions where like powers were exercised by trial judges. The court quoted from Chitty (Brickwood's Sackett on Instructions to Juries, p. 126 et seq.) as follows: 'It is the practice for the judge at nisi prius not only to state to the jury all the evidence that has been given, but to comment on its bearing and weight, and to estate the legal rules upon the subject and their application to the particular case, and to advise them as regards the verdict they should give."
The court quoted with approval from Malaga v. United States, 1 Cir., 57 F.2d 822, wherein that court declared: "The right of a trial judge to aid the jury in arriving at a just verdict is a valuable and important judicial function in the administration of justice. We have no desire to limit it except within its proper sphere. It is a trite saying, but a true one, that in the interest of justice a judge should be permitted to control the conduct of the case rather than counsel for the litigants. A trial in a court of justice should not be a game over which the judge presides in the capacity of umpire to see that certain rules are observed, but a proceeding in which a just verdict is the sole aim. "The trial judge must declare the law governing the rights of the parties and determine what evidence it is proper for the jury to consider under the established rules of evidence. He should also by reason of his training in analyzing testimony, and experience in determining the credibility of witnesses, and the influence that personal interest bias, and prejudice have in influencing witnesses, be permitted to assist the jury in determining what evidence has a bearing on the disputed issues in the case, and aid them in weighing the evidence, taking care that the jurors clearly understand that it is their own judgment which must finally determine what the facts are. To this end a judge in the federal courts may inform the jury of the impression certain evidence makes on his mind. But having in mind the weight that jurors ordinarily give to the opinion of the presiding justice, he should take especial care that they understand that it is their independent judgment which must finally determine the factual issues, and are not unduly influenced by the opinion of the court."
Finally, the Supreme Court, further defining the right of comment, declared that a trial court could in a proper case express its opinion upon guilt or innocence. Said the court: 'Expressions of the court's opinion as to the guilt or innocence of the defendant have been held to be within the scope of 'comment,' so long as the province of the jury as defined by the constitutional section is not invaded.' 5 Cal.2d at page 729, 56 P.2d at page 200. But when, during the trial, shall the court exercise its right and duty to comment? To that question we now turn our attention. Shortly after the constitutional amendment was approved by the People the legislature amended the existing Section 1127 of the Penal Code to include the subject of comment. It read:
'* * * In charging the jury the court may instruct the jury regarding the law applicable to the facts of the case, and may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case * * *. The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses. * * *' (Italics ours.)
This section is the legislative interpretation and implementation of the constitutional amendment, and it states that comment is to be made during the charge to the jury. It appears that no appellate decision rendered in this state since the amendment has expressly stated when comment should occur. The Model Code of Evidence of the American Law Institute states the matter in this way, under the heading of 'Comment by Judge', page 81: 'After the close of the evidence and agruments of counsel the judge may sum up the evidence and comment to the jury upon the weight of the evidence and the credibility of the witnesses, if he instructs the jury that they are to determine for themselves the weight of the evidence and the credit to be given to the witnesses and are not bound by the judge's comment thereon.'
The text then quotes from Capital Traction Co. v. Hof, 174 U.S. 1, 13, 14, 19 S.Ct. 580, 43 L.Ed. 873, wherein that court defined a trial by jury as follows: 'Jury trial 'is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts.'' We may here add a quotation from Sir Matthew Hale (The History of the Common Law of England, 6th ed., p. 346) descriptive of the jury trial of his day: 'Tenthly, another excellency of this trial is this; that the judge is always present, at the time of the evidence given in it. Herein he is able, in matters of law, emerging upon the evidence, to direct them; and also, in matters of fact, to give them a great light and assistance, by his weighing the evidence before them, and observing where the question and knot of the business lies: and by showing them his opinion even in matter of fact; which is a great advantage and light to lay-men. And thus, as the jury assists the judge in determining the matter of fact, so the judge assists the jury in determining points of law, and also very much in investigating an enlightening the matter of fact, whereof the jury are the judges.'
It was to this concept of the trial by jury, respecting comment, that it was the purpose of the People to return when they amended Article VI, Section 19, of the Constitution; and while our courts have not expressly so declared yet they have done so by implication for implicit in the cases is a rule that limits the right of the trial judge to comment, as that term is used in the Constitution, to the time when the court charges the jury. Thus in People v. O'Donnell, 11 Cal.2d 666, 671, 81 P.2d 939, 942, it was said: '* * * A trial judge is rigorously prohibited from action or words having the effect of conveying to the jury his personal opinion as to the truth or falsity of any evidence. This rule should be strictly adhered to.'
This was said in a case where, while the evidence was coming in, the court had expressed an opinion as to credibility of a witness. And in People v. Byrd, 88 Cal.App.2d 188, 191, 198 P.2d 561, 562, in discussing a question asked by the trial judge of the defendant as to whether his denial of past conviction of a felony was just as true as his contention of innocence in the case at bar, the court said: 'Our courts have many times reversed convictions in criminal cases because of intimations by the trial judge during the taking of testimony that the defendant or his witnesses was not believed by the judge. See People v. Mahoney, supra, 201 Cal. 618, 621-627, 258 P. 607; People v. Boggess, 194 Cal. 212, 239-240, 228 P. 448; People v. Bowers, 79 Cal. 415, 417, 21 P. 752; People v. McNeer, 8 Cal.App.2d 676, 681, 47 P.2d 813; People v. Singh, 78 Cal.App. 488, 248 P. 986; People v. Conboy, 15 Cal.App. 97, 113 P. 703; People v. Long, supra, 63 Cal.App.2d 679, 682-686, 147 P.2d 659.'
It is impossible to harmonize our case law except upon the proposition that while a court may, when it charges the jury in a criminal case, express its opinion as to the weight of evidence and as to the credibility of any witness, it must, while the evidence is being received, refrain from such conduct. While the Constitution is not explicit on the matter we so construe the case and statute law.
The actions and conduct of the trial judge challenged on this appeal, therefore, do not come within the constitutional permission as to comment and expression of opinion, for all occurred during the receipt of evidence. We will now proceed to examine the record with the charges of misconduct in view. To do that we must make extensive references thereto.
Appellant opened his defense by calling one Nick Bakotich as an alibi witness. This witness testified that on the date of the robbery he had been with appellant Corrigan; that he met him in the Diamond Club on 8th and L Streets in Sacramento and had a drink with him there; that they left around 10 o'clock and went to a second bar at 13th and K Streets with a friend of Corrigan whose name the witness did not recall; that after staying awhile they went across the street to a third bar, arriving there around 11:30 to a quarter to 12, where they stayed a little over an hour, taking them up to about 1 o'clock; that they went back to the Sapphire again and stayed until it closed at 2 o'clock; that during that time Corrigan did not leave the group for any appreciable length of time; and that the witness had been with him all the time. The People's counsel cross examined this witness quite extensively. He asked Bakotich how he could remember the particular date he had been with Corrigan and why he could not remember the name of the third man; he had the witness describe this third man, and drew from his the admission that there was nothing in the conversation or anything that happened that would serve to identify this third man; he developed that the witness had gone to bars with Corrigan a few times before, and he took him over the route the three men had followed during their stay together. It was developed that in previous meetings the men had been together at about the same time of day as on the evening of the robbery; that their meetings had been largely accidental, and that they were not intimates; the witness was asked to tell of other people whom he had seen and recognized while with Corrigan, and he named some people who were called to the stand later as additional alibi witnesses and who corroborated the testimony of Bakotich. The length of his acquaintance with Corrigan was gone into, and the witness admitted that he wanted to help Corrigan out by his testimony. He was closely questioned as to why he had not come forward and told the officers who were holding Corrigan that Corrigan could not have committed the crime with which he was later charged. He said he had no reason at all to give why he had not done so. He was asked as to his acquaintanceship with Ash, with the prosecution witnesses Dillon and Duran, and said he had none. Without going further, it is apparent from the record that the cross examination by counsel for the People, which occupies 25 pages of the transcript on appeal, was extenseive and detailed. At that point counsel for the People asked the witness if he habitually associated with ex-convicts and received a negative answer. The court then interrupted and embarked upon a further examination of the witness which embraces the next 15 pages of the transcript. It began as follows: 'The Court: Wait a minute. Where did he work? 'The Witness: Who? 'The Court: Corrigan? 'The Witness: I don't know. I didn't know whether he was working or not. 'The Court: How many times did you see him? 'The Witness: I guess about six or seven times. 'The Court: Spend the evening with him? 'The Witness: That would be night there at April the 30th I was with him, yes. 'The Court: What other nights did you spend with him? 'The Witness: Oh, a couple of other occasions I met him uptown. 'The Court: Tell me the last night before the 30th. 'The Witness: I guess it might have been around three, four days before. 'The Court: Might have been three or four days. Tell me the last time you were with him before the 30th. You ought to know. You say you were there. Where were you with him the last time before the 30th? And tell me how long you were with him that time and what you talked about? 'The Witness: I don't recall. 'The Court: You don't know. You don't know, is that it? Do you know or don't you know? 'The Witness: No. 'The Court: You don't know, is that right? 'The Witness: (Nodded affirmatively.) 'The Court: All right, that's one time. You said you were with him how many, five or six times? When was the last time before that that you were with him, and what did you talk about? 'The Witness: Well, I---- 'The Court: Didn't you ever talk about where he worked? 'The Witness: With him? 'The Court: With him, yes. 'The Witness: Oh, I asked him. Yeh, I asked him. 'The Court: What did he tell you? 'The Witness: He wasn't working at the time I asked him. 'The Court: Did you ever ask him where he ever worked? 'The Witness: I don't understand. He told me he came from out of town. 'The Court: That's all you knew about him, it that it? 'The Witness: That's right. 'The Court: All right. Now then this part that was with you from, was it 9:00 o'clock until 2:00 o'clock in the morning, what did you talk about that night from 9:00 until 2:00? Tell us? 'The Witness: Oh, we talked about sports. 'The Court: What sports. 'The Witness: Baseball.'
Without going further, enough has been quoted to indicate that the court was endeavoring to test the witness' memory more throughly than had been done by the prosecuting attorney. In large part the questions went on with the same evidence purpose. The witness was asked where he got the money that he spent for drinks and said that he borrowed it from his brother. He was asked as to the amount of the loan and as to where his brother worked. We quote further: 'The Court: All right. Now how much money did Corrigan have? 'The Witness: Jeez, I have no idea. 'The Court: Let's get the brother. Is one of the boys here? 'Mr. De Cristoforo [the prosecuting attorney]: Yes, Your Honor. 'The Court: Bring him in this afternoon. Find out before this man leaves the Courthouse. We want that man brought in. 'All right. Now you have got fifteen dollars from your brother. Did you spend all of that that night?'
We cannot agree to appellant's criticism of this detailed examination by the court of the most important alibi witness presented during the trial. It is true that the district attorney had cross examined the witness; that the court took over before that cross examination had been completed, and that counsel for the People then resumed. Nevertheless, considerable latitude must be allowed the trial judge as to the court's questioning of a witness. The law on the subject is well stated in People v. Golsh, 63 Cal.App. 609, 614-615, 219 P. 456, 458, from which we quote: '* * * The duty of a trial judge, particularly in criminal cases, is more than that of an umpire; and though his power to examine the witnesses should be exercised with discretion and in such a way as not to prejudice the rights of the prosecution or the accused, still he is not compelled to sit quietly by and see one wrongfully acquitted or unjustly punished, when a few questions asked from the bench might elicit the truth. It is his primary duty to see that justice is done both to the accused and to the people. He is, moreover, in a better position than the reviewing court to know when the circumstances warrant or require the interrogation of witnesses from the bench.'
But, as said by Judge Learned Hand, speaking for the court in United States v. Marzano, 2 Cir., 149 F.2d 923, 926: '* * * Despite every allowance he [the judge] must not take on the role of a partisan; he must not enter the lists; he must not by his ardor induce the jury to join in a hue and cry against the accused. Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge.'
The next assignment of misconduct relates to the following incident. The witness Rheba Boyd, who had testified as an alibi witness for Corrigan, was asked by the prosecuting attorney why, when she had read a newspaper article concerning the arrest of Corrigan, it had not occurred to her that she should go and tell the police what she knew about his whereabouts on that night. The following occurred: 'Q. Well then, why didn't you tell the police about it? A. Well, why should I? 'Q. Well--A. A lot of people had seen him there that night, and should they all come up to the Police Department and tell them? 'Q. You knew that Mr. Corrigan had been in the Sapphire Club on that evening; is that right? A. Yes. 'Q. All right. And you knew that the information that you had would tend to clear Mr. Corrigan of these charges at that time, didn't you? A. Yes, but I didn't think of it that way. I just knew he couldn't have done it because he was---- 'Q. You knew he could't have done it but you didn't do anything about it; is that right? A. That's right. 'Q. But you are here today to tell the jury that he couldn't have done; is that correct? A. I was subpoenaed. 'Q. You are here in response to a subpoena, aren't you? A. Yes. 'Q. Now there is no doubt that you consider yourself to be Mr. Corrigan's friend? A. Yes. 'Q. You would like to held him out if you could? A. Yes. 'Q. Is that right?'
At this point, the court interrupted: 'The Court: Let me ask you this. You became quite concerned there when you were asked why you didn't go to the authorities and tell them. Why didn't you go to the authorities and tell them that you knew where Corrigan was that night? I don't want anything that a lot of other people saw him. They haven't come up and testified to it, but you have. Tell us why you didn't go. If you knew this man was innocent, why did you wait until today to tell this Court where he was charged or to tell the District Attorney or the Chief of Police? Why did you wait until today? A. Well, actually this Jack Travis, this bartender I was going with, he didn't want me to get involved anyway or anything. 'The Court: You mean that the bartender was the one? Who is Jack Travis? A. The fellow I was going with. 'The Court: Where is he? Does he know anything about this? 'Witness: No. 'The Court: Well, all right. Now tell me, why, if you knew that this man was innocent, if you knew he was innocent, why did you wait until today? Give me your answer? You say it was your friend? 'Witness: Well I though if he needed me he would certainly get in touch with me. 'The Court: Did anybody ever get in touch with you? 'Witness: Mr. Cayocca is the only one. 'The Court: All right, then what happened? Why didn't you go after you talked to Mr. Cayocca? 'Witness: He didn't suggest it. 'The Court: Did he suggest that you don't go. 'Witness: No, he did not. 'The Court: Well, then what stopped you from going? 'Witness: Actually, I don't--I don't know why I didn't go. Just never occurred to me. 'The Court: You are here today. Aren't you? Witness: Yes. 'The Court: And you are here under a subpoena; isn't that right? 'Witness: Yes. 'The Court: When did you get that subpoena? 'Witness: About a week and a half ago. 'The Court: All right. At that time you knew that you were going to be brought into Court, didn't you? 'Witness: Yes. 'The Court: Why didn't you then go to the District Attorney and tell him that you knew this man was innocent? 'Witness: Well, I don't know why, I just figured that I would have to be here today and that's all there was to it; I mean I just didn't think any more about it. 'The Court: You never though any more about it? 'Witness: No. 'The Court: Is that it? 'Witness: Yes. 'The Court: Is that what you want to tell me? 'Witness: Yes. 'The Court: All right. Now then, who was this you said told you not to become involved in it? 'Witness: This Jack Travis I was going with him, and he was just a little jealous of Frank, that's all. 'The Court: All right. And for that reason Jack Travis told you not to go and tell about it; is that it? 'Witness: Well, he didn't say not to, but he said if you are not careful, he said, you may get a subpoena; that's all. 'The Court: You told me he was jealous of Frank? 'Witness: He was. 'The Court: And is that the reason you mean to tell me that because he was jealous of Frank, that you would let a man be convicted of a crime of robbery because this bartender told you not to go to the police? 'Witness: He didn't tell me not to go. 'The Court: Well, why didn't you go? 'Witness: Judge, I don't know why I didn't go. 'The Court: All right. All right.'
We know of no general duty of a citizen upon learing that someone has been accused of crime and is about to be tried under that accusation to go to the district attorney and volunteer information as to that person's innocence. This witness had done what the ordinary citizen would have thought was adequate in giving the information she had to counsel for the defendant and she was not obliged either in law or in morals to also go to the district citizen upon learning that someone has It may have been proper enough for the prosecuting attorney to cross question her as to why she had not given the information to him as well as to counsel for the defense, but it was not proper for the trial judge, this having been done, to take over the cross examination and tell the jury in effect that the witness was under the legal duty to give the information to the district attorney and to the court in which the charge lay, as well as to the defense counsel, and, having failed to do that, was therefore suspect in the matter of her credibility, was such a person as 'would let a man be convicted of a crime of robbery.' Though not done expressly, this was the expression of an opinion as to credibility made during that part of the trial where such expressions are not within the proper function of a trial judge. This was error.
The next assignment of misconduct has to do with the recall to the stand for further cross examination of the witness Bakotich. He stated that he wanted to change his testimony theretofore given to the effect that he was positive of the date and of the hours he had been with appellant. He said that he now was not sure that he had the right date. The following occurred: '[By the prosecuting attorney]: Q. Is it correct, Mr. Bakotich, that you are not sure that you were with Mr. Corrigan on the specific date of the 30th of April as you have previously testified? A. It's possible. 'Q. All right. But you did testify originally positively that you were sure; is that right? A. That's right. 'Q. All right sir. Now do you now realize that if you lie under oath you are committing perjury? A. Yes sir. 'Q. All right. You understand that now; is that correct? A. Yes. 'Q. All right. Now why was it then that at the time you were testifying earlier this afternoon you said that you were positive that you were with Mr. Corrigan on the 30th? A. Well, I figured--I said I was, but then again I thought I might--possibly I was with him at the time, I thought, because quite a few times like I said I have been out with Frank five or six times, and it might have been a chance that I might have been with him on that night. 'Q. But you are not sure? A. No sir. 'Q. All right. Why was it that you told the jury originally that you were sure? A. Excuse me? 'Q. Well, let me ask you this. Weren't you just trying to help Frank out when you first told your story to the jury? A. Yes, the first one, yes. 'Q. That is correct, isn't it? You were trying to help--A. Yes sir. 'Q. ----out Mr. Corrigan, and the truth of the matter is that you could not know and you are sure that you were with Mr. Corrigan on the 30th; it could just as easily have been another date; is that correct? A. It's possible. 'Q. Well, possible or is it correct? A. Yes sir, it's possible, yah; yes sir. 'Q. All right sir. I have no further questions.'
Counsel for defendant then took the witness on redirect and established that after he had left the courtroom under reservation by the People of the right to further cross examine and under the order of the court to wait in the corridor he had been in a room talking to five or six detectives. On recross counsel for the People asked him the following questions: 'Q. Did anyone use any force on you? A. No sir. 'The Court: He doesn't say that. They didn't--you were taken in there in regard to the fact that you brother was supposed to come down here, was that it? 'Witness: Well---- 'The Court: They took you in there? 'Witness: Yes. 'The Court: And you saw the District Attorney, did you? 'Witness: Well, I don't know who he was. 'The Court: Do you know the District Attorney? 'Witness: No, sir, I don't. 'The Court: Well, let's see if you know this man here, Mr. J. Francis O' Shea, the District Attorney of this County? 'Witness: No, he wasn't in there. 'The Court: All right. He wasn't there? 'Witness: No, I don't think so. 'The Court: Well, this man here was there, was he? 'Witness: He was in there, yes. 'The Court: And did anybody at that time tell you you had to change your story or anything? 'Witness: No, they were talking to me in there. They had questioned me about this here that occurred with Frank on this here testimony of mine. 'The Court: And then you told them that; is that right? 'Witness: Yes, I was talking to them. 'The Court: All right, they didn't--did Mr. De Cristoforo ask you if they made any threat, did they make any threat? 'Witness: Well, they were talking about perjury and all that stuff. 'The Court: Well, they told you--did somebody tell you that if you told a lie on the witness stand it would be perjury? 'Witness: That's right. 'The Court: Is that the first time you knew that? 'Witness: Yes, I just found out. 'The Court: And up to that time, as I understand your testimony to Mr. De Cristoforo was that up to that time you thought you could held Frank out; is that it? 'Witness: That's right. 'The Court: All right, that's all.'
Here again the charge is that of undue interference by the trial judge with the conduct of the case and we think again the charge is unjustified. The witness had under the described conditions made a material change in his testimony. He was the principal alibi witness. There had been an intimation that the change had been unlawfully compelled by officers. We think the court was well within its power in taking up the questioning and advancing it as was done.
In connection with this same occurrence and at the close of the testimony of the next alibi witness the court again ordered the witness to remain in the corridor as it had theretofore ordered Bakotich to do. The following occurred: 'Mr. Cayocca [defense counsel]: Your Honor, I would like to make an objection at this time as to the witnesses who testified here, to have them in the corridor is all right, but as to taking them into the District Attorney's Office and two or three people accuse them of perjury, and jumping all over them---- 'The Court: Well now, wait, there is no evidence before this Court of anybody accusing anybody of perjury. 'Mr. Cayocca: What I call a---- 'The Court: All right, there is no evidence before this Court that anybody accused anybody of perjury. There is testimony that this boy was told that if he didn't tell the truth it would be perjury, and then your witness changed his story. That's what you wanted to know? 'Mr. Cayocca: All right, your Honor. 'The Court: Call the next witness.'
There was no misconduct here. The defense counsel had strongly intimated that the officers were intimidating his witnesses and that the court was affording them the opportunity to do so because it was requiring them to wait and not excusing them from further attendance on the court. The intimation is not borne out by the record and the court merely stated the fact to be so and then said that Bakotich had been told that if he didn't tell the truth it would be perjury, whereupon he changed his story. There was no mistatement of the record by the court and the court was acting properly in setting the matter straight.
The next assignment of misconduct has to do with examination by the court of the fourth alibi witness. The witness had testified that Corrigan left the bar which he tended at 1:15 in the morning, saying as he went out, 'I will see you later'; that he came back into the bar at 25 minutes to 2 and remained there until 2 o'clock; that no one left with him when he first left at 1:15; that there were about 25 customers in the place while Corrigan was there. People's counsel then asked questions, testing the accuracy of the witness' observation by inquiring as to what he knew about the time others came and went. At this point the court interposed the following: 'The Court: Let me ask you this, whenever anybody goes out, says, 'I will see you later,' do you always look at the time to see what time they leave? 'Witness: Well, not exactly, but thirty-four years as a bartender is a little experience, your Honor. 'The Court: Well now, let me get that answer. Read that answer to me. (Reporter read the pending answer.) 'The Court: All now, let me get do you mean by that? 'Witness: Well, its--you just seem to sense it in a way. 'The Court: Sense what? 'Witness: As a person comes and has a drink, at times you can sense it, he can have one drink, you can almost sense if he has two, the type of a person that's in front of you. 'The Court: Yes. Now then you are testifying in some regard here from you observation as a man behind the bar for thirty-four year; is that right? 'Witness: Yes. 'The Court: All right. Now let me ask you this. How many other people left that night that you could tell us left at 1:00 o'clock, that you looked at the clock when they left? 'Witness: I didn't look at the clock but I could tell you a few. 'The Court: All right. But you did look at the clock when Corrigan left; is that it? 'Witness: No, I didn't look at the clock. 'The Court: Didn't you tell us you looked at the clock? 'Witness: But at 1:00 o'clock I did look at the clock and I spaced the time as fifteen minutes. 'The Court: I see. As the time that he left? 'Witness: Yes, I would say that at the time he left I spaced it at fifteen minutes. 'The Court: How did you happen to do that? Why did you do that with him any different than anyone else? 'Witness: Well, I don't do it any different with anyone else, your Honor, it's just that I know the time some come in and some go out is all. 'The Court: Now isn't it a fact, let me ask you this and let's you and I be on the square with each other. 'Witness: Yes. 'The Court: Do you definitely know what time Corrigan left there that night? Don't forget I want you to tell me the truth. 'Witness: Well, I am telling you the truth to the best of my knowledge. 'The Court: All right, and you say at 1:15. 'Witness: Yes, I would say.'
We cannot approve the latter part of this questioning. The witness had just stated that Corrigan left at a certain time. The court then proposed to ask again if he really knew when Corrigan left and intimated that the witness had not told the truth, or as the court put it, 'Let's you and I be square with each other'. The question was then repeated in this way: 'Do you definitely know what time Corrigan left that night' Don't forget, I want you to tell me the truth.' We think the jury could not fail to get the strong impression that the court disbelieved the witness and thought the witness had not told the truth and so had not been 'square' with the court. We believe that the questions asked and the comments made cannot receive any other reasonable construction. We think it undoutedly true that the court did not believe the witness, but the error lay in expressing that distruct at that point in the case.
During the course of the trial, Ash was brought into the courtroom in the custody of deputy sheriffs for the purpose of identification. Thereafter, when the defendant was being cross examined, the following occurred: 'Q. The fact that he pleaded guilty was of course, good news to you, wasn't it? A. Not necessarily, sir. Why should it be good news to me? 'Q. So that he wouldn't testify. 'Mr. Cayocca: Why wouldn't he testify? 'Witness: The man is in the County Jail. 'Mr. Cayocca: He is over in the County Jail. They can call him any time. 'The Court: Wait a minute, one at a time. Have you got some objection to make? 'Mr. Cayocca: I mean making a statement he pleaded guilty. 'The Court: Is there any objection? 'Mr. Cayocca: This is an objection. 'The Court: What is your objection? 'Mr. Cayocca: Objection to the question, your Honor. 'The Court: What is the ground? 'Mr. Cayocca: The ground is that it is an improper question the way it is phrased. 'The Court: Read the question. (The reporter read from lines 18 to 22, page 421.) 'The Court: He said why and that is the answer.'
Upon redirect examination, the record discloses the following: 'By Kenneth B. Cayocca, Esq., of counsel on behalf of defendant: 'Q. Now you mentioned Mr. Ash. As far as Ash testifying in this case, do you have any fear of Ash coming in here and testifying? A. Not at all, sir. 'Q. You feel if he came in here and told the truth it would have any effect upon you charge? A. If he could come in here and tell the truth, yes, sir, it wouldn't hurt me a bit.'
On recross examination, the record discloses the following: 'By Joseph De Cristoforo, Esq., Deputy District Attorney in and for the County of Sacramento, State of California: 'Q. You said, Mr. Corrigan, that you have no fear of Mr. Ash testifying; is that right? A. Well, I have no fear of what his testimony would be. 'Q. That's right, you are not afraid of that, are you? A. No, sir, not at all. 'Q. And isn't it a fact, Mr. Corrigan, that the reason you are not afraid is that you know that Mr. Ash will get up there and say that you were not the man with him? A. Why if he tells the truth, he will, sir. 'Q. That wasn't my question. 'Mr. Cayocca: That's just the answer to your question. 'The Court: Ask the next question. 'Mr. De Cristoforo: No further questions. 'The Court: It's already been asked and answered. 'Mr. De Cristoforo: I have no further questions. 'Mr. Cayocca: May I have the question read and answered again for my own benefit? I didn't get clear on it. 'The Court: He asked him--don't you remember it? 'Mr. Cayocca: No, I don't. 'The Court: All right, I will repeat it to you. He asked him, 'Isn't it a fact that you know that if Ash is called here as a witness he will get on the witness stand and testify that you weren't with him?' That's the answer. 'Mr. Cayocca: That's what I wanted. All right, thank you, Mr. Corrigan. 'The Court: Do you want him called as a witness? 'The Witness: That's up to my attorney, sir. 'The Court: Well it's up to you, too, I am asking you now, do you want him? I will order him here. 'The Witness: I don't care, sir, either way. 'The Court: If you want him, he is available. I will bring him here from prison if you want. 'Mr. Cayocca: Well, your Honor---- 'The Court: If you want him, he is available for you. 'Mr. Cayocca: Your Honor, from what has gone on before with some of these other fellows that testified, I have already advised Mr. Corrigan that I would not call Ash. 'The Court: I don't understand what you mean by that. If you want him, I will order him here so he is available for you.'
The matter of calling Mr. Ash, who should do so and why, was injected into the case by the prosecution. It could be said that the defense had rather the better of the exchange. But appellant criticises the intervention of the court, and we cannot approve it. It was not to elicit evidence from the witness, nor to clear up any uncertainty in testimony. Implicit in the gratuitous offer of the court to cause Ash to be brought in was a challenge to the defense to call Ash to the stand. However, on the whole record of this incident we think no prejudice was suffered.
Although with regard to the incidents noted we cannot approve what was done and think the court fell into error, it remains to apply the test of the Constitution as to whether the errors merit reversal of the judgment. People v. Ottey, supra, 5 Cal.2d at page 726, 56 P.2d at page 199. We do not view the case as one of those so close as to merit reversal. The case against appellant was strong and this is particularly true with regard to the testimony as to his extrajudicial statements, and as to the existence of his fingerprints upon the gun which he himself by extrajudicial statements identified as that used in the robbery. We do not think it probable that a different result would have been arrived at if the trial court had not commented as it did and indicated its disbelief of the defense witnesses when it did. No miscarriage of justice in our opinion occurred and reversal of the judgment and order appealed from is not warranted.
Appellant further contends that the court erred in failing to instruct the jury upon the defense of alibi. This contention cannot be sustained. No instruction was requested. While it is clearly established that the court is required without request to instruct upon the general principles of law involved in a criminal case, it is equally well established as to the defense of alibi, that in the absence of any request for an instruction thereon, it is not the duty of the trial court to give a specific charge on the subject. People v. Whitson, 25 Cal.2d 593, 603, 154 P.2d 867, and cases cited. It can be well observed, also, that in such a case as this, where the defense of alibi is made out if the defendant was not personally present at the time the crime was ommitted, the jury do not need to be told that proof he was absent from the scene would constitute a defense. It is a matter of common knowledge that a person cannot be in two places at one time. It is unnecessary to instruct a jury upon so plain a matter.
The judgment and the order appealed from are affirmed.
SCHOTTKY, J., concurs.
PEEK, Justice (dissenting).
I am entirely in agreement with the conclusion of the majority on the question of comment, that, '* * * while a court may, when it charges the jury in a criminal case, express its opinion as to the weight of evidence and as to the credibility of any witness, it must, while the evidence is being received, refrain from such conduct.' However, I cannot agree with the final conclusion that the conceded misconduct of the trial judge was not prejudicial. As the majority notes, 'A trial judge is rigorously prohibited from actions or words having the effect of conveying to the jury his personal opinion as to the truth or falsity of any evidence. This rule should be strictly adhered to.' People v. O'Donnell, 11 Cal.2d 666, 81 P.2d 939, 942. But is this rule being strictly adhered to in the present case? I am not convicted that it is.
From my reading of the transcript I cannot escape the conclusion that from the outset of the trial, by the persistent, aggressive and lengthy cross examination of the witnesses, the context of the questions asked, the innuendoes contained therein, as well as the inferences to be drawn therefrom, and what amounted to voluntary comments contained in such questions, the trial judge definitely stepped out of his character as a judge and took over the role of the prosecutor. And, by such actions and words, he very forcefully conveyed to the jury his pesonal opinion as to the truth or falsity of the evidence and the credibility of the witnesses. Although the majority opinion has quoted much of the extensive and repetitious examination of the witnesses by the court, it seems to me that only by a reading of the entire transcript can the true effect on the jury of such questioning be evaluated. However, I hesitate to unduly burden the opinion with further quotations. Suffice it to say that the interrogation by the court, in addition to the portions quoted in the majority opinion, is replete with such comments and questions as: '* * * You ought to know. You say you were there * * *. You don't know. You don't know, is that it? Do you or don't you know? What joint were you in * * * you say. * * * You guess * * *. Now you are telling us. Is that right? And you don't--didn't even know his name * * *? Might have been Freddy but you don't know whether it was Freddy or not, is that right? You just guess it was during April; is that right? You are not sure are you? Are you sure it was in April or you just say it must have been, you guess? * * * All right, now let me ask you this. * * * You don't remember that very well? You don't know the date. Was it Saturday night, Sunday night, or do you know? Have you any idea? * * * Who said? They said? Who are they?'
The majority opinion, while holding that such interrogation and comment by the trial court was error, concludes that it was not prejudicial error, because as it is there stated the case against the defendant was strong, first by reason of his extrajudicial statements, and second by reason of his fingerprints which were found on the gun which he, by extrajudicial statements, identified as that used in the robbery; and therefore this case comes within the saving provisions of Article VI, section 4 1/2, of the Constitution.
I cannot agree that the case was strong. The evidence concerning the identification of the two persons who participated in the robbery was entirely circumstantial. The testimony of the bartender and the four bar patrons, some of whom had been at the bar for quite some time, was in complete confusion. Their only agreement was as to what clothing was worn by the two men; that is, the nylon stockings worn as masks, the overcoat, hat and gloves, and the similarity of the gun used with the one introduced at the trial. The defendant herein was never directly identified. His only connection with the robbery was established by reason of the fingerprints being found on the gun and certain conflicting statements made by two of the State's witnesses concerning comments said to have been made by defendant following two telephone calls to Ash's landlady. The landlady testified to one version and one of the paroled ex-convicts testified to another, and one which was different from his testimony at the preliminary hearing. Durand, the other ex-convict parolee who was called by the prosecution gave still another version. Again there was conflict as to whether it was Dillon or Corrigan who made statements such as: that the 'heat was on' when he was informed that Ash was in jail; that he hoped that Ash had enough sense to do something with the box the police were said to have found; that there were stockings, gloves and other stuff in the box and fingerprints all over it. Corrigan denied that it was he who made such statements. But even assuming that he did, I do not consider such comment can be interpreted either as an admission on his part of participation in the robbery or as an identification of the gun. No incriminating evidence was found in the possession of Corrigan. The box was found in the attic of Ash's apartment. The fingerprints found on the gun were not so placed as they would have been had the gun been held in a normal position. It was Corrigan's testimony that his fingerprints were left on the gun when he was asked to examine it at the police station. All of the witnesses testified that the robber who held the gun wore gloves at the time of the robbery. Thus the fingerprints must have been placed on the gun either before or after the robbery. The most that was said concerning the gun, by any of the witnesses, was merely that it was similar to the gun used at the time of the robbery.
It is true, as the majoity notes, a trial is not a game in which the judge can only act as an umpire, and 'sit quietly by and see one wrongfully acquitted or unjustly punished'. People v. Golsh, 63 Cal.App. 609, 614-615, 219 P. 456, 458. But it is equally true that he must not become a partisan advocate. Therefore when, during the examination of the witnesses, a court by words or actions departs from the role of an impartial judge and conveyes to the jury 'his personal opinion as to the truth or falsity of any evidence', People v. O'Donnell, 11 Cal.2d 666, 671, 81 P.2d 939, 942, and it could well be added, of the credibility of any witness, he has by so doing placed himself without the bounds of Article VI, section 19.
No one will deny that jurors are most sensitive to and rely with great confidence on the fairness of judges and the correctness of their views expressed during the course of a trial. 'For this reason, and too strong emphasis cannot be laid on the admonition, a judge should be careful not to throw the weight of his judicial position into a case, either for or against a defendant.' People v. Mahoney, 201 Cal. 618, 627, 258 P. 607, 610; People v. O'Donnell, 11 Cal.2d 666, 81 P.2d 939.
Conviction or acquittal may equally be the result of a miscarriage of justice. In either event a fundamental right of the people or of the defendant has been disregarded regarded or denied. It is an essential part of justice that the question of guilt or innocence shall be determined by an orderly legal procedure, in which the substantial rights belonging both to the people and the defendant shall be respected. People v. Long, 63 Cal.App.2d 679, 147 P.2d 659.
The situation as presented by the record before this court, when viewed in light of the rules noted by the majority as well as this dissent, convinces me that to approve the conceded error in this case is to deny a fair, impartial trial to the defendant and to extend the saving grace of section 4 1/2 just a bit too far. --------------- * Opinion vacated 310 P.2d 953.