Opinion
Page __
__ Cal.App.2d __ 336 P.2d 1000 PEOPLE of the State of California, Plaintiff and Respondent, v. Frank J. MATULA, Jr., Defendant and Appellant. Cr. 6135. California Court of Appeals, Second District, First Division March 19, 1959Rehearing Denied April 9, 1959.
Hearing Granted May 13, 1959.
[336 P.2d 1004] Cooper & Nelsen, Grant B. Cooper, Phyllis N. Cooper, Herman F. Selvin, Los Angeles, for appellnat.
Stanley Mosk, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., William B. McKesson, Dist. Atty., Fred Henderson, William E. McGinley, Deputy Dist. Attys., Los Angeles, for respondent.
LILLIE, Justice.
Defendnat was charged by way of indictment with perjury in violation of Section 118, Penal Code, in that he swore falsely on a material matter in the course of his testimony as a witness before an Assembly Interim Committee. Upon his plea of not guilty, he unsuccessfully sought a writ of prohibition from this court (Matula v. Superior Court, 146 Cal.App.2d 93, 303 P.2d 871). After a somewhat lengthy trial, he was convicted by a jury and appeals from the judgment of conviction and order denying his motion for a new trial.
From the testimony of the prosecution witnesses, we briefly summarize Union and association activities in the rubbish collection business pertinent to the cause before us: Defendant was secretary-treasurer of Local 396, Teamster's Union, which includes drivers and swampers on trucks owned and operated by rubbish collectors, whose business consists of a regular pickup and disposal service for customers. Although [336 P.2d 1005] many are Union men, collectors are members of various associations, separate and distinct from the Union, rules and by-laws of which regulate business activities and provide for a method of adjusting differences arising out of taking customers away from each other, which include assessment of special fines. Local 396 has contracts with the associations for wages, hours, anc conditions of work of drivers and swampers; and agreements with various dump operators whereby only Union members in good standing are permitted to dump at Union dumps. On occasion, the associations complained to defendant and the Union that various Union collectors were employing non-union labor, undercutting association service fees and taking customers away from unionized association collectors; and furnished to the Union lists of members who had lost customers to non-union collectors. The Union stopped, or attempted to stop, collectors who had taken customers from Union association members from dumping at Union dumps; and enforced, or attempted to enforce, the association by-laws and rules.
The indictment, an extensive document, charged in substance:
That on October 3, 1955, an Assembly Standing Committee, authorized to study state, county and city government relative to efficiency and reduction of costs, conducted hearings to recommend legislation governing the collection and disposal of rubbish;
That defendant, duly sworn, testified falsely before the Committee to certain matters (set out in detail in question and answer form) briefly summarized as follows: that he had no interest in, and took no action concerning, a situation in which a non-union collector took a customer away from a Union man, his only interest being to try to 'put' the former in the Union, and neither he nor the Union took any 'economic measures' against him; that if both parties were Union, neither he nor the Union was interested in any such dispute as long as Union wages were paid, the number of persons involved being so great they 'couldn't even attempt to interfere'; that the Union contracts with the associations are strictly for wages, hours and conditions of employment, and the Union does not police, or attempt to police, association business, is not interested in association rules or problems, and has not attempted to enforce association rules or by-laws; and that he did not try to force Crowder, an association member, to 'give back certain accounts' by stopping him from dumping, or interfere in a dispute between Agajanian and Pick, both association members, wherein one of the parties was fined for taking a customer away from the other;
That defendant's false testimony was material to the issues pending before the Committee in the following particulars: that the Committee heard testimony to the effect (the testimony of other witnesses before the Committee was pleaded in detail but for convenience is here briefly summarized) that many rubbish truck drivers and checkers at rubbish dumps in Los Angeles county are members of Local 396, of which defendant was secretary-treasurer; that many rubbish collectors in Los Angeles county are members of rubbish collectors' associations, with rules, regulations, by-laws and customs which, among other things, set out the manner of dealing with a situation in which one collector takes a customer away from another, and provide under certain circumstances not only for a return of the customer but require him to give one or more of his own customers to the aggrieved member for the one originally taken, and payment of a certain sum as compensation; that defendant enforced, and attempted to enforce, the association rules, regulations and by-laws by telling and threatening a collector, who had taken a customer, that if he did not comply with them he would be run out of business, not be permitted to join the Union or use the dumps, and his customer's place of business would be picketed; and that defendant enforced and attempted to enforce the association rules by driving collectors, who [336 P.2d 1006] had taken customers from others, out of business by preventing them from joining the Union and using the dumps, and picketing customers taken;
That the false testimony of defendant was material to the issues pending before the Committee in that it tended to show that he had not enforced and attempted to enforce the rules, regulations and by-laws of rubbish collectors' associations.
At the trial, the following pertinent evidence was received: 1--House resolution No. 177, constituting the Committee and authorizing it to conduct the hearing; 2--the 'opening statement' of the Committee Chairman declaring the purpose of the hearing--to determine if in the public interest there existed a situation in the collection of rubbish requiring legislation; 3--defendant's alleged false testimony before the Committee, read into the record in question and answer form by the prosecutor from the reporter's transcript of the Committee proceedings, marked for identification but never received in evidence; and 4--the testimony of numerous prosecution witnesses on the issue of falsity, which constitutes the great bulk of the lengthy record before us.
With the exception of the Chairman's 'opening statement' and the defendant's testimony before the Committee, there is before this court no evidence of any proceeding had before the Committee--the testimony of no other witness appearing before it having been read into the record, offered, or received in evidence; no request having been made at the trial that judicial notice be taken of the Committee proceedings; and no declaration of judicial notice having been made by the court below to the jury (Section 2102, Code of Civil Procedure) or to anyone else. The trial judge simply notified the parties he intended to instruct the jury as a matter of law that defendant's testimony was material to the issues pending before the Committee; and did so, over objection of defendant.
On the motion for a new trial, after defendant urged that there was not evidence of the testimony of other witnesses before the Committee, he prosecutor produced for identification the reporter's transcript of the Committee proceedings, whereupon the trial judge denied the motion on the ground he 'has' judicial notice of the proceedings before the Committee.
The element of falsity not here in issue, since 'it may be assumed' there is sufficient evidence to support a finding that some part of defendant's testimony before the Committee was false (App.O.B., page 6), it serves no purpose to recount the extensive testimony given by the numerous prosecution witnesses; nor are we concerned with certain limited portions of the testimony of the prosecution's witnesses before the Committee used by defendant at the trial for the sole purpose of impeachment, since respondent does not rely upon them to constitute any evidence on the issue of materiality (Resp.B., page 72).
Appellant's sole contention is that there was no evidence received in the court below establishing the materiality of his false testimony to any issue pending before the Committee; and in the absence thereof, the trial judge committed prejudicial error in his instruction to the jury that defendant's testimony 'was material.'
As in any criminal case, a plea of not guilty interposed to a perjury charge traverses every material allegation of the accusatory pleading (Section 1019, Penal Code; People v. Wong Sang Lung, 3 Cal.App. 221, 84 P. 843; People v. Williams, 27 Cal.2d 220, 163 P.2d 692; Luse v. United States, 9 Cir. 49 F.2d 241), placing the burden of proving the same, to establish the guilt of the defendant, upon the prosecution. People v. Ah Sing, 95 Cal. 657, 659, 30 P. 797; People v. Bradbury, 155 Cal. 808, 814, 103 P. 215; In re Blache, 40 Cal.App.2d 687, 693, 105 P.2d 635. Materiality of false testimony to some issue before the tribunal in which it was given is an essential element of the crime of perjury (Section 118 Penal Code; People v. Bradbury, 155 Cal. 808, 103 P. 215; People v. Jones, 123 Cal. 299, 55 P. 992), which [336 P.2d 1007] must be proved by competent evidence and beyond a reasonable doubt.
Respondent contends that since materiality of false testimony is purely a question of law, and this court's opinion in Matula v. Superior Court, 16 Cal.App.2d 93, 303 P.2d 871, established as a matter of law that defendant's testimony before the Committee was material to the issues pending before it, constituting an adjudication binding on the court below, it was unnecessary to offer evidence of materiality. That Matula v. Superior Court, 146 Cal.App.2d 93, 303 P.2d 871 (hereinafter referred to as the writ proceeding) does not constitute the law of the case is obvious from the lack of identity of legal issues and the absence of substantially identical facts appearing under the same circumstances, in this and the instant case (People v. Harvey, 156 Cal.App.2d 516, 319 P.2d 689; Rutledge v. Rutledge, 134 Cal.App.2d 689, 286 P.2d 429).
The issue of materiality was in no way involved in the writ proceeding, not having been raised by the parties or dealt with by the court in deciding the cause. Any passing reference to materiality in the opinion lends no support to the claim that it was intended to create or decide any 'issue' thereon, or that it constituted part of the law of the case. Stockton Theatres, Inc. v. Palermo, 47 Cal.2d 469, 304 P.2d 7; Tomaier v. Tomaier, 23 Cal.2d 754, 146 P.2d 905; De Mirjian v. Ideal Heating Corp., 129 Cal.App.2d 758, 278 P.2d 114. The only issue was whether the legislative committee conducted a valid investigation in a matter over which it had jurisdiction. It was on this sole question the entire opinion and holding of this court was predicated. The state of facts existing in the writ proceeding clearly bears this out--defendant at the outset, and for the purpose of submitting the issue of jurisdiction, having conceded his testimony to be pertinent to issues raised by the Committee (146 Cal.App.2d 97, 303 P.2d 873); and this court, as it had a right to do, having assumed all allegations in the indictment to be true, including those relating to materiality and the testimony of other witnesses before the Committee. However, in the instant case, an entirely different situation exists. For a factual similarity sufficient to here allow the application of the doctrine of the law of the case, the record must show that the same facts upon which the adjudication in Matula v. Superior Court, 146 Cal.App.2d 93, 303 P.2d 871, was based, were proved in the trial below (Archer v. City of Los Angeles, 19 Cal.2d 19, 29, 119 P.2d 1; Allen v. California Mutual Bldg. & Loan Ass'n, 22 Cal.2d 474, 482, 139 P.2d 321). The allegations of the indictment which established the validity of the investigation in the writ proceeding do not have their counterpart in the present record by way of evidence.
Having concluded that Matula v. Superior Court, 146 Cal.App.2d 93, 303 P.2d 871, does not constitute an adjudication on the issue of materiality, we find in the record before us no evidence to support the trial court's determination that defendant's testimony was material. The record is silent concerning any testimony of other witnesses before the Committee, its tenor and content, or any conflict with that given by defendant to the Committee. If the allegations of materiality in the indictment require proof on these factual matters, and we hold that they do, then they perforce constituted questions of fact which should have been submitted to the jury.
Respondent argues that defendant's testimony before the Committee was directly material because it was generally alleged to be so in the indictment, and required no factual showing because on its face it was apparent that defendant's false testimony related directly to the matter under investigation by the Committee; and, in any event, circumstantial materiality was proved in that the trial court took judicial notice of the conflict between defendant's false testimony and that of other witnesses before the Committee.
The specific allegations in the indictment, by which respondent is bound, [336 P.2d 1008] render untenable any reliance on the theory of direct materiality, for none was therein alleged. False testimony may be either directly or circumstantially material (People v. Macken, 32 Cal.App.2d 31, 89 P.2d 173; People v. Chand, 75 Cal.App. 459, 243 P. 38; People v. Schweichler, 16 Cal.App. 738, 117 P. 939), and materiality may be pleaded either by setting out facts from which materiality appears as a matter of law, or by direct averment, without setting forth the probative or circumstantial facts (People v. Low Ying, 20 Cal.App.2d 39, 41, 66 P.2d 211; People v. Ah Bean, 77 Cal. 12, 18 P. 815; People v. Dunstan, 59 Cal.App.2d 574, 211 P. 813).
Far from containing the general direct averment claimed by respondent, the indictment before us was specific in pointing up those factual elements which, as a matter of law, constituted defendant's testimony material to the issues pending before the Committee, spelling out in detail the circumstantial and probative facts upon which materiality depended. Immediately following the recitation of defendant's false testimony the indictment alleged: 'That said false testimony sworn to and given in evidence by said defendant, Frank J. Matula, Jr., as aforesaid, was material to the issues and hearing then and there pending before said committee in the following particulars: That said committee had heard testimony to the effect that many of the men who drive the trucks which collect rubbish * * *' setting forth in detail the substance of the testimony given by other witnesses before the Committee, which it is claimed conflicted with that of defendnat. (Emphasis added.) Following this, the indictment alleged further: 'That the above quoted false testimony of the defendant, Frank J. Matula, Jr., was then and there material to the issues pending at the hearing then and there being conducted by said committee, in that it tended to show that the defendant, Frank J. Matula, Jr., said Union and its officers, agents, and employees had not enforced and attempted to enforce the rules, regulations, and by-laws of said rubbish collectors' associations mentioned above.' (Emphasis added.)
It is clear that we are not here concerned with whether defendant's testimony on its face related directly to the matter under the Committee's investigation because the detailed specific averments in the indictment compel the conclusion, first, that the pleading contained no general direct allegation of materiality, and second, that the determination of the issue of materiality depended upon the effect of the testimony of the other witnesses appearing before the Committee. Theretofore, the question is whether circumstantial materiality as alleged in the pleading has been proved by competent evidence and beyond a reasonable doubt. Respondent argues that since materiality is a question of law for the trial court, proof that defendant's testimony conflicted with that of other witnesses before the Committee was unnecessary; and that if evidence was necessary, it was supplied by the judicial notice the trial judge took of the conflict.
Apart from the Chairman's 'opening statement' and the testimony of defendant before the Committee, the record before us reveals no evidence of any proceedings had before the Committee or any testimony taken by it--in fact, it is expressly conceded 'that no evidence of the testimony of other witnesses before the Committee was introduced at the trial' (Resp. B., p. 72). It plainly appears therefore, that there was nothing before him from which the trial judge could have determined, as a matter of law, that defendant's testimony before the Committee was material to any issue pending before it, unless recourse may be had to judicial notice. From the state of the record, we are persuaded that this lack of evidence on the issue of materiality was fatal to defendant's conviction for two reasons--it deprived him of his right to have the facts relative to an essential element of the crime with which he was charged submitted to the jury; and it denied him the right to be apprised of evidence used against him and the opportunity to meet it.
[336 P.2d 1009] Conceding that materiality is a question for the court, we nevertheless believe that the trial judge, in making his determination thereof, is not at liberty to resort to something undisclosed outside of the record or dispense with the necessity for competent evidence to support his finding; but that he must submit to the jury the facts upon which he predicates his finding. In the case of People v. Lem You, 97 Cal. 224, 32 P. 11, the court below, over objection, permitted the court reporter to read the testimony of other witnesses in the prior proceeding from the official transcript. Pointing out that although the question of materiality is always one of law for the court, it was nevertheless the jury's function to find the facts from which the court's conclusion was to be derived, the Supreme Court stated, 97 Cal. at page 228, 32 P. at page 12: 'And on a trial for perjury it is the duty of the court to instruct the jury as to what facts would show material testimony (Citations). The proper course for the court to pursue in such a case is aptly stated on the kindred subject of malicious prosecution in the opinion of this court rendered by Mr. Justice Harrison in Ball v. Rawles, 93 Cal. 222, 228, 28 P. 937. Substituting the words 'materiality of testimony' for 'probable cause,' the following language from that opinion is a correct statement of the duty of the court on the trial of a defendant for perjury: 'It is necessary, for the court in each instance to determine whether the facts that they (the jury) may find from the evidence will or will not establish that issue. * * * The court should group in its instructions the facts which the evidence tends to prove and then instruct the jury that if they find such facts to be established, there was or was not probable cause, as the case may be, and that their verdict must be accordingly. * * *'
To the same effect is People v. Chadwick, 4 Cal.App. 63, at page 67, 87 P. 384, at page 386: 'Whether testimony given upon the trial of a cause is material to the issues then before the court is a question of law to be determined by the court; but, as is sometimes the case, especially upon a trial for perjury, the materiality of testimony will depend upon the existence of certain other facts, and if these facts are controverted their existence must be determined by the jury'; and Luse v. United States, 9 Cir., 49 F.2d 241, at page 245: 'It is unquestionably true that the materiality of the evidence adduced upon the former trial was a question to be determined by the trial judge. This was a question of law, but in a charge of perjury the question of materiality of the evidence adduced upon the former trial is necessarily a mixed question of law and fact. That is, it is not an abstract question of law, but depends upon what occurred upon the former trial. Materiality depends primarily upon the issues involved in the former trial and upon the evidence adduced in support of these issues. What the evidence was, and what the pleadings were upon that trial is a question of fact. Whether the testimony alleged to be perjured was material to such issues is a question of law. * * * But the plea of not guilty interposed by the defendant traversed the fact that such testimony was given at all, and it was for the jury to say from all the evidence whether such testimony was given upon the former trial. The charge of the court to the jury as to the materiality of the testimony alleged to have been perjured must necessarily be predicated upon the assumption that the evidence and pleadings read before the jury were those involved in the previous trial, although the jury might have concluded otherwise. For the court to determine the materiality of the false testimony it was necessary for it to assume these facts in a hypothetical instruction. In the case at bar there was no serious contention as to what occurred upon the previous trial, court and counsel both apparently assuming that the pleadings and transcript presented and read before the jury in this case were virtually conclusive on the parties, but this assumption, in the absence of a stipulation to that effect, did not establish what evidence had [336 P.2d 1010] been actually introduced upon the fraud trial. * * *'
Other authorities following the general principle that involved in the trial court's determination of materiality are factual questions for the jury are People v. Clementshaw, 59 Cal. 385; People v. Brilliant, 58 Cal. 214; People v. Curtis, 36 Cal.App.2d 306, 98 P.2d 228, and People v. Sagehorn, 140 Cal.App.2d 138, 294 P.2d 1062; nor is there anything to the contrary in the cases relied upon by respondent, People v. Macken, 32 Cal.App.2d 31, 89 P.2d 173; People v. Brophy, 49 Cal.App.2d 15, 120 P.2d 946; and People v. Bradbury, 155 Cal. 808, 103 P. 215.
No questions of fact relating to the issue of materiality were submitted to the jury in the instant case--on the contrary, the jury was briefly instructed, as proposed by the People, without further comment from the court, that 'the question of materiality * * * is always one of law for the court and not one of fact for the jury,' and the 'testimony alleged in the perjury indictment of the defendant Matula to be false was material to the issues then pending before the Assembly Interim Committee on Governmental Efficiency and Economy * * *', completely taking from the jury the determination of any fact relating to an essential element of the crime of perjury. This was the only instruction given on the issue of materiality.
Respondent having relied upon the conflict between the testimony of other witnesses before the Committee and that of defendant to prove materiality, citing People v. Low Ying, 20 Cal.App.2d 39, 66 P.2d 211 (Resp. Brief, p. 70), it follows that the trial court's conclusion of law that defendant's testimony was material must be based upon proof of the existence, content and effect of the testimony of the other witnesses before the Committee. The prosecution offered no evidence thereon for the record (People v. Sagehorn, 140 Cal.App.2d 138, 144, 294 P.2d 1062, 1073, 'It was necessary for the trial judge to have this testimony in the record in order that he could judge of the materiality of the statements in the indictment made by appellant'), or to the jury (People v. Curtis, 36 Cal.App.2d 306, 320, 98 P.2d 228, 234: 'The duty of the jury is to find the facts and to apply to them the law as expounded by the court'). There was nothing before the jury from which it could have determined that other witnesses actually testified before the Committee, that the testimony alleged in the indictment was in fact given, that it created any conflict with the testimony given by defendant, or that it had the factual or evidential effect attributed to it; and there appears in the record no basis upon which the trial court could have concluded, as a matter of law, that defendant's testimony was material. If, in fact, the testimony of other witnesses was not given before the Committee, as alleged; or if it was, it was not as substantially pleaded in the indictment, or did not establish a conflict with defendant's testimony relative to the enforcement or attempted enforcement of the association rules, then as a matter of law defendant's testimony could not, under the specific averments in the indictment, have been material. The choice of finding the existence of those facts belonged to the jury, and the defendant was deprived of the right to have the jury reject, or accept as true, those facts upon which the trial court's conclusion of law should have been predicated.
Respondent's second contention, that the failure to introduce any evidence from which the legal conclusion of materiality could have been drawn was remedied by judicial notice of the Committee's proceedings, raises quite a different point, although closely related to that already discussed, and we conclude that if judicial notice was actually taken by the court below, the manner in which it was done deprived defendant of a fair and impartial trial, defeating his right to due process of law.
Without any reference to judicial notice, the trial judge announced he intended to charge the jury that as a matter of law the defendant's testimony before the Committee [336 P.2d 1011] was material, and did so. The record does not disclose what he had in mind when he made his finding of materiality, how or in what manner he arrived at his conclusion, or the source of his information; nor does it reveal that defendant was apprised of the source or the circumstantial or probative facts under his consideration, or that defendant was given an opportunity to meet, rebut or argue them.
On the motion for new trial the deputy district attorney submitted, for identification only, five volumes of reporter's transcript of the Committee's proceedings, but at no time offered them in evidence making them a part of the record. In denying the motion, the trial judge said: '* * * the court is of the view that it has judicial notice of the proceedings before the Assembly Interim Committee, therefore, there was no error in instructing the jury. * * *' (Emphasis added.) Although we are unable to determine from this statement whether he intended to convey that he had taken judicial notice of the proceedings at the time of the trial, but failed to declare the same, or that he now 'has' judicial notice thereof, we hold in the latter case the declaration of judicial notice cannot operate retroactively (Ohio Bell Teleph. Co. v. Public Utilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093), and in the former the trial court committed error.
Respondent advances the position that the trial judge was not required to apprise the jury he was taking judicial notice since it was not concerned with the issue of materiality (which, for reasons already stated, is without merit); and that since the trial court had power to take judicial notice of proceedings before a State Legislative Committee (Section 1875, subd. 3, Code of Civil Procedure; Wilson v. Loew's Inc., 142 Cal.App.2d 183, 298 P.2d 152), there could be no question as to whether 'in fact' such testimony had been given, and evidence in that regard would have been improper.
It is not our conclusion that judicial notice of the Committee's proceedings could not have been properly taken by the trial judge, but we do hold that the manner in which it was allegedly taken was in direct violation of defendant's constitutional right to a fair trial in that--the source used and the facts adduced were neither seasonably disclosed to the accused that he might then have the opportunity to meet the evidence against him; nor made a part of the record that he might argue its legal effect to this court on appeal.
Materiality here being dependent, among other things, upon the authority of the Committee, the subject of inquiry, the evidence offered before it, and the tenor, nature and content of the other testimony relied upon, it was incumbent on the People to prove a state of facts from which the conclusion of materiality could properly have been deduced. People v. Planer, 23 Cal.App.2d 251, 72 P.2d 767. At no time did the trial judge reveal the facts from which he derived his conclusion, nor indeed is there anything in the record to show that at the trial he ever consulted a transcript of the proceedings. But the real vice to this undisclosed process in the mind of the judge is that the accused has never known, nor do we know, what facts he considered in forming his opinion; and with this failure to apprise, comes the inevitable denial of the opportunity to test, refute, or explain them at the trial and argue their legal effect on appeal.
A deprivation of a fair and impartial trial amounts to a denial of due process of law (section 1, Fourteenth Amendment, United States Constitution, and section 13, Article I California Constitution; People v. Lyons, 47 Cal.2d 311, 303 P.2d 329; People v. Duvernay, 43 Cal.App.2d 823, 111 P.2d 659; People v. Robarge, 111 Cal.App.2d 87, 244 P.2d 407), and one of the fundamental requirements in the conduct of a judicial proceeding is the right of a party to be informed of the evidence against him that he may counter, question, explain, or be heard in opposition to it. Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 999, 82 L.Ed. 1129; [336 P.2d 1012] English v. City of Long Beach, 35 Cal.2d 155, 217 P.2d 22, 18 A.L.R.2d 547.
Judicial notice, no matter how convenient or expedient in the particular case, cannot be exercised contrary to the constitutional right to due process of law (Ohio Bell Teleph. Co. v. Public Utilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093); nor can it eliminate the necessity for evidence of a given fact or the burden of proving it (Shapleigh v. Mier, 299 U.S. 468, 57 S.Ct. 261, 81 L.Ed. 355). A statutory device for getting evidence of a fact expeditiously before the court, judicial notice is used to avoid the delay and expense of the conventional method of calling witnesses (Varcoe v. Lee, 180 Cal. 338, 181 P. 223; Communist Party of United States of America v. Peek, 20 Cal.2d 536, 127 P.2d 889; Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947), and since it is a method of introducing a fact to the court and is not a substitute for that fact, it can no more dispense with the necessity of seasonably apprising the party, against whom it is to be used, of what fact is sought thereby to be proved so he may meet it and be heard in opposition thereto, than can the formal method of calling witnesses to prove a fact. Such procedure is no better than secretly taking evidence outside the presence of the aggrieved party (Carstens v. Pillsbury, 172 Cal. 572, 158 P. 218; LaPrade v. Department of Water & Power, 27 Cal.2d 47, 162 P.2d 13; National Auto Ins. Co. v. Ind. Acc. Comm., 67 Cal.App.2d 178, 153 P.2d 808), or receiving evidence ex parte where the party against whom it is used has no opportunity to know or challenge its effect (English v. City of Long Beach, 35 Cal.2d 155, 158, 217 P.2d 22, 18 A.L.R.2d 547; Olive Proration Program Committee, etc. v. Agricultural etc., Comm., 17 Cal.2d 204, 109 P.2d 918; Bandini Estate Co. v. Los Angeles County, 28 Cal.App.2d 224, 82 P.2d 185; United States v. Abilene & S. R. Co., 265 U.S. 274, 44 S.Ct. 565, 68 L.Ed. 1016), both of which practices are contrary to all principles of justice and fairness and in clear violation of the constitutional right to due process of law.
Undisclosed evidence received by way of judicial notice was discussed at length and disapproved by the United States Supreme Court in Ohio Bell Teleph. Co. v. Public Utilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093. In a rate-fixing proceeding, the Public Utilities Commission, after hearing, but before decision, took judicial notice of price trends during certain years without introducing into evidence the data upon which it was based, or putting the same in the record. In holding this to be a violation of the constitutional guarantee of a fair and open hearing and due process of law, the court said at page 300 of 301 U.S., at page 729 of 57 S.Ct.: 'An attempt was made by the Commission and again by the state court to uphold this decision without evidence as an instance of judicial notice. * * * Courts take judicial notice of matters of common knowledge * * * (But) notice, even when taken, has no other effect than to relieve one of the parties to a controversy of the burden of resorting to the usual forms of evidence. * * * 'It does not mean that the opponent is prevented from disputing the matter by evidence if he believes it disputable.' (Citations.) Such at least is the general rule, to be adhered to in the absence of exceptional conditions. * * * Even so, to press the doctrine of judicial notice to the extent attempted in this case and to do that retroactively after the case had been submitted, would be to turn the doctrine into a pretext for dispensing with a trial.
'What was done by the Commission is subject, however, to an objection even deeper. * * * There has been more than an expansion of the concept of notoriety beyond reasonable limits. From the standpoint of due process--the protection of the individual against arbitrary action--a deeper vice is this, that even now we do not know the particular or evidential facts of which the Commission took judicial notice and on which it rested its conclusion. Not only are the facts unknown; there is no way to find them out. When price lists or trade journals or even governmental reports are put in evidence upon a trial, the [336 P.2d 1013] party against whom they are offered may see the evidence or hear it and parry its effect. Even if they are copied in the findings without preliminary proof, there is at least an opportunity in connection with a judicial review of the decision to challenge the deductions made from them. The opportunity is excluded here.'
Although section 2102 Code of Civil Procedure, appears to support the view that a noticed fact, once it has been correctly ascertained, is indisputable, whether it has been correctly ascertained in the first instance is open to question. To properly ascertain a fact to be noticed, the trial judge of necessity must, in most cases, resort to some source or authority, and the party against whom the fact is to be used, if he believes it to be disputable, is entitled to challenge the source, authority, or the fact in the form in which the judge believes it to exist; and to be heard on that matter. Obviously, too, if there is any error in reading, analyzing, or in the appreciation of the material read, examined, or considered by the trial judge, the fact ascertained is likely to be incorrect. The fallacy in respondent's position that since the trial court is empowered to take judicial notice of Legislative hearings it 'could base its findings of materiality upon an analysis of that testimony even though the transcript of such hearing had not been formally introduced at the trial,' lies in the fact that there is nothing in the record to support its assumption the trial judge actually resorted to the reporter's transcript or made an analysis of the testimony. If he did use the reporter's transcript, the defendant had the right to challenge its accuracy (McClatchy v. Superior Court, 119 Cal. 413, 51 P. 696, 39 L.R.A. 691). Nor does the record disclose what kind of analysis he made, how it was made, or what it contained. Indeed, it is pure conjecture that the trial court predicated its finding of materiality upon an analysis, or anything else.
Obviously, the facts noticed by the trial court could be of no probative value unless they supported the ultimate conclusion of materiality; and of importance is the defendant's right to argue before both the trial court (Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Londoner v. City & County of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103), and the appellate court (Ohio Bell Teleph. Co. v. Public Utilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093) their legal effect or sufficiency, which would require, especially in this court, they be spread upon the record that we may be advised in the premises. For, as a part of due process is the right to have in the record of the court below the facts upon which a determination of law is based, so an appellate review may be properly and intelligently made. Referring again to Ohio Bell Teleph. Co. v. Public Utilities Comm., 301 U.S. 292, at page 303, 57 S.Ct. 724, at page 730, the court said: '* * * The Commission, withholding from the record the evidential facts that it has gathered here and there, contents itself with saying that in gathering them it went to journals and tax lists, as if a judge were to tell us, 'I looked at the statistics in the Library of Congress, and they teach me thus and so.' This will never do if hearings and appeals are to be more than empty forms * * * how was it possible for the appellate court to review the law and the facts and intelligently decide that the findings of the Commission were supported by the evidence when the evidence that it approved was unknown and unknowable? * * * 'A hearing is not judicial, at least in any adequate sense, unless the evidence can be known.' Materiality, being a question of law in a perjury charge, is subject to review on appeal (People v. Brophy, 49 Cal.App.2d 15, 120 P.2d 946). Here the appellant is precluded from arguing, and we are powerless to intelligently review the correctness of the trial court's conclusion thereon, because incorporated in the record before us are no facts upon which it predicated its finding.
Any suggestion that we now judicially notice the proceedings before the Committee is not well taken. The reporter's transcript of the proceedings before [336 P.2d 1014] the Committee, having never been received in evidence, is no part of the record before this court. Furthermore, such a position runs counter to the constitutional right of defendant to have the facts relating to an essential element of the crime passed on by a jury, to be apprised of those facts and to be heard thereon. And of equal importance, it is the trial court's conclusion that defendant has a right to have reviewed on this appeal (People v. Brophy, 49 Cal.App.2d 15, 24, 120 P.2d 946).
Mindful of the rule that a denial of a fair trial constitutes a miscarriage of justice and a resulting conviction cannot be supported under section 4 1/2, Article VI, California Constitution (People v. Lyons, 47 Cal.2d 311, 303 P.2d 329); that the deprivation of the constitutional right to a jury trial is in itself prejudicial (People v. Hall, 199 Cal. 451, 249 P. 859), and that a failure to prove an essential element of an offense charged is a matter too serious to be cured by section 4 1/2 (People v. Burns, 75 Cal.App. 84, 85, 241 P. 935), we can only conclude that defendant's conviction must be reversed.
In the lengthy record before us there is extensive testimony of numerous witnesses relating to the defendant's activities in connection with the rubbish collection business, and although it may be apparent to one studying the evidence that had no erroneous procedure been indulged in during the trial, the same verdict might well have resulted, such speculation cannot justify overlooking any error which results in a denial of defendant's right to a fair trial (People v. Robarge, 111 Cal.App.2d 87, 94, 244 P.2d 407). While a departure from established recognized legal procedure may appear in an individual case to adequately serve the ends of justice, judicial approval of such a practice could only constitute a dangerous inroad into an orderly system of justice which protects the constitutional rights of every accused. People v. Wilson, 23 Cal.App. 513, 138 P. 971.
In view of our conclusion we deem it unnecessary to discuss the issue relative to whether the questions put to the defendant by the Committee were beyond its power as relating to private activities rather than the cost and efficiency of government.
For the foregoing reasons the judgment and order denying motion for a new trial are and each is reversed and the cause remanded for a new trial.
WHITE, P. J., and FOURT, J., concur.