Opinion
Department Two
Appeal from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. W. T. Wallace, Judge.
COUNSEL:
Cross, Ford, Kelly & Abbott, and T. Carl Spelling, for Appellant.
W. F. Fitzgerald, Attorney General, and C. N. Post, Deputy Attorney General, for Respondent.
JUDGES: Henshaw, J. McFarland, J., and Temple, J., concurred.
OPINION
HENSHAW, Judge
[43 P. 199] Defendant was charged with procuring and allowing A. Gutman to be registered as a voter in the precinct register of a precinct in which he was not entitled to be registered. The prosecution was had under and by virtue of the provisions of the Purity of Elections act. (Stats. 1893, p. 24.) The offense charged comes within the purview of section 22 thereof.
Gutman, called by the prosecution, testified that defendant requested him to register from the Baldwin Hotel, so that he could vote for Mahoney. At the time of the request he resided and was registered in another precinct, and these facts were known to defendant. Witness acceded to defendant's request, and together they went to the New City Hall. The witness there told a registrar clerk in attendance that he desired to change his residence to the Baldwin Hotel. Asked by the clerk what floor his room was on, he answered the fourth, when the defendant, standing by, corrected him, and said the fifth. The clerk then asked the number of his room, and, as the witness did not know, defendant again answered for him.
Henry Burton was the registrar clerk. He identified the affidavit of registration as being in his handwriting; remembered the circumstances of defendant's presence with Gutman at the time it was made; did not remember defendant making answer to any of the questions propounded to Gutman; but would not accept the answers of anyone except the affiant under such circumstances.
It was shown that Gutman did not reside at the hotel, and that he did reside at 172 Clara street in San Francisco, and was registered in the precinct to which that number belonged.
Gutman further testified that after the election he met defendant in a saloon, and defendant urged him, Samuel Lust, and David Newman, who were present, to leave town and save him and themselves from getting into trouble. He offered the three of them twenty dollars for this purpose. Lust and Newman, after demurring to the amount, accepted the money, and witness was then given five dollars with which he was to come to Oakland, where he was to remain for a few days. The "trouble" which defendant anticipated was punishment for procuring the false registration of voters at the Baldwin Hotel. Lust and Newman were allowed to testify, over objection, that they too had falsely registered from the hotel at the instance and procurement of defendant. Defendant also informed these witnesses that warrants were issued for their arrest. The evidence was properly admitted.
1. Against the judgment it is first urged that the witness Gutman was defendant's accomplice in the alleged offense, and, that as there is no corroborative evidence in the case which, independent of Gutman's testimony, tends to connect defendant with the commission of the offense, a new trial must be granted.
This position is not tenable. There is first the fact testified to by Burton that defendant was present at the making of the false affidavit. While this fact, isolated and considered alone, is of small moment, since an innocent man might have occupied the same position, yet, when viewed in the light of later occurrences, it becomes a circumstance of serious significance. Those are the admissions of anticipated trouble by defendant because of his connection with the registration of defendant, testified to by Lust and Newman, his effort to suppress or eloign Gutman's evidence, and his payment of money for that purpose. One of the commonest forms of inculpatory evidence is testimony of just such acts by a defendant. It is always admissible and affords distinct and independent corroboration of the accomplice's statements. (People v. Hong Tong , 85 Cal. 173; People v. Clough , 73 Cal. 352; People v. Grundell , 75 Cal. 310; People v. McLean , 84 Cal. 482; People v. Dixon , 94 Cal. 258.)
Nor is the evidence open to the objection that Lust and Newman were themselves accomplices. It is true that a conviction may not be had upon the uncorroborated testimony of an accomplice. And a sufficient and independent corroboration is required, whether the principal evidence be that of one accomplice or of many. Three or thirty accomplices may not convict a man by their unsupported evidence more readily than may one; but the fact [43 P. 200] that by the evidence of Newman and Lust it appeared that each was an accomplice of defendant in a similar crime against the registration laws did not make them accomplices in the particular offense under investigation. In other words, conceding that the evidence showed that Newman had falsely registered from the Baldwin Hotel at the procurement of defendant, and that Lust had done the same, not the slightest evidence was offered to show that these acts were other than separate and distinct crimes, in no way connected with the false registration of Gutman. Neither Lust nor Newman is shown to have participated in or even to have had foreknowledge of the Gutman affair, and, under such circumstances, while each was an accomplice with defendant in the crime attending his own false registration, neither was an accomplice with defendant and Gutman in the particular offense for which the former was under trial.
2. The information charged that defendant was a deputy registrar of voters, "and as such deputy registrar of voters, as aforesaid, did willfully, feloniously, and unlawfully procure and allow one A. Gutman to be registered," etc.
Defendant offered in evidence the record in the case of Stilwell v. Evans, then still pending and partly tried in the superior court of San Francisco, to show thereby that in a civil action defendant was called as a witness, and without objection answered to questions put him that he was a deputy registrar of voters. Stilwell v. Evans, supra, was a civil action to procure the cancellation of several thousand names alleged to have been illegally and improperly placed upon the voting register. (Pol. Code, sec. 1109.)
The contention here is that defendant is charged with having committed the offense in his official capacity, viz., as deputy registrar; that in the action of Stilwell v. Evans, supra, he had been called and testified that he was in fact a deputy registrar; that by section 32 of the Purity of Elections act (Stats. 1893, p. 26) proof of these facts constitutes a bar to this prosecution. That section is as follows:
" Sec. 32. A person offending against any provision of sections 19, 20, 21, 22, 25, 26, 27, 28, 30, and 31 of this act is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or lawful investigation or judicial proceeding, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying shall not thereafter be liable to indictment or presentment by information, nor to prosecution or punishment, for the offense with reference to which his testimony was given, and may plead or prove the giving of testimony accordingly, in bar of such indictment, information, or prosecution."
This section was subjected to elaborate analysis, and a full exposition of its meaning was made, in Ex parte Cohen , 104 Cal. 524. It affords to one testifying immunity from prosecution or punishment for the offense with reference to which his testimony was given. In Stilwell v. Evans, supra, Sternberg does not appear to have been testifying concerning any offense, much less the one with which he is here charged; and the statement by him that he was a deputy registrar had no more significance than would his answer that his true name was Louis Sternberg. Moreover, the charge in the information that "as deputy registrar" defendant committed the offense is the merest surplusage. It was meaningless in averment and unnecessary in proof. The statute is not directed against official misconduct, nor limited in its application to public officers. "Every person who willfully causes, procures, or allows" false registration is punishable under it. Every act embraced within its terms may be done by a private citizen as well as by a public officer, and the official character of the offender under this law is of no possible importance.
3. In instructing the jury the judge said: "I instruct you, gentlemen, that Gutman, the man whom it is charged here Sternberg procured to falsely register, is an accomplice in this case." Elsewhere he said: "Now you are instructed further, as I have already stated, that Gutman is, according to his own testimony, an accomplice in the crime here charged against Sternberg."
This language, it is claimed, is violative of defendant's constitutional right that the judge shall not charge the jury with respect to matters of fact, but may state the testimony and declare the law. (Const., art. VI, sec. 19.) In People v. Sansome , 98 Cal. 235, this court said, discussing an instruction, that "to have gone further and have told them that Kelly was an accomplice would have been clearly a charge with respect to matters of fact, which is not allowed." In the case at bar the language quoted is part of instructions given by the court declaring the law to the jury upon the propositions that the testimony of an accomplice is to be viewed by them with distrust, and that a conviction cannot be had upon such evidence alone. The instructions are full upon the question, and the language criticised, so far from being injurious to defendant, is more favorable than he was entitled to. For if Gutman was not an accomplice the jury could have convicted without corroborating evidence and were not required to view his evidence with distrust. By stamping him as an accomplice the court, to the advantage of defendant, put his evidence under all the disabilities which attach to testimony of that character. It is clear then that no injury could have resulted to defendant.
We need not, however, uphold the language for this reason alone. So much has been said to show that injury [43 P. 201] could not have resulted from the error claimed, but, in addition, the error was expressly invited by defendant himself. This was natural, since the declaration was entirely favorable to him. He asked the court to instruct, and at his request the court did instruct, the jury that they could not find defendant guilty "unless there was evidence, other than the evidence of Gutman, which in itself and without the aid of the testimony of Gutman tended to connect Sternberg with the commission of the offense charged. This is itself a declaration to the jury that Gutman was an accomplice. And for error thus invited defendant has no just ground of complaint. Nor does the imputation that a crime has been committed, contained in the use of the word "accomplice," afford, under the circumstances, a legal grievance.
4. The court further instructed the jury as follows: "I repeat to you, gentlemen, that neither Lust nor Newman is an accomplice -- neither one of them is an accomplice -- and their testimony is not subject to the rule which I have mentioned as applicable to the testimony of accomplices."
This language is excepted to upon the same ground that it is an invasion of the jury's exclusive province of determining facts. Were there evidence, even slight evidence, tending to show that Newman or Lust was in fact an accomplice, this objection would be well founded and the error and injury would be manifest. That Newman and Lust were not accomplices has already been said, but, besides, there is no evidence in the record which tends in any way to establish their complicity in the Gutman crime. Had the court been asked to give instructions upon the law of accomplices, as affecting the testimony of Lust and Newman, it would have been its duty to refuse them. In saying to the jury that these men were not accomplices it did no more than to declare that there was no evidence before them tending to show that they were accomplices. While a judge may not instruct upon a matter of fact, he is not forbidden, if the record justifies the assertion, in declaring to a jury that there is a total absence of evidence upon a given proposition. Such are the circumstances of this case.
The judgment and order appealed from are affirmed.