In People v. Wong Ark, 96 Cal. 125 [30 P. 1115], it is said: "It is often difficult to determine what acts or declarations are part of the res gestae.Summary of this case from People v. Blake
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
Jesse Hardesty, for Appellant.
Attorney-General W. H. H. Hart, George P. Phibbs, and Deputy Attorney-General William H. Layson, for Respondent.
JUDGES: In Bank. Paterson, J. McFarland, J., and Sharpstein, J., concurred. Harrison, J., Garoutte, J., concurring. De Haven, J., concurred.
The appellant was convicted of murder, and sentenced to imprisonment in the state prison for life. A motion for a new trial was made and denied, and from the order denying the motion, and from the judgment, the defendant has appealed.
The appellant's chief contention is, that the court abused its discretion in overruling the defendant's challenge for actual bias, made to several of the persons who were examined as to their qualifications to serve as jurors. Section 1170 of the Penal Code does not provide for an exception to a challenge for actual bias, and it has been held here in several cases that there is no exception, and that there can be no review of the ruling upon such a challenge. The appellant contends, however, that the section referred to is unconstitutional and void, because "it deprives the accused of the right to except to the decision of the trial court in disallowing a challenge for actual bias, urged by the accused against a proposed juror, and takes away from the accused the safeguard of a trial by an impartial jury, and deprives him of his life or liberty 'without due process of law.'" But we are not called upon to determine the constitutionality of the act. We have examined the testimony of each juror given upon his voir dire, and are satisfied that the challenges were properly denied. To establish actual bias there must be shown "the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality, and without prejudice to the substantial rights of either party." (Pen. Code, sec. 1073.) The testimony fails to show that there existed in the mind of any of the jurors any prejudice, either with reference to the facts of the case or the parties to the action.
At the trial a police-officer of the city of Los Angeles was permitted to testify that after the shooting he ran to the place where the deceased was lying on the porch (a distance of about 140 yards), and "had a conversation with her for possibly half a minute or a little longer"; that when he reached the place where she was lying there were several persons present. Against the objection of the defendant, the witness was permitted to state that the deceased declared that the defendant was the man who had shot her. This ruling of the court was erroneous. The declaration was not made in the presence of the defendant, and it was not admissible as a dying declaration, because no foundation therefor was laid. If admissible at all, it was only as a part of the res gestae .
It is often difficult to determine what acts or declarations are part of the res gestae. There is an apparent conflict in the authorities on the subject. Each case must be determined upon its own peculiar facts. Wharton says: "The distinguishing feature of declarations of this class is, that they should be necessary incidents of the litigated act, -- necessary in this sense, that they are part of the immediate concomitants or conditions of such act, and are not produced by the calculated policy of the actors.. .. . The rule before us, however, does not permit the introduction, under the guise of res gestae, of a narrative of past events, made after the events are closed, by either the party injured or by the by-stander." At the time the declaration referred to was made, the shooting had been done, and the assailant had escaped from the scene of the shooting. The declaration was not the fact talking [30 P. 1116] through the party, but the party's talk about the facts. (Wharton's Crim. Ev., secs. 266, 691.) The subject under consideration was carefully considered by Mr. Justice Sharpstein in People v. Ah Lee , 60 Cal. 85, and the views therein expressed we think are correct, and applicable to the case at bar.
During the impanelment of the jury, and after nine jurors had been selected and sworn to try the case, two of the jurors were excused on the ground of illness. At that time the defendant had exercised nine of the twenty peremptory challenges allowed him by law. The remaining seven jurors were retained, and additional men were called to fill the panel. When eleven jurors had been sworn to try the case, the defendant had exercised, in all, twenty of the peremptory challenges. The defendant attempted to excuse by peremptory challenge the twelfth juror called, but the court held that he had already exhausted the peremptory challenges allowed him by law, refused to allow the challenge, and directed the clerk to swear the juror, which was done.
The court erred in not allowing the defendant to exercise the peremptory challenge. (Pen. Code, sec. 1123; People v. Stewart , 64 Cal. 61; People v. Brady , 72 Cal. 492.)
We have examined the instructions given to the jury, and think they state the law applicable to the case fully, fairly, and correctly.
The judgment and order are reversed, and the cause is remanded for a new trial.
Harrison, J., concurring. I concur in the reversal, upon the ground that the court erred in permitting the police-officer to give evidence of the declarations of the deceased.
Garoutte, J., concurring. While concurring in the opinion of Mr. Justice Paterson, I deem some of the matters presented by this appeal to be of such grave importance that a further consideration of them will not be labor lost. The case of People v. Vernon , 35 Cal. 51, 95 Am. Dec. 49, is the leading case in this state upon the question of res gestae, and it was undoubtedly upon the authority of that case that the trial court admitted the evidence of which appellant now complains. Measured by the doctrine there declared, the ruling of the court in this case was correct, but I think that decision rests upon no sound legal principle, and it should be expressly so declared, in order that it shall no longer serve as a shining light held in the hands of Res Gestae for the sole purpose of leading nisi prius courts upon fatal rocks of error.
The term res gestae is defined as the "things done," or, liberally speaking, may be said to be "the facts of the transaction." Was this statement made by the deceased, under the circumstances disclosed by the record, part of the res gestae or things done? Or was it a statement of a matter pertaining to a past event, -- a matter entirely completed and concluded? While, owing to the varying phases of human affairs, it is not possible to lay down a rule which will determine what is the res gestae in every case, yet all criminal-law writers agree that declarations merely narrative of a past occurrence cannot be received in evidence as proof of the existence of such occurrence upon the principle of res gestae. Wharton on Evidence, sec. 259, says: "The res gestae may be therefore defined as those circumstances which are the automatic and undesigned incidents of a particular litigated act, and which are admissible when illustrative of such act.. .. . Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become, in this way, evidence of the character of the act. They are admissible through hearsay, because in such cases, from the nature of things, it is the act that creates the hearsay, not the hearsay the act. It is the power of perception unmodified by recollection that is appealed to, not of recollection modifying perception; whenever recollection comes in, -- whenever there is opportunity for reflection and explanations, -- then statements cease to be part of the res gestae ."
Weighed in the balance furnished by Mr. Wharton, the Vernon case meets no requirement of the law. The facts of that case were as follows: "It appears from the evidence as presented in the record, that a witness, Dainty, resided about two hundred feet from the residence of the prisoner; that deceased called at witness's house on Friday evening, the 21st of December, between ten and eleven o'clock, and requested him to go with deceased to the house of the prisoner for the purpose of amicably arranging a recent difficulty between prisoner and deceased. Dainty told deceased to wait till he put on his clothes and he would go along, to which deceased replied that he would go along and see if he was up, and if he was in bed he would call him up, and witness could come along. Witness dressed himself and started, had passed about half the length of his porch when he heard a shot; continued to advance towards prisoner's house, and immediately heard three more shots in quick succession, and when he got about halfway to prisoner's house met deceased walking fast from the direction of prisoner's house. That it was about half a minute, and not exceeding three quarters of a minute, from the time witness heard the first shot till he met deceased, who immediately said he had been shot treacherously by defendant, that he (deceased) was sitting down on defendant's porch, that defendant came out to the door and spoke to him, and said: 'Wait till I go and put my boots on'; and instead of going to put his boots on he came out with a gun and shot him when he was sitting on the porch; that when he (deceased) got up to go away, defendant followed after and shot him in the [30 P. 1117] back."
Upon this state of facts, the court admitted the statements of the deceased as being part of the res gestae. The assignment of error in this regard was disposed of in a somewhat summary manner upon the authority of Greenl. Ev., sec. 108; Mithcum v. State , 11 Ga. 615; and Commonwealth v. McPike, 3 Cush. 181; 50 Am. Dec. 727.
It is perfectly apparent that the statements of the deceased to the witness were purely narrative of a past event. They formed no part of the transaction, were no element of the thing done, and in no sense spontaneous or automatic; and we find nothing in the citation from Greenleaf as authority to support the decision.
In Commonwealth v. McPike, 3 Cush. 181, 50 Am. Dec. 727, the record is as follows: "The attorney for the commonwealth called Benjamin D. Shaw as a witness, who testified that about the time mentioned by the preceding witness, he heard the voice of a woman crying 'Murder,' as she was going up stairs. He got up, and going towards the room, met the last witness coming out, who told him not to go up, for the defendant would kill her, and he then saw the defendant coming out of the room. The witness then went for a watchman, and coming back, went immediately up to the room where the deceased was, and there found her on the floor bleeding profusely. She asked the witness for some water, and to go for a physician. She said that John (meaning the defendant) had stabbed her, and told the witness what she wanted done if she died." Upon appeal, the court held the statement of the deceased admissible, upon the ground that the period of time at which these acts and statements took place was so recent after the receiving of the injury as to justify its admission as part of the res gestae; and upon the further ground that in the admission of testimony of this character much must be left to the exercise of the sound discretion of the presiding judge. These grounds are untenable. Neither upon principle nor authority does the fact (of itself) that the statement was made within a very few moments after the injury was received stamp such statement as res gestae. As to the second ground relied upon to support the admission of the evidence the same court said, in Lund v. Inhabitants of Tyngsborough, 9 Cush. 41, referring to the admission of evidence as res gestae: "Its admission is not left to the discretion of the presiding judge, as has been sometimes supposed, but is governed by principles of law which must be applied to particular cases as other principles are applied in the exercise of a judicial judgment." In the decisions of the New York courts we find the McPike case referred to as carrying the doctrine of res gestae to extreme lengths, and in the subsequent adjudications by the Massachusetts courts upon this question, Commonwealth v. McPike does not appear to be recognized as a precedent for future guidance.
From the facts of that case it appears that after being wounded the woman went upstairs to a room, the witness then went for a watchman, and upon his return to the room found her lying upon the floor, and then she said that "John had stabbed her," asked for water, and requested that he should go for a physician. It is entirely apparent that her statement as to the stabbing was the narrative of a past event, and should not have been admitted as res gestae. It was no more a part of the res gestae than if the statement had been made to the witness upon his return after calling the physician.
We will not pause to review the Georgia case, the remaining authority relied upon to support People v. Vernon, but will only say it appears to possess some substantial marks of difference from the other cases, although probably in line with them. There are a few English cases also supporting People v. Vernon , 35 Cal. 51, 95 Am. Dec. 49, notably Rex v. Foster, 6 Car. & P. 325, and Thompson v. Trevanion, Skin. 402; but in Roscoe's Criminal Evidence, p. 29, the learned author, in referring to these cases, says: "These two cases are difficult to reconcile with established principles."
In the case of Rex v. Bedingfield, 14 Cox C. C. 341, the evidence disclosed that the deceased went into her house, from which she emerged quite suddenly in a minute or two, coming toward the witness, who was in the yard. Her throat was cut; she was bleeding very much; she said something, pointed toward the house, and died within a few minutes. Her statement was offered as res gestae, and excluded by Chief Justice Cockburn, upon the ground that it was not part of anything done or said, but something said after the act was completed and concluded. The chief justice said: "Anything uttered by the deceased at the time the act was being done would be admissible, as, for instance, if she had been heard to say something, as 'Don't, Harry.' But here it was something stated by her after it was all over, whatever it was, and after the act was completed." The legal soundness of this decision was attacked by some of the law-writers of the day, and the chief justice answered these attacks in a pamphlet supporting his decision, and among other cases reviewed and dissented from Commonwealth v. McPike, heretofore cited. The tendency of the later decisions of courts has been to restrict within narrow limits this species of testimony, and modern authority would seem to support the Bedingfield case. In referring to it in Roscoe's Criminal Evidence, at page 40, the author says: "This decision gave rise to some discussion.. .. . It should seem that the ruling of Cockburn, C. J., was correct, if it is to be taken as a fact that the transaction was entirely at an end, which appears to be the case." The case at bar presents a much stronger array of facts for appellant than is disclosed in that case.
No rule can be laid down for all cases. Each case must be tested to a great extent by its own facts, but the fact that the statements may have been made immediately subsequent to the wounding is in no sense true indicia that they are res gestae. When the statements are the spontaneous outgrowth of the main fact, -- when, as Mr. Wharton says, "they are the act talking for itself, and not what people say when talking about the act," -- then they become res gestae, otherwise they are merely narrative of a past event, [30 P. 1118] and in the interest of truth and justice should be rejected. Again, statements made with a view to the apprehension of the offender are in no sense res gestae, and the statement of the deceased here considered is of that character.
In this case the "thing done" was the shooting. The officer was not present at the time, but was 140 yards distant. He traveled that distance, and found the deceased lying upon the sidewalk, and several Chinese in her immediate presence; an opportunity for reflection and recollection had presented itself, and corrupt influences may have suggested her statement. It was a statement that defendant did the shooting. It was a narrative of a past event; in no respect an automatic or spontaneous incident of the shooting; no part of the thing done; and should not have been placed before the jury.
It is insisted by appellant that the court erred to the prejudice of his substantial rights during the formation of the jury, by overruling his challenge to certain jurors upon the ground of actual bias, to wit, the existence of a state of mind on the part of the juror in reference to the case and to the defendant, which would prevent him from acting with entire impartiality, and without prejudice to the substantial rights of the defendant. The appellant excepted to the order of the court denying his challenge, and now asks that such ruling be reviewed. The accused exhausted all the peremptory challenges given him by law, and these men whose competency as impartial jurors is now attacked formed part of the jury which rendered the verdict. We are met at the threshold of the examination by the objection that under section 1170 of the Penal Code, supported by a long line of decisions, there is no exception allowed to a defendant from a ruling of the court denying a challenge for actual bias, and that consequently there is no appeal to this court from such ruling. This brings us to a consideration of that section of the code before we can look into the evidence; it reads as follows: "On the trial of an indictment or information, exceptions may be taken by the defendant to a decision of the court, -- 1. In disallowing a challenge to the panel of the jury, or to an individual juror, for implied bias; 2. In admitting or rejecting testimony on the trial of a challenge to a juror for actual bias; 3. In admitting or rejecting testimony, or in deciding any question of law not a matter of discretion, or in charging or instructing the jury upon the law on the trial of the issue."
When the legislature said the accused was entitled to an exception to a decision of the court in admitting or rejecting testimony on a trial of a challenge to a juror for actual bias, that enactment was of little practical benefit to a defendant charged with crime. We are acquainted with but a few cases from our reports (and there the question arose under peculiar circumstances) in which an appellant has ever secured a new trial by availing himself of the benefits of the exceptions therein secured, although the right of a person charged with crime to have his guilt or innocence passed upon by twelve impartial jurors has been recognized and declared sacred, not only by the common law, but by the supreme law of every state of this Union.
While it is not clear that any valuable rights are given to the defendant under this provision of law, it is very apparent therefrom that the legislature intended to deprive him of the right to review the action of the lower court in denying a challenge to a juror for actual bias. That is not only apparent from the section, but this court has repeatedly held such to be its object and effect. In other words, each of twelve jurors may state upon his voir dire that he has a fixed and settled opinion of the defendant's guilt, or that he has such a bias and prejudice against the defendant that he could not act with entire impartiality in the trial of the case, and if, thereupon, the court should deny a challenge to each of the said jurors upon the ground of actual bias, and impanel them as a jury to try the case, upon a verdict of guilty by such a jury the defendant might suffer death, for the legislature has said that he should be forever barred from raising in the higher court any inquiry as to the condition of mind of the men who convicted him at the time they took their places in the jury-box. This section of the code, under the construction given it by the various decisions of this court, is unconstitutional, and no extended examination of fundamental principles is necessary in order that its unconstitutionality may be made plain. The legislature of the state has power to formulate and regulate the practice of the law and the procedure under the law, but subdivision 2 of section 1170 involves principles broader and deeper than any mere question of practice or procedure.
Article VI. of the amendments to the constitution of the United States says: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury." Section VII., article 1, of the constitution of the state of California, reads: "The right of trial by jury shall be secured to all, and remain inviolate." And when the constitution of this state guarantees to all the right of trial by jury, it means an impartial jury, as Blackstone says (b. 4, p. 350), a jury of "freeholders, without just exception." Cooley, in his work on Constitutional Limitations, pp. 390-393, says: "Accusations of criminal conduct are tried at the common law by jury; and whenever the right to this trial is guaranteed by the constitution, without qualification or restriction, it must be understood as retained in all those cases which were triable by jury at the common law, and with all the common-law incidents to a jury trial, so far, at least, as they can be regarded as tending to the protection of the accused.. .. . Many of the incidents of a common-law trial by jury are essential elements of the right. The jury must be indifferent between the prisoner and the commonwealth." (See also People v. Powell , 87 Cal. 348.) In Stokes v. People , 53 N.Y. 171, 13 Am. Rep. 492, the court said: "The position of the counsel for the accused is, that the right of trial by jury is secured to persons accused of felony by the [30 P. 1119] constitution, and that this secures the further right of trial by an impartial jury. We shall assume the correctness of the latter position. Any act of the legislature providing for the trial otherwise than by a common-law jury composed of twelve men would be unconstitutional and void, and any act requiring or authorizing such trial by a jury partial and biased against either party would be a violation of one of the essential elements of the jury referred to in and secured by the constitution." In the case of State v. McClear, 11 Nev. 39, principles similar to those here involved were exhaustively discussed, and the entire range of authorities bearing upon the question reviewed by Hawley, C. J.; and it was there decided that it was not within the power of the legislature to deprive a citizen accused of crime of the right to challenge a juror for actual bias, and an act of the legislature to that effect was declared unconstitutional. That act was declared invalid upon the ground that the accused, under the supreme law of the land, was entitled to a trial by an impartial jury, a jury indifferent between the people and the accused, and to deprive him of the right to challenge jurors for actual bias was to deprive him of the right to be tried by an impartial jury.
Section 1170 of the Penal Code does not go to the extent of the act which was under consideration in the McClear case, but does go to the extent of declaring that when the trial court has adjudged that a juror is an impartial juror, the matter is foreclosed, and no further inquiry shall ever be made. In other words, upon such an adjudication the court could commit no error, could do the defendant no wrong, and therefore no right of appeal should exist.
The constitution of this state vests in this court appellate jurisdiction in all criminal cases prosecuted by indictment or information in a court of record on questions of law alone, and no act of the legislature, or omission to act, can subtract anything from the jurisdiction conferred by the constitution, or fetter this court in the exercise of that jurisdiction. As the legislature has no power to grant the court jurisdiction, it has no power to deprive the court of jurisdiction. The jurisdiction of this court came from a source of power above and beyond the legislature of the state, and the court can only be deprived of it by the power from whence it came. This court has appellate jurisdiction of the present case upon all questions of law, and when the accused comes before the court, saying that he has been convicted of a felony by a verdict of a jury composed of twelve men who were not impartial jurors, presents, in a legal manner, the evidence upon which he relies to establish such facts, and asks us to review that question as an error of law committed by the lower court, we are bound, under the constitution, to grant his request, notwithstanding the legislature may have declared that he shall not be entitled to an appeal as to such matter.
If the defendant has been tried and convicted by a jury of men whose minds were biased against him when they entered the jury-box, he has been deprived of substantial rights. For he has been deprived of rights guaranteed to him by the constitution, -- the same constitution that created this court, and imposed upon it the duty of protecting all men in the enjoyment of every right vouchsafed to them by that instrument. The legislature could as well have enacted that the accused should not be entitled to an exception from an order of the court compelling him to be tried by an impartial jury of ten men, or from an order depriving him of the right to any jury trial whatever. Justice would probably overtake him under these conditions, but it would be a mockery of justice to submit his guilt or innocence to a jury of his enemies. This court decided in People v. Powell , 87 Cal. 348, that the defendant was deprived of his constitutional rights by an act of the legislature, which allowed the court, upon motion of the district attorney, under certain circumstances, to change the place of trial of the accused to an adjoining county, and thereupon declared such act unconstitutional, as being violative of that provision of the constitution previously quoted, that "the right of trial by jury shall be secured to all, and remain inviolate." It will thus be seen that the constitutional rights of the accused are guarded by the courts with untiring care and a jealous eye. And while there may be differences among the courts of this country as to what particular incidents of a common-law jury are carried into the constitutions of the various states, all courts agree that the incidents that the jury must consist of twelve impartial men -- men who stand indifferent between the parties -- are included in the term "jury" wherever found in the organic law of the land. If the legislature has the power to deprive the accused of an exception to the ruling of the court, admitting into the jury-box a juror to try defendant who was biased against him and his cause, it would have the same power to deprive him of all exceptions to the rulings of the court. It would have the same power to deprive him of all appeal, for of the many rights of the accused guaranteed to him by the law and the constitution, no one is so important as that he shall be tried by a fair and impartial jury.
The decision of the court upon the challenge of a juror for actual bias in many instances is a decision of a matter of law, and in all such cases there is an appeal to this court given by the constitution. If a juror, upon his voir dire, should state that the accused was his enemy, and such fact would affect his verdict if taken as a juror, no issue of fact would be created; no question of the court's discretion would be involved; but the decision upon a challenge for actual bias based upon such conditions would be a decision upon a question of law. From the existence of such a state of facts, it would follow, as matter of law, that the juror was incompetent to act. In speaking upon this question in Holt v. People , 13 Mich. 227, the court, by Justice Cooley, said: "Here the juror was himself placed upon the stand, and a single question was put [30 P. 1120] to him. It is upon his reply to that question that the judge's decision was based. The facts were undisputed, and the question of their sufficiency as a cause for challenge was purely a question of law. The decision of the judge upon that question is as fairly presented for review by the exception thereto as if the judge had proceeded to find the facts in the words of the juror, and had then spread upon the record his conclusion that the state of mind in the juror thus found was not, as matter of law, a ground of disqualification."
As was said in Eason v. State, 6 Baxt. 477: "It is our duty, and the highest and most responsible imposed upon us, to guard the constitution against infractions. When we are called upon to determine constitutional questions, if we are in no doubt, our path of duty is plain and straightforward. Such is our present position. We are satisfied that the act in question violates the constitution,. .. . and we are bound so to declare." It follows that section 1170 of the Penal Code, to the extent that it denies to a defendant the right to take an exception to the ruling of the court upon the trial of the issue of actual bias of a juror, is unconstitutional and void.