Rehearing Denied Nov. 3, 1930
Hearing Granted by Supreme Court Nov. 17, 1930.
Appeal from Superior Court, Los Angeles County; Carlos S. Hardy, Judge.
Owen R. Bird was convicted of manslaughter, and he appeals.
Reversed, with directions. COUNSEL
David Welts and Cooper & Collings, all of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for the State.
Joseph W. Ryan, of Los Angeles, amicus curiae.
IRA F. THOMPSON, J.
A complaint against the defendant in this case was filed in the municipal court on December 3, 1929, charging him with murder. A preliminary hearing was had and the magistrate refused to bind him over for the offense mentioned, but committed him to the sheriff to await trial for the crime of manslaughter. In due course the district attorney filed an information charging him with manslaughter in accordance with the commitment. Subsequently and on January 23, 1930, the district attorney made a motion for leave to file an amended information, which motion was denied. On the following day, with the consent of the court, the information was dismissed and a new complaint charging murder was filed in the municipal court. Again a preliminary hearing was had before another judge of that court, and again the magistrate declined to hold the defendant for murder, but committed him for manslaughter. On this occasion, however, the district attorney, claiming to act under the authority of section 809 of the Penal Code, filed an information by which he charged the defendant with murder. A trial was had and the jury returned a verdict of guilty of manslaughter. Prior to the trial and after the filing of the second information the defendant made a motion to set it aside on the ground that he had not been legally committed, and for the further reason that the offense alleged in the information was not shown by the evidence taken at the preliminary hearing. This is an appeal from the judgment pronounced upon the verdict.
The first point, and the one most insistently pressed upon us by the appellant as well as amicus curiae, is that section 809 of the Penal Code is unconstitutional in so far as it purports to authorize the district attorney to charge an offense not named in the order of commitment. The enactment reads as follows: "When a defendant has been examined and committed, as provided in section 872 of this code, it shall be the duty of the district attorney, within fifteen days thereafter, to file in the superior court of the county in which the offense is triable an information charging the defendant with such offense. The information shall be in the name of the people of the State of California, and subscribed by the district attorney, and shall be in form like an indictment for the same offense. It may charge the offense, or offenses, named in the order of commitment, or any offense, or offenses, shown by the evidence taken before the magistrate to have been committed."
It is asserted that the section is in violation of section 8 of article 1 of the state Constitution, which reads: "Offenses heretofore required to be prosecuted by indictment shalt be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county."
The first question which presents itself for consideration concerns the reason why the people wrote this provision into the fundamental law and particularly into the article defining and declaring a bill of rights. When the barons of England exacted from King John a declaration of their rights and liberties they incorporated in the Great Charter these words: "No freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way harmed— nor will we go upon or send upon him— save by the lawful judgment of his peers or by the law of the land." (Italics ours.) This provision alone, says Blackstone, "would have merited the title it bears, of the great charter" because it protected every individual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited by the judgment of his peers, or the law of the land." 4 Blackstone’s Comm. 424. In Cooley’s Constitutional Limitations (vol. II, p. 736) we read concerning this section of the Magna Charta this language: "Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College Case [4 Wheat. 518, 4 L.Ed. 629]: ‘By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment is not therefore to be considered the law of the land.’ " (Italics ours.) Mr. Webster went further than the quotation evidences. He continued: "Such a strange construction would render constitutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the legislature. There would be no general permanent law for courts to administer or men to live under. The administration of justice would be an empty form, an idle ceremony. Judges would sit to execute legislative judgment and decrees, not to declare the law or administer the justice of the country." Any student of history is cognizant of the fact that this section of the great charter was not always proof against the seizure and incarceration of men contrary to the "law of the land" and the dictates of natural justice. For example, let us call to mind how the Duke of Buckingham was ordered to the Tower by Henry VIII, in defiance of the traditional law, the first in this sovereign’s long list of martyrs. It would be the work of supererogation to set down further instances in English history where for one political consideration or another men were deprived of their liberty without the formality of indictment. Suffice it to say that such acts and the combining of the power of judge and prosecutor accounted for a not inconsiderable part of the immigrants to our shores. Nor is it surprising that with a background of many failures to observe the greatest section of the pledge of King John, the colonists viewed with suspicious eye the entire legal profession. When the time came for them to declare their independence they voiced their disapproval of the use of a conglomerate mixture of judicial and executive power by the sovereign in these words: "He has obstructed the administration of justice by refusing his assent to laws for establishing judiciary powers" and "for depriving us, in many cases, of the benefits of trial by jury" and "for transporting us beyond seas to be tried for pretended offenses." So important did this phase of government appeal to those upon whom fell the duty of framing the fundamental law that the general subject with which we deal was split into three articles in the Bill of Rights, made a part of the Constitution by the first ten amendments. One of these (Amendment 7) provides for jury trials "in suits at common law," another (Amendment 6) guarantees the accused in criminal prosecutions "the right to a speedy and public trial, by an impartial jury," and the third (Amendment 5), the one which directly bears upon our problem, reads: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." It is impossible to accurately determine the weight and measure of words without having in mind to some degree at least an appreciation of those conditions which led up to their being set down. For practical illustrations of what may result in the absence of the efficacious acknowledgment of the principle of government herein involved, attention might be directed to the French Revolution, or to accounts of the recent upheaval in Russia, or to informal trials in China. But sufficient has been said to indicate the reason why the Constitutions of the various states of the Union contained articles similar to those found in our federal Constitution. In the Constitution of California, adopted in 1849, section 8 of article 1 was almost a repetition of the quoted article of the federal Constitution. It reads: "No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace, and in cases of petit larceny under the regulation of the legislature), unless on presentment or indictment of a grand jury; and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offence; nor shall he be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation." In the constitutional convention of 1878-79, as a pure matter of "economy in the administration of government" (Proceedings of Constitutional Convention, p. 1177), the section was made to read as we have set it forth herein, but not without opposition, 22 of the delegates being in favor of retaining the old section. In other words, the majority believed that it would be more economical to have a hearing before a magistrate and a commitment by him, and that the liberty of the citizens would be substantially protected by a preliminary trial before a member of the judicial system, where impartiality reigns.
We are thus brought to a rule of construction. It is obvious from the history of the provision which we have hastily sketched that our people and our foremost students of government have considered the guaranty against being charged with an infamous crime without the indictment by a grand jury, of the very first importance, a system which we may pause to remark has continued to work successfully in federal courts. The esteem in which it has been held is well expressed in Jones v. Robbins, 8 Gray (Mass.) 329, as follows: "The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury, in case of high offences, is justly regarded as one of the securities to the innocent against hasty, malicious and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty." As an exception to the general rule the people of California have provided for the alternative of a hearing before and the commitment by a fair, impartial, and independent magistrate. An exception to the general and prevailing rule is to be strictly construed and not extended beyond its letter. In other words, the presumption must be indulged that there was no intention to affect an existing system or policy any further than the plain terms of the exception requires. Lewis’ Sutherland on Statutory Construction § 487. In the present instance we think the presumption simply confirms the plain meaning of the words employed. In simple language the constitutional provision requires a hearing before and a commitment by a magistrate in lieu of an indictment by a grand jury. It is immaterial what the district attorney thinks the evidence shows— the important thing is, What does the magistrate judge to be disclosed, by that evidence? The district attorney is elected to prosecute and not to judge.
Of course, it stands to reason (and we doubt if anyone would deny it) that the Legislature has not the power to confer upon the district attorney as an executive officer judicial authority, in the sense in which we now employ that term, in the face of the provisions of article 6, § 1, of the Constitution, vesting the judicial power of the state "in the senate, sitting as a court of impeachment, in a supreme court, district courts of appeal, superior courts, such municipal courts as may be established *** and such inferior courts as the legislature may establish ***," and article 3 thereof distributing and dividing the powers of government into the three separate departments. Such was the holding in the case of In re Sims, 54 Kan. 1, 37 P. 135, 25 L.R.A. 110, 45 Am.St.Rep. 261, where similar constitutional restrictions prevented the legislative action from becoming effective.
There is another approach to our present problem which has an important bearing in any effort to solve the question. After the section of the Constitution was adopted there existed grave doubts as to whether the exception provided for therein constituted due process of law. Justice Matthews, the author of the prevailing opinion in Hurtado v. California, 110 U.S. 517, 4 S.Ct. 111, 122, 292, 28 L.Ed. 232, characterized the question as "one of grave and serious import, affecting both private and public rights and interests of great magnitude." By the opinion therein, from which Justice Harlan dissented in an exhaustive statement of his reasons, it was determined that the substitution of a hearing before and a commitment by a magistrate in the place of an indictment did not do violence to the "due process of law" clause contained in the Fourteenth Amendment to the federal Constitution. It is interesting to speculate upon the answer which would have been given by the court had the constitutional provision contained the subject matter of the present legislative enactment. Certain it is that that authority cannot possibly be construed to substantiate the argument of respondent here. In fact, it is directly opposed. It is there said: "Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offense of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the [sic] statute of California, it carefully considers and guards the substantial interest of the prisoner." (Italics ours.) How different from the present situation, where, as in the case at bar, the information, it is said, may not only lack but be directly in conflict with the magistrate’s certificate of probable guilt; and where the accused may, in practice, be actually deprived of the aid of counsel in examining the witnesses produced by the prosecution because he may be denied knowledge before hand of what the district attorney, secretly perhaps, intends to include in the information. We do not believe that the American people have become, or that we should be, so insensible to the liberties of the person as to intrust the accusation and confinement of men to the judgment of a public prosecutor, who, no matter how honest he may be, is naturally biased and prejudiced against the accused from the time he determines to prosecute. Rather do we believe we should adhere to the spirit of that enunciation of Blackstone (4 Blackstone Comm. 34950) as follows: "The founders of the English law have, with excellent forecast, contrived that no man shall be called to answer the King for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of every accusation, whether preferred in the shape of an indictment, information or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as the palladium remains sacred and inviolate, not only from all open attacks (which none will be so hardy as to make), but also from all secret machinations which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. (Italics ours.) And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered that delays and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our Constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern."
We have not overlooked the fact that respondent relies upon the authority of People v. Sanders (Cal.App.) 283 P. 136, with assurance that it disposes of every contention advanced by the appellant herein. The majority opinion in that case proceeds upon the assumption that the change in the law is one regulating procedure and overlooks the very substantial and fundamental right of the individual not to be publicly charged and tried for an heinous offense except upon establishment of probable cause. Let us consider the concrete case with which we now deal. Two magistrates decided that there was reason to believe the appellant was guilty of manslaughter and not of murder. Perhaps the jury would not have determined he was guilty of manslaughter had he not been tried for murder. Can any one be so bold as to assert that the defendant was not irreparably and immeasurably damaged by being publicly accused and tried for murder? If so, let him without just cause be likewise charged and he will realize the impairment of a substantial right. Nor have we overlooked the dissenting opinion of Justice Houser in that case, with whose views we are in thorough accord. Were it not for the length of this opinion we would be inclined to set it forth in full herein. The illustration which he instances of a man being bound over for burglary and informed against for rape is sound and may conceivably be extended to any other infamous crime. His comment upon the authority of People v. Nogiri, 142 Cal. 596, 76 P. 490, constitutes a proper construction of the language of that case and demonstrates the impossibility of conferring upon the district attorney the "judicial, discretionary and appellate power" to ignore the commitment of the magistrate in the face of the constitutional provision requiring a hearing and a commitment by that judicial officer. Supporting our views and those of the dissenting opinion, we refer to an excellent comment upon the case of People v. Sanders, supra, in 18 California Law Review, 324, wherein, in addition to many authorities cited, it is pointed out that there is a very great difference between allowing the prosecutor the right to charge the offense in language different from that of the magistrate and charging an offense different from the one named in the commitment.
It cannot be said that the error here found to exist does not require a reversal of the judgment. We cannot say that the jury was not largely induced, by the charge of murder and the introduction of evidence relevant thereto and the intimations necessarily attendant thereupon, to return their verdict, and a stigma was necessarily cast upon appellant, in the eyes of his fellow citizens, by the greater charge. The case in this particular is somewhat similar to that of People v. Dugat, 77 Cal.App. 263, 246 P. 344.
It is argued by appellant that the evidence is insufficient to justify the verdict of the jury, but in this we cannot agree. While the evidence is capable of the construction that he was not guilty, it is also susceptible of the construction that he was.
Complaint is also made of the failure of the court to give certain instructions. We have examined them, together with those given, and have concluded that no error was therein committed.
The requested instruction, which was not given and which is made the basis of appellant’s most insistent argument, contains this paragraph: "You are instructed that one who has ordered an intruder to leave his home has the right to draw a weapon and hold it in readiness as he goes toward the intruder and orders him to depart." There is no evidence to which this portion of the instruction could be made to apply. According to appellant’s own testimony, he did not hold the gun in readiness, but actually fired it for the purpose of frightening the deceased. It is a familiar rule that, when a requested instruction contains a part which should not be given, it is not error to refuse the whole. People v. Golsh, 63 Cal.App. 609, 219 P. 456.
Judgment reversed, with directions to the trial court, upon request therefor, to permit amendment of the information to make it accord with the commitment and thereupon to retry the cause.
We concur: WORKS, P.J.; CRAIG, J.