Opinion
Appeal from Superior Court, Los Angeles County; Charles S. Burnell, Judge.
Paul F. Mahoney was convicted of manslaughter, and he appeals. Affirmed.
COUNSEL
Le Compte Davis and William B. Beirne, both of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for the People.
OPINION
THOMPSON, J.
The appellant and C. B. Bucknall were charged by indictment with manslaughter. The jury were unable to agree upon a verdict respecting the charges against Bucknall, but did return a verdict of guilty against the appellant. He appeals from the judgment pronounced upon the verdict and from an order denying his motion for a new trial. The charge against the defendant Bucknall was dismissed by the court upon motion of the district attorney.
It has become the custom on New Year’s day of each year to hold a festival of flowers in the city of Pasadena, known as the Tournament of Roses. It is viewed by thousands, many of whom are willing and anxious to pay for seats from which to watch the parade. In the early part of December, 1925, the appellant here secured from the building department of the city of Pasadena four permits to erect four grand stands for the accommodation of these spectators. All of them were constructed along similar lines. The one erected at Colorado and Madison avenues collapsed. Many people were injured; some were killed, including one Mrs. Bessie Borich, for whose death the jury held the appellant responsible. The type of construction used may be stated to have been of the stepladder type-the seats and seat stringers corresponding to the steps and their supports, and the underpinning or columns corresponding to the rear braces of the ladder-in other words, the columns consisting of 4 x 4 timbers ranging from a few feet in length to approximately 20 feet were inclined forward from the perpendicular at an angle of about 2 feet in 18. They were not all inclined at exactly the same angle, and this difference in inclination tended to throw unusual stresses upon some of them. It is not questioned but that sufficient uprights were used (they were set approximately 4 feet on center in each direction), had they been properly placed and braced. It is made to appear that the transverse bracing consisted of one 1 x 6 board nailed to the sides of the uprights and resting upon the mudsills, which mudsills were not continuous, but consisted of various lengths-some of them carrying one post only, some carrying 2 or 3 posts. The longitudinal bracing, principally upon the rear, consisted of 1 x 6 material nailed in the shape of an X from top to bottom, the X covering 4 or 5 posts. Sporadic longitudinal bracing was also used on some of the inside uprights. The uprights were beveled where they were toe nailed to the bottom of the seat stringers, but were not beveled to rest upon the mudsills-the edge of the upright only bearing thereon. Much of the lumber had been used before, some of it in grand stands in previous years, some of it had been purchased from a contracting firm which had used it as form material to set concrete. The testimony established the fact that many of the nails were not driven home, but were left to protrude from one-eighth to more than one-quarter of an inch. Defendant contended that these were superfluous nails put in after sufficient had been driven home. The testimony also showed that many box nails or nails smaller in diameter than the common nails had been used even in places where strain would be applied. There was a mudsill in front of the stand upon which, without beveling, rested the seat stringers. In front of the seat stringers there was nailed to the mudsill a 1 x 3 strip-and then in front of the mudsill were driven 2 x 2, 2 x 3, and some 2 x 4 posts, placed about 3 or 4 feet apart and driven into the ground somewhere about 14 inches. The 1 x 3 strip on the mudsill and the stakes in front were, according to the defendant, intended to carry the forward thrust of the stand caused by the inclination forward of the upright posts. Some of the testimony shows that the forward thrust per seat stringer, if loaded with 1,000 people (and it was actually loaded to capacity with 975 at the time of the accident), would be about 800 pounds, and that the resistance of the stakes in soft ground such as this ground was testified to be, would be less than half that force. The ordinance of Pasadena respecting grand stands calls for construction capable of sustaining a live load of 125 pounds to the square foot, with a safety factor of 4, or a load of 500 pounds. Had the safety factor of 4 been used in computing the forward thrust per seat stringer, it would be in the neighborhood of 3,200 pounds per seat stringer. The test employed in this instance was to load one section (4 feet by 4 feet in area) of the stand with sacks of cement, which would place upon this particular section a load somewhere between 250 and 300 pounds per square foot. The stand collapsed with a load of approximately 50 pounds per square foot. This test was conducted under the supervision of the defendant Bucknall, against whom the charges were dismissed.
Many expert witnesses called by the plaintiff and several occupants of the stand testified that the stand slid forward, tearing out some of the stakes and ripping off the 1 x 3 strip on the mudsill, and after it had slid a distance of 8 or 10 feet, buckled or jacknifed, throwing the occupants to the bottom in the mass of broken timber. The defendant contended and he had one occupant testify that he heard a cracking and noticed that the stand sank down in one place until the ends of the seat stringers kicked over the 1 x 3 strip on the mudsill and slid forward. From this the defendant argues that there was a soft spot in the earth, made by filled ground in an old cellar which had been under a residence formerly upon the property, the recital of which causes us to add to the facts already recited the fact that defendant did not make an investigation into the character and firmness of the soil before building, nor make any excavations for the mudsills other than sufficient to permit them to rest flat upon the ground. Other facts will develop as we proceed, but the foregoing is sufficient for a proper understanding of the points raised by this appeal.
The appellant first complains of the admission in evidence, over defendant’s objection, of testimony showing injuries to persons other than the deceased, Mrs. Borich, and of the cries, shrieks, and groans of the people in the stand immediately after its collapse. This testimony was admitted by the trial court on theory that it constituted a part of the res gestæ . The offense charged is what has generally been known as "involuntary manslaughter" or a case- "where death results unintentionally, so far as defendant is concerned, from an unlawful act on his part, not amounting to felony, or from a lawful act negligently performed." 1 Whart. Crim. Law (8th Ed.) § 305.
The principal questions in determining the guilt or innocence of the defendant were, first, Was the stand negligently constructed or was it constructed unlawfully or in violation of the ordinance? Second, Did death result from the unlawful or negligent act? It is important to have these main questions, which may be denominated the main transaction, in mind in determining whether the testimony admitted was part of the res gestæ because we find that declarations which would otherwise be hearsay, or evidence of another offense which would not otherwise be admissible under any other exception, would be competent, if constituting a part of the res gestæ . In order, however, that they may come within the rule, it is necessary that they possess the following characteristics:
"First, they must have been uttered contemporaneously with and grow out of the act upon which they have a bearing so as to be spontaneous and not narrative; second, they must qualify, illustrate, explain, or unfold its character or significance, so as, third, to be connected with it in such a manner that the declaration and the act form a single and indivisible transaction." Underhill’s Crim. Evidence (2d Ed.) § 93.
It will be observed, therefore, that the acts and declarations admissible as a part of the res gestæ depend largely upon the character of the crime, or, as said by the same author, section 95:
"The main question is, Are they relevant to, and do they explain and illustrate the facts of the transaction in issue? In other words, can we learn from them something of the motives or intention present in a relevant act."
Tested by these questions it is apparent that injuries or the extent of injuries suffered by other parties who were present in the grand stand could throw no light either upon the character of the construction, or upon the question as to whether faulty construction was responsible for the death of Mrs. Borich. If the stand were negligently or unlawfully constructed, the defendant would have been guilty of the offense charged if such construction resulted in her death, regardless of injuries to other persons and regardless of their spontaneous utterances of pain. Undoubtedly, such testimony would have great effect upon the sentiments and would tend to arouse the indignation of the jury. We conclude therefore, that the testimony admitted was not to be considered a part of the res gestæ, and it was error to admit it as such.
The remaining two points urged by appellant as reasons for the reversal of the judgment may properly be considered under one head. They consist of 23 utterances by the trial judge and numerous instances where he took to himself the task of examining witnesses, which, appellant says, conveyed to the mind of the jury the impression that the judge was convinced of the guilt of the defendant and that his sympathy was wholly with the prosecution. No assignments of error were made at the time of the occurrences by defendant’s counsel, and no opportunity given to the court to right the wrong done, if such it was. We are not unmindful of the rule which requires some effort to be made in the trial court to prevent and to correct such errors when they occur. But there may be instances, and this is one of them, where such effort would be entirely fruitless; no retraction sufficient to undo the harm; and the effort made might result in further error. Further, it is evident from the attitude of the trial judge, as shown by the record, that any assignment of misconduct would have been disregarded. Counsel for the appellant, by making an assignment, would have brought upon himself further attack. People v. MacDonald, 167 Cal. 545, 140 P. 256; People v. Derwae, 155 Cal. 593, 102 P. 266; People v. Frank, 71 Cal.App. 575, 236 P. 189. It would extend this opinion beyond any reasonable bounds to treat each assignment separately, many of which, while perhaps not strictly in keeping with judicial language and discretion, were not of that irremediable nature except when considered as a part of the whole, and therefore we shall consider only a few instances. D. Z. Gardner, a member of bar, was permitted to testify on behalf of defendant as an expert on construction. During the examination of Mr. Gardner the following occurred:
"A. By the court: Let’s put it this way, Mr. Gardner: From your experience as a builder and contractor of about 8 years, obtained 34 years ago, would you say that the stand in question was constructed in a safe and work-manlike manner? A. Absolutely so.
"Q. What happened to it, do you know? A. I know it fell down. But
"Q. That is all. You have answered the question. A. Yes. I don’t think it is hardly fair when the question has been
"Q. Now, you are not here to say whether a question that is asked is fair or not, and-A. I understand, your honor.
"Q. *** The fact that you are an attorney of the court and an officer of the court makes it all the more wrong for you to attempt to make such a statement as that, and if it occurs again I shall hold it a contempt of court, just as I would do with anybody else who is insulting or doesn’t show the proper respect for the court. Now, you are here as a witness to answer questions. A. I understand. I want
"Q. Never mind what you want. You are here to answer questions, and when you have answered the questions close your face after you have answered the question, and don’t let me hear any more remarks of that kind. If you do, you will be up here in a structure that will bear a whole lot more weight than any grand stand is intended to bear."
Shortly after this occurrence and immediately preceding an afternoon recess of the court, the following statement was made by the trial judge:
"Well, I guess we had better take the afternoon recess, ladies and gentlemen; we don’t want to tire our noted expert out."
After Mr. Gardner was permitted to testify as an expert, his testimony should have gone to the jury unimpaired by the comment of the court thereon. Realizing the eagerness with which juries grasp the suggestions of the trial judge, we can appreciate the fact that no weight would be attributed by them to his testimony after the remarks just quoted. On more than one occasion the trial judge asked the witness, in referring to the grand stand, "What happened to it?" as though the fact that it had fallen satisfied his mind that it had fallen by reason of negligent construction, eliminating the possibility of a latent defect, which due care and circumspection may not always guard against. And to further accentuate his belief, when questioning one witness regarding the three stands which did not fall, asked the following question:
"You think the mercy of Providence might have had something to do with it?"
Under our present system, judges are not permitted to comment upon the evidence or its effect. They cannot be too careful or cautious lest they by word, look, or inflection of the voice bring to bear upon the jury an influence not compatible with an unbiased verdict of the jury. People v. Williams, 17 Cal. 142; People v. Matthai, 135 Cal. 442, 67 P. 694, and People v. Frank, supra. In addition to the foregoing misconduct of the trial judge, we deem it proper to instance the following: The counsel for one of the defendants had objected to a question. The witness on the stand had commenced an answer, when counsel for the other defendant interposed an objection also. The record then proceeds:
"The Court: The witness had not finished her answer, so I could not very well rule on the objection, not knowing what the witness’ answer is going to be until she finished. And I will instruct counsel not to interrupt the witness again when she is making an answer. Make your objection when the witness finishes the answer or move to strike it out when she has finished, but don’t interrupt the witness. Show the witness the common courtesy of allowing her to finish her answer.
"Mr. _____: Well, but, your honor
"The Court: Now, that is all I want to hear from you. I expect a witness in my court to be treated with ordinary gentlemanly courtesy, and it is going to be done.
"Mr. _____: I will be very glad to do that, your honor, of course.
"The Court: Very well; see that you do."
Upon a similar occasion, when another witness was on the stand, the judge said to defense counsel:
"The witness had not finished his answer. He will be allowed to finish his answer, and if there are any more interruptions some one is going to suffer for it."
The record also shows the following, the questioner being the counsel for one of the defendants:
"Q. *** Mr. Kelly, as chief of police in Pasadena, are you an insurer against crime?
"The Court: Oh, you don’t need to answer that question, Captain. That is too utterly silly to require an answer.
"Q. *** As head of the department?
"The Court: Now, that question *** you know is not a proper question. I am willing to allow a lot for ignorance, but some questions pass the bounds, and that is one of them."
The same witness was examined by the counsel of defendant Bucknall as to the latter’s reputation. The record shows:
"Q. He is a man who bears a good reputation in Pasadena? A. Excellent. ***
"Q. For his truthfulness? A. Yes, sir.
"Q. Honesty? A. Yes, sir.
"Q. Integrity? A. Yes, sir.
"Q. By the Court: And chastity? A. Yes, sir.
"The Court: We might as well get them all in."
While the same witness was on the stand, the prosecution inquired whether the lumber formerly in the wrecked stand had been changed in its condition after removal from the place where it fell. Upon objection being made by both counsel to certain questions, the judge said to one of them:
"You don’t want the officer to testify he slept on it, do you?"
During the direct examination of a witness for the prosecution, one of defense counsel started to say something. Then:
"The Court: Wait just a minute. I think Mr. _____ is laboring with an objection."
A little later the same situation presented itself, when this occurred:
"The Court: Just a moment. Mr. _____ is a little bit slow in getting started, so we will have to give him a little chance to make his objection. Go ahead, Mr. _____, I can always tell from the motions you are making there is an objection about to come forth.
"Mr. _____: Yes, your honor.
"The Court: Now you have passed through the preliminary pain, give birth to it."
On another occasion the judge said of one of the counsel for the defense:
"The Court: Well, Mr. _____ has made that objection so many times that I think he ought to have it sustained at least once. *** I don’t want him to be utterly without hope of having that objection sustained some time during the trial."
One of defense counsel objected to the introduction in evidence of certain photographs. After a colloquy over the question whether it was necessary to call as a witness the photographer who took them, the following occurred:
"The Court: Well, it seems to me it is an idiotic objection, to be frank about it. All right, bring the photographer here, since they seem to want to make you a little more trouble. Do you want them to bring the camera here?
"Mr. _____: No.
"The Court: You want him to bring the same shoes he had on when he took the picture? How about the gum he was chewing? Do you want him to pick that up again? Just about as sensible. I haven’t much patience with an objection which is made just for the purpose of making objection, when there doesn’t seem to be a scintilla of sense in making them. A proper objection I have absolute respect for, of course. If a witness testifies a picture absolutely delineates that which he is testifying to, that certainly ought to be sufficient without insisting that the man who did the actual act of pressing the bulb be brought in to testify he pressed the bulb to the camera to take the picture."
While a witness for the defense was being cross-examined by the district attorney, this took place:
"Q. *** Are you a carpenter or a laborer? A. Why, I am a carpenter.
"Q. By the Court: Belong to the carpenter’s union? A. No, sir.
"Q. By a Deputy District Attorney: Well, I thought you said in answer to his question that you had been working either as a laborer or carpenter, or was I mistaken?
"The Court: You are not one of those scabs, then, some of the witnesses have referred to as connected with this work? A. Carpenter. I used to work at labor sometimes when I was a boy."
The owner of the property upon which the collapsed stand was constructed was a witness for the prosecution. After he testified to the consideration paid him for the use of the property and had said that he was on the stand at the time of the collapse:
"Q. By the Court: You had two broken legs of your own in addition to that, didn’t you? A. I had two broken legs. Q. That was a premium outside of the other consideration you got?"
One of the counsel for the defense objected at one point:
"These questions are leading.
"The Court: Oh, I don’t care if they are. That is an awful trivial objection, unless the question puts the answer directly in the mouth of the witness, but when you are questioning a man who is qualified as an expert I don’t see any necessity of consuming about five times the time that is necessary by beating around the bush. You might as well go right at the point and ask about the fact we are interested in."
We have presented sufficient to show a state of affairs which trial judges should not permit, and which may be pointed to as an example of what they should not do in the trial of lawsuits. If they will lend themselves to such methods, if they will so intemperately espouse the cause of the prosecution in criminal cases, no man charged with a penal offense is safe, whether he be guilty or innocent. Every defendant under such a charge is entitled to a fair trial on the facts, and not a trial on the temper or whimseys of the judge who sits in his case. Whatever the degree of guilt of appellant here, those who know the circumstances surrounding his conviction are likely to feel that the verdict resulted from the conduct of the judge and not from the evidence.
We have next to determine whether or not the errors found to exist in the record are of such a character, under the entire evidence, as to demand or warrant a reversal of the judgment. It is with great unwillingness, considering the extreme nature of the misconduct of the trial judge, after a studious scrutiny of the entire transcript that we say that the defendant was undoubtedly guilty, and therefore no miscarriage of justice has resulted from the errors committed by the trial court. Section 4½ of article 6 of the Constitution unquestionably relates to each particular case as it arises, and not to the harm done to the cause of administering justice. We therefore begrudgingly say that the construction of the grand stand was such that even to the nontechnical mind (the mind not trained in the strength and support of materials or the directions of applied force) it is established beyond doubt that, when the stand was filled to capacity, a tremendous load would be thrown in a forward direction by reason of the inclination of the upright supports; that, in order to overcome this forward thrust, it would be necessary to use more than an ordinary amount of transverse bracing in order to tie the parts together; and that this stand was insufficiently and negligently braced. Again, it would seem obvious that the test employed in this instance was no test at all for the reason that the load being applied only to one section would be distributed over the entire structure. There was no substantial evidence of any latent defect, therefore, when the stand fell with one-tenth of the load required by the safety factor of the ordinance, it is obvious that the stand was not completed as required by the ordinance, but in violation thereof. Assuming that it fell by reason of the filled ground testified to by defendant’s witnesses, the mudsills were not of the character sufficient to distribute the weight beyond the soft earth, as is required by a circumspect and careful construction, and, furthermore, the defendant freely admitted that he had not made that cautious inspection of the supporting earth required where human beings are to be seated. He, further, freely admitted the fact that he had put up a large sign indicating that any one using the grand stand did so at their own risk. We can hardly imagine why this notice was given unless the defendant had reason to apprehend a catastrophe. The plaintiff called numerous witnesses, who had been technically trained in the stresses and strains involved in construction work and the strength and support of material, all of whom concurred in the opinion that the stand was insufficient to carry a load of 975 people. The witnesses called by the defense in this respect were carpenters who had not received a technical education so far as the record discloses, and the expert witness Gardner, the record discloses, had done some carpenter work about 34 years prior to testifying, therefore we conclude that without the error complained of the jury could have done nothing else than to bring in a verdict of guilty, and that there is no evidence of a miscarriage of justice, as required by section 4½ of article 6 of the California Constitution.
This opinion should not be completed without calling attention to the fact that the error complained of in the admission of testimony respecting the injuries and the extent of injuries of other persons in the stand is largely minimized by the fact that defendant’s counsel (and counsel who prosecute this appeal did not represent defendant at the trial) brought out similar evidence in his direct examination of his own witnesses, and that one of his expert witnesses testified that the stand was insufficient to carry the load. The judgment and order appealed from are affirmed.
We concur: WORKS, P. J.; CRAIG, J.