Opinion
Rehearing Denied Dec. 9, 1930
Hearing Granted by Supreme Court. Dec. 22, 1930
Appeal from Superior Court, San Joaquin County; C.W. Miller, Judge.
W.S.J. Ranney was convicted of grand theft, and he appeals.
Reversed. COUNSEL
Gumpert & Mazzera and C.H. Hogan, all of Stockton, for appellant.
U.S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.
OPINION
SHIELDS, Justice pro tem.
The defendant was charged by indictment of the grand jury of San Joaquin county with the crime of grand theft. The indictment contained twenty-one counts. In addition, the defendant was charged with having been twice previously convicted of felony. Upon his arraignment defendant pleaded guilty to the charges of conviction of felony, and not guilty in all other particulars.
He was thereafter tried and convicted upon seven of the charges, the jury disagreeing as to the remaining counts. He moved for a new trial, which motion was denied, whereupon he was sentenced to imprisonment for the term prescribed by law. Defendant then prosecuted this appeal from the judgment and from the order denying his motion for a new trial.
Many points were made by the defendant in support of his appeal, the first one being that he was not permitted to examine the jurors, at the time the jury was being selected to conduct the trial, with reference to whether or not they would be influenced by the fact that he had been convicted of other felonies and would from that fact presume that he had been guilty of the crime for which they were about to try him, or whether or not, because of that fact, they would entertain any bias or prejudice against the defendant which might influence their verdict. The facts upon which this objection is made may be quite briefly stated.
When counsel for defendant was examining one of the prospective jurors, among other questions asked was whether the juror knew that the defendant had served two prison terms, one in a reform school in New York and one in the state prison at San Quentin. The district attorney objected to this question and the court sustained his objection. Counsel for defendant thereupon outlined his purpose in asking this question. He stated that it was only preliminary; that the defendant would take the witness stand in his own behalf and that he presumed that the district attorney would ask this question of the defendant for purposes of impeachment. He declared that he reserved the right "to question this jury *** as to whether or not they would regard an admission of those felonies as evidence in the case, and indulge in the presumption of guilt. We submit that this is one of the most vital questions that has been propounded to the jury. *** It is only to show the extent of his bias and prejudice." After interruption, counsel for defendant continued that he assumed that the district attorney would ask as to previous conviction of a felony for the purpose of impeaching the defendant’s credibility, and that what we "want to determine now (is) whether any juror will be biased or prejudiced in listening to the evidence by reason of the fact that the defendant had been twice previously convicted of felony."
After a question by the court, defendant’s attorney continued: "We are seeking to ascertain whether or not the jury, by reason of an admission on the part of the defendant of serving these two prior terms, would indulge in the presumption of guilt by reason of that fact alone. We can readily understand that the outside layman might be influenced, might be induced even to the extent of arriving at a verdict in this case on the basis of a past, or past convictions, and we are entitled to go into that fact in order to determine whether or not they would." The court thereupon announced that the objection would be sustained. Counsel then asked if the court’s ruling went "to the extent of prohibiting the defendant from questioning any or all of the jurors as to whether or not they would be influenced in their deliberations at all, by a statement of admission of prior conviction of a felony"? To this the court answered: "That is correct." We think that this action of the court and this ruling was clearly erroneous. "Nothing is better settled or more rational than that an indictment for one crime cannot be supported by proof of another." People v. Carpenter, 136 Cal. 391, 68 P. 1027, 1028. It is not proper to show the defendant "to have been guilty of some other offense, for the purpose of raising a presumption, either of law or fact, of his guilt in the case under consideration." People v. Sears, 119 Cal. 267, 51 P. 325, 327. "When a person is accused of crime, and placed upon trial, he cannot be required to defend himself against anything but the specific charge, and he cannot be compelled, under the rules of law, to maintain the honesty and integrity of his entire life." People v. Arlington, 123 Cal. 356, 55 P. 1003; 8 Cal.Jur. 58.
Evidence of other offenses than the one charged, except in exceptional cases not involved here, is incompetent as proof of the charge upon which an accused is on trial. If it gets before the jury by suggestion, or in connection with evidence otherwise competent, it must be disregarded by the jury, and the court, upon request, should definitely so instruct them. Whether or not a prospective juror will be influenced by knowledge of any such previous offense, whether he will be governed by the rule of law which rigidly excludes such a consideration, and whether or not if chosen as a juror, he will obey an instruction by the court to dismiss from his mind all consideration of any separate and different offense of which he may have obtained knowledge in any way, except for purposes of impeachment, is a question of vital importance to an accused person in the circumstances of the defendant here.
He is entitled to be tried by a fair and impartial jury, wholly free from bias or prejudice. Defendant knew that the fact of his previous convictions would be brought to the attention of the jury if they did not already know of it. He intended to be, and later was, a witness in his own behalf. He had a right to expect that the prosecution would bring out the fact that he had been twice convicted of a felony for the purpose of impeaching him. The defense which he had planned, and later presented, was interwoven with this fact, and required its disclosure. He did not gratuitously introduce this fact to the jury’s attention. There was no fact more fundamental to his defense than that he should select a jury which would not be biased by this fact, and regard it as evidence in the case from which they might find or presume his guilt of the charges upon which he was being tried. He had a right to inquire of the panel fully as to the existence of any such bias to enable him to secure his constitutional right of trial before a legally qualified jury.
The denial of that right seems so clearly erroneous as to require no citation of authorities to establish it. But the question has been definitely adjudicated. In a recent California case the defendant was charged with the crime of murder. Upon his first trial the jury disagreed, standing ten to two for conviction. Upon a retrial the attorney for the defendant sought to question the jury relative to their knowledge of the failure of the former jury to agree upon a verdict, and what influence, if any, the action of the former jury would have upon their verdict. The court sustained an objection to such questions and forbade counsel from further mentioning the former jury to the present jury. The defendant was convicted of manslaughter and upon appeal the Supreme Court said: "It is not clear from the record upon just what theory the court sustained the objection of the prosecution. We think the questions were proper, as the answers thereto would tend to show the existence or nonexistence of actual bias on the part of the jurors with reference to the case then on trial. If any of the jurors had heard the result of the former trial, and that the jury therein had stood ten for conviction and two for acquittal, we do not think it unreasonable to conclude that such a juror might be influenced by such knowledge, and that he might well conclude that, if ten out of twelve of the former members of the jury believed the appellant guilty, there was a strong probability of his guilt. Persons entertaining such opinions, we think it must be conceded, are not, and cannot be, fair and impartial jurors such as one accused of crime is entitled to have pass upon the accusations against him." People v. Carmichael, 198 Cal. 534, 246 P. 62, 66. Other reasoning in this case is peculiarly appropriate to the question before us. In concluding its discussion, the court say: "No authority has been called to our attention which can be construed as holding that section 4½ of article 6 of the Constitution can be relied upon to sustain the judgment herein. As we have already said, in our opinion it was prejudicial error for the court to refuse the appellant the right to examine the jurors as to the effect on their minds of the standing of the former jury." Holding that the ruling of the court deprived the defendant of a fundamental right, the court conclude by saying that: "It was never intended by this provision of the Constitution to take from the defendant in a criminal action his fundamental right to a jury trial or in any substantial manner to abridge this right." The judgment was reversed. People v. Carmichael, supra.
In a New York case there was an almost complete identity with the case before us. In that case the defendant was indicted upon a charge of grand larceny, the indictment also containing a charge of a prior conviction. At the trial counsel for defendant asked one of the prospective jurors if it should develop that the defendant had previously been convicted upon a charge of grand larceny "would that influence you in arriving at a verdict of guilt or innocence"? The district attorney objected to this question and, as in this case before us, his objection was sustained. It was stipulated that the record might show that the same question had been asked of each of the jurors, and that the objection to the same had been sustained.
After conviction an appeal was taken and the Supreme Court held this ruling of the trial court to have been erroneous, and for that reason reversed the judgment. In announcing its decision the court said:
"I cannot escape the conviction that this question was competent, and that the defendant should have been allowed to ask of each juror whether or not the fact that he had been convicted of a former crime would influence him in determining the question as to his guilt or innocence of the particular crime with which he was charged. It is quite true that the jurors were bound in determining the grade of crime to consider whether or not the defendant had been convicted of a felony; and it is also quite true that, if the defendant offered himself as a witness upon the trial, the jury was justified in considering his former conviction in determining the weight to be given to his testimony. It is, however, a fundamental principle of the English common law that a former conviction is not properly to be considered by a jury in determining whether or not a defendant is guilty of the crime charged. If a juror was so constituted that in determining the question of the guilt or innocence of a defendant of the crime charged he would not be able to eliminate the impression of guilt produced upon his mind by the fact of a former conviction so that it would influence his determination of the guilt of the defendant of the crime charged, he could not try that issue impartially and without prejudice to the substantial rights of the defendant; and that that is not an impossible mental condition is shown in this case by the fact that other of the jurors voluntarily stated upon their examination as to their competency as jurors that the prior conviction would probably affect them in making up their minds as to his guilt or innocence, and, when that appeared, the juror was excluded. The right of a defendant to a fair and impartial jury who will determine the question as to his guilt or innocence solely upon the testimony, and without prejudice or bias, is one that the courts are bound to uphold, and which the court below was bound to protect.
"The defendant had the right to have the question as to whether or not each particular juror was an impartial juror determined by the court, and was entitled to a reasonable examination of each proposed juror so that that fact could be intelligently determined. It was an important element in determining the question as to the competency of a juror to ascertain whether the former conviction of the defendant would influence him when he came to determine the guilt or innocence of the defendant; and, if it appeared that a juror would not or could not weigh the evidence in regard to the commission of the crime charged without being influenced by the fact that the defendant had been convicted of a former crime, he was not an impartial juror, and the challenge should have been sustained, and that fact could only be ascertained by an examination of the juror as to the effect upon his mind of the former conviction."
People v. Hosier, 132 A.D. 146, 116 N.Y.S. 911, 914, affirmed by the Court of Appeals, 196 N.Y. 506, 89 N.E. 1107.
We have quoted extensively from this case, as its reasoning renders further discussion of this question unnecessary. We might add the cases of People v. Estorga, 206 Cal. 81, 273 P. 575, and People v. Barrett, 207 Cal. 47, 276 P. 1003, 1004, as illustrating the emphasis which our courts put upon the right of an accused person to sift the minds of proposed jurors in an effort to develop possible grounds of challenge for cause.
It was suggested in the case before us that defendant had not protected his rights in this matter, as the question asked did not necessarily involve a decision of the question now raised. But counsel repeatedly stated that the question was only preliminary, and continued: "We are seeking to ascertain whether or not the jury, by reason of an admission on the part of the defendant of serving these two prior terms, would indulge in the presumption of guilt by reason of that fact alone." This was an appeal to the court to be allowed to exercise a clear legal right. It was without question specific enough to inform the court, and to raise the question here involved. But if there was anything lacking in the scope of the question asked and the request made, it was completely supplied near the conclusion of the examination of the juror in whose case the question was first raised. Counsel for defendant then said: "In order to protect the record, if counsel decide to propound this other question in some variety or form, I hope the court will understand that counsel is not endeavoring to be disrespectful at all, but I desire a ruling on it." The court thereupon interrupted counsel and stated: "You are fully protected by the record in that matter." Counsel seemed not to have failed in any degree to present his point to the court, and to maintain his objection to the court’s ruling. But if he had the court’s attitude here would be as it was in People v. Barrett, supra, where they say: "We are not prepared to say that the prejudicial character of the error was in any way lessened or destroyed by defense counsel’s rather passive acceptance of, and virtual acquiescence in, the course dictated by the lower court." Here there is nothing to excuse in counsel. He definitely asked to be permitted to conduct an examination of prospective jurors to which he was entitled, and his request was definitely denied.
Other questions raised on this appeal relate to instructions given and refused. One instruction given by the court was erroneous, particularly so in the circumstances of this case. In it the jury was told: "If the jury find to a moral certainty and beyond a reasonable doubt that the defendant W.S.J. Ranney did, at and in the County of San Joaquin, State of California, and on or about the 20th day of July, 1926, unlawfully take the property of the Harris Manufacturing Company *** it will be your duty to bring in a verdict of guilty of grand theft, a felony, as charged and set out in the first count of the indictment on file herein; otherwise you should acquit him on said first count." A like instruction was read in reference to each of the remaining twenty counts of the indictment. This instruction did not define unlawful; it did not instruct the jury that before they could convict the defendant they must also have found that the "taking" was felonious, or otherwise criminal. It made no reference to any distinction between what was criminally unlawful and civilly unlawful. Under the instruction they were to convict the defendant in either case.
The jury were told twenty-one times by this instruction that if they found that the defendant unlawfully took the property involved that they should find him guilty of the crime charged. But there are many acts of "taking" of property which are unlawful but are not criminal, and which would not justify a conviction of felony. Section 511 of the Penal Code illustrates this, wherein it provides that a certain appropriation of property is not criminal if made under a claim of title "even though such claim is untenable," in other words, "unlawful." The law is so stated in People v. Lapique, 120 Cal. 25, 52 P. 40. So in People v. Ephraim, 77 Cal.App. 29, 245 P. 769, 772, in a prosecution for embezzlement, the court say that "it was incumbent upon the appellant to prove that she had appropriated the money openly and avowedly and under a claim made in good faith, but it was not necessary for her to prove that her claim was a valid one upon which she might recover in law."
Countless decisions might be cited to show that an act may be unlawful and not be penal. Words and Phrases, First, Second, and Third Series, Unlawful; 39 Cyc. 829. The word unlawful in connection with a contract for the use of a machine, does not mean a criminal use, but any use in violation of the contract. Cortelyou v. Charles Eneu Johnson Co. (C.C.) 138 F. 110. Unlawful in relation to the acts of a corporation may mean acts only ultra vires. Dunbar v. Am. Tel. & Tel. Co., 238 Ill. 456, 87 N.E. 521. Unlawful is not synonymous with criminal, "To speak of an act as unlawful is not equivalent to saying it has been denounced as a crime. ‘Every criminal act is illegal or unlawful, but illegal or unlawful acts may not be criminal.’ " State v. Tinkler, 72 Kan. 262, 83 P. 830. So the use of the word "unlawfully" in an instruction relative to embezzlement will not supply the place of the word feloniously or fraudulently. "Many things are unlawfully done which are not crimes, because the criminal intent is wanting." State v. Cunningham, 154 Mo. 161, 55 S.W. 282, 287. When the broad meaning of the word "unlawful" is thus understood, the error of an instruction which directs the jury to convict upon the mere finding that the defendant had committed an unlawful act, is very apparent.
The instruction complained of here was particularly inappropriate to the facts of this case, which in the briefest way and according to the testimony of the defendant were these. Defendant was acting as manager of the Harris Manufacturing Company. He sold some $83,500 worth of preferred stock which at the time stood in the name of four of the directors of the company, the sale being made in the interest of and for the benefit of the company. These four directors individually promised and agreed to pay him for his services in selling the stock a commission of 15 per cent. which was to be paid out of the funds of the company, from time to time, as the finances of the company might permit. The four directors required, however, that the money was to be taken without the knowledge of the remaining director, a Mr. Henry. The sums taken as specified in each of the seven counts upon which he was convicted, as defendant testified, were part of this 15 per cent. commission which he had been so authorized to withdraw. Defendant relied upon this authority, as he claimed it to exist, to justify his admitted taking of the money. It was the theory of the prosecution that the four directors never made any such promise, and that it would have been an unlawful transaction had they done so. The real question before the jury in such a state of the evidence and in finding upon each of the counts in the indictment was as to whether or not the defendant fraudulently and with a felonious intent appropriated the money as charged in the respective counts. It will be readily seen that if the four directors promised the defendant the 15 per cent. commission and told him to take it as he did, even if they had no legal right to make such promise or to authorize such taking, if the defendant believed that they had, and acting upon such claimed authority, he took the money in good faith, he would clearly be committing no crime. But his taking would have just as clearly been "unlawful"; and the jury were instructed to convict him if the taking were unlawful.
So stated, the error in the instruction is obvious. It is contended, however, that other instructions given in connection with the one now in question, supplied the deficiencies, and together with it, completed a fair presentation of the law. It is doubtful if any separate or detached instruction could be held to have cured the error in this instruction, given at the end of the charge, and twenty-one times repeated. It contains a definite direction, upon the finding of a certain fact, to find the defendant guilty. It is the rule that in the case of instructions which so direct a conviction, the instruction must state all of the conditions necessary to a legal conviction, which this instruction admittedly did not. But waiving these considerations, the qualifying instruction relied upon by the respondent is insufficient for that purpose. The greater portion of this latter instruction (page 1652, vol. 5, Reporter’s transcript) is practically in the terms of section 511, Penal Code. By it the jury was told that if a person in converting property to his own use does so under a bona fide claim of title thereto, he is not guilty of the crime of grand theft, although his claim of title was not good. Continuing, the court further instructed: "If you find *** that the defendant appropriated property owned by the Harris Manufacturing Company and by said company entrusted to said defendant, and the defendant laid claim to the property so appropriated, such claim of title, if preferred in good faith, is a sufficient defense, even though the claim is untenable."
So far this instruction is a correct statement of the law, and directly applicable to the facts of this case. It so far differs from the instruction in which the jury were told that if they found that the defendant "unlawfully" took the sums mentioned in the various counts of the indictment, that they should convict him, as to tell them that even if his claim of title to the property "was not good" or "untenable," if made in good faith, that they should not convict him. Whether or not this instruction so far supplied the deficiencies of the first instruction, and limited the forces of the specific direction to convict the defendant, if the jury found that he had "unlawfully" taken the sums withheld, we do not have to decide, for reasons which we will briefly discuss. At the end of and concluding this instruction the court said: "But this provision would not excuse the unlawful retention of the property of the Harris Manufacturing Company to offset or pay demands held against it by defendant." This concluding part of the instruction should not have been given; there is no theory of the case to which it is appropriate. The prosecution contended that the defendant took the sums mentioned in the different counts of the indictment without any right or authority whatever. Defendant contended, not that he retained the money appropriated by him to pay any debt or claim which he had against the company, but that he took it as provided in the first portion of the above instruction, and as provided in section 511 of the Penal Code, under a claim of title to it, and in pursuance of a definite direction of four of the directors of the company, instructing him to do so.
Ordinarily the giving of an irrelevant instruction is of no consequence in a case, and the giving of this portion of the instruction given here would not constitute error in itself. But in this case it could not fail to have misled the jury. There having been no theory of the case to which it was appropriate, the jury might quite properly have taken it as having been given as applicable to the facts of the case they were considering. So understood the jury were told, substantially, by the first portion of the instruction that if the defendant took the property under claim of right, and in good faith although unlawfully he should be excused, and in the second and concluding portion, that if he retained the property unlawfully, he should not be excused. Such an instruction so confused and apparently contradictory cannot be held to have explained and properly qualified the direct instruction first above mentioned, to convict the defendant if the jury found that he took the property in question unlawfully. Other instructions relied upon to supplement and qualify the instruction first above mentioned need not here be referred to. It is enough to say that in no portion of the charge was the jury told that the taking, or retention of the money mentioned in the indictment, must, in any aspect of the case, have been fraudulent or felonious before the defendant could have been convicted. State v. Cunningham, 154 Mo. 161, 55 S.W. 282.
Another assignment of error was based upon the refusal of the court to give the following instruction requested by the defendant: "You are instructed that the law indulges no presumption, nor is a jury permitted to indulge in any presumption that it is more probable that a person previously convicted of felony will commit a subsequent one. The fact that the defendant W.S.J. Ranney was previously convicted of a felony raises absolutely no presumption against him that he committed any offense as charged in the indictment." This instruction should have been given. During the course of the trial it had many times been brought to the attention of the jury that the defendant had been previously convicted upon two charges of felony. The jury was instructed that the defendant as a witness might "be impeached by proof that he had been convicted of a felony or felonies." He was entitled to have the jury instructed that that was as far as they could go in considering such evidence, and that the fact of these convictions could not in any way be used by them as evidence of his guilt of the charges upon which he was on trial. This was a substantial right of the defendant which he was improperly denied. As the case will have to be retried for the reasons above stated, other contentions advanced by the defendant to that end need not be considered.
The order and judgment are reversed.
On Petition For Rehearing.
PER CURIAM.
By some oversight in examining the record in this cause the petition for rehearing with reference to the instruction given to the jury by the trial court, heretofore held prejudicially erroneous, contains the following language: "But in considering the propriety of the giving of that instruction, this court has unconsciously stepped into error and wholly overlooked the fact that the twenty-one instructions were given at the request of the defendant." An examination of the clerk’s record discloses that this statement is not in accordance with what is there disclosed.
A comparison between the twenty-one instructions given by the court at the request of the prosecution, and the twenty-one instructions requested by the defendant and refused by the court, is all that is necessary to clearly exhibit the difference between the instructions given and the instructions asked by the defendant and refused by the court. The instructions requested by the defendant should have been given. They did not state the law as favorably to the defendant as might have been requested. On the other hand, the instructions given by the trial court did not state the factors justifying a verdict of guilty. The respondent’s petition for rehearing demonstrates the vice of the instruction under consideration. The instruction referred to as requested by the defendant’s counsel clearly stated an elementary principle of law, to-wit, that if the money was not unlawfully taken, the defendant was entitled to an acquittal. By the instruction requested by the people and given to the jury, the elimination of the words "do not" in the beginning of the instruction as worded by the people, and the changing of the words "not guilty" to read "guilty," in the concluding portion of the instruction as requested by the people, the jury was incorrectly advised that if the money was simply unlawfully taken, defendant should be convicted. Such is not the law. If not unlawfully taken, the defendant was certainly entitled to a verdict of not guilty. But before finding the defendant guilty the jury must not only be satisfied that the money was unlawfully taken, but also that it was feloniously taken. By the formula instruction as requested by the people, the jury was advised that if the people established that the money was unlawfully taken, a verdict of guilty should be returned. The people were not entitled to any such instruction. It was necessary for the people to establish beyond a reasonable doubt that in addition to being unlawfully taken, the money must also have been feloniously taken. The petition for rehearing overlooks the fact that the instruction as requested by the people and given by the court, is neither a full nor a correct statement of the law. By placing the given instruction as requested by the people, in contrast with the refused instruction as requested by the defendant, the error in the instruction is luminously disclosed. The given instruction reads: "If the jury find, to a moral certainty and beyond a reasonable doubt, that defendant W.S.J. Ranney did, at and in the County of San Joaquin, etc., *** unlawfully take the property of the Harris Manufacturing Company *** then I charge you it will be your duty to bring in a verdict of guilty of grand theft." The refused instruction requested by the people is worded as follows: "If the jury do not find, to a moral certainty and beyond a reasonable doubt, that the defendant W.S.J. Ranney did, at the County of San Joaquin, etc., *** unlawfully take the property of Harris Manufacturing Company *** then I charge you it will be your duty to bring in a verdict of not guilty of grand theft." The elimination of the words "do not" thus stand out in bold relief, telling the jury that all the prosecution had to do was to prove that the money was unlawfully taken. As we have said, such is not the law.
The petition for rehearing is denied.