Opinion
Hearing Granted by Supreme Court May 3, 1929
Appeal from Superior Court, Los Angeles County; Emmet H. Wilson, Judge.
Dallas D. Van Cleave was convicted of burglary, and he appeals. Reversed. COUNSEL
Irvin C. Taplin, Ivan Miller, and Harry M. Hunt, all of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., John L. Flynn, Deputy Atty. Gen., and John D. Richer, of Los Angeles, for the People.
OPINION
WORKS, P.J.
Defendant was convicted of the crime of burglary. He appeals from the judgment and from an order of the trial court denying his motion for a new trial.
It is first contended by appellant that the evidence was insufficient to support the verdict. The complaining witness, a woman, left an apartment in which she resided at about 10 o’clock on a certain evening. Before she departed, she saw in their accustomed places in the apartment certain articles which were ascertained, later in the night, to have been abstracted therefrom. It was because of the disappearance of these articles that the charge was made against appellant upon which he was convicted. When the complaining witness left her apartment, she drove in her automobile to a certain residence, where she met appellant, who theretofore had been her associate and friend, and some other persons, among whom was one Akins. Shortly after she arrived at this place of meeting, the complaining witness discovered that a dog she had brought with her had disappeared. She then gave to appellant a bunch of keys, including those to her car, to the exterior door of the apartment house in which she lived, to her apartment, and to her trunk, and she asked appellant to drive her car about the neighborhood of the residence mentioned, in an endeavor to find the missing dog. This was the purpose of the delivery of the keys. Appellant immediately departed upon the quest, taking Akins with him. The two returned, after an absence of from 25 to 45 minutes, with the dog. After some considerable time spent at the residence, and after having been to a restaurant for supper, together with Akins and a fourth person, appellant and the prosecuting witness drove to the latter’s apartment and entered it by means of her keys, which had meanwhile been returned to her. They reached the apartment at about 2:30 in the morning. From certain appearances about the rooms it was apparent to the prosecuting witness that the place had been entered during her absence. She at once unlocked her trunk with a key on the bunch she had earlier intrusted to appellant. She testified that four diamond rings, of the value of $4,000, together with $140 in currency, had been taken from drawers in the trunk.
The evidence tended to show that the burglar had entered the apartment by means of a key, as there was no indication that the place had been broken into, in the ordinary acceptation of that term. The drawers in the trunk, five in number, were held in place by a metal bar which passed across their front and which it was necessary to move before they could be opened. The police found a print of appellant’s thumb upon this bar. Other finger prints were upon it also, but none of them could be identified or plainly discerned. All the prints, except that alone of appellant’s thumb, were, in the language of an expert upon the witness stand, but "smears." Before the night on which the burglary occurred, appellant was familiar with the "lay" of the apartment of the prosecuting witness. He had visited her there at least as often as every other day for a period of two months. Particularly, according to some of the evidence, he was familiar with the trunk and the mechanism by means of which it was opened, for he had often gone into it to get articles desired by the complaining witness when he was in the apartment with her, or to get articles which he himself desired. Indeed, it is contended by appellant that the sole distinguishable finger print on the metal bar was made by him upon some occasion earlier than the night upon which the burglary occurred. It will be remembered that the owner of the trunk had opened the drawers before she left her apartment at 10 o’clock and had seen the rings and money in their places. She had been compelled, necessarily, to handle the metal bar in order to open the drawers. Under all these circumstances the inference is perhaps possible that appellant’s thumb print was impressed on the bar between 10 in the evening and 2:30 in the early morning of the night upon which the burglary was committed, although more will be said on that subject later. There was evidence also that, after appellant’s arrest, and while he was in the county jail, he said to a police officer and to the complaining witness: "If you would let me out for twenty-four hours I believe I can get the diamonds back for you." It was testified by the officer that he further said that, if he was unable to produce the diamonds, "he would pay her back in the way of an installment from time to time." Appellant was not allowed to leave the jail, because he was unwilling to go after the diamonds in the company of an officer. We think there was sufficient evidence to support the verdict.
During the hearing of the cause, the trial judge, in the presence of the jury and in the hearing of such persons as may have been in the courtroom, indulged in language of a most unusual character, so unusual and improper that our duty requires that we accord it some notice. In considering the form of the information under which appellant was prosecuted, and in determining to grant leave to the district attorney to amend it, the judge had occasion to refer to an opinion of one of the divisions of the District Court of Appeal rendered less than 40 days before the day upon which the judge spoke. We mention this period of time for the reason that the circumstance shows that the cause in which the opinion was rendered was still pending, as under the law as it then stood the judgment pronounced in it did not become final until 60 days after the filing of the opinion. Indeed, the judge referred to the opinion as one rendered in a case which had been "decided by the District Court of Appeal, but is not yet final." Immediately after this reference, he proceeded: "We don’t know what the Supreme Court may do with it if it goes to the Supreme Court, inasmuch as it is not final, and it seems to me to do violence to every process of reasoning, and for that reason I should decline entirely to follow it, if I were put to a place where I had to decide either one thing or another, because I think the reasoning there is absolutely absurd." The judge then proceeded to an elaborate exposition of his view that the opinion was absurd, citing many examples whereby to illustrate his meaning. He characterized the opinion as "just as absurd" as one of the examples he gave. He said also, in referring to the view he had adopted, in opposition to that expressed in the opinion: "I am drawn to that conclusion by using what I think is ordinary common sense." In his strictures upon the opinion the trial judge was guilty of a breach of the ethics which govern the conduct of the judiciary. If he had addressed to the justices of the Supreme Court a letter containing what he said from his bench in an open courtroom, he might have been adjudged guilty of a contempt of that court on two distinct grounds. Friedlander v. Sumner Gold Co., 61 Cal. 116; In re Arnold (Cal.Sup.) 267 P. 316. Irrespective of this particular question, however, the judge’s remarks were an offense against ethics, because they showed disrespect for the justices of the District Court of Appeal who had rendered the opinion against which he pronounced his diatribe. Section 282 of the Code of Civil Procedure provides that it is the duty of an attorney to "maintain the respect due to the courts *** and judicial officers," and no lawyer is released from this obligation merely because he has become a judge. If one of the counsel in the present case had used at the trial the same language which the judge uttered from the bench, it would have been the plain duty of the latter to reprimand him for it. Indeed, if the counsel had so far forgotten himself as to speak in similar terms of one of the judges of the superior court, the trial judge could not justly have overlooked the assault upon his associate. We have occasionally found it necessary to rebuke counsel, at the bar of this court, for expressions directed at judges of the superior court, in no stronger terms than the language uttered from the bench by the judge before whom this cause was tried and aimed at the District Court of Appeal. If such offenses are to be noticed when committed by attorneys at the bar, they are deserving of even more severe censure when perpetrated by a judge on the bench. The remarks of the judge who tried this action were reprehensible to a degree. They were calculated to bring the courts and the administration of justice into disrepute. They were a violation of the duty of the judge, both as an attorney at law and as a judicial officer.
The discussion contained in the last preceding paragraph, and the conclusion announced in it, were made necessary, not only by the remarks of the judge there mentioned, but because he continued further to offend. Immediately following the comment we have already noticed, he uttered language which appellant assigns as prejudicial misconduct, thus: "They [the legislature, in adopting certain code amendments in 1927], want to get away from petty technicalities that are raised. Unfortunately, I think there are some judges who try to find the smallest loop-hole that can be found in order to give the defendant the benefit of every reasonable doubt, which is given by the law anyhow; and the smallest error seems to be sufficient to justify the courts in reversing decisions or in granting new trials. Now, my mind has not run along that line. Maybe I am a little too extreme the other way, but I feel this, that if a defendant is informed by the information in language that can be understood by persons of reasonable and ordinary understanding, then he is enabled to know just what charge he has to meet, and I think that is sufficient. And I think further that in a trial of a case the court is here to get the facts and not to obscure the facts, not to hide them, not to mix up a case so when we get through nobody knows what the case is about. I think all the facts, all the pertinent facts relating to a case should go before a court or a jury, no matter whether it is a civil or a criminal case or whether it is tried by a court or by a jury. Now, I am stating this because of the decision in this case [decided by the District Court of Appeal]. The Supreme Court may take a different view of it if a rehearing is granted; but if a rehearing is not applied for, or, if applied for, it is not granted, then that becomes the law of the state, and I do not believe that it is necessary to take any chances with an information where by amending it in this way it can satisfy the most technical mind that might be called upon to decide this case at any further stage of the proceedings." While the judge showed very bad taste and violated the duties of his position in employing this language, we think there was no misconduct of which appellant may complain. While the remarks besmirched the courts, practically wholesale, we can see nothing in them which was prejudicial to appellant. It is worthy of note that the remarks were not assigned as misconduct at the trial.
Another claim is made that the trial judge was guilty of misconduct. A witness for the defense, a Mrs. Howard, was on the stand when the time for a noon recess arrived. As the recess was about to be taken, and after the judge had given the usual admonition to the jury, counsel on both sides joined in the unusual request that "this witness be instructed not to talk about this trial during the recess." Thereupon the judge said to the witness: "You are instructed not to discuss with any one or allow any one to discuss with you any subject connected with this trial between now and 2:00 o’clock, when you resume the witness stand." Some time after Mrs. Howard had taken the stand following the recess, the district attorney, while conducting his cross-examination, charged in his questions that she had answered interrogations which she had failed to answer before noon, or had answered them differently. The officer then inquired whether she had talked with any one during the recess, the trial judge examined her at some length upon the same subject, and it seemed to appear that she had indulged in some conversation with at least two persons. It was suggested by counsel that the judge ask her the specific question whether she had conversed about the case, and it was stated that she had been admonished not to talk upon that subject. The judge then said: "I think that was made clear. At the request of both counsel the court admonished her to that effect, and I myself saw her talking in the back of the courtroom with Mrs. Van Cleave, the wife of the defendant, after court adjourned and while counsel was making an offer of proof, and also saw her walk into the courtroom with the lady dressed in black sitting in the front row; I don’t know who she is, but they came into the courtroom together. Is that the mother of the defendant? It is this statement of the judge which is assigned as misconduct. After making the statement, the judge questioned the witness further, and it developed plainly that she had talked with the two persons named by him, but she denied that her conversations were in relation to the case. It also transpired that the "lady dressed in black" was the mother of appellant. The judge was in error in making the statement to which exception is taken. The matters of fact recited by him, if given a place in the record at all, should have come from the mouth of a witness, and he was no witness. He was neither called as a witness nor was he sworn. He could have become a witness, of course, but a judge should not be put even into such a position except as a matter of final necessity, especially in a criminal case, where there is always a likelihood that the judge who is made a witness will be deemed by the jury to have espoused one side or the other in the controversy being tried before him. The statements of fact made by the judge were intrinsically harmless. He said merely that he had seen the witness talking with the wife and mother of appellant, and she herself admitted that she had talked with them. Notwithstanding this truth, we think the remarks of the court constituted misconduct. Taking the context, as shown by the record, we think the jury must have believed that the judge held the view that the conversation related to the facts of the case. His remarks, therefore, operated to impeach the witness in the estimation of the jury. It is true that his observations were not assigned as misconduct at the trial, but we doubt whether their effect could have been wholly removed by an admonition to disregard them. When a jury believes that a judge has embraced the cause of the prosecution in a criminal case, it is most difficult to remove the impression.
After appellant’s arrest, his finger prints were taken by an expert in the police department. The expert testified that the distinguishable thumb print on the metal bar which held in place the drawers in the trunk of the complaining witness was the counterpart of a thumb print taken by himself from appellant, and that it was made by appellant. Some time later the prosecution offered in evidence finger prints upon a card found in the identification bureau of the police department, and bearing the name of appellant. The expert testified, over the objections of appellant, that he had examined this card as a part of the investigation leading up to the arrest of appellant, and that a thumb print upon it was made by the same thumb which made the print on the metal bar and the one taken by him from appellant after his arrest. The finger prints on the card were taken at some time before the burglary was committed with which appellant was charged and for which he was convicted in the present action. The card was admitted in evidence over the objection of appellant. This was error. The exhibit was offered merely because it was inspected by the finger print expert during the investigation which preceded appellant’s arrest. It was not admissible for that reason, nor can we conceive of any other ground upon which it was entitled to a place in the record, and it demonstrated to the jury that appellant once before had been in the hands of the police.
Appellant asked the trial judge to give five instructions, each of which, he says, was designed to inform the jury "that conviction on circumstantial evidence must exclude any and every reasonable hypothesis of innocence based on the adduced facts," and each of them was refused. We think the proffered instructions, although they were differently phrased, related only to the question of reasonable doubt, and the judge instructed the jury amply upon that subject. The requested instructions were therefore unnecessary.
In order to determine whether there has probably been a miscarriage of justice because of the errors committed at the trial, and in accordance with the provisions of section 4½ of article 6 of the Constitution, we have examined the entire cause, including the evidence. It will be observed that, with the exception of the testimony to the effect that appellant, after his arrest, made an offer to return the stolen diamonds if he were released, or to pay for them in installments, the evidence is purely circumstantial. Let us consider this excepted testimony first. Appellant denies that he made the offer. Not only so, but the testimony came from a police officer who said that the offer was made in the presence of the complaining witness, and she did not testify on the subject. The testimony concerning appellant’s thumb print on the metal bar of the trunk was not as satisfactory as the prosecution might have desired. The trunk was of the wardrobe variety. It stood on end when it was to be opened. One side of it was arranged to accommodate clothing on hangers. The other side was completely occupied by five drawers, extending from top to bottom of the side. It was from the second of these drawers that the rings and money were taken. The metal bar ran from top to bottom of the trunk and extended, when in place, across one end of the five drawers. It was fastened at the top by a lock. The sole distinguishable finger print, that of appellant’s thumb, was found near this lock. The other prints, "smears," as the expert called them, were at various places along the bar, and it is to be noticed that the record fails to show just where any of them was located and especially whether any of them was under the thumb print of appellant. It is particularly worthy of note that the expert declared that he could not determine whether the print of appellant’s thumb was impressed upon the bar before or after any other of the prints upon it. Appellant denied strenuously that he committed the burglary, and in the denial he was fully supported by Akins.
One other circumstance of the case deserves mention. Appellant was a married man, but it is evident from the record that the complaining witness was his paramour. The alleged burglary was committed on the night of July 11. Appellant’s wife had left him on July 2 or 3. Before the burglary she had caused divorce papers to be served upon him. On the night of the burglary, appellant occupied the apartment of the complaining witness with her, and she drove him to another place in the morning. On this ride, before any charge was made against him and before the record shows that he was suspected of the burglary, appellant says he told the complaining witness that he was to go that morning to the office of his wife’s counsel in order to effect, if possible, a reconciliation with her. He says that the complaining witness asked him not to do so. The mother of appellant, with whom the complaining witness was well acquainted, and another witness, testified that the complaining witness said, later in the same day, that things had gone so far between her and appellant that, if he returned to his wife, he would be sorry, that she would see that he never lived with her. Akins testified that on this same occasion the complaining witness said that appellant had been "cheating" on her and that she would "fix him" for it. Appellant and his wife had apparently become reconciled at the time of the trial, as there was testimony that they were then living together.
It will be seen from all these circumstances that the case was a close one. It is quite likely that a miscarriage of justice has resulted from the errors committed at the trial. Appellant must have been harmed materially by the reception in evidence of the old finger print record found in the police archives. It is quite probable that this item of damaging evidence turned the scale against him.
Judgment and order reversed.
We concur: CRAIG, J.; IRA F. THOMPSON, J.