People v. Nichols

The defendant was indicted, tried, and convicted of the offense of unlawfully selling intoxicating liquors contrary to the provisions of the Wright Act, on or about the twenty-seventh day of April, 1924, at the county of Sacramento, state of California. His motion for a new trial having been denied, he appeals from said order and the judgment pronounced against him in this cause.

It appears that the defendant is the proprietor of a certain roadhouse, known and commonly called the “Rainbow Inn,” situate on the Folsom Boulevard at a point where said boulevard is intersected by the Fair Oaks highway.

As grounds for reversal, the appellant alleges misconduct by the trial court consisting of numerous remarks and questions propounded to various witnesses during the course of the trial; also, that the court misdirected the jury in matters of law.

The testimony shows that on or about the twenty-seventh day of April, 1924, A. O. Baker and W. S. Russell, the prosecuting witnesses in this cause, accompanied by two women, names not disclosed, identification not furnished, went to the roadhouse kept by the defendant, named and

During the course of the trial the trial court participated to a considerable extent in the examination of witnesses and added some comments which are assigned- as error, but, for the reasons hereafter given, we do not need to set them all out in detail. Some of them, however, must be considered. While the witness McWilliams was on the witness-stand, the record shows the following: ‘ (By Mr. Henderson) : Q. Did you have any conversation with Mrs. Nichols about their condition at that time? A. No, sir. Q. You did not mention anything to her about it? A. No, sir. Q. It didn’t excite your curiosity, I take it, at all, that two women on a Sunday evening, and two men came in there so drunk they staggered? Mr. Johnson: Just a moment. I object to that as an improper question. The Court: The objection is overruled. He testified to a condition here, and he testified whether or not they discussed it at that time. They have a right to ask that.” (The question before referred to was not answered.) The witness then testified as to the

It thus clearly appears from the transcript that the witness had stated in so many words “my sister told me it was one of the women” before counsel repeated her testimony, and that the remarks of the court that the witness had been given a cue, were not well-founded, and the testimony of the witness exposed to the possibility of being lowered in the estimation of the jury by the comments of the court, as to how the witness was being assisted by counsel. [4] Imputations upon the good faith of counsel for the defendant, made in the presence of the jury, certainly do not help the cause of the defendant, or tend to give the defendant that fair and impartial trial to which everyone, no matter how guilty, is entitled. We do not wish to be understood as holding that the judge of a trial court is to act merely as an umpire between two contestants and not to direct the course of the trial, but it is nevertheless true that every remark made by the trial court tending to disparage either party to the cause, has more or less effect upon the jury, unskilled as a rule in court proceedings, and may be said always ready to accept an intimation from the court as to what their verdict should be. In connection with the errors which we have pointed out, and in view of the fact that the transcript shows that the testimony largely preponderates in favor of

During the course of its instructions to the trial jury the court gave the following: “While you are not to hesitate at giving this (defense of alibi) as a defense full weight, that conclusive effect to which, when established, it is justly entitled, either .as entirely satisfying you of the innocence of the defendant or as creating the reasonable doubt which entitles the defendant to an acquittal still, you are to scrutinize the testimony offered in support of an alibi with care, that you may be satisfied that a fabricated defense is not being imposed upon you.”

In support of the giving of the above the People rely upon ' the case of People v. Barr, 55 Cal. App. 321 [ 203 Pac. 827 ], where a similar instruction was given and was held not to constitute reversible error. In that case, however, other cases holding the giving of such instruction to be erroneous appear not to have been considered. It is also pointed out that such an instruction should not be given. [5] Under the provisions of section 4% of article VI of the state constitution, whether the giving of an erroneous instruction does or does not constitute reversible error depends in large measure upon the conclusion of the court of appeal as to whether there has or has not been a miscarriage of justice by reason thereof. If it appears to the appellate court that the conclusion of the jury would have been the same with or without the instruction, then, and in that case, it cannot be said that a miscarriage of justice has resulted, but, where there is a strong conflict in the evidence and the determination of the cause depends upon the credibility to be given to certain witnesses by the jury, and the court gives an erroneous instruction which tends to disparage such witnesses in the estimation of the jury, then and in that case we think that the people are not entitled to rely upon the provisions of the constitutional provision referred to, but that the defendant has not, under such circumstances, been given a fair and impartial trial to which all persons accused of crime are entitled.

This court, in a very recent case, had occasion to review a similar instruction and to point out the manner in which it invades the rights óf a defendant. We refer to the ease

“A similar instruction was considered in People v. Lee Gam, 69 Cal. 552 , 554 [ 11 Pac. 183 , 184], where the court said: ‘Taking the charge as a whole, and giving it an unstrained interpretation, it does not appear that the jury were instructed upon the weight of the evidence.’ In People v. Levine, 85 Cal. 39 , 42 [ 22 Pac. 969 , 24 Pac. 631 ], it is said: ‘The defense of alibi is, in our judgment, not one requiring that the evidence given in support of it should be scrutinized otherwise or differently from that given in support of any other issue in a cause. ’ In People v. Lattimore, 86 Cal. 403 , 405 [ 24 Pac. 1091 ], it is said: ‘If trial courts will cease to give this particular form of instruction, the ends of justice will be equally subserved, and the administration of the laws less embarrassed. ’ In People v. Roberts, 122 Cal. 377 , 378 [ 65 Pac. 137 ], the trial court had instructed the jury that ‘when satisfactorily proven,’ an alibi is a good defense. The Supreme Court said: ‘When a jury is told that any particular fact must be established to their satisfaction, such statement can only mean that such fact must be established at least by a preponderance of evidence; yet there is no such burden- cast upon a defendant charged with a crime, except in certain particular instances which are in no sense presented here. ... It is thus apparent that the alibi, to be efficacious to a. defendant, need not be “satisfactorily proven,” and need not be established to the satisfaction of the jury. ’ In People v. Smith, 189 Cal. 31 , 37 [ 207 Pac. 518 ], an instruction substantially identical with that in the instant case was under consideration. The court said: ‘In People v. Roberts, 122 Cal. 377 [ 65 Pac. 137 ], a similar instruction was held to be reversible error, upon the grounds that they constitute a charge upon the weight of the evidence, and that they cast the -burden of proof upon the defendant.’ If the jurors are to ‘be satisfied that a fabricated defense is not being imposed upon’ them, the burden is cast upon the defendant to satisfy them that such defense is not fabricated, that is, that it is true. The instruction not only casts an unwarranted burden upon the defendant but casts suspicion upon his defense and the evidence pro

duced in support thereof. It is essentially an argument against the defendant, legitimate if made by the district attorney, but an invasion of the province of the jury when made by the court. The giving of the instruction has been condoned in a number of cases where the rights of the defendants did not appear to have been prejudiced thereby. Where a defendant presents substantial proof of an alibi, the jury should be left free to pass upon the weight thereof, under the rules of evidence applicable to other questions of fact; and if unsubstantial proof is produced, the jury may be trusted to reject it. The instruction should never be given.”

[6] We think the same ruling should he made in this case as was had in the one which we have just quoted. The judgment and the order are reversed.

Finch, P. J., and Hart, J., concurred.