People v. Farnum

Thomas Farnum was convicted in a jury trial of the sale of marijuana; he was placed on probation and appeals from the order, as a judgment.

The statement has frequently been repeated since People v. Ottey, 5 Cal.2d 714 [ 56 P.2d 193 ], but the phrase “so long as the province of the jury ... is not invaded” has always been understood to mean that “He [the judge] may not withdraw material evidence from the jury’s consideration or distort the testimony, and his comments should be temperately and fairly made, rather than being argumentative or contentious to a degree amounting to partisan advocacy. The jury, as required by the constitutional provision, must remain as the exclusive arbiter of questions of fact and the credibility of witnesses, and the judge should make clear that his views are not binding but advisory only.” (People v. Friend, 50 Cal.2d 570 , 577-578 [ 327 P.2d 97 ].)

By Farnum’s own testimony he was guilty of participating in the sale of marijuana. His only defense was that he was entrapped by Pulliam. This presented the ultimate question in the case and under the charge of the information and plea of not guilty, it was a question of fact. Upon first reading it would appear that when the judge expressed the opinion that Farnum was not entrapped he took from the jury the question of a material fact, that his statement could only have been understood by the jury as his own conclusion that Farnum was guilty, since he said, in effect, that Farnum was guilty

The court could properly have instructed that there was no entrapment unless Pulliam induced Farnum to commit a crime he would not otherwise have committed and that if Smith alone persuaded Farnum to deliver the marijuana there was no entrapment. The chance that the jury might make a mistake did not make it necessary for the judge to state his opinion that the defense of entrapment had not been established.

However, the question whether the court withdrew from the jury a material factual issue or merely instructed in the law, is to be determined from the evidence that was introduced rather than from the issues that were framed. In view of the evidence we cannot say that the remarks of the judge were in excess of his authority.

Entrapment is recognized as a defense to criminal prosecution for the reason that public policy forbids the unlawful enforcement of the law. It can be accomplished only by one who represents the law ánd uses means which are the effective cause of violation of the law by another.

In order to establish his defense it was necessary for Farnum to produce evidence that the idea that he deliver the marijuana originated with Pulliam; that he, Farnum, was not a willing violator of the law and that except for the persuasion and importunity of Pulliam he would not have committed the violation. If there had been evidence of these facts the question of entrapment would have been one of fact, it would have been error for the court to take that issue from the jury, and Farnum would have been deprived of his constitutional right of trial by jury. Upon the other hand, if there was no such evidence the question of entrapment was simply a question of law, and the court’s statement was a proper one.

It is clear from the foregoing statement of the evidence that the thought of having Farnum deliver the marijuana originated with Smith; he was the one who made the proposal to Farnum and the one who overcame Farnum’s reluctance to become involved. He thought he was dealing with a former customer and, of course, had no intention to get Farnum into trouble. Pulliam expected that the delivery would be made by someone who was associated with Smith in the unlawful busi

The evidence established, as a matter of law, that there was no entrapment, and no unlawful enforcement of the law. Considered as a statement of law as applied to established facts the remarks of the court, although they left the jury with no alternative to finding Farnum guilty, withdrew no question of fact from the jury and did not exceed the authority of the court. If correct instructions in the law leave the jury no alternative to a finding of guilt it does not follow that the defendant has been deprived of his constitutional right of trial by jury.

We are not to be understood as saying that the judgment would have been sustainable if the judge had bluntly declared his belief that the defendant had been proven guilty. The statement that “a judge may express his opinion as to the guilt or innocence of the defendant, so long as the province of the jury as defined by the constitutional section is not invaded” does not give him the right to determine in his own mind the facts upon which guilt or innocence depends and to make it clear to the jury that he is convinced of the defendant’s guilt. In Horning v. District of Columbia, 254 U.S. 135 [ 41 S.Ct. 53 , 65 L.Ed. 185 ], in which the judge said, “Of course, gentlemen, I cannot tell you in so many words to find defendant guilty, but what I say amounts to that, ’ ’ the court, by a majority, refused to reverse. Mr. Justice McReynolds dissented. Mr. Justice Brandéis dissented in an opinion in which Chief Justice White and Mr. Justice Day concurred. The opinion stated, in part, “In my opinion, such a charge is a moral command; and, being yielded to, substitutes the will of the judge for the conviction of the jury. The law, which, in a criminal case, forbids a verdict directed ‘in so many words, ’ forbids such a statement as the above.”-

We know of no case and believe none is to be found in the California decisions which concedes to the judge the right to address the jury in a manner which would amount to a “moral command” to find a defendant guilty.

In the present case the judge commented upon the evidence, which he had a right to do. His concluding statement was “As I say, if these facts are true the Court is of the mind that defendant was not entrapped to violate the law.” The statement fell short of a direction to find the defendant guilty.

The judgment is affirmed.

Ford, J., and Kaus, J., concurred.