People v. Greenberg

SHINN, J.

By information, appellant Herman Greenberg was accused of the crime of grand theft and of having suffered a prior conviction of a felony; he admitted the prior conviction, was tried by a jury and found guilty of grand theft. He was sentenced to state prison, made a motion for new trial, which was denied, and he appeals from the order and from the judgment.

[677]

Appellant did not take the stand at the trial. The prosecutor commented upon that fact in his arguments to the jury and the court gave an instruction upon it. As one of the grounds of the appeal it is argued that section 1323 of the Penal Code and article I, section 13, of the state Constitution, as amended in 1934, which permit the court and counsel to comment upon the failure of a defendant to explain or deny by his testimony any evidence or facts in the case against him, and allow the same to be considered by the court or jury, are in violation of the Fourteenth Amendment to the Constitution of the United States, in that such procedure deprives the defendant of due process of law. Since the briefs were filed, it has been decided that the Penal Code section and the 1934 amendment to the Constitution do not violate the due process clause of the Fourteenth Amendment. The identical question and the same arguments were presented to the Supreme Court in

People

v.

Adamson,

27 Cal.2d 478 [165 P.2d 3], and were decided adversely to the contentions of appellant.

The court gave the following instruction: “The failure of a defendant to personally take the witness stand and testify is not evidence in the case but the failure of a defendant to explain or to deny by his own testimony any evidence or facts in the case against him, may be commented upon by counsel, and may be taken into consideration by you as jurors.” The court refused to give defendant’s offered instruction as follows: “You are instructed that the failure of a defendant to take the witness stand does not constitute evidence in the ease. You are further instructed that the defendant can only be convicted upon legal, competent evidence presented in court, and not on the absence of any evidence.” The requested instruction was properly refused. It is the failure of the defendant to explain or deny evidence or facts against him, when it appears that he could do so, if innocent, not his mere failure to take the witness stand, which may be commented upon and taken into consideration. The substance of the requested instruction was covered by those which were given.