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HOUSER, J., Dissenting.
I dissent. Particularly am I unable to concur in the conclusion stated in the majority opinion that the jury was uninfluenced by reason of the rulings made by the trial court in the matter of the attempt on the part of defendant to prove the significance to him of several articles intimately connected with his religious belief.
At the outset, it may be well to consider the fact that the evidence directly connecting defendant with the commission of the offense of which he was charged was very weak. As indicating the opinion of the judge of the trial court with reference thereto, it appears that at the conclusion of the ease for the prosecution, after defendant had made a motion that the court advise the jury to acquit the defendant, the judge made several statements to the attorneys representing the respective parties to the controversy, which remarks clearly show that he was extremely loath to submit the case to the jury. Among the expressions by the judge of the trial court are the following:
“The Court: I think I will hear from the other side. It seems to me that all you have here is a suspicion. ... I am free to say that I have a suspicion, but I am bound to instruct the jury that they cannot bring in a verdict against the defendant on suspicion. . . . The testimony put in is very suspicious, but if it is true and correct I don’t see why it could not just as well have been his wife as the defendant. . . . I don’t want to criticise you (the district attorney) at all, or the district attorney’s office, for going on with the prosecution. . . . but no matter what my suspicions may be, I cannot allow the case to go to the jury simply on suspicions. ... if the jury convicted him (defendant) on that evidence, I would set it aside. ... I don’t believe, Mr. Works (deputy district attorney), I would be justified in going on. Of course, all I can do is to advise the jury. I suppose you (attorney for defendant) don’t want to put in any evidence?”
With so much of a concurrence in the thought that the evidence of defendant’s guilt as presented by the prosecution was of the weakest character, the question of the effect which any erroneous rulings, either in the admission of evidence against the defendant or in the rejection of evidence
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presumably in Ms favor, assumes an aspect of the greatest importance. Dealing, then, with one of the propositions discussed in the majority opinion; that is to say, the third point raised by appellant to the effect that certain evidence offered by him was erroneously excluded by the trial court—the reporter’s transcript of the proceedings had on the trial shows that he is of the Jewish religious faith and that he followed “most all” of the religious rites and customs prescribed by Ms religion; that inside the house which was burned (although not entirely destroyed) defendant kept “the ten commandments,” a “flag” and a silver “taless,” the last of which being a present made to him by his father-in-law on the day of defendant’s marriage; that “the ten commandments” was a religious relic about one hundred years old, and that the “taless” (also a religious relic) was about a thousand years old. As appears by the statement made in the majority opinion of this court, although defendant technically testified to the foregoing facts, objections by the prosecution to questions relating thereto were continually sustained by the judge of the trial court. His attitude with reference thereto was distinctly hostile, undoubtedly insinuating into the minds of the members of the jury the impression that such evidence was of no consequence and unworthy of consideration. Evidence as to the significance of such objects to defendant, or to anyone of the Jewish faith, was entirely excluded by the trial court. For example:
“Q. To defendant (by Attorney Murphy): Do you have any particular collects that are essential elements of your faith or religion?
“Mr. Works (attorney for the people): Objected to as immaterial.
“The Court: Objection sustained. You went all over that the other day” (which last remark was in fact incorrect).
A reference to the reporter’s transcript of the proceedings had on the trial of the action will illustrate the attitude of the trial court with relation to all such evidence:
“Mr. Murphy (attorney for defendant): I have it (the taless) here. I want to produce it. I intend to prove further on by competent witnesses what such a thing means to a man of that type.
“The Court: I don’t believe that is competent.
“Mr. Murphy: I think it is.
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“The Court: I don’t think so.
“Mr. Works (attorney for the people): I certainly object to it.
“The Court: Objection sustained.”
The judge of the trial court also refused to permit defendant to introduce a witness (a Jewish rabbi) who, it is asserted by counsel for defendant, was the rabbi of the Jewish Synagogue to which defendant belonged, and who was thoroughly qualified and competent to testify concerning the religious significance and value of the various relics which theretofore had been mentioned as having been left by defendant in the house at the time the fire started; that the rabbi would have testified to the effect that the relics in question were of such importance to the average Jewish layman that they were necessary accessories to all forms of prayer, and that the Jewish layman without these relics does not believe his prayers will reach the ears of the Deity to whom they are directed; and that the rabbi would have testified further that the orthodox Jew would rather lose his life than lose those relics.
The materiality of evidence with reference to the religious faith of defendant in each of the particular religious “collects” or “relics” which it was shown were in the house at the time it was burned, and the significance particularly attachable to such religious “relics” by an orthodox Jew, becomes apparent on consideration of the question of motive. Prior to the attempt or attempts on the part of defendant to introduce such evidence, the prosecution had endeavored to show motive in that the house which was burned was overinsured. Defendant was permitted to make some rebuttal of the facts advanced by the prosecution in support of that particular proposition; but in reason it is clear that defendant should not have been limited to a mere contradiction, in terms or otherwise, of the essential facts introduced by the prosecution which in the judgment of the district attorney tended to show motive in the defendant for the commission of the crime. The showing of motive was not a necessary element in the guilt of defendant. That was an incidental issue injected into the case by the prosecution. But having tendered it, such issue was subject to all the rules surrounding any other issue. The prosecution vouchsafed a reason which it was
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thought actuated defendant in the commission of the offense. The defendant thereupon had the right not only to show the falsity of the facts suggesting the reason advanced by the prosecution; but as well to show that good reason existed for defendant’s abstaining from the commission of the crime. If defendant could have shown that at the time the fire occurred he had ten thousand dollars in currency in his home, and which currency would have been destroyed had defendant not removed it from the house, it could scarcely be doubted that he would have had the right to show such fact as opposing any evidence of motive on his part to burn his home for the insurance money of a much lesser amount which would have become payable to him had his home been destroyed by fire. On the trial of the action,' in addition to the specific rebuttal by defendant to which reference has been had, and as tending to show that no motive could exist in him for burning his home, as hereinbefore indicated lie made several unsuccessful attempts to show that within the house ■ at the time the fire occurred were these sacred “relics” which, because of bis religious belief, were dearer to him than life itself. As an inference therefrom it would seem most reasonable that if defendant had contemplated the burning of his house and that within that home were located certain precious objects of such religious significance that without their possession he could not hope for religious salvation, prior to setting fire to his home he would have taken the precaution to remove such objects to a place of safety. Not having done so, the further inference would follow that he did not set fire to his home. As the admitted evidence stood, that is to say, the mere fact that the religious “relics” were within the house at the time the fire occurred—with no explanation as to their import or significance to defendant— the undoubted effect was to deprive defendant of the benefit of a most substantial portion of his defense. Without an explanation of the significance of the “relics,” which meant so much to defendant, they might as well have been so much junk, so far as the jury was concerned, because it cannot be presumed that the members of the jfiry were, or that any one of them was, versed in matters of that kind or that they or he had even the slightest knowledge of the
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bearing which the loss of such “relics” would have upon the issue of motive which had been introduced into the ease.
Considering the fact, as expressed by the trial judge, that “all you (the prosecution) have here is a suspicion” of defendant’s guilt, it is impossible for me to agree with my brethren of the bench in their statement that the exclusion of the evidence to which reference has been had was of no material consequence and that it had no “important influence against the defendant.” To the contrary, to my mind, it manifestly appears that—the extreme weakness of the case against defendant being considered—the probabilities are that had such evidence been admitted, defendant would have been acquitted of the charges preferred against him. Prejudicial error affecting the substantial rights of the defendant having been shown, together with the affirmative conclusion that such error in all probability resulted in a miscarriage of justice, there is no room for the application of the provisions of the constitution (sec. 4%, art. VI) affecting the question at issue. The liberty and good name of defendant were at stake, and in a decision of so ■ great import the. defendant should not be obliged to take any more of the “rough chances of the law” than have been thoroughly established and recognized in principle either by existing statutes or by adjudicated cases-.
Another matter discussed in the main opinion herein in the conclusion of which I am unable to concur is that with reference to the “stipulation” by which “the court allowed a continuance of several hours in order that defendant might obtain the evidence of two witnesses.” The so-called “stipulation” was entered into some time after 11 o’clock in the morning and a recess of the court at that time was taken until the usual time for convening court in the afternoon, to wit, 2 o’clock P. M. So that whatever accommodation, or courtesy, or consideration was involved in the matter (the usual noon recess of two hours being deducted) amounted in reality to something less than one hour’s time. It appears that, relying upon the time he thought the introduction of certain evidence would take, one of the 'Attorneys for defendant excused a certain witness until 11 o’clock. As a matter of fact, the taking of the evidence which counsel had in mind occupied less time than he had estimated, with the result that defendant “ran
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out of witnesses.” It is also shown that defendant had subpoenaed three witnesses to appear at 2 o’clock P. M., none of whom was present in court at the time the so-called “stipulation” was entered into. Counsel for defendant desired an early recess in order that the witnesses might testify in defendant’s behalf. A transcript of a part of the proceedings had with relation thereto is as follows:
“The Court: No, Mr. Dixon (the witness expected at 11 o’clock) I will not wait for. The only stipulation and condition under which I will continue this case until 2 o’clock is that those two women—you told me what they will testify—that those two women will be the only two witnesses you will call at that time; otherwise you will go to the jury now.
“Mr. Ramey (attorney for defendant): Tour Honor, it is not our fault.
‘1 The Court: It is your fault that Mr. Dixon is not here. Here comes this man strolling in here and we have been waiting quite a while. ... In my discretion I will give you time to get these two witnesses, on the condition that you will call no others at that time.
“Mr. Ramey: I think your Honor is laboring under misapprehension as to the facts. We have no agreement with any of those witnesses except Mr. Dixon, who was to be here at 11. All of the other witnesses have been in attendance and have been in the courtroom during the entire trial until this morning, and we didn’t know until we called them that they were not here.
“The Court: Mr. Dixon should have been here. He was to be here at 11 o’clock. Now, I don’t care 'to take any further time. Are you willing to stipulate that?
“Mr. Ramey: We have subpoenaed also, your Honor, one witness, the Rabbi.
“The Court: When did you subpoena him?
“Mr. Ramey: Last night.
“The Court: And he is not here.
“Mr. Ramey: He was not subpoenaed to appear until 2 o’clock. That was our fault.
“The Court: Now, I will not allow you to put him on.
“Mr. Ramey: There is nothing more that I can say, your Honor.
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“The Court: All right. You have something to say. Will you agree to the court’s condition, because if not we are going on now? ... You don’t have to agree to that condition, but unless you do we are going on with the case. . . .
“The Court:.We are going on with the rebuttal and the argument, unless you accept my conditions. ... I am not going to allow Mr. Dixon to testify, and I am not going to let you make me talk much longer in hopes he will be in here. Now, I will ask you now, and I want an answer, do you stipulate to the condition I made?
“Mr. Barney: Yes, your Honor.”
It thus conclusively appears that the so-called “stipulation” was brought about by means of a threat on the part of the judge of the trial court. In order that defendant be permitted to introduce the testimony proposed to be given by two witnesses, he was forced to agree that the testimony which might have been given in his behalf by two other important witnesses be left out of defendant’s case. It would seem that a sense of justice or at least a more liberal spirit of fairness to the defendant on the part of the trial judge might have suggested to his mind the inequality of the “stipulation.” The case should either have been open for all proper purposes to the defendant or absolutely closed as to his defense. If the trial were to be continued for any reason it is clear that so far as defendant was concerned, all his rights in the premises should have been reserved to him and protected by the trial court. The defendant was either entitled to a short recess of the court, or he was not. If not, the case should have been closed so far as further taking of testimony by the defendant was concerned. If he was entitled to a recess, then it should have been extended to him without the penalty attached thereto of losing some of his valuable rights. At any rate, it is plain that whatever fault whs committed, it was not of the defendant personally. If within the judgment of the judge of the trial court some punishment ought to be inflicted, the penalty should have been visited, not upon the defendant personally, but upon the person, if any, who committed the fault. A stipulation is nothing more than a form of agreement, and an agreement which is induced by any form of menace, or by overreaching, or by taking advantage by one of the parties to the agreement of the ne
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cessities of the other, if not absolutely void, certainly is not such a “meeting of the minds” as is contemplated in a court of justice as fair and reasonable, especially where a trial judge in the course of a trial is one of the parties and a helpless litigant, with his back to the wall fighting for his liberty and good reputation, is the other party to the agreement. A stipulation made between such parties and in such circumstances would amount to nothing less than an order of the court. If in the first instance, whether pursuant to a motion made by the district attorney or through the initiative of the judge of the trial court, an order oJE the character of the “stipulation” here under consideration had been made, its effectiveness from a legal standpoint as affecting the ultimate constitutional and statutory rights of the defendant might well he doubted.
Additional reasons affecting other points raised by appellant might be given for my failure to agree in the judgment
herein;
but, to my mind, sufficient has been said. By constitutional guaranty the defendant was entitled to a fair trial. In my humble opinion he did not get it.
With the greatest respect for the good judgment of my colleagues on the bench, I cannot agree with their conclusion that justice has been done.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 16, 1926.