People v. Amer (1908) · DecisionDepot

People v. Amer

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Apr 17, 1908 No. Crim. No. 56.Published

Before: Hart, Burnett

AI Brief

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Holding. The court held that the defendant's conviction for embezzlement should be affirmed because the district attorney's remarks, even if erroneous, were not prejudicial given the conclusive evidence of guilt and the trial court's prompt curative instructions.

Issues

Whether the district attorney's comments regarding the defendant's failure to testify constituted prejudicial error.
Whether the alleged misconduct of the district attorney is reviewable on appeal from the judgment.
Whether the information sufficiently alleged the venue of the offense.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The presumption should always be that a jury has obeyed the instructions of the court, and unless the contrary is shown by the record, that presumption should prevail in the appellate court.”

“It is difficult to understand how a mere reference to or comment upon a fact known to the jury made by the district attorney can be considered prejudicial to the substantial rights of the defendant.”

“The record discloses no prejudicial error, and the judgment is affirmed.”

Synopsis

The facts are stated in the opinion of the court.

Lewis H. Smith, F. G. Ostrander, Raleigh E. Rhodes, and Geo. G. Goucher, for Appellant.

Opinion — Burnett

BURNETT, J.

Defendant was convicted of the crime of embezzlement. He has appealed from the judgment, and there is also an attempted appeal from the order denying defendant’s motion in arrest of judgment. This latter must

[139]

be disregarded.

{People

Cadot,

138 Cal. 527, [71 Pac. 649].)

Appellant seems to rely mainly upon the affirmation of error committed by virtue of certain remarks of the district attorney in his address to the jury. Among these is the statement that “The court will instruct you that the defendant does not have to take the stand—that you were told when you were examined touching your qualifications as jurors in the case—he does not have to do it, but, gentlemen of the jury, if he wants to exercise that right with which the constitution clothes him and extends to him—if he says I will take chances on this proposition and I will not take the stand—perhaps because of the embarrassing situation I will be placed in and the questions that will be propounded to me—if he deems it proper to take that chance, why, then, that is his own business”; and again, “And the court will instruct you that the defendant under the law does not have to take the stand; but it seems to me if you were confronted with the same evidence, and if you were innocent, why a reasonable man would certainly seek to explain- it.” The court immediately instructed the jury as follows: “Gentlemen of the jury, you are to disregard the statement made by the district attorney; the defendant is not required to take the stand under any circumstances, nor is he ever required to go upon the stand and make any explanation and you will consider this case as if the statement had not been made.” The instruction of the court was given in view of section 1323 of the Penal Code, providing that “A defendant in a criminal proceeding or action cannot be compelled to be a witness against himself. . . . His neglect or refusal to be a witness cannot in any manner prejudice him nor be used against him on the trial or proceeding.”

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Concurrence — Hart

HART, J., Concurring.

I concur in the judgment. I desire, however, to explicitly place my assent to the conclusion reached by Mr. Justice Burnett upon the point of practice discussed in his opinion with reference to the alleged misconduct of the district attorney upon the ground that the evidence disclosed by the record appears to be so conclusive of the guilt of the appellant that, in my opinion, said misconduct could not have been prejudicial. Under the rule laid down by the supreme court in

People

Amer,

151 Cal. 303, [90 Pac. 688], the misconduct of a district attorney in a criminal case, where-the-same is assigned as error, cannot be reviewed on an appeal-from an order denying a motion for a new trial. Under the rule intimated by Mr. Justice Burnett in the ease at bar, such misconduct cannot be reviewed on an appeal from the judgment. Thus, if both conclusions be correct, a defendant in a criminal case is afforded absolutely no protection against the most flagrant act of a prosecuting officer in his argument te the jury. Such officer may, with impunity, if he so pleases, import the most damaging extraneous matters into the case, and thus accomplish a conviction where, perhaps, the evidence is-so slight that a verdict of acquittal would be the only just one, but which could not, under our constitutional provision limiting appellate courts to the consideration of questions of law alone, be disturbed by the reviewing courts.

The settled rule in this state under the decision in

People

Amer,

151 Cal. 303, [90 Pac. 698], now is, as we have seen, that the misconduct of the district attorney is not an error which can be considered on an appeal from the order refusing a motion for a new trial. While there seems to be no answer to the conclusion suggested in the main opinion here that, such misconduct is not reviewable on an appeal from the judgment, I think that, under the circumstances, it should be held to be, even if such a ruling may be said to partake of the nature of “judicial legislation.”

[145]

I had always been under the impression that the point could be reviewed on the appeal from the order. It always struck me that, if it could be said that the misconduct of a prosecuting officer in a criminal case was prejudicial to the defendant, a verdict against him would, under such circumstances, be one against law; that, if it could be said that a verdict was thus brought about, then the defendant had not been convicted according to “the law of the land,” for most certainly it would appear to be a proposition, logically unassailable, that if he had been convicted through remarks of the district attorney having no basis whatever in anything properly admitted into the record, such conviction would not be according to law, or, in other words, that the defendant had not been

tried

and

found guilty

through the fair and impartial trial guaranteed to him by the law of the land.

The effect of the decision of the supreme court and of the conclusion, if tenable, in the main opinion in the ease at bar on the point under consideration is a declaration to public prosecutors that there is no limit to the extent to which they are privileged to go beyond the record in a criminal case in their argument to the jury.

I cannot subscribe to the proposition.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 16, 1908.

AI Brief

Synopsis

Opinion — Burnett

BURNETT, J.

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Concurrence — Hart

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