People v. Bojorquez , 35 Cal. App. 350 ( 1917 )

I concur in the judgment and in all that is said in the opinion of the presiding justice, but I desire to reiterate disapproval of the instruction first considered in which the court told the jury that, when a defendant testifies as a witness, the jury may, in determining the weight to be attached to his testimony, take into consideration "the fact that he is interested in the result of the prosecution," etc. A similar instruction has been severely condemned by the courts of this state, and I think justly so (see People v. Maughs, 149 Cal. 253, 262, [86 P. 187]; People v. Bartol, 24 Cal.App. 659, 666, [142 P. 510]; People v. Borrego, 7 Cal.App. 613, [95 P. 381]); and the instruction is no less objectionable now than prior to the adoption into the constitution of the provision (section 4 1/2, article VI) that no judgment shall be set aside, or new trial granted, in any case, on any of certain indicated grounds, "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." While the instruction in this case is not quite as objectionable as the one denounced in the Maughs case, its vice, as is pointed out in the Bartol case, is, "in calling particular attention to the testimony of the defendant," whose interest in the result of the prosecution is obviously more deep-seated than could be that of any other witness. The danger lurking in such an instruction lies in the probability that the jury may infer that the judge, having, out of all the testimony received in the case, selected that of the defendant for such special consideration in his statement of the law to them, is of the opinion that whatever the defendant may testify to in support of his defense should, because of his position in the case, be viewed with suspicion. The instruction should never be given in any case. The section of the constitution above referred to has, since its adoption, rescued many cases from reversal, but it clearly never was designed to change or modify the rules of evidence or to make good that which has always properly been held to be bad in instructions to juries as to the principles of law which are intended for their guidance in deciding questions of fact. There is, therefore, no less reason now for the strict observance of the rules of pleading, evidence, or instructions or of any other of the requisites of procedural law in the trial of cases than there was before the introduction of the provision mentioned into the organic law. Indeed, it is by no means inconceivable that criminal cases may arise which are found to be beyond the reach of the saving grace — the broad and comprehensive mercy — of section 4 1/2 of article VI of the constitution, for the sole reason that such an instruction as the one under consideration is given. In a very close case upon the facts a reversal for the reason stated might be required.

Thus I have written, not so much because of the present case, which appears to have been, generally speaking, well and fairly tried, but mainly because I believe that, at least so far as criminal cases are concerned, the proposition cannot be too often stated that, while no case should be reversed for trivial, unsubstantial technical errors, still the legal rights of an accused should be, in the trial, just as carefully guarded and preserved now (as the law intends they shall be) as they were prior to the adoption of the section of the constitution above named, and that, therefore, the condemnation of instructions or rulings upon evidence by the courts of last resort should in the trial of such cases be no less heeded now than before said provision was adopted by the people.