State v. Walters , 7 Wash. 246 ( 1893 )

Scott, J.

(dissenting). I think the .court has given a wrong and altogether too rigid an interpretation of the constitutional provision prohibiting judges from charging juries with respect to matters of fact or commenting thereon, and one that will seriously embarrass the lower courts in the trials of causes.

The object and intent of this provision is to prevent the judge from conveying his opinion of the truthfulness or untruthful ness of any part of the testimony to the jury, but not to prevent him from, in guarded language, instructing the jury what may be the legal effect of testimony, if believed by them, or what credit it may or may not be entitled to as matter of law, nor from incidentally alluding to admitted facts.

The strict interpretation here given is sustained by the courts of Texas, but I believe not elsewhere. The Texas provision is, that the judge “shall not express any opinion as to the weight of the evidence, nor shall he sum up the testimony.” Parrish v. State, 45 Tex. 54. Ours is, that “judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.” It may be that ours is the more strict of the two, yet the evident intention is to prevent the judge from influencing the jury in finding as to the- truthfulness of particular testimony. Now he must declare the law, and the particular law declared must be with reference to the facts proved in the particular case, and must of necessity be in a measure a charge with respect to matters of fact.

It' may be that the instruction complained of, relating to the recent possession of stolen property, was not aptly framed, yet, in the light of the whole charge, I do not think it was erroneous. It should not be held error for the court to instruct the jury that the recent possession of stolen property, if unexplained, is a circumstance tending to show the guilt of the defendant — something that is universally conceded. The jury are left free to find as to the truthfulness of the testimony, and as to the weight that should be attached to it. Such an instruction, instead of commenting upon the facts, is rather declaring the law upon the facts, or informing the jury what the legal effect of certain testimony is, or may be, or what authority they have a right to attach to it as a matter of law. It is not a comment on the facts. Comment, as used here, means something in the nature of a criticism. If such an instruction is obnoxious to this provision, it is because it is a charge with respect to matters of fact. The provision of the California constitution is, that “judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law.” Sec. 19, art. 6. And in that state a charge that the recent possession of stolen property is a circumstance tending to show guilt, is authorized. People v. Fagan, 66 Cal. 534 (6 Pac. Rep. 394). It cannot be maintained that it is so because of the provision permitting judges to state the testimony, for it is not a stating of the testimony, nor does it purport to be. Such a charge can gain no additional sanction from this provision, and the other provision preventing judges from charging with respect to matters of fact is identical with ours. A judge would not be authorized to comment upon or criticise the testimony in California. He may state it, but otherwise the prohibition is fully as strong as our own, and if such a charge can be authorized under one of said constitutional provisions it can be under the other. The sole purpose of such a provision is to prevent judges from charging juries with respect to matters of fact in such a way as to influence them in finding as to the truthfulness of the testimony. A literal, rigid enforcement of this provision, as viewed by the majority, will revolutionize the system of trials. Under such a strict interpretation as will prevent a judge from alluding to the facts, he would not be authorized to instruct the jury that the recent possession of stolen property should be considered with reference to the explanation offered therefor by the defendant; or to instruct them what effect certain testimony would not be entitled to have. For instance, that the recent possession of stolen property, if unexplained, is not alone sufficient to justify conviction. And yet this is the rule adopted in some of the states and here. State v. Humason, 5 Wash. 499 (32 Pac. Rep. 111).

Scarcely a criminal case is brought here that does not embrace some such kindred proposition that the defendant has requested the court to charge upon as to the effect of certain testimony, and which the court has given without question.

For instance, that flight shall not be taken as conclusive evidence of guilt; or that the fact of flight shall be considered in connection with certain mitigating circumstances specified; or that circumstantial evidence, to justify conviction, must be incompatible with any reasonable hypothesis of the innocence of the accused; or where a witness has been proven to have testified falsely in one material matter, that the jury may disregard his testimony entirely, excepting as corroborated by other credible evidence. And the same is true in a large degree of civil causes, as the last instance specified would apply to such. Also with respect to charges upon negligence — that certain things if proved may be evidence of negligence, or may establish it, or the contrary.

It is as much charging with respect to matters of fact for the judge to tell the jury what effect certain testimony is not entitled to have, or, under certain circumstances as they may find, it is not entitled to have, as it is for him to tell them what effect they have a right to attach to it; and if the judge is prohibited from saying one, he is necessarily prohibited from saying the other. Thus the guidance afforded by well settled legal principles is practically taken away from juries, at least to a very large extent, in considering testimony bearing upon issues submitted to them. In many instances the rights of litigants will thereby be jeopardized and subjected to the unguided, mistaken judgment of juries, although conscientiously undertaking to arrive at the truth, and solely because of their having no information as to the effect which certain classes of testimony may or should not have. Legal proceedings are thereby rendered much more uncertain, for different juries would undoubtedly attach varying degrees of importance to the same identical facts and circumstances which they might find to be conclusively pi'oven. The same facts should mean the same thing in every trial under the same circumstances and conditions, and should be entitled to just the same consideration. This is true of all the matters above enumerated, and to pi’event the judge from furnishing the jury with any information as to these matters, which even may be universally conceded to be established, is to remove those barriers and landmarks of safety which the law in its wisdom, and the experience of ages, has thrown around trials in both civil and criminal actions. ' While juries should be left to find the facts in all cases, unbiased by any opinion of the judge as to the truthfulness or untruthfulness of any part of the testimony, it should be under such general instructions as to always lead them to give the same consideration, as far as practicable, to the same facts and circumstances in one case as in another of the same class. If the court is not permitted to throw such light in a general way upon the evidence as the law gives, beyond a declaration of such matters of law as have no possible bearing upon some particular part of the testimony, juries are left to grope in the dark largely, and their verdicts to chance and uncertainty in a much greater degree than ever.

In Hodde v. State, 8 Tex. App. 384, a charge that “circumstantial evidence, like all other evidence, should be examined with great care, but that when circumstances constituting the chain of evidence are properly and closely linked together, and are consistent with themselves and with the principal fact in issue, it is capable of leading the mind to very satisfactory conclusions,” was held to be error, as in conflict with the provision mentioned, although the court stated that the general rule as laid down in the instruction might be considered as axiomatic.

And in Merritt v. State, 2 Tex. App. 182, it was held error under said provision for the court to tell the jury that—

“You are at liberty to consider the several statements made by the defendant as to the manner in which he came in possession of it [ stolen property], in order to enable you to arrive at the guilt or innocence of the defendant, and if said statements appear to be reasonable and consistent, it is a circumstance in his favor, and if said statements are unreasonable and false, it is a circumstance against him. ’ ’

And this is what a literal and strict interpretation of our constitutional provision means. It seems to me unnecessary that it should be given such. It can and should be interpreted solely in the way of prohibiting judges from charging or commenting upon the testimony with relation to its truthfulness or untruthfulness. An absolute prohibition of all reference to the facts is a harsh interpretation of it, and much further than it is desirable to go.

I do not think any of the grounds upon which error is founded in the majority opinion are well taken. It was a conceded fact upon the trial that Gibbons had stolen the horses; no one questioned this, and the fact that the court incidentally alluded to them as having been stolen by him should not be held violative of this provision, it being an admitted fact, and I do not see how such reference could have prejudiced the defendant. Nor could there be any possible question but that the matters testified to by the witnesses, if true, did tend to criminate the defendant. This was apparent to every one, and the allusion thereto, consequently, was harmless. The question was, whether they were to be believed or not, and this was left open for the jury to pass upon.

Hoyt, J., concurs in the above.