DocketNumber: Docket No. Crim. 3027.
Citation Numbers: 258 P. 607, 201 Cal. 618
Filed Date: 7/22/1927
Status: Precedential
Modified Date: 1/12/2023
THE COURT.
The appellant, a contractor, and C.B. Bucknall, deputy building inspector of the city of Pasadena, were charged by indictment with manslaughter. The jurors were unable to agree upon a verdict respecting the charges against Bucknall, but returned a verdict of guilty against the appellant. He appeals from the judgment pronounced upon the verdict and from an order denying his motion for a new trial. The charge against the defendant Bucknall was dismissed by the court upon motion of the district attorney.
It has become the custom on New Year's day of each year to hold a festival of flowers in the city of Pasadena, known as the Tournament of Roses. It is viewed by thousands, *Page 620
many of whom pay for seats from which to watch the parade. In December, 1925, the appellant secured from the building department of the city of Pasadena permits to erect four grandstands for the accommodation of these spectators. All of them were constructed along similar lines. The one erected at Colorado and Madison Avenues collapsed. Many people were injured; some were killed, including one Mrs. Bessie Borich, for whose death the jury held the appellant responsible. The prosecution of the appellant was had under section
In support of his appeal, which is presented by counsel who did not participate in the trial of the case in the court below, the appellant relies upon alleged error in the introduction of certain testimony offered by the prosecution, and misconduct of the trial judge during the trial. As to both of these matters we adopt the opinion of the district court of appeal of the second district, division two, as the opinion of this court, to wit:
[1] "The appellant first complains of the admission in evidence, over defendant's objection, of testimony showing injuries to persons other than the deceased, Mrs. Borich, and of the cries, shrieks and groans of the people in the stand immediately after its collapse. This testimony was admitted by the trial court on the theory that it constituted a part of theres gestae. The offense charged is what has generally been known as `involuntary manslaughter' or a case `where death results unintentionally, so far as defendant is concerned, from an unlawful act on his part, not amounting to felony, or from a lawful act negligently performed.' (1 Whart. Crim. Law [8th ed.], sec. 305.) The principal questions in determining the guilt or innocence of the defendant were, first: Was the stand negligently constructed or was it constructed unlawfully or in violation of the ordinance? Second: Did death result from the unlawful *Page 621 or negligent act? [2] It is important to have these main questions, which may be denominated the main transaction, in mind in determining whether the testimony admitted was part of theres gestae because we find that declarations which would otherwise be hearsay or evidence of another offense which would not otherwise be admissible under any other exception would be competent if constituting a part of the res gestae. In order, however, that they may come within the rule it is necessary that they possess the following characteristics: `First, they must have been uttered contemporaneously with and grow out of the act upon which they have a bearing so as to be spontaneous and not narrative; second, they must qualify, illustrate, explain or unfold its character or significance, so as, third, to be connected with it in such a manner that the declaration and the act form a single and indivisible transaction.' (Underhill's Crim. Evidence, 2nd ed., sec. 93.) [3] It will be observed, therefore, that the acts and declarations admissible as a part of the res gestae depend largely upon the character of the crime, or, as said by the same author, section 95: `The main question is: Are they relevant to, and do they explain and illustrate the facts of the transaction in issue? In other words, can we learn from them something of the motives or intention present in a relevant act?' Tested by these questions, it is apparent that injuries or the extent of injuries suffered by other parties who were present in the grandstand could throw no light either upon the character of the construction or upon the question as to whether faulty construction was responsible for the death of Mrs. Borich. If the stand were negligently or unlawfully constructed the defendant would have been guilty of the offense charged if such construction resulted in her death, regardless of injuries to other persons and regardless of their spontaneous utterances of pain. Undoubtedly such testimony would have great effect upon the sentiments and would tend to arouse the indignation of the jury. We conclude, therefore, that the testimony admitted was not to be considered a part of the res gestae and it was error to admit it as such.
[4] "The remaining two points urged by appellant as reasons for the reversal of the judgment may properly be considered under one head. They consist of twenty-three utterances by the trial judge and numerous instances where *Page 622
he took to himself the task of examining witnesses, which appellant says conveyed to the mind of the jury the impression that the judge was convinced of the guilt of the defendant and that his sympathy was wholly with the prosecution. No assignments of error were made at the time of the occurrences by defendant's counsel and no opportunity given to the court to right the wrong done, if such it was. We are not unmindful of the rule which requires some effort to be made in the trial court to prevent and to correct such errors when they occur. But there may be instances, and this is one of them, where such effort would be entirely fruitless; no retraction sufficient to undo the harm; and the effort made might result in further error. Further, it is evident from the attitude of the trial judge, as shown by the record, that any assignment of misconduct would have been disregarded. Counsel for the appellant, by making an assignment, would have brought upon himself further attack. (People v.MacDonald,
"We have presented sufficient to show a state of affairs which trial judges should not permit and which may be pointed to as an example of what they should not do in the trial of lawsuits. If they will lend themselves to such methods, if they will so intemperately espouse the cause of the prosecution in criminal cases, no man charged with a penal offense is safe, whether he be guilty or innocent. Every defendant under such a charge is entitled to a fair trial on the facts and not a trial on the temper or whimsies of the judge who sits in his case. Whatever the degree of guilt of appellant here, those who know the circumstances surrounding his conviction are likely to feel that the verdict resulted from the conduct of the judge and not from the evidence."
The prosecution attempts to justify the remarks of the trial court upon the ground that, because there was sufficient evidence of the negligent and faulty construction of the grandstand to support the finding of the guilt of the defendant, they were "harmless," made in a "facetious light," and that the court was "indulging in a bit of humor." It also invokes the curative provisions of section 4 1/2 of article VI of the constitution. Such an attitude on the part of a trial court as that here disclosed cannot be passed over so lightly. Jurors rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during *Page 627 trials. For this reason, and too strong emphasis cannot be laid on the admonition, a judge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant. It is unnecessary to cite the cases bearing on this subject. It is a fundamental principle underlying our jurisprudence. [5] When, as in this case, the trial court persists in making discourteous and disparaging remarks to a defendant's counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge, and in other ways discredits the cause of the defense, it has transcended so far beyond the pale of judicial fairness as to render a new trial necessary. Neither can a plea for the application of the section of the constitution save this situation. The fact that a record shows a defendant to be guilty of a crime does not necessarily determine that there has been no miscarriage of justice. In this case the defendant did not have the fair trial guaranteed to him by law and the constitution.
The judgment of conviction is reversed and a new trial ordered.
People v. Clark , 3 Cal. 4th 41 ( 1992 )
People v. McKay , 37 Cal. 2d 792 ( 1951 )
People v. Penny , 44 Cal. 2d 861 ( 1955 )
People v. Banks , 59 Cal. 4th 1113 ( 2014 )
People v. Sturm , 39 Cal. Rptr. 3d 799 ( 2006 )
People v. O'Donnell (1938) , 11 Cal. 2d 666 ( 1938 )
People v. Blum , 110 Cal. Rptr. 833 ( 1973 )
People v. Campbell , 162 Cal. App. 2d 776 ( 1958 )
People v. Black , 150 Cal. App. 2d 494 ( 1957 )
People v. Boford , 117 Cal. App. 2d 576 ( 1953 )
People v. Gilliland , 39 Cal. App. 2d 250 ( 1940 )
People v. Coleman , 53 Cal. App. 2d 18 ( 1942 )
People v. Fatone , 211 Cal. Rptr. 288 ( 1985 )
People v. McCartney , 222 Cal. App. 2d 461 ( 1963 )
People v. Robinson , 4 Cal. Rptr. 50 ( 1960 )
People v. McGee CA4/3 ( 2015 )
Victaulic Co. v. American Home Assurance Co. ( 2018 )
Pinter-Brown v. The Regents of the University of Cal. ( 2020 )
People v. Muza , 178 Cal. App. 2d 901 ( 1960 )