The defendant was convicted of murder in the first degree, and judgment of death was pronounced upon *Page 507 him. He appeals from the judgment without a bill of exceptions. The rulings complained of all relate to giving or refusing to give instructions.
The defendant asked the court to instruct the jury as to the probative force, to be found in the fact that, as was claimed, there was no apparent motive for the commission of the offense. The court was asked to say that: "It is against all experience and reason to suppose that a man will imperil his own life, and inflict upon another a brutal crime, without a motive and in the mere wantonness of depravity," and, further, when the question is as to whether defendant committed the crime, it is of great importance. The instruction was properly refused. It involved no rule of law, but only a question as to the probative force of certain evidence.
Instruction 3, asked by the defendant, was properly refused, for the reason given. It was unintelligible. I think counsel meant to ask an instruction to the effect that, if the circumstances were consistent with some theory under which defendant could be innocent, such theory should be preferred to an hypothesis equally consistent with the circumstances proven, but by which guilt would be established. But it is added, "unless the hypothesis of which the construction of guilt is based upon is proven beyond all reasonable doubt." Waiving the imperfect expression, I do not understand this in connection with what precedes it, and that leads me to doubt whether I have understood any part of it. I think it may be assumed that the jury could not have received enlightenment from it.
But while the court correctly declined to charge the jury at the request of the defendant as to the value and effect of the evidence, it proceeded to do the same thing of its own motion.
The attorney general suggests that the instruction cannot be reviewed, because the evidence has not been brought up and we cannot know that it could have been injurious. But even in the absence of a bill of exceptions we may presume that there was evidence of some character to which the instruction would apply; and where the giving of such instruction would be erroneous, as applied to all possible evidence to which it would be applicable, then error has been made out. *Page 508
Here the court tells the jury that there are two main facts to be made out by the prosecution: 1. That a crime has been committed; and 2. That the defendant committed it, and then proceeds to discuss the importance of the proof of motive. It is recognized that motive is not the ultimate fact to be proven, but the proof or disproof of any motive or inducement to commit the crime is merely evidentiary in its character, but is an important consideration, especially in a case depending upon circumstantial evidence.
The only matter of law in all this is that the motive is not the ultimate fact to be proven, and, of course, it would follow from this that if the commission of the crime by the defendant be sufficiently proven it does not matter whether there appears to have been a motive or not. This is certainly true in this class of cases. The presence or absence of motive is matter of corroboration — or, rather, it makes other evidence more or less persuasive. It increases or diminishes the presumption of innocence, and in this case it could have had no other function. And this is recognized in the charge, which nevertheless proceeds to tell the jury how difficult it is to prove motive, and states that: "It may be in many cases impossible to show or establish a motive, for the reason that we cannot fathom the mind of the accused on trial and ascertain if there is not a hidden desire of vengeance or some passion to be gratified; besides, there is no rule of law which determines what is or what is not an adequate motive, even if it were necessary to show one."
Applying this to the case, the jury were told that although the prosecution might not be able to prove it the defendant may have had a "hidden desire of vengeance or some passion to be gratified." This was not the statement of a rule of law, but an argument against the defendant on the facts.
And the court proceeded at some length with this argument to the jury, claiming that it is often impossible for the prosecution to prove the motive, though one existed.
Now the court stated to the jury that one issue submitted to them was whether the criminal act was committed by the defendant, and it is assumed that the question of motive bears upon this. The defense doubtless argued that, in the absence of direct proof that the crime was committed by the defendant, *Page 509 the absence of any apparent or imaginable inducement to the crime was a strong circumstance in his favor. The entire change on this subject had the effect, and no doubt was designed to have the effect, to diminish the force of this argument. Certainly, such was its natural effect, and if, as the charge correctly assumed, it is entirely evidentiary — a circumstance affecting the proof of the ultimate fact, that defendant committed the act — then it must be held to be a charge with respect to matters of fact and a violation of section 19, article VI, of the constitution.
In giving the charge the learned judge stated to the jury that the language of this part of the charge had been approved by the supreme court. The case alluded to is the case of People v.Durrant, 116 Cal. 179, where the charge was given. In that case it is stated in the opinion of the court that the appellant did not make serious complaint that any of the instructions were erroneous in point of law, but only that in some instances the propositions which he sought to have laid before the jury were not adequately presented. An examination of the record in the Durrant case shows that the point was not made nor argued that by giving the instructions the court invaded the province of the jury. As here, counsel sought to have the court charge in its favor on this point, and did not complain that it exceeded its power. The point would not have been noticed here but for the necessity of reversing the case for the giving of another instruction where an objection is made, and also to decide as soon as possible that such instructions should not be given.
Section 19, article VI, of the constitution reads as follows: "Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law."
What are matters of fact referred to in this section? Undoubtedly, reference is made to the familiar proposition that it is the province of the jury to determine all matters of fact and for the court to declare the law. In this case the learned judge at some length defined the respective functions of the court and jury. The judge said: "It is my duty to state to you the law applicable to the case, and it is your duty, unaided by any suggestion from me, to pass upon all questions *Page 510 of fact. Neither the judge nor jury may trespass upon the province of the other. Our provinces are entirely distinct and separate. You should receive the law as I state it to be, notwithstanding you should firmly believe I am wrong, and the law is, or should be otherwise. . . . . With the questions of fact, the weight of the evidence, the credit you should give to any witness sworn in the case, the court has nothing to do. These are matters entirely with your province, and which you, as jurors, must determine for yourselves." This is correct and well expressed.
This distinction between the respective functions of the court and jury is an old one, and is plainly recognized in the constitutional provision above quoted. It was and is the practice in the English courts and in the federal courts, and also in many of the states, for the judges to charge the jury as to matters of fact, but it has always been understood that such charge was only in aid of the jury, but that they were not bound by it. The right of the court, however, to declare the law has always been deemed absolute.
A general verdict consists of both law and fact. The jury were bound to find the facts from the evidence which was submitted to them under the supervision of the court. Its competency and relevancy were for the court. But while formerly the court could aid the jury by discussing the evidence — that is, could consider it in its charge as to it — the function of the jury was supreme. The law the court must determine and declare, and the jury was bound absolutely by this determination. The verdict is the application of the law declared by the court to the facts so found.
In the constitutional provision this distinction is recognized. The court must not charge with respect to matters of fact, but may declare the law. If the negative word had been omitted, the use of the different terms would have been significant, and it would have been said that the charge was not as authoritative as the declaration. This adds much force to the inhibition. The court must not even charge — that is, advise — with respect to matters of fact. And this is further emphasized when the constitution proceeds to state affirmatively what the court can do in respect to the evidence. It may state the testimony,expressio unis est exclusio alterius. *Page 511
The prohibition is plainly coextensive with the exclusive province of the jury. If there are rules of law to control and guide, then these may be declared authoritatively. Beyond this the court cannot go without violating this plain inhibition. The court cannot argue to the jury the relevant importance of evidence, except as that is settled by some rule of law. For instance, it is for the court to determine the admissibility of evidence, and evidence may be admitted for a limited purpose, and the jury may be limited in their consideration of it. Certain rules have become rules of law for the consideration of circumstantial evidence, and such rules were properly declared by the court in this case. Except so far as may be indicated by these rules there is no law or legal principle, that I am aware of, which determines the relative probative force of direct and circumstantial evidence.
These maxims or rules are all founded upon the fact that circumstantial differs from direct evidence in this, that circumstantial evidence tends to prove facts not in issue, but from which the fact in issue may be inferred. The special rules lay down the conditions which will warrant the inference. But the law declares nothing as to the relative probative force. Both are admitted, and the jury are required to render their verdict in accordance with their convictions. We all know that testimony may be unreliable, whether addressed directly to the fact in issue or to proof of circumstances, and that in some cases positive evidence has been overcome by circumstantial evidence. The case of an alibi may be of that character. In such cases it is often simply a question as to the veracity of two sets of witnesses. If both kinds are in the same case and they conflict, it is wholly for the jury to determine which is most convincing. In fact, I think circumstantial evidence is more often resorted to by the defense than by the people. Besides, the case of an alibi, circumstances are often shown by the defense tending to make probable the innocence of the accused, or which tend to raise doubts as to truthfulness of witnesses for the prosecution; but I have never known the court to deliver a long address to the jury in the interest of such defense to disabuse the minds of the jury of supposed prejudices against such evidence. *Page 512
Now, why did the court in this case deliver a long charge to the jury as to the relative value of direct and circumstantial evidence? The reason is plainly stated. No one saw the act of killing, and the proof that defendant is the guilty party is entirely circumstantial. The court enlarged upon the necessity of a resort to such evidence in order to punish crime and to protect the community, and said: "Providence, the laws of nature, and the relation of things are so linked and combined together that a medium of proof is often furnished leading to conclusions as strong as those arising from direct testimony." And again: "Circumstantial evidence has this great advantage, that various circumstances from various sources are not likely to be fabricated." This is a possible case; was it so in this case? And, as instructions should be pertinent to the evidence, was it telling the jury that in this case there were various circumstances against the defendant derived from various sources which were not likely to be fabricated?
That circumstances are not likely to be fabricated may be the opinion of the learned judge, and it may be sound philosophy. It is not, however, a maxim of law, although it has often been said by learned judges, and, in my opinion, it is not generally true. The fact that the circumstances may be exceedingly various and comes from unexpected sources, and are generally in themselves trifling affairs that would not impress the minds of observers, makes them easy of fabrication and renders them difficult to disprove. A community excited by a great and mysterious crime is naturally eager to see the perpetrator punished; many of its members are soon found with theories and anxious to show their ability as detectives. The circumstances, when numerous, never constitute a chain in which each is a necessary link, but many may be disbelieved and yet the theory persist. In fact, generally there is no hypothesis or theory save that the defendant is guilty; and the case is an assemblage of suspicious circumstances which may all be true, and yet the defendant be innocent, but which prevail by mere number. The court told the jury that this species of evidence was not entitled to an inferior degree of credit, and to so convince the jury was evidently the purpose of this long charge. Whether it is entitled to such credit or not is a question in each case to be determined *Page 513 by the jury from the evidence. This charge was plainly an argument for the prosecution.
Instructions have undoubtedly been given, and have to some extent been sanctioned by this court, where the question of the limitation upon the right of the judge to charge the jury as to questions of fact was not raised. The case most often referred to as sanctioning discussions of this kind is People v. Cronin,34 Cal. 191. A very able opinion was rendered by Chief Justice Sanderson, who entirely disregarded this provision of the constitution. Probably it was not called to his attention. He expressed the opinion that in reply to an argument of the defense as to the alleged danger of acting upon circumstantial evidence, "It was competent for the court to caution them against the alleged dangerous tendency of circumstantial evidence claimed by counsel to be demonstrated by these cases." That is, he could answer the argument of counsel for the defense as to the weight and value of evidence, and he gives as authority for the proposition the case of Tom Jones (2 Wheel. C.C. 461), in the circuit court of the United States, where there is no such restriction, showing plainly that the learned justice did not have this restriction in mind. He proceeds expressly to approve of the action of the judge in replying to the persistent attack of counsel for the defense on this class of evidence, directly and expressly declaring that the court may and should charge the jury as to facts, and going so far as to say that the court could properly single out a particular witness and charge the jury as to his credibility. But even Judge Sanderson did not say that as a general rule circumstantial evidence was as satisfactory proof of fact as positive evidence. He said, on the other hand, that in the nature of things it was not, but that in some cases it was as satisfactory and would produce the same degree of conviction, and might in particular instances be superior.
No one ever disputed this last proposition. A case may be completely made out by circumstantial evidence, and positive and direct testimony may be false. But is it proper under our constitution for the judge, in his charge to the jury, to answer the argument of counsel for the defense on the facts? Such it admittedly was in the Cronin case, which is the father *Page 514 of the whole errant brood. The constitutional inhibition is too plain to admit of discussion, and such a charge is necessarily a charge with respect to matters of fact, if the domain of fact was correctly defind by the learned judge in his charge. That distinction is older than the courts of the United States, and, so far as I am aware, has never been criticised.
There are a few other cases in which the Cronin case has been blindly followed, all ignoring this constitutional inhibition.
The constitution is too plain to be disregarded on such authority. The cases do not attempt to construe the inhibition or to reconcile it with such instructions, and I think the attempt would necessarily have failed had it been made.
The judgment is reversed and a new trial ordered.