People v. Weber

The murder of the Weber family was one of those atrocious crimes which always arouse an intense desire to discover the perpetrator and bring him to justice. Such a state of feeling pervading a whole community increases the danger that one upon whom suspicion first happens to fall may be convicted upon evidence which in cases of less aggravated character would not be deemed thoroughly satisfactory proof of guilt. This fact makes it peculiarly the duty of the courts in such a case to enforce with scrupulous care every right which the law accords to persons accused of crime — rights accorded not for the purpose of screening the guilty — though capable at times of being perverted to that end — but solely in order to guard, as far as may be consistent with the practical administration of justice, against the danger of convicting the innocent. I cannot persuade myself that on the trial this defendant's rights were duly preserved.

The evidence against him was wholly circumstantial, and aside from the testimony of the witness Henry Carr (who swore that during the month of August preceding the murder he had sold to the defendant at his shop in San Francisco the identical pistol which was found in the Weber barn twelve days after the murder) was utterly inconclusive. It showed, it is true, that the defendant had an opportunity to commit the murders and set fire to the house before he left the premises at about 6:30 P.M. on November 10th. But it showed also that there was ample time for some other person to have entered the house, to have committed the murders and kindled the fire between the time of his departure and the first signs of the fire. It showed also that he had a possible motive for the murder of the whole family in his supposed desire to succeed to his father's whole estate, and there was proof of one or two circumstances justifying a suspicion of his guilt. But altogether this evidence was insufficient to make out the case against him beyond a reasonable doubt. With the addition of Carr's testimony, however, if true, the proof was complete. The only defense, therefore, which he could make was to meet the testimony of Carr either by direct rebuttal or by impeachment of his character. Deprived of a fair opportunity to do this, he was in effect deprived of his whole defense. In view of the capital importance of this item of evidence, I think the interests of justice demanded that he should have been given the fullest and fairest opportunity to meet it. He was, on the contrary, studiously and purposely deprived of such opportunity. Extraordinary precautions were taken prior to the trial to keep from him all knowledge of this witness and of the testimony he was expected to give, and in opening the case, in a speech an hour and a quarter in length, counsel for the prosecution made no allusion to this essential link in their chain of evidence, so that the first knowledge the defendant had of the name or existence of Henry Carr, or of his residence or business, was derived from his testimony as a witness in the midst of the trial. This course of procedure is justified upon the ground that there is no law which obliges the prosecution in a criminal case to make an opening statement to the jury, or, if one is made, to disclose any more of the case than they deem sufficient. It is true that there is no violation of the letter of any law in concealing from the prisoner and his counsel the name and the expected testimony of a witness who has not testified before a grand jury, but there is a violation of the spirit and policy of our law which has always required the names of all witnesses examined before a grand jury to be indorsed upon the indictment, and which since prosecutions by information have been authorized requires the testimony produced before the committing magistrate to be reduced to writing and filed as a public record. The policy of these laws is evident, and they are in the interests of justice. It does not accord with our ideas of justice, and has no tendency to promote its ends, to keep the most important witness against a prisoner in ambush until the moment when he is called upon to make his defense. If a witness that is to be called to support a criminal charge bears a good reputation, and can be depended on to tell the truth when placed upon the stand, there is no occasion to keep him in hiding, and if, on the other hand, he is a person of doubtful antecedents, engaged in unlawful business in an unsavory locality, there is all the more reason that the accused should not be deprived of any legitimate means of exhibiting him in his true character before the jury which is to weigh his testimony.

The argument upon which the course of the prosecution in this particular is defended is in substance this: We knew that the defendant was guilty, and if he had been informed of what we expected to prove by Henry Carr, he was capable of resorting to any illegitimate means of preventing or rebutting his testimony, which means, I suppose, that he would have suborned him to keep away from the trial, or would have suborned witnesses to impeach or contradict him. This is an argument which begs the whole question which it is the sole purpose of a trial to determine; the question, that is to say, whether the defendant is guilty. It assumes his guilt in advance as a justification for depriving him of a fair opportunity to show that the evidence against him is false or untrustworthy, and it ignores the fundamental principle upon which our entire system of criminal procedure is based, — viz. that the defendant in every criminal action is presumed to be innocent until he is proved to be guilty.

But, after all, it cannot be said that in the matters so far considered there is any ground for reversing the judgment and order of the superior court. The prosecution did not transgress the letter of any law, and there was no ruling of the court in this connection which can be pronounced erroneous. The preceding discussion, however, will be seen to have a material bearing upon an erroneous ruling made during the cross-examination of a witness called to sustain the reputation of Henry Carr at a later stage of the proceedings.

The cross-examination of Henry Carr showed that he kept a second-hand store on Dupont Street, San Francisco, between Pine and California; that under the pretext of buying articles and agreeing to sell them back to the vendor at an advance, he was really doing a pawnbroker's business without a license; that among other articles in which he dealt were blackjacks and brass knuckles. Several witnesses, including a former police judge and officers of the police, testified that his reputation for truth, honesty, and integrity was bad, and that they would not believe him under oath. The defendant also offered to prove by a certified copy of the proceedings of the police commissioners of San Francisco that the license of the defendant to deal in second-hand goods had been revoked after a hearing of charges of receiving stolen goods and soliciting a thief to steal. This evidence was excluded on an objection by the prosecution. The objection, of course, was valid upon technical grounds, but there is no doubt that the evidence of the police commissioners themselves, if they had been placed upon the stand, would have been admissible as to his reputation. The defense also offered to prove by a certified copy of a San Francisco ordinance that the selling or keeping for sale of blackjacks and brass knuckles (the weapons of thugs and assassins) was a misdemeanor. This evidence was also excluded on objection by the prosecution, and the ruling was erroneous. The offer was not to prove specific instances of misconduct on the part of Carr, which would have been inadmissible, but only to show that the business which he had admitted that he was carrying on both by his direct and cross-examination was a contraband and disreputable business. It was clearly competent and relevant to the question of his character.

A more important error was committed by the court in ruling upon an objection to a question asked the witness Abrahams, who had testified to the good reputation of Carr.

The cross-examination of this witness developed the fact that his favorable testimony was based solely upon reports that Carr was in the habit of making prompt payments to the wholesale dealers who supplied him with goods.

The following questions, answers, rulings, and exceptions then ensued:

"Q. Have you ever heard discussed the fact as to what business he carried on?

"A. No sir.

"Q. Have you ever been told that his license to carry on business has been revoked?

"A. I am not aware of that fact.

"Q. Have you ever been told that he had a lengthy examination before the board of police commissioners and that his license was revoked?

"The prosecution objected to the question as being wholly irrelevant, immaterial, and incompetent.

"The Court: The court is certainly of the opinion that the questions are asked for the purpose of the question, not the answers. I don't think you can change the mind of the court upon it. These matters the court ruled out as being grossly immaterial, and the court cannot help but hold and rule that they are asked for the purpose of questions and not the answers, and the court must sustain the objection.

"The defendant excepted to the remarks of the court and to the ruling of the court."

This ruling was clearly erroneous, and the error was aggravated by the unmerited rebuke administered to counsel in sustaining the objection. I entirely dissent from the view of this question taken in the opinion of the court. The witness had not answered the first question asked him, in what is conceded to have been a proper line of cross-examination. He had evaded it. He was not asked whether he knew that Carr's license had been revoked, but whether he had heard the matter discussed. His answer that he was not aware of the fact might have been literally true, although he had heard the matter discussed. Counsel then, as he had a perfect right to do, asked him the same question in a more specific form, and had a right to an answer.

It is a peculiarity of the rule of evidence relating to the impeachment of witnesses that you cannot prove by direct evidence specific instances of improper or criminal conduct for the purpose of discrediting them, but if a witness is called to rebut evidence of bad reputation, he may be asked on cross-examination if he has not heard of such specific instances of misconduct. The cases cited in the opinion of the court sustain this proposition, and it is sustained by abundant authority elsewhere. The first branch of the rule was invoked successfully against the defendant when he offered to prove by the record of the board of police commissioners that they had revoked Carr's license after an investigation of charges of receiving stolen goods, etc. But when he endeavored in a perfectly legitimate manner to avail himself of the other branch of the rule — not only was his right to do so denied him, but his counsel was censured by the court in the presence of the jury, in language clearly implying that he was seeking in bad faith to get before the jury matters which they were forbidden to consider. Suppose that, instead of sustaining the objection of the district attorney, with a plain intimation that nothing more would be heard from the defense, the court had overruled the objection and compelled the witness to give direct answer to the question, and suppose, as is not improbable, that he had admitted having heard of the action of the police commissioners — of what value would the testimony of this witness have been? Instead of rebutting he would have confirmed the evidence offered on the part of the defense.

It may be said that this was a small matter not of sufficient importance to justify an order for a new trial — but in my estimation it was not a small matter. Carr was the most important witness for the state, and if it can be supposed that uncontradicted proof of his bad reputation for honesty and integrity would have induced one or more jurors to reject his testimony the defendant would not have been convicted of a most horrible and unnatural crime, and sentenced to an ignominious death. Evidently the prosecution did not consider it a trifling matter, and neither they nor the court had any reason to suppose the question was asked in bad faith. If they expected it to be answered in the negative, the answer could have been given in far less time than it took to interpose the objection, and that would have ended the matter to their advantage.

There are other minor errors disclosed by the record which I do not care to discuss. It is enough to say that the defendant was denied his substantial rights in respect to the testimony of a witness of doubtful reputation, upon the vital point in the case.

For these errors the judgment and order of the superior court should be reversed.

Rehearing denied.