I concur in the judgment. I desire, however, to explicitly place my assent to the conclusion reached by Mr. Justice Burnett upon the point of practice discussed in his opinion with reference to the alleged misconduct of the district attorney upon the ground that the evidence disclosed by the record appears to be so conclusive of the guilt of the appellant that, in my opinion, said misconduct could not have been prejudicial. Under the rule laid down by the supreme court in People v. Amer, 151 Cal. 303, [90 P. 688], the misconduct of a district attorney in a criminal case, where the same is assigned as error, cannot be reviewed on an appeal from an order denying a motion for a new trial. Under the rule intimated by Mr. Justice Burnett in the case at bar, such misconduct cannot be reviewed on an appeal from the judgment. Thus, if both conclusions be correct, a defendant in a criminal case is afforded absolutely no protection against the most flagrant act of a prosecuting officer in his argument to the jury. Such officer may, with impunity, if he so pleases, import the most damaging extraneous matters into the case, and thus accomplish a conviction where, perhaps, the evidence is so slight that a verdict of acquittal would be the only just one, but which could not, under our constitutional provision limiting appellate courts to the consideration of questions of law alone, be disturbed by the reviewing courts.
The settled rule in this state under the decision inPeople v. Amer, 151 Cal. 303, [90 P. 698], now is, as we have seen, that the misconduct of the district attorney is not an error which can be considered on an appeal from the order refusing a motion for a new trial. While there seems to be no answer to the conclusion suggested in the main opinion here that such misconduct is not reviewable on an appeal from the judgment, I think that, under the circumstances, it should be held to be, even if such a ruling may be said to partake of the nature of "judicial legislation." *Page 145
I had always been under the impression that the point could be reviewed on the appeal from the order. It always struck me that, if it could be said that the misconduct of a prosecuting officer in a criminal case was prejudicial to the defendant, a verdict against him would, under such circumstances, be one against law; that, if it could be said that a verdict was thus brought about, then the defendant had not been convicted according to "the law of the land," for most certainly it would appear to be a proposition, logically unassailable, that if he had been convicted through remarks of the district attorney having no basis whatever in anything properly admitted into the record, such conviction would not be according to law, or, in other words, that the defendant had not been tried and found guilty through the fair and impartial trial guaranteed to him by the law of the land.
The effect of the decision of the supreme court and of the conclusion, if tenable, in the main opinion in the case at bar on the point under consideration is a declaration to public prosecutors that there is no limit to the extent to which they are privileged to go beyond the record in a criminal case in their argument to the jury.
I cannot subscribe to the proposition.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 16, 1908. *Page 146