When this cause was originally submitted for decision the only answer to the objections of appellant to the charge of the trial judge was a reference to Durrant's case. (People v. Durrant,116 Cal. 222.) In the opinion of Justice Temple it was shown that Durrant's case was not authority on the point here involved. In his petition for a rehearing the attorney general then cited as authority against the conclusions of the court the charge of Chief Justice Shaw in the Webster case, and various decisions of the courts of New York and other states, sustaining similar charges. Before the oral argument on rehearing the attention of counsel was called to the fact that in all those cases the trial judges were entirely free from any constitutional or statutory restriction upon their power to sum up the evidence, and, consequently, that the opinions and practices of Chief Justice Shaw, Chief Justice Gibson, and other American judges in such cases, is no more authority in cases arising under the constitution of California than would be a charge approved or delivered by Lord Hale.
In response to this suggestion counsel for the people cited, at the oral argument a number of decisions by the courts of our sister-states, which they contend have given to constitutional provisions similar to our own a stricter and narrower construction than that upon which Justice Temple's opinion was based.
And it is contended that some of these cases having been adopted before the adoption of our first constitution in 1849, and others before the adoption in 1879 of our present
constitution, we are bound by a familiar rule of construction to hold that the words of our constitution were adopted in the sense which had been attributed to them in those decisions. I admit the validity of this rule of construction, but on examination of the decisions referred to find no grounds for its application in this case. The supreme court of Tennessee, at its July term, 1843, decided the case of Ivey v. Hodges, 4 Humph. 154. That was a civil case, and the only question to be decided was whether the trial court had erred in refusing to restate the evidence to the jury at the conclusion of the trial. In considering this question the writer of the opinion quoted the provision of their constitution that: "Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law," and thereupon proceeded to observe that: "This provision arose out of the jealousy with which our ancestors always looked upon any attempt on the part of the courts to interfere with the peculiar province of the jury, the right to determine what facts are found in a cause, and to put a stop to the practice of summing up as it was and is yet practiced in the courts of Great Britain, and in all probability in the colonies before the Revolution, and which consists in telling the jury not what was deposed to, but what was proved. This the framers of our constitution considered a dangerous infraction of the trial by jury, and have prohibited it in express terms: Judges shall not charge with respect to matters of fact — that is, shall not state to the jury what facts are proved." This is the case upon which most reliance is placed by counsel for the people, and they contend that it settled the construction of the Tennessee constitution to the effect that judges are merely prohibited from stating to the jury what facts are proved, leaving them entirely free to comment upon and criticise the evidence, its weight and credibility. It will be seen, however, that this is not even a necessary implication from what was remarked obiter in respect to a matter only incidentally related to the question to be decided. The court was not called upon to decide, and the case before them did not admit of a decision, as to the full scope of the clause prohibiting a charge as to matters of fact. They merely remarked in passing that it prohibited a charge as to the facts proven — a statement which was, and was no doubt designed
to be, quite within the truth, and by no means exclusive. We shall see when we come to examine the decisions of this court that it has been expressly held here in some cases, and implied in many more, that the corresponding clause of our constitution means a great deal more than to prohibit a statement of what has been proved.
Another Tennessee case is Ayres v. Moulton, 5 Cold, 154, in which a judgment was reversed because the trial judge told the jury that "from the facts as proven" the plaintiff was entitled to recover. Of course, this decision was correct, but it does not follow that the judgment would not equally have been reversed if the trial judge had merely told the jury that the evidence for plaintiff was entitled to great weight because of a character not likely to be fabricated.
These two are the only cases called to our attention which were decided before the adoption of the constitution of 1849, and manifestly they did not so construe the clause in the Tennessee constitution as to compel us to hold that in copying it the people of California only meant that judges should abstain from telling juries what facts had been proved. In Arkansas the case of Harris v. State, 34 Ark. 469, was decided in 1879. In that case the court was ruling upon an exception by the defendant to the giving of any charge by the court after the close of the argument. This was the only point to be decided, and the court in passing upon it, after quoting a provision of their constitution similar to our own, proceeded to observe: "Judges may not now, as under the former practice, in charging juries, sum up the evidence and tell them what facts are proven and what are not, and leave them to find such facts only as the court may deem disputed or doubtful, but it is the province of the court to declare the law applicable to the case, and the court is not obliged to be silent after the close of the argument." Here the decision of the court is completely covered by the last clause of the quotation. What precedes is dictum — as in the Tennessee case — true, as far as it goes, but by no means the whole truth.
In South Carolina a similar constitutional provision has been construed and applied in cases too numerous to be reviewed in detail here. The very number of these cases — about sixty — suggests a conclusion which is verified by a
close examination, viz., that they are not entirely harmonious, and that the earlier decisions have not been accepted as a satisfactory solution of the question.
The only decision of the South Carolina court antedating the adoption of our present constitution was in Redding v. RailroadCo., 5 S.C. 67, decided in 1873. The exception considered in that case was to a charge of the trial judge "that there was no testimony to support the first cause of action." It was held that if there was no such evidence the ruling was one involving strictly a matter of law, and the court declined to look into the evidence to see whether there was any testimony to support the first cause of action, because that supposed cause of action was insufficient to support a verdict. This simple proposition was all that was decided, but the court made the general remark — wholly outside of the matter to be decided, and wholly foreign to the reasons by which their judgment is supported — that the sole intention of the constitutional provision was to prevent judges from forcing, or to employ their influence to force, upon juries their own convictions as it regards matters of fact.
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When this cause was originally submitted for decision the only answer to the objections of appellant to the charge of the trial judge was a reference to Durrant's case. (People v. Durrant,116 Cal. 222.) In the opinion of Justice Temple it was shown that Durrant's case was not authority on the point here involved. In his petition for a rehearing the attorney general then cited as authority against the conclusions of the court the charge of Chief Justice Shaw in the Webster case, and various decisions of the courts of New York and other states, sustaining similar charges. Before the oral argument on rehearing the attention of counsel was called to the fact that in all those cases the trial judges were entirely free from any constitutional or statutory restriction upon their power to sum up the evidence, and, consequently, that the opinions and practices of Chief Justice Shaw, Chief Justice Gibson, and other American judges in such cases, is no more authority in cases arising under the constitution of California than would be a charge approved or delivered by Lord Hale.
In response to this suggestion counsel for the people cited, at the oral argument a number of decisions by the courts of our sister-states, which they contend have given to constitutional provisions similar to our own a stricter and narrower construction than that upon which Justice Temple's opinion was based.
And it is contended that some of these cases having been adopted before the adoption of our first constitution in 1849, and others before the adoption in 1879 of our present
constitution, we are bound by a familiar rule of construction to hold that the words of our constitution were adopted in the sense which had been attributed to them in those decisions. I admit the validity of this rule of construction, but on examination of the decisions referred to find no grounds for its application in this case. The supreme court of Tennessee, at its July term, 1843, decided the case of Ivey v. Hodges, 4 Humph. 154. That was a civil case, and the only question to be decided was whether the trial court had erred in refusing to restate the evidence to the jury at the conclusion of the trial. In considering this question the writer of the opinion quoted the provision of their constitution that: "Judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law," and thereupon proceeded to observe that: "This provision arose out of the jealousy with which our ancestors always looked upon any attempt on the part of the courts to interfere with the peculiar province of the jury, the right to determine what facts are found in a cause, and to put a stop to the practice of summing up as it was and is yet practiced in the courts of Great Britain, and in all probability in the colonies before the Revolution, and which consists in telling the jury not what was deposed to, but what was proved. This the framers of our constitution considered a dangerous infraction of the trial by jury, and have prohibited it in express terms: Judges shall not charge with respect to matters of fact — that is, shall not state to the jury what facts are proved." This is the case upon which most reliance is placed by counsel for the people, and they contend that it settled the construction of the Tennessee constitution to the effect that judges are merely prohibited from stating to the jury what facts are proved, leaving them entirely free to comment upon and criticise the evidence, its weight and credibility. It will be seen, however, that this is not even a necessary implication from what was remarked obiter in respect to a matter only incidentally related to the question to be decided. The court was not called upon to decide, and the case before them did not admit of a decision, as to the full scope of the clause prohibiting a charge as to matters of fact. They merely remarked in passing that it prohibited a charge as to the facts proven — a statement which was, and was no doubt designed
to be, quite within the truth, and by no means exclusive. We shall see when we come to examine the decisions of this court that it has been expressly held here in some cases, and implied in many more, that the corresponding clause of our constitution means a great deal more than to prohibit a statement of what has been proved.
Another Tennessee case is Ayres v. Moulton, 5 Cold, 154, in which a judgment was reversed because the trial judge told the jury that "from the facts as proven" the plaintiff was entitled to recover. Of course, this decision was correct, but it does not follow that the judgment would not equally have been reversed if the trial judge had merely told the jury that the evidence for plaintiff was entitled to great weight because of a character not likely to be fabricated.
These two are the only cases called to our attention which were decided before the adoption of the constitution of 1849, and manifestly they did not so construe the clause in the Tennessee constitution as to compel us to hold that in copying it the people of California only meant that judges should abstain from telling juries what facts had been proved. In Arkansas the case of Harris v. State, 34 Ark. 469, was decided in 1879. In that case the court was ruling upon an exception by the defendant to the giving of any charge by the court after the close of the argument. This was the only point to be decided, and the court in passing upon it, after quoting a provision of their constitution similar to our own, proceeded to observe: "Judges may not now, as under the former practice, in charging juries, sum up the evidence and tell them what facts are proven and what are not, and leave them to find such facts only as the court may deem disputed or doubtful, but it is the province of the court to declare the law applicable to the case, and the court is not obliged to be silent after the close of the argument." Here the decision of the court is completely covered by the last clause of the quotation. What precedes is dictum — as in the Tennessee case — true, as far as it goes, but by no means the whole truth.
In South Carolina a similar constitutional provision has been construed and applied in cases too numerous to be reviewed in detail here. The very number of these cases — about sixty — suggests a conclusion which is verified by a
close examination, viz., that they are not entirely harmonious, and that the earlier decisions have not been accepted as a satisfactory solution of the question.
The only decision of the South Carolina court antedating the adoption of our present constitution was in Redding v. RailroadCo., 5 S.C. 67, decided in 1873. The exception considered in that case was to a charge of the trial judge "that there was no testimony to support the first cause of action." It was held that if there was no such evidence the ruling was one involving strictly a matter of law, and the court declined to look into the evidence to see whether there was any testimony to support the first cause of action, because that supposed cause of action was insufficient to support a verdict. This simple proposition was all that was decided, but the court made the general remark — wholly outside of the matter to be decided, and wholly foreign to the reasons by which their judgment is supported — that the sole intention of the constitutional provision was to prevent judges from forcing, or to employ their influence to force, upon juries their own convictions as it regards matters of fact. Here, again, all that was said upon the point under discussion was purelyobiter, but, even so, it goes far enough to condemn the use by the trial judge of any argument on the evidence, or any comment upon its weight or credibility.
In a subsequent case (State v. Addy, 28 S.C. 4, decided in 1887) the South Carolina court, upon a review of a number of its previous decisions and of the decisions of other courts, announced this construction of the clause in question: "That the judge must carefully avoid expressing an opinion on the facts leaving it to the jury to draw their own conclusions entirely unbiased by any impression which the testimony may make upon the mind of the judge. He must not in any way indicate his opinion of the facts to the jury." Upon this principle they reversed the judgment of the trial court, because the judge had commented upon the credibility of the defendant's testimony, or, in other words, had made an argument on the evidence. This concedes the whole of Justice Temple's position, and shows how far short of the true
meaning of the constitutional prohibition are the dicta in the Tennessee, Arkansas, and early South Carolina cases.
In the very latest South Carolina case to which our attention has been called (Norris v. Clinkscales, 47 S.C. 511, 513) there is an elaborate review of their previous decisions upon this point, from which the conclusion is deduced that: "A judge violates this provision when he expresses in his charge his own opinion upon the force and effect of the testimony, or any part of it, or intimates his views of the sufficiency or insufficiency of the evidence in whole or in part." Accepting this as authority, the instructions in this case are obnoxious to the principle stated. When a judge tells a jury that although there is no evidence of a motive on the part of the defendant for the commission of the offense charged, there may nevertheless have been a motive undisclosed, and that circumstantial evidence (the evidence relied upon to convict) has the advantage of direct evidence because it is not likely to be fabricated, he certainly expresses an opinion upon the force and effect of the testimony and intimates his view of its sufficiency. It is scarcely necessary to extend this review of cases decided in other jurisdictions, since we may find in our own decisions the most explicit statements of the true construction of the clause in question.
In Kauffman v. Maier, 94 Cal. 283, the trial court had instructed the jury that parol proof of verbal admissions should be received with great caution, etc. This was held to be an invasion of the province of the jury, and none the less so because it is a matter of common knowledge that the statements of witnesses as to verbal admissions are very apt to be erroneous, and notwithstanding the consensus of writers on the law of evidence to that effect. The opinion of Justice Harrison, at page 283, points out very clearly and forcibly why this is so, and every word there said applies with equal force to what was said in this case in regard to the advantages of circumstantial evidence.
In the case of People v. Fong Ching, 78 Cal. 169, 173, Justice McFarland uses this language: "But the moment he [the judge] attempts to comment upon or argue about the weight of evidence, the credibility of witnesses, or the probability of their sworn statements, he usurps power and violates section 19 of article VI of the state constitution, which provides that
judges shall not charge juries with respect to matters of fact. `To weigh the evidence and find the facts is in this state the exclusive province of the jury, and with the performance of that duty the judge cannot interfere without a palpable violation of the organic law.' (People v. Dick, 34 Cal. 666.)"
It is not necessary to multiply citations upon this point, or to refer to the numerous cases in which the same dictrine has been assumed without express statement. It may, however, be proper to refer again to Cronin's case. (People v. Cronin,34 Cal. 191.) In Justice Temple's opinion he has pointed out the apparent oversight of Judge Sanderson in founding his conclusions upon the practice of the United States courts, and ignoring the special provision of our constitution. I have only to add that the decision in Cronin's case, while it remains unquestioned authority upon the point mainly considered, viz., the sufficiency of the indictment, has been very seriously questioned and vigorously criticised on every other point. (See 2 Notes on California Reports, 748.) As to one of the instructions it was in effect overruled in People v. Padillia, 42 Cal. 540, and as to another, the comment upon the defendant's position as a witness, it has been reluctantly followed in this state with continual protest; while in the state of Nevada, after being followed for a time, it was finally repudiated. In this connection I take occasion to notice the claim of counsel that in delivering the opinion of the court in State v. Nelson, 11 Nev. 334, and in concurring in the opinion of Chief Justice Hawley, in State v.Rover, 13 Nev. 24, I approved the opinion of Judge Sanderson in the Cronin case. It is true I sustained two instructions copied from that case, but those instructions were very different from the instructions under review. The jury was not there told that circumstantial evidence is not likely to be fabricated. If such an instruction had been under review I should have had for my guidance the very able opinion of Justice Garber, in State v. VanWinkle, 6 Nev. 340, in which an instruction infected with the same vice was elaborately considered and condemned as an infraction of the constitution.
With these observations upon the points urged upon the rehearing it is sufficient to say that upon mature consideration of the whole case we adhere to the conclusions announced
in the opinion of Justice Temple, and for the reasons there stated the judgment is reversed and the cause remanded for a new trial.
Harrison, J., Henshaw, J., and Temple, J., concurred.
McFarland, J., dissented.