People v. Friend

• Decision Date: 30 June 1958
• Docket Number: Cr. 6146
• Citation: 327 P.2d 97,50 Cal.2d 570
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Respondent, v. Wilbert Felix FRIEND, Appellant.

Page 97

327 P.2d 97

50 Cal.2d 570

The PEOPLE of the State of California, Respondent, v. Wilbert Felix FRIEND, Appellant.

Cr. 6146.

Supreme Court of California, In Bank.

June 30, 1958.

Rehearing Denied July 30, 1958.

John R. Sorbo, San Diego, for appellant.

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

GIBSON, Chief Justice.

Defendant previously appealed from a judgment which imposed the death penalty in accordance with a jury verdict. We upheld his conviction of murder of the first degree, but, because of errors relating to the issue of punishment, we remanded the cause for the sole purpose of redetermining that issue. People v. Friend, 47 Cal.2d 749, 772, 306 P.2d 463. On retrial, the jury fixed the penalty at death, and the case is again before us automatically. Pen.Code, § 1239, subd. (b). The only question presented is whether defendant was deprived of a fair trial by the judge's comments on the evidence.

One morning in 1936, Ruth Muir's body was found on the beach in La Jolla about a block from the home of her parents. Her face was covered with blood, and a bench leg which had been used as a club lay nearby. An autopsy surgeon discovered numerous bruises, abrasions and lacerations on the body and head and determined that death had been caused by fracture of the skull and multiple injuries. Defendant was living in a tent on the beach, and, when the police questioned him, he denied knowing anything about the killing unsolved until 1955, when crime remained unsolved until 1955, when defendant, an ex-convict who was 44 years of age, confessed to having committed it.

In the five years following the killing, defendant was convicted of burglary, contributing to the delinquency of a minor, ¹ and rape. In connection with his conviction of rape, defendant was placed on probation for 25 years on condition that he serve six months in jail and undergo an orchiectomy. This operation was performed in 1941. Thereafter, until 1955, defendant's record was clear with the exception of a $20 fine for stealing a relative's dog in 1946 and an arrest in 1952 for causing a disturbance while drunk in a bar.

In 1955 defendant went to Detroit for two months in violation of the terms of his probation. About a week after he returned to California, his probation officer telephoned him, arranged to meet him in a few days, and told him that he had violated his probation and that there was a warrant for his arrest. According to defendant's sister-in-law, when he hung up the telephone, he said, 'Well, murder will out,' mentioned the existence of a warrant, and stated that he thought that he would take his suitcases and 'start traveling.' The following evening, after spending several hours in a bar, defendant telephoned a newspaper reporter and said that he had killed Miss Muir. The record does not disclose the other circumstances leading to defendant's arrest.

Upon being taken into custody, defendant told the police that he had committed the crime but that he had not molested the victim or taken any valuables from her. In subsequent interviews he stated that he had been drinking and had lost his money playing pool and that, about 9:00 or 10:00 p. m., he went to the beach looking for someone to rob because he wanted money to buy more drinks. After removing a leg from a picnic bench to use as a club, he saw a woman who was seated facing the ocean, walked up behind her, and struck her a heavy blow on the head, knocking her to the ground. He then dragged her to a nearby gully, where he struck her several times about the fact with his fists. He cut the laces of her corset with a knife and raped her, or tried to rape her. In explanation of his delay of 19 years in confessing the crime, he said that he wished to avoid hurting his parents and his wife, who were now dead.

Defendant did not take the witness stand at the first trial. At the second trial he testified that he had not been troubled by an excessive sex urge after undergoing the orchiectomy. He denied that, when he received the telephone call from his probation officer, he made the statements which his sister-in-law attributed to him or that he confessed because he thought the arrest warrant mentioned by the officer related to the killing. According to defendant, he decided to confess two weeks earlier in Detroit. He testified, 'One reason I was tired, that is why I turned myself in. Seemed like I was running all these years, trying to get something settled in my mind. That was one way, to come out with the truth, because I had read once or twice in the Bible where the truth would set you free, and after I confessed to this last, this murder, this error in my life, well, I was free in my mind, although not in my body. * * * It seemed to me there was only one way out and that was to tell the truth about it. At least you can't go wrong by telling the truth. I could see that. I can't see where I have lost anything by telling the truth, although I did sit up there close to the gas chamber for eighteen or nineteen months. That kind of opened my eyes up to what I had done.'

Before giving formal instructions to the jury, the trial judge made the following remarks: 'Under the law, ladies and gentlemen of the jury, and under the Constitution, I am entitled to comment on the evidence in this case. I am going to make a few comments and tell you certain things you can consider, and, of course, anything I say is not binding on you; you can disregard it. It will just point out various things and if it coincides with your views, accept it; if it doesn't, why reject it.

'The argument of counsel in this case is not evidence. Neither is anything I tell you evidence in this case. Of course, both sides in this case put forward their best foot to try to get you to see their side of the case. Now you have heard all the evidence. You are the judges of the evidence and it is up to you to decide what should be done with the defendant in this case.

'Now, of course, this was a brutal murder. You heard all the facts, the testimony here of the People, and the defendant took the witness stand. Now it is true that he called the newspapers and said he had committed this crime. He did say that the second time he called the newspapers he had no recollection of his call. How intoxicated he was the night he called the newspaper I do not know.

'You saw the defendant on the witness stand on two different occasions when he wouldn't answer the questions on cross- examination. Now it has been stated here he made a confession. When certain questions were asked him why he didn't want to answer them. When I ordered him to answer them he said, 'I don't remember,' or 'I don't know.' Those were questions relative to the rape and relative to the molesting of the minor children several years later and the rape on the elderly woman on which he was on probation at the time he was picked up for this offense.

'Now you can consider, of course, the various items of his confession, his history throughout his life, both before and after this event here, the fact that he had this operation. Now it has been said he wasn't in any trouble since the operation, no serious trouble. Well, when we put people on probation he was on 25 years probation we expect them to comply with the law and if they violate it in any serious degree probation is revoked and the defendant is sentenced to the State Prison or County Jail, depending upon the character of the offense. Probation is a deterrent; at least I have always considered it such. You put a man on probation and you figure he is going to behave himself to a certain extent. Whether or not his behavior was the result of being on probation or the result of the operation, or a combination of both, is up to you to determine.

'You saw the defendant on the stand. You may consider whether he had any remorse for this crime. I heard his testimony. I seemed to feel as I heard it that Mr. Friend was concerned mostly about his own plight and not what he had done. He didn't want to go to Capistrano on the day he went up there, according to his own statements. He made the statement that the dead would take care of themselves. ² So I suppose they do. But that was his statement. It is up to you to determine whether he showed any remorse or whether he has told you everything from the witness stand that he knew.

'He was the only one there at the scene that survived and the only one that could give you the full details, if he saw fit so to do, but he said he didn't remember much about the rape, didn't remember much about this or about that.

'Now you may take all those things into consideration. As I said, the penalty is entirely up to you and let the evidence and your conscience be your guide.'

The question to be determined is whether the judge exceeded his authority in making the foregoing comments.

Section 19 of article VI of the Constitution, as amended in 1934, provides: 'The court * * * may make such comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the case. The court shall inform the jury in all cases that the jurors are the exclusive judges of all questions of fact submitted to them and of the credibility of the witnesses.' Similar provisions are contained in statutes. Pen.Code, § 1093, subd. 6; § 1127.

It seems clear from the use of the word 'comment' in section 19 of article VI that a trial judge is empowered to do more than merely summarize the evidence and that he may analyze the testimony critically, giving his opinions for the guidance of the jury. ³ If there can be any doubt in this respect, it is put to rest by resort to the history of the section and to the decisions which have considered the scope of the power conferred.

Prior to its amendment in 1934, section 19 of article VI provided that a judge could 'state the testimony,' as well as declare the...