People v. Spriggs

• Decision Date: 25 February 1964
• Docket Number: Cr. 7601
• Citation: 389 P.2d 377,36 Cal.Rptr. 841,60 Cal.2d 868
• Court: California Supreme Court
• Parties: , 389 P.2d 377 The PEOPLE, Plaintiff and Respondent, v. Clarence SPRIGGS, Defendant and Appellant.

Page 841

36 Cal.Rptr. 841

60 Cal.2d 868, 389 P.2d 377

The PEOPLE, Plaintiff and Respondent, v. Clarence SPRIGGS, Defendant and Appellant.

Cr. 7601.

Supreme Court of California, In Bank.

Feb. 25, 1964.

Rehearing Denied March 25, 1964.

Herbert E. Selwyn, Los Angeles, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and C. A. Collins, Deputy Atty. Gen., for plaintiff and respondent.

TRAYNOR, Justice.

The trial court sitting without a jury convicted defendant of possessing heroin in violation of Health and Safety Code, section 11500. He appeals from the judgment of conviction, contending that the trial court erred in refusing to admit certain evidence.

The evidence is conflicting. Officer Cochran testified that from a darkened doorway he and two other police officers observed defendant and Mrs. Albertina Roland together on the street on the evening of February 17, 1962. When defendant was about 40 feet from the officers, he bent over and placed his hand under a hedge. He withdrew his hand with a piece of paper in it, looked around, again placed his hand under the hedge, and then stood up and began walking with his companion toward the officers. When they reached the doorway, Officer Cochran stepped out and shouted 'Police Officer.' Defendant jumped back and threw a balloon and a piece of paper to the ground. Officer Cochran picked up the balloon and paper, and observed a white powder in the balloon. The officers then arrested defendant and Mrs. Roland. At the trial the parties stipulated that the powder was heroin.

Defendant had just been released from prison in the afternoon of the day of the arrest. He testified that he did not purchase or receive narcotics from Mrs. Roland or any other person on that day and that he did not bend over or place his hand under any hedge, but did stop momentarily while Mrs. Roland bent over to fix her stockings. When the officers accosted him they poked him as if trying to make him gag, and continued to beat him for about 10 minutes until an officer said that he found something on the sidewalk. Defendant testified that he did not throw anything to the ground and that when he and Mrs. Roland were in the police car, an officer stated 'One of you had this narcotics, and you are going to tell us which one of you had it.' Officer Cochran testified that Mrs. Roland was known by the police as a user of narcotics. Defendant's counsel cross-examined Officer Cochran regarding Mrs. Roland's arrest as follows: 'Q. Did you talk to her at the time you arrested her? A. Yes. Q. Did you ask her if the narcotics that you allegedly found were hers? A. Yes, I did. Q. What did she say?' The prosecutor objected on the grounds of immateriality and hearsay, and the trial court sustained the objection. Defendant did not rephrase the question or make an offer of proof of what the expected answer might be. Defendant contends that the witness should have been allowed to answer the question on the ground that the hearsay rule does not preclude admission of a declaration against penal interest.

In 1892 this court held that a hearsay declaration against penal interest was not admissible. (People v. Hall, 94 Cal. 595, 599, 30 P. 7; see also People v. Raber, 168 Cal. 316, 319, 143 P. 317; Ryan v. Bank of Italy, 106 Cal.App. 690, 695, 289 P. 863.) Although still the law in a majority of jurisdictions, this rule has been vigorously criticized by the scholars. (5 Wigmore, Evidence (3d ed.) §§ 1476, 1477; McCormick, Evidence, 549-553; McBaine, California Evidence Manual, § 813; Model Code of Evidence, Rule 509; Uniform Rules of Evidence, Rule 63(10); Holmes, J., dissenting in Donnelly v. United States, 228 U.S. 243, 277, 33 S.Ct. 449, 57 L.Ed. 820.) The traditional rule excluding hearsay declarations against penal interest was first established by the House of Lords in 1844 in the Sussex Peerage case, 11 Clark & F. 85. Dean Wigmore points out that the Sussex case was a backward step from earlier English cases admitting declarations against interest. (5 Wigmore, supra, § 1476.) Exclusion of declarations against penal interest now rests only on the historical accident of the Sussex case. (See McBaine, supra, § 813; 5 Wigmore, supra, § 1477.) A minority of courts, however, have departed from the Sussex case and admit hearsay declarations against penal interest. (Hines v. Com., 136 Va. 728, 117 S.E. 843, 846-850, 35 A.L.R. 431 (hearsay testimony of decedent's confession admitted in behalf of defendant); Newberry v. Com., 191 Va. 445, 61 S.E.2d 318, 325-326 (third person's written confession admitted although he refused to testify claiming right against self-incrimination); Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 289-290, 162 A.L.R. 437 (third person's affidavit making statements against penal interest admitted although he refused to testify claiming right against self-incrimination hearsay declaration not admissible against the defendant in a criminal prosecution, State v. Gorden, 356 Mo. 1010, 204 S.W.2d 713, 715; but cf. Osborne v. Purdome, Mo., 250 S.W.2d 159, 163); Blocker v. State, 55 Tex.Cr.R. 30, 114 S.W. 814, 815 (hearsay declaration admissible if prosecution's evidence solely circumstantial, and it is shown that declarant might have committed the crime); People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488, 492 (third person's confession admissible where prosecution's sole evidence was defendant's repudiated confession); Brennan v. State, 151 Md. 265, 134 A. 148, 150-151, 48 A.L.R. 342 (hearsay declaration of paternity admitted in behalf of defendant prosecuted for bastardy); Thomas v. State, 186 Md. 446, 47 A.2d 43, 45-46, 167 A.L.R. 390 (hearsay declaration admissible because declarant available as a witness); see also McClain v. Anderson Free Press, 232 S.C. 448, 102 S.E.2d 750, 760-762 (approving rule admitting declarations against penal interest, but holding evidence inadmissible under facts of case); United States v. Annunziato, 293 F.2d 373, 378 (2d Cir.) (admitting evidence on other grounds, but criticizing rule regarding penal interest); In re Forsythe's Estate, 221 Minn. 303, 22 N.W.2d 19, 25 n. 3, 167 A.L.R. (dictum indicating admissibility of declarations against penal interest); In re Winineger's Petition, Okl.Cr., 337 P.2d 445, 452-454 (dissenting opinion).)

In 1872 the California Legislature codified many of the common law rules of evidence, including some of the traditional rules governing admissibility of hearsay evidence. (Code Civ.Proc., § 1825.) The codification of the hearsay rule has remained largely unaltered, although in some instances the Legislature has added to its original enactment (e. g., Uniform Business Records as Evidence Act, Code Civ.Proc., §§ 1953e-1953h). The Legislature, however, did not freeze the law of evidence to the rules set forth in the Code of Civil Procedure or other statutes. (See Holland v. Zollner, 102 Cal. 633, 637, 36 P. 930, 37 P. 231; People v. Ah Sam, 41 Cal. 645, 653.) Numerous questions arise on which the Legislature has been silent or inexplicit. The courts must answer these questions and develop judicially the law of evidence (People v. Cahan, 44 Cal.2d 434, 442, 282 P.2d 905, 50 A.L.R.2d 513; Williams v. Kidd, 170 Cal. 631, 649, 151 P. 1) in the light of common-law principles and the basic objectives of the statutes. (See Decorative Carpets Inc. v. State Bd. of Equalization, 58 Cal.2d 252, 256, 23 Cal.Rptr. 589, 373 P.2d 637; Stone, The Common Law in the United States, 50 Harv.L.Rev. 4; Pound, Common Law and Legislation, 21 Harv.L.Rev. 383, 388.) Thus, we have continued to supplement the common law of evidence as it was codified in 1872, restricting the admissibility of certain evidence (People v. Cahan, supra, 44 Cal.2d at p. 445, 282 P.2d at pp. 911-912, 50 A.L.R.2d 513 (excluding illegally obtained evidence); Sappenfield v. Main St. & Agricultural Park R. Co., 91 Cal. 48, 61-63, 27 P. 590 (excluding evidence of defendant's safety measures subsequent to accident); Citti v. Bava, 204 Cal. 136, 139, 266 P. 954 (excluding evidence of defendant's liability insurance); see Brown v. Pacific Elec. Ry. Co., 79 Cal.App.2d 613, 615-619, 180 P.2d 424 (excluding evidence of plaintiff's settlement with a third person); People v. Burns, 109 Cal.App.2d 524, 541-542, 241 P.2d 308, 242 P.2d 9 (excluding gruesome photograph)), and expanding the scope of admissible evidence (Johnsen v. Oakland, S. L. & H. E. Ry., 127 Cal. 608, 611, 60 P. 170 (admitting lay opinion of train's speed); Healy v. Visalia etc. R. Co., 101 Cal. 585, 589-590, 36 P. 125 (admitting passenger's opinion of effect of crash impact on an 'ordinary person'); Robinson v. Exempt Fire Co., 103 Cal. 1, 4-6, 36 P. 955, 24 L.R.A. 715 (admitting lay opinion of plaintiff's health); People v. Slobodion, 31 Cal.2d 555, 559-560, 191 P.2d 1 (admitting extra-judicial identification of criminal defendant); People v. Manoogian, 141 Cal. 592, 594-598, 75 P. 177, 178 (admitting witness' observations of defendant's appearance as to his 'being or acting rational or irrational'); see cases infra regarding admissible hearsay evidence).

The basis for excluding hearsay evidence in California is Code of Civil Procedure section 1845, which states that 'A witness can testify of those facts only which he knows of his own knowledge * * * except in those few express cases in which * * * the declarations of others, are admissible.' The 'express cases' referred to in section 1845 are commonly known as exceptions to the hearsay rule. The types of admissible hearsay evidence recognized in the common law in 1872 were then codified in the Code of Civil Procedure. (Code Civ.Proc., §§ 1849, 1850, 1852, 1853, 1870, 1901, 1905, 1920, 1945, 1946.) Section 1845, however, simply states the common law principle of inadmissibility of hearsay evidence while recognizing instances of admissible hearsay evidence. The types of admissible...