THE PEOPLE, Respondent, v. LOUIS GLASS, Appellant, 158 Cal. 650

HENSHAW, J. A hearing before this court was granted from the decision rendered by the court of appeals of the first appellate district. Upon due consideration ' we adopt the opinion and views of the court of appeal, saving upon two propositions which will hereinafter be noted. Amplification of certain of the propositions discussed and decided by the court of appeal is called for in answer to the considerations pressed upon this court in the petition for rehearing. 1. A vast mass of evidence was introduced in this case which, for brevity, may be designated evidence touching the Oakland franchise.

Admittedly, the transactions covered by this evidence, in point of time, long antedated any of the occurrences properly embraced within the charge of bribery. Admittedly, also, the transactions were entirely separate and distinct, the earlier one having no causal connection with the latter.

By the Oakland evidence it was sought to be shown that the telephone company, with which defendant, Glass, was connected, in an endeavor to prevent competition in the city of Oakland and to exclude from that territory the Home Telephone Company, its competitor, and an applicant for a franchise, had itself, through a third person—“a dummy”— secured a franchise, and had aided and abetted in the organization of a corporation which did not enter the field of competition and was not designed to enter the field of competition, but was organized and kept in existence for the purpose of holding the franchise and raising objection to the issuance of a third franchise to the Home Telephone Company, upon the ground that two companies were already in the field and that it was useless and injurious to them that a franchise should be issued to a third corporation.

Most of what was done in this regard was done not by Mr. Glass but by Mr. Sabin, the then president of the company. To the repeated objections of the defendant’s counsel to the introduction of this vast mass of testimony, the only reason assigned by the court for its admission is found in the statement that “it (the evidence) was all addressed to the question of the activities of this defendant in the corporation during the period that is material here.” This language lacks in lucidity much to be desired.

The only “activities” of the defendant which could be legitimately inquired into under this charge of bribery were activities having a bearing thereon and a connection therewith. The only “period that is material here” is the period from the formation of the alleged conspiracy to bribe the San Francisco-supervisors down to and including the criminal accomplishment of the conspiracy upon which this charge of felony is-based.

It should seem unnecessary to state—but apparently it is not—that a multitude of acts, facts, and Happenings upon which men base their opinions and judgments of their fellowmen do not come within the definition and scope of evidence as known to our law.

If a man is informed, and believes his informant, that another man is dissolute, is a gambler, is an associate of known thieves, is a petty larcenist, and makes his home in a house of prostitution, he will justly look upon such a person with suspicion, will properly govern his dealings and relations with that person hy this information, and would most naturally say, if he learned that the man had been arrested for burglary, that “it was to be expected.” Yet, upon the trial of that man for burglary, no word of these matters would be admissible against him.

Not because they would not have a tendency to show that a man of such character would be much more likely to commit the given offense than would a man of proven upright and honorable life, but because the law, for reasons good and sufficient unto itself, has declared that a man shall be put upon trial for but one offense, and that he shall not be embarrassed by being called upon to defend or exculpate himself, or to explain any damaging act or fact which is not embraced within the charge he is called upon to meet.

The law will not even permit a defendant’s reputation to be assailed unless he shall himself have made that reputation an issue in the case. This, perhaps undue, tenderness goes to the extent .that his guilt of petty offenses may not éven be shown, and in his impeachment it may be established against him only that he has been previously convicted of a felony. It would, no doubt, have made most potently against this defendant in the minds of the jurors if, for example, it could have been shown that in this separate and distinct Oakland transaction he had bribed the councilmen there.

But no one has been bold enough to assert that such evidence would be admissible, and the decisions of every court, including our own, are against its admissibility. Not only is the prosecution thus forbidden to prove another crime, but, the law does not sanction the introduction of evidence falling short of crime and designed merely to degrade and prejudice the defendant in the minds of the jury. (Commonwealth v. Jackson, 132 Mass. 16 ; People v. Molineux, 168 N. Y. 264, [61 N.

E. 286].) As has been said, the language of the court holding that it was permissible to show “the activities of the defendant during the period that is material here” is not illuminating, nor is it adopted by the people in their briefs. By the people it is contended: 1. That the evidence is admissible as showing identity of plan; 2. As showing motive, and, 3. If inadmissible, still, as the evidence did not tend to prove any other crime against the defendant, its admission was without injury.

The People’s brief declares it to be admissible as showing “identity and plan.” We construe this to mean identity of plan, becahse, of course, the identity of the defendant was never for a moment in question. Identity of •plan must mean a desire and effort upon the part of the Pacific States Telephone and Telegraph Company to exclude competition in Oakland, and the same desire and effort displayed to exclude competition in San Francisco. But indisputably there was no identity of plan.

It is not contended that in any of the Oakland transactions any crime was committed, while the contention is that in the San Francisco transaction crime, and nothing but crime, was contemplated and perpetrated. As to the second reason assigned, that of motive, there never was any doubt, never any question, never any suggestion from any source whatsoever, but that if this crime was committed, it was committed for the sole and single purpose of preventing competition. Indeed, the uncontradicted evidence of the supervisors, if direct evidence upon so plain a proposition was needed, was all to this effect.

A boy of ten years might justly be regarded as gravely deficient in intellect who would need any enlightenment upon so plain a proposition. In fact, so far from the question of the motive ever having been in doubt, it would call for the acutest ingenuity to conceive of any other motive than this most obvious one.

Yet, nevertheless, it is said that this vast mass of evidence, dealing with transactions wholly detached in time and place, is admissible as establishing the motive which prompted the defendant to commit an alleged crime, separate and distinct from the Oakland transactions in time, in place, and in methods. The real reason why the evidence was offered is most obvious. It was not offered to show motive. It was not offered to show identity and plan or identity of plan. These are the veriest pretenses.

It was designed to besmirch and degrade the defendant and to be made use of in argument, to show that the defendant had gone to the length of organizing a fraudulent corporation, and by secret device and artful chicane had endeavored to prevent honest competition; that the defendant had gone to the border line of crime in the Oakland transaction and found, that stopping there, his efforts to prevent competition were without success.

What more natural, therefore, than that when the same problem arose in San Francisco, the defendant, finding even the efforts of fraud and trickery unavailable, should have stepped over the line and become a law-breaker and a criminal ? Such, we say, was the obvious purpose for which the evidence was introduced, and this the briefs of the People here on file establish.

For in those briefs, while endeavoring to support the admissibility of the evidence on the grounds above stated, it is said that if “the evidence also casts suspicion on defendant he cannot be heard to complain.” In the history of the transactions Glass is charged with having organized this “bogus” company. There is described the policy of the Pacific States Telephone and Telegraph Company employing political bosses and paying salaries to supervisors.

It is directly stated that “the history of the contest waged against the Home Company in Oakland shows so clearly Glass’s activity in his ■ company’s behalf; . . . these and many other circumstances lead irresistibly to the conclusion that Louis Glass, vice-president, acting president, and general manager of the Pacific States Telephone and Telegraph Company, aided, abetted, advised, directed and encouraged Halsey to pay the bribe to Lonergan.” And, finally, again, quoting from the People’s brief it is said: “To Glass, this experience in Oakland must have taught a bitter lesson.

For one thing, Beasly’s ‘bogus’ company had proved a losing investment—no small consideration, for the executive committee had listened very reluctantly when Glass had personally pleaded for its succor. But the lesson stamped indelibly on his mind must have been that the Home Telephone Company could not be kept out of San Francisco except by drastic measures.” That this evidence was potent for the purpose of degrading the defendant in the eyes of the jurors will at once be conceded.

That it had a tendency to inflame the mind of the jurors against the defendant by showing that in the past he had resorted to the arts of trickery and fraud to prevent honest competition, is quite apparent. That men in the every day affairs of life would have been, influenced by such evidence is unquestionably true. But these things go to establish merely the wrong which its admission worked upon the defendant, and not its admissibility. It was not admissible.

Clearly, in the everyday affairs of life, if it should be established to the satisfaction of a jury that upon another and distinct occasion a defendant had offered or solicited a bribe, it would have great weight with them in determining whether in the instance charged he had been guilty of the offense. It would establish, at least, that he was the sort of man who would be willing to do this criminal act. Such was the line of reason and argument here employed. Yet such matters are never legal evidence.

In discussing precisely such a case, where evidence had been admitted against the defendant charged with bribery, of a former act of like character, the court of appeals of New York says: “The mental ability and disposition of the defendant to commit a crime of this sort, while it might persuade a jury, raises no legal presumption. . . .

Yet the inference drawn by the prosecuting officer, and permitted by the court, left it for the jury to say that the desire of Sharp, manifested by the offer of a bribe in one instance, was the same desire which led to the actual giving of a bribe in the other; hence that the two crimes had the same origin. ... It was put in near the beginning of the trial, and the impression then made must have continued with the jury, and in their minds colored and deepened, if it did not distort, the subsequent evidence. It did indeed cast a dark shadow upon the defendant’s character.

It not only tended very strongly to prove the defendant guilty; it was absolute proof, but it was of a different crime from that charged. It was offered and received directly on the main issue, and was of great and persuasive force against him. Such evidence is uniformly condemned, as tending to draw away the minds of the jurors from the real point on which their verdict is sought, and to excite prejudice, and to mislead them. It was improperly received, and the exception to its admission well taken.” (People v. Sharp, 107 N. Y. 427, [1 Am. St. Rep. 851, 14 N.

E. 319].) Of the third proposition that the evidence, even if erroneously admitted, was without prejudice to the defendant, the argument of the People adverted to in their brief should be sufficient to show the untenableness. But, moreover, the rule does not limit the exclusion of such evidence only to transactions which amount to crime.

It includes all evidence which, as here, would have a tendency to degrade the defendant, to arouse the prejudice of the jury, to divert their minds from the real issues in the case, or to persuade them by matters not judicially cognizable, that the defendant, for reasons other than those contained in legitimate evidence was more likely to have committed the offense. (People v. Molineux, 168 N. Y. 264, [61 N. E. 286].) Quite apposite in this connection is the following language of the circuit court of the United States in Miller v. Territory of Oklahoma, 149 Fed. 330, [79 C. C.

A. 268] : “The foregoing incident strikingly illustrates where the responsibility for the miscarriage of justice in criminal prosecutions should sometimes be placed, instead of imputing the reversal of convictions by the appellate courts to what is properly termed ‘mere technicalities/ The zeal, unrestrained by legal barriers, of some prosecuting attorneys, tempts to an insistence upon the admission of incompetent evidence, or getting before the jury some extraneous facts supposed to be helpful in securing a verdict of guilty, where they have prestige enough to induce the trial court to give them latitude.

When the error is exposed on appeal, it is met with the stereotyped argument that it is not apparent it in anywise influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless.

As the appellate court has not insight into the deliberations of the jury-room, the presumption is to be indulged, in favor of the liberty of the citizen, that whatever the prosecutor, against the protest of the defendant, has laid before' the jury, helped to make up the weight of the prosecution which resulted in the verdict of guilty.” 2.

Upon the question of the admissibility of the testimony touching the employment of Ruef and the salary paid to him by the company of which defendant was manager, the court of appeal goes no further than to hold that the prosecution “had the right to contend that from the conversation testified to by Mr. Pillsbury the defendant was responsible for the employment of Ruef.” It does not, however, saving in this inferential way, discuss or pass upon the admissibility of the evidence itself.

It was clearly inadmissible, and the purpose-of its offer was, of course, identical with the offer of the Oakland testimony—to degrade the defendant and prejudice him in the eyes of the jury.

By the people it is argued that the evidence was admissible because “the defendant was the first to make Abraham Ruef a circumstance in the case”; that “the evidence was therefore admissible as tending to show preparation.” It is further stated that the evidence was admissible because it tended to show a connection between Halsey and Glass, and, finally, that it was admissible as tending to show the motive of the defendant in the bribery of Lonergan. “Ruef, being the boss of the board of supervisors, and the application of the Home Telephone Company being before the board, it is not believable that the desire of defeating that ordinance did not enter into the payment of that large salary to Ruef.” But it is not contended even by the prosecution that Ruef was in any way employed in the bribery of the supervisors, or that the salary was paid to him for any such purpose.

Not only is this so, but it is affirmatively made to appear that Ruef opposed the desires of the Pacific States-Telephone and Telegraph Company and was actively instrumental in seeing that its rival, the Home Telephone Company, ■secured its franchise. Thus, it is said in respondent’s brief: “It must have been clear to any observer, long before the caucus, that Ruef, despite his liberal monthly salary, was not favorable to the Pacific States.

It seems from the record that the Home Telephone Company also spent money very freely.” It being therefore in evidence, and, indeed, asserted by the prosecution that Ruef was not employed by defendant in furtherance of the conspiracy to bribe the supervisors, that he took no

part in the matter of their bribery, that his services were actively enlisted on behalf of the opposition company, what of bearing upon this ease could this evidence of his employment establish, what could have been its purpose other than as has been said, the purpose of degrading defendant and inflaming the minds of the jurors against him? The reasons assigned for the admissibility of this evidence were without substantiality.

Respondent asserts that the evidence was admissible because “defendant was the first to make Abraham Ruef a circumstance in this case.” All that there is in this regard is that in the cross-examination of one of the Peopie’s witnesses,' supervisor Boxton, Ms testimony appears to the following effect: “The Republican boss of the board, Boss Ruef, and James L. Gallagher distributed money to the members of the board, a certain gratuity, with reference to the passage of that "ordinance.” The ordinance here referred to had nothing to do with telephone matters.

It scarcely merits the reply that such a statement elicited upon cross-examination of a witness for the People is no justification for the introduction of the evidence to show that “Boss Ruef” was employed by defendant’s company, and inferentially by defendant upon matters and things wholly disconnected with the charge under investigation. Nor can it be perceived why the evidence was admissible as tending to show any connection between Halsey and Glass, nor how it can show such connection.

As to its being admissible to show the “motive of the defendant in the bribery of Lonergan,” as has been said, it was never contended by the People that Ruef was employed by the defendant or by Ms company to bribe these officers, or that he took any

part in such bribery, and how, therefore, evidence of the employment of Ruef could by any possibility show “the motive of defendant in the bribery of Lonergan” cannot be comprehended. The record itself, however, resolves all these questions and establishes that the real purpose was that indicated. When objection was made to the introduction of this evidence the following colloquy took place:— The Court: “What is the purpose of that, Mr. Heney f Mr. Heney: “The purpose is to show that Mr.

Glass informed this witness that Abraham Ruef was employed by the company during that period of time.” Here was the purpose of the offer, stated in simple and direct terms. It was to show the employment under the indicated circumstances as the “foundation of an argument” against the character of Glass, and to prejudice the jury against him by showing that he had taken Ruef into the employ of the company. 3. Under objections and exceptions of defendant, evidence was introduced of the bribery and the payment of moneys by Halsey to certain other supervisors.

This evidence as to each of these transactions was admittedly evidence of a separate and distinct crime. It is so declared by the respondent. It was admissible, as contended for by respondent, and as discussed in the opinion of the court of appeal, not as proving separate and distinct crimes, but as showing that the specific act of bribery charged was but a part execution of one conspiracy, a scheme which' contemplated the bribery of a sufficient number of supervisors to prevent the granting of the _ franchise.

Indisputably the evidence was not admissible generally, nor was it admissible to show that the defendant probably committed the crime with which he was charged, by showing that at other times he had committed like crimes. The court itself upon this evidence declared as follows: “Evidence of alleged payments to other supervisors received as tending to show identity of plan and motive and to trace the alleged bribe fund of fifty thousand dollars, of which the five thousand dollar bribe alleged in the indictment herein was claimed to be a part.” The reasons thus given are sound in point of law.

They themselves establish that the evidence was before the jury for consideration for these limited purposes only. Being before the jury for these limited purposes, the evidence was of course not before the jury for any other purpose. Yet, when defendant proposed instructions directing the jury as to the limits within which the evidence could be considered by them, one and all, the court refused these instructions.

The first was in the following language: "It is not proper to show that the defendant was guilty of some other offense, for the purpose of raising a presumption, either of law or of fact, of his guilt in the case under consideration.” The court refused to give this instruction upon the ground that it was “not justified by the evidence; no evidence received for such purpose.” The instruction is unimpeachable in point of law. It is the exact language of this court in People v. Sears, 119 Cal. 267, [51 Pac. 325].

The evidence, though admissible for but the limited purpose indicated, was by the court admitted generally. It was most proper, therefore, for the defendant’s counsel to seek to have the jury instructed as to the sole purpose or purposes for which it could be considered. One of the purposes for which it could not be considered was undoubtedly the purpose embraced in the instruction. And yet the court refused to give it solely on the ground that, in its own mind, it had not received the evidence for that purpose.

But how, unless the court informed the jury that it had not received it for that purpose, was the jury to know that it was not to be considered for that purpose? Surely, when the court confines its ruling to a general declaration that “the objection is overruled,” the jury is not in a position to lmow, unless informed in terms by the court, that it is not to consider the evidence generally. Neither jury nor counsel thus being enlightened by the court as to the purpose for which it considered the evidence admissible, defendant’s counsel proposed several other instructions upon the same subject.

For instance, the following: “Testimony has been introduced by the prosecution which it is claimed tends to show the commission of other acts or offenses by the defendant similar to those charged in the indictment. I charge you that this evidence was admitted for the sole purpose of proving guilty intent, motive, or guilty knowledge of the defendant, and that it can be considered by you for no other purpose.” This instruction was refused by the court under its statement that “it was not warranted by any claim, theory or evidence presented during the trial as to other offenses.

Evidence not so limited or admitted to prove guilty intent.” And yet, when we turn to the brief of the People, we find vigorous argument that the evidence was offered and was properly admitted to prove motive and guilty intent. In various other ways counsel for defendant, left groping in the dark, endeavored by pertinent instructions to have the court limit the consideration of this evidence of other crimes to specific purposes.

One and all the court refused to give these instructions, and of its own initiative gave no instruction whatsoever limiting the purpose for which the evidence should be considered by the jury, notwithstanding that the court by its indorsement on the refused instructions declared that it was received only as tending to show identity of plan and motive and to trace the alleged bribe fund of $50,000.

On this appeal it is not contended that evidence of the other crimes was generally admissible to prove the crime charged, but the People rest upon the proposition that the refusal of the first instruction quoted was justified because it was upon a “mere abstract question of law” and that the refusal to give the other instructions was justified “because the evidence was not admitted for the sole purpose of proving guilty intent, motive or guilty knowledge,” but was admitted “also to show a single design, purpose and plan, and to identify and connect the defendant with the bribery of Lonergan by means of the fifty-thousand-dollar bribe fund.” As has been said, defendant’s counsel could not know, and were not able to find out the specific purposes for which the court admitted the evidence, since it was by the court admitted generally.

The court alone knew the limited purposes which, in its own mind, it believed justified the admission of the evidence.

It became the plain duty of the court under these circumstances to have instructed the jury and to have limited its consideration of the evidence to these specific purposes, and this duty became the more imperative when defendant’s counsel were seeking, with all the knowledge they possessed, to have the consideration of the evidence so properly limited. “When the evidence of other crimes is admitted, it should be carefully limited and guarded by instructions to the jury, so that its operation and effect may be confined to the legitimate purposes for which it is competent.” (12 Cyc. 631.) In Commonwealth v.

Shepard, 1 Allen, (Mass.) 575, Bigelow, chief justice, says, speaking upon the admission of evidence of other offenses: “It is a dangerous species of evidence not only because it requires a defendant to meet and explain other acts than those charged against him and for which he is on trial, but also because it may lead the jury to violate the great' .principle that a party is not to be convicted of one crime by proof that he is guilty of another.

For this reason it is essential to the rights of the accused that when such evidence is. admitted it should be carefully limited and guarded by instructions to the jury so that its operation and effect may be confined to the single and legitimate purpose for which it is. competent.” In our state, in People v.

Cook, 148 Cal. 334, [83 Pac. 43], it is said: “It was of the highest importance to the defendant in this case, as it always is to any defendant in any case in which evidence of a distinct offense has been admitted for the purpose of showing motive to commit the crime charged that the jury should be cautioned not to consider such, evidence for any but the limited purpose for which it has been admitted, and we cannot see that the instruction as presented contained a single word beyond what the defendant had a. right to request.

The court, however, refused the instruction, and its refusal is justified on the ground that another instruction framed by the judge on the same point was given. It is. true .that the. instruction given stated the law correctly;'but it. was brief, general, and colorless in comparison with the instruction asked, and had the effect of minimizing the importance of a consideration which could not have been stated with too much emphasis.

This instruction as asked should have been given.” The distinction between the Cook ease and the case at bar is that in the Cook case the court did give an instruction, though it was characterized by this court as being “brief, general and colorless.” In the case at bar the court refused to instruct the jury upon the subject at all. 4.

In addition to what the court of appeal says in its discussion touching the error of the trial court in refusing to give instructions proposed by defendant, to the effect that the jury had no right to indulge in any presumption or inference unfavorable to the defendant because of the refusal of any witness to testify, or the failure of any witness to testify for the prosecution, it is to be borne in mind that the argument of the prosecuting attorney against the defendant for the refusal of Zimmer to testify, contained not only a severe arraignment of the defendant, but implication and insinuation that the testimony if given would have been unfavorable to the defendant.

The method which the defendant’s counsel took to set the jury right upon this matter was the approved method of proposing timely instructions to the jury to disregard the objectionable remarks. (Johnson v. Union Pacific R. R. Co., 35 Utah, 285, [100 Pac. 390].) It will be remembered that Zimmer refused to testify upon the ground that his testimony would incriminate, not Glass,- but himself. Says the supreme court of the United States: “No inference should have been permitted to be drawn against the defendant because of the assertion by the witness of this right to protect himself. He was called by the government.

If he had testified, his testimony might have been in favor of the defendant, though criminating himself. It might have entirely exonerated the defendant. To infer that the very opposite would have been or might have been the effect" of his testimony, had it been given, was unwarranted.” (Beach v. United States, 46 Fed. 754.) That the principles of law contained in the proposed instructions were unimpeachable, is not questioned.

In justification or excuse of .the court’s refusal, it is said onty' that injury was not worked to the defendant, because the substance of the instructions was contained in instructions which the court actually gave.

But when reference is had to these instructions, the giving of which it is asserted saves the error, it is found that they amount to no more than this, that in varying form the jury is told that it is to consider only the evidence in the case, and is not to consider evidence which has been excluded or ordered stricken out by the court, and that the jury is cautioned to distinguish carefully between the facts testified to by the witnesses and the statements made by counsel as to what facts have been proved.

It is inconceivable that any one can assert that such colorless and characterless instructions containing no direct reference to this subject, meet a case where the attorney for the people has been arguing, in violation of the law, as to what the witness would have testified to, if he had testified, and that the testimony would have been hostile to the defendant.

If this, indeed, be the rule, then all antecedent authority and precedent must be cast aside, and notwithstanding the mandatory declaration of the code that judges must instruct the jury on all pertinent matters of law, when requested so to do, and notwithstanding the concession here made that these were pertinent and important principles of law, it will suffice in the future to say that if the judge tells the jury that they are to consider the evidence, and only the evidence, admitted in the ease, his full duty to a defendant has been performed.

Let one instance of the working of such a rule as is here contended for suffice. The defendant exercising his constitutional right does not testify in his own behalf. The prosecuting officer argues vehemently that he fails to take the witness stand because he knows he is guilty, and that if he did take the witness stand, on cross-examination he would prove that he was guilty, and that the jury is therefore justified in finding him guilty, from the fact that he has failed to testify.

Defendant’s counsel proposes an instruction to the effect that no inference adverse to the defendant is to be drawn from his failure to testify. The court refuses to give this instruction, and this court, following the rule here contended for, would have to hold that the instruction of the court to the jury that it was to consider only the evidence adduced in the ease embraced the matter of the proposed rejected instruction, and was therefore all that the defendant was entitled to. If justification for the court’s refusal may be found in the one case, it may equally be found in the other.

The illustration is no more extreme than is the matter at bar. For these reasons, in addition to those given in the opinion of the court of appeal, the judgment and order are reversed and the cause remanded. Melvin, J., and Lorigan, J., concurred.