Appellant was convicted in a state court of murdering his wife.
The evidence against him was entirely circumstantial. Proof of the
corpus delicti, as well as proof of appellant's criminal
agency, was to be inferred only from his wife's inexplicable
disappearance coupled with appellant's unnatural behavior
thereafter. He did not take the stand in his own defense, and the
trial judge instructed the jury that his failure to do so could be
made the basis of inferences unfavorable to him. On appeal to this
Court, appellant contended that his conviction violated the Due
Process Clause of the Fourteenth Amendment.
Held: Appeal dismissed and certiorari denied.
Reported below:
176 Cal. App.
2d 458, 1 Cal. Rptr. 600.
PER CURIAM.
The motion to dismiss is granted and the appeal is dismissed.
Treating the papers whereon the appeal was taken as a petition for
certiorari, certiorari is denied.
MR. JUSTICE DOUGLAS, dissenting.
The salient facts in this case are related in
176 Cal. App.
2d 458, 1 Cal. Rptr. 600. A reading of the report shows that
the entire evidence against the defendant was circumstantial. It
was not even shown directly that his wife, whom he is now convicted
of murdering, is dead. Proof of the
corpus delicti, as
well as proof of petitioner's criminal
Page 364 U. S. 472
agency, was to inferred from his wife's inexplicable
disappearance coupled with his unnatural behavior thereafter. A
prominent aspect of this unnatural behavior was his silence. At the
trial, the petitioner did not take the stand. The trial judge, in
accord with California law, charged the jury as follows:
"It is a constitutional right of a defendant in a criminal trial
that he may not be compelled to testify. Thus, whether or not he
does testify rests entirely in his own decision. As to any evidence
or facts against him which the defendant can reasonably be expected
to deny or explain because of facts within his knowledge,
if he
does not testify, the jury may take that fact into
consideration as tending to indicate the truth of such
evidence and
as indicating that, among the inferences that may
be reasonably drawn therefrom, those unfavorable to the defendant
are the more probable. The failure of a defendant to deny or
explain evidence against him does not, however, create a
presumption of guilt or, by itself, warrant an inference of guilt,
nor does it relieve the prosecution of its burden of proving every
essential element of the crime and the guilt of the defendant
beyond a reasonable doubt."
(Italics added.)
Using a defendant's silence as evidence against him is one way
of having him testify against himself. This would not be permitted,
we have assumed, in a federal trial by reason of the Fifth
Amendment.
Adamson v. California, 332 U. S.
46,
332 U. S. 50.
That rule, embodied in a federal statute, has much history behind
it.
See Wilson v. United States, 149 U. S.
60. Its value in protecting the interests of an accused
was well stated in
Bruno v. United States, 308 U.
S. 287,
308 U. S. 294,
where we said:
"To the suggestion that it benefits a defendant who fails to
take the stand not to have the attention of
Page 364 U. S. 473
the jury directed to that fact, it suffices to say that, however
difficult it may be to exercise enlightened self-interest, the
accused should be allowed to make his own choice when an Act of
Congress authorizes him to choose. And when it is urged that it is
a psychological impossibility not to have a presumption arise in
the minds of jurors against an accused who fails to testify, the
short answer is that Congress legislated on a contrary assumption,
and not without support in experience. It was for Congress to
decide whether what it deemed legally significant was
psychologically futile. Certainly, despite the vast accumulation of
psychological data, we have not yet attained that certitude about
the human mind which would justify us in disregarding the will of
Congress by a dogmatic assumption that jurors, if properly
admonished, neither could nor would heed the instructions of the
trial court that the failure of an accused to be a witness in his
own cause 'shall not create any presumption against him.'
And
see Johnson v. United States, 318 U. S.
189,
318 U. S. 199."
The Court, in 1947, held that the Fourteenth Amendment, by its
Due Process Clause, did not incorporate the Fifth Amendment
(
Adamson v. California, supra), with the result that the
failure of a defendant to testify could be taken as evidence
against him. I dissented in that case, and continue to believe it
was wrong. The present case shows how utterly devastating the state
rule which it sanctions can be. I would accordingly note probable
jurisdiction.