California Charles Howard Fairall.

Criminal law and procedure of California including the penal code of California online

. (page 31 of 77)
Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 31 of 77)
Font size
QR-code for this ebook

ple V. Lee Chuck, 66 Cal. 662.

82 People V. McGilver, 67 Cal. 55; People v. Rogers, 71
Cal. 568; People v. Lane, 101 Cal. 518; People v. Smith.
106 Cal. 82; People v. Ebanks, 117 Cal. 664.

83 People V. Cunningham, 66 Cal. 668; People v. Walters,
98 Cal. 142; People v. Patterson. 102 Cal. 244; People
V. Sanders, 114 Cal. 231;; People v. Ebanks, 117 Cal. 664.

84 People V. Lane, 101 Cal. 379; People v. Tucker, 104 Cal.
443; People v. Bidleman. 104 Cal. 613.

36 People V. Lane, 101 Cal. 514; People v. Tomllneon. 102
Cal. 24; People v. Fultz, 109 Cal. 262; People v. Sanders,
114 Cal. 231; People v. Ebanks, 117 Cal. 664; People v.
Wilson, 117 Cal. 688.

86 People V. Bidleman, 104 Cal. 608; People v. Ebanks,
117 Cal. 664; People v. Wilson. 117 Cal. 688; People
V. Walters, 98 Cal. 142; People v. Lattimore, 86 Cal.
402; People v. Fehrenbach. 102 Cal. 394; People v.
Baird, 105 Cal. 126; People v. Cobler, 108 Cal. 538; Peo-
ple V. Van Ewan, 111 Cal. 144; People v. Gray, 66 Cal.
271; People v. Bibby, 91 Cal. 476; People v Shainwold,
51 Cal. 468; People v. Smith. 106 Cal. 81; People v.
O'Brien, 66 Cal. 605; People v. Cunningham, 66 CaL
671; People v. Neyce, 86 Cal. 395.

87 People V. Tomlinson, 102 Cal. 19; People v. Fultz. 109
Cal. 262.

Digitized by VjOOQIC


the same time to prove giiilty knowledge, although the
defendant was acquitted thereon.^® Evidence of other
larcenies committed in the neighborhood may be admitted
to show why a witness had feigned complicity in the
offense.^® And prior and similar embezzlements against
the same party are admissible.*^ In robbery cases evidence
showing motive is admissible, although it tends to show a
distinct offense.** In larceny evidence of other offenses
is admissible where the property stolen is found with that
on which the prosecution is had.*^ And in burglary the
possession of stolen property may be shown, although it
also appears that some of the property was the result of
another crime.*^ To show the pendency of a case in which
perjury is alleged to have been committed, the complaint in
that case is admissible.** In an assault to murder, com-
mitted in an attempt to escape from jail, it may be shown
that the defendant was in jail for the purpose of showing
motive, although it tends to prove another distinct offense.
But, yet, it is connected with the one on trial.** Upon a
charge of rape under the age of consent, proof of another
offense is not generally admissible,*® but it may be
shown to explain the absence of outcry and laceration
of parts.*^ Evidence otherwise irrelevant is admissible
when part of a narrative material to the issue,*® but
evidence of other offenses wholly unconnected with the
case on trial are not admissible.*^ To be admissible,
it must be shown that it is in some way connected with

88 People V. Frank, 28 Cal. 507; People v. Garnett. 2»

Cal. 631; People v. Blbby, 91 Cal. 476.
8» People V. Bolanger, 71 Cal. 17.
40 People V. Neyce, 86 Cal. 393.
*i People V. Gleason, 127 Cal. 323.
42 People V. Robles, 34 Cal. 591; People v. Lopez, 59 Cal.

363; People v. Cunningham, 66 Cal. 669.
4« People V. Sears, 119 Cal. 267.
44 People V. Lee Fat, 54 Cal. 527.

46 People V. Valliere, 123 Cal. 576; People v. Lane, 101
Cal. 513.

4« People V. Rangod, 112 Cal. 669.

47 People V. Fultz, 109 Cal. 258.

48 People V. Kuches, 120 Cal. 566; People v. Lynch, 122
Cal. 503.

49 People V. Cuff, 122 Cal. 589.

Digitized by VjOOQIC


the case on trial, and a part of the same tran-
saction or of the res gestae.^^ In incest cases, other dis-
tinct offenses are admissible,*^^ but the previous prostitution
of a daughter, cannot be shown against the defendant, to
prove! that he lived off her earnings as such.°' Evidence of
another crime, which is only incidental to the rebuttal of
material evidence of the defendant, is admissible.*^' Thus a
magistrate may testify that a person who had been charged
with an assault to murder the defendant was found not
guilty on the same day that the deceased was killed,** and
the declarations of a co-defendant as to other offenses are
inadmissible."' The declarations of the defendant as to
other offenses than the one for which he is held for trial
are inadmissible, except so far as they refer to a general
scheme to commit the particular crime with which he is
charged."* The judgment of the conviction of a person
jointly indicted with the accused, is not admissible in evi-
dence against him, for any purpose."^ In forgeries the
evidence of other offenses is not admissible, unless there
is evidence tending to connect the defendant therewith, and
the finding of a check upon his desk is not sufficient
evidence."* The corpus delicti must be established before
other forgeries may be shown. "^ In such cases it cannot
be admitted to show guilty knowledge unless it appears
that the check described in the indictment was itself a for-
gery.*^ Evidence of distinct offenses which are not con-
nected with the case on trial, or in no way tend to prove
any of the issues therein, or to establish intent or guilty
knowledge, etc., are not admissible.*^* Thus it cannot be

50 People V. Teixeria. 123 Cal. 297; People v. Wong Ark,
96 Cal. 129; People v. Lane, 100 Cal. 379.

51 People V. Patterson, 102 Cal. 239.

52 People V. Beniot, 97 Cal. 249.
B^ People V. Plggott, 126 Cal. 509.

64 People V. Chin Hane, 108 Cal. 597.

56 People V. Williams, 127 Cal. 212.
66 People V. Dixon, 94 Cal. 255.

57 People V. Bearss. 10 Cal. 68.

58 People V. Bird, 124 Cal. 32.

59 People V. Whiteman, 114 Cal. 338.
«o People V. Whiteman, 114 Cal. 338.

«i People V. Lynch. 122 Cal. 501; People v. Tyler, 36 CaL
522; People v. Vidal, 121 Cal. 221; People v. Hurley, 126

Digitized by VjOOQIC


introduced to prove larceny,®^ unless there is a connectioit
between the offenses f^ nor to prove guilt,°* nor to impeach
a witness,®^ as the testimony cannot extend to collateral
matters/*^ But it may be admissible as explanatory of the
prior offense.*® The fact of defendant's previous arrest
cannot be shown to prove guilt of another crime,®^ nor the
testimony of an officer that he had been searching for
defendant for other offenses.*® The evidence of subsequent
offenses is not admissible.**


Evidence of the character of the defendant is to be
considered in connection with the facts proven to establish
his guilt or innocence.^" Good character is a circumstance
that may tend to rebut the presumption of evil intent/^
and is to be considered in determining guilt.^' The good
character of the accused, when proven, is itself a fact of
the case. It is a circumstance tending in a greater or less
degree to establish his innocence.'^ In murder cases it may
be considered for the purpose of determining who fired
the first shot.''* But bad character of the defendant is
inadmissible against him,^*^ unless the defendant begins the

Cal. 351; People v. Lane, 100 Cal. 385; People v. Stew-
art, 85 Cal. 174; People v. Elliott, 119 Cal. 594; People
V. Smith, 106 Cal. 81; People v. McNutt, 64 Cal. llf?;
People V. Valllere, 127 Cal. 65.

«2 People V. Hartman, 62 Cal. 562.

83 People V. Cunningham, 66 Cal. 672; People v. Smith, 106
Cal. 81.
. «* People V. Jones, 31 Cal. 566; People v. Willard, 92 Cal.
482; People v. Sanders, 114 Cal. 230.

«5 People V. O'Brien, 96 Cal. 171.

oiia People V. Tyler. 36 Cal. 529.

66 People V. Lenon, 79 Cal. 625.

67 People V. McCauIey, 45 Cal. 146.

68 People V. Vidal, 121 Cal. 221.

60 People V. Balrd, 104 Cal. 462; People v. Lane, 100 Cal.

70 People V. Shepardson, 49 Cal. 631; People v. Doggett,
62 Cal. 29; People v. Ralna, 45 Cal. 292.

71 People V. Casey, 53 Cal. 360.

'2 People V. Bowman, 81 Cal. 566.

73 People V. Ashe, 44 Cal. 291; People v. Raina, 45 Cal.
292; People v. Shepardson, 49 Cal. 629.

74 People V. Soto, 63 Cal. 165.

75 People V. Dye, 75 Cal. 108; People v, Wallace, 89 Cal.
162; People v. Webster, 89 Cal. 573.

Digitized by VjOOQIC


inquiry.^® It is not a step in proof of guilt,'^ and cannot
be shown by the prosecution in its case in chief/® but it
may be inquired into on cross-examinationJ* The bad
character of a deceased person is not a legitimate subject
of inquiry,®^ except in cases of homicide where the accused
relies on self-defense.^* Evidence to sustain his character
for peace and quiet cannot be introduced until it is
attacked. ®^ Good character will not warrant an acquittal, if
the defendant is otherwise shown to be guilty." The jury
may find a verdict of guilty notwithstanding the good
character of the defendant.®* Good character, like all other
facts, should be proven by competent evidence.®' A dis-
charge certificate from the army is not evidence of good
character,®^ neither is a letter of recommendation.®^ A
person who has never heard the reputation of the defend-
ant discussed cannot testify as to it.®® Immoral conduct of
the accused cannot be admitted to prove bad character.*^
The law presumes for the defendant a character of ordinary
fairness,!^'' and in the absence of evidence, he is not required
to offer witnesses in support of good character, but has a
right to have the jury assume his character un impeached.**
Good character can be considered only in reference to the

7« People V. Fair, 43 Cal. 137; People v. Wallace, 89 Cal.

77 People V. Whiteman, 114 Cal. 338.

78 People V. Arlington, 123 Cal. 356; People v. Denby. 108
Cal. 56; People v. Meyer, 75 Cal. 386; People v Chin
Mook Sow, 51 Cal. 597.

79 People V. Gordon, 103 Cal. 568.

80 People V. Anderson, 39 Cal. 703; People v. Bezy. &7 Cal.
224; People v. Pawell, 87 Cal. 362.

81 People V. Edwards, 41 Cal. 640.

82 People V. Powell, 87 Cal. 362.

83 People V. Samsels, 66 Cal. 99; People v. Kalkman, 72
Cal. 217.

8* People V. Mitchell, 129 Cal. 584; People v. Smith. 59

Cal. 602.
85 People V. Velarde, 59 Cal. 457.
*6 People V. Eckman, 72 Cal. 582.

87 People V. Duchow, 87 Cal. 113.

88 People V. Moan, 65 Cal. 532.

80 People V. Wallace, 89 Cal. 158.

do People V. Fair, 43 Cal. 137; People v. Johnson, 61 Cal.

^1 People V. Gleason, 122 Cal. 370.

Digitized by VjOOQIC


whole case, and not to any isolated fact of the case.®^ It
should be restricted to the trait of the character in issue.®'
The defendant may always prove good character,®* but such
evidence is not conclusive of his innocence, even in cases
otherwise doubtful upon the evidence.*'^ The admission of
counsel that any number of witnesses will testify to the
bad reputation of the deceased for peace and quiet, is equi-
valent to an admission that his reputation was bad.®®


A witness can testify of those facts only which he knows
of his own knowledge; that is, w^hich are derived from his
own perceptions, except in those few express cases in which
his opinions or inferences, or the declarations of others, are
admissible.* Hearsay evidence includes statements in a
letter found in defendant's possession,^ and statements of
the person robbed, as to the character and description of
the robber;^ statements made by persons to a witness as to
the place where the body lay,* the testimony of the arrest-
ing officer as to the description of the defendant given by
the prosecuting witness,*^ and entries in a register kept at
the station of a railroad company showing the time of the
arrival and departure of trains.®


The admission of evidence of experiments made by a

02 People V. Milgp.te, 5 Cal. 127; People v. Roberts, 6 Cal.

03 People V. Josephs, 7 Cal. 129.

0* People V. Ashe, 44 Cal. 288; People v. Bell, 49 Cal.
485; People v. Fenwick, 45 Cal. 288; People v. Raina, 45
Cal. 293; People v. Shepardson, 49 Cal. 631; People v.
Casey, 53 Cal. 361; People v. Smith, 59 Cal. 607; Peo-
ple V. Doggett, 62 Cal. 29.

05 People V. Streuber, 121 Cal. 431.

»« People V. Shaver, 120 Cal. 354.

1 Sec. 1845 Code of CivU Procedure.

2 People V. ColbuFD, 105 Cal. 648.

« People V. McCrea, 32 Cal. 98; People v. McLaughlin, 44
Cal 439

4 People V. Hill, 123 Cal. 571.

5 People V. Johnson, 91 Cal. 265; People v. McNamara,
94 Cal. 514.

« People V. Mitchell, 94 Cal. 550; People v. Wong Chuey,
117 Cal. 627.

Digitized by VjOOQIC


witness is entirely within the discretion of the courtJ The
court may permit experiments applicable to facts in proof to-
be made in the presence of the jury.® Evidence of exper-
iments as to the hearing of sounds under certain conditions^
and the result thereof, is admissible in rebuttal.^


There are certain matters upon which the law allows
experts, or men versed therein, to give opinion. For
instance, an expert may, in a forgery case, testify as to the
means of removing writing, and a non-expert may testify
to the effect of putting acid on a check.'** An opinion may
also be given as to cattle-brands,^^ as to the texture of
cloth, ^^ and the ground upon which the opinion is based may
be stated.^^ But the character of a house is a question of
fact, not of opinion,^* and a witness cannot express an
opinion as to any fact to be passed upon by the jury.^*
Thus expert testimony is not admissible to show whether
a cartridge had been in a^ certain pistol,^® as to the eyesight
of two persons relatively, unless the eyes have been tested
and examined ;^^ as to the meaning of a word used by
another,^® or as to what the witness judged from what he
saw.^® Nor is expert opinion oi ihe innocence of the
defendant admissible, based upon the fact that the defend-
ant, while under the influence of hypnotism, denied his
guilt. ^** Expert testimony as to the character and description
of a game is not admissible. ^^ One witness cannot testify
that a series of acts which were testified to by another

7 People V. Woon Tuck Wo, 120 Cal. 294.
a People v. Levine, 85 Cal. 39.
» People V. Phelan, 123 Cal. 551.

10 People V. Brotherton, 47 Cal. 388.

11 People V. Fitzpatrick, 80 Cal. 538.

12 People V. Lovren, 119 Cal. 88.

13 People V. Bird, 124 Cal. 32.

14 People V. Lock Wing. 61 Cal. 380.

15 People V. Ah Own, 85 Cal. 580.

16 People V. Mitchell, 94 Cal. 550.

17 People V. Marseiler, 70 Cal. 98.

18 People V. Moan, 65 Cal. 532.
10 People V. Elliott, 119 Cal. 593.

20 People V. Ebanks, 117 Cal. 652.

21 People V. Rose, 85 Cal. 378; People v. Shaugneflsey, 110
Cal. 601; People v. Gosset, 93 Cal. 641.

Digitized by VjOOQIC



witness, constituted a particular game.^* These are ques-
tions of law of which the court takes judicial notice.** The
jury need not be cautioned against expert evidence.** A
person who is not an expert may give an opinion as to
whether or not the defendant, from appearances, was intox-


The evidence of a witness given at a former trial is not
admissible,** but the testimony at the preliminary exam-
ination may be read where the witness is dead;*^ but the
death must be proved as any other fact, by relevant and
competent evidence, and cannot be shown by ex parte affi-
davits.*® It may be read also when it is shown that the
witness cannot be found in the state, after due diligence.**
But a deposition taken on a preliminary examination for
another charge, is not admissible for the offense on trial
by reason of the death of the witness.*® It is not admissible
except where the witness is dead, insane or cannot, with
due diligence be found in the state.*^ Where an officer
who has been requested to serve a subpoena on a witness,
states that after following every source of inquiry, he was
informed by various persons acquainted with the witness
that he had left the state, and could not tell when he would
return; that it was said by one person that he was liable
to return upon business at any time, but after further efforts
to locate him, the officer could not find him, is a sufficient

22 People V. Gosset, 93 Cal. 641.

28 People V. Carroll. 80 Cal. 163.

24 People V. Smith, 106 Cal. 73.

2« People y. Sehoro, 116 Cal. 503; People v. Monteith, 78
Cal. 7; Ellen v. Lewison, 88 Cal. 260; San Diego Co.
V. Neale, 78 Cal. 77.

2« People V. Gordon, 99, Cal. 227; People v. Gardner, 98
Cal. 127; People v. Chong Ah Chue, 57 Cal. 567; Peo-
ple V. Qurise, 59 Cal. 344.

27 People V. Douglass, 100 Cal. 1.

28 People V. Plyler, 126 Cal. 379.

2» People V. Reilly, 106 , Cal. 648; People v. Sierp, 116 Cal.
249; People v. Cady,' 117 Cal. 10; People v. Nelson, 85
Cal. 421; People v. Oiler, 66 Cal. 101; People v. Chin
Hane, 108 Cal. 597.

30 People V. Brennan, 121 Cal. 495.

«i People V. Bojorquez, 55 Cal. 463.

5IIIMKS - 26

Digitized by VjOOQIC


'showing of absence from the state." Such depositions arc
admissible also when taken through an interpreter," but
when so taken the interpreter must be present at the trial
and testify.'* They are not admissible, however, unless
they are taken and certified as required by the code," but
a substantial compliance with the statute is all that is
required.'* A deposition, taken before the magistrate, of
a witness who is unable to procure sureties pending an
information for a void commitment which is set aside, can-
not be read in evidence on the second prosecution." The
evidence of a preliminary examination may be read at the
trial, if not objected to.'® Part of the evidence being intro-
duced by the defendant, the people are entitled to the
remainder explaining it.'^ The testimony of the accused
may be used against him on the trial when freely and
voluntarily given.*^ It cannot be objected to on the ground
that the reporter had failed to file his notes.*^ It is sufE-
cient if they be filed before the trial is ended.**

reporter's notes.

The reporter's notes and the testimony based thereoii

is incompetent to prove the testimony of a witness given in

a foreign language, through an interpreter,*' and are not

admissible in evidence to prove testimony of a witness given

at a former trial,** but may be used to refresh the memory

82 People V. Mclntyre, 127 Cal. 423.
88 People V. Sierp, 116 Cal. 249.

84 People V. Cady, 117 Cal. 10.

85 People V. Morine, 54 Cal. 575; People v. Mitchell, 64
Cal. 87; People v. Ward, 105 Cal. 657; People v. Riley,
75 Cal. 101; Willard v. Superior Court. 82 Cal. 456;
People V. Cunningham, 66 Cal. 677.

8« People V. Mclntyre, 127 Cal. 423.
37 People V. Thompson, 84 Cal. 598.

88 People T. Cunnin^am, 66 CaL 668; Reid v. Reid, 73
Cal. 207; People v. Carty, 77 Cal. 216.

89 People V. Arthur, 93 Cal. 536.

*o People V. Kelley, 47 Cal. 125; People v. CBrien, 66 Cal.

*i People V. Belabe, 127 Cal. 243.

42 People V. Grundell, 75 Cal. 301.

43 People V. Ah Yute, 56 Cal. 119; People v. Sierp, 116 Cal.
250; People v. Lee Ah Yute, 60 Cal. 96; Reid v. Reid,
73 Cal. 207.

44 People y. QuriM, 59 Cal. 34S; Peeple v. Ckbrditer, 98 Cal.
132; People v. Gordon, 99 Cal. 233.

Digitized by VjOOQIC


of the witness." The reporter may testify from his notes
as to testimony in a former trial, subject to cross-exam-
ination.*® The stenographer at the preliminary exam-
ination need not be swom,*^ but unless properly authenti-
cated a transcript of his notes is not admissible. The court
may, however, allow him to refresh his memory from his
notes and testify orally as to what occurred at the exam-
ination.*® The reporter's notes are admissible, although not
certified, if sworn to, for the purpose of impeachment.**
A transcription of the notes of the testimony at a prelim-
inary, properly certified, is admissible, like depositions upon
the same footing.*^^ '


The identity of the person is presumed from the identity
of the name, and is prima facie evidence thereof.'*^ The
presumption of innocence does not cease on the submission
of a cause to the jury,*^^ but continues all through the trial
until the jury have reached a verdict of conviction.*'* It
prevails over a presumption of the continuances of a fact,
once shown tp exist,"* over the presumption of the contin-
uance of lif e,*^" of the continuance of marriage,"® and of
knowledge."^ It is the only presumption allowed in crim-
inal cases."* It is never overcome by another presumption.

4ft Burbank v. Dennis, 101 Cal. 104; People v. Gordon, 99

Cal. 233; People v. Gardner. 98 Cal. 132; People v.

Ammerman, 118 Cal. 23; People v. Carty, 77 Cal. 213.
4« People V. Lem You, 97 Cal. 224.
47 People V. Riley, 75 Cal. 98.
<8 People V. Carty. 77 Cal. 213; People v. Ward, 105 Cal.

40 People V. Morine, 61 Cal. 367.
50 People V. Grundell, 75 Cal. 301.
81 People V. De Winton, 113 Cal. 403; People v. Rolfe, 61

Cal. 640; People v. Chin Mook Sow, 51 Cal. 600; People

V. Riley, 75 Cal. 98; People v. Thompson, 28 Cal. 215.
52 People V. McNamara, 9x Cal. 509; People v. O'Brien, 106

Cal. 105; People v. Winthrop, 118 Cal. 92.
R3 People V. Arlington, 131 Cal. 231; People v. O'Brien, 106

Cal. 104; People v. McNamara, 94 Cal. 609.
34 People V. Strassman. 112 Cal. 683.
55 People V. Feilen, 58 Cal. 218.
50 People V. Stokes, 71 Cal. 263.

57 People V. Blackman, 127 Cal. 248.

58 People V. Douglass, 100 Cal. 1; People v. btrassman,
112 Cal. 687.

Digitized by VjOOQIC

388 CRDfllfAL LAW Al^ i»R0CEOUR£.


Two presumptions cannot stand together.** No presump-
tion is raised against the defendant by the law, if he docs
not attempt to explain suspicious circumstances.*® But the
consent of the husband to the wife's remaining in a house
of prostitution is presumed from his failure to object after
knowledge.** For all purposes except that of the trial of
the defendant, his indictment by the grand jury raises a
presumption of guilt, as in fixing the bail, the defendant
is presumed to be guilty."^


The court will take judicial notice of a change of judges,**
of the time of the rising of the moon,** and of the sun, and
may resort to an almanac to determine such questions.**
It takes knowledge of the facts which constitute a banking
game,** but it will not take judicial notice that a **poor'
necessarily involves gambling for money.*^ The knowledge
of a trial judge extends to the fact that he admonished the
bailiff, and he may refuse to be sworn to testify on such a
• point.**


The burden of proof is on the prosecution throughout the
trial to prove the criminal acts beyond a reasonable doubt,**
but the doctrine of reasonable doubt does not apply where
the defense is insanity. The burden of proof is there on the

w People V. Sanders, 114 Cal. 216; People y. O'Brien, 130
Cal. 1; People v. Douglass, 100 Cal. 1; People v. Strass-
man, 112 Cal. 687; People v. Krusick, 93 Cal. 79; Peo-
ple V. Roderlfi^as, 49 Cal. 11.

«o People V. Streuber, 121 Cal. 431.

«i People V. Bosquet, 116 Cal. 75.

«2 Ex parte Ryan, 44 Cal. 555; Ex parte Duncan, 53 Cal.
411; In re Williams, 82 Cal. 183.

«s People y. Ebanks. 120 Cal. 626.

«4 People V. Mayes. 113 Cal. 618.

«5 People V. Chee Kee, 61 Cal. 404.

«« People V. Carroll. 80 Cal. 153; People v. Rose, 85 Cal.
382; People v. Gosset, 93 Cal. 645.

«T Ex parte Bernert. 62 Cal. 531.

«8 People V. Azoff. 105 Cal. 632.

«» People V. Rodrigo, 69 Cal. 601; People v. Knapp, 71
Cal. 9; People v. Gordon, 88 Cal. 423.

Digitized by VjOOQIC

SVIDEN<». 389

defendant and he must, like other affirmative offenses, es-
tablish it by a preponderance of evidence. The law presumes
sanity .^^ Proof beyond a reasonable doubt is necessary to
establish any fact against the accused,^^ but a mere pre-
ponderance of proof is sufficient to establish a fact in his
favor.^^ The jury must be satisfied beyond a reasonable
doubt and for a certainty of the guilt of the defendant; it
cannot act on probabilities.^' The burden of proof does not
shift to the defendant to deprive him of the doctrine of
reasonable doubt,^* but in homicide cases where the com-
mission of the homicide by the defendant is proved, the
burden of proving circumstances of mitigation, or those
which justify or excuse it, devolves upon him, unless the
proof on the part of the prosecution tends to show that the
crime committed only amounts to manslaughter, or that
the defendant was justifiable or excusable.'* But this rule
applies only to homicide cases.'® In assault to murder, the

to People V. Coffman, 24 Cal. 230; People v. Wilson, 49
Cal. 14, same case, 57 Cal. 676; People v. Messersmlth,

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 31 of 77)