California Charles Howard Fairall.

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

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61 Cal. 248; People v. Pico, 62 Cal. 65; People v. Travers,
88 Cal. 238; People v. McNulty, 93 Cal. 443; People v.
Ward, 105 Cal. 343; People v. Bawden, 90 Cal. 199; Peo-
ple v. Bemmerly, 98 Cal. 304; People v. Hettick, 126 Cal.
425; People v. Barthleman, 120 Cal. 7; People v. Allen-
der, 117 Cal. 81; People v. McCarthy, 116 Cal. 265; Peo-
ple Y. Eubanks, 86 Cal. 295; People v. Kernaghan, 72
Cal. 609; People v. Bushton, 80 Cal. 160; People v. Mo-
Donell, 47 Cal. 134; People v. Hamilton, 62 Cal. 384;
People V. Elliott. 80 Cal. 296; People v. Myers, 20 CaL
518; People v. Ferris, 55 Cal. 591; People v. Schmidt,
106 Cal. 48; People v. Marshal, 59 Cal. 386; People v.
Smith, 59 Cal. 608; People v. Cheong Poon Ark. 61 Cal.
529; People v. Bell, 49 Cal. 485; People v. Wreden, 69
Cal. 396.

71 People V. Millgate, 5 Cal. 127; People v. Rodrigo, 69
Cal. 606.

72 People V. Millgate, 5 Cal. 127; People v. Stonecifer, 6
Cal. 410; People v. Coffman, 24 Cal. 236; People v.
Hong Ah Duck, 61 Cal. 395; People v. Knapp, 71 Cal.
9; People v. Rodrigo, 69 Cal. 605.

7» People V. O'Brien, 130 Cal. 1; People v. Dilwood, 94
Cal. 90; People v. Vereneseneckockockhoff, 129 Cal. 497.

7* People V. Cheong Foon Ark, 61 Cal. 627.

75 Penal Code 1105.

7* People V. Rodrigo. 69 Cal. 605; People v. Knapp, 71 Cal.
9: People v. Mize, 80 Cal. 46; People v. Gordon, 88 Cal.
423. I

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burden of proof remains on the prosecution throughout."
The prosecution must be consistent; it cannot make out a
case on one theory, and then upon a wholly inconsistent
theory meet a special defense.^* The offense charged in the
indictment, and not another, must be proved.^* In statutory
offenses the rule that persons may be guilty of the crime
without an intent to commit the same against the specific
person injured does not apply. ®°


The court may permit the prosecution on introduction of
evidence, to anticipate the defense,^^ or grant permission U
any time before the final submission to supply defects in
the evidence.®^ The statement of the case by the prosecution
where it shows the evidence is insufficient to convict, does
not entitle the defendant to a non-suit.*'


A hypothetical question must be based on the evidence,**
or upon some fact proved in the case.^*^ but it need not
include all the evidence.®* The whole testimony cannot be
read as a part of the question.®^


A person cannot be tried, adjudged to punishment, or
punished for a public offense, while he is insane.^ When an
action is called for trial, or at any time during trial, or when
the defendant is brought up for judgment on conviction, if

77 People V. Gordon, 88 Cal. 422; People v. Ribolsi, 89 Cal.

78 People V. Willard, 92 Cal. 482.
70 People V. Fagan, 98 Cal. 230.

80 People V. Keefer. 18 Cal. 636; People v. Mize, 80 Cal.

81 People V. Van Horn, 119 Cal. 323; People v. Arrighlni.
122 Cal. 121.

82 People V. Lewis, 124 Cal. 551.

83 People V. Ellsworth, 92 Cal. 594.
8* People V. Dunne, 80 Cal. 34.

85 People V. Graham, 21 Cal. 261.

86 People V. Hill, 116 Cal. 562; People v. Durrant, 116 CnL

87 People V. Goldenson, 76 Cal. 330.

1 Penal Code 1367; People v. Schmidt. 106 Cal. 48.

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a doubt arises as to the sanity of the defendant, the court
must order the question of his sanity to be submitted to a
jury ; and the trial or the pronouncing of the judgment must
be suspended until the question is determined by their ver-
dict.' The doubt as to the sanity of the defendant must
be in the mind of the judge before whom the cause is pend-
ing.'* An affidavit made by the defendant's attorney on
information and belief is not sufficient to warrant the court
in suspending the judgment to determine the question of
the sanity *of the accused.* Upon a doubt arising at the
trial the question of sanity must be deterrhined upon the
court's own motion, without the necessity of a plea, before
the main issues are decided." Insanity developed after
sentence will not authorize a reversal of judgment but
will operate to suspend punishment.*


If the evidence shows to the satisfaction of the jury that
the defendant was at another place than that of the com-
mission of the crime, at the very time, he has proved an
alibi and cannot be convicted.^ It is a defense often
attempted by contrivance, subornation and perjury; and
the proof offered to sustain it, consequently, should be sub-
jected to a rigid scrutiny.® It may be fabricated perhaps
with greater hope of success or less fear of punishment
than most other kinds of evidence; and honest witnesses
often mistake dates and periods of time and identity of per-
sons. Like other evidence, therefore, it may be open to
special observations by the court, but such observations
should not go to length of informing the jury that such

2 Penal Code 1368.

8 People V. Geiger, 116 Cal. 440; People v. Hettlck, 126

Cal. 425.
4 People V. Knott, 122 Cal. 410.
People V. Ah Ying. 42 Cal. 18; People v. Lee Fook, 85

Cal. 304.
« People V. Schmidt, 106 Cal. 48.

7 People V. 0*Neil, 59 Cal. 259; People v. Burns, 59 CaL

8 People V. Levlne, 85 Cal. 40. An instruction to this
effect would perhaps be unsound as invading the prov-
ince of the jury.

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evidence is less reliable than other evidence,* and this
defense should not be scrutinized more than other defenses."
Any circumstances which tend to show it are admissible."
A preponderance of evidence is not required ;** if the evi-
dence raises a reasonable doubt as to the defendant's pres-
ence at the crime, it is sufficient.*' Where an alibi is proved,
and there is not sufficient evidence to indicate an aiding
and abetting that would make the defendant principal in
the crime, the jury should acquit.**

» People V. Wong Ah Foo, 69 Cal. 180; People v. Lee Gam,
69 Cal. 552.

10 People v. Lattimore, 86 Cal. 408; People v. Levine, 85
Cal. 89.

11 People V. McCrea, 32 Cal. 98.

12 People V. JEloberta, 122 Cal. 377; People v. Lee Sare Bo,
72 Cal. 627.

13 Pepple V. Fong Ah Sing. 64 Cal. 253.
" People V. Schodde, 126 Cal. 373.

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The state never asks anything but justice. On the part
of the state, the prosecution is but a j^ir and just inquiry
into the guilt or innocence of the accu*se4!^^>^he can have
no interest in convicting the innocent or in^Mg^sing the
guilty. She stands perfectly impartial as between^JM com-
munity and the individual, and prosecuting attori^fcys
should therefore, do their duties faithfully, but no morcV\/
They should never act as employed counsel. No advantage
should be taken of temporary public excitement against
the prisoner, or of any prejudice against him, arising from
any cause whatever, and if such attempts are made, the
court before whom the prisoner is tried, should put a stop
to them.^ The district attorney should remember that it
is not his sole duty to convict, and that to Use his official
position to obtain a verdict by illegitimate and unfair means,
is to bring his office and the courts into distrust. With due
allowance for the zeal which is the natural result of the
legal battle, and for the desire of every lawyer to ynn his
case, a conscientious desire of a sworn officer of the court
should overcome these.'*


It is the province of the trial judge to pass on the mis-
^ conduct of the district attorney and its ruling will not be
disturbed except for an abuse of discretion.^ And any mis-
conduct of the district attorney which prejudice any of the

1 People V. Butler, 8 Cal. 441.

2 People V. Lee Chuck, 78 Cal. 329.

3 People V. Rushing. 130 Cal. 449.

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rights of the accused, is reversible error,* otherwise it is
not.** It must be such conduct as will influence the jury
in rendering their verdict.** But it is not reviewable unless
it is embraced in a bill of exceptions.® The objection and
exception must be taken in the court below,^ otherwise it
will not be reviewable.^ It cannot be urged for the first
time on appeal.* When the statement of the district attor-
ney in explanation is stricken out by the court, the error is
harmless.^** An objection in general terms is not suffi-
cient." The following acts have been held to be miscon-
duct and prejudicial to the rights of the defendant: Com-
menting on the failure to call a witness,*^ continuously ask-
ing improper questions,^^ and repeating them irrespective
of the nature of the answers,^* commenting on facts stricken
put of evidence and asserting that he knew the same of his
own knowledge,^** commenting on the silence of the defend-
ant at the coroner's inquest,^** and attempting in bad faith
to improperly influence the jury to defendant's damage in

* People V. Ah Len, 92 Cal. 282; People v. Sears, 119 Cal.
271; People v. Rodley, 131 Cal. 240; People v. Kamaunu,
110 Cal. 609; People y. Devine, 95 Cal. 234; People v.
Cokahnour, 120 Cal. 253; People v. Wells, 100 Cal. 463.
- *•- People Y. Ward, 105 Cal. 340; People y. Wong Chuey,
117 Cal. 630; People v. Putman, 129 Cal. 258.
/ 5 People v. Mayes, 113 Cal. 622; People y. Woon Tuck

Wo, 120 Cal. 295.
« People Y. Faulke, 96 Cal. 17.

7 People Y. Beaver, 83 Cal. 419; People y. Brittan, 118
Cal. 409.

8 People Y. Louie Foo, 112 Cal. 17; People y. Kramer, 117
Cal. 650.

» People Y. Lane, 101 Cal; 513; People y. Kramer, 117 CaL
647; People y. Brittan, 118 Cal. 412.

10 People Y. Bene, 130 Cal. 159; People y. Lee Chuck, 78
Cal. 317; People y. Ah Fook, 64 Cal. 380.

11 People Y. Frigerio, 107 Cal. 151; People y. Hickman, 113
Cal. 88; People y. Kramer, 117 Cal. 651.

12 People Y. Smith, 121 Cal. 355.

IS People Y. Wells, 100 Cal. 459; People y. Gordon, 103 Cal.

573; People y. Ward, 105 Cal. 340; People y. Searcey,

121 CaL 4; People y. Ryan, 108 Cal. 585; People ▼. Un

Dong, 106 Cal. 88.
i< People Y. Mullings, 83 Cal. 138; People y. Wells, 100

Cal. 464.
15 People Y. Valliere, 127 Cal. 65; People y. Bowers, 79
^ Cal. 415; People v. Wells, 100 Cal. 459.

i« People Y. Lemperle, 94 Cal. 45.

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the opening statement.^^ But statement of facts intended
to be proved," or offering in good faith to make pi»oof even
though nnable to do so, is not misconduct.*® Nertbcr is a
reference to a well known historical incident by way of
illustration,^® nor charging malice to the defendant where
he is convicted of manslaughter,*^ nor the use of discour-
teous language to counsel for defendant,*^ nor a request
of by-standers to retire while prosecutrix is testifying."
A mis-statement of evidence in the argument will not war-
rant a reversal, if the statements were made in reply to
similar argument by the counsel for the defendant, and the
court instructs the jury not to consider them.^* Where the
testimony is ruled out, or the question withdrawn, upon
objection or upon suggestion by the court that it is improper^
there is no misconduct.***


Misooftduct of the court in the presence of the jury is
rev<ersible error if excepted to.^® But the miscoaiduct must
be juc^ed from the record alone. ^' Improper remarks of
the judge are not error, if the jury is instructed to dis-
regar4 them.^® The censure of defendant's counsel is not
improper,^® where counsel insists upon repeating many
immaterial quefitions.^® But ai statement by the court, upon

" Feople V. Searcey, 121 Cal. 1; People v. Wells, 106 Cat

18 People V. Gleason, 127 Cal. 323.
i» People V. M'Kay, 122 Cal. 628.

20 People V. Barthleman, 126 Cal. 9.

21 People V. Yokum. 118 Cal. 438.

22 People V. Patterson, 124 Cal. 162.
2» People V. Vann. 129 Cal. 118.

2* People V. Bneh, 68 Cal. 623.

2» People V. Ward, 165 Cal. 385; People v. Mayee, 113 Cal.

622; People v. Wong Chuey, 117 Cal. 636; People v.

Bowers, 79 Cal 416; People v. Hamberg, 84 Cal. 474;

People V. Devine, 95 Cal. 231; People v. Wells, 106 Cal.

463; People v. Phelan, 128 Cal. 551; People v. Ross, 86

Cal. 383.
28 People V. Abbott, 161 CaL 645; People v. Hawley, 111

Cal. 78.

27 People V. Goldenson. 76 Cal. 828.

28 People V. Northey, 77 CaL 618; People t. Mayes, 11 J
Cal. 623.

28 People V. Baker, 166 Cal. 188.
80 People V. Ollverta, 127 Cal. 376.

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a disagreement of the jury, that it could not understand
why twelve honest men could not agree is not cured by
a charge that the jury is judge of the facts.** The reasons
for the ruling of the court are not important if the decision
is correct,*^ and an order in general terms is not limited
by the opinion of the court making it.'*


The neglect or refusal of the defendant to be a witness
cannot in any manner prejudice him, nor be used against
him on the trial ;** neither can his failure to testify be com-
mented on,** nor taken into consideration by the appellate
court,*" nor can any presumption be indulged in against
him on account of such failure.*^ But error based upon an
abuse of his right to refuse to testify should be taken advan-
tage of upon motion for a new trial.** The right to open and
close the case belongs to the district attorney.** The num-
ber of attorneys who are allowed to argue is within the dis-
cretion of the court.** In any offense not punishable with
death, the court may refuse to permit more than one coun-
sel to argue the case.** The court should fix reasonable
limits to the time of argument of counsel,** but it cannot
unreasonably limit it.** The court may refuse to allow
counsel to argue the law in his opening statement,** and
confine him to a statement of the facts expected to be proved
and effects thereof.** The qpurt shoul d not allow co unsel

81 People V. Kindleberger, 100 Cal. 367.

82 People V. Graham, 21 Cal. 261.
as People v. Flood, 102 Cal. 330.
8* Penal Code 1323.

85 People V. Brown, 53 Cal. 67; People v. Tyler, 36 Cal.
522; People v. McGungill, 41 Cal. 431; People v. San-
ders. 114 Cal. 218.

8» People V. Page. 116 Cal. 388.

8T People V. Anderson, 39 Cal. 703.

8s People V. Sansome, 98 Cal. 235.

89 People V. Mortimer, 46 Cal. 115.

40 People V. Ah Wee, 48 Cal. 236.

41 People V, Jones, 123 Cal. 65.

42 People V. Tock Shew, 6 Cal. 637.
48 People V. Green, 99 Cal. 564.

** People V. Carty, 77 Cal. 213.

-•5 People V. Goldenson, 76 Cal. 328; People v. B&sj, 67

Cal. 223.

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to State or argue on facts not proved nor sought to be
proved." But erroneous statements of the evidence is not
ground for a new trial.*^ Counsel may express an opinion
in his argument,** and physical illustrations may be used
where the jury is cautioned that the argument is not evi^
dence.** The range of discussion of counsel on argument
before the jury is wide. Matters of common knowledge and
historical facts may be referred to, and interwoven in the
argument. Allusions may be made to the prevalence of
crime, and to the duty of the jury.*^ No advantage can be
taken of the misconduct of an attorney on the argument,
unless the interposition of the court is asked and exceptio»
taken for a refusal,** but improper comments of the district
attorney, if not stopped by the court after objection, is
reversible error.*^* The defense must be made after all the
evidence is in, and the court will not allow argument to be
made until after the prosecution closes its case."* Reading
law to the jury is not error where the court instructs the
jury to disregard it,** but the practice is not commendable.**
And where the record is silent as to the character of the
extract sought to be read, no error can be predicated on a
refusal to allow the reading of law books to the jury.**
Counsel may not on argument read as part of his argument

*« People V. Mitchell, 62 Cal. 411; People v. Barnhart, 59^

Cal. 381; People v. Lee Chuck, 78 Cal. 329; People v.

Smith. 121 Cal. 362.
<T People V. Barnhart, 59 Cal. 402; People v. Lee Ah Yute,

60 Cal. 97.
48 People V. McMahon. 124 Cal. 435.
40 People V. Durrant, 116 Cal. 185.
80 People V. Molina. 126 Cal. 505; People v. Hall, 94 Cal.

599; People t. Mitchell, 62 Cal. 412; People v. Wheeler.

65 Cal. 77.
61 People v. Ah Fook, 64 Cal. 380; People v. Beaver. 83

Cal. 419; People v. Abbott, 101 Cal. 647; People v.

Kramer. 117 Cal. 651.
M People V. Lee Chuck, 78 Cal. 317; People v. Wells. 100^

Cal. 463; People v. Hamberg, 84 Cal. 474; People v.

Devine, 95 Cal. 231; People v. Lemperle, 94 Cal. 48.
M People V. Williams, 43 Cal. 344; People v. Gtoldenson.

76 Cal. 348.
M People V. Tread well, 69 Cal. 226.
58 People V. Forsythe, 65 Cal. 101.
8« People V. Gtodwin. 123 Cal. 374; People v. Anderson..

44 Cal. 70.

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Standard medical works.*'' The court may allow private
counsel to assist the district attorney j'^* in its discretion."
It is not restricted in allowing such associate counsel to
times when the district attorney cannot conduct the pros-
ecution.^** The associate counsel may make the closing
argument by permission of the court.**


Upon a failure of proof in a particular necessary to con-
viction, a verdict of not guilty should be directed by the
court f^ but when the failure is not so clear as to present
a question of law for the court, it has no power to direct
a verdict of not guilty ; it may, however, advise the jury to
bring in such a verdict.**^ The jury is not bound to obey,
however.®** An exception to a refusal to advise the jurj'
to acquit is authorized only when there is an absence of
substantial evidence as to some material fact.** It is
improper when there is evidence of guilt,**^ or where the
evidence is conflicting.®*


The object of rules is to expedite the trial of causes and
not to delay them,*' and a strict observance should not be
permitted to impede justice.*'* Rules requiring the sub-

57 People V. Wheeler, 60 Gal. 581; People v. Mitchell 62

Cal. 412.
68 People V. Powell, 87 Cal. 350; People v. Turoott, 65 GUI.

50 People V. Blackwell, 27 Cal. 66; People v. Gregory, 120

Cal. 16; Benton v. Budd, 120 Cal. 332.
eo People v. Walters, 98 Cal. 138.
«i People V. Strong, 46 Cal. 303; People v. Murphy, 47 Cal.

62 People V. Jones. 31 Cal. 566; People v. Eiagan, 116 Cal.

«8 People V. Roberts, 114 Cal. 67; People v. Ammerman,

118 Cal. 28; People v. Horn, 70 Cal. 17; People r. Dan-
iels. 105 Cal. 266.
63a People V. Daniels, 105 Cal. 266.
«* People V. Lewis, 124 Cal. 551.

65 People V. Luchetti, 119 Cal. 502.

66 People V. Piggott; 126 Cal. 510.

67 People V. Durrant, 119 Cal. 201.
e7a People v. SHva, 121 Cal. 668.

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mission of instructions to the other side under penalty of
having the same refused are not just."


The court has inherent power to amend the record to con-
form to the truth,^® and may do so even after judgment.^^
It is doubtful whether the record can be amended after an
appeal. ^^

e8 People V. Williams, 32 Cal. 280.

«» People V. Durrant, 116 Cal. 179; People v. Curtis, 113
Cal. 68.

70 People V. Murback, 64 Cal. 370; People v. Goldenson. 76
Cal. 345; People v. McNulty, 93 Cal. 444.

71 People V. Moore. 103 Cal. 508.

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It is the duty of the jury to decide all questions of fact
arising on the general issue of not guilty. It has the right
to find the facts and apply to them the law as given by the
court.* It cannot decide on the pertinency of the evidence.
It is in no case the judge of the law,^ except in prosecution
for criminal libel/ but is bound by the law as given by the
court.* The jury are the exclusive judges of the credibility
of witnesses, of the weight of testimony, of the facts estab-
lished, of the presumptions deducible from such facts,* and
of the credibility atid weight of circumstances,' imless the
verdict indicates that it was given under the influence of
passion.^ For such purpose the jurors may use their
eyes as well as their ears,* but they are not allowed
arbitrarily to believe a part and disbelieve a part of the evi-
dence. Their discretion is not unlicensed.® The court has
the right to state the evidence for the purpose of pointing
its instructions and making their pertinency apparent to the
jury, if it assumes no fact as proven and states nothing by

1 People V. Lem You, 97 Cal. 224.

2 People V. Ivey, 49 Cal. 56.

8 Constitution Art. 1, sec. 9; Penal Code 251.

* People V. Worden, 113 Cal. 569.

People V. Messersmith, 61 Cal. 246; People v. Clark, 84
Cal. 573; People v. Wright, 93 Cal. 564; People v. Bw-
lish, 30 Cal. 215.

« People V. Barry, 31 Cal. 357.

T People V. Sullivan, 129 Cal. 557; People v. Manning, 18
Cal. 335; People v. Mayes, 66 Cal. 597; People v. Ah
Jake. 91 Cal. 98; People v. Freeman, 92 Cal. 359.

« People V. Storke, 128 Cal. 486.

• People V. Strong, 30 Cal. 151.

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way of argiunent thereon, nor anything calculated, expressly
or by way of implication, to indicate a shifting of burden
of proof to the defendant.^® It is for the jury to determine
what is the substance and effect of the testimony ,^^ the
weight of evidence,^* and to determine the facts and render
a verdict in accordance with instructions given." While it
is improper for the court to instruct the jury with respect to
matters of fact, it may state the testimony and declare the
law.^* The safer course is to confine the instructions, unless
requested by defendant, to a few general principles of law.*'
Instructions should contain all applicable principles of law,
but no opinion upon the facts.*" All instructions upon fact
are erroneous and should be refused as invading the province
of the jury.*^ Instructions dangerously near the border line
should not be given.*® The judge cannot be too cautions
in this regard.** The jury should not in any case be allowed
to deduce the judge's opinion as to the guilt or innocence
of the defendant, from his instructions.^^ And where an

10 People V. Brlttan, 118 Cal. 409.

11 People V. Gtordon, 88 Cal. 422; People v. Choynski, 95
Cal. 643; People v. Lang. 104 Cal. 367; People v. Hertz,
105 Cal. 665; People v. Worthlngton, 115 Cal. 244.

12 People V. Cllne, 83 Cal. 374; People v. Willard, 92 Cal.
482; People v. Travers, 88 Cal. 233; People v. Van Ewan,
111 Cal. 152; People v. Rolfe. 61 Cal. 540; People v.
Titherington, 59 Cal. 598; People v. Thomson, 92 Cal.
506; People v. Williams, 59 Cal. 674; People v. Ah Sing,
59 Cal. 400; People v. Malaspina, 57 Cal. 628.

18 People V. Madden, 76 Cal. 521.

1* Constitution, Art VI, sec. 19.

IB People V. Ah Fung, 17 Cal. 377; People v. Byrnes, 80

Cal. 208.
i« People V. Samonset, 97 Cal. 448; People v. McNamara,

94 Cal. 509: People v. Van Ewan, 111 Cal. 152; People

V. Tapia. 131 Cal. 647.
IT People V. Cowgill, 93 Cal. 596; People v. Casey, 65 Cal.

260; People v. Flynn, 73 Cal. 516; People v. Hitchcock,

104 Cal. 485; People v. Webster, 111 Cal. 384; People

V. Ah Oon. 56 Cal. 188; People v. Dick, 34 Cal. 663;

People V. Fong Ching, 78 Cal. 173; People v. Murray,

R6 Cal. 35; People v. Travers. 88 Cal. 233; People v.

Van E>J7an. Ill Cal. 152; Peonle v. Wallace, 89 Cal. 168;

People V. Mitchell, 55 Cal. '236.
18 People V. Opie, 123 Cal. 295.
10 People V. Hertz, 105 Cal. 660.
20 People V. Stanton, 106 Cal. 139; People v. Van Ewan,

111 Cal. 152.


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instruction given invades the province of the jury, the
-appellate court will not weigh the testimony to determine
whether the verdict is right under the evidence. The error
is not cured by a general instruction that the jury should
disregard the opinion of the court as to the facts.*^ In
perjury cases the court may instruct as to what facts will
show material testimony.^* The following have been held
to be instructions on the facts: a statement that the wit-
nesses undertake to testify to certain facts;" an instruc-
tion upon the credibility of relatives of the defendant as
witnesses ;^* upon necessity of a motive ;'* upon the relative

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 32 of 77)