California Charles Howard Fairall.

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

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Neary, 104 Cal. 373; People v. Roney, 100 Cal. 375.

8« People V. Lachanais, 32 Cal. 434.

37 People V. Adams. 85 Cal. 231.

38 People V. Strong, 30 Cal. 151.

39 PeoDle V. Guidice. 73 Cal. 226; People v. Barney, 114
Cal. 558; People v. Arnold, 116 Cal. 688; People v.
Northey, 77 Cal. 618; People v. Bruggy, 93 Cal. 486;
People V. Flee, 97 Cal. 460; People v. Oliveria, 127 CaL
376; People v. Haun. 44 Cal. 96; People v. Ah Wee, 48
Cal. 239; People v. Gray, 66 Cal. 277; People v. Flynn,
73 Cal. 514; People v. Olsen. 80 Cal. 128; People v.
McLean, 84 Cal. 483; People v. Marks, 72 Cal. 46; Peo-
ple V. Dollor, 89 Cal. 517; People v. Brittan, 118 Cal.
409; People v. Appleton, 120 Cal. 250; People v. Frank-
lin, 70 Cal. 641; People v. Winthrop, 118 Cal. 91: People
V. Wallace, 109 Cal. 611; People v. Gray. 66 Cal. 271;

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any point he should ask for them.*® It is the duty of the
court to give of its own motion only a few general instruc-
tions applicable to the law of the case.*^ The court may
require written instructions asked for to be handed to it
before argument, in the absence of any injury being shown
to the defendant,'*^ but not where compliance with such a
rule works injury to a party." The jury may take the
instructions with them to the jury room/* but the practice
is to take only the ones given them, not those refused.**
The court may recall the jury for further instructions
without any request on their part.**^^ The request by the
jury for further instructions does not confine the court to
the points upon which instructions are asked, provided the
language used, though not the best that could have been
used, was not such that the jury could have been misled,
and the court may instruct upon such further points as it
sees fit.*® Exceptions to the instructions may be made at
the trial .*^ Instructions favorable to the defendant,
although verging on error, do not entitle to a new trial.*^
The defendant cannot complain upon appeal of error in
instructions given at his own request.*® But where the
instructions are confessedly erroneous, they are not cured
by a showing that the defendant requested similar instruc-

People V. Christensen, 85 Cal. 571; People v. McNutt^
93 Cal. 658; People v. Ahem, 93 Cal. 519; People v. Mar-
shall, 120 Cal. 70.
*o People V. Byrnes, 30 Cal. 207.

41 People V. Williams, 32 Cal. 285.

42 People V. Sears, 18 Cal. 635; People v. Williams, 32
Cal. 289.

43 People V. Demasters, 105 Cal. 669; People v. Silva, 121
Cal. 670.

44 People V. Cummings, 57 Cal. 89. '

45 People V. Barthleman, 120 Cal. 7.

45a People V. Perry, 65 Cal. 568; Penal Code 1138.

46 People V. M'Kay, 122 Cal. 628.

4T People V. Chu Quong, 15 Cal. 332.

48 People V. Messersmith, 61 Cal. 246; People v. Lundin,

120 Cal. 308; People v. Turcott, 65 Cal. 126.
40 People V. Rangod, 112 Cal. 669; People v. Holmes, 126

Cal. 462; People v. Lon Yeck, 123 Cal. 246; People v.

Lopez, 59 Cal. 362.
50 People V. Cole, 127 Cal. 545.

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Instructions must be based upon the testimony in the case,
and must be applicable to the facts, and justified by the
evidence,*^^ or based upon a theory logically deducible from
the facts,^^ and not upon a hypothetical case.*^' But an
instruction on the hypothesis of guilt may be proper,** pro-
vided it does not invade the province of the jury," yet the
practice of giving such instruction is not commendable."
And an instruction, if legally correct, based on the hypo-
thesis of the truth of the defendant's testimony, is proper,'^
but abstract statements of the law, which can serve no
useful purpose, are always improper, and should be
refused.*^® Errors upon merely abstract principles of law
will not be reviewed.^* Inapplicable instructions tending

61 People V. Arnold, 15 Cal. 477; People v. Byrnes, 30 Cal.
207; People v. Best, o. Cal. 691; People v. Atherton, 51
Cal. 495; People v. Sanchez, 24 Cal. 28; People v. Codi-
ran, 61 Cal. 648; People v. Hecker, 109 Cal, 452; People
V. Brown, 130 Cal. 592; People v. Davis, 47 Cal. 93;
People v. Turley, 50 Cal. 469; People v. Lee Gam, 69
Cal. 552; People v. Chavez, 103 Cal. 408; People v. Mur-
back, 64 Cal. 371; People v. Williams, 32 Cal. 280; Per-
kins V. Eckert, 55 Cal. 405; People v. Murphy, 47 Cal.
103; People v. Ramirez, 56 Cal. 533; People v. Bird, 60
Cal. 7; People v. Barry, 90 Cal. 41; People v. Hartman,
130 Cal. 488; People v. Worthington, 122 Cal. 583; Peo-
ple v. Bourke, 66 Cal. 456; People v. Juarez, 28 Cal.
380; People v. March, 6 Cal. 543; People v. Gleason, 122
Cal. 370; People v. Devlne, 95 Cal. 227; In re Carklns,
112 Cal. 296; People v. Fellows, 122 Cal. 233; People v.
Oldham, 111 Cal. 648.

»2 People V. Sanchez, 24 Cal, 17; People v. Byrnes, 30 Cal.
207; People v. Best, 39 Cal. 691; People v. Atherton, 51
Cal. 498; People v. Bourke, 66 Cal. 456.

B3 People V. Byrnes, 30 Cal. 207; People v. Taylor, 36 Cal.
255; People v. Atherton, 51 Cal. 598; People v. Gilbert,
60 Cal. 109.

B4 People v. Bruggy, 93 Cal. 477.

85 People V. Westlake, 62 Cal. 303; People v. Lemperle, 94
Cal. 46; People v. Hill, 116 Cal. 568; People v. Mllner.
122 Cal. 181.

56 People v. Dixon, 94 Cal. 255.

57 People v. Keefer, 65 Cal. 234; People v. Hecker, 109
Cal. 460.

58 People V. Smith, 105 Cal. 676; People v. M'Kay, 122 Cal.
629; People v. Roberts, 6 Cal. 214; People v. March, 6
Cal. 548; People v. Best, 39 Cal. 691; People v. Williams,
43 Cal. 351: People v. Gibbs, 98 Cal. 661.

50 People V. Walsh, 43 Cal. 447.

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to confuse the jury, are reversible error,'*^ as where instruc-
tions are given on circumstantial evidence when all the
evidence in the case is direct.®* Argumentative instruc-
tions are not permitted.^^ In the absence of a bill of excep-
tions which contains the evidence in the case, or an authen-
tication by an endorsement of the judge, showing his action
on the instructions, the appellate court will presume that the
instructions given were correct if they are applicable to any
conceivable state of facts,®^ but where they are wrong under
every conceivable state of facts, the court will review with-
out a bill of exceptions or authentication by the judge.®*
It is not good practice to instruct the jury as to the purpose
or object of the statute®^ as to the nature aC thp offense
charged f^ that it is safer to err in favor of the deflMdant,"
or that as jurors they are not bound to believe whaiH^Jey
believe as men.®® Instructions can only be reviewed fromlA^
their contents, and the manner of the judge in giving them /Vj

«o People V. Devine, 95 Cal. 227; People v. Gleason, 122
Cal. 372.

61 People V. Turner, 65 Cal. 540; People v. Sheldon, 68 Cal.

«2 People V. Barney, 114 Cal. 554.

68 People y. Whitney, 53 Cal. 420; People v. Worden, 113
Cal. 576; People v. Dick, 32 Cal. 213; People v. Smith,
57 Cal. 130; People v. Donguli, 92 Cal. 609; People v.
Ferguson, 34 Cal. 309; People v. Clark, 84 Cal. 581;
People V. O'Leary, 77 Cal. 30; People v. Trim, 37 Cal.
274; People v. Bemmerly, 87 Cal. 117; People v. Keeley,
81 Cal. 212; People v. O'Brien, 78 Cal. 41; People v.
Beaver, 83 Cal. 419; People v. Thompson, 28 Cal. 216;
People V. Rogers, 81 Cal. 209; People v. Marseiler, 70
Cal. 98; People v. Martin, 32 Cal. 92; People v. Tee-
herow, 40 Cal. 286; People v. Bourke, 66 Cal. 455; Peo-
ple V. Johnson, 61 Cal. 142; People v. Padillia, 42 Cal.
538; People v. January, 77 Cal. 179; People v. Ah Lee
Doon, 97 Cal. 175; People v. Clark, 106 Cal. 36; People
V. Wallace. 107 Cal. 137; People v. Ludwig, 118 Cal.

6* People V. Strong, 46 Cal. 303; Peonle v. Donahue, 45
Cal. 321; People v. King, 27 Cal. 507; People v. Torres,
38 Cal. 143; People v. Dick, 32 Cal. 215; S. C, 34 Cal.
665; People v. Brotherton, 47 Cal. 404; People v. Smith,
57 Cal. 131: People v. Gilbert, 60 Cal. 112.

65 People V. Slater, 119 Cal. 620.

66 People V. Brennan, 121 Cal. 495.

«7 People V. Durrani, 116 Cal. 179; People v. Findley, 132

Cal. 301.
68 People V. Amraerman, 118 Cal. 24.


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cannot be considered upon appeal, unless his misconduct
is made to appear in the mode prescribed by the code.'*


The court cannot give oral instructions without the con-
sent of the accused.^** but where it is on an immaterial mat-
ter it is not reversible error ;^^ such as a conversation by the
court with the jury as to verdict, not prejudicial to the
defendant.^^ Oral instructions cannot be given even after
the jury has returned for further instructions,^* nor can
modifications of instructions be so given.'* Oral instruc-
tions must be reduced to writing by the judge, or other per-
son, or taken down by the shorthand reporter.^' Instruc-
tions need not be in writing if taken down by the reporter ."'•
The oral directions 1;o the jury to return and fix the degree,
is not a charge necessary to be in writing."'^ Oral instruc-
tions may be given with the express consent of the accused,
or by the mutual consent of the parties,^® but the record
must show such consent,^* as it cannot be presumed, even

69 People V. De Graaff. 127 Cal. 678.

70 People V. Hersey. 53 Cal. 574; People v. Carrillo, 70 CaL
645; People v. Cox, 76 Cal. 282; People v. Leary, 105
Cal. 497; People v. Prospero, 44 Cal. 186; People ▼.
Beeler, 6 Cal. 247; Penal Code 1127; People v. Payne. 8
Cal. 344; People v. Trim, 37 Cal. 276; People v. San-
ford, 43' Cal. 35; People v. Ah Fong. 12 Cal. 347; People
V. Woppner, 14 Cal. 438; People v. Chares, 26 Cal. 79.

71 People V. Jackson, 57 Cal. 316; People v. Beck, 58 Cal.

72 People V. Leary, 105 Cal. 487.

73 People V. Woppner, 14 Cal. 437; People v. Chares, 26
Cal. 79; People v. Trim, 37 Cal. 276.

74 People V. Payne, 8 Cal. 341; People v. Woppner, 14 Cal.
438; People v. Chares, 26 Cal. 79; People v. Trim. 37
Cal. 276; People v. Stanford, 43 Cal. 35; People v. Her-
sey, 53 Cal. 575; Penal Code 1093.

75 People V. Carrillo, 70 Cal. 643.

70 People V. Curtis, 76 Cal. 57; People v. Cox, 76 Cal. 281;
People V. Hersey, 53 Cal. 575; People v. Prospero, 44
Cal. 186; Penal Code 1093.

77 People V. Bonney, 19 Cal. 427; People v. Jackson, 67
Cal. 317.

78 People V. Bumberger, 45 Cal. 650; People v. Kearney,
43 Cal. 383.

79 People V. Trim. 37 Cal. 274. .

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where the defendant is present and does not object.*® It
is the duty of the court to certify oral instructions^ when
taken down by the reporter and written out, so as to make
them a part of the record.*^ The appellate court will not
presume, however, that the instructions were oral because
the record does not state affirmatively that they were in
writing.*^ The presumption is the other way, and unless
the record affirmatively shows the contrary, the court will
presimie they were in writing,®' or were taken down by the '


It is the duty of the court to certify the instructions so
as to make them a part of the record.®*^ They should be
signed by the judge and marked whether given or refused.®*
But instructions given by the couj^ of its own motion, need
not be marked. It is sufficieOT^ ^^^^ appears that the
charge was given.®^ The reason for'^Ji^^efusal to give
an instruction need not be given,®® exce^/where it was
refused upon the ground that it had been arn^d^ given,
when the reason for refusal must be stated and tnOjiusal
must be based on that ground alone.®^ But this rJ^ is
qualified to the extent that the instructions asked for be
free from objections.****


In every crime or public offense there must exist a union

80 People V. Sanford, 43 Cal. 29; People v. Prospero, 44 Cal.
186; People v. Chares, 26 Cal. 79; People v. Leary, 105
Cal., 502.

81 People V. Clark, 106 Cal. 32.

82 People V. Wright, 45 Cal. 260.

83 People V. Garcia, 25 Cal. 532; People v. Shuler, 28 Cal.
496; People v. Chung Lit, 17 Cal. 321; People v. Bum-
berger, 45 Cal. 650; People v. McGregar, 88 Cal. 140.

8* People V. Ferris, 56 Cal. 442; People v. Bourke, 66 Cal.
457; People v. Ludwig, 118 Cal. 329.

85 People V. Clark, 106 Cal. 32.

86 People V. Lockwood, 6 Cal. 205; Penal Code 1127.

87 People V. Samsels, 66 Cal. 100.

88 People V. Sears, 18 Cal. 635; People v. Garcia, 25 Cal.
531; People v. Shuler, 28 Cal. 490; People v. Chares, 26
Cal. 78; People v. Bonney, 49 Cal. 426.

8» People V. Williams. 17 Cal. 143; People v. Hurley, 8 Cal.

390; People v. Ramirez, 13 Cal. 173.
»o People V. Hobson, 17 Cal. 424; People v. Ramirez, 56

Cal. 588.

CmMKS - 27

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^yt joint operation of act and intent, or criminal negligence.*

Thie intent or intention is manifested by the circumstances
'connected with the offense and the sound mind and discre-
tion of the accused. All persons are of sound mind who
-lare fteither idiots nor lunatics nor affected with insanity.*

The word wilfully, when applied to the intent with which
an act is done or omitted, implies simply a purpose or wil-
lingness to commit the act or make the omission referred
to. It does not require any intent to violate law or to
injure another or to acquire any advantage.*

The words " malice " and " maliciously " import a wish
to vex, annoy or injure another person, or an intent to do a
wrongful act, established either by proof or by presumption
of law.*

The jury are not bound to decide in conformity with the
declarations of any number of witnesses which do not pro-
duce conviction in their minds against a less number or
against a presumption or other evidence satisfying their

A witness false in one part of his testimony is to be dis-
trusted in others; that is to say, the jury may reject the
whole of the testimony of a witness who has wilfully sworn
falsely as to a material point; and the jury being convinced
that a witness has stated what was untrue, not as the result
of mistake or inadvertence, but wilfully and with the design
to deceive, must treat all of his testimony with distrust and
suspicion, and reject all unless they shall be convinced, not-
withstanding thei base character of the witness, that he has
in other particulars sworn to the truth.*

If weaker and less satisfactory evidence is offered, when
it appears that stronger and more satisfactory was within
the power of the party, the evidence offered should be
viewed with distrust.''

1 Penal Code 20.

2 Penal Code 21.

3 Penal Code 7, sub. 1.

* Penal Code, sec. 7, sub. 4.

5 Code of Civil Procedure 2061, sub. 2.

« Code of Civil Procedure 2061, sub. 3; People v. Sprague.

53 Cal. 494; People v. Hicks, 53 Cal. 354.
7 Code of Civil Procedure, 2061, sub. 7.

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The court further instructs the jury, that every person is
presumed to intend the reasonable and natural consequences
of his own voluntary acts.


A witness is presumed to speak the truth. This pre-
sumption, however, may be repelled by the manner in which
he testifies, by the character of his testimony, or by evidence
affecting his character for truth, honesty or integrity, or his
motives, or by contradictory evidence, and the jury are the
exclusive judges of his credibility.^

A witness may be impeached by the party against whom
he was called, by contradictory evidence, or by evidence that
his general reputation for truthj honesty or integrity is bad,
but not by evidence of particular wrongful acts, except that
it may be shown by the examination of the witness, or the
record of the judgment, that he has been convicted of a

As you have already been instructed, every competent
witness is presumed to speak the truth. Whether the pre-
sumption is removed by evidence is a matter of which the
jury are the exclusive judges. Although a witness may be
impeached in the manner already stated, yet, it remains
for the jury to determine whether a particular witness has
told the truth in the case, notwithstanding that the fact may
be established that his general reputation for truth, honesty
and integrity is bad, or that his motives are not good, or
that his testimony may have been met by contradictory evi-
dence, and the jury may believe a witness, notwithstanding
proof of his conviction of a felony. A former conviction
does not necessarily and as a matter of law, deprive a par-
ticular witness of any portion of the credit presumptively
due to the testimony of witnesses.'

1 Code of Civil Procedure, sec. 1847.

2 Code of Civil Procedure, sec. 2051.

3 People v. McLane, 60 Cal. 412.

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The court instructs the jury that the prosecution is not
required to call as its own witnesses all persons who were
shown to be present.*


The jury are instructed that to the jury exclusively
belongs the duty of weighing the evidence, and determining
the credibility of the witnesses. In determining the credi-
bility of a witness the jury may take into consideration his
character and conduct, his manner upon the stand, his rela-
tion to the controversy and to the parties, if any, his hopes
or his fears, his bias or impartiality, the reasonableness or
unreasonableness of the statements he makes, the strength
or weakness of his recollection, viewed in the light of all
the other testimony, and facts and circumstances in proof in
the case.


The court instructs the jury that a conviction cannot be
had on the testimony of an accomplice, unless he is cor-
roborated! by other evidence which in itself, and without the
aid of the testimony of the accomplice, tends to connect the
defendant with the commission of the offense. I charge
you that such corroborative evidence is not sufficient if it
merely shows the commission of the offense or the circum-
stances thereof. It must connect the defendant with the
commission of the crime charged."


The court instructs the jury that if you believe from the
evidence that the defendants named in the information, or
any two of them, pursued by their acts the same object,
whether by the same means or by different means, so as to
complete it with a view to the attainment of the same
object, the jury will be justified in the conclusion that

4 People V. Bush, 71 Cal. 607; People v. Robertson, 67

Cal. 651.
6 People V. Compton, 123 Cal. 403.

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such defendants so pursuing the same object were engaged
in a conspiracy to effect that object.®


The flight of a person immediately after the commis-
sion of a crime, or after a crime has b6en committed with
which he is charged, is a circumstance to be weighed by
the jury as tending in some degree to prove a conscious-
ness of guilt, and is entitled to more or less weight, accord-
ing to the circumstances of the particular case. Evidence
of flight is received, not as a part of the res gestae of the
criminal act itself, but as indicative of a guilty mind; and
if you believe from the evidence in this case that the

defendant , it is a circumstance to be weighed by

you as tending in some degree to prove a consciousness of
guilt. It is not sufficient of itself to establish the guilt
of the defendant, but the weight to which that circum-
stance is entitled is a matter for you to determine in con-
nection with all the other facts and circumstances called
out in this caseJ


If a person, when arrested on a criminal charge, and
after being informed of the cause of his arrest, escapes, or
attempts to escape, it is al circumstance which the jury may
consider in determining his guilt or innocence.®


The court instructs the jury, that if you believe from the
evidence, beyond a reasonable doubt, that the defendant
was arrested for the crime charged in the information,
and that after being informed of the cause of his arrest,
escaped or attempted to escape from the person having him
under arrest, it is a circumstance that the jury may con-
sider in determining his guilt or innocence.*

8 People V. Bently, 75 Cal. 409.
• 7 People V. Bushton, 80 Cal. 163.
8 People V. Strong, 46 Cal. 302.
» People V. Strong, 46 Cal. 303.

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A defendant in a crimiiial action is presumed to be inno-
cent until the contrary is proved. And in case of a rea-
sonable doubt whether his* guilt is satisfactorily shown, he
is entitled to an acquittal.^^


Reasonable doubt is not mere possible doubt, because
everything relating to human affairs and depending on
moral evidence, is open to some possible or imaginary
doubt. It is that state of the case, which, after the entire
comparison and consideration of all the evidence leaves the
minds of jurors in; that condition that they cannot say they
feel an abiding conviction to a moral certainty of the truth
of the charge. The burden of proof is upon the prose-
cutor. All the presumptions of law, independent of evi-
dence, are in favor of innocence, and every person is pre-
sumed to be innocent until he is proven guilty. If, upon
such proof, there is reasonable doubt remaining, the accused
is entitled to the benefit of it by an acquittal. For it is not
sufficient to establish a probability,- though a strong one
arising from the doctrine of chances, that the fact charged
is more likely to be true than the contrary; but the evi-
dence must establish the truth of the fact to a reasonable
and moral certainty; a certainty that convinces and directs
the understanding, and satisfies the reason and judgment
of those who are bound to act conscientiously upon it.^^

But while the defendant cannot be convicted unless his
guilt is established beyond a reasonable doubt, still the
law does not require demonstration ; that is, such a degree
of proof as, excluding possibility of error, produces abso-
lute certainty, because such proof is rarely possible.
Moral certainty only is required, or that degree of proof
which produces conviction in an unprejudiced mind."

10 Penal Code, sec. 1096.

11 Commonwealth v. Webster. 5 Cushing 320.

12 Code of Civil Procedure, sec. 1826; Penal Codf 1101

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No act committed by a person while in a state of volun-
tary intoxication is less criminal by reason of his having
been in such condition. But whenever the actual exist-
ence of any particular purpose, motive or intent is a neces-
sary element to constitute any particular species or degree
of crime, the jury may take into consideration the fact
that the accused was intoxicated at the time, in determining
the purpose, motive or intent with which he committed the

It is a well settled rule that drunkenness is no excuse for
the commission of crime. Insanity produced by intoxi-
cation does not destroy responsibility when the party, when
sane and responsible, made himself voluntarily intoxicated;
and drunkenness forms no defense whatever to the fact of
guilt, for when a crime is committed by a party while in a
fit of intoxication, the law will not allow him to avail him-
self of his own gross vice and misconduct to shelter him-
self from the legal consequences of such crime. Evidence
of drunkenness in murder cases can only be considered by
the jury for the purpose of determining the degree of crime,
and for that purpose it must be received with great cau-

In murder in the first degree it is necessary to prove the
killing was premeditated, which involves, of course, an
inquiry into the state of mind under which the party com-
mitted it, and in the prosecution of such inquiry, his con-
dition as drunk or sober is proper to be considered. The
weight to be given to it is a matter for the jury to deter-
mine, and it is sufficient for the court to say to the jury
that it should be received with caution, and carefully exam-
ined in connection with all the circumstances and evidence
in the case.^

1 Penal Code 22.

2 People V. Lewis, 36 Cal. 531; People v. Niriio!. 34 CaL
212; People v. King, 27 Cal. 507; People v. Ferris, 5S

Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 34 of 77)