California Charles Howard Fairall.

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

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an appeal from the final judgment. ^^

RECORD ON APPEAL.

The transcript must show that a notice was served and
filed.^^ Two appeals can not be taken on one notice.'^
It must show affirmatively that an appeal has been taken.'*
The record must be presented by a bill of exceptions or
in some way authenticated,®^ and must contain evidence
on every material fact to be proved.'^ The presumption is
that all the evidence is in the record.^* On an appeal

20 People V. Martin, 47 Cal. 112.

21 People V. Long, 121 Cal. 494.

22 Penal Code 1238.

28 Penal Code 1238; People v. Higglns, 114 Cal. 63.
24 People V. Hollis. 65 Cal. 78; People v. Higglns, 114 Cal.
63.

26 People V. More, 71 Cal. 546.

20 People V. Webb. 38 Cal. 467; People v. Campbell, 59 CaL
256; People v. Horn, 70 Cal. 17.

27 People V. Clarke, 42 Cal. 622.

28 People v..Stillman, 7 Cal. 118.

29 People V. Clark, 49 Cal. 455; People v. Bell, 70 CaL 34;
People V. Colon, 119 Cal. 669.

80 People V. Center, 61 Cal. 195.

81 People V. Phillips, 45 Cal. 44; People v. Bell, 70 Cal. 83;
People V. Colon, 119 Cal. 669.

82 People V. Brooks, 131 Cal. 311.

33 People V. Griffith, 122 Cal. 212.

34 People V. McGregar, 88 Cal. 140.



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APPEAL. 463

from the judgment, the record must embody the judg-
ment. The entry in the minutes is not the judgment.
The record must show the grounds for a new trial and
the order refusing it.^' Unidentified papers are not a part
of the record.^^ The instructions, when duly endorsed,
belong to the judgment roll, and not to the bill of excep-
tions, and the form given in the judgment roll will gov-
ern over those given in the bill of exceptions.^^ The
opinion of the trial judge is not properly a part of the
record, but when it shows a new trial should be granted,
the record will be closely scrutinized for errors.''* It is
the official duty of the clerk to print the transcript on
appeal. It is not within the control of the board of super-
visors.^® If the appeal is not taken in time, it must be
dismissed.*** And where it has been dismissed for want
of prosecution it will not be reinstated unless it. be shown
that there is merit in it.*^ The appeal will never be dis-
missed on the ground that it is frivolous.*^

EFFECT OF APPEAL.

The appeal from a judgment suspends its force, and it
cannot be used as evidence in another action,*' but it may
be used to impeach a witness who was convicted of a fel-
ony thereby.** An appeal to the United States Supreme
Court from an order of the Circuit Court, denying an
application for a writ of habeas corpus, stays the hands
of the state court and state authorities during its pendency,
and is presumed to continue as a stay until evidence to
the contrary is shown.*^ The merits of the appeal will

86 People V. Lenon, 77 CaL 308.

se People v. Louie Foo, 112 Cal. 17.

37 People V. Gibson, 106 Cal. 458.

38 People V. Tapla, 131 Cal. 647.
30 People V. Black, 120 CaL 553.

*o People V. Daniels, 105 Cal. 262; People v. Varnum, 53

Cal. 630.
*i People V. Busby, 113 Cal. 181.

42 People V. McNulty, 95 Cal. 594.

43 People V. Murback, 64 Cal. 368; People v. Gibbs, 98 Cal.
655; People v. Beevers, 99 CaL 286.

** People V. Ward, decided Oct. 13, 1901.
•»» People V. Durrant, 119 Cal. 54.



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464 CRIMINAL LAW AMD PROCEDURE.

not be considered in determining the question of the right
to a stay of proceedings.**

BILL OF EXCEPTIONS.

An exception is a formal protest against the ruling of
the court upon a question of law ; and a bill of exceptions
is a statement in writing, settled and signed by the judge,
of what the ruling was, the facts in view of which it was
made, and the protest of counsel.*^ A bill of exceptions
on appeal is not necessary when the record shows error
without it,** but is necessary to review the evidence;**
otherwise, the presumption is in favor of the judgment,**
and the verdict will not be disturbed for insufficiency of
the evidence.'^^ The objections should be presented and
exception taken in the court below.**^

HOW PREPARED.

Where a party desires to have the exceptions settled in
a bill of exceptions, the draft of a bill must be prepared
by him and presented, upon notice of at least two days to
the adverse party, to the judge, for settlement, within ten
days after the order or ruling complained of is made,
unless further time is granted, or within that period the
draft must be delivered to the clerk of the court for the
judge. When received by the clerk, he must deliver it to
the judge, or transmit it to him at. the earliest, period
practicable. When settled, the bill must be signed by the
judge, and filed with the clerk of the court. If the judge
in any case refuses to allow an exception in accordance
with the facts, the party desiring the bill settled may
apply by petition to the Supreme Court to prove the same,
the application may be made in the mode and manner, and

*e Ex parte Edgar, 119 Cal. 123.

47 People V. Torres, 38 Cal. 141.

*8 People V. Maguire, 26 Cal. 635; Morley v. Elkins, 37 CaL

457.
4» People V. Padillia, 42 Cal. 535; People v. TerrUl. 131 CaL

113.
80 People V. Fowler, 88 Cal. 136.
61 People V. Dye, 62 Cal. 523.
02 People V. Sing Lum, 61 Cal. 538; People v. Goldenson,

76 Cal. 346.



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ajpwa;,. 465

under &uch regulations as that court may prescribe; and
the bill, when proven, must be certified by the chief justice
as correct, and filed with the clerk of the court in which
the action was tried, and when so filed it has the same
force and effect as if settled by the judge who tried the
cause. If the judge who presided at the trial ceases to
hold office before the bill is tendered or settled, he may
nevertheless settle such bill, or the party may apply to
the Supreme Court to prove the same.^^ The proposed
bill may refer to and make a part of it documents in other
parts of the record, which are properly identified,*^* but
papers unauthenticated cannot be made a part of it."*^ Thus,
a charge of the court is not a part of the judgment roll,
unless authenticated by the court,*^^ neither are the pro-
ceedings before the magistrate.*^^ Unauthenticated affi-
davits not made a part of the bill of exceptions cannot
be considered on appeal, as they are not a part of the
record.*^* In order to make them a part of the record,
affidavits for a continuance,^^ affidavits to the incom-
petency of a juror,*** affidavits used on a motion,*^ the rec-
ord on appeal from an order sustaining a demurrer,*^ and
the reporter's notes,^^ must be embodied in a bill of excep-
tions. The record in the Supreme Court cannot be cor-
rected by affidavits,*** and ought not to be duplicated by a

«

58 Penal Code 1174.

54 People V. Wallace, 94 Cal. 497; People v. Bartlett, 40 Cal.

142; Sharon v. Sharon, 79 Cal. 640; Reclamation Dis-
trict V. Hamilton, 112 Cal. 607.
80 People V. Ah Lee Doon, 97 Cal. 171.
»« People V. Flahave, 58 Cal. 249; People v. January, 77

Cal. 181.
5T People V. Shurbrick, 57 Cal. 565.
»8 People V. McMahon, 124 Cal. 435; People v. Price, 17 Cal.

311; People v. Mahoney, 77 Cal. 529; People v. Louie Foo,

112 Cal. 21.
88 People V. Weaver, 47 Cal. 106.
00 People V. Stonecifer, 6 Cal. 405; People v. Honshell, 10

Cal. 86; People v. Martin, 32 Cal. 92.
«i People V. Honshell, 10 Cal. 83; People v. Martin, 32 Cal.

92.
«2 People V. Long, 121 Cal. 494.
«8 People V. Herbert, 61 Cal. 544.
M People V. Jordan, 66 Cal. 10; Sharon v. Sharon, 67 Cal.

219.



CRIMCS - 30



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466 CBtHlKAL LAW Aim PBOCEDUBB.

bill of exceptions/' The bill should follow as nearly as
possible, the narrative form,** and the exception should
show the answers to the questions objected to.'^ The bill
is presumed to contain all the evidence;*' it is the duty of
"the prosecution to embody it all therein,** and have it
show the guilt of the accused;^® otherwise it will be pre-
sumed that the verdict is contrary to the evidence.^^ The
hill should contain the grounds relied upon for a new
trial, and so much of the evidence, proceedings and deci-
sions as may be necesssary to explain such ground,^" and
present the questions of law upon which the exceptions
were taken.'^ There is no difference in form between a bill
of exceptions and a statement on motion for a new trial.'*

SPECIFICATIONS OF ERRORS.

Specifications of errors cannot be considered where the
bill does not show the occurrence of the error specified,'*
and where there is no assignment of errors or statement
of points and authorities, the appeal will be dismissed,'*
or the judgment will be affirmed." The court will not
review errors not excepted to,'* nor will it consider on

«« People V. Cole, 127 CaL 545.

ee People v. Getty, 49 Cal. 581.

«7 People V. Graham. 21 Cal. 261; People v. White, 34 Cal.
188.

•8 People V. McC^regar, 88 Cal. 140.

8» People V. Buckley, 116 Cal. 146; People v. Dye, 62 CaL
524; People v. English, 52 Cal. 211; People t. Perdue,
49 Cal. 425; People v. Tipton, 73 Cal. 405.

70 People V. Olivie, 60 Cal. 69.

71 People V. Fisher, 51 Cal. 319; People v. Dye, 62 Cal. 624;
People V. Johnson, 91 CaL 270; People v. Buckley, 116
Cal. 148; People v. Griffith, 122 Cal. 212.

72 People V. Keyser, 53 Cal. 183; Lim Tai v. HewiU, 66
Cal. 118.

78 Penal Code 1175.

74 People V. Crane, 60 Cal. 279; People v. Bitancourt, 74

CaL 190.
76 People V. Faulke, 96 CaL 17; People v. Bemmerly, 98

CaL 303.

76 Peeple v. Comedo, 11 CaL 71.

77 People V. Goldbury, 10 CaL 813.

78 People V. Morino, 85 CaL 515.



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APPEAL. 467

appeal, errors not argued by the appellant,'® except in cases
of murder of the first degree where the sentence is death.**^

HOW SETTLED.

A written notice to the district attorney of 'the time and
place of settlement is required.^ The judge may refuse
to settle where a notice is not so given.* The Supreme
Court will not consider a petition on an application for a
writ of mandate to compel the filing of a bill of exceptions
if it fails to show that the bill was presented to the trial
judge for settlement upon the notice required by law to
be given to the district attorney.* The judge may add
any testimony given pertinent to the exception, correct
any errors therein,* and strike out all matters not neces-
sary to present the questions of law upon which the excep-
tions were taken.*^ The statement should be prepared and
tendered within the statutory time, or such further time
as may be allowed by the judge.' But the time fixed by
the statute for the settlement of the bill of exceptions is
merely directory,' and a failure to sign within the time
prescribed by law will not defeat the right of appeal.* If
the bill is settled after the statutory time has run, the
Supreme Court will presume that sufficient reason existed
therefor,* and in the absence of a showing to the contrary
that the bill was regularly signed by the judge.*® It

«o People V. Clark, 121 Cal. 633.

1 Page V. Superior Court, 122 Cal. 209.

2 People V. Sprague, 53 Cal. 422; Frazer v. Superior Court,
62 Cal. 50; January v. Superior Court, 73 Cal. 540; Peo-
ple V. Goldenson, 76 Cal. 328; People v. Hill, 78 Cal. 406;
People V. Raschke, 73 Cal. 379.

8 Anschlag v. Superior Court, 76 Cal. 513.

* People V. Kelly, 46 Cal. 356.

6 Penal Code 1175.

« People V. Lee, 14 Cal.N510; People v. Sprague, 53 Cal. 424.

T People V. White, 34 Cal. 183; People v. Woppner, 14 Cal.

437; People v. Lee, 14 Cal. 511; People v. Sprague, 53 Cal.

424; People v. Goldenson, 76 Cal. 351.

8 People V. Martin. 6 Cal. 477; People v. Woppner, 14 Gal.
438.

9 People V. Raschke, 73^ Cal. 378; People v. Lee, 14 Cal. 511;
People V. White, 34 Cal. 188; People v. Sprague, 53 Cal.
424.

10 People V. Martin, 6 Cal. 477; People v. Robinson, 17 Cal.

371.
7» People V. Gibson, 106 Cal. 458; People v. Woon Tuck

Wo, 120 Cal. 2944 People v. Breen, 130 Cai. 72.



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4jS8 CRIMINAL LAW ANP PROCEDURE.

must be settled by the judge, the attorneys cannot do it/*
and a certificate to that effect must be added thereto.^^ It
may be delivered to the clerk whenever the judge cannot
be found. *^ A statement and a bill of exceptions under
the statutes fixing time for settlement are identical." The
defendant, after conviction, is entitled to a stay of pro-
ceedings until the bill may be settled, provided he exer-
cises proper diligence, and if refused by the trial court,
the chief justice of the Supreme Court will grant a stay
pending an application for a certificate of probable cause
to the Supreme Court.^*' Where the bill is contradicted
by the minutes of the court, the latter govern on appeal.^*
It is unnecessary to incorporate in the bill errors against
the respondent, as they cannot be considered on an appeal.^*

CERTIFICATE OF PROBABLE CAUSE.

An appeal to the Supreme Court from a judgment of
conviction stays the execution of the judgment in all capital
cases,, and in all other cases upon filing with the clerk of
the court in which the conviction was had, a certificate of
the judge of such court, or of a justice of the Supreme
Court, that, in his opinion, there is probable cause for the
appeal, but not otherwise.'* A certificate of probable
cause for appeal is not equivalent to a certificate of proba-
ble grounds for reversal of the judgment, but only that
debatable questions are presented by the record.^* It
should be granted unless the case is so clear as to admit of
no doubt.^** It is the duty of the trial judge in such cases
to grant the certificate; it will be granted by the Supreme

11 People V. Ferguson, 34 Cal. 309; People v. Trim, 37 Cal.
275; People v. PadHlia. 42 Cal. 538.

12 People V. Trim, 37 Cal. 274; People v. Padillia, 42 CaL 539.
18 People V. Lee, 14 Cal. 511; People v. Sprague. 53 Cal. 424;

Sprague v. Fawcett, 53 Cal. 409.

14 People V. Lee, 14 Cal. 511; People v. Spiague, 53 Cal. 424;
People V. Crane, 60 Cal. 280.

15 People V. Lane, 96 Cal. 596.

16 People V. O'Brien, 88 Cal. 483.

17 People V. Noregea, 48 Cal. 123.

18 Penal Code 1243.

i» In re Adams, 81 Cal. 163; People v. Durrant. 119 Cal. 202.
20 People V. Valencia, 45 Cal. 304; In re Adams, 81 Cal. 1S7.



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Court only where the trial judge is absent and the other
judges of the county refuse to grant it.^* Where the trial
court refuses a certificate of probable cause, the remedy for
It is not by appeal, but by application to a justice of the
Supreme Court.^^ The Supreme Court will not interfere
until the record is presented on appeal," and will grant the
certificate only on notice to the District Attorney and on a
settle^ bill of exceptions,^* but will grant the defendant a
reasonable stay until the record can be prepared.^* The im-
prisonment, if a part of the penalty, is not, stayed without
a certificate of probable cause.^® An appeal from an order
fixing the date of the execution does not ipso facto stay the
execution, but there must be a certificate of probate cause.*^
After the dismissal of an appeal the defendant will be re-
committed, notwithstanding no certi^ate of probable cause
was filed staying the execution.*® "W^

PRESUMPTION AGAINST ERROl^)x>

On appeal error must affirmatively appear. 4l^pKi*^S^
presumption is against it,^® and in favor of the valimOflf
the court and the regularity of its proceedings in xv6
absence of an affirmative showing to the contrary^'^ Thus

21 People V. Clark, 125 Cal. 251.
»2 People V. Durrant, 119 Cal. 202.

23 People V. Clark, 125 Cal. 251.

24 ini re Adams, 81 Cal. 163; People v. Lane, 96 Cal. 596.

25 In Matter of Adams, 81 Cal. 163.
2« Ex parte Fredericks, 104 Cal. 400.

27 People V. McNulty, 95 Cal. 594.

28 Ex parte Whitty, 65 Cal. 168.

29 People V. Williams, 84 Cal. 616; People v. Holmes, 118
Cal. 449; People v. Neary, 104 Cal. 373; People v. Grun-
dell. 75 Cal. 301; O'Callaghan v. Bode, 84 Cal. 498; People
V. Winters. 29 Cal. 659; People v. Ebanks, 117 Cal. 666;
People V. Barton, 88 Cal. 178; People v. Buckley, 116
Cal. 148; People v. Marks, 72 Cal. 46; People v. Von,
78 Cal. 1; People v. Leong Sing, 77 Cal. 117; People T.
Tonlelli, 81 Cal. 279; People v. Johnson, 88 Cal. 175;
People V. Huff, 72 Cal. 117; People v. Cline, 83 Cal. 376;
People V. Bemmerly, 98 Cal. 299; People v. Arlington,
131 Cal. 231; People v. Sansome, 98 Cal. 235; People v.
Glllls, 97 Cal. 542.

»o People V. McAuslan, 43 Cal. 55; People v. Woods, 43 Cal.
177; People v. Lum Yit, 83 Cal. 132; People v. WlUlams,
45 Cal. 25; People v. Stanley, 47 Cal. 120; People v.



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470 CRIMINAL LAW AND PROOBDURE.

it is presumed, where the transcript does not embrace all the
evidence, that proof of venue was made,'^ that the jury
regarded and considered all of the instructions,*^ that the
instructions did no injury to the defendant,** and that they
were correct** unless they are wrong under every con-
ceivable state of facts,*^ that an oral charge of the court
was taken down by the reporter,^® that instructions refused
had no evidence to support them,^^ and that the court cor-
rected objectionable remarks of the district attorney, and
instructed the jury to disregard them.'* But where the
record on appeal is presented, the court will not presume
that other proceedings than those shown were had.** The
instructions unless wrong under every conceivable state of

Brotherton, 47 Cal. 405; People v. Marks, 72 Cal. 47;
People V. Huff, 72 Cal. 119; People v. Leong Sing, 77
Cal. 119; People v. Gibson, 106 Cal. 472; People T. Bar-
bour, 9 Cal. 230; People v. Robinson, 17 Cal. 371; People
V. Ludwig, 118 Cal. 328; People v. Cummingfa, 113 Cal.
88; People v. Wheatley, 88 Cal. Ii4; People v. Owens,
123 Cal. 482; People v. Gibson, 106 Cal. 458; People v.
Reilly, 106 Cal. 650; People v. Ebanks. 117 Cal. 665;
People V. Connor, 17 Cal. 354; People v. Hobson, 17
Cal. 430; People v. Blackwell, 27 Cal. 67; People v.
Henderson, 28 Cal. 475; People v. Richmond, 29 Cal.
415; People v. Lawrence, 21 Cal. 372; Ex parte Bull,
42 Cal. 196; People v. Creegan, 121 Cal. 554; People v.
Mitchell, 100 Cal. 328; People v. Ross, 115 Cal. 233;
People V. Swafford, 65 Cal. 223.

81 People V. Carroll, 80 Cal. 153; People v. Tonlelli, 81
Cal. 279; People v. Barton, 88 Cal. 178.

82 People y. Durrant, 116 Cal. 181.
33 People V. Brotherton, 47 Cal. 388.

84 People V. Johnson, 47 Cal. 122; People v. Best. 39 Cal.
691; People v. Long, 39 Cal. 694; People v. Dick, 34 Cal.
663; People v. Smith, 57 Cal. 131; People v. Barry. 31
Cal. 357; People v. Dick, 32 Cal. 215; People v. WU-
liams, 75 Cal. 306.

85 People V. Donguli, 92 Cal. 607; People v. Bourkt;, 66
Cal. 456; People v. Bonney, 19 Cal. 427; People v. Strong,
46 Cal. 303; People v. Smith, 57 Cal. 132; People t.
Ramirez, 56 Cal. 538; People v. Torres, 38 Cal. 143;
People V. Levison, 16 Cal. 99; People v. King. 27 CaL
514.

86 People V. Bourke, 66 Cal. 455.

87 People V. Gilbert, 60 Cal. 108; Carpenter v. Ewing, 76
CaL 488.

88 People V. Monila, 126 Cal. 505.

39 People V. Gaines, 52 Cal. 479; People v. Moore, 103 CaL
511; People v. Kelly, 120 Cal. 273.



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APPEAL. 471

facts will not be reviewed in the absence of the testimony,*®
nor irregularities considered in the absence of objection
and exception.*^ But error when shown is presumed to be
prejudicial to the defendant/* unless the contrary plainly
appears from the face of the record.*^

REVIEW OF EVIDENCE.

Evidence cannot be reviewed on appeal, unless a bill of
exceptions is presented.** The record must contain the
material portions of the testimony,*® but in order to review it
for insufficiency, that must have been one of the grounds of
the motion for a new trial.**' Where the evidence is insuf-
ficient to sustain the conviction it will be reversed, although
the defendant made a false statement as to a matter in no

*o People V. Clark, 121 Cal. 638; People v. McCauley, 1
Cal. 380; People v. Baker. 1 Cal. 404; People v. LAfuente,
6 Cal. 202.

41 People V. Torres, 38 Cal. 142.

*2 People V. Smith, 93 Cal. 445; People v. Murphy, 47 Cal.
103; People v. Ybarra, 17 Cal. 166; People v. Ramirez,
56 Cal. 538; Ex parte Bemert, 62 Cal. 528; People v.
Eppinger, 109 Cal. 297; People v. Stanley. 47 Cal. 113;
People V. Williams, 18 Cal. 187; People v. Furtado, 57
Cal. 345; People v. Tucker, 115 Cal. 339; People v.
Marshall, 112 Cal. 422.

*3 People y. Nelson, 85 Cal. 422; People v. Gordon, 88 Cal.
422; People v. Murray, 85 Cal. 350; People v. Ebanks,
117 Cal. 665; People v. Russell, 81 Cal. 6x6; People v.
Barnhart, 59 Cal. 381; People v. Muhlner, 115 Cal. 306;
People V. Maroney, i09 Cal. 279; People v. Lowen, 109
Cal. 384; People v. Brotherton, 47 Cal. 384; People v.
Murjt)ack, 64 Cal. 372; People v. Campbell. 59 Cal. 256;
People V. Olsen, 80 Cal. 122; People v. Elliott, 80 Cal.
296; People v. Daniels, 105 Cal. 262; People v. Bennett,
65 Cal. 267; People v. O'Neal, 67 Cal. 378; People v.
Boling, 83 Cal. 382; People v. Gordon, 88 Cal. 425; People
V. Clark, 106 Cal. 40; People v. Tarm Pol, 86^Cal. 225;
People V. Ah Kong, 49 Cal. 6; People v. Barthleman^
120 Cal. 7; People v. Clary, 72 Cal. 59; People v. Shaw,
111 Cal. 171; People v. Smith, 105 Cal. 676; People v.
Fenwick, 45 Cal. 287; People v. Plummer, 12 Cal. 256;
People V. Ah Jake, 91 Cal. 98; People v. McGregar, 88
Cal. 140; People v. Parton, 49 Cal. 632; Ex parte Ber-
nert, 62 Cal. 528; People v. Winters, 93 Cal. 277.

** People V. Martin, 32 Cal. 91; People v. Padillia, 42 Cal.
539; People v. Teeherow, 40 Cal. 286.

*5 People V. Yorke, 9 Cal. 421; People v. Roach, 48 Cal.
382.

*• People V. Crowley, 100 Cal. 478.



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472 CRIMINAL LAW Allt) PBOCBDURE.

way connected with the crime of which he was accused.*^
The order granting a new trial will not be reversed on
appeal for an abuse of discretion by the trial court.**

CONFLICTING EVIDENCE.

Where the evidence in the case is conflicting, it presents
a question for the jliry,*® and a verdict will not be disturbed
on appeal.*^ It is only when there is a clear failure of
proof upon some material point,** or it is manifest from the
testimony that the verdict was the result of great excite-
ment which prevented a fair and just trial,*** or the evi-
dence preponderates so greatly against the verdict
as to render it clear that the jury must have acted

*'r People V. Wong Ah You, 67 Cal. 31.

*8 People V. Lum Ylt, 83 Cal. 130; People v. Flood, 102
Cal. 333; People v. Knutte. Ill Cal. 455.

40 People V. Cole, 127 Cal. 545.

00 People V. Estrada, 53 Cal. 600; People v. Lowen. 169
381; People v. Ah Tl, 9 Cal. 17; People v. Vance,
21 Cal. 400; People v; Durrant, 116 Cal. 201; People v.
Emerson, 130 Cal. 562; People v. Brown, 130 Cal. 591;
People V. O'Brien, 130 Cal. 1; People v. Dice, 120 Cal.
189; People v. Kaiser, 119 Cal. 456; People v. Holmes,
118 dal. 444; People v. Brittan, 118 Cal. 409; People v.
Neary, 104 Cal. 373; People v. Fice, 97 Cal. 459; People
y. Arthur, 93 Cal. 536; People v. Lewis, 1*-^ Cal. 551;
People V. Phelan, 123 Cal. 551; People v. Bezy, 73 Cal.
186; People v. Brady, 72 Cal. 490; People v. Gill, 45 Cal.
285; People v. Doane, 77 Cal. 560; People v. Appleton,
120 Cal. 250; People v. WUson, 119 Cal. 384; People v.
Forsythe, 65 Cal. 101; People v. Oeiger, 116 Cal. 440;
People V. Kloss, 115 Cal. 567; People v. Un Dong, 106
Cal. 83; People v. Brooks, 90 Cal. 174; People v. Dunne,
80 Cal. 34; People v. Leyshon, 108 Cal. 440; People v.
Roemer, 114 Cal. 51; People v. Rushing, 130 Cal. 449;
People V. Swalm, 80 Cal. 49; People v. Brown, 27 Cal.
500; People v. Keeley, 81 Cal. 210; People v. Ross, 115
Cal. 233; People v. Chun Heong, 86 Cal. 329; People v.
Lon Yeck, 123 Cal. 246; People v. Bene, 130 Cal. 159;
People V. Sears, 119 Cal. 267; People v. Ryan, 108 CaL
581; People v. Fitchpatrlck, 106 Cal. 286; People v.
Bidleman, 104 Cal. 608; People v. Hong Quln Moon,
92 Cal. 41; People v. McCurdy, 68 Cal. 576; People T.
Simpson, 50 Cal. 304; People v. Bird, 60 Cal. 7; People
V. Soap, 127 Cal. 408; People v. Lee, 119 Cal. 84; People
V. Scott, 121 Cal. 101.

61 People V. Smallman, 55 Cal. 185; People v. Kuches. 120
Cal. 569.

02 People V. Acosta, 10 Cal. 196.



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API^BAL. 478

tiftder the influence of passion or prejudice,*^'* thit the
appellSite court will interfere and disturb the verdict. A
Vefdict based on conflicting evidence Will hot be di^urbed,
notwithstanding some of the circumstances forming a part
of the res gestae are unusual.*^* But the rule applicable to



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 38 of 77)