Thе defendant was convicted of robbery, and sentenced to serve a term of fifteen years in the state prison.
It is urged with much earnestness thаt the judgment should be reversed, because the evidence is insufficient to support the verdict. We find, however, from an inspection of the tеstimony, that this contention cannot be sustained without a judicial invasion of the province of
During the redirect examination of the prosecuting witness, he gave testimony of the same character and upon the same topic as in Ms direct and cross examinations. The objection of the defendant ought to have been sustained, bеcause the testimony was an unnecessary repetition, and the re-examination indicated a disposition on the part of the prosecution to emphasize the testimony of the witness upon a particular subject. Error, however, cannot be predicated upоn the ruling. The matter is left to the discretion of the court. (Code Civ. Proc., sec. 2050.)
The statements made by the witness Rogers on his cross-examination, as to the reason why he had the defendant arrested, were directly responsive to the questions asked by defendant’s counsel. The court did nоt err, therefore, in refusing to strike them out.
All of the answers to the objectionable questions put to the defendant were stricken out, and the сourt in its instructions to the jury directed them not to consider such questions or answers in arriving at a verdict. The question put to the defendant on cross-еxamination, calling upon him to state the purpose for which he went to the saloon, "was proper cross-examination.
The cоurt did not err in refusing to give the first four instructions asked by the defendant. They were given in substance in the charge of the court. The other in
The vice referred to is well illustrated in the following instruction, asked by the defendant in this case: “ In this case you are confronted with conflicting evidence as to the identity of the persоn by whom the offense charged is alleged to have been committed, and in determining whether or not the complaining witness was or was not mistaken as to the identity of the person who-assaulted him, you have the right, and it is your duty,, to take into consideration and weigh carefully the condition and situation of the complaining witness himself.. You have a right to consider that he is the only person who swears to the identity of the defendant; you have the right to consider that he was a stranger in San Francisco, coming from his country home to this large city; you have the right to consider his cоndition of sobriety or insobriety.....I charge you that it is your duty, in passing upon the question of the guilt or, innocence of this defendant, to take into consideration his conduct after his arrest. You should consider whether, after the sale of this pin to Jordan was completed, this-defendant is shown to have fled the city, or to have indulged in any other conduct suggestive of a consciousness of guilt.....You should consider the circumstance thаt the defendant expressed his willingness and his readiness to do all in his power to assist the complaining witness to recover his property and capture the
The instructions given by the court of its own motion, while not as full as they might have been, are cоrrect, except the first, which concludes as follows: “ This defendant, like all persons accused of crime, is presumed to be innocent until his guilt is established to a moral certainty and beyond all reasonable doubt, and this presumption of innocence goes with him all though the case, until it is submitted to you.”
The presumption of innocence does not cease upon the submission of the cause to the jury, but operates in favor оf the defendant, not only during the taking of the testimony, but during the deliberations of the jury,until they have arrived at a verdict.
The prosecuting witness was permittеd to testify that he gave a discription of the robbers when he reported the matter to the police-officers, and one of the рolicemen testified that he arrested the defendant on information he received from the defendant’s brother-in-law, and also-on the description given by Runyon. The admission of this evidence was error. In People v. Johnson,
Judgment and order reversed, and cause remanded for a new trial.
McFarland, J., De Haven, J., Harrison, J., and Beatty, 0. J., concurred.