42 Cal. 535 | Cal. | 1872
The motion for a new trial was made on the ground, among others, that the evidence was insufficient to justify the verdict. ■ That question cannot be considered on the record now before us. The record contains no bill of exceptions. The only manner in which that question can be presented to the appellate Court is by a bill of exceptions—or a statement, as it is sometimes called—duly settled and certified by the Judge who tried the cause. In this case, the transcript contains a longhand copy of the notes of the official reporter, certified by him to be correct; but there is no evidence that the report was used or referred to on the hearing of the motion. The same observation will apply to the affidavits which are contained in the transcript. The Act concerning District Court Reporters (Stats. 1865-6,. p. 232) provides that the reporter shall write out, in longhand, verify, and file the report of the testimony, etc.; and that the report shall be deemed prima facie a correct statement of the evidence and the proceedings therein contained.
Por the reasons ahove given we cannot consider the other grounds of the motion for a new trial, nor any of the alleged errors which depend for their illustration on the report. The affidavits and copy of record annexed to the transcript are subject to the objections already mentioned. They form no part of a bill of exception, and they do not appear to have been read on the hearing of the motion.
Alleged errors in the instructions given to the jury may be considered, in the absence of the testimony, if the instructions are incorrect in every conceivable state of the evidence. It is apparent, from the body of the instructions, that the evidence was mainly of a circumstantial character, and the two instructions, which we shall notice, were evidently given in view of that kind of evidence.
The objection to the tenth instruction—in which the Court states to the jury that “ circumstantial evidence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony”—was fully disposed of in People v. Cronin, 34 Cal. 201; and, indeed, the instruction seems to have been extracted from the opinion, in that case.
The seventeenth instruction is as follows: “All that is necessary in order to justify the jury in finding the defendant guilty is, that they shall be satisfied, from the evidence, of the defendant’s guilt to a moral certainty and beyond a reasonable doubt, although they may not be entirely satisfied from the evidence that the defendant, and no other or different person, committed the alleged offense; and if the jury are satisfied from the evidence, beyond a reasonable doubt, that the defendant committed the crime charged against him, they are not legally bound to acquit him because they may not be entirely satisfied that the defendant
The first clause of the instruction is undoubtedly correct in stating that the jury must be satisfied from the evidence of the defendant’s guilt, to a moral certainty, and beyond a reasonable doubt; but the next clause of the instruction— “ although they may not be entirely satisfied that the defendant, and no other or different person, committed the alleged offense ”—was intended as a material qualification of the first clause. The purpose was to tell the jury that they might be satisfied to a moral certainty, and beyond a reasonable doubt, but at the same time not entirely satisfied of the defendant’s guilt.
This, in effect, assigns a lower grade to moral certainty beyond a reasonable doubt, than is given to it by the law, and permits the jury to convict without being entirely satisfied that the defendant is guilty of the offense charged. When the jury are satisfied to a moral certainty and beyond a reasonable doubt, they are entirely satisfied. The truth of any fact which is to be proven by evidence cannot be established beyond the possibility of a doubt, and yet the jury . may be entirely satisfied of its truth. Anything short of entire satisfaction ‘on the part of the jury of the truth of the charge necessarily implies, in case of conviction, that in their opinion the charge is sustained by a mere preponderance of evidence. A mere preponderance of evidence is not sufficient for a conviction; and, on the other hand, it is not required that the inculpatory facts shall be absolutely incompatible with the innocence of the accused. (People v. Murray, 41 Cal. 66.) The true medium is, that the evidence shall satisfy the jury to a moral certainty and beyond a reasonable doubt—that they shall be entirely satisfied—of the guilt of the accused. The instruction was calculated to mislead the jury.
Judgment reversed and cause remanded for a new trial.