63 P. 351 | Cal. | 1900
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *244 The defendant was convicted of perjury and sentenced to imprisonment in the state prison for the term of twelve years. He appeals from the judgment and from an *245 order denying his motion for a new trial. The transcript on appeal contains a bill of exceptions. The defendant was a practicing physician, and for at least a portion of the time covered by the evidence he was the mayor of Chico.
The theory of the prosecution is that the defendant committed the crime charged to assist the purpose of a conspiracy entered into between himself, Mrs. Houseworth, and J.M. Garner, to the end that Mrs. Houseworth might succeed to the estate of one A. Fuller, deceased, by means of a false and forged will. The perjury is charged to have been committed by defendant, as a pretended subscribing witness, at the probate of the will. The alleged will was shown to be in the handwriting of Mrs. Houseworth, and she was by the terms thereof to have received all the property and estate of deceased except a thousand dollars; said estate being about thirty-two thousand dollars in value. The accomplice, Garner, pleaded guilty to the charge of perjury, and thereafter, at the trial of defendant, he testified in substance that he and defendant signed the will together in the presence of each other, and without the request or presence of Fuller, in the summer of 1898, and several months after the death of said Fuller; that defendant persuade him to sign by saying there was five thousand dollars in it for each of them; and that after they had both signed defendant wrote the attesting clause in above their signatures. The following is a copy of the said alleged will and the attestation thereto, to wit:
"June 9th, 1897.
"I desire that Mrs. Minnie Houseworth have all my property at my death, except I reserve one thousand dollars to be equally divided between the legal heirs to my estate.
"A. FULLER.
"Signed as witnesses after being requested to do so by A. Fuller, he declaring this to be his will and that he had signed it. We therefore, in his presence and in the presence of each other, signed our names as witnesses.
"Aug. 3, 1897.
J.E. RODLEY, "J.M. GARNER."
It is shown that Fuller died on or about October 18, 1897; and that defendant testified at the hearing in the matter of the probate of said alleged will that he signed the will as a *246 subscribing witness on August 3, 1897, in the presence of Fuller and Garner, and that Fuller then and there declared that he had signed the will and requested defendant and Garner to sign as witnesses. H.T. Batchelder, county clerk of Butte county, testified that in February, 1898, he had two conversations with defendant; that in the first one defendant asked him if he was acquainted with Fuller's signature, and on his replying that he thought he was, defendant asked him if he would be willing to certify to it if he knew it to be Fuller's signature. Defendant did not at that time exhibit any document, but said: "If you could be certain that it is his will it would be to your interest in the sum of three thousand dollars." In the second conversation, had also in February, 1898 — the date of which is fixed by letter from defendant — the defendant exhibited the identical will which was subsequently filed for probate and concerning which defendant gave the alleged false testimony; the witness read the same over once or twice; the defendant asked him if he thought that was Fuller's signature, to which he replied, "I think not, doctor"; the defendant then said, "You wouldn't be willing to sign it as a witness?" and Batchelder answered that he would not; that he had signed but few wills, and those always upon invitation. The defendant was the family physician of the witness Batchelder, and they were on friendly terms at the time of the occurrences narrated. The defendant as a witness squarely denied that he had ever exhibited any will to Batchelder or had ever asked him anything about Fuller's signature, and reaffirmed the truth of the testimony given by him at the probate of the will. On cross-examination the defendant was asked if on the twenty-fifth day of October, 1899, in a conversation with S.H. Wilson, the sheriff, he, the defendant, did not use the following language: "There was nothing in that Batchelder matter that has been before the grand jury. I did go down to Biggs on the fifteenth day of February, 1898, and I had witnessed a will for Alfred Fuller, and it was lost, so I made a copy of it, and took the copy down with me and showed it to Batchelder and asked him if he thought he would sign that as a witness or not, and he told me he wouldn't have anything to do with it, so I put on my overcoat and went out, and on the road home I tore the copy up." In reply the defendant said: "I think I did *247 make that statement," and when asked if the statement was correct he said: "I think so; yes, sir." Later in his cross-examination when the same matter was reverted to and he was asked concerning it, he replied: "I don't recollect saying anything of the kind." Subsequently, said S.H. Wilson was called by the prosecution and testified in substance that the defendant did make the statement substantially as quoted in the question above.
It appeared from the evidence that Mrs. Houseworth and said Garner were also witnesses at the probate of the will; that the testimony of the latter as to the facts surrounding the witnessing of the will was substantially the same as that of the defendant. Mrs. Houseworth presented the will for probate October 19, 1898, in her petition stating that she believed it was in the handwriting of the deceased, Fuller, and at that hearing she testified that she had received the will from one H. Carmack on October 17, 1898, and that she never saw the document before that date. In May, 1898, as testified at the trial by one J.B. Swearingen, Mrs. Houseworth stated to him that she had a will that Mr. Fuller had left her and she had received it in a letter handed her by a Mr. Fimple; that it did not have any witnesses to it and the lawyers told her it needed two witnesses; "and so all they will have to do is to write on a piece of paper that they had signed it at Fuller's request and sign their names to it and attach it to the will." "`Now,' she said, `I want you to sign as one of the witnesses; Dr. Rodley has agreed to sign it for one, and I have agreed to give him five thousand dollars to sign it, and I will give you the same. I would not offer you any less than I agreed to pay Mr. Rodley.'"
On this appeal a great many points are made, the more important of which we will take up and dispose of in the order in which they are presented in appellant's brief.
1. The indictment is in the following language: "J. Ellis Rodley is accused by the grand jury of the county of Butte, state of California, by this indictment, of the crime of perjury, a felony, committed as follows, to wit: That on the twenty-third day of November, 1898, and before the finding of this indictment, at the county of Butte, state of California, *248 in the superior court of the said county of Butte, and state of California, Honorable John C. Gray, judge presiding therein, there was pending and on trial before the said superior court of the county of Butte, a certain proceeding, to wit: The matter of the probate of the alleged will of one Alfred Fuller, deceased, and the petition of Mrs. Minnie Houseworth for letters of administration with the will annexed. And said superior court, as aforesaid, had competent jurisdiction then and there to hear, decide, and determine said matter and proceeding according to the law of the state of California, and was then and there fully empowered to administer the law in said matter and proceeding; the said J. Ellis Rodley was then and there called as a witness in said matter, and then and there took an oath before the said superior court, and under the direction of said superior court of the county of Butte, state of California, in due form of law, that he, the said J. Ellis Rodley, would then and there testify truly, as a witness in the matter and proceeding then and there being heard by said superior court, as aforesaid, said oath having been then and there administered by one C.F. Belding, who was then and there a duly appointed, qualified, and acting deputy county clerk of said county of Butte, state of California, then and there an officer authorized by law to administer oaths, and to administer an oath to said J. Ellis Rodley, as a witness in said proceeding, then and there pending as aforesaid; he, the said J. Ellis Rodley, did then and there, and being so sworn, at said county of Butte, state of California, and in said proceeding aforesaid, in a matter material to such issue then and there being heard by said court as aforesaid, he, the said J. Ellis Rodley, having so taken such oath as aforesaid, willfully, unlawfully, corruptly, falsely, feloniously, and contrary to such oath by him, the said J. Ellis Rodley, then and there taken, and he, the said J. Ellis Rodley, then and there knowing the same to be false and untrue, state, declare, make oath, swear, and testify the truth to be in substance as follows, to wit." Then follow some nine or ten folios of the testimony, both question and answer, of the defendant given at the hearing of the said probate proceeding, and after that the indictment continues as follows:
"All of which was then and there material to the issue and matter being heard in said proceeding, and that said statements *249 made as aforesaid by said J. Ellis Rodley were then and there false and untrue and were then and there at the time of making them by said J. Ellis Rodley, known by said J. Ellis Rodley to be so false and untrue.
"Whereby he, the said J. Ellis Rodley, did then and there, as aforesaid, willfully, corruptly, and contrary to his oath, and knowing his testimony to be false, swear falsely, and feloniously commit willful perjury, contrary," etc.
There was no demurrer to the indictment, but on arraignment the defendant pleaded not guilty.
The objections urged to this indictment are: (a) It omits the requisite "assignment of perjury"; (b) There is no adequate averment showing the materiality of the testimony. The requirement of the law as to "assignment of perjury" is found in section
It is specifically alleged in the indictment that the testimony alleged to be false "was then and there material to the issue and matter being heard in said proceeding." This is a sufficient allegation as to materiality. (People v. De Carlo, supra.) The other objections to the indictment are based on false premises and will each disappear on a careful reading of that document.
2. It appears that the grand jury made a partial report and presented a true bill against defendant for perjury on December 15, 1899, and the clerk was directed by the court to file the same and issue a bench warrant thereon for the arrest of defendant, and his bail was fixed at the sum of five thousand dollars. The jury then retired for further deliberation. At 3 o'clock P.M. of the same day the grand jury returned into court, and after being called the court stated and the jury responded as follows:
"The indictment which was presented this forenoon in the case of The People of the State of California v. J Ellis Rodley,Defendant, was resubmitted by the court to the grand jury from the district attorney to correct an error that appeared upon the face of the indictment, in this, that it appeared from the indictment presented that the matter before the court at the time that J. Ellis Rodley was sworn was a petition for letters testamentary in the estate of Alfred Fuller, deceased, whereas the fact was, and it is in the knowledge of the court, that the petition called for letters of administration with the will annexed.
"Q. Have you now, Mr. Foreman, the indictment corrected in that respect. A. Yes.
"Q. Has it been submitted and voted upon after correction? A. Yes.
"Q. And it is now returned to this court as the correct indictment? A. Yes."
The clerk was thereupon directed to file the indictment, and that the record show that it had been resubmitted. A bench warrant was ordered to issue for the arrest of said J. *251 Ellis Rodley, with bail fixed at five thousand dollars. It was upon the indictment as amended that the defendant was arraigned, pleaded not guilty, and was thereafter tried. He was not arraigned on the indictment prior to its amendment. It appears from the foregoing that there must have been a variance between the indictment as originally presented to the court and the evidence upon which the indictment was found. There is nothing in the law that will prevent the correction of a mere mistake like this, the result, no doubt, of an inadvertence. The defendant is injured in no way by the correction. "There is no doubt that, with leave of the court, an indictment may be amended by the grand jury at any time before the prisoner has pleaded and before they are discharged." (Thompson Merriam on Juries, 704; Lawlessv. State, 4 Lea. 173; State v. Creight, 1 Brev. (S.C.) 169.1) In the case of Terrill v. Superior Court (Cal., March 17, 1900), 60 Pac. Rep. 516, the question for determination was whether the court, after demurrer sustained to the indictment, could resubmit the case to the same grand jury that had found the first indictment. It was held that this could not be done under the code provision cited therein; but the judge who delivered the opinion of the court in the course thereof remarked: "Perhaps before the defendant has been arraigned the indictment could be withdrawn and by leave of the court sent back to the jury for amendment." This is what seems to have been done in the present case, and we can see nothing in it prejudicial to any right of defendant, and nothing of which he can be heard to complain.
3. The defendant made and filed his affidavit, intending to thereby invoke the provision of section
4. The challenge to the panel was properly overruled. The number of jurors fixed in the order of the court is not to be increased by the names left in the box at the end of the previous year, but the supervisors are at liberty to select from such names as many as possess the necessary qualifications of jurors, and have not served the previous year, and make them part of the list for the current year. (Code Civ. Proc., secs.
There was no impropriety in the supervisors estimating the population by the number of votes cast in each district at the last preceding election. We cannot say that this was not the most accurate basis they possessed for such estimate. (Code Civ. Proc., sec. 206.)
The clerk testified that the seventy-five ballots or slips drawn from the jury-box were folded so as to conceal the names of the persons thereon written; John S. Henrison being one of these names, it follows that his name was duly concealed. There was no substantial departure from the forms prescribed by law in respect to the drawing and return of the jury.
5. The affidavit of the publication of notice of hearing of petition for probate and for letters was properly admitted in evidence as part of the record of the matter in which the perjury is charged to have been committed, and was competent evidence to prove the matters therein stated. (Code Civ. Proc., secs.
6. It was competent to put in evidence the testimony of Mrs. Houseworth and Garner given at the hearing of the probate matter, as well as the conversation of the former with the witness Swearingen, wherein she attempted to persuade said Swearingen for five thousand dollars to subscribe as a witness to the alleged will of the already deceased Fuller, for the reason that all these acts and declarations, *253
taken in connection with the acts and declarations of defendant, tended strongly to show that the defendant, Mrs. Houseworth, and Garner were each working to accomplish one common criminal purpose. Such concert of action on their part would be evidence tending to establish a conspiracy between them by the circumstancial method, which is usually the only way a conspiracy can be established. (People v. Bentley,
That portion of Swearingen's testimony wherein he details a conversation with Mrs. Houseworth, in which she sought to induce him not to testify before the grand jury that she had offered him five thousand dollars to sign a will as a witness, was properly admitted because the conspiracy and its purpose was not then accomplished. The object of the conspiracy was to "loot" the estate of the deceased Fuller; the perjury of defendant and the others in the probate proceeding was only one step to this end. It had been necessary before this to fabricate a will, and it was still necessary for the conspirators to avoid detection, keep themselves out of the state prison, and keep up the deception that they were practicing on the probate court in order to realize anything from their crimes; and it was with these ends in view, no doubt, that Mrs. Houseworth approached Swearingen on the subject of his testimony before the grand jury. We think, therefore, that what she said and did in that connection was in furtherance of the purpose of the conspiracy, and does not come within those cases which exclude the acts and declaration of one conspirator, done and made after the "common criminal design" is accomplished or abandoned, as against his coconspirator. (Carterv. State,
7. The defendant while on the witness stand was asked by his counsel the following question: "After the death of *255
Mr. Fuller did you make a statement to anyone that this document was in existence; and if you did, how soon after and to whom did you make such statements?" To which the witness answered: "Well, I made the statement to several people. I think I told Mr. White. I told several people right after he died." Following this answer, and without any motion to strike out, the prosecution objected to the evidence as irrelevant, immaterial, and incompetent. After argument and a recess of the court this objection was sustained. Waiving the question of whether the evidence is shown to have been excluded, the defendant had already testified to the existence of the will from a time prior to the death of Fuller, and we cannot see how his testimony as to a statement made by him after the death of Fuller showing the existence of the will can add anything to the force of his evidence. Certainly, such testimony is inadmissible under the general rule excluding self-serving declarations, and no exception to this rule has been called to our attention under which it might be admitted. For all that appears to the contrary, the defendant may have had the same motive and purpose to manufacture evidence the day after Fuller died that he and his confederates had at any later date to manufacture a will. To make it admissible at all it must be shown that the corroborating statement sought to be put in evidence was made at a time when defendant had no motive or interest to fabricate such statement; here, however, there is nothing to show when the criminal design was first conceived. (Mason v. Vestal,
8. That the deceased Fuller in his lifetime declared an intention to remember Mrs. Houseworth for the kindness she had shown him was not competent evidence in this case. The defendant is charged with false swearing as to the execution of the will. The declarations of the deceased are not admissible on questions pertaining solely to the formal execution of the will.
9. The petition for the probate of the will sets forth that petitioner believes the will "to have been wholly written, dated, and signed by said testator." It also states facts showing *256 that the will was executed and attested as wills, other than olographic, are required by law to be executed and attested. The decree of the court was in effect that the will was olographic and also that it was executed as a nonolographic will should be. Therefore, whatever view we may take as to the sufficiency of the allegation of the petition to show that the will was olographic, the defendant's testimony in the probate court was material to the matter before it beyond any question, and the court at the trial herein properly refused to instruct the jury that it was not material.
10. The defendant was sworn in the probate proceeding in the usual form, as shown by the evidence; but were it otherwise, it would be no defense in this action. (Pen. Code, sec. 121.)
11. The record of the probate proceeding is the evidence upon which we must rely to determine whether the court had jurisdiction.(2 Bishop's New Criminal Procedure, sec. 933b.) The decree admitting the will to probate was placed in evidence, and it contains all the necessary recitals to show that the court had jurisdiction in the matter. (Wharton's Criminal Evidence, sec. 602a.) The petition for probate filed, as it is shown to have been, gave the court jurisdiction of the subject matter of the action, and even if it be admitted that the affidavit of publication of the notice of hearing was defective, the court had the power to hear the evidence as to the will and permit a new affidavit of publication to be filed thereafter if necessary. InSmith v. State, 31 Tex.Crim. Rep., the jury had not been sworn at the time of the alleged perjury, and it was held that the correct rule is `that if the court has jurisdiction of the subject matter of the suit, and the oath is required by law, irregularities in the proceeding will not prevent perjury." The court properly refused to instruct that there was no evidence that the court had jurisdiction of the proceedings.
12. The court refused to give defendant's requested instruction No. 11, which reads as follows:
"If you do not believe the testimony given by the witness Garner, or if you are not convinced beyond all reasonable *257 doubt of the truth of what he has testified to, you must acquit the defendant."
The witness Garner testified to facts and circumstances tending to show the defendant's guilt, other than the direct evidence he gave of the "falsity of the testimony charged to be perjury." The rule laid down in section 1968 of the Code of Civil Procedure, requiring direct evidence in perjury cases, means that there must be direct evidence only as to the falsity of the testimony charged to be perjury. (2 Bishop's New Criminal Procedure, sec. 929.) Therefore, if the jury believed in the direct evidence of Garner given on this point, they might doubt his testimony on other points and still be entirely satisfied from all the evidence in the case that the defendant was guilty, and thus be warranted in convicting him. The rule in respect to the matter, stated as broadly as could properly be asked, was given by the court in defendant's requested instruction No. 9. We can see no error, therefore, in the refusal to give the offered instruction No. 11. The same may be said of instruction No. 15 refused by the court, which reads as follows: "If you distrust the testimony of the witness Garner you must acquit the defendant." The court had already told the jury that "there must be the direct testimony of at least one credible witness, and that testimony to be sufficient must be positive and directly contradictory of the defendant's oath," etc. Here the word "credible" is added to the statute at the request of defendant; surely, he ought to be satisfied with this. It is not a rule of law that an accomplice is never to be believed, nor is the rule that he can never be the one witness giving the direct and positive evidence required by section 1968 of the Code of Civil Procedure in cases of perjury. His credit and the weight of his testimony is a question for the jury (People v. Gibson,
13. The two instructions given by the court as to the evidence of the defendant's good character were as full and favorable to defendant as he could reasonably ask, and there was no error in refusing to add the third instruction on that *258 subject. Everything stated in the rejected instruction was plainly implied in the two given.
14. The defendant requested the court to instruct the jury that the testimony of the witness Wilson as to certain oral admissions of defendant ought to be viewed with caution, and also that the testimony of the witness Swearingen as to alleged oral admissions made by Mrs. Houseworth ought to be viewed in the same way. These two instructions were refused; but the court did give, at the request of defendant as the record shows, an instruction embodying, practically, the whole of section 200 of 1 Greenleaf on Evidence, cautioning the jury against testimony of verbal admission and statements. An instruction in effect the same as the one last referred to was held by this court in Kauffman v.Maier,
15. The jury were instructed at some length as to the defendant's right to the benefit of the presumption of innocence in the second and third of the unnumbered instructions and in the tenth and thirty-fifth of the numbered instructions, and the subject did not need the amplification found in the instructions numbered 33 and 34 and refused by the court. *259
16. The court refused to give the following instruction: "You cannot convict the defendant unless each of you is entirely satisfied from the evidence before you that defendant is guilty beyond all reasonable doubt. In determining the question it is the duty of each juror to decide the matter for himself, and not to compromise or sacrifice his views or opinions of the case in deference to the views or opinions of others." There was no error in refusing this instruction. Juries are impaneled for the purpose of agreeing upon verdicts if they can conscientiously do so. They are admonished at each recess of the court not to form an opinion as to the merits of the case until it shall be finally submitted to them, and when it is so submitted it is the duty of jurors to deliberate and consult together with the view of reaching an agreement if they can without violence to their individual understanding of the evidence and instructions of the court. They should not be lectured by the court to make them strong and steadfast in their individual opinions; neither should they be exhorted to reach an agreement; and while it is probably true that "each juror must decide the matter for himself," yet he should do so only after a consideration of the case with his fellow jurors, and he should not hesitate to "sacrifice his views or opinions of the case" when convinced that they are erroneous, even though in so doing he defer "to the views or opinions of others." There is a marked distinction between this instruction and the one discussed in People v. Dole,
17. Defendant complains that the jury were not instructed, as requested in instruction 39, that a preponderance of evidence would be insufficient to justify a conviction. Besides instruction given that the burden of proof is on the prosecution, and that the jury must be entirely satisfied of defendant's guilt before they can convict, we find the following in the fourth unnumbered instruction: "If, upon such proof, there is a 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 evidence must *260 establish the truth of the fact to a reasonable and moral certainty,"etc. This is a very plain statement many times approved, and certainly it is the equivalent of an instruction that no mere preponderance of evidence would warrant a conviction; and while the instruction 39 was undoubtedly sound, and ordinarily should be given when requested by the defendant, yet in view of the very full instructions which were given substantially covering the important points contained in that instruction we see no error in its refusal.
18. It was proper to amend defendant's offered instruction 44 as to the corroboration necessary in perjury cases by striking out the word "strong" before the words "corroborating circumstances." The amendment placed the instruction in accord with the statute. (Code Civ. Proc., sec. 1968)
19. The court refused to give instruction 45 requested by defendant, which reads as follows: "The defendant cannot be convicted if you do not find from the evidence before you, and beyond all reasonable doubt in your mind, that when he gave the testimony set forth in the indictment he did so with a criminal intent. If, after considering all the evidence in this case, you entertain a reasonable doubt as to whether defendant did give such testimony with a specific criminal intent, then you must return a verdict that he is not guilty."
In the fifth unnumbered instruction the court gave the definition of perjury contained in section
20. The court gave two instructions on the subject of corroboration in perjury cases. In instruction 9 the jury was told: "There must be the direct testimony of at least one credible witness, and that testimony to be sufficient must be positive and directly contradictory of the defendant's oath; in addition to such testimony, there must be either another such witness or corroborating circumstances established by independent evidence, and of such a character as clearly to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence. Otherwise the defendant must be acquitted."
In instruction 17 the court said to the jury: "The additional evidence must be at least strongly corroborative of the testimony of the accusing witness in this case, the witness Garner." In addition to these two instructions the defendant requested the following: "You are instructed that there must be something in the corroborative evidence which makes the facts sworn to by defendant not true, if the corroborative evidence be true also. If the corroboration does not go to that extent, the defendant must be acquitted."
There was no error in refusing the instruction last quoted. The former instructions were sufficient on the question of corroboration.
21. Instructions 50, 50 1/2, and 52 are complained of, but the case cannot be reversed on account of the giving of these instructions for several reasons — the first being that the record shows them to have been given at the request of defendant; and we think we should be guided by this record in the matter notwithstanding that in the briefs of both parties these instructions are treated as if not given at defendant's request. Again, the last instruction mentioned is free from error. (Peoplev. Dolan,
22. The verdict is not contrary to the instructions nor is it unsupported by the evidence, but, on the contrary, the case made against the defendant was a strong one, as may be seen *262 by a reference to the brief summary of the evidence of the prosecution contained in this opinion. Against this evidence the defendant was compelled to rely almost exclusively on his own uncorroborated testimony and his good character. The jury were the judges of the weight of the evidence, and we see no reason to interfere with their verdict.
23. The defendant excepted to the remark of the assistant district attorney to the jury, which reads as follows: "The jury in the will contest over people's exhibit `A' within an hour after they had retired, brought in a verdict that people's exhibit `A' was not a valid will." This statement was improper and should not have been made, but still we cannot see how the defendant could be injured by it when it was virtually conceded by him at the trial that the will was bogus. When it was sought to be shown that the will was not in the handwriting of the deceased Fuller, the defendant admitted the fact, and of course this admission involved the signature to the instrument. In addition to this it was shown by the evidence, without conflict, that the will including the signature was in the handwriting of Mrs. Houseworth. This, with the other evidence tending in the same direction, established the fact that "exhibit `A' was not a valid will" beyond any question; and the assertion that a jury had so found could add nothing to defendant's burden.
24. Several other exceptions were taken to statements of the prosecuting attorneys in their arguments to the jury, but we see nothing in any of them calling for special notice. It is deemed sufficient to say that they are free from prejudicial error under the recent decision of this court in People v. Molina,
25. A number of objections to the action of the court in refusing instructions have been ignored in this opinion for the reason that after a careful examination of them the conclusion was reached that they were entirely devoid of merit. It should not be a matter of great surprise that where upward of fifty instructions are requested some of them should be refused.
The judgment and order should be affirmed.
*263Haynes, C., and Chipman, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Garoutte, J., McFarland, J., Van Dyke, J., Harrison, J.
Rehearing denied.
