95 P. 48 | Cal. Ct. App. | 1908
There are two appeals in the case upon separate records — one from an order refusing to settle a bill of exceptions and denying and refusing to grant the motion of defendant to be relieved from the objection of plaintiff that defendant's proposed bill of exceptions was not presented in time, and the other from the judgment of life imprisonment upon conviction of murder in the first degree with that penalty fixed by the jury.
In this opinion we shall consider the questions arising in both appeals.
1. Judgment was entered against defendant on October 2, 1906; the court on the same day made an order granting defendant thirty days in addition to the time allowed by law in which to prepare, serve, file and present his bill of exceptions; on November 10th and before the expiration of the time theretofore allowed, the district attorney entered into a stipulation with the attorney for defendant that the latter should have to and including December 11th to present his bill of exceptions; on December 8th defendant gave notice that on December 10th he would present his bill to the judge; on December 10th said bill was duly presented and thereupon the district attorney objected to the settlement upon the ground that the said proposed bill of exceptions was not presented "within the time required by law as expressed in sections 1171 and
The court denied defendant's application and refused to settle any bill of exceptions.
Said section
Here the order extending the time was made, as we have seen, by the judge without any affidavit having been filed and without any notice having been given to the adverse party. Again, the proposed bill was presented not within the period covered by the order but some time thereafter, upon the theory that there was an extension by virtue of the stipulation. To uphold appellant's contention that the bill should have been settled would be to disregard the plain provision of the statute. The significance of said provision was considered and determined by this court in the case of People v. Bliss,
In that case it was said: "The present statute introduces additional requirements which we cannot hold to be merely directory. . . . But it is claimed that it was nevertheless within the discretion of the court 'after hearing the whole matter, to make the order setting down the bill for settlement and giving the district attorney time in which to file his amendments to the bill.' We cannot concur in this view of sections 1171 and 1174 and must hold that when a defendant in a criminal action seeks to obtain an extension of time within which to have his bill of exceptions settled, he must proceed substantially as directed by the statute. Doing this the judge is then clothed with discretion and his action would be disturbed only where its abuse is made to appear."
There is no pretense that appellant complied with the requirement of said statute, hence the court below had no authority to consider the proposed bill of exceptions.
But if it were a matter of discretion and the court had jurisdiction to relieve the appellant of his default it could not be said that there was any abuse of said discretion. There is nothing in the affidavits of the attorneys for appellant to show that they were not familiar with the requirements of the law. It must be presumed that they had knowledge of the procedure to be taken in order to secure an extension of time in which to prepare their proposed bill. Knowing the law they departed from its plain provisions at their peril. We might surmise that the amendment to said section
Neither can the affidavits be aided by the recital in the motion that it would be made "on the ground of mistake, inadvertence, surprise and excusable neglect of defendant and his counsel herein." Facts must be presented from which the court reaches the conclusion that the relief should be granted; the court is not concerned with the opinion of *564
affiant that his neglect is excusable. (Sherman v. Jorgensen,
2. The action of the trial court in giving and refusing instructions is the only question to be considered on the appeal from the judgment. The action of the court must be viewed in the light of any conceivable evidence against defendant as the evidence actually received is not in the record. (People v. Clark,
Complaint is made that the court erred in giving the following instruction: "The prosecution is not required to establish the guilt of the defendant beyond any possible doubt. All that is required is moral certainty, — that is, that degree of proof which produces conviction in an unprejudiced mind; and if from the evidence in this case the jury are satisfied beyond a reasonable doubt of the guilt of the defendant, then your verdict should be one of conviction." The criticism of appellant is as follows: "Our contention is that not only must the jury be satisfied beyond a reasonable doubt, but to a moral certainty, before they can convict." It is hard to understand how a juror can be satisfied beyond a "reasonable doubt" and not to a "moral certainty" of the guilt of defendant, but conceding a difference, it is without significance as the jury must have understood from the instructions as a whole that they must be satisfied to a moralcertainty and beyond a reasonable doubt of the guilt of the defendant in order to convict him.
There was no error committed by the court in its refusal to give the following instruction: "If after consideration of the whole case any juror should entertain a reasonable doubt of the guilt of the defendant it is the duty of such juror so entertaining such doubt not to vote for a verdict of guilty, nor to be influenced in so voting for the single reason that a majority of the jury should be in favor of a verdict of guilty." It was fully covered by other instructions given by the court. In fact, the court fully and repeatedly charged the jurors that they must be convinced of defendant's guilt beyond a reasonable doubt or else it was their duty to acquit. For instance: "I charge you, gentlemen of the jury, that there must be in your minds an abiding conviction to a moral certainty of the truth of the charge derived from a comparison and consideration of all the evidence and you *565 must be satisfied of the truth of the accusation against the defendant to a moral certainty and beyond a reasonable doubt, or your verdict must be not guilty."
This instruction was addressed to all the jurors and anyone would be very obtuse indeed who did not understand from it that each individual juror could not vote for conviction under any circumstance unless he was satisfied of the guilt of the defendant to a moral certainty and beyond all reasonable doubt. The law does not require such tautology as is advocated by appellant.
As to the refusal of the court to give a proposed instruction upon circumstantial evidence, it is sufficient to say that it is substantially covered by other instructions and, besides, the general suggestion is applicable to this as to all the instructions refused, that it must be presumed that they were not pertinent to any fact shown by the evidence.
The instruction as to threats given as modified was as favorable to defendant as he was entitled to. The latter portion, that the threat could not be considered unless the jury believed that the act upon which the same was conditioned was done by the deceased, was properly rejected. The character of the threat may have been such and the condition upon which it was to be executed of such trivial importance as to show malice, even without any evidence whatever that the act upon which the threat was conditioned was performed by deceased. And besides, as suggested by respondent, an attempted performance by deceased of the condition would make the threat admissible while the proposed instruction required a complete performance.
Appellant complains of the following statement in one of the instructions given by the court: "There is nothing in the nature of circumstantial evidence that renders it any less reliable than any other class of evidence." It is contended that this is in violation of the provision of the constitution which prohibits judges from charging juries with respect to matters of fact, and in support of the position People v.Vereneseneckockockhoff,
On the contrary, in reference to an instruction containing the same statement, the supreme court, in People v. Wilder,
The ruling was the same in the case of People v. Howard,
We have examined the record carefully and find no error.
The order refusing to settle the bill of exceptions and to relieve appellant of his default is affirmed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 16, 1908. *567