Lead Opinion
— Thе appellant was convicted of murder, and he appeals from the judgment, and from an order denying a new trial. He makes three points on the appeal, viz.: 1. That the trial court erred in instructing the jury; 2. Misconduct on the part of the jury; and 3. Insufficiency of the evidence to support the verdict.
1. The objection urged against the instructions is, that they require a preponderance of evidence on the part of a defendant in a criminal case, contrary to the rule laid down in People v. Bushton,
The first instruction above quoted is taken verbatim from section 1105 of the Penal Code, and, of course, is not erronеous, although it should, in justice, be accompanied, as it was in the case at bar, by what the same code contains on the subject of reasonable doubt.
The second instruction is somewhat confused by the use of the word “ if ” ; but it might, perhaps, bе fatally erroneous if in this case, as in People v. Bushton,
People v. Elliott,
The part of the third instruction which is objected to is this: “He may establish any fact essential to his defense by merely a preponderance of evidence.” Of cоurse this proposition in itself is true; it does not upon its face declare anything that is erroneous. It is apparently intended for the benefit of the defendant. But the objection made to it is, that the jury might infer from it the other proposition, that no еvidence on the part of the defendant of a fact would be sufficient to raise a reasonable doubt of his guilt, unless he actually proved the fact by a preponderance of evidence. It is possible that the language оbjected to might have the alleged effect on a jury in some cases, when not accompanied by other qualiying instructions, and for this reason it had better be left out of charges to juries in criminal cases.
In the case at bar, however, the only effect that the instruction could have had was in relation to the fact of an alibi, which defendant attempted to prove. But, with respect to that fact, the court instructed the jury as follows: “Where evidence has been offerеd by the defendant for the purpose of proving an alibi, — that is to say, that the defendant was in ánother place at the time of the alleged act of murder, and was distant from the scene of the killing charged, at the time, and therefore could not have participated in it, — if, from the whole case, and a consideration of all the testimony, the evidence in
2. Alleged misconduct of the jury. The deceased was killed on the street, near the corner of Jackson and Dupont streets, in the city of San Francisco; and in the taking of the testimony in chief of the prоsecution, a great many different localities, houses, etc., were mentioned. When the evidence for the prosecution in chief was closed, the prosecution and defense joined in a request to the court that the jury be allowed to visit and view the various places mentioned in the testimony, whereupon the court made an order for the viewing of about a dozen enumerated places. The deceased was attacked and killed about ten o’clock on the night of June 23, 1889, by two or three persons, who used hatchets, and perhaps other weapons; and a witness had testified that he saw the assault, that defendant was one of the assailants, and that immediately after the assault the defendant went up the stairway of a certain house designated as “ No. 924 Dupont Street.” The defendant was arrested about three hours afterwards, in a house on another street in that vicinity, called “Washington Alley,” the house being designated as “No. 10 Wаshington Alley.” And a witness (Wittman) had also sworn that he (the witness) had afterwards gone up the stairway of No. 924 Dupont, and, passing through a window, had gone on the roofs of the intervening houses and down into the house No. 10 Washington Alley. Now, the order above mentiоned for viewing premises, made at the joint request of the parties, included “the premises No. 10 Washington Alley,” and “ also to ascend the stairway at No. 924 Dupont Street, and look out of
Means says in his affidavit, further, as follows: “ That upon reaching said 924 Dupont Street, in conformity with said permission, affiant passed out of said window and over said roofs onto thе roof of the building No. 10 Washington Alley; that the other jurors passed to No. 10 Washington Alley by way of the street, and met affiant where he had remained on the roof of said building No. 10 Washington Alley; that affiant was in full view of the balance of the jury, and of the judge оf said court, while passing over said roofs; that he neither spoke to any one nor did any one speak to affiant from the moment he left the balance of said jury until he was again joined by the balance of the jury; that both defendant and his сounsel, Mr. Lyman I. Mowry, were present during all the foregoing proceedings, and offered no objection to the said act of affiant.”
And the passage of said juror, Means, over said roofs, under the circumstances as above stated, is relied on by appellant as misconduct for which the judgment should be reversed. The only substantial difference between the affidavit of Means and that of appellant, upon which
It is not necessary to determine whether the act of Means, had it been done against appellant’s consent, would have constituted in law a “ seрaration ” of the jury. Neither does it appear that appellant was injured by the act. Appellant took the chances of injury or benefit. The juror might, as appellant may have expected, have become lost in the lаbyrinth of Chinese roofs. If appellant had not desir.ed to have the juror make the attempt, he should have objected when the proposition was made, before the court left the courtroom, or afterwards, before the juror commenced the passage. Instead of doing so, he not only consented, but requested, that the juror make the attempt. After the result was known, it was too late to make the objection. We do not see that the question of a defendant’s рower to waive a constitutional right is involved. The thing complained of here is, at worst, only an irregularity which should have been objected to when the opportunity was offered. The point as to jurors examining the box in which appellant’s hаt was said to have been kept overnight, we do not understand to be urged. The statement about it was made merely “on information and belief,” and was insufficient. (People v. Williams,
3. As to the'point of the insufficiency of the evidence to support the verdict, it is enоugh .to say that the mass
Beatty, C. J., Paterson, J., Works, J., and Fox, J., concurred.
Concurrence Opinion
— In my opinion, the instructions are without error. I find no error in the record. I wish to add that I do not intend by what is said herein to approve the ruling in People v. Bushton. I concur in affirming the judgment and order.