The record-union., 1891-03-12

such matters" But the jury had the
1 lfght to consider that innocent men had
been convicted; for the difference in the
weight of evidence required in civil and
criminal cases, and the doctrine OF
| reasonable doubt itself, are founded
upon the danger of destroying life or
liberty upon evidence that does moi
produce thorough conviction, and that
danger is based, in great part, upon
human experience. The court seemed to
think that the fact of former unjust con-
victiens. could not be considered be
cause there is no proof in this case OF
! any such fact" but that such cases have
occurred is a matter of common knowl-
edge; which the court, itself, admitted
when 1t said, 1T is true that innocent
l persons have been convicted in the past
Ii the court had simply told the jury that
ihlf they were satisfied beyond a reason
able doubt, by the evidence before them,
that the defendant was guilty, they
should not be deferred from so find
| ing merely because there had been some
! innocent men convicted, the instruction
might not have been Objectionable; but to
tell them that in coming to their conclu-
sion they should not consider the danger
of convlcting an innocent man was clearly
erroneous. And it certainly does not
appear that the whole instruction was not
prejudicial to appellant. We think,
therefore, that for the giving of this in
struction the Judgment should be re-
yerSed. ct may be remarked that the
propriety Of counsel reading to jury
from law books is not here involved. 1t
does not appear whether that was done,
or whether counsel merely alluded to the
subject orally; but if there was such read
ing 1t occurred without objection.)
AS the case must be retired it is neccS-
sary to notice one or two other matters.
3. In the instructions given upon the
subject of insanity there was no error
prejudicial to appellant. They are some
what voluminous; but the main propo-
sltion contained in them was that per-
son is presumed to be sane until the
contrary is shown, and that the burden is
on defendant of showing insanity by a
preponderance of evidence. This rule
has been established in this State by d
long line OF authorities. people VS.. My
ers, 20 Cal. SIS; People VS.. Cofflman, "A
Id. 237; People VS.. Mcdonald, II Id. i34;
People VS.. Wilson, Id. 13; People VS..
Messersmith, 81 Id. 264; People VS.. Ham
ilton, 62 Id. 81; People VS.. Kernaghan,
Y Cal. 609; People VS.. Eubanks, q Pac.
r. 10l4.) And this long line of decisions
cannot be held to have been overruled by
People VS.. Bushton go Cal l60), where
the defense was accident, and People VS..
Elliott I'D. 296), where the defense was
self-defense. In those cases the court
was dealing entirely with those cir
cumstances' referred to in Section 1105 OF
the Penal Code. which mitigate or justify
or excuse an act done by a sane man who
might commit crime; and its attention
was not called in any way to that un-
usual and peculiar mental condition
called insanity" which renders q man
utterly incapable of committing crime al
all. In the opinion of the court in People
VS.. Bushton reference is made to People
VS.. Smith go Cal. 607), and People VS.
In.,.,. Ifn1 a. 4. Al.
doctrine OF the Bushton case was stated
but in those cases-where the defenses
were self-defense and defense of prop
erty-the court certainly did not intend
to overthrow the settled rule of the court
on the subject of insanity. We are clear,
therefore, that the undisturbed law o1
this State still is that the burden of show
ing insanity is upon a defendant who
seeks shelter under it as defense.
In an instruction asked by defendant
and given, there occurs these words
'Or If you have reasonable doubt as tc
his sanity you cannot convict him Of any
degree of crime, but should acquit him. y
This, OF course, is conflicting with the
other instructions on the subject of in
sanity; but as it was favorable to defend
ant, the conflict would not, of itself, be
good for reversal. At another trial this
conflict can be avoided.
4. We see no error in the instructions
given on the subject of intoxication. AS
to the instructions asked by appellant
on the subject of delirium tremens, etc.
it is sufficient to say that settled insanity
produced by long continued intoNica-
ton affects responsibility in the same
way as insanity produced by any Other
cause. But it must be settled insanity, u
and not merely temporary mental con
dition produced by recent use of intoxi-
eating liquor. And an instruction to that
| Or 7, fr-,1
asked, provided there be evidence to
which such an instruction would apply
There are no other points necessary to be
noticed.
1t may be remarked, in conclusion. that
in nearly every instance where this court
has solved doubtful proposition in favor
of the afflrmance OF the judgment, the
decision has been made the basis and
preteXt for further excursions in the
same direction into the realm of unuues-
tionable error.
The judgment is reversed and the cause
remanded for new trial.
MCFARLAND, J.
We concur:
DEHAvEN, j.,
SHARPSTEIN, j.,
BEATTY, G. j.,
HARRISON, j.
DISSENTING OPINION.
The practical administration of Justice
should not be defeated by too rigid ad-
heSion to a close and technical analysis OF
the instructions of the lower court. And
conceding this instruction 10 be obnox-
ious to criticism, of which fact have some
doubt, yet its weaknesses form too slight
basis for reversal of the Judgment
in this case.
do not believe that the fact of inno-
cent men having been convicted in the
past was matter to be considered by the
lii fI,,1, i
guilt or Innocence of this defendant
Such fact could not add to or take away
one jot from the weight to be given every
piece of evidence in the case. 1t was the
duty of the jury to be convinced beyond
a reasonable doubt from all the eUidence
in the case of the guilt of the defendant
before they could convict, and the fact
in the past should not and could not have
impregnated itself into the question OF
reasonable doubt in any way.
The jurors in this case, under their
oaths, were bound to try this defendant.
in the same manner, under the same
rules of law, and give him the full bene-
fit of all the shields, with which the law
surrounds every defendant, whether as a
matter OF fact no innocent men ever had
i been convicted in the past or whether
such convictions by our courts ofjustice
were an ordinary occurrence.
see nothing IN the instruction to in
dicate hostility toward the defendant.
The words sympathy and prejudice
as used applied equally as strong in his
favor as against him. If all 'defendants''
must go free $ / consider would
have been a more appropriate express
sion, than if all Criminals must 90
free. 8 Yet 1 do not think a iurv
would get the impression, and am sure
that it ought not to get the impression.
that by the use of the word Criminals
as used in the instruction, the court in
tended to refer To the defendant rs one ot