The record-union., 1891-04-01

is paSeu upon the theory that certain pre-
sumptions shall take the place of evil
dence, and was not intended to change
the rule of evidence.
But, aside from any authority upon the
! question, it does not appear that the bur-
| den of proof could possibly shift ut any
stage of the proceedings, or under any
state of circumstances, in case similar
to the one under discussion.
| The presumptions which follow from
| the act of killing in the case of homicide,
and which are impliedly recognized by
| Section ll05, are inapplicable to and have
no relationship with the offense of assault
/ with intent to commit murder, and this is
fully exemplified by cursory examina-
! ton of the instruction heretofore quoted,
struction to be misleading, contradictory,
and practically meaningless.
The language of the instruction is, "the
assault and the intent being proved, the
| burden of proving circumstances of JUS
tlticatlon, excuse, ETC., rest upon the ac-
cused, unless, etc." If the assault and
| the intent to commit the murder are
proven, the ofiense is made out perfect
and complete in every portion, and the
| foregoing instruction can only be correct
! in the sense that when the prosecution
has proven the defendant guilty, it be-
! hooves him to do something in his own
! behalf or suffer the consequences of his
| proven guilt.
The serious vice in the instruction then
| follows, unless the proof on the part of
| the prosecution tends to show that the
| crime committed only amounted to an
assault with deadly weapon with intent
to infiict upon the person of the prose-
| cutting witness a great bodily injury, or
| of simple assault, or that the defendant
was justified or excused" This proviso
or exception never could exist in connec-
| ton with the previous assumption that
the guilt of the defendant of the crime of
assault with intent to commit murder
had already been established by the evil
! Gence OF the prosecution, and il has no
signification whatever when taken in
connection with the former part of the
| instruction.
If the defendant had been convicted of
an assault with intent to commit murder
! he would have been entitled to a new
trial by reason of error in the foregoing
instruction, but having been found
guilty of the crime of assault with a
! deadly weapon only, he is acquitted of
the higher offense, to which the instruc-
| ton alone is pointed and consequently is
! acquitted of the intent to murder and
| necessarily was not preiudiced thereby.
| People VS.. Swift, 66 Cal. 349; People VS..
! O'Neal, 81 Cal. 37S; People VS.. Boiling, SO
! Id. 3S0.)
The court gave the following instruction
to the jury:
1.-The prosecutor Potter has testified in
substance that at the time in question he
was sitting in front of the Lamolle House,
IN chair on the sidewalk, unarmed.
That the defendant came up and ad-
| dressed him in a sharp tone and i'm
mediately made demonstration to draw
pistol upon him. That he, Potter,
| thereupon sprang up from his chair and
grappled with the defendant and struck
! him in the face. = Other witnesses cor
] ,.~l,< -. .1x~eS Il
! OF the prosecutors statement of the tran
saction after the conflict had COM
| menced."
| All the testimony of the prosecuting
| witness, Potter, as to these matters, is as
| follows:
EXamination-in-chie 81 was seated
! in a chair in front of the Lemolle House,
on Santa Clara street, near San Pedro
| street. l was seated looking east. and
| thinking about something. l had been
there about twelve or fifteen minutes,
when some one came up and addressed
me as, 'Ah, therep or Hello, there I
looked quick, and III. L. Gordon, the de-
fendant, was standing about two feet
! from me. As jumped around in this way
he started for his overcoat pocket with
his right hand. l Immediately jumped
up and grabbed him. g l saw
him make a motion for his side coat
pocket, and / Immediately grabbed his
hand"
Cross-examination: "The first time
l saw him was when he was standing in
front Of me at the Lamolle House. I
first saw defendant when he got in front
of me on the sidewalk about three or four
feet from me. When he
came up he SAID: There or 'Ah, there, ;
or Hello, there Idon't know which, but
l heard the word there which was sig
nificant. When he spoke to me 1 had
my legs crossed, and / looked around,
and he Immediately attempted to step
back, and started his right hand for the
| side of his overcoat pocket. raised up
and grabbed him, etc. I
grabbed him with my left hand on his
right wrist as he had his hand in his
pocket. He was trying to
get his pistol out of his pocket. He had
his right hand in his pocket. = =
The first time | saw Gordon he was en-
deavoring to get his pistol in his hand'
1t appears by the record that there was
wide divergence between the testimony
OF the prosecuting witness and the de-
fendant as to the matters which occurred
at the immediate inception of the diff
culty between those parties, and as the
defendant in this case insisted at the trial
that the shooting was done in self-defense,
1t was a matter of vital importance to the
jury to know who began the affray, and
this was essentially and solely the prov
testimony Of all the witnesses.
While Section 19, Article VI, of the
Constitution allows Judges to state the
| testimony to the jury, yet this principle
has always been strictly enforced, and
necessarily so, for, that Judges must not
charge juries with respect to matters of
fact, is constitutional prohibition which
has been jealously guarded and rigidly
upheld from the earliest judicial history
of the State.
In the case of the People VS.. Williams,
(17 Cal. 40, Justice Baldwin used the fol-
lowing language, which is as trite now as
when used in that early case:
THE experience of every lawyer shows
the readiness with which a jury frequently
catch at intimations of the court and the
great Difference which Jurors pay to the
opinions and suggestions of the presiding
Judge, especially in closely balanced
case, when they can thus shift the re-
sponsibility of a decision of the issue
from themselves to the court; word, q
look, or tone, may sometimes in such
cases be of great or even of controlling
influence. n Judge cannot be too eau
tious in 4 criminal trial in avoiding all
interference with the conclusions of the
jury upon the facts"
AS we have seen in this case the Judge
undertook TO state to the Jury the sub
stance of the prosecuting witness testi-
mony, winch IS very dangerous thing
to do, for it is essentially the province of
the jury to decide what the substance of
the prosecuting witness testimony was
Selecting what constitutes the substance
OF witness testimony is to greater or
less extent matter of opinion, and the
Jurors and the Judge may have held
widely different views as to what the SUBJ
stance OF the prosecuting witness testi-
mony really was in this case.
In the instruction under consideration
the court states that the witness, Potter
| testified: THAT the defendant came up