The San Francisco call., 1895-11-02
,r,, from the latest photograph by Taber


stand their interest in the result of this trial
how far their testimony appears consistent or
inconsistentin itself; how faritis contra dicted
If at all, by other facts and circumstances and
testimony in the case; whe their recol-
lection to matters to which they testified is
clear and distinct; whether or not there are
contradictions and discrepancies on this tria
from what they may have said and testified to
on other occa sions, and il so, whether they are
of material matters, which would be likely to
stamp themselves forclby upon the mind oi
the witness, or immaterial matters and circum-
stances surrounding the transaction and not
calculated to make lasting impression. Hon
est mistakes of memory in certain particulars
may not be looked upon evidence OF false
hood, but where such exist the imperfec ton of
the witness memory should be considered and
taken into account in the examination of his
or her testimony, and give II, the testimony of
each of the witnesses, such weight under all
the circumstances you believe it TO be entitled
10.
The n1otive of ,citnesses
to be considered.
1t is proper for you also in determining the
weight that you Will give to the testimony of
or not any OF the witnesses have any interest
or motive which would affect their testimony
In any articular; whether or not by reason OF
their friendship for, or hostility to, the de-
fcndant. their testimony has been affected or
colored these and such other sugges tions as
may fairly arise in your mind you should con-
slider in weighing the testimony of each and
all OF the witnesses.
The proof of a charge in q criminal case in
wolves the proof of two distinct propositions:
First-That the crime charged was commi T.
ted. and
Second-That it was committed by the per-
son accused, and none other.
These two propositions must be established by
the prosecution 10 this moral certainty and be-
yond reasonable doubt, as have defined.
The court clearly defines
the tdlD as TO abb.
am requested to give you in charge the law
as to alibi, which simply means that the ac-
a 1nth hnr nj =, 10
commission OF the crime. and therefore eoul Id
not have committed it, and instruct YOU that
such defense is MS legitimate and proper as
any other defense. All the evidence bearing
upon this defense should be carefully consid-
cred by you. If the testimony this subject,
considered with all the other evidence in the
case, ls sufficient to raise reasonable doubt in
your mind as to the gnilt of the defendant YOU
should acquit him. The law does not require
the accused to satisfy you as TO his where
abouts every moment of the time necessary to
cover the period when the offense is charged to
have been committed. He is required to prove
such state of facts or circumstances as to
create a reasonable doubt as to his presence at
the place where and the time when the crime
is alleged to have been committed.
Entitled TO the benefit
Of q reasonable doubt.
The accused is entitled as much to the bene-
fit OF reasonable doubt, as TO whether he has
or has not established his alibi, as to any other
reasonable doubt raised by the evidence, and
II its weight. alone, or added TO that of any
other, be sufficient to raise a reasonable doubt
OF his guilt, you should acquit him. The ques-
ton for you to consider is, whether the theory
OF the prosecution against the defense of albi
is supported by the evidence beyond a reason
able doubt.
The fact, If fact it be, that an alibi was set
up and maintained throughout the subsequent
proceedings, should be taken into considera-
tion bv you in connection with all the evil
dence in the case in determining whether a
reasonable doubt of the defendants guilt has
been raised. The accused is not required to
Ii u
able doubt or even by preponderance of evil
dence; it is sufficient If the evidence upon that
point raises reasonable doubt of his presence
at the time and place OF the commission of the
titled to an acquittal. The attempt of the ac-
cused to prove an alibi does not shift the bur
del of proof from the State.
As to the personal identity
Of the accused.
The question OF the personal Identification
of the accused and his doings and whereabouts
on the Sd day of April last, the day on which
it is claimed the deceased met her death, is of
undoubted importance in this case. 1t may be
taken as true that many persons are and have
been mistaken in the identity of others. The
change in the appearance OF the person whose
identity is in question, the want of perception
and discrimination in the Identifying wit
nesses and other causes have. probably, led to
numerous cases of mistaken identity. 1t may
also be stated as a truth that persons are liable
to be mistaken as to the identity OF Others, but
whether they are mistaken will probably
depend upon the circumstances under which
they claim to have seen such other person.
The identity of persons by their Appearance
and close scrutiny may, in some cases, be far
from satisfactory, certain or conclusive, and Is
often the mere opinion of the witness In such
cases the jury must form It's own opinion; but
if a person has an object in noticing another
under perhaps peculiar circumstances, and his
mind and eyes are attracted to the face fea-
lures and dress of such person, it will prob
ably be admitted that the chances of mistake
in the identity of such person will not be as
great as If he had no cause or reason for par
tfcularly noticing the person sought to be
identified, and simply had casual passing
look or glance al him; of course, face, features,
size, dress and general appearance and former
acquai ntanceship are important factors in the
matter of Identification. 1t may also depend
in great measure, on the means of identi-
fication which the identifying witness may
have had the clearness of vision of such wit
ness, the time and place and all the clrcum-
stances and surroundings under which the wit
ness claims to have seen the party sought to be
identified. Evidence OF identification should
be as certain as human recollection will per-
nit; caution and prudence should be used by
you in considering this testimony. You will
bring to It's consideration your experience and
good sense, and give to it such weight as it is
entitled to.
Weight Of proof of
good character.
When the proof adduced by the prosecution