Appeal from a judgment of the Superior Court of Placer County, and from an order denying a new trial.
Jo Hamilton, and G. W. Hamilton, for Appellant.
Attorney-General Hart, Deputy Attorney-General Layson, A. K. Robinson, and L. L. Chamberlain, for Respondent.
JUDGES: In Bank. McFarland, J. De Haven, J., Paterson, J., Sharpstein, J., Harrison, J., and Garoutte, J., concurred.
[29 P. 229] The appellant was convicted of murder in the second degree, and appeals from the judgment, and from an order denying a new trial. One of the points made for reversal relates to a ruling made by the trial court with respect to the admissibility of certain evidence, and the others relate to instructions given and refused.
1. It appears from the statement that at a certain stage in the trial the appellant, "in the absence of the jury," offered to introduce before the jury, "upon their return into court," certain named witnesses, and "to prove by each of said witnesses that he is well acquainted with defendant, and has known him intimately for many years; that each of them is well acquainted with his reputation for truth, honesty, and integrity, and that it is good; that they would give him full faith and credit upon his oath in any case." The court, upon objection, "excluded said testimony, and refused to permit the jury to hear the same," and appellant excepted. Assuming that there was anything before the court to rule on, the ruling was clearly right. Appellant did not offer to prove good reputation for the traits of character involved in the crime charged. It is true that appellant was a witness in his own behalf; but evidence is not admissible to prove that the character of a witness for truthfulness is good, unless the opposite party has tried to impeach him by showing that his general reputation is bad.
2. The points made with respect to instructions to the jury all relate to instructions asked by defendant, and refused or modified by the court. The instructions so asked, and numbered 2, 3, 4, and 16, deal with the subject of reasonable doubt, and were refused because "given elsewhere"; and upon turning to the general charge of the court to the jury, we find that it sufficiently covers that vexed subject, and contains all that is correct in the said instructions asked by appellant. It seems that the court, for some reason, struck out of said second instruction the word "entirely" before refusing it; but as it was properly refused with that word either in or out, striking it out was of no consequence.
The ninth instruction asked by appellant was as follows: "The defendant has offered himself in his own behalf. The court charges you that the defendant is a competent witness in this case, and it is the duty of the jury to weigh, examine, and take into consideration the testimony of the defendant, and give it due consideration, the same as it does the testimony of all the other witnesses in the case. If consistent and convincing, act upon it. If it raises in the minds of the jury a reasonable doubt of the defendant's guilt, he is entitled to the benefit of the reasonable doubt." The court struck out the words "the same as it does the testimony of all the other witnesses in the case," and then gave the instruction as thus modified. We see no error in this for which the judgment should be reversed. The instruction as given is as favorable to appellant as he was entitled to have it. It has been held here frequently (and it is too late now to reopen the question) that it is not improper for the court to call the attention of the jury, as was done in this case, to the circumstances under which a defendant in a criminal case testifies, -- the inducements, temptations, etc., which surround him, -- but nothing of that kind is suggested in the said instruction asked by appellant, and the words stricken out were inconsistent with the general charge on the subject, and would probably have tended toward leading the jury to believe that they were not to consider his surroundings, but were to receive his testimony as if he occupied exactly "the same" position as that of disinterested witnesses.
The eleventh instruction asked was properly refused. It contains this clause: "The court instructs you that unless you disbelieve the testimony of the defendant, the weight of the testimony tends to prove that the act of the defendant was not criminal"; and such an instruction would have been erroneous, for, under our system, it is not the province of the court to instruct about the weight of evidence.
The thirteenth instruction asked was also properly refused. It contains a conclusion of the court that "the testimony in the case does show that the defendant and deceased were old and particular friends of many years," and is thus objectionable, as stating a result of evidence which it was the duty of the jury, and not of the court, to arrive at. It then directs the jury as to what "bearing on the case" this friendship should have, -- that is, in effect, what weight it should have with the jury. Now, if this was a legitimate subject, for instruction at all, the court in its general charge had already said all that was proper to be said on the subject, in this language: "If the evidence shows that the defendant and the deceased were warm personal friends, this fact may be considered by you in connection with the other evidence in the case in deliberating on your verdict." But courts are to instruct only as to matters of law; and it is difficult to see how the questions whether a man is less likely to murder his friend than his enemy, or whether, on the other hand, it is more reprehensible to murder a friend than an enemy, etc., are questions of law.
The foregoing are all the points argued by appellant. We have examined the evidence, and find that it justified the verdict; and there are no reasons for disturbing the judgment.
The judgment and order appealed from are affirmed.