People v. Paulsell

McFarland, J. The defendant was convicted of robbery, and appeals from the judgment and from an order denying his motion for a new trial. The judgment must be reversed and a new trial ordered on account of instructions given and refused upon the subject of reasonable doubt—a subject upon which we had hoped there would be no further difficulty, except where instructions had been presented upon that subject by the defendant. We have frequently held that where the well-known definition of reasonable doubt of Chief Justice Shaw in the Webster case had been given to the jury, we would be loth to reverse a judgment for the refusal of the court to give other instructions upon the subject; and we have frequently warned trial courts against departing to any considerable extent from that definition. In People v. Chun Heong, 86 Cal. 332, the court, through Beatty, O. J., said: “We cannot, however, abstain from again expressing the hope that the trial judges who have made use of this form of instruction will eventually see the propriety of returning to the approved definition, which, since the time of Chief Justice Shaw, has never been improved upon.” In People v. Karnaghan, 72 Cal. 610, we said: “For instance, — 11 — the definition—or, rather, description—of ‘reasonable doubt’ given by Chief Justice Shaw in the Webster case has been adopted by this court, and by nearly all American courts, as a statement of that mental condition sufficiently accurate. Therefore, where a nisi prius court had given the language used by Chief Justice Shaw, and had confined itself to such language, we would be slow to reverse the case, although other instructions upon the subject, not objectionable, had been asked by defendant and had been refused.” In People v. Lenon, 79 Cal. 629, we said: “Most instructions of courts on the old subject of reasonable doubt turn out to be erroneous when they ambitiously step outside of well-established bounds.” (See, also, People v. Lee Sare Bo, 72 Cal. 626.) If, in the case at bar, the court had given the instruction which has been so often approved by this court, and the point of appellant had been that other instructions were inconsistent with the said Shaw definition, then we would have been compelled to look closely into the other instructions to see if there was any such inconsistency which vras material. But, in the case at bar, it happens that the appellant himself asked the court to give said definition of reasonable doubt, which is found in the said Webster case, in the following language: “In the words of our own supreme court, a reasonable doubt is that state of the case which, after an entire comparison and consideration of all the evidence, leaves the minds of the jury in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge”; and the court refused to give said instruction upon the ground that it was “given by the court elsewhere.” Of course, it was clearly error to refuse this instruction. It ought to have been given, even if the court intended to say anything further upon the subject. We do not feel ourselves called upon to critically examine what is claimed to be the equivalent of the said refused instruction, and to determine upon a close analysis whether what the court said was, in fact, the exact equivalent of — 12 — the said instruction which it refused to give. If expert, mental departures from the well-established language sanctioned by all courts upon the subject of reasonable doubt are to be here allowed, and each trial court is to venture upon unusual language to express the idea contained in language so often approved, we will be afloat upon a new and unknown sea, and complications will arise in every criminal case coming here which will be very difficult to unravel. In the present case, it is sufficient to say that the court introduced the new and unused phrase “common sense,” and told the jury that the doubt must be based upon that. Counsel for appellant argues—after giving some of the definitions of common sense to be found in the dictionaries—that this language is merely the equivalent of saying that a jury should convict if they are satisfied of the guilt of the defendant to such a certainty as would influence their minds in the important affairs of life; which was held .to be unsound by this court in People v. Brannon, 47 Cal. 96, People v. Ah Sing, 51 Cal. 372, and People v. Bemmerly, 87 Cal. 121. It is sufficient to say, however, that the phrase “common sense” is about as uncertain as any phrase in the language. When one speaks of common sense, he generally means his own sense; and there is no warrant for the unnecessary use of such, a term when there is apt language to express the idea of reasonable doubt which has been frequently approved and pointed out as the language proper to be used. For this reason the judgment must be reversed. Section 2061, of the Code of Civil Procedure, provides: “That a witness false in one part of his testimony is to he distrusted in others.” The court in instructing the jury of its own motion unfortunately changed the statutory language so as to make it as follows: “A witness proved to be willfully false in one part of his testimony may he distrusted in other parts of it.” While the court undoubtedly should have been careful to use, on this subject, the language of the statute, we are not prepared to say that the judgment should be reversed — 13 — on this account. But upon another trial the court no doubt will be more careful to follow the statutory language. In its charge to the jury upon the subject of circumstantial evidence, the court read quite a long extract from the opinion of another court in another case, which contained really quite an argument in favor of the conclusiveness of circumstantial evidence, and a statement that such evidence was sufficient if it warranted a belief “as strong and certain as that on which discreet men are accustomed to act in relation to their most important concerns”; and the court then told the jury that the part of said opinion just quoted was not the law in this state. This course, we think, was improper. It is usually the province of the court to tell the jury what the law is, not what it is not; and, while we are not called upon to say whether or not such a course would warrant a reversal of the judgment, we may say, at least, that it is not commendable. The court also instructed the jury upon this subject as follows: “The doctrine of circumstantial evidence, in brief, is this, that all the circumstances must tend to establish the guilt of the defendant, and be inconsistent with any other rational hypothesis.” This language is somewhat ambiguous, and might be misleading. All of the circumstances taken together should establish the guilt of the defendant—they should do something more than merely tend to establish such guilt. It is contended by the appellant that the court erred in overruling challenges to certain jurors upon the ground of bias. We do not think, however, that this contention can be maintained, and the same questions will probably not arise upon another trial. • . We see no other points necessary to be specially noticed. The judgment and order appealed from are reversed and the cause remanded for a new trial. Henshaw, J., concurred.