CRIMINAL LAW (Continued). jury, the fact that an inference of innocence might likewise be reasonably drawn therefrom, does not present a question of law for review by an appellate court, any more than does a verdict based upon direct conflicting evidence; in neither case will the verdict be disturbed. (Id.) 64. REFUSAL OF REQUESTED INSTRUCTION NOT PREJUDICIAL-DISTRUST OF WILLFULLY FALSE WITNESS.-The refusal of the court, at defendant's request, to instruct the jury that if they believed from the evidence that any witness had willfully testified falsely to any material fact they were at liberty to reject the other testimony of such witness, constituted no prejudicial error. (Id.) 65. REFUSAL OF REQUEST COVERED BY COURT'S CHARGE. It was not error to refuse a requested instruction which, in so far as it correctly stated the law, was covered by the charge of the court, which, taken as a whole, is full and complete, and well calculated to protect every right of the defendant. (Id.) 66 MURDER-CONFESSION OF WIFE'S ADULTERY WITH DECEASED-HOMICIDE AFTER LONG INTERVAL OF TIME-INSTRUCTION AS TO MANSLAUGHTER PROPERLY REFUSED.-Upon the prosecution of a husband for the killing of the deceased for having committed adultery with his wife, where it is shown that the homicide was committed about seventeen hours after the husband had been told by his wife of such adulterous relation, and the evidence conclusively shows that unless the defendant was at the time of the shooting so far mentally deranged as to be without appreciation of the nature of his act, he was not entitled to an instruction upon the subject of manslaughter. The jury were warranted in convicting the defendant of murder, if they were sufficiently convinced that he committed any crime at all. (People v. Ashland, 168.) 67. KILLING IN HEAT OF PASSION ESSENTIAL TO MANSLAUGHTER-CONCLUSIVENESS TO CONTRARY FROM LONG LAPSE OF TIME.-While the taking of life in the heat of passion will make the crime manslaughter, it will be conclusively inferred that the homicide was not committed in the heat of passion, from the fact of the intervention of a long period of time between the provocation and the act of killing, in which there was sufficient cooling time from the heat of passion. In such case, the act of killing, although prompted by the provocation, will be deemed to have been the result of deliberate premeditation or predetermination to take life. (Id.) 68. INSTRUCTIONS MUST APPLY TO FACTS PROVED.-Instructions must be applicable to the facts; and it is not error to refuse instructions which have no application to the facts as proved. There being no evidence which would give plausible color to the theory that the killing was in the heat of passion, the court properly refused to give any instruction on the subject of manslaughter. (Id.) CRIMINAL LAW (Continued). 69. STATUTORY DEFINITION OF DEGREES OF MURDER-USE OF WORD "OBSERVE." Where the court correctly gave in the language of the Penal Code, the distinction between the two degrees of murder, the use of the word "observe," in connection with the statutory definition of murder in the first degree, carried with it no erroneous or harmful use of that word, which is in effect that the jury would "take notice" that certain elements stated constituted murder in the first degree. (Id.) 70. REQUESTED INSTRUCTION-DEFENSES UNDER PLEA OF NOT GUILTY— MODIFICATION-ABSENCE OF PREJUDICE.-The court did not err in modifying a requested instruction as to defenses permissible under a plea of not guilty of the offense charged, by striking out certain unnecessary exceptions stated, where the instruction as modified, in connection with another instruction given, entitled the jury under such plea, to consider all matters of fact tending to establish any defense. But, as insanity was the only defense made, the defendant could not be prejudiced by the modification. (Id.) 71. PROPER DISALLOWANCE OF REQUESTS COVERED BY CHARGE-REASONABLE DOUBT-PRESUMPTION OF INNOCENCE-RIGHT TO REFUSE TO TESTIFY.-The disallowance of requested instructions as to reasonable doubt, as to the presumption of innocence, and as to the defendant's right to refuse to testify, was not prejudicially erroneous, where the court in its own charge, fully covered the law applicable to each of those subjects. (Id.) 72. DEFENSE OF INSANITY-ERRONEOUS REQUEST-INABILITY TO KNOW NATURE OF ACT.-The court properly refused a requested instruction that "to constitute unsoundness of mind, it is not necessary that the person of unsound mind has a delusion or mania, and acts upon such delusion or mania. If you believe from the evidence in this case that, at the time of the killing charged in the information, the defendant was of unsound mind by reason of any delusion or mania, then it is your duty to acquit the defendant." Such request omits the most essential element of insanity as a defense to crime, that the defendant was then so mentally deranged, that he did not and could not know the nature and quality of his act in slaying the deceased, and its wrongfulness. (Id.) 73. PROOF OF INSANITY-PREPONDERANCE OF EVIDENCE-PROPER MODIFICATION OF REQUEST-STRIKING OUT WORD.-A requested instruction that "while the law compels the prosecution to prove the guilt of the defendant of the crime charged beyond a reasonable doubt, and to a moral certainty, the law only requires the defendant, whose insanity is one of his defenses to prove his insanity at the time of the commission of the offense charged by a preponderance of evidence merely," the request was properly modified by striking out the word "merely." (Id.) CRIMINAL LAW (Continued). 74. HYPOTHETICAL INSTRUCTION PROPERLY REFUSED.-A hypothetical instruction purporting to recapitulate the testimony addressed to the defense of insanity and concluding with the statement that if the jury believed that the preponderance of the evidence upon that question showed that the defendant, by reason of the facts set forth, was mentally so deranged at the time he committed the act of killing that he did not know the nature or quality of the act he was doing, or that he did not know that he was doing wrong, a verdict of acquittal should follow, was properly disallowed, as apt to be misleading. (Id.) (Id.) 75. ABSENCE OF PREJUDICIAL ERROR-FAIR TRIAL-SUPPORT OF VERDICT. It is held that no prejudicial error appears in the record; that the defendant has been accorded a fair trial, and that his conviction of the offense charged cannot be disturbed upon appeal. 76. MURDER-INSTRUCTIONS-LAW OF SELF-DEFENSE-TEST OF CORRECTNESS OF INSTRUCTIONS.-Upon the trial of the defendant upon a charge of murder, it is held that an objection to instructions of the trial court upon the law of self-defense is hypercritical; but even if it were not so, the correctness as a whole of the charge to the jury, is never to be tested by singling out and assailing individual instructions, which when detached and isolated from the charge in its entirety, may not contain every qualification, exception, or contingency which may possibly arise under the facts of the particular case on trial. (People v. White, 156.) 77. PROVINCE OF TRIAL COURT AS TO INSTRUCTIONS.-The trial court is not required repeatedly to qualify and explain the essentials of the law applicable to the case in every individual instruction of its charge to the jury, and its charge will ordinarily be held good and sufficient, if the same as a whole clearly, correctly, and without conflict, states the law of the case. (Id.) 78. VIEW BY JURY OF PLACE OF HOMICIDE-RECEPTION OF EVIDENCERIGHT OF DEFENDANT TO BE PRESENT SWORN DUTY OF TRIAL JUDGE WAIVER OF OBJECTION.-Though the defendant prosecuted for murder has a statutory right to be present at the reception of all evidence, including a view of the premises, where the homicide was committed, in which the jury are receiving evidence, of which he cannot be deprived, without his consent; and though it is the sworn duty of the trial judge to be present at the reception of all evidence by the jury; yet the defendant may waive all objections both to his own right to be present, at such view, and to his voluntary absence therefrom, and also to the sworn duty of the trial court to be present at such view and to the court's absence therefrom. (Id.) 79. FACTS SHOWING DEFENDANT'S WAIVER OF OBJECTION TO VIEWREQUEST BY DEFENDANT FOR VIEW-VOLUNTARY ABSENCE-PRESENCE OF DEFENDANT'S COUNSEL WITH JUDGE.-Where the defend CRIMINAL LAW (Continued). ant requested that the jury be permitted to view the place of the homicide, in charge of a deputy sheriff and of a detective, but failed to request the presence of the judge, and defendant was voluntarily absent from the view, and his counsel remained with the judge in the court room, until the return of the jury, and no objection was made, before or after the view, either to the defendant's absence therefrom, or that the judge owed a duty to be present at the view, it is held that under these circumstances, the defendant waived both his own right to be present at the view, and also the trial judge's duty to be present thereat. (Id.) 80. POWER OF DEFENDANT TO WAIVE DUTY OF JUDGE TO BE PRESENT AT THE VIEW-DANGER OF INJUSTICE TO DEFENDANT-DUTY SHOULD BE PERFORMED.-Though the authorities sustain the power of the defendant to waive the judge's duty to be present at the view, yet there is danger of injustice to the defendant by the omission of that duty, even with the defendant's consent, which if it manifestly occurred, would necessitate a reversal of the judgment. The court should always perform its duty to be present at the view. (Id.) 81. ABSENCE OF INJUSTICE IN PRESENT CASE-DEFENDANT NOT INJURED BY VIEW. It is held that, in the present case, nothing occurred during the view of the premises, which in any wise tended to injure the defendant, and that a reading of the whole record discloses that he was fairly tried and justly convicted. (Id.) 82. MANSLAUGHTER-EVIDENCE-TESTIMONY OF ABSENT WITNESS TAKEN AT PRELIMINARY EXAMINATION-DISCRETION OF TRIAL COURT-APPEAL.-Upon the trial of a defendant convicted of manslaughter, the determination of the question as to whether or not a sufficient foundation was laid for the reading of the testimony of an absent witness taken at the preliminary examination, is a matter resting largely in the discretion of the trial court, and if there is substantial evidence in the record to support the conclusion of the trial court, this court will not interfere with the ruling allowing the testimony to be read. It is held that the showing in the record is sufficient to justify the ruling of the trial court, and that there was no abuse of discretion in permitting the deposition to be read. (People v. Dene, 137.) 83. DEPOSITION READ OF LITTLE IMPORTANCE.-It is held that the deposition read is of such little importance that if it had been excluded instead of admitted it would not in any way have affected the result of the trial. (Id.) 84. PLEADING AMENDMENT OF INDICTMENT OR INFORMATION BY DISTRICT ATTORNEY-CONSTRUCTION OF PENAL CODE AS AMENDED.-The provisions prefixed to section 1008 of the Penal Code by the Statutes of 1911, p. 436, the first of which provides: "An indictment or information may be amended by the district attorney without CRIMINAL LAW (Continued). leave of court at any time before the defendant pleads," must be construed together in their entirety, and so construed, such first provision, which is followed by a second as to amendments by leave of court, must be deemed limited by the closing provision: "An indictment cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." Under these provisions, the district attorney has no power to amend an indictment or information in matters of substance. (People v. Anthony, 586.) 85. SCOPE AND PURPOSE OF DISTRICT ATTORNEY'S POWER TO AMEND FORMAL AMENDMENTS-QUESTION OF CONSTITUTIONALITY.—If section 1008 of the Penal Code purported to permit an indictment to be amended by the district attorney with respect to anything but its mere formal allegations, it would violate the provisions of section 8 of article I of the constitution, requiring that an indictment must be presented by the grand jury. It is evident that such section of the Penal Code contemplates and permits an amendment to an indictment or information by the district attorney only in so far as it relates to matters of form. A statute which permits an indictment to be amended as to mere matters of form, does not violate the constitutional rights of the defendant. (Id.) 86. AMENDMENT OF INDICTMENT FOR COMMISSION OF LEWD ACT UPON CHILD CHANGE IN DATE OF OFFENSE NOT PREJUDICIAL.-An amendment to an indictment for the commission of a lewd act upon a child, by merely changing the date in a specified month as to the commission of the offense, could not be prejudicial to the defendant. The precise date upon which the offense was committed was not a material ingredient of the offense charged; and it would have been sufficient if the indictment had charged generally that the offense was committed at a time within the period of the statute of limitations prior to the finding of the indictment. (Id.) 87. SUFFICIENCY OF INDICTMENT FOR LEWD ACT UPON FEMALE CHILD GENERAL LANGUAGE LIMITED BY SPECIFIC ACT-PLACING HER HAND ON DEFENDANT'S PRIVATE PARTS-INTENT TO AROUSE HER PASSIONS. An indictment which charges generally that defendant did willfully, unlawfully, feloniously, and lewdly commit a certain lewd and lascivious act with and upon the body, limbs, and private parts of a female minor child named, then under the age of fourteen years, by the said defendant then and there placing her hand upon his private parts, with felonious intent then and thereby of arousing, appealing to and gratifying her sexual lusts and passions, though the charge is uncertain, its general allegations are so controlled and limited by the particular act charged, that it is not so ambiguous as to mislead the defendant or her counsel as to the particular act charged, and it states with reasonable certainty an offense against the law. (Id.) |