People v. Brewer

HALL, J.

The defendant was convicted of the crime of murder in the second degree. Before judgment was rendered she moved the court for a new trial, which being denied and judgment rendered against her of imprisonment in the state prison for the period of thirteen years, she took an appeal to this court from the judgment and order.

The evidence shows that on the evening of September 28, 1911, Annie E. Enriele, then advanced in pregnancy about three months, repaired to the residence of the defendant, also a woman, for the purpose of procuring an abortion to be performed upon her by defendant. That the defendant operated upon her in an attempt to procure an abortion; that said Annie E. Enrick at once became so ill, weak and faint that it was with great difficulty that she could return from the residence of defendant in Berkeley to her home in East Oakland, though assisted by her husband, who had accompanied her to the residence of the defendant. That she was at once put to bed, and a physician called, who attended her until she died as a result of the operation, at a hospital to which she had been removed.

1. The court gave all the instructions requested by defendant, with some slight modifications, not complained of, save one, which the court refused. It is the refusal to give this instruction which is first urged as a ground for reversing the judgment.

The refused instruction is as follows: “You are hereby instructed that if you entertain a reasonable doubt as to whether any particular witness in this case was or was not an accomplice, you are to give the benefit of such doubt to the defendant, and for the purpose of this case you must consider such person and such witness an accomplice.”

[744]

We think that this instruction transgressed upon the province of the jury to determine the facts in the case. The concluding language of the requested instruction: “and for the purpose of this case you must consider such person and such Witness an accomplice, ’ ’ implies that the crime of murder had in fact been committed, and the

corpus delicti

fully established. For manifestly there could be no accomplice if no crime had been committed. To follow the rule laid down in the instruction would require the jury to assume that the crime- charged had in fact been committed, even though upon the whole case they had a reasonable doubt thereof. This being so the court- was justified in refusing the requested instruction, for the court should not charge the jury with respect to matters of fact. (Const., art. VI, sec. 19.)