People v. Bedoy

CASHIN, J.

Appellant was charged by an indictment with a felony, to wit, that being foreign-born and unnaturalized he had in his possession a firearm capable of being concealed on the person. The appeal is from the judgment, entered on a Yerdict of guilty, and an order denying a new trial.

Appellant contends that the trial court erred in giving and refusing certain instructions to the jury and in its rulings on the admissibility of the evidence.

An offered instruction stated in substance that if there should exist in the minds of the jury two different theories, one being consistent with innocence and the other with guilt, and each finding support from the evidence, the former should be adopted, and the defendant acquitted. This was refused. While it has been held that such an instruction is proper where the evidence is merely circumstantial, and that in such case an instruction declaring the rule should, if requested, be given

(People

v.

Dick,

32 Cal. 213), where, as here, instructions as to the presumption of innocence, the burden of proof, and defining reasonable doubt, were given, and the jury was further instructed that to warrant conviction it is insufficient that the allegations of the indictment be supported by probabilities merely or by a preponderance of the evidence, but that the elements of the offense, which were stated, must be proven beyond a reasonable doubt, every substantial right of appellant was protected

(People

v.

Raber,

168 Cal. 316 [143 Pac. 317]).

The court also refused requested instructions separately stating the elements of the offense and charging the jury that a reasonable doubt as to either made an acquittal

[786]

necessary. Such refusal was not prejudicial, as the instruction in substance was included in others which defined the elements of the offense and instructed the jury in effect that if they found beyond a reasonable doubt the fact of possession they must further be convinced by the same degree of proof that appellant was an unnaturalized foreign-born person.