People v. Olivas

ALLEN, P. J.

Appeal by defendant from a judgment of conviction and from an order denying a new trial.

The information filed charged defendant and one Gallego jointly with the crime of burglary. Defendant Olivas demanded a separate trial, upon which trial evidence was offered tending to show that both of said defendants were implicated in the criminal act, although some of the' evidence offered tended to show that defendant Olivas was the most active participant therein.

The only error assigned relates to the action of the trial judge in refusing the following instruction: “I instruct you the defendant, Charles Olivas, is the only person on trial before you for this alleged offense, and that if you find from a consideration of all the evidence that it points as clearly to some other person, as the person who committed the crime in question, as it does to the defendant, or if, after a fair and full consideration of all the evidence, the jury entertain a reasonable doubt as to whether the said Charles Olivas or some other person was the guilty party, then it is your duty to acquit the defendant.” There was no error in the refusal of the court to give this instruction. The circumstances of the case were such that, even if the evidence indicated that the other defendant was the real, active participant in the crime, nevertheless, under section 31 of the Penal Code, defendant . might still be guilty as one aiding and abetting therein. As a matter of fact, the evidence tended strongly toward showing the guilt of both. The court, under these

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circumstances, would not have been warranted in instructing the jury as requested.

The facts of this case are materially different from those in

People

v.

Hemple,

4 Cal. App. 120, [87 Pac. 227], in which case a majority of the court determined that the refusal to give a similar instruction, under the peculiar circumstances of that particular case, was error. The element of reasonable doubt involved in the last clause of the instruction was completely covered by a number of the instructions given, and its repetition was unnecessary.