People v. Barr

BURNETT, J.

Defendants were convicted of the crime of robbery and they appeal from the judgment and the

[322]

order denying their motion for a new trial. It is admitted by appellants that the evidence in the case was conflicting and it is not insisted that the verdict was entirely unsupported. Appellants, however, base their claim to a reversal upon two grounds; first, that the-court misdirected the jury, and, second, that the court erred in pronouncing judgment upon defendants after the time for pronouncing judgment had expired by virtue of sections 1191 and 1202 of the Penal Code.

[1]

The instruction of which appellants complain is as follows: “You are further instructed that the fact, which experience has shown, that an alibi as a defense, is capable of being and has been occasionally successfully fabricated; that even when wholly false its detection may be matter of very great difficulty; and that the temptation to resort to this as a spurious defense may be very great, especially in cases of importance; these are considerations attendant upon this defense which call for some special suggestions upon the part of the court.

“These are, that while you are not to hesitate at giving this as a defense full weight, that conclusive effect to which when established, it is justly entitled, either as entirely satisfying you of the innocence of the defendants or as creating the reasonable doubt which entitles the defendants to an acquittal, still you are to scrutinize the testimony offered in the support of an alibi with care, that you may be satisfied that a fabricated defense is not being imposed upon you.

(People

v.

Lee Gam,

69 Cal. 552 [11 Pac. 183];

People

v.

Wing,

31 Cal. App. 785 [161 Pac. 759].)” While said instruction is objectionable as pointed out in