People v. Elliott

HOUSER, J.

Defendants (who were police officers), were convicted on the first count of an information wherein they were charged with the commission of the crime of asking and agreeing to receive a bribe. They appeal from the judgment and an order denying their motion for a new trial.

Appellants’ principal complaint relates to several different instructions which at the request of the prosecution, were given to the jury. The first two of such instructions

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should be considered together. After giving the definition of direct and of circumstantial evidence, in effect the jury-was informed that as to the degree of proof required for conviction, the law makes no distinction between the two kinds of evidence, and that if upon consideration of the whole case the jury should be satisfied to a moral certainty and beyond a reasonable doubt of the guilt of the defendants, it should so find, regardless of whether such conclusions was produced by either direct or by circumstantial evidence, or by both such kinds of evidence. The jury was also instructed that if it was satisfied to a moral certainty and beyond a reasonable doubt “that the words, and acts, and conduct of the defendants unmistakably carried the import that it was a bribe that the defendants were seeking, at the time set forth in the information,” it would be the duty of the jury to find accordingly, notwithstanding specific words asking for a bribe might not have been used.

The first criticism of appellants to the combined intruction is that as against the provision of the Constitution which forbids the judge of the trial court to comment on the evidence, the instruction suggests that circumstantial evidence was introduced on the trial of the case which tended to prove the guilt of the defendants. Scanned with some particularity, it is possible that in some of its parts the instruction might be considered faulty in the particular to which attention has been directed; but, as a whole, it is most apparent that the instruction deals with definitions of legal terms and with abstract questions of law. As to that part of the instruction herein quoted, appellants contend that no evidence was introduced on the trial of the action upon which such instruction properly could be predicated. If such contention were to rest upon a consideration of the entire evidence in the ease, the point suggested should receive serious and careful consideration. But an examination of the transcript discloses the fact that, although from the testimony adduced on behalf of the defendants only, the viewpoint of the appellants in the matter may be correct—-from the testimony given by the several witnesses presented by the prosecution “the words, acts and conduct” of the defendants were of such character as to justify the conclusion reached by the jury that' at the time stated in the information “it was a bribe that