People v. Cohen

YORK, J.

Appellant was convicted of the crime of murder and sentenced to life imprisonment and he appeals-from the order denying his motion for a new trial and from the judgment of conviction.

The record discloses sufficient circumstantial'evidence to sustain the conviction of the defendant by the jury, and in his appeal brief appellant raises the following points:

1. That the evidence is insufficient to sustain or justify the verdict.

2.

That the court erred in refusing to give a certain instruction requested.

3. That the court erred in allowing testimony as to weight and contents of certain cans of cyanide.

4. That the court erred in permitting the prosecution to give evidence of the contents of a certain stomach in absence of legal evidence to identify it.

5. That the information fails to charge the crime of murder.

1. Appellant maintains in connection with the first point, that there was an absolute break in the state’s chain of circumstantial evidence in that it failed to connect the defendant with the whisky or sack found by Mr. Lipsitz, and that the evidence discloses an equal or greater opportunity on the part of Lipsitz to have placed poison in the

[517]

whisky, and that thus, as a matter of law, the evidence is insufficient to sustain the verdict.

"It was a matter for the jury to decide whether or not this special piece of evidence or circumstance was a necessary link in the chain.

(People

v.

Ah Jake,

91 Cal. 98, 100 [27 Pac. 595].)

2. The court refused to give the following instruction requiréd by appellant; “The defendant is not required by law to testify in his own behalf, nor is he bound to explain his actions or conduct. The strongest presumption of law is that the defendant is innocent and he may rest upon this presumption. The fact that the defendant has not testified on his own behalf in this case is not, according to the law, any evidence at all as to his guilt or innocence, and you will not take such fact into consideration nor draw any inferences therefrom in arriving at your verdict.”