People v. Bettencourt

PLUMMER, J.

The defendant was convicted of the crime of maintaining a nuisance, to wit,, a place where alcoholic liquors are unlawfully kept for sale. The defendant moved for a new trial, which was denied. The appeal is from the order denying the motion for new trial, and also from the judgment of conviction.

The first point made for reversal is that the court erred in its instructions on the subject of reasonable doubt, in that it did not give to the jury the instruction found in the case of

Commonwealth

v.

Webster,

5 Cush. (Mass.) 320 [52 Am. Dec. 711], This contention is partly true, but it overlooks the fact that section 1096 of the Penal Code sets

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forth the language that should be used in instructing the jury upon the subject of reasonable doubt, and no other instruction is requisite. The court gave to the jury all of the section referred to, but in so doing omitted the letter “a” in the expression “it is not a mere possible doubt”, so that the instruction in this particular reads, “it is not mere possible doubt”. Also, the court in quoting the section omitted the words “possible or”, so that the clause as given to the jury read as follows: “and depending on moral evidence,.is open to some imaginary doubt”; instead of reading: “possible or imaginary doubt”. These verbal errors could have no possible influence upon the minds of the jurors. The intent and meaning of the instruction as given by the court is in substance just exactly as set forth in the section of che code. We think it would require more mental acumen than that possessed by the average juror, or even by court or counsel, to appreciate any difference in the legal effect of the expression “it is not a mere possible doubt”, and “it is not mere possible doubt”. The same is true of the expression as to “imaginary doubt” or “possible imaginary doubt”. While the definition of “reasonable doubt” found in the Webster ease sounds a trifle more learned than the precise language used by the legislature in framing section 1096 of the Penal Code, the wording of the section must be held as authoritative.

The appellant next objects to the failure of the court to give an instruction proposed by him on the subject of remoteness of certain of the testimony. A reference to the instruction given by the court to the jury shows that the contention of error in this particular is untenable for the reason that the court clearly instructed the jury on that subject, and was under no obligations to repeat the instruction already given, even if the instructions proposed by the appellant were not otherwise objectionable, as being argumentative, and also an instruction. trespassing upon the rights of the jury as being an instruction upon the weight of the evidence.