People v. Taggart

SMITH, J.

The defendant was convicted of the crime of grand larceny, and appeals from the judgment, and from an order denying his motion for a new trial.

The only error complained of is the following instruction to the jury:

“Where the evidence is entirely circumstantial, yet is not only consistent with the guilt of the defendant but inconsistent with any other rational conclusion, the law malees it the duty of, the jury to convict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credible eye-witnesses woidd have been.”

It is said by the appellant’s attorneys that this instruction was first given in

People

v.

Cronin,

34 Cal. 202, and that it has been approved in some later cases cited by them. But the instruction is taken, not from the instructions in

People

v.

Cronin,

but from the opinion of the court on page 202; and in looking over the cases citing this case, as given in Palm’s Citations, we have not been able to find any in which this instruction was involved, except the eases of

People

v.

Dole, 122

Cal. 486, [68 Am. St. Rep. 511, 55 Pac. 581],—where it is held to be erroneous,—and in

People

v.

Rushing,

130 Cal. 453, 454, [80 Am. St. Rep. 141, 62 Pac. 742], where it is, in effect, so held. In the former case, indeed, it is said: “The vice of this instruction is generally corrected, as it was in this case, by special instructions to the effect

that every fact essential to sustain the hypothesis of guilt and to exclude the hypothesis of innocence must be fully proved”;

and in the latter case this forms part of the instruction given. But in the case at bar there is no such qualifying instruction.