People v. Lew Fook

HENSHAW, J.—

The defendant was convicted of murder, and upon this appeal presents the single proposition of alleged error contained in one of the instructions given by the trial court.

That instruction is as follows: “ ‘Moral certainty’ is that degree of proof which the law requires of moral evidence. Moral certainty is described as a state of impression produced by facts in which a reasonable mind feels a sort of coercion

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or necessity to act in accordance with it. It is also declared to be a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it.”

The last sentence of the instruction is a quotation from the famous charge of Chief Justice Shaw in the Webster case, and has been uniformly if not universally approved. Appellant’s attack, however, is directed to the preceding part of the instruction, and it is said that this language was inaccurate and injurious to the appellant in that it permitted the jury to be governed by their “impressions,” and not by their “convictions.” In this connection it is pointed out that section 1826 of the Code of Civil Procedure itself defines moral certainty as being “that degree of proof which produces conviction in an unprejudiced mind,” and that elsewhere the code declares “That evidence is deemed satisfactory which ordinarily produces moral certainty or conviction in an unprejudiced mind.” (Code Civ. Proc., sec. 1835.)

We think, however, that no defendant can present any just reason for objecting to this amplification of the definition of moral certainty, since that amplification makes so clearly in his favor. The jury were here instructed as to the nature of the conviction which satisfies the reason and judgment of those who are bound to act conscientiously upon it, and were told that it was-a conviction which impelled them by necessity or coercion to act upon it, or otherwise they entertained a reasonable doubt, of which the defendant must be given the benefit. “Impression,” as here employed, does not vary essentially in meaning from conviction. “Impression” itself is a stamping in upon the mind. The language objected to is taken from Burrill on Circumstantial Evidence (p. 199), and that careful author fully justifies the language both by reason and authority.