People v. Huntington

McFARLAND, J.

The information charged defendant with murder, and the jury returned a verdict of manslaughter, upon which judgment was rendered, sentencing him to ten years’ imprisonment in the state prison. He appeals from the judgment and from an order denying his motion for a new trial.

Appellant contends that the following instruction was erroneous: “ ‘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 or necessity to act in accordance with it.” In our opinion

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this instruction should not have been given. It is in violation of frequent admonitions of this court that instructions on the general subject of reasonable doubt should be confined to the language that has been frequently approved, and is an unnecessary innovation. Moreover, it lacks precision and clearness, and leads to confusion. The use of the word “impression” as the basis of conviction in a criminal case is an uncertain and dangerous use of language. Moreover, what definite notion can there be of “coercion” which is only “a sort” of coercion? The language of the instruction is to be found in Burrill’s Circumstantial Evidence; but the author of that work makes the matter more clear by adding, in the same sentence in which the language is used, as follows: “The conclusion presented being one which cannot, morally speaking, be avoided consistently with adherence to truth.” But while I think the instruction in question should not have been given, it is not necessary to determine in this present ease whether it was so important and so prejudicial as to call for a reversal, because, in my opinion, the judgment should be reversed for another reason.

The statements of the district attorney, and the whole course of the trial, show that the ease was tried upon the sole theory that appellant, who is a physician, caused the death of the deceased by áttempting to commit a felony,—to wit, an abortion. The opening statement of the district attorney to the jury was that the deceased was pregnant, and that appellant while knowingly and intentionally attempting to produce an abortion caused her death. Counsel for appellant in his opening statement denied that appellant knew deceased was pregnant, or had any intent to produce an abortion, but was treating her for a supposed disease, and that she died under a surgical operation, probably from the effect of an anaesthetic which had been administered. The issue thus presented was the only one suggested at the trial, and the evidence introduced was to the one or the other side of that issue, the only contention of the prosecution being that death occurred while the defendant was trying to produce the abortion. During the trial the district attorney said: “Of course, it is the theory of the people in this case that the defendant was performing an abortion,