People v. Tarm Poi
Before: McFarland, Thornton
Synopsis
Criminal Law — Homicide — Burden of Proof — Instruction — Reasonable Doubt. — Upon a trial for murder, an instruction to the jury, taken verbatim from section 1105 of the Penal Code, that the burden of proving circumstances of mitigation or justification, after proof of the homicide, is on the defendant, is not erroneous, but should, in justice, be accompanied by what the Penal Code contains on the subject of reasonable doubt.
Id. — Alibi — Self-defense — Preponderance of Evidence — Instruction — Error without Prejudice. —When there is no question of self-defense raised upon the facts of the case, hut the defendant denies the killing, and seeks to prove that it was done by others, and that he was elsewhere at the time of the killing, an instruction implying that self-defense, grounded upon the fears of a reasonable man, must be proved by a preponderance of evidence cannot be prejudicially erroneous.
Id. —Construing Instructions Together—Preponderance of Evidence — Reasonable Doubt as to Alibi. — When there is evidence tending to prove an alibi, a general statement in the charge, that the defendant may establish any fact essential to his defense by a mere preponderance of evidence, though objectionable by itself, is not prejudicially erroneous as applied to the defense of alibi, and could not be misleading, if the court specifically charged the jury that if, from the whole case, and a consideration of all the testimony, the evidence w^s sufficient to create a reasonable doubt as to whether the defendant was present at the time and place of the murder, he should he acquitted.
Id.—Misconduct of Jury — View of Premises — Momentary Separation of Juror—Consent of Defendant.—Where the accused joins with the prosecution in a request that the jury be permitted to view the various premises described in the evidence, and both parties consent that one of the jurors may pass over the roofs of certain buildings, the accused cannot object to the temporary separation of such juror from the remainder of the jurors, where it does not appear that any misconduct occurred during the separation, to the substantial injury of the accused, without his consent or knowledge.
Id. — Irregularity—Objection — Waiver — Review on Appeal.— Such separation is, at most, only an irregularity, which cannot he considered on appeal, unless objected to when the opportunity was offered.
Id. — Affidavit of Misconduct — Information and Belief—An affidavit of the misconduct of the jury, made merely upon information and belief, is insufficient.
Opinion — McFarland
McFarland, J. — The appellant was convicted of murder, and he appeals from the judgment, and from an order denying a new trial. He makes three points on the appeal, viz.: 1. That the trial court erred in instructing the jury; 2. Misconduct on the part of the jury; and 3. Insufficiency of the evidence to support the verdict.
1. The objection urged against the instructions is, that they require a preponderance of evidence on the part of a defendant in a criminal case, contrary to the rule laid down in People v. Bushton, 80 Cal. 160, and People v. Elliott, 80 Cal. 296. The instructions objected to, and which for convenience we will number 1, 2, and 3, are as follows: “ 1. Upon trial for murder, the-commission of the homicide by the defendant being proven to the satisfaction of the jury, or admitted, the burden of proving circumstances of mitigation, or that justify or excuse him, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounted to manslaughter, or that the-defendant was justifiable or excusable. 2, If, from all the evidence, the jury should be satisfied, by a preponderance of testimony, that the circumstances were such as to excite the fears of a reasonable man, and that the defendant acted under the influence of those fears alone, or if he killed the aggressor to prevent the commission of a felony, he would not be criminally responsible for his death, although the circumstances might not be sufficient to prove, by a preponderance of evidence, that the aggressor was actually about to commit a felony. 3. In the determination of this case, you are further instructed [227]that, while the law requires the guilt of the defendant to be shown to your satisfaction, beyond a reasonable doubt, before you can convict, he may establish any fact essential to his defense by merely a preponderance of evidence.”
The first instruction above quoted is taken verbatim from section 1105 of the Penal Code, and, of course, is not erroneous, although it should, in justice, be accompanied, as it was in the case at bar, by what the same code contains on the subject of reasonable doubt.
The second instruction is somewhat confused by the use of the word “ if ” ; but it might, perhaps, be fatally erroneous if in this case, as in People v. Bushton, 80 Cal. 160, and kindred cases, the defendant had admitted the killing, and the question had been about “ circumstance^ of mitigation, or that justify or excise him.” In the Bushton case, the killing was admitted, but defendant claimed that it was done accidentally; and section 1105 of the Penal Code was therefore applicable to the case. But the trial court in that case, in its charge to the jury, in addition to giving said section of the code, used strong and repeated expressions to the effect that “ it devolves upon the defendant ” to prove circumstances of mitigation, excuse, or justification “ by a preponderance of evidence on his part,” by “ some stronger proof,” etc. This language was held to be beyond the meaning of the code, and to be inconsistent with the rule that if the jury have a reasonable doubt of a defendant’s guilt they should acquit.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)