People v. Bonney

The Court. The defendant was convicted of the crime of burglary in the second degree, and has appealed from the judgment entered against him and from an order denying his motion for a new trial.

At the trial the only witnesses for the prosecution were Joseph A. Sargent and George F. Seibert. Sargent testified that he owned a cabin in which he lived alone, and that in his absence some one entered it through a window and took and carried- away a few articles of small value; that subsequently defendant admitted to him that he and the witness Seibert entered the cabin and took and carried away the said articles. Seibert testified that he was a boy twelve years old, and in effect that he and defendant together committed the offense charged. Defendant, as a witness in his own behalf, denied that Le went into Sargent’s cabin at all, or took away any of the [279]missing articles, or broke or opened the window for the boy to go in, or knew of his going in until afterwards, and also denied that he ever told Sargent that he had been through his place. Sargent was again called as a witness in rebuttal, and among other things, testified that he did not tell the father of defendant that defendant denied being in his house and told him he was not in it. The father was then called as a witness, and testified that he went to the house of Sargent and had a talk with him about the matter, and “ he told me that he did not know that my boy had been in the house; that the boy told him he was not in the house.” The defendant asked the court to give to the jury, among others, an instruction reading as follows: “The jury are instructed that the testimony of an accomplice ought to be viewed with distrust, and the evidence of the oral admissions of a party with caution.” The court refused to give the instruction, and the defendant duly excepted.

The instruction asked is in the exact language of subdivision 4, section 2061 of the Code of Civil Procedure, and the section provides that such an instruction should be given to the jury “on all proper occasions.”

It is urged for the appellant that the refusal to give the instruction was a prejudicial error, and the only answer to this point by the attorney-general is that the provision of the code authorizing such an instruction is unconstitutional, because it requires the court to charge “with respect to matters of fact,” which by article VL, section 19 of the constitution, it is forbidden to do, citing Kauffman v. Maier, 94 Cal. 282-284; and People v. O’Brien, 96 Cal. 171.