People v. Gleason

HARRISON, J. The defendant was convicted of murder in the first degree for having shot and killed one Cotton in the town of Bakersfield, and, having been sentenced to state prison for the term of his natural life, has appealed to this court.

In its instructions to the jury the court gave the following instruction at the request of the prosecution: “You are instructed that the people are not permitted to assail the character of a defendant on trial in a criminal ease until the defendant has himself put his character in issue by calling witnesses and offering evidence in its support; and, unless put in issue by the defendant, the people can in no way attack his character.”

The object of the prosecution in asking this instruction is not apparent. The evident effect of the instruction was, however, to suggest to the jury that, if the prosecution had had an opportunity to do so, they might possibly have shown that the defendant was not a man of good character, and to excuse their failure to make such showing upon the ground that he had not offered evidence in support of his character. The law assumes that a defendant who is upon trial for an offense has a fair character, and, unless evidence to the contrary is given to the jury, he is entitled to the benefit of this presumption in their consideration of the weight to be given to the testimony bearing upon his guilt. In the present ease, there was no evidence at the trial in reference to the character of the defendant, and he had the right to have the jury, in considering the evidence before them, assume that his character was unimpeached. He was not required to offer witnesses in support of his character, but had the right to rely upon the above presumption, and it was error for the court to suggest to the jury the possibility that his character was not good, and give them the opportunity to indulge in a conjecture that this presumption might have been overcome but for his failure to support it by evidence. The defendant had been a witness in his own behalf, and it was competent for [372]the prosecution to impeach his credibility as a witness by the same means as it would impeach the credibility of any other witness. (People v. Hickman, 113 Cal. 80; People v. Mayes, 113 Cal. 618.) They did not, however, make any attempt to attack his credibility, and as a witness he stood before the jury in the same light as any other witness.

The above instruction contains a correct rule of law, but it is a rule of law by which a court is to be governed in determining the admissibility of evidence, and is not for the guidance of a jury in determining the effect of evidence which has not been admitted for their consideration. As there was no evidence before the jury relating to the subject matter of this instruction, the court was not justified in giving it to them, even if there could be any occasion upon which the instruction could be properly given to a jury. A jury should be instructed upon the evidence which has been admitted for their consideration, and not with reference to what would be their duty if they had an opportunity to consider evidence which has not been admitted Instructions upon abstract rules of law which have no application to the evidence in a case tend to confuse rather than enlighten a jury, and ought not to be given. (People v. Devine, 95 Cal. 227; Comptoir D’Escompte v. Dresbach, 78 Cal. 15; In re Calkins, 112 Cal. 296.)