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and keep from the authorities the identity of the guilty party. As was suggested by the court below, in ruling on the objection to the testimony of the declarations of the defendant, the promise of Robison does not appear to have been made in consideration of a confession, but merely involved an agreement upon his part to assist the defendant out of some trouble which the latter had, previously to exacting the promise, expressed a willingness to admit that he had either brought upon himself or had come to him in some other way. It becomes plainly manifest from an examination of Robison's testimony that, whatever may have been the circumstances of Piner's confession of guilt, the object the former had in view in securing it and the latter's purpose in making it were, not that said confession should be used against the defendant in his prosecution for the crime, but that it should be kept from the authorities. The two men are closely related in blood, and, while Robison was anxious to get at the truth of the matter in order to remove suspicion from himself, there can be no possible doubt that, after Piner acknowledged his responsibility for the crime, the former exerted every effort before the arrest of the defendant and during his trial to exculpate the accused. Robison, it will be remembered, joined Piner before the latter's arrest in a scheme to mislead the authorities as to the identity of the party who had committed the crime, and at the trial, it is clearly apparent from the record, persistently sought to make it appear that Piner's admission of guilt to him was made under circumstances which would render his testimony upon the question of the confession incompetent and inadmissible.

Greenleaf, at section 219 of his treatise on Evidence, states the rule as to confessions in the language of Eyre, C. B., in Warickshall's Case, 1 Leach C. C. 209, that "a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it, and, therefore, it is rejected." The theory, of course, is that the prisoner, in making a confession obtained by the influence of hope or fear, applied by a third person to his mind, may be induced by such pressure to admit facts unfavorable to him, without regard to their

truth, in order to secure the promised relief or avoid the threatened danger. (Greenleaf on Evidence, sec. 219a.)

In the early case of People v. Smith, 15 Cal. 408, it is said that "a distinction is made by many English cases between confessions induced by one having no authority or control over the prisoner and those induced by persons who have such authority, as constables, prosecutors and the like. But the cases seem to hold the owner of goods stolen to stand in this relation."

We are in no doubt that if Robison had, in order to extort a confession from Piner, and by such means obtained it, represented to him that he (Robison) was in a position to insure him (defendant) either complete immunity from prosecution or lenient treatment in the matter of punishment, or had induced the defendant to confess by threats which inspired in Piner fear that his crime would be apprehended and he severely punished unless he admitted his guilt, testimony of the confession could not have been properly received. But, as seen, the hope held out by Robison was not that Piner might escape prosecution and punishment at the hands of the public authorities, but that Robison would do all in his power, as the evidence shows that he did do, to prevent the defendant's connection with the crime becoming known to the authorities.

The court's ruling admitting the evidence of the confession was proper.

3. Instructions 7 and 12, given by the court, are assailed as being erroneous and prejudicial.

Instruction 7 relates to the evidence of the previous good character of the defendant, and the specific complaint urged against it is that the court, in giving it, violated article VI, section 19, of the constitution, in that it thus instructed upon the weight or effect of the evidence by declaring that evidence of good character should be considered "with great caution." Where the court found its authority for thus instructing the jury we are not advised by the attorney general. Evidence of good character is to be considered by the jury in the same manner as evidence addressed to any other essential fact in the case. The proof of good character is in aid of the general presumption of innocence, and, as the supreme court says in People v. Ashe, 44 Cal. 291, "is no more to be laid out of view by the jury in their delibera

tions than is the original presumption itself," notwithstanding the dictum to the contrary in the case of People v. Swift, 28 Cal. 397. Nor is there any more reason for an admonition by the court that evidence upon previous good character should be considered with "great caution" than there is for a similar instruction with regard to any other of the general class of evidence in criminal cases. The legislature has not authorized such an instruction, and, if it could legally do so, we can see no reason upon principle why it should. As a matter of fact, all evidence of whatsoever nature in a criminal case should be considered with caution or with that deliberation which will insure a just verdict, but to select a particular species of evidence from the record as the theme for a special caution to the jury, thus disparaging the probative effect thereof, is a function which is specially excluded from the province of trial courts, even in those few special cases where the legislature has declared that it may be done. (People v. Wardrip, 141 Cal. 229, [74 Pac. 744].) But we are of the opinion that the instruction could not have prejudiced the rights of the defendant, for the reason that his guilt is conclusively proved by the evidence. Evidence of good character is, as a general proposition, important only where there may exist some doubt of the defendant's connection with or participation in the commission of the crime. But where, as here, there is and could be no doubt of any kind of the defendant's guilt under the evidence, there was no other just alternative left to the jury but to convict the accused, notwithstanding the evidence of good character. The jury could have found, consistently with a verdict of guilty, that the evidence conclusively established the previous good character of the accused. (People v. Ashe, 44 Cal. 291; People v. Mitchell, 129 Cal. 585, [62 Pac. 187].) The confession as proved stood before the jury uncontradicted, the defendant not testifying, and it would be extremely difficult, under this state of the record, to reconcile a verdict other than that of guilty with the testimony produced before the jury. There is practically no distinction between the situation here and where the defendant had entered a plea of guilty. Obviously, in the latter case, evidence of previous good character could not affect the question of the defendant's guilt, and it is equally as obvious that such evidence is unimportant where

guilt is admitted and the admission proved and uncontradicted. Under the circumstances of the case as presented here, we are unable to understand how the instruction complained of could have exerted in the least degree any prejudicial influence on the determination of the verdict.

The other instruction to which objection is made reads as follows: "A person's declaration or voluntary confession is always admitted in evidence against him, for the law presumes that a person will not say anything untrue against himself or his own interests."

It is claimed that said instruction is also violative of section 19, article VI, of the constitution, in that it deals with the question of the weight which the jury should attach to the confession. The impropriety of giving such an instruction to a jury cannot for a moment be doubted; yet, there having been no denial that the confession was made, nor any attempt to impeach the testimony of Robison who gave the testimony of the confession, the instruction could have resulted in no harm to the defendant. The first part of the instruction merely declares what the court had virtually already stated in the presence of the jury in its ruling on the admissibility of the confession that the same was voluntarily made, and therefore competent to be received in evidence. This is followed by a statement of what the court conceived to be the reason or theory upon which a voluntary confession is admissible against an accused. The court does not say that the evidence of the confession is presumed to be true, which, in effect, it had a right to do (Code Civ. Proc., sec. 1847), but only (in effect) that a confession voluntarily made by an accused becomes evidence admissible against him, for the reason that it is not likely that a person will deliberately tell an untruth which would militate against his own interests. The proposition stated in the instruction cannot be gainsaid, but, as we have before declared, the giving of it to a jury in any case is manifestly improper. The theory upon which voluntary confessions are admissible in evidence is of interest to the courts, but in elucidating or attempting to explain such theory to a jury there is great danger that the constitutional right of the accused to a determination of all questions of fact by the jury may be violated, so far as are concerned the facts to which such an instruction is applicable. But, as stated, it would indeed be

unreasonable to say, in view of the uncontradicted evidence of the defendant's guilt, that the instruction played a material part in influencing the verdict returned by the jury.

We have been shown no substantial reason which calls for the return of this cause to the court below for trial de novo. The judgment and order appealed from are, therefore, affirmed.

Chipman, P. J., and Burnett, J., concurred.

[Civ. No. 647. Third Appellate District.-October 22, 1909.] ELMER E. PARMELEE et al., Respondents, v. ALFRED DIXON et al., Appellants.

WATER RIGHTS AND DITCH-ACTION TO QUIET TITLE-ISSUE AS TO ABANDONMENT AND SURRENDER OF PLAINTIFFS' RIGHTS-SUPPORT OF FINDINGS. In an action to quiet title to a ditch and water rights, where issue was joined by the answer as to the abandonment and surrender of plaintiffs' rights prior to defendants' appropriation and adverse use of the same, and the findings were in favor of the plaintiffs and against the defendants, the findings were sufficiently supported by evidence that for forty years prior to defendants' adverse claim plaintiffs and their predecessors had used the same in working mines now owned by the plaintiffs, using more at some times than others, but claiming and using the whole, without disuse for such a period as to justify an inference that there was any abandonment or surrender of such rights or intention to do so, notwithstanding conflicting evidence for the defendants.

APPEAL from a judgment of the Superior Court of Placer County, and from an order denying a new trial. John F. Ellison, Judge presiding.

The facts are stated in the opinion of the court.

Tuttle & Tuttle, and Tabor & Tabor, for Appellants.

John M. Fulweiler, for Respondents.

CHIPMAN, P. J.-Action to quiet title to a certain ditch and the water flowing therein. Plaintiffs had judgment,

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