to them before in its charge, instructions containing no new point or qualification of anything which had theretofore been given. -People v. Leary, 105 Cal. 486, 497, 39 Pac.

24.

See People v. Hersey, 53 Cal. 574; People v. Cox, 76 Cal. 281, 18 Pac. 332.

As to instructions required to be in writing, see, post, § 1093 and note.

378. Same-Consent of prisoner to oral charge or instruction to jury will not be presumed from his presence or failure to make objection when such instruction is given.-People v. Sanford, 43 Cal. 29, 36.

379. Mere fact that record does not "affirmatively show that charge was given in writing," is not sufficient presumption that same was oral, as errors will not be presumed in criminal than any in civil cases.-People v. Wright, 45 Cal. 260, 261. See People v. Shuler, 28 Cal. 490.

more

380 Same-Court may read sections of Penal Code applicable to case as part of its instructions to the jury, although same are not reduced to writing or taken down by shorthand reporter.-People v. Brown, 59 Cal. 345, 354. See People v. Mortier, 58 Cal. 262.

to charge

381. Same Same-Objection can not be sustained upon ground of reading of sections of code, as same can not be said to be in violation of law requiring charge to be in writing, and charge would not have been rendered more certain if sections had been copied by judge.-People v. Mortier, 58 Cal. 262, 269.

382. Objection made to charge, upon ground that judge read to jury sections of Penal Code without showing what Penal Code they were read from, can not be sustained on charge of murder, as it would be presumed that it was Penal Code of this state, in absence of showing to the contrary. -People v. Mortier, 58 Cal. 262, 268.

385. Same-Sentences are to be read in connection with context and instruction as whole, and if, when so read, it appears that jury was fairly and correctly instructed in the law covering the case, judgment ought not to be reversed, merely because there may be apparent conflict between certain isolated sentences.-People v. Turcott, 65 Cal. 126, 128, 3 Pac. 461.

See par. 364, this note.

386. Same-Use of word "slain" by court, in its charge to jury, held not to leave impression upon their minds that the crime for which defendant was on trial had been actually perpetrated.-People v. Ramirez,

56 Cal. 533, 537, 38 Am. Rep. 73. But leaves fact as substantial fact in the case for the jury to find.-People v. Ramirez, 56 Cal. 533, 537, 38 Am. Rep. 73.

As to word "vietim," contained in instruetion, see par. 388, this note.

387. Same Verbal modification of written instructions.-Where it is necessary that instructions to jury should be in writing. each part composing it must be in writing, and verbal modification is erroneous.-People v. Payne, 8 Cal. 341, 344. See People v. Woppner, 14 Cal. 437, 438; People v. Chaves, 26 Cal. 78, 79; People v. Trim, 37 Cal. 274, 276; People v. Hersey, 53 Cal. 574, 575.

388. Same-Word “victim,” contained in instruction to jury, may be unguarded exto calculated pression create prejudice against accused, especially where it seems to assume that deceased was wrongfully killed, when very issue was as to character of the killing.-People v. Williams, 17 Cal. 142, 147.

See, also, par. 405, this note.

As to use of word "slain,” in instruction, see par. 386, this note.

389. Instructions where evidence is circumstantial — As Where to generally. testimony is entirely circumstantial, jury should be instructed fully and clearly upon question of reasonable doubt, for evidence must not only be consistent with guilt of defendant, but inconsistent with every other rational conclusion.-People v. Lachanais, 32 Cal. 433, 435. See People v. Strong, 30 Cal. 151, 154.

390. Same-Instruction as to finding verdiet of murder, which may be erroneous when taken by itself, may not be prejudicial when read with other instructions preceding and following it, clearly pointing out distinction between murder in first and second degrees and manslaughter, and passing upon question of malice.-People v. Hunt, 59 Cal. 430, 434.

391. Same-Instruction as to killing of person already mortally wounded, as by pistol-shot not fired by prisoner, refusal to give instruction that defendant was not guilty, not erroneous, on ground that such instruction would, in substance, have informed jury that defendant could not be guilty of murder in killing of person who had already been mortally wounded.-People v. Ah Fat, 48 Cal. 61, 64.

392. Same-Instruction calling attention of jury to number of cases in which it is claimed that parties had been improperly convicted, but that there was no proof in case at bar of any such fact, and they were not justified in considering such matters, erroneous, on account of apparent hostility to defendant.-People v. Travers, 88 Cal. 233, 236, 26 Pac. 88.

393. Same-Instruction forcing jury to particular conclusion upon whole or part of case, or which takes away their exclusive right to weigh evidence and determine

facts, is erroneous.-People v. Chew Sing Wing, 88 Cal. 268, 270, 25 Pac. 1099. See People v. Ybarra, 17 Cal. 171; People v. Ah Lee, 60 Cal. 85.

394. Same-Instruction fully stating law, not required. Not necessary that each instruction should fully state law of the case, as an instruction may be helped out and explained by another on the same point, and court will look to all the instructions in pari materia for the purpose of determining whether law has been correctly stated to the jury.-People v. Morine, 61 Cal. 367, 370.

395. Same-Instructions must be given with reference to facts proved before jury. -People v. Byrnes, 30 Cal. 206, 207. See People v. McCauley, 1 Cal. 379, 385; People v. Arnold, 15 Cal. 476, 477; People v. Sanchez, 24 Cal. 17, 18; People v. King, 27 Cal. 507, 509, 87 Am. Dec. 95; People v. Vasquez, 49 Cal. 560, 562; People v. Atherton, 51 Cal. 495, 496.

396. Same-Instruction must be considered in connection in which it is given to them, and if it does not appear that there was injury resulting therefrom, judgment will not be reversed.-People v. De Silvera, 59 Cal. 592, 593.

397. Same-Instruction not predicated upon case, or some theory logically deducible from at least some portion of the testimony, is calculated to confuse and mislead, and is therefore erroneous.-People v. Sanchez, 24 Cal. 17, 27.

398. Same-Instruction to effect that jury is not legally bound to acquit prisoner because they may not be entirely satisfied that he, and no other person, committed the alleged offense, is ground for reversal of judgment.--People v. Brown, 59 Cal. 345. See People v. Kerrick, 52 Cal. 446.

399. Same-Instruction to jury presenting false issue, suggesting that in order to justify conviction of prisoner of crime of murder, it is necessary that he should have used deadly weapon, is properly rejected. People v. Cotta, 49 Cal. 166, 170.

400. Instructions held erroneous-As to conspiracy, declarations of coconspirator, instructions as to, held erroneous.-People v. Irwin, 77 Cal. 494, 504, 20 Pac. 56. See People v. Moore, 45 Cal. 19, 21; People v. English, 52 Cal. 212; People v. Aleck, 61 Cal. 137, 138.

401. Same As to deadly weapon-Error without prejudice.—In a homicide case, although the court erred in telling the jury that the knife introduced in evidence was a deadly weapon, yet where defendant was not charged with an assault with or otherwise using a deadly weapon, and therefore there was no occasion for instructing the jury upon the subject at all, nevertheless, under the circumstances shown, it is clear that defendant's rights were not prejudiced by reason of the ruling.-People v. Russell, 19 Cal. App. 750, 127 Pac. 829, 831.

402.

Same-As to dying declaration, instruction held erroneous.-People v. Thomson, 145 Cal. 717, 722-725, 79 Pac. 435.

403. Same-As to flight, instructions held erroneous.-People v. Giancoli, 74 Cal. 642, 644, 16 Pac. 510. See People v. Choy Ah Sing, 84 Cal. 276, 277, 24 Pac. 379.

404. Same As to insanity caused by alcoholism, instruction held not erroneous, see People v. Griffith, 146 Cal. 339, 343, 346348, 80 Pac. 68.

405. Same-As to word "victim," use of, in instruction, deemed erroneous.-People v. Ramirez, 56 Cal. 533, 537, 38 Am. Rep. 73; People v. Williams, 17 Cal. 142.

See, also, par. 388, this note.

As to use of word "slain,” in instruction, see par. 386, this note.

406. Same-Charging as a fact error.On trial for homicide, instruction held erroneous, as being unconstitutional, because of charging with respect to matter of fact. -People v. Chew Sing Wing, 88 Cal. 268, 270, 25 Pac. 1099.

407. Same-Refusal to give instruction relating to preconceived design, held erroneous. People v. Hyndman, 99 Cal. 1, 5, 6, 33 Pac. 782.

408. Same-Upon plea of not guilty, and correcting evidence as to whether prisoners were parties who committed crime, instruction held erroneous.-People v. Ah Lee, 60 Cal. 85, 89.

409. Instructions held not erroneous-As to alibi, instruction held proper.-People v. Chun Heong, 86 Cal. 329, 333, 24 Pac. 1021; People v. Gibson, 106 Cal. 458, 474, 39 Pac. 864; People v. Worden, 113 Cal. 569, 574, 45 Pac. 844.

410. Same-As to accelerating death of person in poor health, instruction held not erroneous.-People v. Moan, 65 Cal. 532, 537, 4 Pac. 525.

411. Same As to burden of proof, instruction held not erroneous. People V. Raten, 63 Cal. 421, 422; People v. Hong Ah Duck, 61 Cal. 387.

412. As to burden of proof, instruction properly refused.-People v. Hecker, 109 Cal. 451, 461, 30 L. R. A. 403, 42 Pac. 307.

413. Same-As to character of deceased, refusal to give instruction held not erroneous. People v. Johnson, 61 Cal. 142, 143. See par. 419, this note.

414. Same-As to circumstantial evidence, instructions held not erroneous.People v. Cronin, 34 Cal. 191, 201; People v. Smith, 106 Cal. 73, 78, 39 Pac. 40.

415. In a prosecution for murder, the refusal of requested instructions correctly stating the law of circumstantial evidence is not error where the record discloses that the prosecution did not rely upon circumstantial evidence alone or chiefly to obtain the defendant's conviction.-People v. Gorman, 31 Cal. App. 762, 161 Pac. 757.

416. Same-As to confessions, instruction not erroneous.-People v. Wyman, 15 Cal. 70, 74.

417. Same As to conspiracy, instruction held not erroneous.-People v. Pool, 27 Cal. 572, 581; People v. Gibson, 106 Cal. 458, 470, 39 Pac. 864.

418.

In such a prosecution it is not error to refuse to instruct upon the subject of conspiracy where there was little or no evidence to support the instruction.-People v. Gorman, 31 Cal. App. 762, 161 Pac. 757.

419. Same As to flight as bearing on question of guilt, instructions not erroneous.-People v. Forsythe, 65 Cal. 101, 104, 3 Pac. 402; People v. Giancoli, 74 Cal. 642, 643, 16 Pac. 510; People v. Bushton, 80 Cal. 160, 165, 22 Pac. 127, 549.

420. Same-As to good character as bearing on question of guilt, instructions not erroneous.-People v. Stewart, 28 Cal. 395, 396; People v. Bell, 49 Cal. 485, 489. See People v. Ashe, 44 Cal. 288; People v. Smith, 59 Cal. 601, 607; People v. Samsels, 66 Cal. 99, 100, 4 Pac. 1061; People v. Bowman, 81 Cal. 566, 570, 22 Pac. 917.

See par. 412, this note.

421. Same-As to malice aforethought, instructions held not erroneous.-People v. Hunt, 59 Cal. 430, 433; People v. Bawden, 90 Cal. 195, 196, 27 Pac. 204.

422. Same-As to malice, intent, etc., instructions held not erroneous.-People Doyell, 48 Cal. 85, 94, 95.

V.

423. Same-As to motive.-An instruction that if the evidence fails to show any motive on the part of the defendant consistent with reason and soundness of mind to commit the crime charged, such is a circumstance in favor of his innocence, and should be considered by the jury in connection with the other evidence in the case, is properly refused.-People v. Gorman, 31 Cal. App. 762, 161 Pac. 757.

424. Same-As to murder and malice in language of sections 187, 188, instruction held sufficient.-People v. Abbott, 2 Cal. Unrep. 383, 4 Pac. 769, 772.

425. Same As to oral admissions, instruction held not erroneous.-People V. Buckley, 143 Cal. 375, 391, 77 Pac. 169.

426. Same-As to principals in crime.An instruction that all persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, are principals in the crime, is a correct statement of law, as is also an instruction that one who aids, abets and assists a convict confined in the state prison for a term less than life to escape therefrom is guilty of a felony.-People v. Creeks, 170 Cal. 368, 149 Pac. 821.

427. Same-As to reasonable doubt, instruction held not erroneous.-People V. Kernaghan, 72 Cal. 609, 611, 14 Pac. 566; People v. Bushton, 80 Cal. 160, 162, 22 Pac.

127, 549; People v. Bowman, 81 Cal. 566, 570, 22 Pac. 917; People v. Tarm Poi, 86 Cal. 225, 228, 24 Pac. 998; People v. Eubanks, 86 Cal. 295, 297, 24 Pac. 1014; People v. Chun Heong, 86 Cal. 329, 333, 24 Pac. 1021; People v. Smith, 105 Cal. 676, 679, 39 Pac. 38; People v. Sing Yow, 145 Cal. 1, 9, 78 Pac. 235. See People v. Doyell, 48 Cal. 85, 93; People v. Langton, 67 Cal. 427, 7 Am. Cr. Rep. 439, 7 Pac. 843; People v. Lee Sare Bo, 72 Cal. 623, 14 Pac. 310.

428. Instruction as to reasonable doubt, in language of Chief Justice Shaw, in Commonwealth v. Webster, 59 Mass. (5 Cush.) 320, 52 Am. Dec. 711, held to be correct.People v. Lewandowski, 143 Cal. 574, 580, 77 Pac. 467; People v. Murphy, 146 Cal. 502, 507, 80 Pac. 709.

429. Same-As to self-defense.-An instruction that the plea of self-defense is not available to a defendant who has sought a quarrel with a design to force a deadly issue and thus by his own wrongful acts creates a real or apparent necessity for killing his adversary, is a correct abstract statement of law.-People v. Burns, 27 Cal. App. 227, 149 Pac. 605.

430. Same-As to threats, instruction held not erroneous.-People v. Hyndman, 99 Cal. 1, 3, 33 Pac. 782.

VIII. PLEADING AND PRACTICE-VERDICT OF JURY.

431. As to power of jury in a homicide case, though it has no legal or moral right to do so, to disregard the evidence showing accused guilty of murder in the first degree, and find him guilty of murder in the second degree. State v. Mewhinney, 43 Utah 135, Ann. Cas. 1916C, 537, 134 Pac. 632.

As to right of jury to convict of a lesser degree under an indictment charging act declared by statute to be murder in first degree, see note, Ann. Cas. 1916C, 556. 432. Impeachment of verdict-Juror can not. Juror can not be allowed by his own testimony or declarations to impeach and defeat his verdict, except in case authorized by statute.-People V. Murphy, 146 Cal. 502, 506, 80 Pac. 709. See People v. Baker, 1 Cal. 403, 404; People v. Gray, 61 Cal. 164, 183, 44 Am. Rep. 549; People v. Holmes, 118 Cal. 444, 448, 50 Pac. 675.

As to verdict generally, in charge of murder, see Kerr on Homicide, pp. 590-597. 433. Same-Misconduct of jurors in reading newspaper accounts being admitted, juror can not be heard to deny its prejudicial influence.-People v. Chin Non, 146 Cal. 561, 566, 80 Pac. 681. See People v. Stokes, 103 Cal. 193. 196, 42 Am. St. Rep. 102, 37 Pac. 207; People v. Azoff, 105 Cal. 632, 634, 39 Pac. 59.

435. Verdiet will not be set aside as not warranted by evidence where there is testimony which, if credited by jury, demanded from them verdict rendered, although testimony in case may be more or less contradictory, jury being sole judges of degree of credit to be given it.-People v. Brady, 72 Cal. 490, 491, 14 Pac. 202.

§ 188. MALICE DEFINED.

436. Verdict of guilty will not be disturbed-Although there may be grave doubt as to truth of story told by witness, where jury heard all minute details of the evidence and observed demeanor of witness, as it is for them to decide question of his credibility.-People v. Freeman, 92 Cal. 359, 365, 28 Pac. 261.

9. Indictment Allegation of express malice is unnecessary.

II. PLEADING AND PRACTICE EVIDENCE. 10. Abusive language indulged in by prisoner.

11. Confessions voluntarily made at time of arrest.

12. Evidence of abandoned and malignant heart.

13. Evidence of express malice aliunde.
14. Evidence of threats made by prisoner.
15. Evidence showing feeling of hatred

and revenge.
16. Express intent to kill.

17. Express malice can not be inferred or
implied, from what.

18. Express malice is proved when.
19. Former difficulty or quarrel.

20. Intent by imputation-As to what is.
21. Jury have right to take into consid-
eration conduct of parties.

22. Malice proved by preconcert.

23. Presence or absence of motive-Is matter of evidence.

31. As to conspiracy.

32. As to dazed condition.

33-35. As to malice.

See note, § 187, ante.

I. MALICE-EXPRESS OR IMPLIED.

1. As to construction of section. This section, in dividing malice into express and implied, describes former as existing when "intention" to kill is "manifest" by direct proof, and in the latter as resting on "presumption of law."-People v. Kernaghan, 72 Cal. 609, 613, 14 Pac. 566.

See, also, par. 4, this note.

2. Bare existence of hatred, ill-will, and the like, does not amount to legal malice.People v. Taylor, 36 Cal. 255, 263.

3. Definition of malice-Its common acceptation means ill-will toward person, but in its legal sense it means wrongful act done intentionally without just cause or excuse. Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48, 53, 91 Am. Dec. 672; People v. Abbott, 2 Cal. Unrep. 383, 4 Pac. 769, 772; People v. Taylor, 36 Cal. 255, 266; People v. Ah Toon, 68 Cal. 362, 363, 9 Pac. 311.

4. Same-Distinguished from malice under section 7.-The malice defined here is that necessary to constitute murder, and is not the same malice as defined in subdivision 4 of section 7. There can, however, be no prejudicial error in giving both definitions in a prosecution for murder.-People v. Harris, 169 Cal. 53, 145 Pac. 520.

5. Express malice-Deliberate intention unlawfully to take life of fellow-creature.

-People v. Foren, 25 Cal. 361, 363; People V. Nichol, 34 Cal. 211, 213; People v. Cox, 76 Cal. 281, 285, 18 Pac. 332; People v. Milton, 145 Cal. 169, 170, 78 Pac. 549.

6. Express or implied malice-Sufficiency of. Malice, either express or implied, equally supports verdict of guilty in first degree.-People v. Bonilla, 38 Cal. 699, 700.

7. Implied malice-When no considerable provocation appears, or when all circumstances of killing show abandoned and malignant heart.-People v. Gibson, 17 Cal. 283, 284; People v. Foren, 25 Cal. 361, 363;

People v. Nichol, 34 Cal. 211, 213; People v. Knapp, 71 Cal. 1, 3, 11 Pac. 793; People v. Milton, 145 Cal. 169, 170, 78 Pac. 549.

8. In case of homicide where it is claimed killing was accidental and there is evidence sufficient to justify the conclusion that it was intentional malice will be implied.People v. Garnett, 9 Cal. App. 194, 203, 98 Pac. 247.

to

11. Confessions voluntarily made at time of arrest, and before officer had time speak to defendant on subject of homicide, are admissible.-People v. McRoberts, 1 Cal. App. 25, 29, 81 Pac. 734, 736.

12. Evidence of abandoned and malignant heart.-Evidence offered to prove that defendant had abandoned and malignant heart can not be said to be offered in bad faith, as tending to prove that homicide was offspring of malice, and not of sudden heat of passion or of accident; but ruling of court rejecting such evidence is correct.People v. McKay, 122 Cal. 628, 630, 55 Pac. 594. See United States v. Guiteau, 1 Mack. (D. C.) 498, 47 Am. Rep. 247 (where evidence was admitted tending to prove malicious and malignant disposition of defendant).

13.

Evidence of express malice aliunde.Express malice must be proved by circumstances independent of killing, and there must be manifested deliberate intention to take away life of fellow-creature.-People v. Knapp, 71 Cal. 1, 6, 11 Pac. 793.

14. Evidence of threat made by prisoner against deceased, to effect that if he did not kill him he would be dead "like this chicken." which does not state precise time at which threat was made, held admissible, for lapse of time does not affect competency, though it may impair weight of

16. Express intent to kill or to com-. mit one of the named felonies may be aflirmatively established, or, killing being proved, malice may be implied, but in either case crime is murder. People v. Keefer, 65 Cal. 232, 235, 5 Am. Cr. Rep. 6, 3 Pac. 818. 17. Express malice can not be inferred or implied alone from acts done or means used in doing it, but must be proved by evidence aliunde.-People v. Martinez, 66 Cal. 278, 281, 5 Pac. 261.

18. Express malice is proved when evidence proves beyond a doubt that the killing was premeditated.-People v. Cox, 76 Cal. 281, 285, 18 Pac. 332.

19. Former difficulty or quarrel between deceased and defendant is admissible against latter, as tending to show malice; and competency of such evidence is not affected by length of time before homicide, that such quarrel or ill-feeling is shown to have occurred or existed, but remoteness goes entirely to its weight.-See, ante, § 187, note par. 175; also, Kerr on Homicide, § 454 and cases cited.

20. Intent by imputation is that which is presumed from proved and admitted existence of acts or conduct malum in se. --People v. Foren, 25 Cal. 361, 366.

21. Jury have right to take into consideration conduct of parties at any time before and after making of attack, including entire time in which parties may have been engaged in consummation of criminal act, and all facts and circumstances connected therewith, in order to determine whether and when criminal intent was conceived and executed.-People v. Jamarillo, 57 Cal. 111,

114.

22. Malice proved by preconcert, going armed, etc., usually enters into inquiry, and to rebut this by any inference arising from act done, defendant may show why he was armed, upon what errand he went, and like facts. People v. Williams, 17 Cal. 142, 146. See People v. Arnold, 15 Cal. 476.

23. Presence or absence of motive-Is matter of evidence where inquiry goes to author of crime. It does not follow that there is no motive because none appears. -People v. Ah Fung, 17 Cal. 377; People v. Hoin, 62 Cal. 120, 45 Am. Rep. 651; People v. McCarthy, 115 Cal. 255, 46 Pac. 1073. 24. Presumption from fact of killing.— Party accused of murder must show justification, excuse, or circumstances in mitigation, and in absence of such showing, legal inference is that he has committed the crime. People v. Gibson, 17 Cal. 283, 284.