CRIMINAL LAW (Continued). when the evidence given on the preliminary examination is not so marked by quotations as fully to distinguish it from the evidence given on the trial, and appellant contends that it included immaterial matter not showing contradictions, which matter was not specified, it will be presumed that such immaterial matter did not prejudice the defendant. (Id.) 54. CONTRADICTION UPON IMMATERIAL MATTERS-DEFENDANT NOT INJURED. The allowance of two different questions, asked for the purpose of contradicting a witness for the defendant upon immaterial matters, is not injurious to the defendant, where no attempt was made to contradict the witness on one of the questions asked, and where the contradiction proved in answer to the other question was wholly unimportant, and would not justify a reversal of the judgment. (Id.) 55. EVIDENCE OF GOOD CHARACTER STEADINESS-DRINKING-HONESTY. -Evidence as to the good character of the defendant, as to steadiness and drinking, was properly excluded; and the evidence of good character was properly confined to the defendant's previous reputation for honesty, which was involved in the charge made against him. (Id.) 56. NEW TRIAL CUMULATIVE EVIDENCE-FAILURE TO MOVE FOR CONTINUANCE.—A new trial will not be granted for the admission of cumulative evidence which is not so material as to indicate a probable change of result, even though the search for it may have been ground for a continuance, if it had been applied for. The failure to move for a continuance to allow search for a witness, whose identity and importance, as vendor to the defendant, were testified to at the trial, is suggestive of the conclusion that finding him would not have aided the defense; and affidavits of other persons showing that there was such a man, without introducing his affidavit or showing any further facts than was testified to upon the trial, are insufficient to justify a new trial. (Id.) 57. MURDER-IMPANELING JURY-JUROR EXCUSED FOR SICKNESS-IRIAL TO BEGIN ANEW-PEREMPTORY CHALLENGES.-Upon the trial of a defendant accused of murder, where the jury was partially impaneled, and an accepted juror was excused for sickness, the trial should have begun anew, and the jurors sworn should have been discharged and recalled for further examination and challenge, the effect being to restore to the defendant his entire number of peremptory challenges, to be used in the selection of twelve competent jurors, instead of confining his remaining peremptory challenges to an increased number of other jurors to be impaneled. [Garoutte, J., Beatty, C. J., and Van Dyke, J., dissenting.] (People v. Zeigler 462.) 58. MURDER-EVIDENCE-MOTIVE OF REVENGE-SANITY OF DEFENDANT. -Upon the trial of a defendant charged with murder, who relied upon the defense of insanity, evidence tending to show a motive CRIMINAL LAW (Continued). of hatred, and revenge, and that the acts of the defendant were not those of an insane person, is admissible for the prosecution. (People v. Donlan, 489.) 59. INSTRUCTION AS TO DEFENSE OF INSANITY-CAUTION OF JURY.-In instructing the jury as to the defense of insanity, it was proper to caution them in substantial accordance with the previous decisions of this court, and to tell them, in substance, that while they should weigh the defense fully and justly, and should sustain it as humane and just when satisfactorily established, "they are to examine it with care, lest an ingenious counterfeit of such mental disorder should furnish protection to guilt." (Id.) 60. INSTRUCTION AS TO TIME OF INSANITY-PRESUMPTION-BURDEN OF PROOF-RANGE OF EVIDENCE.-It was proper to instruct the jury that they were not required to determine whether or not the defendant was insane at the time of trial, but that the issue was as to whether he was insane at the very time of the homicide; that the law presumes him sane, and that the burden of proving his insanity rested upon nim; and that in determining the question whether he was insane at the time of the alleged commission of the act, they were to consider all of his acts and conduct as shown by the evidence at that time, and before and since that time, and to consider his appearance and actions during the trial, as a circumstance in determining his insanity at the time of the homicide. (Id.) 61. HOMICIDE-EVIDENCE-VOLUNTARY CONFESSION OF REASON FOR KILLING-STATEMENT UNDER ARREST.-Upon a prosecution for murder, a statement made by the defendant while under arrest, in answer to a question asked by a fellow-workman of the defendant, that the deceased "was on his row and throwing clods at him, and that he told him to get off, and he would not get off, and he got mad and shot him," is admissible as a confession, if shown to have been voluntary. The fact that the statement was made while under arrest does not take away the voluntary character of the confession or render it inadmissible. (People v. Miller, 69.) 62. PRELIMINARY PROOF OF VOLUNTARINESS-CROSS-EXAMINATION-ERROR WITHOUT PREJUDICE.-Before a confession of the defendant can be admitted, the prosecution must show that it was voluntary, and made without any previous inducement, intimidation, or threat, and it is error not to permit the defendant to cross-examine the witness upon the preliminary inquiry, before the confession is received; but such error is without prejudice where a subsequent cross-examination failed to show that the confession was not voluntary, or to impeach the previous statement of the witness that it was voluntary. (Id.) 63. BULLET-WOUND IN HEAD OF DEFENDANT-POSSESSION OF FACUL ties-Weight of Confession.-Evidence tending to show that, at the time of the confession, the defendant was not in the full possession of his faculties, by reason of a bullet-wound in his head, does CRIMINAL LAW (Continued). not go to the admissibility of the confession, but was evidence to be considered by the jury in determining the weight or effect to be given to it. (Id.) 64. HOMICIDE-DEFENSE OF INSANITY-APPEAL-SUPPORT OF VERDICT. -Where a defendant charged with murder is found guilty of mur der in the first degree, a claim that he should have been acquitted, on the ground of insanity, will not be allowed upon appeal, where there is no doubt of his guilt, if he were not insane at the time of the homicide, and the evidence as to his sanity was not so entirely insufficient as to warrant this court in disturbing the verdict. (People v. Daily, 104.) 65. INSTRUCTIONS-INSANITY-INTOXICATION.-Instructions given which correctly stated the law as to insanity and intoxication, and which were applicable to the evidence in the case, were not exception. able. (Id.) 66. EVIDENCE-QUALIFICATION OF YOUNG BOY TO TESTIFY-QUESTION FOR TRIAL COURT.-The qualification of a boy nine years of age to testify as a witness for the prosecution was a question for the trial court, which had the boy before it, and its determination will not be disturbed where there is nothing to show any error or abuse of discretion. (Id.) 67. CONVERSATION BETWEEN DEFENDANT AND DECEASED.-Evidence is admissible to show a conversation between the defendant and the deceased shortly before the homicide; and the fact that there had been some prior conversations which the witness had not heard cannot affect the admissibility of his testimony, and can only go to its weight. (Id.) 68. MISCONDUCT-ARGUMENT OF DISTRICT ATTORNEY-"PRESENT SANITY" OF DEFENDANT.-It was not misconduct for the prosecuting attorney to allude, in his closing argument upon the question of insanity, to the "present sanity" of the defendant, which was not disputed. (Id.) 69. REMARKS OF COURT NOT PREJUDICIAL-QUESTION AS TO DEFENDANT'S INSANITY-ALLUSION TO DATE OF "CRIME."-The remarks of the court, in response to a request of defendant's attorney for leave to reply upon the question of defendant's "present sanity," that the question was as to defendant's insanity at the time of the homicide, and the jury would be so instructed, and that "the question whether he was sane now or not was only matter of argument as to what was his condition of mind at the time of the commission of the crime," were not prejudicial to the defendant, where the use of the word "crime" was not objected to, and the jury would evidently understand it as merely fixing a date, and not as intimating an opinion as to the defendant's guilt. (Id.) 70. RECEIVING STOLEN PROPERTY SUFFICIENCY OF INFORMATION.-An information for the "crime of receiving stolen property," com CRIMINAL LAW (Continued). mitted as stated in the information, which, with necessary additions to show the mode of committing the crime charged, follows the language of the statute, is sufficient. (People v. Tilley, 61.) 71. INSUFFICIENT VERDICT-GUILTY OF "RECEIVING STOLEN PROPERTY" -GUILTY KNOWLEDGE AND INTENT NOT EXPRESSED.--A verdict not finding the defendant "guilty" generally, or "guilty as charged," but merely finding him guilty of "receiving stolen property," might refer to a mode of committing that crime recognized by section 496 of the Penal Code, which was not charged in the information, but is more naturally to be construed as intended to refer to one element only of the offense as charged, without intending to find the truth of the other necessary elements charged in the information,— viz., the defendant's knowledge of the theft, and intent of personal gain. The verdict fails to express an intention to find upon those elements of the offense as charged, and is insufficient. (Id.) 72. RAPE-FEMALE CHILD-INFORMATION.-An information charging the defendant with the crime of rape, committed by having criminal sexual and carnal intercourse, at a time specified, with a female named, described as "a female child under the age of sixteen years, to wit, of the age of thirteen years," sufficiently shows that the prosecutrix was under the age of sixteen at the time of the alleged criminal intercourse. (People v. Totman, 133.) 73. REFUSAL OF CONTINUANCE-DISCRETION OF COURT REVIEW UPON APPEAL. The application of the defendant for a continuance is addressed largely to the discretion of the trial court, and where the court refused a continuance, its decision will not be disturbed upon appeal, if the appellate court cannot say, in view of the facts and circumstances disclosed by the record, that the court below abused its discretion. (Id.) 74. IMPEACHMENT OF PROSECUTRIX-TESTIMONY RULED OUT-ERROR NOT APPEARING.-The refusal of the court to allow defendant's counsel to read certain testimony taken at the preliminary examination, for the purpose of contradicting the prosecutrix, is not shown to be error, where such counsel did not point out to the court wherein it contradicted the witness. (Id.) 75. INSTRUCTION-FORCE OR CONSENT IMMATERIAL-] -PROVINCE OF JURY. -An instruction to the effect that it is immaterial whether a girl under sixteen years of age consented or resisted, and that neither the element of force nor the question of consent has any application, "that the prosecutrix could not consent, and the law resists for her," is proper, and does not invade the province of the jury. (Id.) 76. INSTRUCTIONS AS TO ADMISSIONS AND TESTIMONY OF DEFENDANT.— The court may properly instruct the jury in relation to state CRIMINAL LAW (Continued). ments or admissions of the defendant, and in reference to the weight to be given to the testimony of the defendant in his own behalf. (Id.) 77. ERRONEOUS REQUESTS-PROVINCE OF JURY-STATEMENT BY PROSECUTRIX-OUTCRIES-APPEARANCE AND CONDUCT.-Requests by the defendant for instructions involving matters of fact, as to whether a statement by the prosecutrix as to her condition was an admission or a confession, and that the jury shall consider the testimony as to whether the prosecutrix made an outcry, or whether she was changed in appearance, or appeared to be nervous, invade the province of the jury, and were properly refused. (Id.) 78. MURDER-INSTRUCTION-PRESUMPTION OF INNOCENCE-OMISSION OF REQUEST. The court in every criminal case ought of its own motion, to instruct the jury as to the presumption of the innocence of the defendant until the contrary is proved; but where a defendant accused of murder omitted to request such instruction, its absence is not ground of reversal of a judgment of conviction. (People v. Matthai, 442.) 79. BURDEN OF PROOF-REASONABLE DOURT.-Upon a charge of murder the burden of proof is upon the prosecution to establish the fact of killing beyond a reasonable doubt; but where the killing is proved, unless the evidence for the prosecution shows facts reducing the crime to manslaughter, or justifying or excusing the homicide, the burden of proof is thrown upon the defendant to prove such facts in mitigation, justification, or excuse, sufficiently to raise a reasonable doubt as to his guilt of the offense charged. (Id.) 80. INSTRUCTION-JUSTIFIABLE HOMICIDE-LANGUAGE OF CODE-ELABORATION NOT REQUESTED.-Where the court charged upon the subject of justifiable homicide in the language of the code, no error was committed, where the defendant did not request any further elaboration of the principles expressed. (Id.) 81. ERRONEOUS INSTRUCTION AS TO MATTERS OF FACT-NEW TRIAL.The court in instructing the jury should limit itself to a declaration of the principles of law necessary for their guidance in considering the evidence, and should not assume to state the evidence, unless it is all repeated. An instruction assuming facts not proved, and disputed facts, in favor of the prosecution, and predicating guilt thereon, and eliminating the consideration of the evidence favorable to the defendant, which, if believed, entitled him to an ac quittal, is an instruction upon matters of fact, which invades the province of the jury, and injuriously affects the right of the accused, and entitles him to a new trial. (Id.) 82. ROBBERY-INSTRUCTIONS-POSSESSION OF PROPERTY TAKEN-AB SENCE OF EXPLANATION.-Upon a prosecution for robbery, it is proper to instruct the jury to the effect that a failure of the |