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same powers of observation as anyone that was with you had, or didn't you?” The question followed an unsuccessful effort to secure a statement from the witness as to the relative distances between two houses located back of the Arkin store and between one of those houses and said store. The question was argumentative in character and, as framed, called for a conclusion of the witness. But it is probable that what counsel intended to ask was whether the witness' opportunity for observation was equal to that of any other person with him at the time they were inspecting and following the footprints in the rear of the store. But, even so viewing it and if in that view a proper question, it is very clear that, inasmuch as the witness, after considerable questioning on that line, showed that he had formed no judgment as to the distances so sought to be shown, he could have given no more information upon the subject than he did, whatever his powers of observation might be or his opportu nity for observation on that occasion might have been.
There are some other rulings similar to the last above considered animadverted upon in the briefs of the defendant, but even if not strictly correct, they were obviously harmless in their effect.
6. There was nothing detrimental to the rights of the defendant either in the action of the court in refusing to permit his attorney to explain the object of a certain line of the cross-examination of the witness, Johnson, and to which the district attorney objected, or in the language used by the court in ruling upon the proposition. The witness, Johnson, had been exhaustively cross-examined upon the question as to the number of houses situated on a street back of the street on which Arkin's store is situated. The witness declared that he was able to remember and say that there was more than one house on a certain part of the back street, whereupon counsel asked him: “You are as sure of this as you are of any other part of your testimony ?” to which question an objection by the district attorney was sustained. Counsel then attempted to explain that he desired to test the memory of the witness as to the number of houses, and upon objection by the district attorney, the court ruled and said: “I don't think that particular part is material enough to take any time with it.” The question is of an argumentative character and one which, though frequently asked of a wit
ness on cross-examination, is really meaningless. Either an affirmative or negative answer to the question would not have the effect of adding to or detracting from his credibility or the weight of his testimony.
7. It is insisted that the court, in instruction No. 6, as given, told the jury that the defendant was guilty of one or the other of the two degrees of burglary. Said instruction reads: “Under the information in this case you may, if the evidence warrant it, find the defendant guilty of burglary of the first degree or burglary of the second degree. Should you entertain a reasonable doubt as to which of the two degrees he is guilty, if any, you will give the defendant the benefit of the doubt and acquit him of the higher offense.” It seems to us that the language of said instruction is so plain and clear as to put the meaning thereof beyond all doubt or even cavil. It obviously means that, if the jury find by the proper degree of proof that the defendant committed the crime charged, but should entertain a reasonable doubt as to which of the degrees of that crime (Pen. Code, sec. 460), if any, he was, under the evidence, guilty of, then he would be entitled to the benefit of such doubt, and in that case should be convicted only of the lower degree of the crime. It would seem to be hardly necessary to say that nowhere in said instruction does the court intimate that the defendant is guilty of the crime of burglary.
8. Instruction No. 16 is challenged upon the ground that it is argumentative. It explained that, where circumstantial evidence is solely relied upon for the proof of an accused's connection with the commission of a crime, “any fact essential to sustain the hypothesis of guilt and exclude the hypothesis of innocence," and any single fact from which the inference of guilt is to be drawn, “must be proved by evidence which satisfies the minds and conscience of the jury to the same extent that they are required to be satisfied of the facts in an issue in cases where the evidence is direct." We see nothing legally objectionable in the instruction; but, if it were amenable to just criticism, the defendant cannot complain of it, since the record shows that it was given and read to the jury at his request.
9. The general instructions preferred by the defendant and disallowed by the court we have carefully examined, and find that they involved the statement of principles fully and
clearly submitted to the jury in the court's charge. It is, therefore, unnecessary to give them special consideration.
10. We cannot say that the verdict was not justified. It at the least appears to be sufficiently supported by the proofs, and this is all that is required to put it beyond the power of a reviewing court to set aside a verdict, so far as the evidence is concerned. We have already stated that the evidence was not direct but consisted wholly of circumstances. Some of the most important of these have been adverted to. It is not necessary to further rehearse them herein. There are, however, several other circumstances of no inconsiderable significance, when considered with the other circumstances, and they are: 1. That, on the evening of the burglary and after Arkin and family and Johnson had left the burglarized building and gone to the picture show, a man answering the description of the defendant as to stature, build, and headgear, was seen standing in a sort of hallway leading into the Arkin drug-store and peering through the window of said store; 2. That, when the defendant and Ed. Martinez were first searched at Gerlach, the watch was not found on the person of either. An Ingersoll watch of the value of one dollar was found on the person of Ed. Martinez, who declared to the officers that that was the only watch they had. In this connection it was shown that after Ed. Martinez was searched he stepped up to and near the defendant, and that the two men were thereafter again searched and a gold watch, positively identified by Johnson as one of the watches stolen from his store, was found on the person of Ed. Martinez; 3. That the defendant was heard to ask Ed. Martinez, while the two were confined in jail, if the latter had “told anything” to the officers, the natural inference from which question was whether Ed. had made any statement to the officers of an incriminatory character concerning the case or their possession of a part of the stolen property.
There is, then, this situation presented here, so far as the proof is concerned: The presence of the defendant and his companion in Portola just before the burglary was committed and thus opportunity to commit the crime available to them; the correspondence in size of the footprints on the surface of the snow leading to and from the building with the shoes worn by the defendant and his companion; the finding at Hawley, in which direction the accused were seen traveling,
of a part of the leather case in which one of the stolen watches was incased when taken from the store, a short time after the burglary; the possession by one of the parties of one of the stolen watches, and the contradictory statements made by the defendant and his companion in attempting to explain such possession. These, with the other circumstances mentioned, make out what may well be deemed a strong circumstantial case. At all events, if, as appears to be so, the jury believed the circumstances and the evidence by which they were shown, we cannot say, as a matter of law, that they thus arrived at an erroneous conclusion.
11. The last point calling for consideration involves the charge of misconduct on the part of the district attorney during the progress of the trial. The most serious of the several objections under this head may be shown by the following colloquy: Mr. McLaughlin:“While Mr. Myers (a witness for defendant) is coming, we will ask to strike out all the testimony in this case in regard to those shoes. The prosecution had those in their possession at one time, and could produce them here as an exhibit, if they had used due diligence; and we object to the shoes being used." Mr. Kerr (district attorney): “We object to the statement of counsel that we had the shoes that got away from us before this trial was started through no fault of the prosecution.” Mr. McLaughlin: “Or defendant." Mr. Kerr: “You tell us where they are and we will attempt to get them in here." Mr. McLaughlin: “You probably know as much about their whereabouts as I do, Mr. Kerr, and we resent the insinuation in the remark." Mr. Kerr: “... I certainly apologize if he attorney for defendant] takes it as a personal proposition, for it wasn't meant that way."
It is, of course, always improper for an attorney in the trial of a case before a jury to make any remark pregnant with an insinuation that either party to the action, or any party acting on the suggestion or in the interest of one of the parties to the action, has suppressed testimony or disposed of physical objects so that they may not be available for use as testimony at the trial and which, upon inspection by the jury, might tend to weaken the case of one of the parties.
In the present case, both the district attorney and the attorney for the defendant, during the course of the discussion, made statements which should not have been made in
the presence and hearing of the jury. While such conduct on the part of lawyers during the trial of a warmly contested case is generally the result of their zeal for the interests of their clients, and not intended as means for bringing some fact before the jury which it is not legally proper for them to know, it often results seriously to the rights of the parties and may lead to gross injustice. In this case, however, it is reasonably probable that the remarks of the attorneys made no impression upon the jury. They involved a charge and counter-charge by two persons, in theory at least hostile to each other, upon a matter not of overruling importance, since, as we have shown, there were many other inculpatory circumstances of a convincing character brought out against the accused than the circumstance of the footprints in the snow answering to the description of the shoes worn by the defendant and Ed. Martinez at the time of their arrest. The putting of the shoes themselves in evidence could have accomplished no more than to confirm or confute the testimony showing that, in size, they corresponded with the footprints; and if said testimony had been so confirmed or corroborated, nothing would have been added thereto, and if thus refuted, then the result would merely have been to destroy only one circumstance, important, it is true, but which still left many other circumstances the verity of which did not rest upon the production of the shoes and which, on their face, were sufficient to justify a verdict of guilty.
We have not succeeded in discovering the slightest semblance of misconduct by the district attorney in any of the several other assignments of misconduct on the part of that official. Those assignments, therefore, do not merit and will not be given special notice.
We have now considered all the points to which we conceived special attention should be given, and, finding no prejudicial error in the record, the judgment and the order appealed from are affirmed.
Chipman, P. J., and Burnett, J., concurred.