Trials generally: See the suggestions of the supreme court to trial courts in regard to keep ing their code before them on the trial of causes in People v. Nichols, 62 Cal. 518, 522. The trial court should adhere strictly to the provisions of the statute in respect to the mode of trial in criminal cases, rather than risk a reversal of the judgment by a deviation from the specific modes of procedure prescribed, even when the deviation does not seem to it material: People v. Arnold, 15 Id. 476.

Subd. 1. Reading indictment or information.-Failure of the clerk of the court to read the indictment and to state the defendant's plea to the jury is not such error as will warrant a reversal of the judgment, it appearing that the jury were, from the commencement of the trial, fully informed of the precise charge against the defendant, and of the issue raised by his plea of not guilty: People v. Sprague, 53 Cal. 491, followed in People v. Gilbert, 57 Id. 96, 99.

Where the previous conviction is confessed, it need not be read, and the jury need not pass upon the question: People v. Carlton, 57 Cal. 559.

Subd. 2. Order of introducing evidence. The mere order in which evidence is to be introduced upon the trial rests in the discretion of the court trying the cause: People v. Shainwold, 51 Cal. 468. The defendant in a criminal action is as much bound to produce testimony to rebut testimony for the prosecution, which merely tends to prove his guilt, as any other testimony introduced by the prosecution: People v. Kelly, 28 Id. 423.

Subd. 5. Argument: See an article on the subject of argument of counsel in criminal causes, treating the subject generally in 3 Crim. Law Mag. 619. The argument of the case must be made when the evidence is concluded, and not upon the case made out by the prosecution: People v. Williams, 43 Cal. 344. Counsel, as a general rule, are not allowed to read the law to the jury, but there are cases in which they may, by way of illustration, read to the jury reported cases or extracts from text-books, subject to the sound discretion of the court: People v. Anderson, 44 Id. 65; see People v. Keenan, 13 Id. 584. Courts may limit counsel to a reasonable time in presenting cases to juries. This discretion, which is necessarily an enlarged one, should be carefully exercised, and if ever done in capital cases, it should only be on very extraordinary and peculiar occasions. If the court imposes a limitation of time upon counsel against their consent, it is done at the risk of a new trial: People v. Keenan, 13 Id. 581. But see State v. Collins, 70 N. C. 241; S. C., 2 Green Crim. 739; Lee v. State, 51 Miss.

566, 569. When other counsel are associated with the district attorney in the prosecution of a criminal case, the court may, in its discretion, for good reason, allow the associate counsel to conclude the argument: People v. Strong, 46 Cal. 302; People v. Murphy, 47 Id. 104. It is irregular for counsel for the prosecution, against the objections of defendant's counsel, to comment in his argument to the jury upon the refusal of defendant to be cross-examined to the whole case; and for the court to permit it is erroneous: People v. McGungill, 41 Id. 429,

That it is improper for counsel to aver and argue from facts as to which no evidence has been offered, and that such procedure by one party will not justify it on the part of the other, see People v. Mitchell, 62 Cal. 411.

Number of counsel: Sec. 1095. Order of argument: Sec. 1095, note. Subd. 6. State the testimony and declare the law. It is the duty of the court to state the testimony to the jury, and to declare to them the law: Const. Cal., art. 6, sec. 19; People v. Ybarra, 17 Cal. 166. A judge other than the one who tried the case may, by consent, charge the jury and receive their verdict: People v. Henderson, 28 Id. 471; see People v. Hobson, 17 Id. 424.

Instructions generally: See in note to secs. 1096, 1102, and 1127.

Charging juries upon questions of fact. Judges have no right to charge juries with respect to matters of fact. The conclusions to be drawn from the evidence is the peculiar province of the jury, and the court or judge has no right to interfere with it by declaring what has or what has not been proved, nor by stating that the weight of evidence is in favor or against a given fact: Const. Cal., art. 6, sec. 19; People v. Ybarra, 17 Cal. 166; People v. Ah Fung, 16 Id. 137; People v. Williams, 17 Id. 142; People v. Strong, 30 Id. 151; People v. Barry, 31 Id. 357; People v. Dick, 32 Id. 213; People v. Cotta, 49 Id. 166; People v. Walden, 51 Id. 588; People v. Buster, 53 Id. 612; People v. Carrillo, 54 Id. 63; People v. Wong Ah Ngow, Id. 151. Judges may determine and charge a jury whether there is any evidence with regard to an issue, or tending to sustain a fact on which a judgment may depend: People v. Welch, 49 Id. 174. So, if testimony has been introduced to prove a certain matter, the court may instruct the jury that testimony has been introduced tending to prove such matter: People v. Vasquez, Id. 560; see sec. 1127, note.

See proper refusal to give charge relative to the necessity of the prosecution's establishing its hypothesis to an absolute moral certainty, the evidence being direct and positive, and not circumstantial: People v. Gilbert, 60 Cal. 108.

See proper instructions in a case of rape: People v. Angeles, 61 Id. 188.

See erroneous charge in assault with deadly weapon, where there was no evidence tending to establish the circumstances recited as positive facts: People v. Bird, 60 Cal. 9. Erroneous charge in regard to self-defense: People v. Flahave, 58 Id. 249. Error in instruction in regard to self-defense cured: People v. Gray, 61 Id. 164, 182. Reversing for contradictory instructions: People v. Simons, 60 Id. 72.

Oral instructions.-The giving of an oral charge or instruction to the jury in a criminal case, without the defendant's consent, is error, and that consent cannot be presumed from his presence and failure to make the objection when the oral instruction is given: People v. Beeler, 6 Cal. 246; People v. Demint, 8 Id. 423; People v. Woppner, 14 Id. 437; People v. Chares, 26 Id. 78; People v. Trim, 37 Id. 274; People v. Sanford, 43 Id. 29; People v. Prospero, 44 Id. 186; People v. Hersey, 53 Id. 574. But reading sections from the code is not a violation of the provision requiring the charge to be in writing: People v. Mortier, 58 Id. 262; People v. Brown, 59 Id. 349. And as to identification of sections read, see People v. Lewis, 64 Id. 401. If oral instructions are given, the error is not cured by subsequently offering to give them in writing: People v. Ah Fong, 12 Id. 345. By mutual consent, the court may charge the jury orally: People v. Kearney, 43 Id. 383. On appeal, the presumption is always that the instructions given were in writing, unless the

contrary affirmatively appear: People v. Chung Lit, 17 Id. 320; People v. Garcia, 25 Id. 531; People v. Shuler, 28 Id. 496. Under this section, instructions must be given in writing, or, if given orally, they must be taken down by the phonographic reporter. It is error per se to orally instruct the jury in the absence of the reporter: People v. Hersey, 53 Id. 574. When the record on appeal shows that oral instructions were given, it will be presumed that they were taken down by the reporter, unless it otherwise appear: People v. Ferris, 56 Id. 442. The defendant cannot object to an oral instruction to acquit him unless they find him guilty under the first count: Id. Where a jury has returned in court with a verdict, improper in form, the court may tell them verbally that it is not in form, and direct them to retire and bring in a proper verdict: People v. Bonney, 19 Id. 426.

In People v. Jackson, 57 Cal. 316, citing People v. Bonney, 19 Id. 426, the jury came into court and asked what was the least punishment for larceny; the court said they had nothing to do with that, yet told them, and as there was no short-hand reporter present, and this information was given orally, the defendant urged that it was error. The appellate court, however, ruled that what was said was entirely immaterial, and that the direction of the court amounted to nothing more than to admonish them to return and find a verdict, if they could do so, regardless of the punish ment.

Discretion as to order of trial: See People v. Fair, 43 Cal. 137. The court, in exercising its discretion, is not required to state any reasons therefor. The order of trial is a matter

within the discretion of the court, and on appeal, it will be presumed to have exercised its discretion wisely: People v. Haun, 44 Id. 96; People v. Strong, 46 Id. 302.

Order of argument.-Section 364 of the criminal practice act provided: If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to the jury, in which case they must do so alternately." Under that section it was held, in People v. Fair, 43 Cal. 137, that in capital cases the accused has the right to be heard by two counsel, and that if argued by two on each side, they should alternate; that under section 363 of criminal practice act (1094 of this code), the court might, in its discretion, direct which side should commence the argument to the jury, but by whichever side it was thus opened, the other was entitled to the

close. "It will be observed that by the omis sion of the latter portion of the first sentence, supra, the order of argument is subject to the discretion of the court under section 1094, ante:" From commissioners' note. The defendant may be required to open the argument: People v. Haun, 44 Id. 96. The court may permit more than two counsel to address the jury in capital cases, either on behalf of the defendant or the people: People v. Ah Wee, 48 Id. 236. Where defendant has broken jail and escaped, he no longer has the right to be repre sented by counsel: People v. Redinger, 55 ̊Id. 290.

Argument: Sec. 1093, subd. 5, note.

Presumption of innocence-Burden of proof. In all criminal cases the guilt of the defendant must be established to a moral certainty and beyond all reasonable doubt. The law presumes every man innocent until the contrary is proved, and this presumption continues during the whole trial and until the jury determine otherwise. The definition of reasonable doubt, as given by Shaw, C. J., in Commonwealth v. Webster, 5 Cush. 320, is one generally quoted, and has been repeatedly recognized and indorsed as correct in this state. "It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." This charge of Judge Shaw, as to reasonable doubt, has been adopted as a correct definition of the term by the supreme court of this state: People v. Beck, 58 Cal. 212; People v. Ah Loy, 57 Id. 566; People v. Ashe, 44 Id. 288; see also People v. Cronin, 34 Id. 191; People v. Padillia, 42 Id. 535. See a meaningless instruction in regard to reasonable doubt: People v. Angeles, 61 Id. 188; erroneous instruction: People v. Mitchell, 63 Id. 480. The defendant is entitled to the benefit of any reasonable doubt. He is entitled to have the jury instructed "that in determining whether or not he was guilty beyond a reasonable doubt, his good reputation as to traits involved in the charge, if proved, should be weighed as any other fact established, and that it might be sufficient to create a reasonable doubt as to his guilt:" People v. Doggett, 62 Id. 27, 29; citing People v. Bell, 49 Id. 489; People v. Raina, 45 Id. 292; People v. Ashe, 44 Id. 291; and see also approved instructions as to good character of defendant in People v. Velarde, 59 Id. 457, 463; People v. De la Cour Soto, 63 Id. 165; see also note to sec. 1102, "Character." The hypothesis contended for by the prosecution must be established to an absolute moral certainty, to the entire exclusion of any rational probability of any other hypothesis being true: People v. Milgate, 5 Id. 127; People v. Strong, 30 Id. 151; People v. Lachanais, 32 Id. 433; People v. Padillia, 42 Id. 535; People v. Ashe, 44 Id. 288; People v. Brannon, 47 Id. 96; People v. Ah Sing, 51 Id. 372; People v. Kerrick, 52 Id. 446; People v. Morino, 53 Ïd. 67; People v. Ah Chung, 54 Id. 398; People v. Anthony, 56 Id. 397; People v. Marshall, 59 Id. 386; People v. Ah Loy, 57 Id. 566. The prosecution must establish the guilt of the accused beyond a reasonable doubt, independent of any hypothesis produced on the part of the defendant: People v. Cove, 59 Id. 390.

Circumstantial evidence.-When the evidence against the accused is entirely circumstantial, each material fact going to make up the chain of circumstances must be proved to a moral certainty, and beyond all reasonable doubt: People v. Phipps, 39 Cal. 326; People v. Ah Chung, 54 Id. 398. The following instruction, usually asked and given when the evidence is circumstantial, need not be given where the vidence is all direct and positive: "The hypothesis contended for by the prosecution must be established to an absolute moral cer

tainty, to the entire exclusion of any rational probability of any other hypothesis being true, or the jury must find the defendant not guilty: People v. Gilbert, 60 Id. 108, 111. In this case the meaning of "hypothesis" is discussed. See further, as to circumstantial evidence, note to section 1102. If a reasonable doubt is entertained by the jury upon any material fact in the case, they should be instructed to acquit the defendant: People v. Eckert, 19 Id. 603. And it is error to charge, "You are not legally bound to acquit him because you may not be entirely satisfied that the defendant, and no other person, committed the alleged offense:" People v. Brown, 56 Id. 405; People v. Kerrick, 52 Id. 446. And the converse should be charged to the jury: People v. Cheong Foon Ark, 61 Id. 527. In order to justify a conviction upon circumstantial evidence, it should be such as to produce nearly the same degree of certainty as that which arises from direct testimony: People v. Cronin, 34 Id. 191; People v. Padillia, 42 Id. 535; People v. Hardisson, 61 Id. 378. The jury cannot convict a defendant merely because they believe the evidence is such that a man of prudence would act upon it in his own affairs of the greatest importance, but they should be fully convinced of the correctness of their conclusion of the defendant's guilt: People v. Brannon, 47 Id. 96; People v. Ah Sing, 51 Id. 372. It is not necessary, however, that the evidence should show that the innocence of the defendant is impossible before he can be convicted: People v. Brotherton, 47 Id. 388. Preponderating proof is all that is necessary to prove a fact in the defendant's favor: People v. Milgate, 5 Id. 127; People v. Stonecifer, 6 Id. 405; People v. Coffman, 24 Id. 230. That preponderating proof need not be made by the defendant, see People v. Cheong Foon Ark, 61 Id. 527; People v. Flanagan, 60 Id. 2. "It would manifestly be shifting this burden [of proof] from the prosecution to the defendant to require the latter to establish his defense by a preponderance of evidence, and would deprive him of the doctrine of reasonable doubt, to the benefit of which he is justly and everywhere held entitled. Where the defense is insanity, an exception is made to the rule, but the present case does not come within that exception, nor the reason on which it is based:" People v. Marshall, 59 Id. 386, 3SS. Homicide is an exception in regard to requiring preponderating proof on the part of the defendant in certain cases, and this is by virtue of section 1105: People v. Cheong Foon Ark, 61 Id. 527.

Confused instructions, generally. In addition to the citations above in regard to meaningless instructions, the following general language upon confused instructions is used in People v. Hurley, 57 Cal. 145: "Merely giving an instruction which of itself cannot convey a distinct idea of any legal proposition may not always be a fatal error; but when an instruction is confused and uncertain, or fails distinctly to lay down the law, while at the same time it contains hypothetical suggestions of the defendant's guilt, it is manifest that its effects must be injurious to the rights of the party on trial." See also note to sec. 1127.