not appear in that case that any further or more explicit instruction was given. The court in instructing the jury read almost literally some thirty odd sections of the Penal Code and the Code of Civil Procedure as to direct and indirect evidence, presumptions, inferences, the various kinds of evidence, the knowledge of the court, the facts as to which a witness may testify, conspiracy, impeachment of witnesses, that the masculine gender includes the feminine, of what things courts take judicial notice, that the court must decide questions of law and the jury questions of fact, and finally the provision of the constitution that judges must not charge juries with respect to matters of fact.

We have no hesitation in saying that such practice is not to be commended. It can serve no useful purpose, and the many propositions of abstract law can find no lodgment in the minds of laymen from the mere reading of the sections. In fact the court might as well have read the first volume of Greenleaf on Evidence. Cases may arise in which to read an abstract proposition of law to the jury with a wrong application, and with no definite instruction on the same subject, would constitute error; and in fact the courts have so held in some cases under the peculiar facts of the case; but we know of no case where it has been so held if the court elsewhere specifically instructed the jury upon the point covered by the abstract proposition. In this case many of the instructions so read are complained of as constituting error. We have not the time nor the space to discuss them separately. The most plausible ones on which to predicate error, for instance, is the fact that the court read to the jury the portions of section 2061 of the Code of Civil Procedure, as follows: "The following presumptions and no other are deemed conclusive. . .

"5. That evidence willfully suppressed would be adverse if produced;

"6. That higher evidence would be adverse from inferior being produced. . . ."

And also that part of section 1963 as follows:

"... 6. That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and therefore,

“7. That if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust."

It will be seen that section 2061 of the Code of Civil Procedure provides that the jury are to be instructed "on all proper occasions" as provided in the various subdivisions of the section. The only question is as to whether or not this case presented a proper occasion for such instruction. It would have to appear clearly not only that the occasion was not a proper one, but also that under the circumstances the instruction was misleading and injurious, before we would be justified in holding it to be erroneous. It was claimed by defendant's counsel in his argument that the district attorney could and should have called as witnesses the ex-supervisors other than the three called. In fact, the defendant had asked the court to instruct the jury that if it was within the power of the prosecution to produce the other ex-supervisors, and that such ex-supervisors could have testified as to matters material to the case, "then I charge you that the law presumes that the testimony of such ex-supervisors not produced as witnesses herein, if offered, would have been adverse to the prosecution in this case. (Code Civ. Proc., sec. 2061, subds. 5, 6, sec. 1963.)"

The court refused to give the instruction as worded, evidently because it was argumentative and singled out certain witnesses, and was made to apply to the prosecution and not to the case generally; but in lieu of giving the instruction as requested, the court read the portions of the section as herein stated. The defendant by his request, having invoked the principles of law stated in the sections, and cited the sections as authority, and asked the court to instruct in regard to them, cannot now complain because it was not a proper occasion for giving such instructions. As to the abstract proposition "that evidence willfully suppressed would be adverse if produced," there is nothing to show that defendant willfully suppressed any evidence unless it might be claimed that he could have taken the stand himself; but such fact was not the suppression of evidence within the meaning of the statute, but was only the exercise of a right given to the de

fendant under the law, the jury having been fully instructed as to such right.

We cannot presume that the jury thus applied an abstract proposition in the face of the direct and positive instruction that no inference or presumption unfavorable to defendant can be indulged in by the jury by reason of the defendant not testifying, and that "there is absolutely nothing in that circumstance for you to consider in arriving at a verdict."

In People v. Cuff, 122 Cal. 589, [55 Pac. 407], the court gave an instruction based upon section 2061; but instead of reading the section (as in the case at bar) commenced by saying, "The court instructs you, etc." The instruction was held to be erroneous, but the case was reversed upon other grounds in addition to the giving of the instruction, and there is nothing in the case to show that the jury were instructed elsewhere upon the right of the defendant to remain silent.

People v. Charles, 9 Cal. App. 399, [99 Pac. 384], merely follows the case of People v. Cuff, and the court in that case said: "The effect of the entire charge of the court was to specifically direct the erroneous instruction toward the defendant's case."

Where the occasion is proper for the giving of an instruction it cannot be given in a better form than as laid down in the code. In People v. Dobbins, 138 Cal. 698, [72 Pac. 342], the court said: "But nowhere has it been decided, nor indeed could it with reason be held, that it is error for the court to instruct in the language of our written law. This is substantially what the court here did, and so, while the instruction cannot be commended as a full and clear exposition of the meaning of the section of the code, still it cannot be said that it was error for the court in giving the law to have conformed to the language of the code, and to have omitted what that code itself omits."

It has been many times held that if other instructions were given which qualify and explain an objectionable instruction the judgment will not be reversed. (People v. Morine, 61 Cal. 369; People v. Bruggy, 93 Cal. 484, [29 Pac. 26].) In the latter case it was also said: "The practical administration of justice should not be defeated by a too rigid adherence to a close and technical analysis of the instructions of the court. The instructions are for the enlightenment of the jury as to

the law of the case, and the jury never enters into such a character of analysis in construing them."

We therefore conclude that as the court specifically instructed the jury upon the material questions before them, the reading of the code sections did no harm.

10. The court instructed the jury that "One who offers a bribe is not for that reason alone an accomplice of the one to whom it is offered; and one to whom a bribe is offered or who asks or agrees to receive a bribe is not, for that reason alone, an accomplice of one who offers a bribe"; and the claim is made that the said instruction is erroneous.

The court elsewhere instructed the jury, as contended by counsel, that both Gallagher and Wilson were accomplices, as appeared from their own testimony, and this instruction is not questioned. It was held in People v. Coffey, 10 Cal. App. Dec. 419,* that one who receives a bribe is not for that reason an accomplice of one who gives a bribe, and the reason there given need not be here repeated. It is insisted now-and was the theory of the defendant at the trial-that Furey had entered into a conspiracy with Gallagher, Wilson, the defendant and other supervisors, for the purpose of obtaining money by reason of the official action of said board of supervisors in all matters which might come before the board in which money could be obtained, as for franchises or permits, and that such combination continued up to the time the offer in this case was made to Furey. Defendant upon this theory of the case asked the court to instruct the jury to the effect that if they should find that defendant and the other supervisors, together with Furey, entered into such general plan and scheme to obtain money from all persons for permits and franchises, then Furey was an accomplice; and defendant also asked further and separate instructions by which the court was requested to instruct the jury that Furey was in fact an accomplice.

The court properly refused such instructions. The word "accomplice," as used in the statute, means an accomplice in the commission of the offense charged and which is under investigation. Here the offense charged was an offer by defendant to bribe Furey. There is no evidence that Furey

*Rehearing pending in the supreme court.

entered into a combination or agreement with the defendant and other supervisors to offer a bribe to himself. If the crime of some party who had paid money under such combination or conspiracy had been the subject of investigation, or if the unlawful conspiracy had been the subject of the trial, then no doubt all parties to it would have been accomplices, but they would have been accomplices to a different crime than the one charged here. The witness Furey could not have been an accomplice in the offer to bribe himself. It might have been known to defendant that Furey was willing to accept bribes. In fact Furey might by his conduct have invited bribes; but the offer to bribe in this particular case is the offense with which the defendant is charged and of which he was convicted. The court elsewhere fully and fairly instructed the jury in regard to the subject of accomplices, and left it to them to decide provided they should find the evidence to fit the instructions as given. They were instructed at the request of the defendant: "Any person who aids and abets another in the commission of any crime, or advises and encourages its commission, is an accomplice of such other person. Where two or more persons are concerned in the commission of a crime, whether they or either of them directly commit the act constituting the offense or aid and abet in its commission, or not being present they advise and encourage its commission, each one of them is an accomplice of the other. The word 'accomplice' includes all persons who have been concerned in the commission of an offense; and the grade or degree of the guilt of such person is not important. . . . And in this connection you are instructed that if you have a reasonable doubt upon the question of whether a witness is or is not, was or was not, an accomplice, you must resolve that doubt in favor of the defendant; and if you have a reasonable doubt as to whether there is or is not other evidence which, in itself independent of and without the aid of the testimony of the accomplice or accomplices, tends to connect the defendant with the commission of the offense charged, you must resolve the doubt in favor of the defendant and acquit him."

The witness Furey did not testify to any direct guilty participation of defendant as to the offer made to him. He testified that the offer was made by Gallagher, and did not