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defendant, it is not improper. McLean, 84 Cal. 481.
An instruction in which the court said, "My understanding was that that completed the contract," where the record shows that the court had just stated the materiality of the defendant's claim in evidence that the six hundred dollars was paid him as part of the purchase price, assumes the testimony of the party to that fact as true, and the court erred in instructing as to facts. Vulicevich v. Skinner, 77 Cal. 239. See also Hill v. Finigan, 77 Cal. 267.
Where the instruction declares that "the testimony in the case shows" certain facts which were prejudicial to defendant, the constitutional provision is violated. The People v. Casey, 65 Cal. 260.
The court may instruct that testimony has been introduced tending to prove a certain matter. People v. Perry, 65 Cal. 568.
An instruction that "proof of the possession of property in the hands of defendant recently after the same property was stolen out of the shop of Vestal, unless the possession of the same is satisfactorily accounted for by the defendant, raises a presumption of guilt against the defendant," violates the constitutional provision against charging the jury with respect to facts. People v. Mitchell, 55 Cal. 236.
An instruction that flight of a person accused of crime is a strong circumstance of guilt, is an instruction upon facts, as such
presumption is not declared by law. People v. Wong Ah Ngow, 54 Cal. 151.
As to what is a proper occasion for giving the instruction relative to the testimony of an accomplice, under subdivision 4, section 2061, Code of Civil Procedure. [Commenting on Kauffman v. Maier, 94 Cal. 282, and People v. O'Brien, 96 Cal. 171.] People v. Bonney, 98 Cal. 278.
A judge cannot be too cautious in a criminal trial in avoiding all interference with the conclusions of the jury upon the facts. [Approving, People v. Williams, 17 Cal. 147.] People v. Gordon, 88 Cal. 422, 427.
Further examples of improper instruction are given in People v. Chen Sing Wing, 88 Cal. 268, where it is added: "This provision is violated whenever a judge so instructs as to force the jury to a particular conclusion upon the whole or any part of the case," etc., quoting from People v. Ybarra, 17 Cal. 171. When all the evidence in the case showed that the offense was committed in the night time, no error was committed by the court, saying the evidence as to a burglary showed it had been committed about three or four o'clock in the morning. People v. McGregar, 88 Cal. 140. And see People v. Murray, 86 Cal. 31; Low v. Warden, 77 Cal. 95; Wheaton v. Insurance Co., 76 Cal. 417, 428; People v. Phillips, 70 Cal. 61, 68; Weiderkind v. Tuolumne C. W. Co., 65 Cal. 431; People v. McDowell, 64 Cal. [dissenting opinion of
Sharpstein, J.] 468; People v. Ah Oon et al., 56 Cal. 188, 193.
An instruction to the jury which correctly states the issues under an indictment for perjury, and further states that if the jury find beyond a reasonable doubt that defendant testified under oath as alleged in the indictment, etc., and that his testimony was knowingly and willfully false, that then the defendant was guilty, does not violate the constitutional provision. People v. Hitchcock, 104 Cal. 485. For a case violating this section see People v. Lang, 104 Cal. 366.
In instructing a jury in a case for falsely registering contrary to provisions of the Purity of Elections Law [Stats. 1893, p. 24], the court fully instructed on the bject that the evidence of an accomplice should be viewed with distrust and also, in connection therewith said. "I instruct you, gentlemen, that G the man whom it is charged here S procured to falsely register, is an accomplice in this case," and again: "Now you are instructed further, as I have already stated, that G, is according to his own testimony, an accomplice in the crime here charged against S." Held, this was no violation of the constitutional prohibition, and that the instruction was more favorable to the defendant than he was entiled to. [People v. Sansome, 98 Cal. 235, distinguished.] People v. Sternberg, 111 Cal. 9. See also People v. Smith, 106 Cal. 80.
An instruction that if the jury finds by a preponderance of evidence that certain
enumerated facts existed they should find for the plaintiff, but that if the plaintiff had failed to prove any of said facts by a preponderance of evidence, their verdict should be for the defendant, does not violate the provision of the constitution which prohibits instructions upon matters of fact. Ryan v. Los Angeles I. & C. S. Co., 112 Cal. 247.
A statement to the jury upon the trial of a criminal case of what the evidence tends to show is not an instruction as to matters of fact within the constitutional prohibition. People v. Cummings, 113 Cal. 89.
This section is referred to in a concurring opinion by Justice Temple in People v. Paulsell, 115 Cal. 13-14, with reference to instructions to the jury under section 2061 of the Penal Code, relating to a witness false in part of his testimony.
Case stated and illustrated by evidence where the instruction violates the provision against instructing upon the facts. People. Ellenwood, 119 Cal. 170.
SECTION 20. The style of all process shall be, "The People of the State of California," and all prosecutions shall be conducted in their name and by their authority.
Const. 1849, Art. VI, Sec. 18.
An order of arrest signed by the judge in compliance with section 483 Code of Civil Procedure, is not a process to be issued in the name of the people, etc. Dusy. Helm, 59 Cal. 188.
The district attorney in the prosecution of criminal cases, acts by the authority and in the name of the people of the state, though in other matters he may be largely under the control of and subordinate to the supervisors of the county. County of Modoc v. Spencer & Raker, 103 Cal. 498.
"Process" as intended by this section does not include the "commitment" under which prisoners are held in the state prison. The style of process here intended has uniformly been held insufficient as a commitment to prison. [Matter of Ring, 28 Cal. 248; Ex parte Dobson, 31 Cal. 498; Ex parte Gibson, 31 Cal. 620; Matter of Brown, 32 Cal. 49.] Er parte Ahern, 103 Cal. 413.
Prosecutions of a criminal nature must be prosecuted in the name of the people of the state of California and not by a private person. Morton v. Broderick, 118 Cai. 483.
SECTION 21. The justices shall appoint a reporter of the decisions of the Supreme Court, who shall hold his office and be removable at their pleasure. He shall receive an annual salary not to exceed twenty-five hundred dollars, payable monthly.
There being no act in force providing for compensation of Supreme Court reporter between January 1 and July 1, 1880, it was competent for the legislature in 1883 to pass an act providing compensation for said officer during that period. Smith v. Dunn, 64 Cal.