Appellant makes application for rehearing and takes exception to language used by us in passing upon his point that "the case should have been reversed because of the error of the trial court in refusing to give certain instructions requested by the appellant as to the law of circumstantial evidence." Concerning this matter the opinion of the court is as follows: "A definition of circumstantial evidence following an instruction that corroboration of an accomplice's testimony may be had in that manner, would no doubt have been proper, but could not have been prejudicial here in view of the fact that they were to act on the evidence received, from which the jury must have understood that of that evidence part was circumstantial. The instructions requested further in that connection, however, that the circumstances must show the guilt of the defendant beyond a reasonable doubt, were properly refused. To so instruct the jury would be to fly in the face of the statute relating to the testimony of an accomplice as permitted in criminal cases for all purposes save conviction, and place the burden of proof of guilt entirely on other evidence, the very thing the statute was enacted to obviate."
Appellant states that he fears we did not understand his argument. We think we clearly understood the point and the argument as made by appellant. It may be that the thought we desired to convey in our opinion is not aptly phrased. Surely it contains no expression which should embarrass *Page 477 appellant or his counsel. We merely disagreed with appellant's contention in regard to the requested instructions, as we do now.
Appellant says in his petition for rehearing: "There must be some proof in the case independent of the testimony of the accomplice tending to connect the defendant with the commission of the offense, and that proof must be competent proof, that is, proof beyond a reasonable doubt — not of guilt, but of circumstances tending in some degree to establish guilt." In our opinion that is not the law. [15] The doctrine of reasonable doubt is that the jury, before they can render a verdict of guilty, must be convinced beyond all reasonable doubt that the defendant is guilty of the offense charged. (Pen. Code, sec. 1096.) Of course, the jury must base their conclusion upon the evidence submitted to them, but there is no legal requirement that they must believe any part or portion of the evidence. It is only required that they believe that their conclusion as to the defendant's guilt is the true one. [16] The requirement of section 1111 of the Penal Code is in addition to the requirement of the doctrine of reasonable doubt; it in effect says that even though the jury are convinced to a moral certainty that the defendant is guilty, yet they must acquit him if the testimony of the accomplice is not corroborated by other evidence which connects or tends to connect him with the commission of the offense charged. On this point see instruction given in the case of People v. Clough,73 Cal. 348 [15 P. 5], approved by the supreme court.
[17] Appellant makes the further criticism: "As far as we have been able to ascertain, this is the first time in California that a judgment of conviction in a criminal case has been affirmed in part and reversed and sent back for a new trial in part." In People v. Wieler, 55 Cal.App. 687, 694 [204 P. 410], the judgment was affirmed as to the first count contained in the indictment and reversed as to others. In the instant case each count of the indictment stated a separate and complete offense; the jury rendered a separate and complete verdict under each count; eleven of the thirteen verdicts were erroneous in that as to those counts the testimony of the accomplice was not corroborated by other evidence. As to the other two counts the testimony of the *Page 478 accomplice was corroborated by other independent evidence. Thus as to the only error committed the counts were severable. In the judgment the trial court specifically enumerated each count, so it is clear that the judgment was passed upon each and every verdict. "The appellate court may reverse a judgment of a lower court as to part and affirm as to part where the legal part is severable from that which is illegal." (17 Cor. Jur. 370, par. 3757.) Furthermore, our decision is in compliance with section 1260 of the Penal Code, which provides that an appellate court "may reverse, affirm or modify the judgment."
Petition denied.
Knight, J., and Tyler, P. J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 28, 1924.
All the Justices concurred except Lennon, J., and Richards, J., who voted for a hearing in the supreme court.