I dissent. This cause is now returned to the superior court for a second trial upon the ground that the jury was wrongly instructed as to the law of circumstantial evidence. The instruction given to the jury upon this branch of the law was too long — too analytical. In a text-book treating of criminal law, and written for the edification of lawyers and judges, such a discussion would be most appropriate; but its material assistance to a jury as a lamp to guide their feet is most doubtful. It may be safely said that the ordinary juryman listening to a charge of the court fails to grasp a long technical analysis of the principles upon which the law of circumstantial evidence is based. And, in view of the fact that jurors are not lawyers but men brought from other walks of life, a plain declaration of fundamental elementary principles bearing upon the various branches of the law involved in the case is far more satisfactory, for every legitimate reason, than an extended dissertation upon criminal law, however legally sound that dissertation may be.
Notwithstanding the foregoing suggestions, I see nothing in the instruction upon circumstantial evidence that justifies an order of this court calling for a second trial of the defendant. The parts of the instruction quoted in the majority opinion in substance have been given to juries in criminal cases in the past, and upon appeal to this court have stood the test when tried in the crucible of the law. (People v. Cronin, 34 Cal. 191;People v. Morrow, 60 Cal. 142; People v. Urquidas, 96 Cal. 241;People v. Durrant, 116 Cal. 179.) Those cases have declared the criminal law of this state too long to be now overthrown and cast aside without the gravest reasons. I think those reasons are totally lacking.
It is not a fair test of the legal soundness of an instruction to measure it by an isolated sentence taken therefrom. It should be taken as a whole, and as a whole its validity measured. *Page 506 Throughout this instruction the court is dealing with circumstantial evidence in general. It is said that in a proper case circumstantial evidence has all the force, dignity, and effect possessed by direct and positive evidence. This is true. It is good law. Under the decisions in this state it is axiomatic. The court was not referring to the particular circumstantial evidence in the case on trial. It was not referring to the defendant. It was dealing with the question in the abstract and declaring general principles, leaving it for the jury to test and weigh and measure the case before it by those principles. The law declares that circumstantial evidence, if it satisfies the minds of the jurors of defendant's guilt beyond a reasonable doubt, demands a verdict of guilty exactly the same as direct and positive evidence. I see no possible legal objection to the court so declaring to the jury. The reason why circumstantial evidence is recognized and admitted in courts of justice in criminal trials, is a matter not material for a juror to know in making up his verdict. The fact that it is his duty to act upon such evidence is sufficient. At the same time there is no substantial error in telling the jurors why that class of evidence is recognized and admitted in courts of justice. There certainly is no violation of the constitutional provision forbidding judges to charge jurors as to matters of fact found in such a charge. Neither can it be said that this character of declaration is argumentative against defendant's innocence. I believe the conclusion declared by the majority of the court is based upon reasoning too technical, too metaphysical. The law does not contemplate that the practical administration of justice should be defeated upon these grounds.