I concur in the views of the chief justice as to the scope of the cross-examination of the defendants. When a defendant goes upon the witness stand, and for the first time tells a Munchausen tale as to his connec*499tion with the affair, I think it proper and legitimate cross-examination to ask him: “Did you ever tell this tale to anybody prior to this time? Did you tell it to the arresting officers?” I believe it is the universal practice to ask such questions, and until now I never heard the practice questioned. To ask and compel answers to those questions is certainly no invasion of defendant’s constitutional rights. There is no power in the law to compel the defendant to take the witness stand in his own behalf, but when he does it he may be asked any question which will show his past conduct to be inconsistent with his present testimony. The rule of law is so declared in the recent case of People v. Gallagher, 100 Cal. 475. As a general principle, the defendant’s silence may not be proven against him as a circumstance tending to show guilt. But upon cross-examination, if this silence be inconsistent with his present testimony, inquiry may be had upon it.
This case is reversed upon the error committed by the trial court in giving the following instruction to the jury: “Where weaker evidence is produced when in the power of the party to produce higher, it is presumed that the higher evidence would be adverse if it had been produced.” This instruction embodies a very poor attempt to express the principle of law of presumptions declared in subdivision 6, section 1963, of the Code of Civil Procedure. This subdivision of the section, properly quoted, is as follows: “That higher evidence would be adverse-from inferior being produced.” It will be observed that the adjective “weaker” is not used in the subdivision, and I am not prepared to say that “weaker evidence” and “inferior evidence” cover the same ground. Again, under the evidence in this case I find no demand for the giving of the presumption of law attempted to be declared by the foregoing instruction, even if it be conceded to be a proper principle to be applied in any criminal case. Yet it is said in People v. Bruggy, 93 Cal. 486: “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. Instructions are for the enlightenment of the jury as to the law of the case, and a jury never enters into such a character of analysis in considering them.” The evidence called for no such instruction. By the record it is no*500where disclosed that the defendant offered “weaker” evidence when it was in his power to produce “higher” evidence. There is nothing in the record to indicate that the defendant had in his power any higher evidence to produce. In fact, there is nothing to show that there was any higher evidence anywhere. The instruction, when we consider its effect, is a blank. ¡Neither in law nor in fact does it amount to anything. Defendant insists that it charged him with the responsibility of failing to produce" King and Adams as witnesses at the trial. There is nothing in the record to indicate that the instruction was aimed at those persons, for, as suggested, there is nothing to indicate that defendant could have produced them at the trial, even by the exercise of the greatest effort. Again, it was as much in the power of the people to produce these two men as witnesses as it was in the power of the defendant, and the presumption would therefore work against the prosecution exactly as against the defendant. These suggestions only show that the attempted declaration of law was purely an abstract matter, and the jury, as intelligent men, could not have been misled thereby. Defendant’s counsel is incorrect in saying that the prosecuting officers in their arguments to the jury invoked this principle against defendant by reason of his failure to produce Adams and King as witnesses at the trial. The record does not bear out such statement. In conclusion, upon this branch of the investigation, it may be said that defendant’s counsel in their opening brief concede the instruction was not based upon any “particular facts” in the case. Such concession alone demands that a new trial should not be granted upon this ground.
While the defendant has the constitutional right to appeal, he must show upon his appeal some substantial violation of the law in the trial of his case. Some material right must be taken from him, or his conviction must stand. If judgments of conviction in hotly contested, complicated criminal trials are to be set aside for every technical violation of the law occurring during the progress of these trials, it might almost be said that no conviction would stand the test of appeal. If, in the multitude of rulings upon the admission and rejection of evidence, and upon the procedure of the trial in general, a judge does not make some mistake, it would be a wonder indeed. Only a few men possess *501that amount of legal wisdom. The constitutional right of appeal granted a defendant does not contemplate that this court should find grounds for a new trial in any and every mistake the trial court may make. For the reasons here given, the contention of defendant discloses a matter too small to demand a retrial of the case. The other matters are even of less importance.
I think the judgment and order should be affirmed.
Harrison, J., concurred..