People v. Johnson

Opinion — Foote

FOOTE, C.

Appeal from a judgment of conviction of murder in the first degree, and from an order denying a new trial, in the superior court of the county of Mendocino.

There is an absence of all evidence in the transcript before us. We cannot then say that the instructions asked by the defendant, and refused by the court, had any application to the-ease as made: People v. Herbert, 61 Cal. 545.

The same thing may be said as to the alleged error, that the court, not being requested so to do by the defendant, failed to instruct the jury as to what constituted either justifiable or excusable homicide.

That part of the court’s charge in reference to the law of reasonable doubt is not subject to the criticism made on it. The jury were not misled into supposing that they were authorized to become “satisfied” of the defendant’s guilt from anything except the evidence in the case. The authorities cited by the defendant do not sustain him in the positions he has assumed.

As has been before stated, none of the evidence given on the trial of this ease is before us for examination. We must presume, therefore, that the instructions granted by the court at the instance of the prosecution, and its charge to the jury on its own motion, were proper, since such a. state of the *574evidence therein is conceivable as may have rendered them correct: People v. Padillia, 42 Cal. 535.

The judgment and order should be affirmed.

We concur: Belcher, C. C.; Searls, C.

By the COURT.—For the reasons given in the foregoing opinion the judgment and order are affirmed.