THE PEOPLE v. WILLIAMS, 17 Cal. 142

Baldwin, J. delivered the opinion of the Court Cope, J. concurring. The defendant was convicted of manslaughter on an indictment for murder. Several points are made: 1. As to the rejection by the Court of a juror. The exception does not seem to be properly taken, though the juror was not disqualified upon objection for implied bias, as we held in the case of People v. Reynolds at the last term. In that case we laid down the rules governing this whole matter; and by an observance of them no difficulties need be experienced on the subject. 2.

The exclusion of the proof as to the habit of the Chinese in resisting the collection of taxes. This matter was not properly presented as it is stated in the record, and was accompanied with a proposal to prove mere inferences or conclusions of the witness. Perhaps there was no error in rejecting this proffered proof in the form in which it was offered. But we think that all the facts explaining the conduct of a party charged with crime, should, as a general rule, be admitted. In cases of homicide, malice proved by pre-concert, going armed, etc., usually enters into the inquiry.

To rebut this or any inference arising from the acts done, the defendant might show why he was armed, upon what errand he went and the like facts. For example, a party might account for wearing a pistol by the nature of his business (as a Deputy Sheriff) or his going on a road infested with robbers. The circumstances might or might not be of much weight, but the defendant would be entitled to introduce them. (People v. Arnold, 14 Cal.) 3.

The next point is that the Court charged the jury, that: “ The fact that the deceased was a Chinaman gave the defendant no more right to take his life than if he had been a white person; nor did the fact, if you so find, that the defendant was seeking to enforce the collection of taxes against another Chinaman, or even against his victim, give the defendant any right to take his life.

Our laws do not sanction the sacrifice of human life in order to enforce the collection of taxes on licenses.” “ Before you can acquit the defendant on the ground of necessary self-defense, it must appear as I have already told you, that the danger was so urgent and pressing that in order to save his own life, dr to prevent his receiving great bodily harm, the killing of the deceased was absolutely necessary, and it must also appear that the defendant had really and in good faith endeavored to decline any further struggle before the fatal shot was fired.

Unless these things appear, your verdict should be guilty of murder or manslaughter, according to the circumstances.” The word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. It seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing.

We are not disposed to criticise language very closely in order to reverse a judgment of this sort, but it is apparent that in a case of conflicting proofs, even an equivocal expression coming from the Judge, may be fatal to the prisoner. When the deceased is referred to as “ a victim,” the impression is naturally created that some unlawful power or dominion had been exerted over his person. And it was nearly equivalent, in effect, to an expression characterizing the defendant as a criminal.

The Court should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression. The experience of every lawyer shows the readiness with which a jury frequently catch at intimations of the Court, and the great deference which they pay to the opinions and suggestions of the presiding Judge, especially in a closely balanced case, when they can thus shift the responsibility of a decision of the issue from themselves to the Court. A word, a look, or a tone may sometimes, in such cases, be of great or even controlling influence.

A Judge cannot be too cautious in a criminal trial in avoiding afi interference with the conclusions of the jury upon the facts; for of this matter, under our system, they are the exclusive judges. We are far from intending any reflection upon the learned Judge below by these observations; but the importance of the question and the undesigned expressions noticed, suggest the propriety of making them. "4.

After the general charge given by the Court, the defendant’s counsel requested this instruction: “ If defendant inflicted the mortal wound in self-defense, and his danger was so urgent and pressing, that in order to save his own life it was necessary that he should have inflicted such wound, then the jury must acquit.” This charge was refused, but no reason was given by the Court for the refusal. It is not denied that the instruction was legal; but it is said that there was no error in refusing it, because the Court had already given the same instruction, though in different language.

It is always better for the Court, when an instruction presents the law accurately, to give it, especially in criminal cases, in the very words asked. The reason 'of this is, that counsel argue their case to the jury with reference to the law as announced in their own language. They select words to convey as precisely as they can the very idea and meaning they seek to impress. A change of phraseology, therefore, may render the legal proposition less intelligible or less emphatic. Counsel may desire a proposition to be given in different forms, in order that it may be more clearly understood.

If the Court refuses a charge once clearly given, on the ground that it has already given it in different terms, it should inform the jury distinctly that this is the reason for the refusal, else prejudice and misunderstanding may result. The jury may infer that the instruction was refused on its merits. But this is not an open question in this Court. It was decided in the case of People v. Harley, (8 Cal. 890) affirmed in People v. Ramirez (13 Cal. 172).

We are not to be understood as holding that the mere refusal of the Court to instruct in the language asked, the instruction having been given in substance, or that the mere refusal to repeat an instruction before given, in the same or different language, would be ground for reversal. We simply hold, that if the Court refuses a proper instruction in a criminal case, it is no answer to the error assigned for this cause, that an equivalent one was before given, unless this reason be assigned at the time for the refusal. For this last error, judgment reversed and cause remanded.