THE PEOPLE, Respondent, v. JAMES CARROLL et al., Appellants, 92 Cal. 568

McFarland, J. The defendants were convicted of robbery, and appeal from the judgment, from an order denying a new trial, and from an order denying a motion in arrest of judgment. The main point made by appellants is, that the original information was altered after arraignment and plea, and before trial. The facts are, that the information charged the appellants and also one John Murphy.

It appears that afterwards the information was withdrawn as against Murphy, and that some one connected with the court erased the words “ and John Murphy,” and the word “ and,” where it occurred in another place, by drawing a black line through the same. This was certainly an unauthorized and dangerous act; and if it did not appear clearly what the alterations were, and that they could not have prejudiced or injured appellants, the consequence might have been serious.

But as the alterations clearly appear, and as they could not “ have actually prejudiced defendants, or tended to their prejudice in respect to a substantial right,” they are not good grounds for a reversal of the judgment, no matter how censurable the act of making them. We hope, however, that this case will not be taken as a precedent for similar conduct hereafter. We do not think that, under the circumstances detailed by the bill of exceptions, the court abused its discretion in curtailing the cross-examination of the prosecuting witness, or of sustaining the objections to the questions asked him.

The objection to evidence of a certain conversation between appellants and a police-officer, upon the ground that it did not appear that appellants were acting voluntarily, and uninfluenced by promises or threats, is not tenable. It does appear that the conversation was voluntary and without being influenced by the officer. Neither was there any material error in sustaining objections to certain questions asked by appellants’ counsel of the witness Egan. It does not appear that he was present at the time of the alleged assault.

Moreover, he testified, without objection, as follows: “I saw the China-man, the prosecuting witness, there. I did not see the defendants there at all. I did not see anybody doing anything to the Chinaman at all.” We see no error in the instructions to the jury. In the instruction mainly objected to — given by the court of its own motion — the word “ evidence ” is either a misprint or was used inadvertently instead of “ defendant,” and could have done no harm.

Moreover, the precise instruction, with the word “ defendant ” in its proper place in the sentence, was given at the request of defendant as follows: “No fact in the case can be considered as sufficiently proven by a preponderance of evidence, and facts against the defendant must be proven by even more than a preponderance of evidence; they must be proven beyond a reasonable doubt.” As this instruction was asked by appellants, they cannot object to it. And there was no error in denying the fourth instruction asked by appellants.

It was as follows: “ Any fact in favor of a defendant is sufficiently established when proven by a preponderance of evidence, and even though as to such fact the jury have some doubt, if it has been proven by a preponderance of evidence, they must acquit.” This language is obscure; and before a judgment will be reversed for a refusal to give an instruction,the meaning of the proposed instruction must at least be clear.

The meaning of the proposed instruction here is, probably, that if a jury have “ some doubt ” whether a fact in favor of defendant has been proven by a preponderance of evidence, “they must acquit.” But this proposition cannot be maintained. In People v.

Bushton, 80 Cal. 160, and kindred cases, the lower court had affirmatively instructed that on a trial for murder the defendant must show circumstances of mitigation, justification, or excuse by a preponderance of evidence, by evidence stronger than that of the prosecution; and this court held that such affirmative instruction was wrong, and that the defendant should be acquitted “ if, upon the whole case, they entertained a reasonable doubt, from the evidence, of his guilt.” But that is very different from saying that if a jury had some doubt whether a defendant had proven a fact in his favor by a preponderance of evidence, they should acquit.

We think that the case was fairly submitted to the jury. The real question in the case was, whether the evidence warranted a conviction. But the determination of that question rested upon the credibility of certain testimony, a matter clearly within the proper province of the jury. The judgment and orders appealed from are affirmed. He Haven, J., Sharpstein, J., Harrison, J., and Garoutte, J., concurred.