People v. T. Wah Hing

Defendant was indicted for the crime of abortion, under section 274 of the Penal Code. A demurrer for insufficiency of facts and for failure to conform to the requirements of sections 950, 951 and 952 of the Penal Code was overruled, and the defendant pleaded not guilty, and, upon the trial, the jury returned a verdict of guilty. Thereafter, a motion was made by defendant in arrest of judgment, which being denied, defendant moved for a new trial, which motion was denied. Defendant appeals from the orders denying his motions and from the judgment of conviction.

The error assigned lies in the concluding clause of the instruction, the claim being that “each juror was told by the instruction that if he believed the defendant had been proven guilty, he should so vote, but that he must not change his vote unless he was convinced beyond a reasonable doubt that the defendant was innocent.”

Respondent makes answer in two ways: First, that the opening paragraph of the instruction being in appellant’s favor, the converse and compensating paragraph at the conclusion cannot be complained of. Second, that the instructions upon the doctrine of reasonable doubt, elsewhere given, cured whatever…

I concur in the judgment on the ground that the ruling of the court allowing in evidence the declaration of Philip O’Neil to the witness O’Brien was palpably erroneous, and prejudicial to the defendant. It is very clear, as Justice Chipman points out, that the declaration of O’Neil to the effect that the defendant had the jury “fixed,” from which declaration the inevitable implication is that the jury had been corruptly influenced to find in favor of the defendant, regardless of the evidence, could not in any degree bind the defendant under any known rule of law, it not having been made in his presence or shown to have been made by his authority or with his knowledge or consent. Nothing could be more obvious than that the effect of the testimony was to greatly prejudice the rights of the accused, and that it was regarded as a fact of persuasive significance is evidenced by the stress laid upon it by the assistant district attorney in his address to the jury. The proposition may safely be laid down without the least apprehension of probable confutation that the average juror, having listened to testimony showing or tending to show that he had, while the ease was still pending,…