Bettencourt

The defendant was convicted of the crime of maintaining a nuisance, to wit,, a place where alcoholic liquors are unlawfully kept for sale. The defendant moved for a new trial, which was denied. The appeal is from the order denying the motion for new trial, and also from the judgment of conviction.

The first point made for reversal is that the court erred in its instructions on the subject of reasonable doubt, in that it did not give to the jury the instruction found in the case of Commonwealth v. Webster, 5 Cush. (Mass.) 320 [ 52 Am. Dec. 711 ], This contention is partly true, but it overlooks the fact that section 1096 of the Penal Code sets forth the language that should be used in instructing the jury upon the subject of reasonable doubt, and no other instruction is requisite. The court gave to the jury all of the section referred to, but in so doing omitted the letter “a” in the expression “it is not a mere possible doubt”, so that the instruction in this particular reads, “it is not mere possible doubt”. Also, the court in quoting the section omitted the words “possible or”, so that the clause as given to the jury read as follows: “and depending on moral evidence,.is open to…