Charles

Defendant was informed against for the crime of robbery, which crime was shown to have been committed in El Centro, Imperial county, by the “holding up” of the keeper of a pool-hall in his place of business, about 11:30 o’clock P. M. of the night of March 11, 1908.

It is urged that the verdict of guilty and the judgment of the court resting thereon should be set aside and reversed because of the giving to the jury by the trial court of the following instruction: “Evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; therefore if weaker and less satisfactory evidenóe is offered when it appears that stronger and more satisfactory evidence was within the power of the party to produce, the evidence offered should be viewed with distrust”; the defendant not having testified in his own behalf, or introduced any evidence in direct denial or explanation of the testimony of the prosecution.

The contention of the appellant is clearly sustained by the decision in People v. Cuff, 122 Cal. 589 , [ 55 Pac. 407 ], where the same instruction was given and held to be…