The defendants were charged with the murder of one Ah Moy on August 29, 1917, near the town of Grimes, in Colusa County. They were jointly tried and convicted of murder in the first degree, with the punishment fixed at life imprisonment. A motion for a new trial was interposed and denied, whereupon the court pronounced judgment and sentence in accordance with the verdict. The appeal is from the judgment and from the order denying the motion for a new trial.

The judgment and order were reversed by the district court • of appeal for the third appellate district, on the ground of the insufficiency of the evidence to support the verdict. Mr. Presiding Justice Chipman delivered the opinion of the court, which was concurred in by Mr. Justice Hart, who filed a separate opinion. Mr. Justice Burnett, in a separate opinion, dissented. The attorney-general petitioned for a hearing herein and it was granted, because we were not satisfied that the judgment and order should have been reversed. The opinion of the presiding justice fully and fairly states the evidence, and we shall, therefore, adopt that portion thereof and make it a part of this opinion. It reads as follows:

1. The principal question on this appeal is whether the evidence is sufficient to justify the verdict against the appellants. It is the position of their counsel “that giving to the testimony introduced on behalf of the prosecution all the weight to which it can be in any way entitled the .case falls short of proving the guilt of the defendants to that degree of certainty which is required. ’ ’

In passing upon this question we will not attempt to determine the weight of the evidence, but will decide only whether upon the face of the evidence it can be held that,sufficient facts could not have been found by the jury to warrant the inference of guilt. [1] For it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground we are discussing it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.

[2] The determination of a charge in a criminal case involves proof of two distinct propositions: First, that the offense charged was committed, and, second, that it was perpetrated by the person or persons accused thereof.

In this case there can be no doubt of the first proposition, for it is clear that Ah Móy was the victim of a cold-blooded assassination; that the details were worked out beforehand, and that the plan was to strike him down ah he, according to his daily habit, made his way along Morris Lane to the ranch where he was employed to prepare the evening meal.

Did these defendants commit or participate in the commission of the murder? What facts can we say the jury could have resolved from the evidence in order to justify the inference of guilt? [3] We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.

Among the more important facts which we must regard as having been found by the jury- are the following: That the appellants were seen by several witnesses loitering and waiting in the neighborhood of Morris Lane for several hours during the afternoon of August 29th until a short time before the murder took place, and were seen by two witnesses driving along the highway in the Overland at the rate of twenty-five or thirty miles an hour toward Colusa shortly afterward; that while on the highway the appellants tried to .conceal their identity from the witness Dunning, who passed them four times during the afternoon; that the Overland which figures in the evidence was owned by the defendants, and that it was recognized at different times that afternoon in that vicinity by several witnesses; that the machine which the witness Morris saw about 4 o’clock in Morris Lane and the one he observed on the highway at about 5 o’clock were identical, and although Morris’ testimony was not definite, the jury upon the entire evidence may have decided that on each occasion it was occupied by appellants; that the turning back of the machine in Morris Lane without any apparent reason could have been regarded by the jury as having been done to avoid meeting Morris and that it was, therefore, a suspicious circumstance, as may also have been the incident of the automobile making two trips into Morris Lane without continuing west either time beyond the spot where the murder was committed; that, since the record does not show what, if any, tests the jury may have made in connection with the testimony of Sheriff Stanton and the shoes and measuring-stick admitted in evidence touching the footprints traceable from near where the dead body was found to the automobile tracks, we would be going outside of our province if we held that the jury could not have found that they were made by Wong Gow; that the alibi was a fabrication ; that the appellants gavé perjured testimony, and that they suborned witnesses in the attempted corroboration of their alibi. Apart from the perjured testimony the jury may have found additional support for the inference of guilt in the manner and conduct of the appellants on the witness-stand.

It is insisted that the evidence considered in the light most favorable to the prosecution shows only two incriminating circumstances having any tendency whatever to connect the appellants with the murder—that they were seen loitering and waiting in the vicinity all afternoon, and that their alibi was fabricated. This position ignores other incriminating facts, which, as we have pointed out, the jury may have found—the attempt of the appellants to hide their identity, the automo bile tracks in Morris Lane showing that the car had been driven in there twice, the footprints, the turning back of the machine at the approach of Morris, and being seen on the highway in the automobile going toward Colusa after the murder.

[4] In our opinion the facts which we have indicated could have been found by the jury are sufficient to sustain the verdict. It is the law that neither mere opportunity to commit a crime, nor perjured testimony is sufficient to support a verdict of guilty. Nor are false statements or suspicious circumstances sufficient. It may be-conceded that no one of the facts summarized would,'if standing alone, be sufficient to uphold . the verdict, but when all the circumstances which the jury may have resolved from the evidence are considered together, it cannot be held on appeal that they are not sufficient to warrant an inference of guilt.

Appellants contend that the evidence is insufficient, particularly because of the absence of proof of motive. It is true the prosecution did not offer such proof. But, as has been declared in many cases, it is not necessary to establish .a motive for the perpetration of an offense. A presumption of innocence arises in favor of a person accused of crime. This presumption is disputable and may be overcome by other evidence. The presence of a motive is evidence tending to prove guilt, for the reason that its tendency is to rebut the presumption of innocence. On the other hand, absence of motive tends to support the presumption of innocence. [5] But the presence or absence of motive is essentially a question of fact, and, like any other fact, is not necessary to be proved if the crime can otherwise be established by sufficient competent evidence. So, in this ease, the absence of proof of motive is a fact to be reckoned on the side of innocence, but if the proof of guilt is nevertheless sufficient to overthrow the presumption of innocence, the appellants must stand convicted, notwithstanding no motive has been shown.

It is proper to state that in some instances the proof was not complete. For instance, the court did not allow Sheriff Stanton to testify as to whether the shoes of Wong Gow corresponded in size to the measurements of the footprints as they were shown on the stick; the coroner testified that there were powder-marks on Ah Moy’s face, but the point was not pursued further; and, assuming that the footprints of Wong Gow were traced from the place where Ah Moy was killed to the automobile tracks, it was not shown that there were any footprints leading to the dead body. But, in spite of these discrepancies in the proof, we think the jury nevertheless could have found sufficient facts to be satisfied beyond a reasonable doubt that the appellants were guilty of the murder.

The part which the unidentified third man played in the proceedings that afternoon remains a mystery, and we shall not consider whether he was implicated in the crime or what effect, if any, the evidence on this point may have had on the jury in reaching the verdict.

2. It is urged that the court erred in allowing the prosecution to impeach the testimony of the appellants over their objection. They testified on direct examination that they left Colusa at about 1 o’clock and went to the Jap camp and remained there until about 6 o’clock. On cross-examination Tom Woo was asked if he did not, on the evening of the 29th of August, after he was arrested and lodged in the county jail, in a conversation with Deputy Sheriff Crayton, no one else being present, state to Mr. Crayton that he, Tom Woo, went to the garage at about fifteen minutes to 12 on that day and tried to get his car; that Mr. Martin was working on the car and that he fixed it up so it would run, “and you left the garage at about thirty minutes past 12 o’clock, and got to the Jap camp at 1 o ’clock ? . Did you make that statement ? ” To which question the defendant answered: “I could not remember; maybe I did.” Mr. King, the assistant district attorney, asked of the defendant the further question: “Do you remember in the fore part of September, a few days after you were arrested, there at the county jail, of having a conversation with Mr. Scoggins, Mr. Crayton and myself? ... Do you remember having a conversation with those parties named and yourself ?” To which he replied: “Yes, sir; I did.” Mr. King then asked the further question: “I will ask you, in the fore part of September, where you were detained in the county jail, yourself, Mr. Scoggins, Mr. Stanton, and myself being present, on that occasion and that place, if in the conversation that occurred there, you didn’t state that on the twenty-ninth day of August you left Colusa and went to the Jap camp, saw Fuyikawa and had a talk with him with regard to cutting com ? That you went out in the cornfield and had a talk with him in regard to cutting com at that time ? Did you make that statement then and there at that time?” To which .he replied: “Maybe I did.” He was then asked: “If you made that statement, was it true?” And he answered: “I could not say; maybe I did and maybe I didn’t. Of course I don’t remember now.’’ Again he was asked: “If you made that statement at that time and place, was that statement true or false? ” To which he answered: “I could not say.’’ After the defense rested Sheriff Stanton and the deputy sheriff testified over the objection of the appellants that the statements embraced in the foundation testimony were made by Tom Woo. The point to the objection was that Tom Woo had not as a matter of fact denied on cross-examination that he made the statement; that there was in fact no material inconsistency between the statements sought to be proved and the testimony of the appellants at the trial.

Questions of similar import were put to Wong Gow on cross-examination with substantially the same result, the witness answering four or five times: “I don’t remember,” and in one instance saying: “Maybe I did.” This was supplemented by a statement: “I was in jail. I was all mixed up.” Testimony tending to impeach Wong Gow was allowed over similar objections.

[6] The testimony of the defendants as to their movements that afternoon was clearly contradictory of the extrajudicial statements imputed to them. The inquiry was therefore material, and since it is plain from the record that the statements were neither admitted nor denied, the prosecution was entitled to impeach the appellants. (7 Ency. of Evidence, 71.)

3. Appellants complain that the use of the words “legal and competent,” as they appear in the following sentence taken from instruction I, is objectionable: “And I will say to you that the evidence which has been received in this case is legal and competent, and if it is, in your mind, of such a character as to exclude every reasonable theory or hypothesis other than that of defendants’ guilt beyond a reasonable doubt, then and in that event it should be' given the same weight by you as would direct evidence of the fact alleged. ’ ’ The position of appellants is thus stated: “Theoretically, of course, the statement might be defended, but when addressed to a jury of laymen, it is trenching upon questions of fact. The mere admission of the testimony in evidence stamps it as competent and legal from a legal standpoint. Then why turn to the jury and tell them that this flimsy unsubstantial thing called ‘circumstantial evidence,’ as it appears in this case, was ‘legal and competent?’ To the ordinary jury this was tantamount to saying ‘this evidence is sufficient’ and you can’t get away from it.”

[7] We do not think the words “legal and competent” in the sense in which they are employed are objectionable, and clearly they carry no intimation to the jury that the court deemed the evidence, because it was “legal and competent,” sufficient to convict. The point to the instruction is that the evidence, circumstantial in its nature, being “legal and competent,” that is to say, proper evidence for the jury to consider, if found by the jury to be sufficient “to exclude every reasonable theory or hypothesis other than that of the defendants’ guilt beyond a reasonable doubt,” it should be accepted and acted upon just as if it were direct evidence having the same probative effect.

[8] It is contended that instructions IT, III, and IV are objectionable in that “they read more like an exhortation, a plea excusing the evidence and quite nearly beseeching a verdict against the defendants.” This criticism'is entirely without foundation. Instruction II, after stating that all the evidence was circumstantial, proceeds to explain why, because of the conditions under which crimes are sometimes committed, circumstantial evidence must be relied upon. In instruction III the court directs the jury to carefully examine the evidence and determine what circumstances have been proved to their satisfaction beyond a reasonable doubt, and then to consider what conclusion as to the guilt or innocence of the defendants should be drawn therefrom, and if such conclusion point to guilt beyond a reasonable doubt, they should so find “notwithstanding the fact that you might be more fully satisfied if you had the testimony of eye-witnesses.” The court further instructed the jury that in cases supported by circumstantial evidence, either in whole or in part, as in cases supported by direct testimony, the jury are required only to be satisfied as to guilt beyond a reasonable doubt.

Instruction IV is of the same general tenor as the other instructions treating of circumstantial and direct evidence. We think none of them is open to the objections made by appellants.

The judgment and order are affirmed.

Shaw, J., Lennon, J., Melvin, J., Wilbur, J., Olney, J., and Angellotti, C. J., concurred.