Sansome

I concur in the judgment, and in the opinion of Commissioner Belcher; but I wish to add that some of the instructions given at the request of the prosecution, and not noticed in the opinion, were clearly wrong. For instance, the jury are told that “when direct evidence cannot be produced, minds will form their judgments on circumstances, and act on the probabilities of the case.” This would probably be understood by the jury as instructing them that their minds must “act on probabilities” in determining the *456 guilt of the defendant, which would clearly be erroneous. But the instruction proceeds as follows: “As absolute certainty is seldom to be obtained in human affairs, reason requires that the jury, in forming an opinion of the truth of the facts, should be governed by the superior number of probabilities on the side of the people or the defendant.” This is not only against the settled rule as to the amount of proof necessary to convict in criminal cases, but is against the express language of the code. (Code Civ. Proc., sec. 2061; Pen. Code, sec. 1096.)

The instrüction was also given, that “ in order to convict, the circumstantial evidence should be such as to produce…

The defendant was convicted of the crime of robbery, and sentenced to imprisonment in the state prison for life. He appeals from the judgment, and an order denying him a new trial.

The indictment under which defendant was tried charged him with the crime of robbery, and also with a prior conviction of the crime of burglary. On being arraigned, he pleaded not guilty to the charge of robbery, and confessed the prior conviction of burglary.

When the case came on for trial, a jury was impaneled and sworn, and thereupon the court directed the clerk to read to the jury the indictment and state defendant’s pleas thereto. The defendant objected to the reading of that part of the indictment which charged a prior conviction, and to the statement of his plea thereto. The court overruled the objection, and the defendant reserved an exception. The clerk then, by the direction of the court, read to the jury the whole indictment, and stated “that to the said charge of prior conviction that the defendant confessed the same, and he was guilty.”

This ruling is complained of by the appellant, and we think it clearly erroneous. The code provides: “ If the indictment or information be for felony,…