People v. Tarm Poi

— The appellant was convicted of murder, and he appeals from the judgment, and from an order denying a new trial. He makes three points on the appeal, viz.: 1. That the trial court erred in instructing the jury; 2. Misconduct on the part of the jury; and 3. Insufficiency of the evidence to support the verdict.

1. The objection urged against the instructions is, that they require a preponderance of evidence on the part of a defendant in a criminal case, contrary to the rule laid down in People v. Bushton, 80 Cal. 160 , and People v. Elliott, 80 Cal. 296 . The instructions objected to, and which for convenience we will number 1, 2, and 3, are as follows: “ 1. Upon trial for murder, the-commission of the homicide by the defendant being proven to the satisfaction of the jury, or admitted, the burden of proving circumstances of mitigation, or that justify or excuse him, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounted to manslaughter, or that the-defendant was justifiable or excusable. 2, If, from all the evidence, the jury should be satisfied, by a preponderance of testimony, that the circumstances were…

— In my opinion, the instructions are without error. I find no error in the record. I wish to add that I do not intend by what is said herein to approve the ruling in People v. Bushton. I concur in affirming the judgment and order.