Roberts

The defendant was charged with felony. At the trial certain evidence was introduced by the people. Certain other evidence was then offered, but upon objection by the defendant it was not admitted, whereupon the following proceedings took place:

Thereupon a verdict of not guilty was rendered and defendant discharged. Under subdivision 5 of section 1238, the people appeal from the order made by the trial court, directing the jury to find a verdict in favor of defendant.

Section 1118 of the Penal Code provides: “If, at any time after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice.” It will thus be observed that the trial court was not authorized to summarily direct the jury to find a verdict of not guilty. The power and the duty of a trial court, under the circumstances here presented, was to advise the jury what action to take, but the court had no power to command, and hence no power to enforce its commands. After the case was submitted upon the evidence, however weak that evidence, it was still the duty of the jury to pass upon its sufficiency…