Paulsell

I concur in the judgment and in the opinion, except the reference to section 2061, of the Code of Civil Procedure. The instruction should be given only when made proper by some evidence. It is then to tell the jury that they must distrust a particular witness. This is an interference with the province of the jury which the legislature cannot authorize. It is prohibited by section 19, article VI, of the constitution.(See Kauffman v. Maier, 94 Cal. 269 .)

The defendant was convicted of robbery, and appeals from the judgment and from an order denying his motion for a new trial.

The judgment must be reversed and a new trial ordered on account of instructions given and refused upon the subject of reasonable doubt—a subject upon which we had hoped there would be no further difficulty, except where instructions had been presented upon that subject by the defendant. We have frequently held that where the well-known definition of reasonable doubt of Chief Justice Shaw in the Webster case had been given to the jury, we would be loth to reverse a judgment for the refusal of the court to give other instructions upon the subject; and we have frequently warned trial courts against departing to any considerable extent from that definition. In People v. Chun Heong, 86 Cal. 332 , the court, through Beatty, O. J., said: “We cannot, however, abstain from again expressing the hope that the trial judges who have made use of this form of instruction will eventually see the propriety of returning to the approved definition, which, since the time of Chief Justice Shaw, has never been improved upon.” In People v. Karnaghan, 72 Cal. 610 , we said: “For…