People v. Delucchi , 17 Cal. App. 96 ( 1911 )

We are satisfied with the conclusion reached in the former opinion in this case. We think, as announced therein, that the court's charge clearly and correctly covered every important question arising upon the evidence, and do not think that it has been or can be shown that any different verdict would have followed from the giving of the special instructions proposed by the defendant and rejected by the court.

But we may not improperly here say, lest a misapprehension may arise from our criticism of the instruction given by the court based upon subdivision 3 of section 2061 of the Code of Civil Procedure — that a witness false in a material part of his testimony is to be distrusted in others — that we did not intend to be understood as intimating that it was our opinion that an instruction announcing that proposition in the language in which it was expressed by the court would be prejudicial in any case, whatever the facts and circumstances thereof might be. The instruction obviously involves the statement of a mere commonplace or the statement of a proposition which every person of common sense knows or ought to know. Indeed, he would be radically deficient in natural mental equipment who would not know, without being warned, that his duty would be to distrust or not implicitly rely upon important statements of a person who he had found had deliberately lied as to other matters of equal importance. In the case of a trial, about the first thought that would naturally run through the minds of jurors, if they possessed common intelligence, would be their duty to consider with great caution and distrust the testimony of a witness who they had found had been untruthful in a material part thereof, and the court's warning that it is their duty to so view the testimony of such witness has always appeared to the writer to be unnecessary, and, indeed, a reflection upon the intelligence of the jury. The truth is that any man having sense enough to discharge the duties of a juror would distrust the entire testimony of such a witness, whether told by the court to do so or not, unless there were parts of it that harmoniously coincided with the general theory of the case or with evidence as to the reliability of which no question could arise or had arisen.

While, as pointed out in the original opinion, there is a slight variance between the language of the section and that in which the court announced that commonplace to the jury, the difference is so immaterial that we are unable to see wherein the giving of it could have prejudiced the rights of the defendant in the remotest degree or that the jury would have probably reached any other conclusion had the instruction in the language proposed by the defendant been given in lieu thereof.

We are satisfied that the defendant was fairly tried and that the judgment and order should not be disturbed.

The petition for a rehearing is, therefore, denied.

Chipman, P. J., and Burnett, J., concurred.