in the brief relates to the refusal of the until the contrary is proved, and, in cases court to give an instruction on reasonable of a reasonable doubt whether his guilt is doubt as formulated by defendant. It fol- satisfactorily shown, he is entitled to an aclows the stereotyped instruction on that subject, and concludes thus: "But if, upon such consideration, the minds of the jury are not firmly and abidingly satisfied of the defendant's guilt if the conscientious judgment of the jurors wavers and oscillates, then the doubt of the defendant's guilt is reasonable, and you should acquit." This instruction was refused because given elsewhere. The court gave several instructions on the subject of reasonable doubt, although not distinctly defining the terms; i. e., the court told the jury that "the prosecution must prove to you to a moral certainty and be yond all reasonable doubt that the defendant and no one else committed the offense,' etc. Again: "It is not sufficient that the circumstances proved coincide, account for, and therefore render probable the theory sought to be established by the prosecution, but that they exclude to a moral certainty every other reasonable hypothesis than the single one of guilt, or the jury must find the defendant not guilty."

quittal. In People v. Cohn, 76 Cal. 386, 18
Pac. 410, where the court was by the de-
fendant asked, but refused, to instruct the
jury that "the burden is upon the prosecu-
tion of establishing every element of the
crime of which the defendant may be con-
victed, beyond a reasonable doubt," and also
"omitted to give any other instruction of
a like character, or stating or bearing upon
the rule as to reasonable doubt in criminal
cases," the Supreme Court reversed the judg-
ment. But we have found no case holding,
where the rule stated in the Penal Code is
given and is emphasized in many instruc-
tions and in various forms of expression,
that it would be so prejudicial as to demand
a reversal, for the court to refuse to give a
specific definition of reasonable doubt.
find ourselves unwilling to so hold. It will
be noticed that, in the concluding paragraph
of the instruction refused, the jury are told
that, "if their conscientious judgment wav-
ers and oscillates, then the doubt of the de-
fendant's guilt is reasonable," and they
should acquit. To make this statement free
from objection, it should be made to apply
to the judgment of the jury in their final
conclusion, and not to direct them to acquit
whenever they find their minds wavering or
oscillating. Jurors often change their minds
many times during the course of their de-
liberations. They may have reasonable
doubts during their deliberations. Their
judgment may waver and oscillate at such

We

Again, in speaking of the recent possession of stolen property, the court told the jury: "If the defendant under such circumstances offers and produces an explanation of the possession of such property, it is for you to say under all the evidence whether or not such explanatory evidence produces in your minds a reasonable doubt, and, if such evidence does produce in your minds a reasonable doubt of his guilt, then he is entitled to an acquittal at your hands." The jury were also told a reasonable doubt of defend- times. It is when they finally decide that ant's guilt need not result from the testi- the jurors' minds must be "abidingly satismony affirmatively produced at the trial by defendant-"it may arise as well from and be founded upon a weakness or defect in the testimony introduced on the part of the prosecution"—also that the presumption of innocence remains with defendant "until the end of the case and until his guilt is proven to a moral certainty and beyond all reasonable doubt." In several other instructions the necessity for establishing facts, indicating guilt, to a moral certainty and beyond

a reasonable doubt is emphasized. We are aware that trial courts usually and very properly round out their instructions on this subject by a definition of reasonable doubt. But are these terms themselves so shrouded in doubt that it is prejudicial error to refuse to define their meaning? Are the rights of a defendant prejudiced by leaving the jury to determine what the court means when they are told that they must find the facts "to a moral certainty and beyond a reasonable doubt"? Section 1096 of the Penal Code provides as follows: "A defendant in a criminal case is presumed to be innocent

fied of the defendant's guilt." However this may be, the rule by which we are to be guided is now that "no judgment shall be set aside or a new trial granted in any criminal case on the ground of misdirecting the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." Proposed Amendment No. 26 of the Constitution, recently adopted (St. 1911, p. 1798). It is not necessary to indicate the full scope and meaning of this amendment, or how far it will work a reformation in the examination of cases brought up for review by appeal. We are clearly of the opinion that we cannot say that the error now being considered, conceding it to have been error, "has resulted in a miscarriage of justice."

The judgment and order are affirmed.

We concur: HART, J.; BURNETT, J.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 120 P.-4

him to be sick and confined to bed for about eight days, held to support a judgment for plaintiff in a civil action for damages from the assault.

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.*] 14. ASSAULT AND BATTERY (§ 40*)-CIVIL ACTION-DAMAGES NOT EXCESSIVE.

Where plaintiff, a man 65 years of age, was willfully assaulted by defendant, and struck and knocked down and kicked, and was bruised and had his shoulder joint dislocated and two ribs injured, and in consequence of the assault was confined to bed eight days, incurred medical expense, and suffered an impairment in his earning capacity, a judgment for $500 was not excessive.

[Ed. Note. For other cases, see Assault and Battery, Cent. Dig. § 55; Dec. Dig. § 40.*]

Appeal from Superior Court, Fresno County; H. Z. Austin, Judge.

Action by C. J. Ehat against J. H. Scheidt. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank Kauke, for appellant. U. Grant Hayden, for respondent.

was that it could amount to no more than an opinion and a conclusion of the witness. We see no force in the objection. The plaintiff, while not an expert on such matters, was competent to give in a general way an approximately correct description of the bruises and other injuries received by him. [2] Besides, the doctor who waited on him, dressing and otherwise attending to his various wounds, gave to the court a detailed and technical description of plaintiff's injuries, and the testimony of plaintiff on that subject harmonized, generally, with that of the physician. The testimony objected to could not therefore have in any event prejudiced the rights of the defendant.

[3] Nor did the court err in allowing the plaintiff to state the wage rate he was receiving for his labor up to the time he was injured. The testimony disclosed that plaintiff earned his living as an ordinary laborer; that, on account of the injuries inflicted upon him by defendant, he was confined to his home for eight days, and has, since the trouble, according to his statement, been unable HART, J. This action was brought by to do the amount of labor he was capable of the plaintiff to recover damages for personal performing prior to receiving the injuries. injuries which the complaint alleges were The earning capacity of the plaintiff prior to inflicted upon him by the defendant. The receiving the injuries complained of in the action was tried by the court; a jury having business which he had customarily followed been waived by the parties, and judgment was a proper element to be considered in the was awarded plaintiff in the sum of $500. assessment of damages. Zibbell v. Southern This appeal is by the defendant from the Pac. Co. et al., 116 Pac. 513. judgment and the order denying him a new trial.

The points urged by the appellant against the validity of the judgment and the order are that certain rulings of the court respecting certain evidence were illegal and harmful to the defendant, and that certain findings are not supported by the evidence.

The facts are these: The plaintiff, a man 65 years of age at the time he received the injuries complained of, was indebted to the defendant in the sum of $16.75. On the 19th day of July, 1909, the plaintiff was working as a laborer in a box yard in the city of Fresno. In the forenoon of that day, the defendant, accompanied by an Italian by the name of Toschi, went to the box yard, where they met plaintiff. The defendant spoke to the plaintiff about the indebtedness referred to, asking him for payment of the same. An acrimonious discussion ensued, which was finally followed by a fight, with the result, according to the story of plaintiff, that the latter was severely beaten and seriously injured by the defendant. The plaintiff, after the trouble ceased, was assisted by a man named Arieta to a physician's office, where his bruises and injuries were given medical attention.

[1] 1. The plaintiff was permitted, over an objection interposed by defendant, to describe the nature of his injuries. The specific reason urged against that testimony

[4] The court did not err in allowing Arieta, who accompanied the plaintiff to the doctor's office, to state what transpired at said office after the arrival of plaintiff there. The witness merely described, as well as he knew how, what the doctor did in preparing to treat plaintiff and what he did in order to reset plaintiff's dislocated shoulder. testimony, while practically without any force in any direction, tended, if anything, to corroborate the doctor as to the treatment to which it was necessary to subject the plaintiff for the injuries upon his body.

The

[5] The objection to the testimony offered in rebuttal by the plaintiff to impeach the witness, Toschi, who testified for the defense, cannot be sustained. It appears that the witness testified with respect to the circumstances of the trouble between the parties before the police court of the city of Fresno; the defendant having been in said court prosecuted upon a charge of battery growing out of said trouble. It appears that his testimony given at the trial of the case at bar varied in some particulars from that given by him at the trial in the police court. On his cross-examination by counsel for plain. tiff in the present case, the witness' attention was called to the disparity between his former testimony and that given in this trial, and his reply as to whether he had made the former statements was, "I don't remember," or "I remember not saying that." Hay

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

den, attorney for plaintiff, having been pres- | were permitted, against the objection of the ent at the trial in the police court, and also defendant, to testify in rebuttal at the trial the police judge, took the witness stand in of this case that Toschi did so testify in the this action for plaintiff in rebuttal, for the police court. purpose of testifying to the statements made by Toschi at the trial in the police court which it was claimed were inconsistent with his testimony in the trial of this case.

While the particular purpose of the visit of the defendant and Toschi to the box yard would appear to be of little importance in its bearing upon the case as made by the pleadings, since there is no dispute that a fight took place between defendant and plaintiff and there is sufficient evidence to support the finding that the last named was the aggressor, still we are not prepared to say that the testimony offered for the discovery of such purpose was not material. As stated, the theory of the plaintiff seems the box yard for the express purpose of asking the former for a settlement of the trifling financial differences between them, and that the meeting, so far as defendant was concerned, was not a supervenient circumstance, as the testimony of Toschi and the defendant in the present trial would indicate. We think Toschi's testimony in the respect referred to was material and admissible, for whatever it might be worth, as bearing upon the question whether the defendant or the plaintiff was the aggressor in the affray which followed the meeting of the two men. The jury, or, as in this case, the judge, might, considering it with the other facts, infer from the circumstance that the meeting between the two men was purely accidental, and that the defendant broached the subject of plaintiff's indebtedness to him in a gentle frame of mind and that hostilities were initiated by the plaintiff, while, on the other hand, when considered in connection with the evidence of other facts, the circumstance that the meeting was deliberately planned or preconceived by defendant might afford some ground for the inference that the latter approached the plaintiff in a belligerent manner and started the fight.

One of the objections urged here against the competency of Hayden and the police judge to testify in impeachment of Toschi is that the latter is an Italian, speaks the little English that he is capable of using imperfectly, and gave his testimony at the police court trial through an interpreter, and that Hayden and the police judge were therefore permitted to testify only to what the inter- to have been that the defendant went to preter said that Toschi stated. In other words, it is contended that Hayden's testimony, as well as that of the police judge, in the present trial was hearsay. But the difficulty about this objection is that there is absolutely nothing in the record showing that Toschi did not testify in the English language in the police court. Nor is there any showing that Hayden and the police judge do not understand the Italian language. It does appear, however, that Toschi could speak to some extent in the English language, though imperfectly, for he declared in the present trial in English that he understood certain language (giving it in English) used by the plaintiff in addressing the defendant. In any event, as indicated, the record is not such as to make the objection here considered available to the appellant. [6] But it is further objected that the matter to which the impeaching testimony was addressed was in its character collateral, and therefore not subject to impeachment. The theory of the defense was that the defendant and Toschi went to the box yard for the purpose of looking after some boxes which had been left there by a neighbor of the defendant, and that the latter met the plaintiff on the occasion of the affray by mere accident. The plaintiff's theory at the present trial, as was presumably true at the trial in the police court, was that the real purpose of the defendant's visit to the box yard on that day was to meet the plaintiff, and secure from him a settlement of his indebtedness to defendant.

[7] At any rate, we do not think the allowance of the testimony of Hayden and Briggs in impeachment of Toschi is of sufficient importance to justify a reversal on that ground alone.

[8] There is no merit in the contention that a proper foundation for the impeaching testimony was not laid. The witness was asked if he did not, in the presence of certain persons, in the trial in the police court, when giving his testimony, make the statement referred to. The witness stated that he remembered the occasion to which counsel referred, that he remembered that the persons named were present, and that he then gave testimony. This is all that the statute requires. "If the witness understood the circumstances of the time and place, the object of this section of the Code is satisfied." People v. Yee Foo, 4 Cal. App. 730, 89 Pac. 450.

Toschi testified in the police court that he and the defendant went to the box yard together, but that he did not know the purpose for which the visit was made. At the trial of the case at bar he testified that he and the defendant visited the box yard for the purpose of looking for some "sweat boxes." On cross-examination at the trial of the present case, his attention having been first called to his testimony given in the police court, he declared that he did not remember having testified in the last-mentioned court that he did not know the purpose of the visit to the box yard, and the witness, [9] Nor did the answer, "I don't rememHayden, as well as the police judge, Briggs, | ber," given by Toschi to the question whether

he had made the alleged inconsistent statement in the police court, render it improper to show, by way of impeachment, that he did in fact make such statement at the time mentioned. As is said in People v. Mar Gin Suie, 11 Cal. App. 42, 55, 103 Pac. 951, 958: "We think that the defendant was entitled as a matter of fairness to have it clearly appear whether the witness did or did not make the inconsistent statement and that he was not precluded under the rule from showing that the witness did make such inconsistent statement merely because he answered that he did not remember whether he had made it or not"-citing Greenleaf on Evidence (16th Ed.) § 42.

that time he had a dislocated shoulder joint, and a couple of fractured ribs and some contusions on the face. ** I had to put him to bed for a few days on account of the ribs, not account of the shoulder." There was other testimony corroborative of plaintiff and the doctor relative to the general nature and seriousness of the injuries received by the former.

The defendant flatly contradicted plaintiff as to the origin of the difficulty leading to the fight, claiming that plaintiff struck the first blow, and that he merely returned the blows to defend himself. But the court was justified in finding that plaintiff was wantonly and without excuse beaten and injured by defendant from the testimony produced by plaintiff. Counsel for appellant in another connection says in his brief that,

[10] It is also contended that the court erred to defendant's prejudice in allowing testimony impeaching certain statements made by the defendant himself, the ground in order to find for plaintiff, the testimony of the objection to said testimony being that a proper foundation therefor had not been previously prepared.

The defendant was asked by counsel for plaintiff whether he testified at the trial in the police court that he knocked the plaintiff to the ground, to which he replied that he had no recollection of so testifying on the occasion mentioned. This was a sufficient foundation for the allowance of the testimony of the police judge and the witness Hayden that the defendant did testify or admit in the police court that in the encounter with plaintiff he knocked the latter to the ground.

Likewise a sufficient foundation was established for the admission of the testimony of the witness Hayden, by way of impeachment of defendant, that the latter stated under oath in the police court that he "beat the said C. J. Ehat or did him as well as he could, or words to that effect."

of defendant and his witness, Toschi, must be disregarded. This is quite true, but we must assume that the court, being the exclusive judge of the credibility of the witnesses and the weight, effect and evidentiary value of the testimony, did regard the evidence produced by the defendant as unworthy of credence, and that, from its point of view, it found, in considering it, good and sufficient reasons for so regarding it.

There is, it is true, as counsel for the appellant asserts, no evidence which supports the finding that the injuries inflicted upon the plaintiff by the defendant caused the former "to receive a nervous shock," and it is also true that we have found no evidence which justifies the finding that plaintiff's head was "cut in several places." But those findings may be entirely eliminated and disregarded, and still the remaining findings, which are sufficiently justified and sustained by the evidence, fully and amply support the judgment.

*

The court found upon sufficient evidence that the defendant "did violently and willfully assault the plaintiff, and did then and there strike and bruise and knock plaintiff down and kick him"; that "said bruising, beating and kicking did cause plaintiff's head to be bruised and swollen; * did cause plaintiff's left shoulder joint to be dislocated; did cause plaintiff's body to be bruised and two of plaintiff's ribs to be cracked, and, further, did cause plaintiff * * * to be sick to such an extent that he was confined to his bed for about eight days immediately following said

There are some other rulings on the evidence to which the defendant objected and excepted which are of no special importance, and therefore do not command special notice. [11, 12] 2. The attack upon the findings is without substantial merit. The plaintiff testified that the defendant struck the first blow and that he thereupon retaliated by striking defendant; that the latter, a younger, larger, and heavier man than plaintiff, knocked him to the ground, beat him about the head, and kicked him in the ribs. The result of the beating thus administered to him was to cause his jaw to swell, his shoulder to be dislocated, two ribs to be fractured, and one of his ears to be injured. | beating." He was left in a dazed condition on the [13] These findings, supported, as we have ground, and, as before shown, was assisted seen, by the evidence, are manifestly suffito the office of a physician by the witness cient to uphold the judgment. Arieta. He further testified, as we have [14] 3. We cannot say that the amount of seen, that he was confined to his room for damages awarded to the plaintiff is excessome eight days, and unable, by reason of sive. It is very clear that plaintiff was so the injuries so received, to perform the severely injured that he was unable for amount of labor that he was capable of many weeks to pursue his usual employperforming prior to the trouble. Dr. Cray- ment at all and for many months his concroft, who attended plaintiff, said that “at|dition, as the result of his injuries, such as