People v. Johnson

47 Cal. 122

• Court: California Supreme Court
• Decided: July 1, 1873
• Docket: No. 10,060
• Status: Published

Opinion

By the Court:

The defendant’s first point is, that the Court erred in refusing to give the tenth instruction requested by him. If by the proposition that the “ defendant is not called on or required to explain when, how and where he was wounded in the thigh,” it was meant that-he was not required to explain by testimony other than his own, we cannot hold, in the absence of a bill of exceptions containing the evidence on that point, that the refusal to give the instruction was error. If the meaning is, that he was not required to explain the matter by his own testimony, the refusal to give the instruction was not erroneous, for that proposition is fully stated in the twelfth instruction given at the request of the defendant.

The refusal to give the defendant’s seventh instruction was not erroneous. The indictment, trial and conviction of Emerson for the same burglary does not raise any presumption that this defendant is not guilty. Two or more persons may be jointly or severally indicted for the same offense; and the conviction of one no more tends to prove the innocence of the other, than would the acquittal of the one tend to prove the guilt of the other. There being no bill of exceptions in the record, we are unable to determine whether the proposed instruction was relevant, even if it be conceded to be sound as a legal proposition, in any conceivable state of the evidence.

The Court did not err in refusing to permit the defendant to file a plea setting up as a bar the prior conviction of Emerson. The Penal Code, Section 1,017, provides that “every plea must be oral.”

¿Tudgment affirmed.