PEOPLE v. LONG (1939)

The petition for a rehearing is denied.

On this petition the sole point urged is that one of the two instructions held to be erroneous and prejudicial was in fact an instruction offered in part by the appellant. The instruction in question is the one on reasonable doubt. The respondent relies on the well-settled rule that an appellant cannot complain of an erroneous instruction offered by himself. 8 Cal.Jur., p. 564, sec. 564. That is a salutary rule.

Aside from the fact that the attorney-general raises this point for the first time on rehearing, and that, under well-settled rules of appellate practice, points so raised will not be considered, there are at least two reasons why a rehearing should not be granted in the present case.

In the first place, while it is true that the first half of the instruction on reasonable doubt was offered by appellant, the second half of the instruction was given by the court of its own motion. The rule concerning invited error has no application where the trial court modifies the proffered instruction. In such case the instruction becomes the instruction of the court, and, if erroneous, is subject to the same criticism as if given without request. 8 Cal.Jur., p. 566, sec. 564, and cases cited. This last-stated rule has peculiar application to the present case. In modifying the proffered instruction by adding the second half thereto, the court accentuated the error contained in the first half. The second half directly contradicts the first half. By giving the second half of the instruction, of its own motion, the trial court obviously confused the jury and contradicted itself. In a case as close on the evidence as this one, the error was prejudicial.

In the second place, the giving of the erroneous instruction on reasonable doubt was not the only ground of reversal, as contended by the attorney-general. The opinion holds that the giving of the erroneous instruction on expert testimony was also prejudicial. The giving of this instruction would alone call for a reversal.

For the foregoing reasons it is obvious that the petition for a rehearing should be denied. It is so ordered.

PETERS, Presiding Judge.

We concur: WARD, J.; GOODELL, Justice pro tem.