PEOPLE v. KOENIG (1946)

Appellant Richter, Donald Koenig and Ralph Hagenios, were jointly charged with two offenses of robbery while armed with a revolver. Koenig was charged with two prior convictions of felony and admitted them. Hagenios pleaded guilty. Appellant and Koenig were tried by jury and found guilty as charged. They appealed from the judgment and from the orders denying their motions for new trial, but Koenig failed to perfect his appeal and it was dismissed.

On Sunday, May 21, 1944, shortly after midnight, Hagenios entered a cafe on Pico Boulevard near the city of Santa Monica and at the point of a gun robbed the proprietor and a man for whom the proprietor was cashing a check. The proprietor testified that the sum taken was $1915, including $64.13 taken from the customer, and that it consisted principally of $10 bills, the remainder being $1 and $5 bills. Upon leaving the cafe Hagenios fired a shot into the wall, entered a car which was parked at the curb about 25 feet from the cafe, and immediately left the scene. The manner of his departure indicated that another person was driving the car, although no witness testified to having seen one.

Appellant had been employed by the Veterans Administration at Sawtelle for more than eight years and when he left the employment May 4, 1944, he was chief cook. Hagenios had been employed at the same place prior to the robbery and had worked under appellant's supervision. Appellant was married and his wife was away on a vacation on May 5, when appellant and Hagenios went to San Francisco for about two weeks, returning to Los Angeles about May 19. Shortly before the San Francisco trip, Hagenios introduced appellant to Koenig. The latter had stolen a .38 revolver from his employers and had left it in the possession of Hagenios. When appellant and Hagenios returned from San Francisco they rented a room in a hotel at Ocean Park, where Hagenios registered for both of them under fictitious names, although it was not shown that appellant was aware of that fact. In the afternoon following the robbery Koenig went to the hotel room of Hagenios and appellant and when he left took with him the gun, which Hagenios had used in the robbery. About 10 o'clock that night Koenig was arrested while he was attempting to hide the gun in a box in an alley. The gun was then unloaded. About 9 a. m. on the following day five police officers went to the room of appellant and Hagenios and there found forty-nine .38 certridges. At that time Hagenios had $233 in bills and appellant had $276. One of the arresting officers, Subers, testified that when he found the cartridges, Hagenios said they were his; that appellant denied any knowledge of the crime and told him that the money in his possession had been acquired through the sale of his automobile for $235, a loan of $100, and winnings ‘on the horses' to the extent of $90, through betting while in San Francisco. This witness then testified that he had had a conversation in the West Los Angeles jail, at which police officer Ward was present a part of the time and officer King a part of the time and during all of the last part of the conversation. The testimony of this witness will be stated somewhat fully, as will that of officer King, in order that the two accounts of alleged admissions of appellant amounting to a confession may be compared. Officer Ward was not called as a witness. Subers testified that he told Hangenios and appellant he had a good case against them and asked them if they wanted to plead guilty; that he told them he expected them ‘to cooperate’ with him, and ‘get back the rest of the money’ that was missing, and that they ‘both spoke up’ and said, ‘that was all the money they got with the exception of a few dollars they might have spent’; that Hagenios denied getting ‘any more money from there, and the defendant Richter stated that was all they had gotten’; that the amount they named was $750 to $780; that appellant said it was ‘$780 to be exact’; that appellant said he had given ‘Koenig $120 as his share,’ and Hagenios said he had given Koenig $100 as ‘his share’; that appellant said ‘they [he and Hagenios] picked’ the automobile up on the night of the robbery ‘at a drive-in place at Wilshire and Santa Monica Boulevard’; that appellant said he drove the automobile and abandoned it, after the robbery, one block east of the St. John's Hospital in Santa Monica; that the witness asked appellant if the automobile was a LaSalle coupe and appellant stated he did not know what kind of automobile it was; and that they (the officers) did not ask appellant to make a written statement. He testified further that after this conversation, during which officer King was present, he and King brought Koenig from his cell to the cell occupied by appellant and Hagenios where a further conversation was had; that appellant, Hagenios, Koenig, King and the witness were present during said conversation; that the witness said, ‘Koenig, are you sure you got $220, you said it was just a loan,’ and that appellant ‘spoke up and said, ‘I gave you [referring to Koenig] $120 and it wasn't a loan.’ The defendant Hagenios then spoke and he says ‘and I gave you $100 and don't try to lie out of it’'; and that Koenig then said he had furnished the gun and received $220 as his share. He testified that the receipt of money by Koenig was the only matter mentioned in this conversation.

Police officer King testified that he did not recall the first conversation to which Subers had testified but that he had participated in a conversation on May 23rd, at which time appellant, Hagenios and Koenig were present, this being the second conversation testified to by Subers; King testified that he did not make notes, but officers Subers did; that he (King) left before the ‘conference was over,’ but he was there most of the time—5 or 10 minutes; that he did not remember that officer Ward was present; that he and Subers took Koenig from his cell to the one occupied by appellant and Hagenios; that they took Koenig inside the cell, and told the three defendants they ‘wanted to find out more of the details'; that he questioned Richter, and Subers asked Koenig a few questions; that the witness did not remember anything in particular that Koenig said; that he (the witness) asked Koenig to tell about the robbery, and Hagenios ‘spoke up’ and said appellant drove the car, and all three of them were involved; that appellant denied knowing anything about the robbery; that Hagenios called appellant a ‘fink’ and said, “You are into this as well as we are, and we are not going to take the rap for this alone,” and that appellant said he drove the car; that appellant then told him ‘they’ stole the automobile at a drivein stand on Santa Monica Boulevard in Santa Monica; that he said it was a green convertible coupe, and that it was abandoned in Santa Monica about a block east of St. John's Hospital; that appellant said he knew when he drove the automobile it was ‘for the purpose of robbery, that the three of them had planned it, that he knew that the money which he had received was the proceeds from the robbery’; that he did not recall any conversation about appellant having given Koenig money; that he and Subers were the only ones who asked any questions; that he did not question Hagenios ‘particularly,’ and he did not recall that Subers questioned him; that during this conversation the door to the cell was left open, the three defendants were standing, and the witness stepped into the cell; that before Koenig was taken away the witness left to telephone the Santa Monica police and ‘have them go over and find the car.’

Police officer Barham testified that on May 23rd, he and his partner found a 1937 LaSalle green convertible one block east of St. John's Hospital.

Koenig testified that he had stolen the gun and had left it with Hagenios, whom he had known about 9 years; that on May 21st he went to the hotel room occupied by appellant and Hagenios; that while appellant was absent from the room Hagenios told Koenig about the robbery and he took the gun; that before telling him of the robbery, Hagenios paid him $200 which had been owing to him about two months. He denied having participated in the robbery or receiving any money with knowledge that it had been stolen. He testified that he had met appellant but once before the date of the robbery, and, although admitting that he had signed a confession, denied that he had read it or that he had made any statement to the officers which implicated appellant in the robbery.

Appellant testified that he left the Veterans Administration on May 4, 1944, but he was on the pay-roll until May 15th; that he had known Hagenios about 4 months before they went to San Francisco together; that he (appellant) had approximately $500, consisting of the $235 received from the sale of his automobile, the $100 loan, a pay check for $89.54, $75 savings, and the amount he received when he cashed a $50 bond; that he did not register at the hotel; that on the night of the robbery he was not with Hagenios or Koenig between the hours of 8:30 and midnight; that the first he knew of the robbery was after he had been arrested and was at the police station; that he explained to the police his possession of about $275; that the first time he saw officer King was when King testified; that he did not tell the officers at any time that he had had any part in the robbery; that he did not say that he drove or abandoned the automobile; and that Subers asked him if he drove the LaSelle, and he said ‘No.’

The commissary officer, the steward of the Veterans Administration, and the automobile dealer who purchased appellant's automobile testified to appellant's good reputation. No attempt was made by the prosecution to prove that appellant had not received the sums he mentioned from the sale of his car and the other named sources.

In arguing the insufficiency of the evidence, appellant insists that while the circumstantial evidence placed him under suspicion, it did not necessarily point to his guilt. We are of the opinion that the circumstantial evidence alone was not of sufficient strength to have supported a verdict of guilty. But it did not stand alone; the testimony of the officers as to defendant's confessions, if believed, together with the circumstantial evidence, would have furnished support for the verdict. Appellant earnestly insists that the officers' testimony should have been rejected by the jury for the reason that it was so contradictory and inconsistent as to be of no value as evidence, and that for the same reasons it should be disregarded upon appeal in a consideration of the sufficiency of the evidence. It could have been argued to the jury with much force that the testimony should be accorded no weight whatever. A comparison of the accounts of the claimed interviews given by the two officers reveals surprising discrepancies and inconsistencies. Officer Subers testified to an interview with appellant and Hagenios, at which officer King was present, but not Koenig, and in which statements were made by appellant that he participated in the theft of the car, drove it, and received a portion of the stolen money. He testified to a later conversation with appellant, Hagenios and Koenig, when King also was present, in which, as he testified, nothing was mentioned except the fact that Koenig had received part of the money. Officer King had no recollection of the first conversation testified to by Subers when appellant and Hagenios alone were interviewed. In giving an account of an interview with the three defendants, to which Subers had testified, King did not recall that anything was said about the receipt of money by Koenig which, according to Subers, was the only matter mentioned. And officer King recounted a lengthy and detailed interview with the three defendants, participated in by Subers, which was wholly at variance with the testimony of the latter. While both officers testified that at one time or another appellant admitted full participation in the robbery, a careful comparison of their testimony as to the interviews in which the admissions were claimed to have been made fails to disclose other points of agreement. It would appear that the recollection of one or the other or of both as to the circumstances and the substance of the interviews was seriously defective. Having quoted the substance of their testimony, we shall not mention other points of dissimilarity. We think the testimony of the officers was lacking in that degree of accuracy and fidelity, without which testimony of oral confessions of guilt must necessarily be regarded as unconvincing and unsatisfactory.

It does not follow, however, as a matter of law that the testimony was wholly without evidentiary value. The jury might have rejected it or might have resolved the conflicts by accepting the testimony of one of the officers and rejecting that of the other. The evidence was not legally insufficient, when considered with the circumstantial evidence, to justify the verdict but it clearly was not of such convincing character as to require an affirmance of the judgment, in view of the failure of the court to give instructions which we shall now consider.

Appellant requested an instruction reading as follows:

‘In order that a jury may be warranted in finding a defendant guilty on circumstantial evidence, all the facts and circumstances necessary to establish the conclusion of guilt must be proved beyond all reasonable doubt, all such facts and circumstances must be consistent with each other and with the conclusion sought to be established which is that the person on trial committed the crime as charged. All such facts and circumstances must be inconsistent with any reasonable theory of the innocence of the defendant William Richter and such facts and circumstances taken all together must be of such conclusive and satisfactory nature as to produce in the minds of the jurors a reasonable and moral certainty that the person on trial, William Richter and not some other person committed the offense charged.’

The court instructed as follows:

‘If the evidence in this case, as to any particular count, is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilty of a defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of such defendant's innocence, and reject that which points to his guilt.’

The instruction as requested was not in proper form. The rule relating to the consideration of circumstantial evidence is simple. It is that a conviction may not be based upon circumstantial evidence alone unless each circumstance in the chain of circumstances relied upon to establish guilt is not only consistent with the guilt of the accused but also inconsistent with his innocence. It should be stated as a distinct proposition of law and not in combination with a statement of the doctrine of reasonable doubt. The latter doctrine has application to the manner in which the jury should determine what circumstances have been established by the evidence. The circumstantial evidence rule has application to an analysis and comparison of the circumstances that have been established. The second quoted instruction was not an adequate substitute for the one which was refused. People v. Bender, 1945, 27 Cal.2d 164, 163 P.2d 8; People v. Hatchett, 1944, 63 Cal.App.2d 144, 146 P.2d 469; People v. Rayol, 1944, 65 Cal.App.2d 462, 150 P.2d 812. A repetition of what was said on the point in those cases is unnecessary. See also, statement of Supreme Court in denying hearing in People v. Graves, 1934, 137 Cal.App. 1, 21, 29 P.2d 807, 30 P.2d 508. In the Hatchett and Rayol cases refusal to give requested instructions similar to the one requested by appellant herein was held reversible error. In the Bender case, although the circumstantial evidence of guilt was deemed to be so convincing as to preclude a reversal of the judgment, it was held to be the duty of the court to give such an instruction of its own motion.

The People, in defending the refusal of the requested instruction, say: ‘In the case at bar, appellant Richter's participation in the crime was not established solely by circumstantial evidence. We have in the record alleged admissions made by him that he drove the automobile used by one of his confederates in the commission of the crime, that they had stolen this automobile and had abandoned it after the robbery on a street in Santa Monica, and that he had given defendant Koenig part of the spoils received in the robbery. Therefore, the situation here is not at all comparable to that stated in either People v. Rayol, supra, or People v. Hatchett, supra.’

Appellant replies that the testimony of the police officers as to appellant's admissions was circumstantial and not direct evidence, and hence the entire case against him was based upon circumstantial evidence, citing from the Code of Civil Procedure:

‘Sec. 1831. Direct evidence is that which proves the fact in dispute, directly, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. For example: if the fact in dispute be an agreement, the evidence of a witness who was present and witnessed the making of it, is direct.

‘Sec. 1832. Indirect evidence is that which tends to establish the fact in dispute by proving another, and which, though true, does not of itself conclusively establish that fact, but which affords an inference or presumption of its existence. For example: a witness proves an admission of the party to the fact in dispute. This proves a fact, from which the fact in dispute is inferred.’

The contention that the prosecution was based upon circumstantial evidence, alone, is not borne out. The testimony given by the officers was direct evidence only insofar as it tended to prove that defendant made the admissions, but if their testimony had been believed it would have been sufficient to prove that appellant himself gave direct evidence of the facts which he admitted. Although his evidence would not have been given under oath, evidence that he had made admissions was properly received under section 1870 of the Code of Civil Procedure, and his statements, as testified to, would have constituted direct evidence that he committed the crime. One who commits a crime is, of course, an eye-witness, and if he gives evidence of the fact that he committed the crime, either by sworn testimony or proved admissions, it is direct evidence of the ultimate fact in dispute, just as the testimony of any other eyewitness would be, for the reason that if the things testified to, or admitted, be true, they conclusively establish the fact that he committed the crime. If, however, the matters testified to, or admitted by the defendant, though truly stated, would not conclusively establish the commission of the crime by him, although supporting an inference that he committed it, such evidence would be purely circumstantial. The distinction between direct and indirect evidence stated in the code provisions places evidence of a confession in one class and admissions of accusatory circumstances in the other. If a full confession of guilt is received in evidence, it is direct evidence of the fact in issue, whether it be written or oral. Evidence of a full confession made orally, is not less direct evidence than a written confession would be. To distinguish between the two in this connection, as some courts have done, is to confuse the weight of the evidence with the nature of it. The testimony of the officers to which we have referred, if believed, was sufficient to prove an admission by defendant that he aided and abetted in the commission of the crime. Therefore there was direct evidence that he committed the crime and the case of the People did not rest wholly upon circumstantial evidence.

But the right of a defendant to have the jury instructed in the law of circumstantial evidence is not confined to cases where the evidence relied upon by the prosecution is completely and exclusively circumstantial.

The cases which have considered the necessity for instructions on circumstantial evidence are subject to classification as (1) those where the evidence is merely circumstantial, (2) those in which the prosecution depends upon direct evidence, the circumstantial evidence, if any, being merely incidental to and corroborative of the direct evidence and (3) cases in which the prosecution is founded ‘mainly’ or ‘chiefly,’ although not entirely, upon circumstantial evidence. If the evidence is entirely circumstantial the instruction in question must be given. People v. Dick, 1867, 32 Cal. 213; People v. McClain, 1931, 115 Cal.App. 505, 1 P.2d 1085. If the case of the People is based upon direct evidence, and the circumstantial evidence is merely incidental and corroborative, it is not error to refuse the instruction (People v. Ortiz, 1923, 63 Cal.App. 662, 21. P. 1024; People v. Lapara, 1919, 181 Cal. 66, 183 P. 545; People v. Williams, 1933, 134 Cal.App. 232, 25 P.2d 259; People v. Raber, 1914, 168 Cal. 316, 143 P. 317; People v. Burns, 1898, 121 Cal. 529, 53 P. 1096; People v. Baldwin, 1897, 117 Cal. 244, 49 P. 186), and so it has frequently been said that it need not be given if the People do not rely mainly or chiefly upon circumstantial evidence. People v. Gorman, 1916, 31 Cal.App. 762, 161 P. 757; People v. Allen, 1934, 138 Cal.App. 652, 33 P.2d 77. In People v. Miller, 1932, 126 Cal.App. 162, 165, 14 P.2d 342, it was stated that the jury need not be instructed in the law of circumstantial evidence unless the prosecution is rested ‘wholly and solely’ upon circumstantial evidence. This erroneous concept of the rule is the one advocated by the People upon the present appeal, and has been followed at times in the trial courts. The words ‘mainly’ and ‘chiefly’ found in the decisions are somewhat indefinite. A clear and definite statement is found in People v. Bender, supra [163 P.2d 15], to the effect that the instruction should be given ‘where circumstantial evidence is substantially relied upon for proof of guilt.’ (Emphasis added.) Stated in another way, in order to point out its application in appellant's case, the instruction should be given in every case in which the jurors may find themselves confronted with the question whether the circumstantial evidence alone is sufficient to prove guilt or sufficient to prove an essential element of the offense. Where there is some direct evidence of guilt, but it is of such a character that the jury may conceivably reject it, the instruction should be given upon the hypothesis that it may be rejected, leaving the case of the People wholly dependent upon circumstantial evidence. People v. Hatchett, supra, was such a case. People v. Rayol, supra, was a case in which it was necessary to prove an essential element of the offense by circumstantial evidence. See also People v. DeVoe, 1932, 123 Cal.App. 233, 239, 11 P.2d 26. The present case is one in which the jury might reasonably have disbelieved the testimony of the officers as to appellant's claimed confessions. If the jury had believed appellant's testimony that he had made no admission of guilt, only the circumstantial evidence would have remained for consideration. The court could not kow and could not properly assume that the officers would be believed. In any case where it is questionable whether the instruction should be given, the doubt should be resolved in favor of the accused and the instruction should be given.

Since the prosecution relied substantially upon the evidence of appellant's alleged oral confessions, it was necessary that the jury be instructed, as required by section 2061 of the Code of Civil Procedure, subdivision 4, that evidence of the oral admissions of a party ought to be viewed with caution. In Conger v. White, 1945, Cal.App., 158 P.2d 415, we had occasion to consider the refusal of requested instructions that the testimony of an accomplice ought to be viewed with distrust and the evidence of the oral admissions of a party with caution. Upon authority of the holding in People v. Dail, 1943, 22 Cal.2d 642, 140 P.2d 828, that such instructions should be given in all proper cases, and that the failure to give them might constitute reversible error, we held that in view of the evidence it was prejudicial error to refuse the requested instructions. In the instant case appellant did not request an instruction that testimony of his oral admissions ought to be viewed with caution. Nevertheless, it is our opinion that it was the duty of the court to give the instruction of its own motion. The code declares that the instruction should be given on all proper occasions; the legislature has, in effect, declared that there are proper occasions, and the case of appellant is certainly one of them.

The court must of its own motion instruct the jury in criminal cases, where the rules of law apply, with respect to accomplices and their testimony (People v. Warren, 1940, 16 Cal.2d 103, 104 P.2d 1024; People v. Heddens, 1936, 12 Cal.App.2d 245, 55 P.2d 230), and as to the circumstantial evidence rule hereinbefore discussed (People v. Bender, 1945, 27 Cal.2d 164, 163 P.2d 8); also, as to vital principles applicable to numerous other situations. People v. Putnam, 1942, 20 Cal.2d 885, 890, 129 P.2d 367. It is not debtable whether there is as much need to instruct that the testimony of police officers as to oral admissions or confessions ought to be viewed with caution as to instruct that the testimony of accomplices should be viewed with distrust. The code establishes the law and the courts make no mistake when they follow it. There could scarcely be a more appropriate case for the instruction than one in which there is a close question whether a person accused of crime made oral admissions or a confession to police offcers while in custody. If the jurors had viewed the testimony of the police officers with caution, and had scrutinized and weighed it critically, as the law requires should be done, they would have found tenable grounds for rejecting it, and it is not improbable that they would have rejected it if they had been properly instructed as to their duties in weighing it. By reason of the refusal of the first mentioned instruction, the jury were unadvised as to the manner in which the circumstantial evidence should be weighed. Also, the failure to give an instruction applicable to the testimony of the alleged oral confessions left them unguided as to the rule pertaining to the consideration of evidence of oral admissions, which was the only direct evidence in the case. Whether the verdict was based upon the direct or the circumstantial evidence, or upon both, it represents a decision as to the weight of the evidence in which controlling principles of law were not stated to the jury and were given no consideration. The proof of guilt was not so strong as to permit an affirmance of the judgment notwithstanding the mentioned errors.

It is unnecessary to discuss other alleged errors urged by appellant.

The judgment and the order denying appellant Richter's motion for new trial are reversed.

I dissent. According to the majority opinion, the judgment of conviction is being reversed principally because the trial judge refused to give a certain instruction proposed by defendant, relative to circumstantial evidence. I agree with the statement in the majority opinion that the refused instruction ‘was not in proper form.’ In addition to that criticism, that it was not in proper form because it mixed the rule relating to the consideration of circumstantial evidence with a statement as to reasonable doubt, that instruction was misleading and confusing. The trial judge exercised good judgment in refusing to give it. The refused instruction included the statement that: ‘In order that a jury may be warranted in finding a defendant guilty on circumstantial evidence * * * all such facts and circumstances must be consistent with each other * * *.’ In view of the evidence as to obvious inconsistent statements by the officers, concerning such incidental matters as who were present at conversations and where those who were present stood during the conversations, the refused instruction was tantamount to an instruction directing a verdict in favor of defendant.

The presentation of such a misleading instruction, which it was likely that a trial judge would not give but which in confusing language referred to a principle of law that might properly be given, afforded the appellant a convenient reservation for an argument on appeal, such as his counsel now makes, to the effect that the trial judge committed reversible error because he did not modify the proposed instruction so that it would state fairly in clear language a principle of law referred to therein. Although it is the duty of a court in criminal cases to give, of its own motion, instructions on the general principles of law pertinent to such cases, where they are not requested by the parties, the court was not required to revise an instruction so calculatingly designed. As to whether, under the record here, the trial judge upon his own motion should have prepared and given an instruction to the effect that the evidence should be consistent with guilt and inconsistent with innocence, reference will be made later herein after referring to some of the evidence. The majority opinion, after declaring that the refused instruction was not in proper form, states (at a later place therein) that ‘By reason of the refusal of’ that instruction ‘the jury were unadvised as to the manner in which the circumstantial evidence should be weighed.’

Counsel for appellant in her briefs on appeal and in her petition for a rehearing argues that the trial judge erred prejudicially in refusing the instruction because the evidence was wholly circumstantial—that the evidence as to admissions was circumstantial evidence, and that the evidence being wholly circumstantial the trial judge was required to give the instruction. Counsel for appellant errs in asserting that the evidence was wholly circumstantial. Such evidence as to appellant's admissions of guilt was direct evidence. See Note, 40 A.L.R. 571. The majority opinion does state that ‘the case of the People did not rest wholly upon circumstantial evidence.’ It also states that: ‘The testimony given by the officers was direct evidence only insofar as it tended to prove that defendant made the admissions, but if their testimony had been believed it whould have been sufficient to prove that appellant himself gave direct evidence of the facts which he admitted.’ The character of evidence, as to whether it is direct, is to be determined from the nature of the evidence, and it is not dependent upon whether the evidence is believed by the jury. The trial judge, in determining what instructions to give to the jury, is in a position to consider only the nature of the evidence.

Officer Subers testified that appellant said ‘they’ stole the automobile, that he drove it in taking Hagenios away from the scene of the robbery, that he abandoned it after the robbery at a certain place, that he had given Koenig $120 as his share of the robbery money, that the money which the officers had recovered from the three defendants ($729) ‘was all the money they got with the exception of a few dollars,’ and that the amount was ‘$780 to be exact.’

Officer King, who was present during part of the time the conversations with appellant were held, testified that appellant said that ‘they’ stole the automobile, that he drove it from the scene of the robbery, that he abandoned it after the robbery at a certain place, and that he knew that the money he received was from the robbery. He also testified that he did not recall any conversation about appellant having given money to Koenig.

It is true that the testimony of those officers, concerning incidental matters as to who were present when the conversations were had and where those who were present stood during the conversations, was inconsistent. As to the important and material part of the conversations, namely, that appellant admitted participation in the robbery, the testimony of the officers was consistent and certain. That direct evidence as to appellant's connection with the actual commission of the robbery was strong.

In addition thereto the evidence showed that appellant and Hagenios, who actually committed the robbery by displaying and firing a revolver, had spent two weeks together in San Francisco just prior to the robbery. At the time of the robbery appellant, who apparently had a home in Los Angeles, and Hagenios, the robber, were rooming together in a hotel under fictitious names—the names having been signed by one of them while both were present. When the officers entered their hotel room appellant was there with the actual robber. In the room there were forty-nine .38 caliber cartridges and a cartridge box which originally held fifty such cartridges. When Hagenios left the cafe, after committing the robbery, and entered the waiting automobile it was driven away immediately. The automobile was found by officers in the place where appellant said he had abandoned it. Koenig had stolen the gun that was used in the robbery, and had been in the room of appellant and Hagenios with them within a few hours prior to the time Koenig was arrested while trying to hide the gun in an alley. The total amount of money taken by the officers from the three defendants was $729—being $276 from appellant, $233 from Hagenios, and $220 from Koenig. It appeared therefore that each had approximately one-third of $729. The victim of the robbery had been cashing wage checks for ten years, and appellant had lived next door to him for six months about two years prior to the robbery. (A detailed statement of the evidence in this case is in the opinion appearing in 160 P.2d 184.) It appears therefore that there was substantial evidence of circumstances involving appellant with the robbery.

As above shown, however, the evidence was not wholly circumstantial, but included direct evidence, consisting of admissions of appellant that he actually participated in committing the robbery.

In the recent case of People v. Bender, Cal., 163 P.2d 8, cited in the majority opinion, the evidence which tended to show that defendant killed his wife was entirely circumstantial. The trial court therein instructed the jury that ‘If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant's innocence, and reject that which points to his guilt.’ The Supreme Court held (163 P.2d at page 16) that that instruction was eminently proper as far as it went, but to it should have been added a statement to the effect that to justify a conviction the circumstances must not only be consistent with the theory of guilt but must be inconsistent with any other rational conclusion. The court held further (163 P.2d at page 16) that since the above quoted instruction was given, the failure to give the further instruction was not, upon the facts of that record, ground for reversal.

The trial court herein gave an instruction which was practically the same as the one given in the Bender case. The one given herein was as follows: ‘If the evidence in this case, as to any particular count, is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilty of a defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of such defendant's innocence, and reject that which points to his guilt.’ Even if the additional statement, referred to in the Bender case, should have been required herein, the failure to give it was not, upon this record, which included strong direct evidence, ground for reversal.

The majority opinion discusses at some length the weight of the evidence as to the admissions of guilt. In that opinion it is stated that if the jury had weighed the evidence critically ‘they would have found tenable grounds for rejecting it.’ The fact that the testimony of the officers was inconsistent as to details incidental to the conversations has been assigned as a reason why the jury might have rejected it. On the contrary, if their testimony had been consistent as to all those details that fact might have been assigned, with more force, as a reason why their testimony should be rejected. The jury and the trial judge, having observed the witnesses while testifying, were in the best position to determine the weight of the evidence. After the verdict that appellant was guilty, the trial judge approved the verdict upon his denial of the motion for a new trial and thereby determined that there was no miscarriage of justice. It was stated in People v. Lindley, Cal., 161 P.2d 227, at page 233: ‘The weight to be accorded the statement of each of the witnesses was a question exclusively for the determination of the jury and the verdict, which received judicial approval upon denial of the motion for a new trial may not, therefore, be disturbed upon appeal.’ See People v. Holman, Cal.App., 164 P.2d 297.

The trial judge, having had the advantage of being present when the witnesses testified, was in a better position than this reviewing court is in to determine whether a statement, to the effect that the evidence should be consistent with guilt and inconsistent with innocence, should have been added to the instruction which was given. The instruction, above quoted, which the trial judge gave was clear, direct and highly favorable to the defendant, stating in effect that if there were two reasonable interpretations of the evidence, one pointing to guilt and the other to innocence, it was the duty of the jury to find the defendant not guilty. The statement, relative to evidence being consistent with guilt and inconsistent with innocence, which might have been added to that instruction was not, of course, as clear and as ordinarily understandable as the instruction which was given, and in my opinion it would have been of little consequence, if any, under the evidence in this case, if it had been given. The rule as stated in People v. Bender, Cal., 163 P.2d 8, at page 15, that said statement ‘should be declared to the jury in every criminal case wherein circumstantial evidence is received,’ is a good rule. The fact, however, that a trial court fails to declare such statement does not signify that a judgment of conviction should be reversed. In the case of People v. Bender, cited in the majority opinion, the trial court had not included such statement in the instruction and the Supreme Court held that, upon the record therein, such failure was not ground for reversal, even though the evidence was wholly circumstantial. In the present case the evidence was not wholly circumstantial but, as above shown, included direct evidence consisting of several admissions of guilt. As stated in People v. Newland, 15 Cal.2d 678, at page 682, 104 P.2d 778, at page 780, in referring to the rule relative to the evidence being consistent with guilt and inconsistent with innocence: “The rule above announced does no more than to instruct the jury that, if a reasonable doubt is created in their minds for any reason, they must acquit the defendant.” See People v. Holman, Cal.App., 164 P.2d 297. The jury was instructed fully as to reasonable doubt and was given the specific instruction, above quoted, relative to adopting an interpretation of the evidence pointing to innocence. In the Hatchett and Rayol cases, referred to in the majority opinion, there were no admissions of guilt.

The trial judge ably performed his duty to assure the defendant a fair trial. As above stated, the trial judge exercised good judgment in rejecting the misleading and confusing instruction, designed to reserve the very question now engaging the attention of the court. It would have been aneasy matter for appellant's counsel to propose an instruction stating in simple, clear language the rule of law which she asserts should have been given. The failure of the trial court to give, of its own motion, such an additional instruction is not, under the evidence and the record, ground for reversal. It cannot be said that a miscarriage of justice has resulted. The weight to be accorded the testimony was exclusively for the determination of the jury, and of the trial judge upon the motion for a new trial. The People should not be required, under the record here, to retry this case.

According to the majority opinion, the trial court of its own motion should have instructed the jury to view the testimony of the officers with caution. Upon the record here the failure to give such an instruction likewise was not a ground for reversal.

In my opinion the judgment and order denying the motion for a new trial should be affirmed.

SHINN, Justice.

DESMOND, P. J., concurs.