
    [Crim. No. 1192.
    In Bank.
    April 5, 1905.]
    THE PEOPLE, Respondent, v. JOSEPH MURPHY, Appellant.
    Criminal Law—Murder—Conspiracy of Escaped Convicts—Bias of Jurors—Opinion Based on Public Rumor.—Upon the trial of a charge of murder against-one of several convicts who escaped from the state prison, where the homicide was committed by another convict in taking the life of one of the guards, and the conviction of the defendant must rest upon an unlawful conspiracy of the convicts, in which the defendant was engaged, to escape from the state prison, in the attempt to carry out which the murder was committed, jurors who testified that they had an opinion that there must have been a conspiracy to escape, and that the killing .was done in pursuance of it, which opinion was based on common rumor and published statements, but did not include an opinion as to defendant’s guilt or participation in the conspiracy, and that they could act fairly and -impartially in the case, are not disqualified by reason of such opinion.
    Id._Distrust of Testimony of Convict—-Juror not Disqualified.— The statement of a. juror that he would take the testimony of a convict with distrust, that he did not believe that convicts are as apt to tell the truth as free men, but that he had no prejudice toward a convict, and would believe some of them under oath, and would judge of the value of a convict’s testimony by his manner of giving his evidence and the surrounding circumstances, and would weigh it as he would that of a free man, would not disqualify the juror.
    Id.—Evidence—Res Gestíe—Possession of Dynamite by Conspirators —Question for Jury.—Evidence was admissible to prove as part of the res gestes that while the conspiracy of the escaping convicts was in progress one of them had dynamite in his possession. The question whether there was a conspiracy, and whether the person having the dynamite was one of the conspirators, was for the jury, under the evidence and instructions of the court.
    Id.—Inadmissible Evidence—Conduct of Defendant in Prison.— Evidence was properly excluded to show what the conduct of the defendant was while he was in prison, prior to the attempted escape.
    Id.—Improper Cross-Examination.—A question asked by defendant’s counsel on cross-examination of' a witness, whether, if he- was a “stool-pigeon,” he would be in the good graces of the officers, was properly rejected as irrelevant and calling for the conclusion or opinion of the witness.
    Id.—Impeachment of Verdict—Affidavits as to Declarations of Jurors.—The court did not err in refusing to consider affidavits as to the declarations of jurors to defeat the verdict in a case where their own affidavits are not permissible by statute for that purpose.
    Id.—Instructions—Reasonable Doubt.—Where the court has elsewhere clearly and fully instructed the jury upon the question of reasonable doubt, and the degree of evidence necessary to a conviction, they could not be misled by an instruction that it was their duty to convict, if the testimony is sufficient to convince them “as reasonable men beyond a reasonable doubt, that the defendant did commit the act charged, although the fact may be surrounded in a degree by a doubt.” The doubt last referred to is not a reasonable doubt.
    APPEAL from a judgment of the Superior Court of Sacramento County and from an order denying a new trial. E. C. Hart, Judge.
    The facts are stated in the opinion.
    Charles B. Harris, and John D. Moynahan, for Appellant.
    U. S. Wehh, Attorney-General, and J. C. Daly, Deputy Attorney-General, for Respondent.
   COOPER, C.

Defendant was convicted of murder, and prosecutes this appeal from the judgment and order denying his motion for a new trial.

He was one of several convicts who escaped from the state prison at Folsom on the morning of July 27, 1903. Most of the convicts engaged in the escape were armed, either with knives, razors, or dynamite. In the very beginning of the outbreak, and during the first attack or rush into the captain’s office, Cotter, one of the guards, was stabbed by one Andy Myers, a fellow-convict, and died from the wounds so received.

Defendant was convicted upon the theory that he was engaged in a conspiracy to unlawfully escape from the prison, and that the life of Cotter was taken by a fellow-conspirator while all were engaged in the unlawful attempt to consummate and carry out such conspiracy. It is not claimed that the evidence was insufficient to justify the verdict, but certain errors are claimed in denying challenges to jurors, in sustaining or overruling objections to evidence, and in giving or refusing instructions. We will discuss those deemed most plausible.

1. The claim is made that the court erred in denying defendants-challenges to the jurors Herzog and Kimball, made upon the ground of the existence of a state of mind on the part of the said jurors in reference to the case which would prevent them from acting with entire impartiality and without prejudice to the substantial rights of the defendant. The jurors each testified in his examination to the effect that he had an opinion that there must have been an agreement or conspiracy in regard to the escape; that the killing was done while carrying out such conspiracy, and that it would take evidence to remove such opinion. It appeared from their examination that the opinions of ¡the jurors were founded upon common rumor and statements in the public journals^ They" had no opinion as to the guilt or innocence of the defendant, nor as to whether or not he was engaged in the conspiracy. Each testified that he could and; would, notwithstanding such opinion, act impartially and fairly in the ease.. Such opinions did not disqualify the jurors. Any man of sufficient intelligence to be a juror would, after reading in the newspapers of the break and escape, be of the opinion that there was some agreement or concert of action among the convicts engaged in the escape. This would no nfore disqualify a juror .than the belief or opinion that Cotter had been killed by some one, or that there was such a state prison as Folsom. The juror Kimball testified that he would take the testimony of a convict with distrust; that he did not believe that convicts are as apt to tell the truth as free men.. He said that he had no feeling of prejudice toward a convict, that he would believe some of them under oath, that he would judge of the value of the testimony of such convict by his manner of giving his evidence and the surrounding circumstances, and would weigh it as he would that of a free man. This would not disqualify the juror. The fact .that the circumstances and surroundings of a witness would to a greater or less degree affect his credibility is well known to every man of .sufficient intelligence to act as a juror. The. code provides that a witness.may be impeached by showing that he has been convicted of a felony. If the fact that a witness has been convicted of a felony would not tend to cause his testimony to be distrusted, then the provision of the code as to impeaching a witness by the record of such conviction would be to no purpose. The court should be careful to see that all of a defendant’s rights are protected, and that he should not be tried by a juror who is biased or prejudiced against him, or who has a positive opinion as to his guilt based upon the statement of eye-witnesses or facts within the knowledge of the juror; but a general opinion upon some abstract proposition, in accordance with reason and experience, is not sufficient ground to justify the court in excusing a juror.

2. The next claim is that it was error for the court to allow the witness Klenzendorf to testify that after the convicts came out of the captain’s office, and after Cotter had received the wound, that one Roberts joined the procession of convicts, and that Roberts had dynamite in his possession.

We think the evidence was properly admitted as a part of the res gestee. The break at the captain’s office, the stabbing of Cotter, the movement through the back gate and on to the armory occupied only a few seconds. It was a desperate and daring attempt, and all the acts done on the prison grounds were done very quickly. The conspiracy had not been ended and completed. It was then and there being actively executed by defendant and his fellow-convicts. During the existence of the conspiracy, and while it was being executed, the acts and declarations of each conspirator were admissible as evidence against his co-conspirator. Of course, the questions as to whether or not there was a conspiracy, and whether or not Roberts was one of the conspirators, was for the jury, under the evidence and instructions of the court.

3. It was not error for the, court to sustain the objection of the district attorney to the question asked of the witness Klenzendorf as to whether defendant was a good prisoner and what his conduct had been in the prison. Defendant could not, as a matter of defense, call to his assistance the fact that he had been good; at certain times or while in prison. Many convicts have been good while in prison who were very bad out of prison. In all cases where a defendant is allowed to prove his character for peace and quiet, it must be done by proving general reputation in the community or communities where he has lived.

4. It was not error to sustain the objection to the question asked by defendant’s attorney of the witness Harris in cross-examination, “Well, if you were a ‘stool-pigeon,’ you would be in the very good graces of the officers, would you not?”

It asked for the conclusion of the witness predicated upon the fact that he was a “stool-pigeon.” It had not been proven that the witness was a “stool-pigeon,” and if it had been, the question was wholly irrelevant, and called for the opinion of the witness as to the effect of being a “stool-pigeon.” It would serve no useful purpose to discuss the various other rulings as to questions and answers of witnesses. They nearly all relate to conversations, acts, and declarations made by the convicts engaged in the escape, and the court confined the testimony to what was said and done on the prison grounds and while the escape was being carried out.

5. The court did not err in refusing to consider the affidavits offered as to declarations made after the verdict by certain jurors. It has long been the rule in this state that a juror cannot be allowed by his own testimony or declarations to impeach and defeat his verdict, except in a case authorized by statute. (People v. Baker, 1 Cal. 404; People v. Gray, 61 Cal. 183; People v. Holmes, 118 Cal. 448.) If he cannot do so directly, he cannot do so indirectly by declarations to others, who in turn make affidavit as to such declarations. (Siemsen v. Oakland etc. Elec. Ry., 134 Cal. 494; People v. Dobbins, 138 Cal. 698.)

6. It is earnestly urged that the court erred in giving the following portion of instruction sixteen offered by the prosecution : “If, under the foregoing rules, the testimony in this case is sufficient to convince you, as reasonable men, beyond a reasonable doubt, that the defendant did commit the act charged, although the fact may be surrounded, in a degree, by a doubt, then I charge you that it is your duty to convict.”

The instruction is not very clear, but we do not think it could have misled the jury. The doubt referred to in the latter part of the instruction was not a reasonable doubt. The court in other parts of its charge fully instructed the jury as to the doctrine of reasonable doubt in the language of Chief. Justice Shaw in the Webster case.

The court elsewhere instructed the jury: “If, therefore, any one or any number of you, after deliberating upon all the evidence in this case, shall be of the opinion that the defendant has not been proven to be guilty by the evidence in this case to a moral certainty and beyond every reasonable doubt, those entertaining that opinion should vote in favor of a verdict of not guilty, and should so adhere to their opinion until convinced beyond all reasonable doubt that they are wrong.” And again: “You are instructed that mere probabilities are not sufficient to warrant a conviction, nor is it sufficient that the greater weight or preponderance of the evidence supports the allegations of the information, nor is it sufficient that upon the doctrine of chances it is more probable that the defendant is guilty than that he is innocent to warrant a conviction. The defendant must be proven to be guilty so clearly and conclusively that there is no reasonable theory upon which he is innocent when all the evidence is considered together.”

The instruction, in the identical language here, was given in People v. Anthony and approved by this court. (People v. Anthony, 56 Cal. 400.) We find no error as to other instructions complained of. The court appears to have fully and fairly instructed, the jury upon every phase of the case. It follows that the judgment and order must he affirmed.

Gray, C., and Chipman, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

Henshaw, J., Shaw, J., Angellotti, J., Van Dyke, J., Lorigan, J., Beatty, C. J. 
      
       44 Am. Rep. 549.
     