People v. Mallon

Citations

• 103 Cal. 513
• 37 P. 512
• 1894 Cal. LEXIS 812

Syllabus

<p>Criminal Law—-Evidence—Statements Made in Presence of Accused— Acquiescence.—While a statement made in the presence of the accused is not admissible, as being itself evidence of any fact narrated therein, it is admissible, primarily, for the purpose of showing that the accused acquiesced in it either by express assent or by silence, or by such conduct as fairly implied assent; though such testimony should be received guardedly, and, if not followed by any proof of the conduct of the accused, should be stricken out, and, if requested by the defendant’s counsel, the court should instruct the jury that the statement is limited as evidence for the purpose of showing the acquiescence or assent of the accused.</p> <p>Id.—Instructions—Assault With Intent to Rob—Assumption of Undisputed Fact.—Upon the trial of a defendant accused of assault with intent to commit robbery, an instruction to the effect that in case the jury have no doubt that the defendant aided and participated in the assault they must give him the benefit of that doubt, and in that case they must find him guilty of simple assault, does not prejudicially-assume that an assault was committed, where the assault was clearly shown and is an undisputed fact.</p>