" The court struck out the word "entirely" in both places where it was used, and then gave the instruction. In People v. Padillia , 42 Cal. 535, in People v. Kerrick , 52 Cal. 446, and in People v. Carrillo , 70 Cal. 643, the instructions under review were substantially the same and to the following effect: "All that is necessary, in order to justify the jury in finding the defendant guilty, is that they shall be satisfied from the evidence of the defendant's guilt to a moral certainty and beyond a reasonable doubt, although they may not be entirely [51 P. 704] satisfied from the evidence that the defendant and no other person committed the alleged offense." In reversing these cases, it was said that the modification, "although they may not be entirely satisfied," etc., was, and was intended to be, a material qualification of the first clause, which contained a correct statement of the law.
(People v. Cowgill , 93 Cal. 596; Chambers v. State , 105 Ill. 409; 3 Rice's Criminal Evidence, 159.) From the evidence it cannot be said that no other person than the defendant committed the murder, and it was therefore the duty of the jury to acquit the defendant. (People v. Kerrick , 52 Cal. 446; People v. Brown , 56 Cal. 406; People v. Brown , 59 Cal. 345.) The prosecution failed to show any motive on the part of the defendant for the killing, and it therefore became the manifest duty of the jury to acquit.
" You are not legally bound to acquit him (defendant) because you may not be entirely satisfied that the defendant, and no other person, committed the alleged offense." (See also, People v. Kerrick , 52 Cal. 446.) The converse of the rule laid down in the above case is, that the jury must be entirely satisfied that the defendant committed the offense charged against him, and it was error to refuse the charge to that effect, as requested by the defendant.
The foregoing instruction was erroneous. (The People v. Kerrick , 52 Cal. 446, and cases therein referred to.) Judgment reversed, and new trial ordered.