Colin Campbell, and Charles N. Fox, for Appellant.

Attorney-General Johnson, for Respondent.

The COURT.-The defendant was convicted of murder, and judgment of death passed against him. He was charged with having poisoned his wife by the use of phosphorus. The evidence against him is almost entirely circumstantial. The existence of the most important facts was established only by the opinion of experts, and their existence is disputed by experts apparently equally competent. The significance of the supposed facts as inculpatory circumstances was also matter of difference. The judgment of medical experts was also taken upon the question whether all the clinical symptoms and pathological conditions indicated. death from phosphorus poisoning. Upon this there was also a wide difference of opinion. Some symptoms and conditions usually present in cases of phosphorus poisoning were wholly absent in this case, or at least were not proven to exist. There were indications which, in the opinion of some of the physicians, indicated that death might have resulted, and probably did result, from natural

causes.

There was atrophy of the liver, which was greatly reduced in size. It was admitted that this might have been occasioned by disease, and there was a difference of opinion as to whether the condition was, or could have been, caused by phosphorus poisoning. There was no jaundice. There was an ulcer in the stomach. Whether this could have been occasioned by phosphorus poisoning was a matter of controversy. Clots of blood were found in the heart, and in the ovaries and Fallopian tubes.

There is evidence that the illness of the deceased was brought on by a miscarriage, purposely caused by her own act, and that she did not wish her husband to know anything about it. There was no evidence that the de

fendant had procured or had in his possession any phosphorus.

We do not feel like saying, under these circumstances, that as matter of law the jury could not be satisfied beyond a reasonable doubt of the guilt of the defendant, but it is evident that the case was one of great difficulty, and required unusual circumspection, and the utmost coolness and impartiality in its consideration.

Now, when we remember that the crime with which the defendant is charged is one of an unusually revolting character, it is easy to believe that one unaccustomed to judicial investigations might easily be made to feel, upon finding a mere probability of guilt, much short of the certainty required to authorize a conviction, a strong desire for the punishment of the defendant.

In view of all these circumstances, certain occurrences at the trial have a significance which in a different kind of a case we should hesitate to attribute to them. Unfortunately, the judge allowed himself rather frequently to question the witnesses, always in the interest of the prosecution, and often by putting questions which were leading and suggestive. We think the jury would be sure to get the impression that the judge thought the defendant guilty. Still more objectionable was the conduct of the prosecuting attorney. It is true, the court properly interfered, rebuking the attorney, and instructing the jury to pay no attention to the statements. But the statements were well calculated to influence the jury in a case of this character, and it is impossible for us to say that no injury resulted to the defendant therefrom.

We think, upon a careful examination of this record, that the interests of justice require a new trial before a judgment of this gravity should be carried into execution.

We do not see the necessity of passing upon the other points made. The questions are not likely to recur upon the new trial.

Judgment reversed, and a new trial ordered.

LXXIX. CAL.-27

THORNTON, J., concurring. The only poisoning charged in this case is that by phosphorus. If there was no poisoning by phosphorus, then it is not pretended that there was any poisoning at all. In my opinion, the preponderance of evidence supports the conclusion that there was no phosphorus poisoning. The indications of such poisoning were lacking. There was no garlicky odor on the breath before death, and there was no luminosity apparent when the test of the Mitscherlich process was applied after death. The garlicky odor, if apparent in the portion of the stomach and intestines subjected to examination after death, may be accounted for by two circumstances. Such odor is usually made apparent by the decay of the human body, and this decay had commenced when the portion of the stomach and intestines were taken from the body (to which the process above mentioned was applied) some seven or eight days after death. The other circumstance is this: that for some fifteen or twenty days prior to the death of Mrs. Bowers a compound containing phosphorus had been given to her by the physician or physicians in charge. These two facts account for whatever garlicky or alliaceous odor may have been perceived after death.

The evidence tends strongly to show that Mrs. Bowers died from disease indicated by the symptoms which manifested themselves during her illness and by the conditions of the body after death; this was the opinion of some of the physicians who testified upon the trial.

Upon a full consideration of the evidence in the case, I am of opinion that the preponderance of evidence sustains the conclusion that Mrs. Bowers did not die of phosphorus poisoning, and that, in the judgment of men of average intelligence and discretion, the evidence would establish the conclusion that the defendant could not be held to be guilty beyond a reasonable doubt. Where this is the case, there should be no conviction.

For the foregoing reasons, I am convinced that the ver

dict ought not to stand, and that the judgment and order should be reversed, and the cause remanded for a new trial.

MCFARLAND, J., dissented.

[No. 20538. In Bank.-June 1, 1889.]

THE PEOPLE RESPONDENT, v. THOMAS MONABB, APPELLANT.

CRIMINAL LAW-INSTRUCTIONS— -READING OPINION TO JURY-REVIEW ON APPEAL.--The practice of reading opinions in other cases to the jury as part of the charge of the court in a criminal case is a dangerous one, and is advised against. But where the evidence does not appear in the record, and there is nothing to show whether the defendant was benefited or prejudiced by such practice, the judgment will not be reversed therefor.

APPEAL from a judgment of the Superior Court of Yuba County, and from an order denying a new trial.

The facts are stated in the opinion of the court.

W. G. Murphy, M. C. Barney, and Grove L. Johnson, for Appellant.

Attorney-General Johnson, for Respondent.

SHARPSTEIN, J.-Appellant was tried on a charge of murder, and convicted of manslaughter. He appeals from the judgment, and his contention here is that the court erred in its charge of the jury. The alleged error consists in the reading by the court of the opinion of this court in People v. Munn, 65 Cal. 211, and stating to the jury that that case "was in many respects like the one at bar."

Whether this statement was correct, we have not the means of verifying, as the evidence is not before us.

In the case of People v. Munn, the appellant had been

convicted of murder in the second degree, and this court held that the facts did not warrant his conviction of a higher offense than manslaughter. And it seems to us that the object of the court in reading the opinion in that case to the jury in this case was to impress on their minds that the defendant in this case should not be convicted of any higher offense than manslaughter, and not, as appellant's counsel contends, that he should be convicted of manslaughter.

The reading of that case had better have been omitted. The practice of reading cases to juries is a dangerous one, and we advise against it.

In this case the appellant may have been benefited and not prejudiced by it. In the absence of the evidence, we cannot determine which, and therefore cannot reverse the judgment.

Judgment affirmed.

BEATTY, C. J., WORKS, J., MCFARLAND, J., and THORNTON, J., concurred.

[No. 11949. Department Two.-June 4, 1889.]

FRANK CURDY, APPELLANT, v. GEORGE A. BERTON, EXECUTOR, ETC., OF FRANCIS BERTON, DECEASED, RE

SPONDENT.

TRUST-WILL-BEQUEST ON UNDISCLOSED PAROL TRUST-CONSTRUCTIVE TRUST IN FAVOR OF BENEFICIARY.-Where a testator by his will bequeaths property in trust to a legatee without specifying in the will the purposes of the trust, and at the time of the execution of the will, or subsequently, verbally communicates to the legatee the purposes of the trust, and the legatee, either expressly or impliedly, promises to perform the trust, or silently acquiesces therein, equity will raise a constructive trust in favor of the beneficiaries intended by the testator, and will charge the legatee as a constructive trustee for them.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.