jury upon principle in California

1952(Cal. Const., art VI, §4½; Hamm v. San Joaquin, etc. Canal Co., 44 Cal.App.2d 47 [ 111 P.2d 940 ]; Mehollin v. Ysuchiyama, 11 Cal.2d 53 [ 77 P.2d 855 ]; Cunningham v. Coca-Cola Bottling Co., 87 Cal.App.2d 106 [ 198 P.2d 333 ].) The proper rule was stated as follows in Sortino v. Loneoak, 66 Cal.App.2d 876, 883 [ 153 P.2d 428 ]: “It is not reversible error for the court to instruct the jury upon a principle of law, even though there may be an entire absence of evidence on that particular subject, unless it also appears that the jury was misled and prejudiced thereby.

1952(Cal. Const., art VI, §4½; Hamm v. San Joaquin, etc. Canal Co., 44 Cal.App.2d 47 [ 111 P.2d 940 ]; Mehollin v. Ysuchiyama, 11 Cal.2d 53 [ 77 P.2d 855 ]; Cunningham v. Coca-Cola Bottling Co., 87 Cal.App.2d 106 [ 198 P.2d 333 ].) The proper rule was stated as follows in Sortino v. Loneoak, 66 Cal.App.2d 876, 883 [ 153 P.2d 428 ]: “It is not reversible error for the court to instruct the jury upon a principle of law, even though there may be an entire absence of evidence on that particular subject, unless it also appears that the jury was misled and prejudiced thereby.

1952(Cal. Const., art VI, §4½; Hamm v. San Joaquin, etc. Canal Co., 44 Cal.App.2d 47 [ 111 P.2d 940 ]; Mehollin v. Ysuchiyama, 11 Cal.2d 53 [ 77 P.2d 855 ]; Cunningham v. Coca-Cola Bottling Co., 87 Cal.App.2d 106 [ 198 P.2d 333 ].) The proper rule was stated as follows in Sortino v. Loneoak, 66 Cal.App.2d 876, 883 [ 153 P.2d 428 ]: “It is not reversible error for the court to instruct the jury upon a principle of law, even though there may be an entire absence of evidence on that particular subject, unless it also appears that the jury was misled and prejudiced thereby.

1952(Cal. Const., art VI, §4½; Hamm v. San Joaquin, etc. Canal Co., 44 Cal.App.2d 47 [ 111 P.2d 940 ]; Mehollin v. Ysuchiyama, 11 Cal.2d 53 [ 77 P.2d 855 ]; Cunningham v. Coca-Cola Bottling Co., 87 Cal.App.2d 106 [ 198 P.2d 333 ].) The proper rule was stated as follows in Sortino v. Loneoak, 66 Cal.App.2d 876, 883 [ 153 P.2d 428 ]: “It is not reversible error for the court to instruct the jury upon a principle of law, even though there may be an entire absence of evidence on that particular subject, unless it also appears that the jury was misled and prejudiced thereby.

2019(Accord, Ake v. Oklahoma (1985) 470 U.S. 68, 81 [“Psychiatry is not . . . an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior and symptoms, on cure and treatment, and on likelihood of future dangerousness.

1982These crimes, of course, are offenses necessarily included within first degree murder. (5a) Appellant advances two possible theories of voluntary manslaughter — heat of passion and unreasonable self-defense. (6) In People v. Berry (1976) 18 Cal.3d 509, 515 [ 134 Cal. Rptr. 415 , 556 P.2d 777 ], this court quoted People v. Valentine (1946) 28 Cal.2d 121, 139 [ 169 P.2d 1 ] regarding the appropriate instructions to be given the jury upon a claim of voluntary manslaughter due to heat of passion: "`The jury is ... to be admonished and advised by the court that this heat of passion must be such a p

1982These crimes, of course, are offenses necessarily included within first degree murder. (5a) Appellant advances two possible theories of voluntary manslaughter — heat of passion and unreasonable self-defense. (6) In People v. Berry (1976) 18 Cal.3d 509, 515 [ 134 Cal. Rptr. 415 , 556 P.2d 777 ], this court quoted People v. Valentine (1946) 28 Cal.2d 121, 139 [ 169 P.2d 1 ] regarding the appropriate instructions to be given the jury upon a claim of voluntary manslaughter due to heat of passion: "`The jury is ... to be admonished and advised by the court that this heat of passion must be such a p

1982These crimes, of course, are offenses necessarily included within first degree murder. (5a) Appellant advances two possible theories of voluntary manslaughter — heat of passion and unreasonable self-defense. (6) In People v. Berry (1976) 18 Cal.3d 509, 515 [ 134 Cal. Rptr. 415 , 556 P.2d 777 ], this court quoted People v. Valentine (1946) 28 Cal.2d 121, 139 [ 169 P.2d 1 ] regarding the appropriate instructions to be given the jury upon a claim of voluntary manslaughter due to heat of passion: "`The jury is ... to be admonished and advised by the court that this heat of passion must be such a p

1982These crimes, of course, are offenses necessarily included within first degree murder. (5a) Appellant advances two possible theories of voluntary manslaughter — heat of passion and unreasonable self-defense. (6) In People v. Berry (1976) 18 Cal.3d 509, 515 [ 134 Cal. Rptr. 415 , 556 P.2d 777 ], this court quoted People v. Valentine (1946) 28 Cal.2d 121, 139 [ 169 P.2d 1 ] regarding the appropriate instructions to be given the jury upon a claim of voluntary manslaughter due to heat of passion: "`The jury is ... to be admonished and advised by the court that this heat of passion must be such a p

1969Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is intentionally done for a base, antisocial motive and with wanton disregard for human life, or when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life." The jury upon hearing the court's instruction concerning the effect of diminished capacity upon the formation of the "specific mental states that are essential elements of murder" might well have understood the instruction to apply

1969Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is intentionally done for a base, antisocial motive and with wanton disregard for human life, or when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life." The jury upon hearing the court's instruction concerning the effect of diminished capacity upon the formation of the "specific mental states that are essential elements of murder" might well have understood the instruction to apply

1969Defendant adduced a proper factual showing of diminished capacity which might negate his intent "to permanently deprive the owner of his property" (cf. People v. Ketchel, supra, 71 Cal.2d 635, 641 ), to enter the house of another with the intent to commit a felony (cf. People v. Sears (1965) 62 Cal.2d 737, 745 [ 44 Cal. Rptr. 330 , 401 P.2d 938 ]), or to commit an act of sexual intercourse with force upon a woman not his wife (cf. People v. Bard (1968) 70 Cal.2d 3, 5-7 [ 73 Cal. Rptr. 547 , 447 P.2d 939 ].) By failing to instruct the jury that defendant's diminished capacity might rebut each o

1969Defendant adduced a proper factual showing of diminished capacity which might negate his intent "to permanently deprive the owner of his property" (cf. People v. Ketchel, supra, 71 Cal.2d 635, 641 ), to enter the house of another with the intent to commit a felony (cf. People v. Sears (1965) 62 Cal.2d 737, 745 [ 44 Cal. Rptr. 330 , 401 P.2d 938 ]), or to commit an act of sexual intercourse with force upon a woman not his wife (cf. People v. Bard (1968) 70 Cal.2d 3, 5-7 [ 73 Cal. Rptr. 547 , 447 P.2d 939 ].) By failing to instruct the jury that defendant's diminished capacity might rebut each o

1969Defendant adduced a proper factual showing of diminished capacity which might negate his intent "to permanently deprive the owner of his property" (cf. People v. Ketchel, supra, 71 Cal.2d 635, 641 ), to enter the house of another with the intent to commit a felony (cf. People v. Sears (1965) 62 Cal.2d 737, 745 [ 44 Cal. Rptr. 330 , 401 P.2d 938 ]), or to commit an act of sexual intercourse with force upon a woman not his wife (cf. People v. Bard (1968) 70 Cal.2d 3, 5-7 [ 73 Cal. Rptr. 547 , 447 P.2d 939 ].) By failing to instruct the jury that defendant's diminished capacity might rebut each o

1969Defendant adduced a proper factual showing of diminished capacity which might negate his intent "to permanently deprive the owner of his property" (cf. People v. Ketchel, supra, 71 Cal.2d 635, 641 ), to enter the house of another with the intent to commit a felony (cf. People v. Sears (1965) 62 Cal.2d 737, 745 [ 44 Cal. Rptr. 330 , 401 P.2d 938 ]), or to commit an act of sexual intercourse with force upon a woman not his wife (cf. People v. Bard (1968) 70 Cal.2d 3, 5-7 [ 73 Cal. Rptr. 547 , 447 P.2d 939 ].) By failing to instruct the jury that defendant's diminished capacity might rebut each o

1969Defendant adduced a proper factual showing of diminished capacity which might negate his intent "to permanently deprive the owner of his property" (cf. People v. Ketchel, supra, 71 Cal.2d 635, 641 ), to enter the house of another with the intent to commit a felony (cf. People v. Sears (1965) 62 Cal.2d 737, 745 [ 44 Cal. Rptr. 330 , 401 P.2d 938 ]), or to commit an act of sexual intercourse with force upon a woman not his wife (cf. People v. Bard (1968) 70 Cal.2d 3, 5-7 [ 73 Cal. Rptr. 547 , 447 P.2d 939 ].) By failing to instruct the jury that defendant's diminished capacity might rebut each o

1969Defendant adduced a proper factual showing of diminished capacity which might negate his intent "to permanently deprive the owner of his property" (cf. People v. Ketchel, supra, 71 Cal.2d 635, 641 ), to enter the house of another with the intent to commit a felony (cf. People v. Sears (1965) 62 Cal.2d 737, 745 [ 44 Cal. Rptr. 330 , 401 P.2d 938 ]), or to commit an act of sexual intercourse with force upon a woman not his wife (cf. People v. Bard (1968) 70 Cal.2d 3, 5-7 [ 73 Cal. Rptr. 547 , 447 P.2d 939 ].) By failing to instruct the jury that defendant's diminished capacity might rebut each o

1961Plaintiffs’ second attack on the instruction is that it did not apply to the facts because the accident occurred on a private road, not on a public highway. “ ‘It is not reversible error for the court to instruct the jury upon a principle of law, even though there may be an entire absence of evidence on that particular subject, unless it also appears that the jury was misled and prejudiced thereby.’ ” (Cannis v. Di Salvo Trucking Co., 111 Cal.App.2d 893, 898 [ 245 P.2d 365 ].) In Withey v. Hammond Lbr.

1961Plaintiffs’ second attack on the instruction is that it did not apply to the facts because the accident occurred on a private road, not on a public highway. “ ‘It is not reversible error for the court to instruct the jury upon a principle of law, even though there may be an entire absence of evidence on that particular subject, unless it also appears that the jury was misled and prejudiced thereby.’ ” (Cannis v. Di Salvo Trucking Co., 111 Cal.App.2d 893, 898 [ 245 P.2d 365 ].) In Withey v. Hammond Lbr.

1958Co., 152 Cal.App.2d 80 [ 312 P.2d 739 ].) In Galbraith v. Thompson, 108 Cal.App.2d 617, 622 [ 239 P.2d 468 ], the court held that charging the jury upon the doctrine of last clear chance when there is no substantial evidence to support the theory is reversible error.

1958Co., 152 Cal.App.2d 80 [ 312 P.2d 739 ].) In Galbraith v. Thompson, 108 Cal.App.2d 617, 622 [ 239 P.2d 468 ], the court held that charging the jury upon the doctrine of last clear chance when there is no substantial evidence to support the theory is reversible error.

1957The doctrine is grounded upon common observation and common sense, and, whether instructed or not upon the matter, the jury is competent to draw the inference if it desires to do so. ’ ’ In Seneris v. Haas, 45 Cal.2d 811, 823 [ 291 P.2d 915 ], it is said that the conditions to be met before the doctrine may be applied are that the accident or injury must be of a kind which ordinarily does not occur in the absence of someone’s negligence; that it must be caused by an agency or instrumentality in the control of the defendant; and that it must not have been due to any voluntary action or contribu

1957The doctrine is grounded upon common observation and common sense, and, whether instructed or not upon the matter, the jury is competent to draw the inference if it desires to do so. ’ ’ In Seneris v. Haas, 45 Cal.2d 811, 823 [ 291 P.2d 915 ], it is said that the conditions to be met before the doctrine may be applied are that the accident or injury must be of a kind which ordinarily does not occur in the absence of someone’s negligence; that it must be caused by an agency or instrumentality in the control of the defendant; and that it must not have been due to any voluntary action or contribu

1955In order for an instruction stating that doctrine to be proper there must be substantial evidence to show, “ ‘ (1) That plaintiff has been negligent and, as a result thereof, is in a position of danger from which he cannot escape by the exercise of ordinary care; and this includes not only where it is physically impossible for him to escape, but also in cases where he is totally unaware of his danger and for that reason unable to escape; (2) that defendant has knowledge that the plaintiff is in such a situation, and knowns, or in the exercise of ordinary care should know, that plaintiff cannot

1955In order for an instruction stating that doctrine to be proper there must be substantial evidence to show, “ ‘ (1) That plaintiff has been negligent and, as a result thereof, is in a position of danger from which he cannot escape by the exercise of ordinary care; and this includes not only where it is physically impossible for him to escape, but also in cases where he is totally unaware of his danger and for that reason unable to escape; (2) that defendant has knowledge that the plaintiff is in such a situation, and knowns, or in the exercise of ordinary care should know, that plaintiff cannot

1953Inasmuch as no claim is advanced by appellant that the evidence is insufficient to support the judgment, and as the principal contention of the appellant is that the court erred in refusing to instruct the jury upon the doctrine of the last clear chance, contrary to the usual practice upon appeal we shall, as required under the circumstances, set forth the evidence in the light most favorable to the plaintiff and appellant (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Brown v. McCuan, 56 Cal.App.2d 35, 36 [ 132 P.2d 838 ]).

1953Inasmuch as no claim is advanced by appellant that the evidence is insufficient to support the judgment, and as the principal contention of the appellant is that the court erred in refusing to instruct the jury upon the doctrine of the last clear chance, contrary to the usual practice upon appeal we shall, as required under the circumstances, set forth the evidence in the light most favorable to the plaintiff and appellant (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Brown v. McCuan, 56 Cal.App.2d 35, 36 [ 132 P.2d 838 ]).

1953Inasmuch as no claim is advanced by appellant that the evidence is insufficient to support the judgment, and as the principal contention of the appellant is that the court erred in refusing to instruct the jury upon the doctrine of the last clear chance, contrary to the usual practice upon appeal we shall, as required under the circumstances, set forth the evidence in the light most favorable to the plaintiff and appellant (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Brown v. McCuan, 56 Cal.App.2d 35, 36 [ 132 P.2d 838 ]).

1953Inasmuch as no claim is advanced by appellant that the evidence is insufficient to support the judgment, and as the principal contention of the appellant is that the court erred in refusing to instruct the jury upon the doctrine of the last clear chance, contrary to the usual practice upon appeal we shall, as required under the circumstances, set forth the evidence in the light most favorable to the plaintiff and appellant (Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ]; Brown v. McCuan, 56 Cal.App.2d 35, 36 [ 132 P.2d 838 ]).