giving of said instruction in California

1948In the early case of People v. Jones, 63 Cal. 168 , it was held that the discretion vested in the jury by said section 190 was not an arbitrary one.

1948In the early case of People v. Jones, 63 Cal. 168 , it was held that the discretion vested in the jury by said section 190 was not an arbitrary one.

1957For as stated in Popejoy v. Hannon, 37 Cal.2d 159 , at page 168 [ 231 P.2d 484 ] : “Prejudicial error does not necessarily result from the giving of an instruction which, subjected to meticulous analysis, might be given a ‘possible construction’ making it subject to ‘criticism.’ It is extremely doubtful that the jurors analyzed the instruction with such exactitude as counsel for the Hannons.” And as stated in Westover v. City of Los Angeles, 20 Cal.2d 635 , at page 637 [ 128 P.2d 350 ]: “. . .

1957For as stated in Popejoy v. Hannon, 37 Cal.2d 159 , at page 168 [ 231 P.2d 484 ] : “Prejudicial error does not necessarily result from the giving of an instruction which, subjected to meticulous analysis, might be given a ‘possible construction’ making it subject to ‘criticism.’ It is extremely doubtful that the jurors analyzed the instruction with such exactitude as counsel for the Hannons.” And as stated in Westover v. City of Los Angeles, 20 Cal.2d 635 , at page 637 [ 128 P.2d 350 ]: “. . .

1957For as stated in Popejoy v. Hannon, 37 Cal.2d 159 , at page 168 [ 231 P.2d 484 ] : “Prejudicial error does not necessarily result from the giving of an instruction which, subjected to meticulous analysis, might be given a ‘possible construction’ making it subject to ‘criticism.’ It is extremely doubtful that the jurors analyzed the instruction with such exactitude as counsel for the Hannons.” And as stated in Westover v. City of Los Angeles, 20 Cal.2d 635 , at page 637 [ 128 P.2d 350 ]: “. . .

1957For as stated in Popejoy v. Hannon, 37 Cal.2d 159 , at page 168 [ 231 P.2d 484 ] : “Prejudicial error does not necessarily result from the giving of an instruction which, subjected to meticulous analysis, might be given a ‘possible construction’ making it subject to ‘criticism.’ It is extremely doubtful that the jurors analyzed the instruction with such exactitude as counsel for the Hannons.” And as stated in Westover v. City of Los Angeles, 20 Cal.2d 635 , at page 637 [ 128 P.2d 350 ]: “. . .

1955For as stated in Yolo Water & Power Co. v. Hudson, 182 Cal. 48 , at page 51 [ 186 P. 772 ] : “A party cannot complain of an instruction given at his own request or of an error in an instruction given at the instance of his adversary when he requests a substantially similar one. (14 R.C.L. 815, and cases cited.) ” See also *42 Collins v. Graves, 17 Cal.App.2d 288 [61 P.2d 1198]; Story v. Nidiffer, 146 Cal. 549 [ 80 P. 692 ], But even if appellants were entitled to raise the issue upon appeal, their contention would still be without merit.

1955For as stated in Yolo Water & Power Co. v. Hudson, 182 Cal. 48 , at page 51 [ 186 P. 772 ] : “A party cannot complain of an instruction given at his own request or of an error in an instruction given at the instance of his adversary when he requests a substantially similar one. (14 R.C.L. 815, and cases cited.) ” See also *42 Collins v. Graves, 17 Cal.App.2d 288 [61 P.2d 1198]; Story v. Nidiffer, 146 Cal. 549 [ 80 P. 692 ], But even if appellants were entitled to raise the issue upon appeal, their contention would still be without merit.

1955For as stated in Yolo Water & Power Co. v. Hudson, 182 Cal. 48 , at page 51 [ 186 P. 772 ] : “A party cannot complain of an instruction given at his own request or of an error in an instruction given at the instance of his adversary when he requests a substantially similar one. (14 R.C.L. 815, and cases cited.) ” See also *42 Collins v. Graves, 17 Cal.App.2d 288 [61 P.2d 1198]; Story v. Nidiffer, 146 Cal. 549 [ 80 P. 692 ], But even if appellants were entitled to raise the issue upon appeal, their contention would still be without merit.

1955For as stated in Yolo Water & Power Co. v. Hudson, 182 Cal. 48 , at page 51 [ 186 P. 772 ] : “A party cannot complain of an instruction given at his own request or of an error in an instruction given at the instance of his adversary when he requests a substantially similar one. (14 R.C.L. 815, and cases cited.) ” See also *42 Collins v. Graves, 17 Cal.App.2d 288 [61 P.2d 1198]; Story v. Nidiffer, 146 Cal. 549 [ 80 P. 692 ], But even if appellants were entitled to raise the issue upon appeal, their contention would still be without merit.

1955For as stated in Yolo Water & Power Co. v. Hudson, 182 Cal. 48 , at page 51 [ 186 P. 772 ] : “A party cannot complain of an instruction given at his own request or of an error in an instruction given at the instance of his adversary when he requests a substantially similar one. (14 R.C.L. 815, and cases cited.) ” See also *42 Collins v. Graves, 17 Cal.App.2d 288 [61 P.2d 1198]; Story v. Nidiffer, 146 Cal. 549 [ 80 P. 692 ], But even if appellants were entitled to raise the issue upon appeal, their contention would still be without merit.

1955For as stated in Yolo Water & Power Co. v. Hudson, 182 Cal. 48 , at page 51 [ 186 P. 772 ] : “A party cannot complain of an instruction given at his own request or of an error in an instruction given at the instance of his adversary when he requests a substantially similar one. (14 R.C.L. 815, and cases cited.) ” See also *42 Collins v. Graves, 17 Cal.App.2d 288 [61 P.2d 1198]; Story v. Nidiffer, 146 Cal. 549 [ 80 P. 692 ], But even if appellants were entitled to raise the issue upon appeal, their contention would still be without merit.

1953In People v. Boggs, 12 Cal.2d 27 [ 82 P.2d 368 ], where a similar instruction was given in a case where the defendant did take the stand and testify, the court stated: “Obviously, no prejudice could have resulted to the defendant from instruction number 9 in which the jury was merely informed of the right of court and counsel to comment on the evidence or the failure of defendant to explain or deny any portion thereof adverse to him.

1953In People v. Boggs, 12 Cal.2d 27 [ 82 P.2d 368 ], where a similar instruction was given in a case where the defendant did take the stand and testify, the court stated: “Obviously, no prejudice could have resulted to the defendant from instruction number 9 in which the jury was merely informed of the right of court and counsel to comment on the evidence or the failure of defendant to explain or deny any portion thereof adverse to him.

1941Co., 128 Cal. App. 567 [ 18 Pac. (2d) 97 , 19 Pac. (2d) 982 ].) We may assume, without deciding, that the giving of said instruction in the form in which it was given was error despite the fact that the issues of proximate cause and contributory. negligence were thoroughly covered by other instructions.

1941Co., 128 Cal. App. 567 [ 18 Pac. (2d) 97 , 19 Pac. (2d) 982 ].) We may assume, without deciding, that the giving of said instruction in the form in which it was given was error despite the fact that the issues of proximate cause and contributory. negligence were thoroughly covered by other instructions.

1913Co., 150 Cal. 705 , [ 89 Pac. 1093 ].) We are therefore constrained to hold that.the giving of said instruction was not error. *547 Complaint is next made that the court erred in instructing the jury that “the evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is within the power of one side to produce and of the other to contradict and, therefore, if weaker and less satisfactory evidence is offered, when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrus