¶1I concur in the judgment, and in the opinion of Commissioner Belcher; but I wish to add that some of the instructions given at the request of the prosecution, and not noticed in the opinion, were clearly wrong. For instance, the jury are told that “when direct evidence cannot be produced, minds will form their judgments on circumstances, and act on the probabilities of the case.” This would probably be understood by the jury as instructing them that their minds must “act on probabilities” in determining the *456guilt of the defendant, which would clearly be erroneous. But the instruction proceeds as follows: “As absolute certainty is seldom to be obtained in human affairs, reason requires that the jury, in forming an opinion of the truth of the facts, should be governed by the superior number of probabilities on the side of the people or the defendant.” This is not only against the settled rule as to the amount of proof necessary to convict in criminal cases, but is against the express language of the code. (Code Civ. Proc., sec. 2061; Pen. Code, sec. 1096.)
¶2The instrüction was also given, that “ in order to convict, the circumstantial evidence should be such as to produce nearly the same degree of certainty as that which arises from direct testimony.” This, in my judgment, is a doubtful and dangerous proposition. I do not mean to say that it would be sufficient to reverse a judgment; for I am aware that' somewhat similar language was held not to be erroneous in People v. Cronin, 34 Cal. 191, and in at least two subsequent cases. But the doctrine has never been satisfactory to the profession, and can be upheld only by the most stringent use of the rule of stare decisis. In my judgment, it had better be abandoned by prosecuting officers, for its use in the future may put just convictions in peril.