People v. Jackson

The evidence very clearly exhibits the case as one of cold-blooded murder. The evidence, as we view

There occurred in this case the usual small discrepancies between the testimony of the witnesses. There is a direct conflict between the testimony of the defendant and some of the other witnesses as to whether he fired from the hallway or whether he fired after he entered the room, and there is á conflict in the testimony of the defendant and most of the other witnesses as to whether or not the deceased pointed her pistol in his direction immediately prior to his firing the first shot.

On an examination of the entire case we cannot consider that there has been any miscarriage of justice herein. As we view it, in the light of the facts shown in evidence, the theory of self-defense has no reasonable relation to the case. The dispute between the witnesses for the defense and the prosecution as to the facts is a matter that is left to the sound discretion of the jury. They are the final arbiters of the facts.

The objections of the defendant to the instructions given, and to the refusal of requested instructions lose much of their force by reason of the fact that the instructions given, taken as a whole, very fully and fairly state the law of the case. We do not find any errors therein of such serious or prejudicial nature that they require much discussion. This applies definitely to appellant’s assignments of error in relation to instructions given. Concerning the nine refusals of requested instructions, all discussed in the brief for appellant, we are also of the opinion, after an examination which we have made of the evidence introduced herein, that there is no evidence which in any way tends to mitigate defendant’s crime, and even his own testimony hardly substantiates the claim of justifiable self-defense. This will necessarily limit somewhat our discussion of the rejected instructions. An examination of the refused instructions and a comparison of the same with all of the instructions given clearly shows that, in so far as the refused instructions are applicable to the facts in evidence herein, they are fully

[1] Appellant’s point I is apparently based upon a claim that the defendant was guilty of no unlawful act preceding the killing, yet there is undisputed evidence that the defendant was gambling with dice, declared to be unlawful by section 330 of the Penal Code. Therefore, the instruction objected to is correct. The court, in this instruction objected to, made no declaration of fact as to whether or not the deceased was engaged in the performance of an unlawful act. The instruction properly left that question to the sole determination of the jury. [2] That part of the instruction which informed the jury that the fact, if established, that the defendant had been attacked would not mitigate or excuse the homicide, nor would the fact that the act of defendant was done suddenly after the intent to commit the homicide is formed, was a proper instruction under the facts shown in the transcript; as also was that part of the instruction which declared that the fact that the defendant was in a passion would not mitigate or excuse homicide, that the crime would be murder in spite of the fact that the act was done suddenly after the intent to commit the homicide was formed. This statement of the law is, in substance, laid down in the ease of People v. Hunt, 59 Cal. 430 , and particularly at page 435 of said decision. Under the facts in this ease the first nine lines of the instruction given were unnecessary and not particularly applicable to the case, but when taken with all the other instructions we cannot say that the rights of the defendant were thereby prejudiced, but we hold that that portion of the instruction objected to was proper under the facts in evidence in this case. (See People v. Ye Poo, 4 Cal. App. 730 , particularly at page 738 [ 89 Pac. 450 ].)

[4] The appellant objects to that part of the instruction appearing on page 43 of the clerk’s transcript: “But it must also appear to his comprehension as a reasonable man, that to avoid such danger it was necessary for him to take the life of the deceased. ’ ’ However, this instruction, taken as a whole, properly states the law. It informed the jury that mere apprehension of danger is insufficient to justify a homicide, and that fear sufficient to justify a killing must be such as would excite the fears of a reasonable person. (People v. Westlake, 62 Cal. 303 .) In the case of People v. Maughs, 149 Cal. 253 , 259 [ 86 Pac. 187 ], the instruction was different in form from that before the court in the case at bar. In this case the deceased had retreated and put down her gun and the defendant had left the room. The gun was still down by her side when the defendant emerged from the bedroom, came down the hall and reentered the gambling-room and opened fire upon the deceased. Such facts being before the jury this instruction was competent. (People v. Burns, 27 Cal. App. 227 [ 149 Pac. 605 ].) Appellant’s contention that this instruction in effect told the jury that the defendant must have gone to extreme lengths to retreat from the danger and that he was bound to retreat if retreat were possible is not a reasonable .interpretation of the instruction given.

[5] The appellant complains of the court’s refusal to give an instruction as follows: “You are instructed that the calling of a person a bad name, or the use of profane and vulgar language to a person, is no excuse or justification by itself for the person against whom such bad language is used to pull a pistol or even to use any force whatsoever in

1 [6] Appellant’s point Y is a claim that the court erred in refusing to give his proposed instruction appearing on page 29 of the clerk’s transcript, in which he asked the jury to take into consideration the state of mind of the defendant at the time of shooting if they believed from the evidence that the defendant knew that the party attacking him was a dangerous character. However, this identical point was covered in one of the instructions given, to wit: “You are instructed that the defendant in this case had the right, as a reasonable person, in forming his belief of the imminence of the danger and the necessity to take the life of the deceased, to take into consideration what he knew of the bad reputation of the deceased.”

[7] Point YI of the appellant is an objection to the refusal to give the following instruction: “You are instructed that a person is not required to exercise any due care or circumspection as to the manner of killing in self-defense, where the appearances are such as to justify a reasonable man in believing that it is necessary to kill another in order to save himself from death or great bodily lharm.” In the case of People v. Thompson, 145 Cal. 717 [ 79 Pac. 435 ], cited by appellant, the facts were quite dissimilar from the facts in the case at bar, and the instruction in the Thompson case was by no means as broad as the one requested here. The jury here were instructed as follows: “You are instructed that a person acting under the law of self-defense may act upon appearances and will be justified in acting upon them even though they happen to

Point VII made by the appellant is the refusal to give an instruction to the effect that defendant in forming the belief as to the imminence of danger and the necessity of taking the life of his adversary had the right to take into consideration the bad reputation of the deceased for being a dangerous person. He contends that the instruction already cited by us is not broad enough to fully protect the defendant’s rights. The instruction plainly shows that the phrase “bad reputation,” therein contained, referred to the matter of the danger in which the defendant stood, and her bad reputation was to be considered as part of that danger. This, of course, included her reputation as a “dangerous character,” if she had such reputation. '•

[8] The next error claimed by appellant is the refusal to give an instruction that absolute necessity for self-defense exists when a person who has not brought on the assault is placed in “such jeopardy by the sudden attack of the assaulting person in a murderous manner.” There was not before the court sufficient evidence to make this instruction applicable to the case.

[9] The appellant’s point IX is answered by the instruction shown in the clerk’s transcript, pages 44 and 45, wherein the court stated the law on the point raised in the proposed instruction, in that he informed the jury that defendant might be justified in taking the life of deceased even though it later proved that he might have gained safety in flight.

[10] Point XII, wherein appellant alleges as error the refusal to give the following instruction: “You are instructed that where a person is forced to the necessity of self-defense he may pursue his adversary until he finds him

[12] The ruling denying the motion for an instructed verdict was entirely correct. Such ruling may not be reviewed here, beyond the point of determining “whether there was an absence of any substantial evidence as to some fact that the prosecution was bound to prove.” (People v. Lewis, 124 Cal. 551 [ 45 L. R. A. 783 , 57 Pac. 470 ].)

The judgment and order are affirmed.

Conrey, P. J., and Houser, J., concurred.