delivered the opinion of the court.
It is admitted herein that the prosecuting witness, Evan Augustine Sanchez, hereafter referred to as Sanchez, was shot in the lower abdomen by the pistol mentioned in the information while it was in thе hands of the defendant. He was seriously wounded, was in the hospital for 2 Vía to 3 months and had two operations performed upon him, in the second of which the bullet which entered his body was extracted. The shooting occurred in what is called the Paris Rooms situated in the city of Rawlins in this state.
A number of exhibits were introduced in evidence, including a map of the Paris Rooms. None of these exhibits are in the record before us so that the jury must have had a somewhat better understanding of some of the evidence than this court could have in the absence of such exhibits.
The evidence in the case was extremely conflicting.
The defendant denied having asked for or received any money. She testified that she leased the Paris Booms which had five bedrooms, two sitting rooms and a bathroom, kitchen and pantry. On the evening of August 26, 1957, she went to the door when the doorbell rang. The prosecuting witness stated that he was looking for a “girl”. The defendant said that there were no girls there but the prosecuting witness stated that she would do. She told him that she was menstruating at the time and could have no intercourse with a man in any event at that time. Sanchez, however, said he did not care about that, grabbed her and pushed her into the bedroom. The defendant stated that he pushed her over to the foot of the bed, fell on top of her, put his arm across her throat so that she couldn’t breathe and that they wrestled on the bed. She stated that the prosecuting witness hit her and kickеd her, that she was half-unconscious during the affray, that the prosecuting witness either raped her or attempted to rape her, that she finally got loose, got hold of the gun in question and told him to get out. When near the door leading to the outside, the prosecuting witness grabbed her and the gun went off accidentally.
Counsel for defendant have epitomized the main part of defendant’s testimony as to what took place subsequent to the time when she and Sanchez got out of bed as follows:
“* * * I glanced over in this drawer which was open and I saw a gun laying there so I picked it up. I though maybe I could scare him or something into leaving. I had locked myself in the bedroom from the inside. I heard my dog crying and Iopened the door and the dog ran into my bedroom, and Sanchez saw the gun and I told him you better leave now and I closed the bedroom door again. And then I stood there for a couple of minutes or I don’t know just exactly how long I stоod there exactly and I heard a door slam so I thought he had gone out but when I got out and I wanted to go in the kitchen and get to the telephone because the phone was in the kitchen, it was a pay phone and I had to go in the kitchen to get to the phone for help. When I opened up the bedroom door I didn’t see anybody. The kitchen door was closed but I thought he had gone on out so I walked on out into the kitchen and when I got past the doоr out of the corner of my eye I seen him hiding in the pantry so I jumped out in the center of the kitchen as far as I could and told him to come out of there and get on out of the house. No door on pantry in kitchen. Door of bedroom opens into kitchen. No door on pantry. He was behind the door inside the pantry. There is a little wall there but the wall does not have a door in it. He was behind this wall and behind the door that — the bedroom door. Then I told him to get out and sо he came out of there and he started up to the front and I followed him and I had the gun in my hand. I never laid it down and I got up to the front door and I don’t know why but instead of telling him to open the door I reached over with my left hand to open the door. When I reached to open outside door at staircase he lunged at me like he was going to take the gun away from me and the gun went off. * * *”
It is obvious from this brief statement of facts that the evidence was totally conflicting. It is not for this court to resolve that conflict. That was the duty of the jury. We cannot interfere with their verdict, even if we might think that the conflict was resolved wrongly. There is no merit in the contention of counsel for the defendant that the defendant’s testimony must be taken as true in view of the fact that Sanchez
The record fails to disclose the relative physical strength of the prosecuting witness and the defendant, a matter of some importance in view of the defense herein. The jury saw them both on the witness stand. For aught we know, Sanchez was small and puny while the defendant was physically strong, thus causing the jury to disbelieve her testimony for that reason alone.
We might incidentally mention that the prosecuting witness was 21 years of age, had been in the Basin Industrial School at Worland, Wyoming, and also in the reformatory at El Reno, Oklahoma, and had been in jail a number of times in Rawlins. It was probably this fact, among others, which induced the jury to find a verdict merely of aggravated assault and battery.
1. It is contended by counsel for the defendant that the court erred in overruling the motion for a directed verdict in favor of the defendant and that the evidence was insufficient to convict her, particularly in that there was no showing of any malice or intent on the part of the defendant to shoot or injure Sanchez. We cannot agree with counsel for the defendant. They refer in the main to the testimony of the defendant and ignore the testimony of Sanchez. In considering the point here urged, we must, in accordance with a well-known rule, disregard the testimony of the defendant insofar as inconsistent with the testimony of Sanchez and consider only the testimony which tends
We do not, and the jury evidently did not, judging from their verdict of a comparatively minor offense, overlook the fact that any woman, even one who is “plying her trade”, would resent the crude, insolent manner in which Sanchez referred tо her, whose favors he sought, as a prostitute. The jury doubtless would have overlooked a moderate punishment inflicted upon him, but for the defendant to carry her resentment to
2. Counsel for defendant and appellant contend that it was error for the court to give Instruction 17 which reads as follows:
“The Court instructs the jury that in weighing the evidence in a cаse of this kind, it is within the province of the jury to take into consideration your own knowledge and experience in arriving at your conclusions.”
Counsel contend that the jury can only consider knowledge and experience which they possess in common with mankind in general and that contention is well taken. See Annotations on the subject in
It would have been better if the instruction complained of in this case had directed the jury that they might consider their knowledge and experience in common with mankind in general and the instruction given herein, we think, should be avoided in the future. Still we must determine as to whether or not the giving of the instruction as it reads was reversible error and whether it affected the substantial rights of the defendant. We must in this connection consider Instruction 25 which reads as follows:
“It is your duty as jurors to decide this case upon the law and on the evidence as you have heard it here in Court, and when you retire to the jury room you should not refer to, discuss or consider anything in connection with the case except the evidence received upon the trial and the instructions of the Court. All extraneous matters, statements and suggestions should be carefully disregarded by you, and you should base your verdict solely upon the evidence, and guided by these instructions alone.”
If the jury had received the impression from Instruction 17 that they could act upon their own personal knowledge of a particular fact known only to themselves, it would have been reversible error, but the instruction does not go that far. It specifically states that the knowledge and experience which the jurors have is limited to weighing the evidence in this case. Instruction 25 specifically states that they cannot re
8. Perhaps the mоst troublesome question in the case is as to whether or not the court should have given Instruction A asked by defendant reading as follows:
“You are instructed that a person may lawfully arm herself in reasonable anticipation of a dangerous attack and the mere fact of arming does not justify an inference that it was done for the purpose of attacking Evan Augustine Sanchez.
“Therefore if you find that the defendant, Dorothy Brown, armed herself in reasonablе anticipation of a dangerous attack by Evan Augustine Sanchez, this fact does not deprive the defendant of the right of self-defense nor may you infer from this fact alone that she held the gun for any other purpose than to defend herself.”
The court refused to give it and this is claimed to be reversible error. Instead the court gave Instructions 18 and 19 reading as follows:
“Instruction No. 18. The Court instructs the jury that the right to defend one’s self against danger, not of his own seeking, is a right which the law not only concedes but guarantees to all men. The defendant may, therefore, have shot her assailant, either accidentally or intentionally, and still be innocent of any offense against the law. If, at the time she shot the prosecuting witness, you find from the evidence that she had reasonable cause to apprehend on the part of the prosecuting witness a design to do her serious personal injury, and there was reasonable cause for her to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger, she shot, and at the time she did so, she had reasonable cause to believe, and did believe, it necessary for her to shoot in the way she did to protect herself from such apprehended danger, then, and in that case, the assault was not felonious, but was justifiable, and you ought to acquit her upon the ground of necessary sеlf-defense. It is not necessary to this defense that the danger should have been in fact actual or real, or that the danger should have been impending and immediately about to fall. All that is necessary is that defendant had reasonable cause to believe, and did believe, these facts. But, before you acquit on the ground of self-defense, you ought to believe that the defendant’s cause of fear and apprehension appeared, at thе time, reasonable to her.”
“Instruction No. 19. The Court instructs the jury that if you believe, from the evidence, that the defendant, Sheila Brownley, was acting in self-fense, believing that she was in imminent danger of serious bodily harm or injury, as elsewhere explained in these Instructions, and that she continued to act in self-defense, at the time she fired the shot in question, then defendant would be entitled to an acquittal. Under the law of self-defense, a person has the right to defend herself, and to fire a shot at her assailant, so long as the danger of serious bodily harm or injury to her person, real or apparent, considered from the defendant’s standpoint, continues to exist. If the defendant fired the shot in question in self-defense, as explained in these Instructions, or if the gun was accidentally discharged, at the time the prosecuting witness, Evan Augustine Sanchez, was shot, you should find the defendant not guilty.”
“It has bеen held that one may lawfully arm himself in reasonable anticipation of a dangerous attack. * * * To do so may, of course, have a tendency to show the state of mind of the defendant, although it has been held that the mere fact of arming does not justify the inference that this was done for the purpose of attacking the deceased. * * *”
The Bristol case did not involve any instruction on the subject. What was said was in connection with the question as to whether or not Bristol was the aggressor. If any instruction similar to that asked is given it should probably characterize the “dangerous attack” more particularly, as, for example, the instruction which was held should have been given in State v. Burkett,
“ ‘You are instructed that one who has reasonable grounds to believe that another will unlawfully attack him, and that the anticipated attack will be of such a character as to endanger his life or limb, or to cause him serious bodily hаrm, has a right to arm himself for the purpose of resisting such attack.’ ”
The law relating to the duty of the court to give an instruction on the right of the accused to arm himself is stated in 41 C.J.S. Homicide § 378 c (4), pp. 177, 178, as follows:
“Where the court restricts the issue of self-defense by submitting the issue of provoking the difficulty, as considered supra subdivision b of thissection, it should also instruct the jury as to accused’s right to arm himself in anticipation of danger, and, where such an instruction is warranted by the evidence, a refusal to give it constitutes error. Such an instruction, however, is neither necessary nor proper where such an issue is not raised by the evidence in the case, as where the evidence shows that, although accused was carrying a weapon at the time, he was doing so merely as was his usual custom, and not in anticipation of danger from deceased; nor is such an instruction required where the court instructs as to self-defense without any limitation as to рrovoking the difficulty.”
This statement is contained under the subject of homicide but we think it would be also applicable here. The court in State v. Burkett, supra, in referring to this statement, states as follows at
“Examining the numerous Texas decisions cited to this section, we find the distinction very clearly drawn between cases wherein the instructions gave the defendant the perfect right of self-defense, and those in which such right was abridged or limited by the instructions by submitting the issue of provoking- the difficulty. In the former class of cases it is not necessary to instruct as to the right of the defendant to arm himself in anticipation of attack. Smith v. State,81 Tex.Cr. 368 ,195 S.W. 595 . But otherwise in the latter class of cases. Brown v. State,85 Tex.Cr. 493 ,213 S.W. 658 .”
Special circumstances might require the court to give an instruction on the right of one to arm himself. See, for instance, Bevley v. Commonwealth,
Furthermore, the instructions given by the court on self-defense stated that under the facts mentioned therein the defendant had a right to shoot and kill if necessary. That right necessarily included the right to arm herself. That is doubtless the reason why it is stated in 41 C.J.S. Homicide § 378 c (4), p. 178, that it is not necessary to give an instruction on the right to arm one’s self where the court instructs as to self-defense without any limitation as to provoking the difficulty. No instruction on the subject of provoking the difficulty was given in the case at bar, and we, accordingly, see no reason why we should not accept the rule as stated above, and so we cannot hold that the refusal to give Instruction A was reversible error.
Counsel for defendant also complain of the giving of Instruction 10 which reads in part as follows:
“You are further instructed that the intent to kill is not an element of either aggravated assault and battery or simple assault and battery, and the defendant may be found guilty of either of these two crimes even though you should find from the evidence that she did not intend to kill Evan Augustine Sanchez, provided, of course, that you find from all the evidence, beyond a reasonable doubt, the 'presence of all the other facts which we necessary to constitute these crimes.” (Emphasis supplied.)
Counsel say that this instruction should not have left the jury to speculate or guess what the court meant by “the presence of all the other facts which are necessary to constitute these crimes.” We think, however, that the court’s instruction in that respect is sufficient and was covered by two instructions of the court.
In view of what we have said, it follows that the conviction and judgment of the court herein must be and are affirmed.
Affirmed.