275 P. 1017 | Cal. Ct. App. | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *539 Two indictments were returned by the grand jury of Los Angeles County against the defendant, both of them charging him with assault with intent to commit murder, one of them alleging that he did commit an assault with a deadly weapon upon the person of one Dominick Conterno, and the other that he committed an assault with a deadly weapon upon the person of Harry Judson. Verdicts of guilty of assault with a deadly weapon were returned by the jury and this appeal is from the judgments pronounced upon the verdicts and from an order denying the defendants' motion for a new trial.
[1] Before reviewing in detail the testimony which appellant says is insufficient to support the verdicts we shall address ourselves to the other specifications or assignments of error in the order set out in his brief, the first of which is that the court erred in refusing to give an instruction requested by him to the effect that the offense of assault is one necessarily included in the offense charged in the indictments, and instructed the jury that the defendant might "be convicted of either the crime of assault with a deadly weapon with intent to commit murder, or the crime of assault with a deadly weapon." It is well for us to note *540
at this juncture that Conterno and Judson were both shot and injured during the disturbance out of which the charge against appellant arose. The attorney-general asserts that it was this act of shooting for which the appellant was put on trial and not for a fist fight which preceded it. We have already observed that while the indictments charged the offense of assault to commit murder, yet they stated the facts constituting the assault by saying that appellant did "wilfully, unlawfully, feloniously and with malice aforethought, commit an assault with a deadlyweapon upon the person" etc. (Italics ours.) Our first consideration, therefore, is to determine the effect of this language in the indictment. In People v. Owens,
Flowing from this situation there is another reason why the appellant may not complain of the refusal of the court to instruct the jury that it might find appellant guilty of assault. In People v. Lopez,
[2] The next three assignments of error by the appellant are all based upon the instructions given and refused relative to the question of self-defense. He first notes an objection to an excerpt from the instruction on this subject which reads as follows: "Whenever an assault is brought upon a person by his own procurement, or under an appearance of hostility which he himself creates, with a view of having his adversary *542 act upon it, and he so acts, the plea of self-defense under such circumstances is unavailable." Appellant's assertion that this portion of the instruction is erroneous is based upon his statement that there was no evidence which justified it. He concedes that it states a correct principle of law. There is testimony that prior to the firing of the shots the appellant asked a Mr. Freeman while they were in the washroom of the ship cafe, where the disturbance began, "who the jane was" with whom Freeman was dancing, and when the appellant was told that it was none of his business he knocked Freeman down, cutting his mouth and causing the blood to run; that a few seconds later when Freeman re-entered the cafe the appellant knocked him down again and said, "Get up and I will give you a right." Following this incident Conterno testified that he approached Freeman while he was still on the floor and said, . . . what is the matter, Mr. Freeman, or who hit you and somebody had said `why the man to your left,' and just as I turned and looked, why I saw this man," (appellant) "pretty good sized man there, and at that instant he made a pass at me as though he wanted to hit me and at that instant I got in a fight myself with him." It cannot be successfully argued that the testimony to which we have just made reference did not justify the jury in finding as a matter of fact that the appellant had instigated the fight which led up to the shooting and thereby had put himself in a position where the "plea of self-defense" was unavailable to him under the law as stated in the instruction.
[3] Appellant next complains because the court instructed the jury as follows: "The court instructs the jury that a person, on whom another is making a mere assault with the fist, not with the intent to kill or do great bodily harm, and who is not deceived as to the character of such assault, is not justified in using a deadly weapon in self-defense," and because the court refused to give two instructions requested by the appellant to the effect that if he were assailed by another with his fists under such circumstances as to lead a reasonable man to apprehend great bodily injury he would have the right to defend himself as a reasonable man would, and if he so acted would be entitled to an acquittal. Standing alone, the instruction of which the appellant complains would be subject to criticism, because of *543 its emphasis of the intent of the assailant, which is not the governing factor, but it was immediately preceded and immediately followed by instructions covering the proper subject matter of the instructions requested by the appellant, and when the instructions covering the right of self-defense are read as a whole it is apparent that the jury could not have misunderstood its purport. In no less than five other instructions they were told that if on the night in question the defendant had reasonable ground to and did believe that he was in danger of great bodily injury or of having a felony committed upon him, he was entitled to use such force in self-defense as a reasonable man would have used under such circumstances. Considering the instructions as an entirety, they covered the subject fully and fairly, and the one complained of could only have been interpreted by the jury as meaning that if the appellant did not have reasonable grounds and did not actually believe that he was in danger of great bodily harm from an assault with fists he was not justified in using a deadly weapon in self-defense. As thus viewed, the instruction does not violate the law relating to self-defense. [4] Nor do we find in the language attacked the assumption of facts or comment thereon which counsel asserts. The instruction states only a hypothetical situation which may or may not have been found by the jury actually to have existed. It is sufficient to assert that one view of the testimony adduced would support the jury's conclusion that an attack upon the appellant was provoked by him and that his assailants did not indicate to him or to a reasonable mind a threat of doing great bodily injury.
[5] As already noted, the subject matter of the requested instruction was covered in instructions given to the jury, with the possible exception that the trial judge did not in express words say that "great bodily injury may be inflicted by use of the fists." He did say to them, however, that "`necessary self-defense' includes every case where there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and where the circumstances are sufficient to excite the fears of a reasonable man." (Italics ours.) For the court to have stated that "great bodily injury may be inflicted by use of the fists" would have been the statement of a commonplace, a situation comprehended by the instruction which said that *544 self-defense is available in "every case" where a reasonable man would be fearful of great bodily injury. [6] Whether the attack with fists was not provoked by appellant, and whether the circumstances of it were of such a character as to excite the fears of a reasonable man, were questions properly submitted to and left with the jury under the instructions. Nothing additional was necessary.
[7] Appellant also contends that the court committed error when it gave the following instruction:
"A person may have a lively apprehension that he is in imminent danger, and believe that his apprehension is based on sufficient cause and supported by reasonable grounds; that such apprehension is reasonable and warranted from appearances as they present themselves to him. If, however, he acts on these appearances, he does so at his peril, because the law leaves it to no man to be the exclusive judge of the reasonableness of the appearances upon which he acts, but prescribes a standard of its own, which is not only did the person acting on appearances himself believe that he was in deadly peril of his life or of receiving great bodily harm, but would a reasonable man, situated as the defendant was, seeing what he saw, and knowing what he knew, be justified in believing himself in danger?" and in connection therewith refused to give three instructions proposed and requested by him. With respect to the instruction given appellant says that it was telling the jury that the "law gives no man the right to determine for himself the character of the imminent danger" and then argues that the law does not punish an honest mistake concerning the extent of the danger which may have confronted him. He relies upon People v. Thomson,
[8] The defendant requested the court to give an instruction as follows: "The court instructs the jury one who is not related to another and comes upon that person after such person has been assaulted but when the assault is completed and is not in progress, has no right to use force upon another whom he believes was guilty of an assault upon his friend.
"Subdivision 3 of section
[10] The appellant, while conceding that it was proper for the trial court to have instructed the jury upon the issue of transferred intent, says that it should have incorporated in the instruction, as was done in the one proposed by him, but not given by the trial judge, a statement that if the assault were justifiable, that is, done in the exercise of appellant's right of self-defense, there would have been "no transferred intent." We have already observed that the jury were fully instructed upon the law and right of self-defense, and it is inconceivable that they could have understood that if they believed appellant was acting in self-defense they should do other than acquit him. This is especially true in view of the fact that in the instructions with respect to the verdicts of assault with intent to murder or assault with a deadly weapon which might be returned by the jury, the trial judge instructed them that it was necessary for them to determine that the assault was not committed in self-defense before either verdict might be found. Under these circumstances it was not improper for the court to refuse the requested instruction or to fail to incorporate its substance in the one given.
[11] Appellant very insistently urges that he was deprived of an orderly trial by jury, and that the jury received evidence out of court. The record upon which he bases this argument was made up for use and was used upon his motion for a new trial. He filed three affidavits, in one of which one of his counsel averred that on the fourth day after the verdict was returned he (counsel) had a conversation with the deputy district attorney who prosecuted the defendant, wherein the deputy told affiant that he knew that the defendant would never get an acquittal because a juror named Henderson was absolutely against him; that the trial judge had told him "the other day that the bailiff had told" the trial judge "that this juror Henderson was saying among the other jurors that your witness Perry . . . had received $5,000 from Marco to testify for him in the first trial, and that he (juror Henderson) knew your *547
witness Perry and knew that he was a friend of Marco's and that he had only testified because Marco paid him the $5,000." An affidavit by the deputy district attorney filed in response to the one from which we have just quoted denied that the conversation took place at the time mentioned or at any other time. Two additional affidavits were filed by the defendant in which the affiants (one of them being one Grainger and the other the witness Perry) stated that they called on Juror Henderson on September 13, 1928; that Perry told Henderson that he had heard that the latter had stated that he, Perry, had received $5,000 for giving his testimony; and that Henderson had made this statement in the presence of other jurors prior to the return of a verdict; that in response to these statements Henderson replied that he had so stated and that he had heard the rumor from "a crowd in Inglewood"; that "other jurors knew of others who were getting paid"; it "was a rotten mess and we wanted to clean them up." The state presented the affidavit of Henderson in reply to those filed by the defense in which this juror denied that at any time he had had the conversation with Perry and Grainger set forth by them, and denied that he had discussed the witness Perry with any of the jurors or stated to them or any of them that Perry had received $5,000 for testimony given at the first trial. It is obvious that the facts upon which both of appellant's claims are founded were squarely put in issue by the affidavits filed by the prosecution. The affidavit of Henderson denied that he had made the statement to other jurors, and the affidavit of the deputy district attorney denied that he had ever quoted the trial judge as saying that he had information from the bailiff concerning any misconduct. Under these circumstances it was incumbent on the trial judge to determine the issue. Undoubtedly if he had believed that the jury had received testimony in any manner other than through the regular channels of trial procedure he would have granted a new trial. By his denial of the motion for a new trial he evidenced his conviction that the juror was not guilty of misconduct, and where, as here, there is a substantial showing to uphold that conclusion, the ruling cannot be disturbed. In the case of People v. Sing Yow,
"As has already been shown, it is well settled in this state that it is for the trial court to determine whether or not the newly discovered evidence is of such a character as to make it reasonably probable that it would produce a different result on another trial, and in the determination of that question we can conceive of no good reason why the trial court should be limited to a consideration of the affidavits offered by defendant and the record of the trial. Such certainly has not been the practice in this state. In People v. Fice,
"In a note, in volume 14 of the Encyclopedia of Pleading and Practice, page 913, it is said that it is uniformly held that on the hearing of such a motion the court may examine counter-affidavits to determine whether a new trial would promote justice or result in a different judgment."
That there is a further fatal defect in the argument of counsel upon the question now under consideration is patent from the language employed in People v. Kady,
"One of the grounds upon which the motion for a new trial was based was that of misconduct of the jury, consisting, first, in an alleged experiment made by one of the jurors while the trial was in progress to determine how long it would take a box, similar to those in which merchandise of the defendants had been placed, to burn after being ignited. The sole evidence offered in support of this ground was an affidavit of the attorney for the appellant. While this affidavit contained the preliminary phrase that the affiant offered the same `based upon his personal knowledge of the facts therein contained,' at the hearing of the motion it was admitted by said counsel that he had no actual knowledge of the facts, but that the latter were intended to be stated upon information and belief from statements made by the jurors. The district attorney very properly objected to a consideration of the affidavit on the ground that the law required direct proof of the facts sought to be presented, and that any statement made solely upon information and belief would not be proper evidence. The position of the prosecutor on that question is fully sustained by the decisions. (People v.Findley,
[12] The appellant also asserts that the trial judge was guilty of misconduct and deprived appellant of a fair and impartial trial by commenting on the facts. The asserted misconduct is said to have been committed by the judge when he asked a defense witness on cross-examination four short questions concerning his knowledge of the time daylight occurred on June 27th, and his comment during a discussion with counsel based upon his judicial knowledge, concerning the twilight period before the sun arises and that one-half hour before sunrise it is sufficiently light for a hunter to shoot ducks. Assuming that there was misconduct, and we are unable to perceive any, it is a sufficient answer to say that counsel did not call it to the court's attention at the time and give him an opportunity to correct the harm, if any was done. Under a familiar rule, to support which it is unnecessary to cite authorities, the assignment must be disallowed.
[13] It is next argued that the court erred in refusing to entertain a motion that the sentences be made to run concurrently. Section
Judgments and orders affirmed.
Works, P.J., and Craig, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 28, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 11, 1929.
Preston, J., and Langdon, J., dissented. *552
