256 P. 270 | Cal. Ct. App. | 1927
Appellants were found guilty of the crime of assault with intent to commit murder. *620
This case presents but a single question on appeal. Appellants assign as error the refusal of the trial court to give the following instruction: "If you believe from the evidence that defendants, or any of them, did not commit an assault upon the person of Yee Moon with a deadly weapon, with intent to commit murder, and if you believe from the evidence that defendants, or any of them, did commit an assault upon Yee Moon with a deadly weapon without the intent to commit murder, then it is your duty to find the said Yee Moon guilty of an assault with a deadly weapon." It appears from the evidence that on the nineteenth day of August, 1926, a "state of war" existed between certain Chinese tongs, the Hop Sing Tong and Bing Kong Tong; that Yee Moon, the complaining witness, knowing that the defendants were driving an automobile through Santa Barbara, armed himself with a revolver, left the headquarters of the Hop Sing Tong in said city, and proceeded in his automobile to a point in the streets of Santa Barbara, where shooting commenced between the defendants and the prosecuting witness. The testimony is in conflict as to whether the defendants or the prosecuting witness first started shooting. The defense was that the defendants fired in self-defense and to protect themselves. One of the defendants, Quang Shick, testified that in firing at the complaining witness he did not intend to kill him. The jury resolved the issue of self-defense in favor of the prosecution. Defendants contend that the trial court erred prejudicially in refusing to give the requested instruction in that the evidence of the defendants, if believed by the jury, would justify a verdict of an assault with a deadly weapon, that being an offense necessarily included within the charge of an assault with intent to commit murder.
[1] We believe the position of defendants to be correct. Defendants were entitled to the requested instruction where there was evidence upon which a conviction of the lesser offense might be based. Section
[4] At the time of oral argument our attention was called to a clerical error in the above instruction in that the instruction charges the jury under the circumstances given "to find the said Yee Moon guilty of an assault with a deadly weapon." Yee Moon was the prosecuting witness, and the name of Mock Ming Fat, the defendant, should have been used instead of Yee Moon. As already stated, it is evident that this error was purely clerical. If the instruction had been given as requested, we do not see how the jury could have failed to understand that the instruction applied only to the defendant Mock Ming Fat, who was on trial, and not to Yee Moon, the prosecuting witness. In fact, the error was not discovered by counsel for respondent at the time of the filing of the original briefs and was first mentioned at the time of oral argument. Respondent cites the case of People v. Smith,
[5] For the reasons stated, we cannot say, after a consideration of the entire evidence, that if the instruction had been given as requested, the jury would have returned a verdict that the defendants were guilty of an assault with intent to commit murder rather than an assault with a deadly weapon. Therefore, the provisions of section 4 1/2 *624 of article VI of the constitution do not justify an affirmance in this case.
It is ordered that the judgment be reversed and the cause remanded for a new trial.
Conrey, P.J., and Houser, J., concurred.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 27, 1927.