235 P. 737 | Cal. Ct. App. | 1925
Appellant was charged with the crime of murder in the first degree and upon the trial pleaded self-defense. He was convicted of murder in the second degree, and, having moved the trial court for a new trial, which was *629 denied, he appeals from the judgment and the ruling on said motion.
It was testified by appellant and by witnesses called in his behalf that the deceased had previously to the killing threatened his life, and that about a month before the commission of the alleged offense decedent drew his gun when so threatening appellant.
The ground upon which a reversal is sought is that the court below so modified a requested instruction to the jury that they were not given the law as to circumstances and appearances under which a homicide may be said to have been justified. [1] The instruction requested read as follows:
"You are further instructed that a person may lawfully take the life of another when the circumstances are sufficient to excite the fears of a reasonable man and the party killing acted under the influence of such fear; that, to justify such killing, it is not necessary that the danger be actual, but that it is enough if it be apparent, that a party may lawfully act upon appearances which would put a reasonable man in fear of danger and that he will not, when acting upon such appearances, be held liable, although it should afterwards appear that the indications upon which he acted were entirely false and that he was in no actual peril."
The first clause above quoted was modified by adding one word, and the balance was eliminated, so that when given the instruction read as follows: "You are further instructed that a person may lawfully take the life of another when the circumstances are sufficient to excite the fears of a reasonable man and the party killing acted under the influence of such fear alone."
Appellant also takes exception to the use of the word "alone" as it appears in the instruction just quoted, apparently upon the ground that it limits the right to take the life of another in self-defense to cases where the act is done under the influence of fear of the danger designated. If it be conceded that he is correct in his interpretation of the instruction, it is equally certain that the instruction given contains a correct statement of the law, and conforms to the provisions of sections
Although the trial court did not state in the terms requested by the defendant that actual danger was unnecessary in order that a party might lawfully act upon appearances which would put a reasonable man in fear of peril, the true rule to determine legal liability for a homicide committed under the circumstances involved in this case was stated in the language last quoted. If the principle thus stated were applied, it must necessarily follow that a killing would be justified where the appearances were such as to put a reasonable man in fear of imminent danger of his life or of great bodily injury, and that actual danger is unnecessary. The jury were instructed also that the acts which a defendant may do and justify under a plea of self-defense depend primarily upon his own conduct and secondarily upon the conduct of the deceased; and that homicide is justifiable when resisting any attempt to murder any person or to commit a felony, or to do some great bodily injury upon *631 any person, or, when committed in the lawful defense of such person when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury and imminent danger of such design being accomplished. It was further said in an instruction given upon request of appellant that the jury must acquit him unless every fact necessary to establish his guilt had been proven to them beyond a reasonable doubt.
Appellant cites People v. Dallen,
As we have seen, the instructions given in the instant case were in conformity with sections
In People v. Fowler,
We think the instructions which we have summarized properly stated the law, as well as presented to the jury appellant's theory of the case, only in different language from that submitted to the trial court by his counsel.
The judgment and order appealed from are therefore affirmed.
*632Finlayson, P.J., and Works, J., concurred.