People v. Searing

[141]

McCOMB, J.

Defendant was convicted after trial by jury of assault with a deadly weapon. The appeal is from the judgment.

Viewing the evidence most favorable to the prosecution

(People

v.

Dukes,

90 Cal. App. 657, 659 [266 Pac. 558]), the facts in the instant case are:

September 8, 1936, Mr. Evans took defendant’s wife to her home after a dance. Defendant had shortly before left the party and walked home. After Mr. Evans and Mrs. Searing had driven into the driveway of her residence, defendant approached them and without warning struck Mr. Evans in the face and over the head with the butt end of a shotgun, which resulted in his receiving a broken nose and fractured skull.

Defendant relies for reversal of the judgment on the following propositions:

First: The trial court committed prejudicial error in the reception and rejection of evidence.

Second: The trial court committed prejudicial error in refusing to give the following instructions:

(a) “If the defendant, after his previous difficulty with Conrad Evans, feared a sudden attack from Evans, he was justified in arming himself for self-protection and defense, and under such circumstances, his arming should not be construed. as evidence of malice to injure Evans.”

(b) “The law does not require that the defendant should wait until an actual assault upon him has reached the stage where resistance would be useless. If the situation is such that a reasonable man, in the situation of the defendant would be justified in believing that his life was in danger, or that a felony was about to be committed upon him, he could act; and what is apparent danger, should be considered by you as real danger.”

■

Third: It was prejudicially erroneous for the trial court to permit defendant to be further cross-examined after the defense had rested its case.