People v. Snyder

THE COURT.

Defendant was convicted by a jury of attempted murder. He appeals from the judgment and from an order denying a new trial

[708]

The evidence of the prosecution indicates that appellant was the aggressor. Appellant’s testimony, on the other hand, discloses that he acted in apparent self-defense. In view of our conclusion it is unnecessary to detail the circumstances surrounding the shooting of the victim. We find there is merit in the appellant’s contention that the trial court committed prejudicial error in charging the jury generally that a person is presumed to intend to do that which he voluntarily and wilfully does in fact do, and is also presumed to intend all the natural, probable and usual consequences of his acts. Appellant does not challenge the propriety of such an instruction in a homicide case where, under the authorities, the malice and intent are presumed from the unlawful killing and the burden is shifted to the defendant to establish mitigating circumstances and justification for the homicide, nor does he question the application of such an instruction in a ease where the offense charged does not require proof of a specific intent. But where, as here, the crime of which the defendant stands convicted, viz., attempted murder, requires proof of a specific intent to kill the victim, appellant contends that such intent, like any other fact or essential of the crime, must be proved by evidence or the inferences reasonably dedueible therefrom and may not be based upon a presumption. The authorities support the appellant’s contention.

(People

v.

Miller,

2 Cal. (2d) 527, 532, 533 [42 Pac. (2d) 308, 98 A. L. R. 913];

People

v.

Jones,

160 Cal. 358, 370, 371 [117 Pac. 176] ;

People

v.

Landman,

103 Cal. 577, 580 [37 Pac.