People v. Jackson

AGEE, J.

Defendant appeals from a judgment of conviction of assault with a deadly weapon (pocket knife) entered upon a jury verdict. (Pen. Code, § 245.) He is an ex-felon, having been convicted in Kentucky in 1934 of storebreaking and in 1936 of assault with intent to commit robbery. He was sentenced to state prison for the instant offense.

Defendant’s only justification for the cut inflicted upon the complainant is self-defense and his sole contention on appeal is that the jury was not instructed on the doctrine of appearance as it relates to such defense.

Defendant requested but the trial court refused to give the following instruction: “It is lawful for a person who is being assaulted, and who has reasonable ground for believing that bodily injury is about to be inflicted upon him, to stand his ground and defend himself from such attack, and in doing so he may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.” (Exact wording of CALJIC No. 621.)

A defendant in a criminal action is entitled to an instruction on his theory of the case as disclosed by the evidence, no matter how weak such evidence may be.

(People

v.

Carmen,

36 Cal.2d 768, 773 [228 P.2d 281].) The evidence which supports defendant’s theory of self-defense discloses the following facts.

On December 7, 1963, about 3 :30 p.m., complainant was drinking beer at the Boot Club in the town of Areata. Defendant asked him to repay a loan of $10 which he had made to him about one month before. Complainant said he didn’t have it. Defendant told him that he was about “broke” and asked complainant if he could let him have $5 on account.

Complainant thereupon pulled defendant’s eyeglasses off, called him a bad name, and started hitting him in the face

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with his fists. Defendant was between two stools, with his back to the bar, and could not get out. Meanwhile, complainant was “pounding” defendant in the face, inflicting a cut over one eye and bruises on his cheeks.