People v. Rogers

DRAPER, J.

A jury found defendant guilty of murder of the second degree, and he appeals from the ensuing judgment.

The homicide which is the basis of this prosecution occurred in the course of a fight between two groups. As is often true, neither defendant nor decedent participated in the quarrel which precipitated the fight.

Following a near collision of their automobiles, one Reiser and one Johnson exchanged angry remarks. The dispute occurred immediately outside Johnson’s home. Reiser announced that he would return, and Johnson said: “Come on back.” Reiser returned in a few minutes with a half dozen friends, including decedent Grilho. Friends of Johnson, including defendant, had gathered to his defense. Reiser and

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his friends left Reiser’s car and advanced upon Johnson, who stood upon the lawn of his own home. Reiser struck Johnson, and a general melee ensued, in the course of which decedent was fatally stabbed.

The evidence established that defendant had a switchblade knife capable of inflicting the wound which caused the death, and defendant, in a statement to police officers, admitted stabbing two men in the course of the affray. There is no direct testimony that decedent was one of the men stabbed by defendant (four men suffered stab wounds in this fight), but on the whole record we are convinced that there was sufficient circumstantial evidence to warrant a finding that defendant inflicted the fatal wound.

The jury, however, was instructed that one “who has sought or induced the quarrel’’ cannot assert self-defense unless he “decline further combat, honestly endeavor to desist therefrom, and fairly and clearly inform his adversary . . . of his desire for peace, and that he has abandoned the contest.’’

Appellant concedes that the instruction correctly states the law, but contends that this rule of law has no application to the facts at bar. It is clear that an instruction, although correct as an abstract statement of law, is erroneous if not applicable to the evidence introduced.

(People

v. Roe, 189 Cal. 548, 558 [209 P. 560];