People v. Howland

TAGGART, J.

Appellant was informed against for the crime of murder, and upon a plea of “not guilty” was found guilty of murder in the second degree and sentenced .-to imprisonment in the state’s prison for a term of eighteen years. He appealed in open court from the judgment of conviction and from an order denying his motion for a new trial.

The record on appeal consists of copies of the information, the minutes of the court, the motion for a new trial, the instructions given to the jury, and the instructions requested

[365]

by the defendant which were refused by the court; but no evidence is brought up, and no application was made to the trial court to have the reporter’s notes transcribed. The errors of the trial court which are presented in support of the appeal are the giving of two instructions by the court, on its own motion, relating to “self-defense” and “circumstantial evidence,” and designated respectively as instructions “E” and “K,” and its refusal to give an instruction No. 20, relating to “the character of the deceased,” at the request of the defendant.

It is apparent at once that in the absence of any evidence we cannot say that it was prejudicial error to refuse to give the latter instruction, as the propriety of giving or not giving an instruction is to be determined by the evidence in the case, except where it would be erroneous in every conceivable state of facts.

(People

v.

Mendenhall,

135 Cal. 347, [67 Pac. 325] ;

People

v.

Wong Fook Sam,

146 Cal. 115, [79 Pac. 848].) For the purpose of supporting the ruling of the court we must presume that no evidence was introduced relating to the character of the deceased.

Instruction “E” does not declare any rule of law-except that which may be deduced from the last clause, to wit, “that the defendant could not justify the killing of the deceased under the plea of self-defense, if he himself was the aggressor and had precipitated the conflict.” The first element in the instruction, based upon the theory that “defendant had invited the deceased into the room or place where the killing occurred,” was entirely immaterial. That “he had threatened to kill the deceased or do him some bodily harm”, became material only as connected with the facts and circumstances of the killing. Whether or not the defendant was called upon in good faith to decline any further struggle, as contended by appellant, must be determined from the evidence, and there is no evidence before us.