People v. Williamson

ALLEN, P. J.

Appeal by defendant from a judgment of conviction and from an order denying a new trial.

The bill of exceptions discloses that one Parry was shot and killed on July 17, 1905, in room 27 of a lodging-house in the city of Los Angeles operated by defendant; that the shot which occasioned the death came from a pistol then held in the hands of defendant. About these matters there is no controversy.

The theory of the defendant, which was supported by evidence tending to establish the truth thereof, was that deceased had, on the 4th of July preceding his death, made an assault upon defendant with intent to commit a rape; that in the struggle which ensued her neck and wrists were bruised and injured; that on the next morning he left defendant’s rooming-house, but on the following Tuesday returned, and, in the absence of defendant, again secured a room in the lodging-house; that several days afterward defendant learned that he was again an occupant of the room, and on Monday morning, the 17th, defendant encountered him in a hall of the house; that the deceased again made improper and threatening advances, when defendant ordered him to leave the house at once; that deceased refused to go and called defendant a vile name; that she gave him ten minutes to leave the house and went downstairs and secured a revolver; that armed with this revolver defendant went to a window leading into the room of deceased, and, leaning over the window into the

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room, showed him the pistol and again ordered him to leave; that he promised to do so, when defendant, who was standing on her toes in order that she might lean through the window, sought to regain her equilibrium, and in the effort the pistol was accidentally discharged, producing the death.

Upon the trial in due time, defendant requested the court to give to the jury the following instruction, numbered VII :

“I instruct you that if you find from the evidence that the defendant at the time of the difficulty was the lessee of the house wherein the difficulty occurred, and was conducting it as a rooming and lodging-house, and that the deceased had shortly theretofore, at the said house, assaulted the defendant and attempted to rape her, and at the time of the difficulty he made an indecent proposal to her to have sexual intercourse with him, or attempted to have sexual intercourse with her against her will, or by his conduct led her, as a reasonable woman, to believe that he then and there intended to force her to have sexual intercourse with him against her will and consent, that she had a perfect legal right to command him to leave her home and to demand of him that he leave at once. The defendant would not be compelled to shelter within her home the deceased if he had attempted to commit a felony upon her and by his conduct led her, as a reasonable person, to believe that he intended to do so at the first opportunity that presented itself. I further instruct you that under such circumstances the defendant would not only have the right to go to the room of the deceased and demand of him that he leave her house, but that if the conduct of the deceased led her to apprehend, and she did as a reasonable woman apprehend, that he would at such time commit a felonious assault upon her, she had a perfect right to arm herself with a pistol or other deadly weapon to protect her life and person against such assault, and to take it with her when she went to his room. And defendant would have the right, under such circumstance, to exhibit said weapon for the purpose of preventing such apprehended assault. And if you find that the defendant did, under such circumstances, go to the room of the deceased for the purpose of demanding that he leave her house and that she took the pistol with her to protect herself and her person from such apprehended assault, and while so doing the weapon was accidentally and unintentionally discharged, whereby the deceased was killed, you