People v. Washington

YORK, J.

About 10:30 of the night of March 28, 1930, the deceased, Leon Hill, was shot while in the apartment of one Mary Washington, from the effects of which he died on June 2, 1930. Defendant at the trial admitted that he called at the Washington apartment that evening between 9:30 and 10 o’clock. The theory of the prosecution was that the defendant made two calls at the home of Miss Washington on the night in question, and that it was on the occasion of his second visit that the shooting occurred. Appellant, however, maintains that this theory was completely demolished by the testimony of one Blackman, a witness for the People, and that this testimony established an alibi on behalf of appellant by proof that, at the time when the crime was committed, appellant was with Blackman at places located so far from the apartment of Miss Washington that the crime could not have been committed by him. Appellant further contends that the evidence is totally insuffi

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cient to sustain the judgment, for the reason that the evidence relied upon to uphold the judgment is so inconsistent or improbable as to be incredible.

As is usual in cases of this character, there is a direct conflict in the evidence adduced. However, we cannot say that the evidence necessarily establishes the alibi on .which appellant relies. On the contrary, there is abundant •evidence' which strongly supports the verdict.

In his specification of error (c), at page 65 of brief, appellant criticises two of the instructions given to the jury. First, that the instruction defining murder (Clerk’s Tr., pp. 30-36) is erroneous for the reason that it assumes that defendant did the shooting. The case of

People

v.

Besold,

154 Cal. 363, 370 [97 Pac, 871, 874], involving a similar instruction to that given in the instant case, holds that “It is impossible to declare, in each instruction, the law governing every phase of the entire case. But even if we assume that the charge quoted, taken by itself, involved an assumption that there had been a killing, and that it had been done by the defendant, it will readily be seen, on an examination of other instructions given, that no such intimation was intended by the court, and that the instruction could not have been so understood by the jury. To determine whether or not the law was properly declared for the guidance of the jury, we are to look, not to an isolated excerpt from the instructions, but to the charge as a whole.” (Citing cases.)