People v. Passafiume

CONREY, P. J.

Defendant was charged with the crime of assault with a deadly weapon with intent to commit murder. He was convicted of assault with a deadly weapon. He appeals from the judgment and from an order denying his motion for a new trial.

That the victim of the assault—a police officer named Delaney—was shot by some person at the time and place described in the evidence is a fact established beyond dispute. The defendant was positively identified by witnesses as the man who did the shooting. His defense was that of an alibi by introducing testimony tending to prove that he was at another place at the time of the assault, and therefore could not have been guilty of this crime.

It is conceded that the evidence is sufficient to sustain the verdict. But it is contended that the defendant was seriously prejudiced by erroneous instructions of the court to the jury. In the questioned instruction concerning the defense of alibi, the court said: “While you are not to hesitate at giving this as a defense full weight—that conclusive effect to which, when established, it is justly" entitled, either as entirely satisfying you of the .innocence of the defendant or as creating the reasonable doubt which entitles the defendant to an acquittal—still, you are to scrutinize the testimony offered in the support of an alibi with care, that you may be satisfied that a fabricated defense is not being imposed upon you.” It is claimed that this instruction is similar to that criticised by the supreme court in

People

v.

Levine,

85 Cal. 39 [22 Pac. 969, 24 Pac. 631], It differs substantially from the instruction considered in that case, and also from the instruction condemned by the supreme court in

People

v.

Smith,

189 Cal. 31 [207 Pac. 518.] The instruction given in the present case does not contain

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the language which was disapproved in those two decisions. It does not contain any statement expressing distrust of the defense in question, or any warning that it should not be fairly and properly considered by the jury, so far as justified by the evidence. The objection urged by appellant is without merit.