People v. Vernon

CRAIG, J.

Appellant was charged with the crime of murder in the first degree and upon the trial pleaded self-defense.' He was convicted of murder in the second degree, and, having moved the trial court for a new trial, which was

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denied, he appeals from the judgment and the ruling on said motion.

It was testified by appellant and by witnesses called in his behalf that the deceased had previously to the killing threatened his life, and,that about a month before the commission of the alleged offense decedent drew his gun when so threatening appellant.

The ground upon which a reversal is sought is that the court below so modified a requested instruction to "the jury that they were not given the law as to circumstances and appearances under which a homicide may be said to have been justified. The instruction requested read as follows:

“You are further instructed that a person may lawfully take the life of another when the circumstances are sufficient to excite the fears of a reasonable man and the party killing acted under the influence of such fear; that, to justify such killing, it is not necessary that the danger be actual, but that it is enough if it be apparent, that a party may lawfully act upon appearances which would put a reasonable man in fear of danger and that he will not, when acting upon such appearances, be held liable, although it should afterwards appear that the indications upon which he acted were entirely false and that he was in no actual peril.”

The first clause above quoted was modified by adding one word, and the balance was eliminated, so that when given the instruction read as follows: “You are further instructed that a person may lawfully take the life of another when the circumstances 'are sufficient to excite the fears of a reasonable man and the party killing acted under the influence of such fear alone.”

Appellant also takes exception to the use of the word “alone” as it appears in the instruction just quoted, apparently upon the ground that it limits the right to take the life of another in self-defense to cases where the. act is done under the influence of fear of the danger designated. If it be conceded that he is correct in his interpretation of the instruction, it is equally certain that the instruction given contains a correct statement of the law, and conforms to the provisions of sections 197 and 198 of the Penal Code.