People v. Romero

ANGELLOTTI, J.

The defendant was informed against for the crime of assault with intent to commit murder, and

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was convicted of an assault with a deadly weapon. He appeals from the judgment pronounced upon said conviction and from an order denying his motion for a new trial.

1. The court instructed the jury that although the right to take life or use a deadly weapon in self-defense is unquestionable, “yet one on whom another is making a mere assault with the fist, not with intent to kill or do great bodily harm, and who is not deceived as to its character, is not justified in taking life or in using a deadly weapon in self-defense.”

The court elsewhere fully instructed the jury as to what would constitute a killing or shooting in self-defense.

The only objection made by appellant to the instruction quoted above is, that there was no evidence upon which to base it, it being claimed that the evidence of the prosecution was to the effect that the shots were fired by defendant without previous assault of any kind upon the part of the prosecuting witness, and that the evidence of the defense was, that the shots were fired to repel an attack then being made by the prosecuting witness and his companion, the prosecuting witness being armed with a knife, and his companion with a club.

If”it be conceded that this claim is well founded, we are unable to see how the instruction could have prejudiced the defendant’s cause. While the court should not instruct the jury on mere abstract questions of law not applicable to the circumstances of the case on trial, such action on the part of the trial court will not warrant a reversal where it is apparent that no injury could have resulted to the defendant therefrom.

There was, however, evidence given by one of the witnesses for the prosecution tending to show that immediately before the firing of the shots the defendant, who had approached to within ten or fifteen feet of the prosecuting witness and his companion, was using profane language to the prosecuting witness, Ruiz, and that Ruiz, unarmed, advanced toward defendant, telling him to come on and he would “show him what the trouble was.” This evidence, we think, afforded a sufficient basis for the instruction.