People v. Anderson

By the Court, Crockett, J.: The argument on the rehearing in this cause has convinced me that the judgment ought to be reversed. The eighth instruction, given at the instance of the prosecution, was clearly erroneous. In defining the right of self-defense it tells the jury that this right “cannot be exercised in any case, or to any extent not necessary. The party making the defense is permitted to use no instrument and no power beyond what will prove simply effectual.” This definition excludes all that class of cases in which the act imputed to the accused was apparently one of necessary self-defense, though as it afterward appeared, he was, in fact, ill no danger of suffering a bodily injury. If a gun be pointed at one in a threatening manner, under such circumstances as to induce a reasonable belief that it is loaded and will be discharged and thereby produce death or inflict a great bodily injury on the person threatened, he will be justified in using whatever force may be necessary to avert the apparent danger, though it may afterward appear that the gun was not loaded, and that he was in no danger whatever. In a subsequent portion [69]of the instruction, the same error is repeated. But in the instructions given at the request of the defendant, the Court correctly and very explicitly states the law on this point. On the first hearing we were of opinion that this cured the omission in the eighth instruction, and rendered it quite improbable that the jury had been misled by it. But on further reflection, I am convinced the instructions are so contradictory that they cannot be reconciled, and the erroneous instruction may very naturally have misled the jury. In the eighth, the jury is told that the right of self-defense cannot be exercised “in any case or to any degree not necessary, and that the party making the defense is permitted to use no instrument and no power beyond what will prove simply effectual.” But in those given at the request of the defense a wholly different rule is laid down, and the jury is informed that if the deceased assaulted the defendant under such circumstances as to create a reasonable apprehension that he was about to suffer a great bodily injury, the defendant “ might safely act on such appearances, and kill the assailant, if absolutely necessary to avoid the apprehended danger, and the killing is justifiable, although it might afterward turn 'out that the appearances were false and there was in fact neither design to do him serious injury nor danger that it would be done.” On the one hand the jury is told, in substance, that the danger must have been real, and that the right of self-defense cannot be exercised in any case or to any degree not necessary; and on the other hand, that it is sufficient if the danger was apparent, though it afterward turned out that in fact there was no actual danger and no necessity for the killing. These propositions are contradictory and wholly irreconcilable, and it is impossible to determine on which of them the jury acted. When the instructions on a material point are contradictory there should be a new trial. (People v. Campbell, 30 Cal. 312; Brown v. McAllister, 39 Cal. 577; People v. Valencia, 43 Cal. 552.) Por this