People v. Biggins

The Court. The court below charged the jury: “ Insulting words, gestures, or actions will not reduce an unlawful killing from murder to manslaughter, unless the gestures or actions are such as to reasonably induce the belief of danger to life, or of great bodily harm, in the mind of the party against whom they are used.” If the party against whom actions “are used” reasonably believes that he is in danger of losing his life, or of receiving great bodily harm, the killing of his assailant is justifiable, and such killing is not “ unlawful.”

The jury were the sole judges of the credibility of the witnesses. Upon the jury was imposed the task of determining which, if any, of the statements of each witness were to be believed. A careful examination of the bill of exceptions shows that there was evidence before them upon which they might have based a verdict, guilty of manslaughter. The charge was plainly erroneous in respect to a material matter.

As appears from the bill of exceptions, on the 14th day of September, 1882, “ counsel for the prosecution moved the court to grant an order setting aside the order of this court made and entered on the 8th inst., overruling the demurrer to the information herein, and allow the prosecution to confess said demurrer, which motion is granted, and it is therefore ordered that the said order overruling the said demurrer made and entered herein on the 8th day of September, 1882, be, and the same is hereby set aside and vacated. Counsel for the prosecution thereupon confessed the said demurrer, and upon suggestion of counsel for the prosecution, the court orders that the district attorney file a new information against the defendant,” etc.

[566]Section 1007 of the Penal Code reads: “Upon considering the demurrer, the court must give judgment either allowing or disallowing it, and an order to that effect must be entered upon the minutes.” It is contended by appellant that the demurrer “confessed” by the prosecution was never finally disposed of-that no order was entered in the minutes allowing or disallowing it. It would certainly have been more regular to have entered an order expressly allowing the demurrer, but we think the order allowing the prosecution to confess that the demurrer was well taken, followed by a direction that the district attorney file another information, was an order “to the effect” that the demurrer be allowed.

It is contended by appellant that the court below erred in disallowing defendant’s demurrer to the information filed September 22,1882.