People v. Dollor

McFarland, J. The appellant was convicted of an assault with a deadly weapon; and the main point upon which he relies for a reversal is the omission of the court to charge the jury fully enough on the subject of self-defense.

Neither party asked any instruction upon any subject. The charge of the court given on its own motion was brief, and what is contained on the subject of self-defense [515]was as follows: “ Now, if you find from the evidence that this party did make any assault with a knife, and you find that knife to be a deadly weapon, and he did it not in necessary self-defense, it is your duty to find him guilty as charged. If you find that he made the assault, and that he did it in necessary self-defense, in order to prevent this Dan Olie from committing a violent assault upon him, then he is not guilty.”

At the conclusion of the charge, the court, turning to counsel, said: “ Anything further than that?” Counsel made no answer.

The point made by appellant is, that the charge ignored the doctrine of “apparent necessity,” and excluded the jury from considering that defendant, as a reasonable man, might have believed himself in danger, although as a matter of fact there was no real danger. But it is not true that the charge of the court excludes the consideration of apparent necessity. “Necessary self-defense,” as explained in the text-books, as defined in our Penal Code, and, indeed, as generally understood by laymen as well as by lawyers, includes every case where “there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury,” and where the circumstances are “ sufficient to excite the fears of a reasonable man.” If a defendant were charged with injuring or killing a man who was apparently about to shoot him, no jury would convict because it turned out afterwards that the fire-arm used was not loaded,—whether the court instructed on the subject or not. The cases cited by appellant’s counsel are not in point. They were cases where the express language of the instructions excluded the doctrine of apparent necessity. In. the main case relied on (People v. Anderson, 44 Cal. 65), the trial court, in defining self-defense to the jury, told them that the right “cannot be exercised in any case, or to any extent not necessary. The party making the defense is permitted to use no instrument [516]