People v. Becerra

SHINN, P. J. Defendant, Francisco Guadalupe Becerra, appeals from a judgment convicting him of assault with a deadly weapon and from an order denying his motion for a new trial.

The record shows that defendant and the victim, Joe E. Perez, were brothers-in-law, that enmity had existed between them for several years, and that the two had engaged in several fights prior to the time in question. At approximately 6 p. m. on April 6, 1950, defendant drove to the home of Perez and parked his car across the entrance to the driveway where the. latter’s car was parked. He honked the horn and Mrs. Perez [296]came out of the house, with her baby in her arms, and told defendant that her husband was asleep. Perez came out of the house and was offered and declined a drink from a bottle handed him by defendant. The defendant apparently invited Perez to go somewhere and fight it out but Perez refused. Defendant then got out of the car and fired either two or three shots at Perez, one of which hit him in the shoulder, and one apparently went through the material of his left trouser leg at the knee. Perez then ran around to the back of his house and into the house of his next door neighbor who, with another neighbor, drove him to the hospital. The record shows that defendant did not try to run from the scene, but that he offered money to one of the bystanders to telephone the police. He admitted having drunk half a pint of whiskey and the half bottle was found in his car. The defendant claimed that Perez was armed with a gun when he came from the house and that he, himself, shot at the victim’s legs only to frighten him.

The defendant was charged with assault with a deadly weapon with intent to commit murder but was found quilty of assault with a deadly weapon. He does not contend here that the evidence was insufficient to sustain the conviction, but does contend that the jury was improperly instructed in several instances; that certain other instructions should have been, but were not, given, and that as a result prejudicial error was committed. There is nothing in the record to show by whom any instruction was offered or that any instruction was proposed and refused.

The defendant contends that his defense was based on two theories, that of self-defense and accidental shooting. He contends that the instructions given on self-defense were so worded that they favored the prosecution, and that no instructions were given on the theory of accident or on the general proposition that in every crime there must be a unity of act and intent. (Pen. Code, § 20.)