Opinion
Appeal from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B. N. Smith, Judge.
COUNSEL:
A witness cannot be impeached by evidence of particular wrongful acts, nor questioned about matters as to which he was not interrogated in his examination in chief; and a defendant, when offering himself as a witness, is subject to the same rules as any other witness. (Code Civ. Proc., secs. 2048, 2051; Pen. Code, sec. 1323; People v. O'Brien , 66 Cal. 602; People v. Bishop , 81 Cal. 116; People v. Wong Ah Leong , 99 Cal. 440; People v. Chin Hane , 108 Cal. 597, 607; Evans v. De Lay , 81 Cal. 103; Sharon v. Sharon , 79 Cal. 633; Jones v. Duchow , 87 Cal. 109.) The court erred in giving the instruction in regard to lawless acts creating a necessity for self-defense, couched in the exact language recently held by this court to be bad law. (People v. Button , 106 Cal. 635; 46 Am. St. Rep. 259.) The court also erred in refusing to give the instruction requested by defendant as to his reasonable apprehension and belief of the purpose of deceased to kill him, and the necessity of self-defense. (People v. Barry , 31 Cal. 357; People v. Johnson , 61 Cal. 142.) The verdict was contrary to law and the evidence.
J. C. Rives, and Jones & Newby, for Appellant.
W. F. Fitzgerald, Attorney General, Henry E. Carter, Deputy Attorney General, and C. N. Post, Deputy Attorney General, for Respondent.
The court did not err in overruling defendant's objection to the question asked defendant as to whether he had ever been charged with killing anybody, as it was proper cross-examination for the purpose of impeachment. (Code Civ. Proc., sec. 2052; People v. Lawrence , 21 Cal. 371; People v. DeWitt , 68 Cal. 586; People v. Devine , 44 Cal. 452; People v. Nyland , 41 Cal. 132.) A defendant can be cross-examined as fully as any other witness on what was educed upon his examination in chief. (Pen. Code, sec. 1323; People v. O'Brien , 66 Cal. 602; People v. Rozelle , 78 Cal. 89; People v. McGungill , 41 Cal. 431; People v. Dennis , 39 Cal. 634; People v. Russell , 46 Cal. 121; People v. Reinhart , 39 Cal. 449; People v. Johnson , 57 Cal. 571; People v. Beck , 58 Cal. 212.) It is not necessary that each instruction should fully state the law of the case; but an instruction may be helped out and explained by another on the same point, and in such a case the court will look to all the instructions in pari materia, for the purpose of determining whether the law has been correctly given to the jury. (People v. Morine , 61 Cal. 370; People v. Clark , 84 Cal. 583; People v. Bruggy , 93 Cal. 484.) There was no error in refusing to give defendant's proposed instruction as to defendant's apprehension and belief that deceased was about to execute his threat to kill defendant, etc., as that part of it which is law was substantially given in the instructions of the court. (People v. Cockran , 61 Cal. 550; People v. Hong Ah Duck , 61 Cal. 394; People v. Williams , 32 Cal. 280; People v. Ramirez , 56 Cal. 538; People v. Strong , 30 Cal. 151; People v. Kelly , 28 Cal. 423; People v. Hobson , 17 Cal. 424; People v. Douglass , 100 Cal. 5.) The evidence justified the verdict.
JUDGES: In Bank. Henshaw, J. Harrison, J., Van Fleet, J., Temple, J., McFarland, J., and Beatty, C. J., concurred. Garoutte, J., dissented.
OPINION
HENSHAW, Judge
The defendant, charged with murder and convicted of murder in the second degree, presents these appeals from the judgment and from the order denying him a new trial.
The killing was admitted, and the plea was self-defense.
1. It is first claimed that the verdict is against the evidence. But without detailing the accounts of the different witnesses, which could serve no useful purpose, a critical examination of the record shows that the evidence is ample to sustain the verdict. The testimony for the defense raises, as is not unusual, a sharp conflict, but, in such cases, under the well-settled rule the jury is the final arbiter of the facts, and its determination cannot here be disturbed.
2. Defendant, upon direct examination, was asked by his counsel if he had ever been charged with killing anybody, and answered that he had not. Upon cross-examination he was asked, after the proper foundation had been laid, whether he had not stated that he had been accused of the murder of a man, but that they could not prove it against him. The question was not permissible, generally, upon cross-examination. But in this case the defendant had opened the door and invited the inquiry by his own testimony, and it became permissible to refute that testimony by direct evidence to the contrary, or to impeach it by showing contrary declarations made by him. (Code Civ. Proc., sec. 2052.)
3. Defendant proposed the following instruction, which was refused by the judge as having been given before: "If you believe that the defendant at the time of the killing had a reasonable apprehension and belief that deceased was about to execute his threat to kill him, and that it was necessary for the protection of his own life that he should kill deceased, though defendant had resolved to kill deceased before the fatal shot was fired, the killing was not murder, and your verdict should be not guilty."
The law of self-defense had been adequately set forth. Aside from other objections to the proposed instruction. it is erroneous in declaring as a fact that deceased had threatened to kill defendant.
4. The court gave an instruction identical in language with that considered in People v. Kennett, ante, p. 18. This was not error.
The judgment and order are affirmed.