Opinion
Appeal from a judgment of conviction, and from an order denying a new trial in the Superior Court of Modoc County. Harris, J.
COUNSEL
E. S. Spencer, W. L. Skinner, and D. S. & S. L. Terry, for Appellant.
A. L. Hart, Attorney General, for Respondent.
JUDGES: Sharpstein, J. Thornton, J., concurred. Ross, J., concurred in the judgment, on the ground last stated in the opinion. Morrison, C. J., concurred in the judgment of reversal.
OPINION
SHARPSTEIN, Judge
In Bank. Among the instructions given by the Court to the jury were the following: " To justify a person in killing another in self-defense, it must appear that the danger was so urgent and pressing, that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary. And it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given."
" To justify the defendant in killing the deceased it is not absolutely necessary that the defendant should have believed his own life in danger. But it will be sufficient if the circumstances were such as to justify the defendant, as a reasonable man, in believing that the deceased was about to commit any felony, and that it was necessary to take his life to prevent the commission of such felony, and that if the defendant did so believe and acted under such belief solely."
That these instructions are contradictory is apparent, and the first does not differ materially from that given in People v. Flahave , 58 Cal. 249, which was held to be erroneous.
Only one of the instructions requested by the defendant was refused by the Court. It should have been given. The reasons assigned by the Court for not giving it are insufficient.
The following instruction was erroneous: " If you believe beyond a reasonable doubt, from the evidence, that the defendant killed the deceased, then to render said killing justifiable it must appear that defendant was wholly without fault imputable to him by law in bringing about or commencing the difficulty in which the mortal wound was given."
Even if the defendant had been the assailant, if he had really and in good faith endeavored to decline any further struggle before the homicide was committed, the killing might be justifiable in self-defense. ( Pen. C., § 197.)
Judgment and order reversed, and cause remanded for a new trial.