People v. Roemer

Henshaw, J.

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 ig 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 tc> 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.

Harrison, J., Van Fleet, J., Temple, J., McFarland, J., and Beatty, C. J., concurred.

GtArotjtte, J., dissented.