People v. Bruggy

PER CURIAM.

The defendant was convicted of murder in the first degree, and is under sentence of death. He appeals from the judgment rendered against him, and from an order refusing a new trial. Pie makes the point that the evidence is insufficient to sustain the verdict. The jury had before them persons who witnessed the homicide, and all its attendant circumstances. There was certainly some evidence which tended to show the guilt of the defendant as charged; and that being so, we are not warranted in saying that the jury gave it improper weight, and should not have returned the verdict which they did.

It is further claimed that the instruction of the court was erroneous, which was in this language: “If the jury believe from the evidence in this case that the defendant, Bruggy, killed the deceased by shooting him, and that the shooting was done by Bruggy in resenting an attack on the part of the deceased to murder him, Bruggy, or an attempt on the part of the deceased to do great bodily harm to him, Bruggy, then in such case I instruct you the killing by Bruggy was justifiable, and you should find the defendant not guilty. The rule in such a case is this: What would a reasonable person— a person with ordinary caution, judgment, and observation— in the position of the defendant, seeing what he saw, and knowing what he knew, suppose from his situation and his surroundings? If such reasonable person, so placed, would have been justified in believing himself in imminent danger, then the defendant would be justified in believing himself in such peril, and in acting on such appearances;” The defendant contends that this instruction should not have confined his right to kill the deceased to a state of facts where the deceased was endeavoring to murder Bruggy, or to do him some great bodily harm, but that it should have stated further that an attempt to kill Bruggy by the deceased, either with or without malice aforethought, would have warranted the defendant in taking the life of the deceased, and that the word “murder” was misleading in the connection in which it was used. It must be borne in mind that this instruction was to the effect that, if the whole evidence showed a certain condition of affairs, the defendant was to be acquitted. If it had stated that Bruggy was not to be acquitted unless murder or some great bodily harm was then about to be accomplished by the deceased, then it is plain that the instruction would be misleading. But it is not manifest that as reasonable men the jury could have understood the instruction to mean what the defendant claims. Such a construction by them would not be harmonious in any degree with the language used by the court, and, although to be strictly accurate, the words suggested, or some others appropriate to convey the idea, would have made the instruction clearer, the omission to do so did not, in our opinion, have or tend to have a misleading effect. The test in such a matter as this is not that a given instruction is erroneous merely, hut, if the court can see that it did not mislead the jury, the judgment will not he disturbed: Hayne on New Trial and Appeal, sec. 122.

We do not perceive that the instructions of the court with reference to what constitutes murder in the first and second degrees were either misleading or erroneous. If appellant desired any further instructions on that subject he should have asked for them: People v. Franklin, 70 Cal. 642, 11 Pac. 797; People v. Northey, 77 Cal. 618, 19 Pac. 865, 20 Pac. 129.

Another ground on which the appellant urges that the judgment and order should be reversed is that the jury were erroneously instructed and misled by the court in the following instruction: “If you believe from the evidence that the defendant, while upon the sidewalk, drew his pistol with a deliberate intent to kill and murder Dick Louison, and that Dick Louison saw the pistol, and, believing himself in danger of the defendant, ran away, and through the alley, and into the saloon, to avoid the defendant; and you further believe from the evidence that the defendant, with intent to willfully and deliberately kill and murder Louison, entered and passed through the saloon with the pistol in his hand, for the purpose of overtaking or meeting him and killing him; and you further believe from the evidence that he did meet the deceased coming into the saloon through one of the back doors of the saloon, unarmed, and showing no disposition to kill and murder the defendant, and that the defendant then and there, without believing himself in danger of losing his own life at the hands of Dick Louison, fired the fatal shot, and killed said Louison—then I instruct you the evidence shows no self-defense.” The objection to this instruction is that it is confined to a reasonable ground for belief by appellant that he was in danger of “losing his own life,” and does not include the other proposition, that he was in danger, or believed himself in danger, of receiving great bodily injury. If the instruction had been intended as an abstract statement of the general doctrine of self-defense there might have been some force in the objection, although even in such case, if the court should give another instruction containing the element of fear of great bodily injury (as was done in the ease at bar), it is difficult to see how error could be successfully assigned. But such was not the case with respect to the instruction in question. It was based upon a hypothesis (founded on the evidence) which excluded the notion of self-defense entirely. If a defendant pursues the deceased (who runs away) with a drawn pistol, intending to kill and murder the deceased, and does not make any endeavor to decline any further struggle, the fact that at the moment of the fatal act the deceased makes some effort to defend himself, which may put the defendant in danger of either death or bodily injury, does not constitute self-defense. Tha instruction would not have been erroneous if it had not contained any allusion at all to the defendant’s belief of danger to his own life. There was nothing in it of which defendant at least could complain. The law of self-defense was very correctly given to the jury in the general charge of the court, which was as favorable to defendant as he could reasonably expect; and we see no error that would warrant a reversal of the judgment.

The evidence discloses that the killing of the deceased was to some extent the result of a drunken brawl; and it would seem that a verdict by the jury of imprisonment for life would have satisfied the law, but that is not a question to be here considered. The law gives the power of fixing the punishment in such cases to the jury, and the only appeal from their decision as to that matter is to the executive. The judgment and order denying a new trial are affirmed.