People v. Jackson
| Decision Date | 19 April 1965 |
| Docket Number | Cr. 4614 |
| Citation | 233 Cal.App.2d 639,43 Cal.Rptr. 817 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Ford Edward JACKSON, Defendant and Appellant. |
Douglas P. Ferguson, San Francisco, for appellant (under appointment of District Court of Appeal).
Thomas C. Lynch, Atty. Gen., of State of California, Robert R. Granucci, James Murad, Deputy Attys. Gen., San Francisco, for respondent.
Defendant appeals from a judgment of conviction of assault with a deadly weapon (pocket knife) entered upon a jury verdict. (Pen.Code § 245.) He is an ex-felon, having been convicted in Kentucky in 1934 of storebreaking and in 1936 of assault with intent to commit robbery. He was sentenced to state prison for the instant offense.
Defendant's only justification for the cut inflicted upon the complainant is self-defense and his sole contention on appeal is that the jury was not instructed on the doctrine of appearance as it relates to such defense.
Defendant requested but the trial court refused to give the following instruction: 'It is lawful for a person who is being assaulted, and who has reasonable ground for believing that bodily injury is about to be inflicted upon him, to stand his ground and defend himself from such attack, and in doing so he may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.' (Exact wording of CALJIC 621.)
A defendant in a criminal action is entitled to an instruction on his theory of the case as disclosed by the evidence, no matter how weak such evidence may be. (People v. Carmen, 36 Cal.2d 768, 773, 228 P.2d 281). The evidence which supports defendant's theory of self-defense discloses the following facts.
On December 7, 1963, about 3:30 p. m., complainant was drinking beer at the Boot Club in the town of Arcata. Defendant asked him to repay a loan of $10 which he had made to him about one month before. Complainant said he didn't have it. Defendant told him that he was about 'broke' and asked complainant if he could let him have $5 on account.
Complainant thereupon pulled defendant's eyeglasses off, called him a bad name, and started hitting him in the face with his fists. Defendant was between two stools, with his back to the bar, and could not get out. Meanwhile, complainant was 'pounding' defendant in the face, inflicting a cut over one eye and bruises on his cheeks.
Defendant carried a small knife in his coat pocket which he used in his work as a television technician. He testified that he was in fear of complainant; that he took the knife out and struck at complainant's arm; that he missed and hit him in the stomach, thereby inflicting a cut of one and one-half inches in depth.
Complainant then backed off. Defendant picked up his glasses and walked out of the door. Without glasses, defendant has vision of only 20/100 in each eye. He weighed 150 to 155 pounds, was 5 feet, 9 inches in height, and was 50 years of age. He was intoxicated at the time but knew what he was doing and remembered what happened.
Complainant weighed 190 pounds, was 5 feet, 11 inches in height, and was 37 years of age. He had had only one glass of beer. One of the patrons of the bar followed defendant outside, knocked him down and escorted him to the police station.
Witness Smiley testified that he heard what was apparently an argument between defendant and complainant, that complainant made a 'lunge' toward defendant and swung at him 'like he was going to tear him apart.'
The only instruction given on the issue of self-defense is as follows: 'Where an assault is made with only the hands and fists but with such force and in such manner as is likely to produce great bodily injury, the person attacked may lawfully resist the attack with whatever force is reasonably and apparently necessary.' (CAL-JIC 626A.)
This instruction does not embrace the doctrine of appearances. In order to apply the instruction, the jury was required first to find that the assault by complainant was 'likely to produce great bodily injury' upon defendant. It may well be that the jury could have concluded that, in this barroom altercation, the bystanders or the bartender would have prevented any 'great bodily injury' to be inflicted upon defendant by his younger and larger opponent and that defendant therefore had no occasion for using a knife to defend himself.
In discussing the general issue of selfdefense, the court in People v. Collins, 189 Cal.App.2d 575, 11 Cal.Rptr. 504, stated: ...
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