
    [Crim. No. 1958.
    Third Dist.
    June 7, 1946.]
    THE PEOPLE, Respondent, v. GEORGE B. CARSON, Appellant.
    
      Gumpert & Mazzera and J. Calvert Snyder for Appellant.
    Robert W. Kenny, Attorney General, James 0. Reavis, Deputy Attorney General, Chester Watson, District Attorney, and Anthony J. Chargin, Assistant District Attorney, for Respondent.
   ADAMS, P. J.

In an indictment returned by the Grand Jury of San Joaquin County, defendant was charged with the commission of an assault upon Mildred Carson (his wife) with intent to commit murder. He pleaded not guilty, and not guilty by reason of insanity. He was tried by a jury which found him guilty of assault with a deadly weapon. The plea of not guilty by reason of insanity was withdrawn, and a motion for a new trial interposed. That motion was denied and defendant was sentenced to imprisonment in the county jail for a period of nine months, and fined $1,000.

On appeal from the aforesaid judgment defendant urges three grounds for reversal: One, the failure of the trial court to give a requested instruction on self-defense; two, the failure of that court to give a requested instruction regarding circumstantial evidence; and, three, error on the part of the trial court in restricting defendant’s cross-examination of certain witnesses for the prosecution.

The instruction on self-defense requested by defendant reads:

“You are instructed that if you find from the evidence that the defendant George Carson, in repelling an attempt to use force or violence upon himself by Glenn Martin or any other person, said George Carson, as a reasonable man, was justified in believing that the persons attempting to use force or violence upon him intended to inflict serious injury upon him, then, and in that event, George Carson had a right, in defense of his person, to use all force necessary to repel the attempt to use force or violence upon him, even to the taking of someone else’s life, if necessary.”

The requested instruction which appellant designates as one on circumstantial evidence reads:

“I charge you that in order to convict the defendant George B. Carson of the crime of assault with intent to commit murder, or of the crime of assault with a deadly weapon, or simple assault, the facts proved must be consistent with the theory of his guilt and inconsistent with the theory of his innocence.
“I further instruct you that any theory of his guilt must not only be rational, i. e., based upon reason, but founded upon and limited within the evidence admitted in the case; and such theory cannot be based upon mere guess or surmise, nor upon conjecture or supposition.”

On this subject the court did instruct as follows:

“There are two kinds of evidence recognized and admitted in courts of justice, upon either or both of which the jury may lawfully find the accused guilty of crime. One is the direct and positive testimony of a witness or witnesses to the actual commission of a crime; and the other is proof by testimony of a chain of circumstances pointing sufficiently strong to the commission of the crime by the defendant, and may consist of admissions by the defendant, plans laid for the commission of the crime, such as putting himself in any position to commit it, statements made previous to the commission of the crime tending to show intent or motive; or in short, any act, declaration or circumstance admitted in evidence tending to connect the defendant with the commission of the crime.
“In order to convict on circumstantial evidence, there must be produced the same degree of certainty as that which arises from direct testimony and excludes all rational probability of innocence. The circumstances must be of such a nature as not to be reasonably accounted for on the theory of the defendant’s innocence, but perfectly reconcilable with the theory of the defendant’s guilt.”

Appellant’s argument in support of the first of these proposed instructions, as stated in his brief, is:

“The testimony and theory of appellant’s ease was that whatever forces he used upon Mrs. Carson he did it in protecting himself from an assault upon his person by Mrs. Carson and her sons. The evidence so far as the appellant’s case is concerned establishes that Mrs. Carson participated in the fray and that the appellant in protecting himself from the boys did use force upon her.”

This calls for a consideration of the evidence adduced at the trial. It shows that defendant and his wife were married about 1934; that on July 21, 1945, they were living in Stockton, the household including Glenn and Clifford Martin, sons of Mrs. Carson, aged 17 and 19 years, respectively, Josephine Martin, the wife of Glenn Martin, Irene Carson, the daughter of defendant by a former marriage, and Johnny White, a friend of the Martin boys. About a month prior to the assault, dissension having developed between Mr. and Mrs. Carson, they entered into a property settlement under the terms of which defendant conveyed the home to Mrs. Carson, and the parties agreed to live separate and apart. Defendant had not, however, departed from the home on July 21st when the assault occurred.

On the afternoon of July 20th defendant called for Mrs. Carson at a beauty parlor, and on their way home, according to her testimony, Carson complained that he had found whiskey and gin in the automobile of one of the Martin boys, and made threats to kill not only Mrs. Carson, but the other members of the family. After arriving at the home, Mr. and Mrs. Carson went into the back yard, where, according to her testimony, Carson’s threats to murder her and the rest of the family were repeated. She said that on previous occasions he had made similar threats, and that when they went through the house to the yard on the afternoon of July 20th, on seeing Glenn’s wife, Josephine, defendant became enraged, called Josephine vile names and said he was going to kill her right then. Mrs. Carson went into the house and conveyed this information to Josephine and Irene who left the house. Later she heard them in the kitchen with Glenn, whereupon she entered again, but returned to the yard. Glenn then came out and asked Carson when he was going to quit threatening his mother and his wife. Carson jumped up as though he were going to strike Glenn, and Mrs. Carson ran and called Clifford and White. An altercation then ensued during which Glenn and Clifford asked defendant when he was going to leave, and Carson replied, “None of your G-d-business.” Mrs. Carson then asked defendant to leave the house and go to a hotel, which he finally consented to do, and thereafter left.

Later, according to Mrs. Carson’s testimony, he telephoned her saying first that he had not secured a room, and then that he had found one and would come out in the morning. Mrs. Carson, being in fear, locked the doors of the house and retired to her bedroom. Not long afterwards she heard footsteps outside the house, and through a window saw Carson. He talked to her through the window, said he had not been able to get a room, and asked to sleep in the basement. She agreed but said he could not come into the house. She thereupon locked the door of her room, and again retired. After one o’clock in the morning she again heard footsteps and the door of her room was burst open by Carson. She jumped from her bed and was attempting to open the door of her bathroom when Carson caught her by the shoulder and began striking her. She said that he was not hitting her with his hands but with a hammer; that she fell to the floor and Carson kicked her; and that while he was leaning over her and she was trying to ward off his blows, her son Glenn ran into the room and engaged in a struggle with Carson, whereupon Mrs. Carson ran from the room. At this juncture her son Clifford appeared, followed by White, and Clifford assisted his brother in subduing Carson who assumed a position on the floor with his back against the wall, and his hands under the foot of the bed.

As to the extent of Mrs. Carson’s injuries she testified that she was struck eight or nine times—once on the chin, once on the cheek, once on the throat, three times on the chest, and several times on her arm. The physician who examined her after the assault reported that she had “multiple contusions,” the skin being broken on the chin and hand; that she had three loose teeth, and that “she was bruised up considerably all over. ’ ’ He stated that in his opinion the injuries were caused by ,a blunt instrument. Photographs showing her injuries were introduced in evidence.

According to the testimony of Glenn regarding his conversation with Carson in the back yard earlier in the evening, he asked Carson when he was going to leave and the latter said it was none of his G- d-business, and “took a swing” at him; that Mrs. Carson asked Carson to go down town, and that after Carson had departed Glenn and his wife went to a show; that on their return about 1 a. m. they saw Carson standing by a front window; that Mrs. Carson let them in; that after they had retired they heard footsteps outside the house, and again saw Carson; that Glenn then went to his mother’s room, turned on the light in the living room, and returned to bed; that shortly afterwards he heard the door to his mother’s room crash and heard his mother scream, whereupon he ran to her room and saw her lying on the floor and Carson standing over her; that he jumped on Carson, knocking him over, and while they were struggling he took a hammer away from Carson and struck him with it; that as Carson fell Mrs. Carson ran from the room, and Clifford and White came in; that he then handed the hammer to Clifford, and, as he had entered previously without any clothes on, put on some garment which his wife brought him.

Clifford testified that he and White were sleeping on a porch off the dining room when he heard his mother scream; that he burst through the locked door into the dining room, and as he did so heard Carson say, “I will kill you”; that as he reached the door of his mother’s room his mother was just coming out; that he hit Carson, who was struggling with Glenn, and that Carson fell and crawled against the wall with his hands under the bed; that Glenn then had the hammer in his hand, and later, when the police arrived, handed it to one of the officers.

In the meantime Irene, at Mrs. Carson’s request, had attempted to telephone the police but found the telephone dead, later investigation showing that it had been disconnected in the basement. Irene then ran to a neighbor’s and telephoned, and two police officers appeared almost immediately.

White testified that he heard a scream, saw Clifford burst through the dining room door, and followed him to Mrs. Carson’s bedroom; that Mrs. Carson was “kind of staggering out, holding her face on her arm”; that he found Carson on the floor; that when the police arrived Carson first said that he was sorry, that he did not mean to do it, and that he wanted to die, then became abusive and called his wife “some names.”

As Clifford and Glenn had sustained some injuries they, with their mother and Carson, were taken to the emergency hospital. After having their wounds dressed all but Carson returned home. They found Irene trying to clean up blood on the floor of Mrs. Carson’s bedroom; and Clifford and White both testified they were present when Irene found an open knife—which she later testified was her father’s—in a pool of blood under the bed where her father’s hands had been.

Carson, testifying in his own behalf, stated that he had found liquor in Clifford’s car the afternoon of the 20th and that he had a conversation with Mrs. Carson about it on their way home from the beauty parlor. He denied that he had made any threats then or at any other time except that he had playfully told his wife that he “would throw her in the lake,” or something of that sort. Regarding the conversation in the back yard he denied that he made any threatening gestures, but said that Glenn, and later Clifford, asked him “When in the hell are you getting out, ’ ’ told him to get out immediately, and made other remarks about getting him out. He admitted that the liquor in Clifford’s car was referred to and that White stated that it was his and not Clifford’s or Glenn’s. Regarding the later events of the evening he said that he had phoned Mrs. Carson from downtown that he was unable to get a room; that he came to the house and talked to her through the bedroom window and she told him she did not want him around; that he then went and sat in his car, which he had parked a half block away, but finally decided to sleep on the chesterfield in a room in the house which he called his office; that to gain access thereto he cut the screen and entered through the window, and seeing a light in the living room he unlocked the office door and saw Mrs. Carson enter her bedroom and close the door; that contemplating that she would lock it he “went against” it and broke it. As to what transpired thereafter his story differed from that of the other witnesses. He said that he took hold of Mrs. Carson’s shoulder and sat her on the bed; that she jumped up and screamed and dropped at his feet; that he stepped over to assist her to rise, and while stooped over her someone entered and began hitting him on the back; that he found Glenn hitting at him with a hammer; that he prevented him from striking him only on the arms; that Mrs. Carson was also pushing and shoving him; that he finally grasped the hammer and fell in front of the dresser; that they had not struck him until Clifford ran in with something in his hand, and made a lunge at him; that he (Carson) had the hammer in one hand “to protect” himself, and as Glenn grabbed the hammer kicked Mrs. Carson in doing that, and Clifford then struck him over the head, and that he had no remembrance of anything further except that he dimly remembered asking his daughter Irene to take his wallet out of his pocket. He said that he did not strike Mrs. Carson with the hammer or otherwise, except that he hit her with his elbow “to get her out of our way during the struggle, ’ ’ after Glenn came in. On cross-examination he said that he thought that Glenn hit him four blows with the hammer, that he turned and saw him with it in his hand, and tried to grab it. He then denied that he kicked Mrs. Carson or that he ever succeeded in taking the hammer from Glenn. He denied that he owned or had ever seen before the pearl handled pocket knife which Irene found in the room and identified as his, but admitted he owned two pearl handled knives.

Returning now to consideration of appellant’s proposed instruction regarding self-defense, it becomes apparent that same was properly refused for two reasons, one that the instruction itself is erroneous; and, two, that defendant himself was the aggressor, that his wife made no assault that called for any self-defense from her, and that, as matter of fact, he denied that he made any assault upon her either in self-defense or otherwise.

Appellant defends the requested instruction itself by saying that it was taken from People v. Zuckerman, 56 Cal.App.2d 366, at page 372 [132 P.2d 545], in which this court approved an instruction which read:

“You are further instructed that if you find from the evidence that the defendant in repelling an assault by either or both of the Danders made upon him (the defendant), the defendant as a reasonable man was justified in believing that either or both of the Danders intended to inflict serious injury upon him, the defendant, the defendant had a right in defense of his person to use all force necessary to repel the assault upon him, even to the taking of the life of either or both of the Danders.”

But the foregoing instruction does not state that even in defense of his person one may use force necessary to repel the attempt to use force and violence upon him even to the taking of someone else’s life; and had the instruction requested been given it would have told the jury, in effect, that if they believed that in repelling an attack upon him by Glenn or Clifford, defendant as a reasonable man was justified in believing that they intended to inflict serious injury upon him, then he had a right, in defense of his person, to repel the attack' even to the taking of Mrs. Carson’s life. No authority for such an instruction is cited, and we know of none.

Appellant, tacitly admitting that the proffered instruction was improper, asserts that nevertheless the court of its own volition should have given an instruction on self-defense, citing People v. Leslie, 9 Cal.App.2d 177 [48 P.2d 995], which he refers to as a similar case. But in the Leslie case the appellate court said that the evidence was conflicting as to whether defendant, in committing the assault upon Mrs. Zurndorfer, the victim thereof, was defending himself from an attack by her. The evidence in that case is not comparable to that before us. Here defendant does not contend that he struck Mrs. Carson in repelling an attack made by her or that he considered himself in danger from her. He denies that he struck her at all, except that he struck her with his elbow to get her out of the way during the struggle.

Furthermore, the evidence is sufficient to show that the defendant was aggressor in this affray; that after making threats he broke into the house, forced his way into his wife’s bedroom, and thus precipitated the struggle with her two young sons when they came to their mother’s defense. Under such circumstances no instruction on self-defense was called for. In People v. Holt, 25 Cal.2d 59, 65 [153 P.2d 21], it was urged that on defendant’s version of the homicide with which he was charged, he had a right to stand his ground, and that it was error not to instruct the jury on self-defense. The court said, page 65, that other evidence in the case overwhelmingly established that defendant was not without fault, that he himself invited the encounter, and that as a reasonable man he was not warranted in believing that he was in such imminent danger of great bodily injury as to justify the commission of a homicide, and that under those circumstances it was not prejudicial error to fail to instruct on this phase of the matter in quesion. The court there quoted from People v. Westlake, 62 Cal. 303, 307, as to the pertinent principles governing the right of self-defense. People v. Soules, 41 Cal.App.2d 298, 314 [106 P.2d 639], was also cited, and 1 Wharton’s Criminal Law, 828-832, sections 614 and 615, was quoted to the effect that if the defendant in any way challenged the fight and went to its armed, he could not afterward maintain that in taking his assailant’s life he acted in self-defense. And finally, the court said in the Holt case, page 67:

“The overwhelming weight of the evidence, including defendant’s own testimony and extra judicial statements, establishes that defendant was not an innocent person suddenly confronted with imminent danger of great bodily harm. On the contrary, the evidence shows that he was the ‘first wrongdoer’ in that by his quarrelsome and challenging attitude, not only toward deceased but others in touch with him a short time prior to the homicide, he had created an atmosphere of antagonism that might naturally lead to physical combat if he continued, as he did, in his quarrelsome pursuit of trouble. Defendant, therefore, was not without substantial fault, a condition essential under the authorities to permit an accused to stand his ground and slay his adversary without first having sought to retire from the combat. Under all the circumstances, it cannot be said that the trial court erred to defendant’s prejudice by failing to give an instruction on the right to stand one’s ground and slay an adversary.” (Also see 13 Cal.Jur. § 45, pp. 644-645; People v. Hecker, 109 Cal. 451 [42 P. 307, 30 L.R.A. 403]; People v. Barber, 62 Cal.App.2d 206, 213 [144 P.2d 371].)
speak, listed as corrections for the defective plumbing under certain sinks and wash basins.

Regarding the second of the requested instructions, while appellant refers to it as one on circumstantial evidence, it does not, in fact, refer to circumstantial evidence at all. It merely states that the facts proved must be consistent with the theory of guilt and inconsistent with the theory of innocence. But if it was intended to be one on circumstantial evidence its substance was included in the instruction which the court did give, and in a form much more favorable to defendant, for the court defined circumstantial evidence and stated that to convict thereon, the “circumstances must be of such a nature as not to be reasonably accounted for on the theory of defendant’s innocence, but perfectly reconcilable with the theory of defendant’s guilt.” Defendant finds no fault with the instruction given, and it is obvious that the requested one would have added nothing regarding the degree of proof necessary to convict on circumstantial evidence—the only ground upon which appellant’s argument is based.

Furthermore, where, as here, the evidence of guilt is direct rather than circumstantial, it has been held in numerous cases that failure to instruct on circumstantial evidence is not reversible error. In People v. Marvich, 44 Cal.App.2d 858, 861 [113 P.2d 223] (hearing in Supreme Court denied), the court said that as the evidence was direct, there was no occasion for giving an instruction that in the case of two theories, one pointing to innocence and the other to guilt, they should adopt the theory pointing to innocence. In People v. Ortiz, 63 Cal.App. 662,667 [219 P. 1024], also an instruction was proposed to the effect that if circumstantial evidence leads to two opposite conclusions, one consistent with guilt and the other with innocence, the jury should acquit. The court held that the refusal to give such instruction was not error, saying: ‘ ‘ The evidence was not circumstantial but the positive testimony of eyewitnesses. The court instructed the jury fully on the question of burden of proof and reasonable doubt and it was not error to refuse the proposed instruction,” citing People v. Plumeyer, 54 Cal.App. 786 [202 P. 888]. In People v. Savage, 66 Cal.App.2d 237, 247 [152 P.2d 240] (hearing in Supreme Court denied), the court said that where the proof is not entirely circumstantial it is not error to refuse an instruction requiring the jury to adopt that interpretation which would admit of defendant’s innocence and to reject that which would point to his guilt.

But even if the requested instructions had been proper in the case, the evidence of defendant’s guilt was clear and convincing, and failure to give them would not justify reversal. (Const., art. VI, § 4½; People v. Kelso, 25 Cal.2d 848, 853 [155 P.2d 819], and cases there cited.)

Appellant’s final ground for reversal is that the trial court unduly limited the cross-examination of Mrs. Carson and her two sons, “as to circumstances surrounding the keys, the car, the bonds, and other items of value belonging to the appellant which appellant maintained these witnesses took.” Appellant’s own testimony was that in the room in the home which he referred to as his office, there was a “strong box” which contained insurance and other papers and three $1,000 bonds which “we” kept locked, and that the key of same, together with the key to the office and desk therein, and his car key he kept on a key ring, which he had in his pocket with his wallet when he went down town in the evening; that after the events of July 21st he asked Mrs. Carson for some papers that were in the box and for the bonds and she said she did not have the keys, and could not open the box; but that she subsequently gave him some papers that came out of the box.

In the first cross-examination of Mrs. Carson she testified that there was no “strong box” in the office, but was a little tin box in which “we” kept insurance papers and things of that sort. She was then asked if she did not go and get this box as soon as appellant was taken away, and she answered that she was in no condition to do so. An objection by the prosecution was then sustained, and permission was given defendant to recall the witness for further cross-examination if the subject matter became material. In his cross-examination of Clifford appellant’s counsel asked him if, after Carson was in the hospital, Clifford had not taken defendant’s car for a trip to Los Angeles, and if he had not gone through Carson’s pockets when he was on the floor. To the latter question he made denial, and objection to the former was sustained, with final ruling reserved.

Subsequently Mrs. Carson was recalled for further cross-examination and was again asked if she did not get some keys from Carson’s person and if she did not then have any of the keys, to which she replied in the negative. She was then asked if the boys had not been driving the car, and objection was sustained. She was then asked if she had “that strong box” and answered that she had a little tin box, that she opened it without a key by breaking it open; and that, at his request, she delivered all of the contents to Carson. She was then asked what she did with the bonds and if she still had them in her possession, but objection to said questions were sustained. She said she had opened the desk, and when again asked if she had not the keys and if she had not taken them out of Carson’s pocket, said that she had been unable to locate the keys. She was then asked if she went through Carson’s office but objection was sustained.

Clifford was called for further cross-examination and asked if he took any keys out of Carson’s pocket that night and if he had a key to the ear. He answered no. Objection to a question as to whether he took the car and drove it to Los Angeles was sustained. Mr. Snyder then said, “I don’t think I reserved the right to call Glenn; perhaps I should have; I think it was Glenn and not Clifford. ’ ’ Glenn was then called, was asked if he did not go through Carson’s office that night before he was taken to the hospital, if he saw anyone take any keys or if he took any keys out of his pocket, to which he replied that he did not. No other question was asked of the witness.

It is apparent from the foregoing that the only questions asked which were unanswered were those pertaining to whether one of the boys drove Carson’s car to Los Angeles. Clifford only was asked this question, and though Mr. Snyder said he thought it was Glenn, the latter was not further interrogated on this point. Furthermore, we agree with the trial court that whether they did or did not was immaterial. As for the questions asked Mrs. Carson about the keys and the bonds, she answered the same; and finally we can find no testimony by Carson that he did not himself have both the keys and the bonds—if there were any—in his possession. In fact, he was asked on cross-examination if he did not generally have the key to the office. He replied: “Yes, I have the only key.” Defendant’s counsel’s cross-examination of Mrs. Carson covers 75 pages of the record, his cross-examination of Clifford 39 pages, and that of Glenn 59 pages, so it is apparent that sufficient latitude was given him in that respect. He does not. point out a ruling on any specific question asked by his counsel which he contends constituted prejudicial error, and in view of the fact that the evidence of his guilt is clear and convincing we are satisfied that there was not any such error.

The judgment and the order denying a new trial are affirmed.

Peek, J., and Thompson, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied July 2, 1946. Carter, J., voted for a hearing.  