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District Court of Appeal, Second District, Division 1, California.


Cr. 4127.

Decided: November 05, 1947

William J. Currer, Jr., of Los Angeles, for appellant. Fred N. Howser, Atty. Gen., and Howard S. Goldin, Deputy Atty. Gen., for respondent.

Defendant was adjudged guilty by a jury of the crime of assault with a deadly weapon. The record reveals that the offense followed a quarrel; the defendant went to his home a short distance away, obtained a revolver, returned to the scene and shot the victim in the knee. It is defendant's testimony, ‘I think I am going to look for my glasses,’ and my wife said, ‘They will beat you up again; you better not go’, and I said, ‘I am going because I need those glasses; otherwise I cannot drive.’ The victim Fernandes testified:

‘Q. What did the defendant do or say after he came back? A. He said he was going to shoot me.

‘A. I told him why was he going to shoot me, I did not do anything to him.

‘Q. What did he say to that? A. He said, ‘Anyway, I am going to shoot.’'

The defendant was intoxicated at the time.

It is appellant's contention on appeal that ‘the evidence does not support the verdict and judgment.’ The defense was ‘self defense’. An examination of the record reveals the evidence to be sufficient.

It is also urged on appeal that the court erred in its charge to the jury on the law of self defense. In this connection it is argued that the instructions were not sufficiently comprehensive to include ‘defendant's theory of the case’. It is also argued with regard to the instructions that, ‘only the negative is stated, and stated in such a way as to minimize the right of a man to defend himself, and particularly the defendant in this case.’ An examination of the instructions given and refused reveals no prejudicial error. More detailed instructions were unnecessary in the circumstances.

Appellant also contends that the ‘court erred by instructing the jury in the absence of appellant’. On the motion for a new trial it developed that several of the jurors had a pamphlet entitled, ‘General Instructions Concerning the Duties and Responsibility of Trial Jurors in the Criminal Department of the Superior Court of Los Angeles County, California’, which had been distributed among them in another department of the court some time before. Appellant argues in this connection that, ‘We believe that the pamphlet, and the instructions contained therein, were highly prejudicial to the defendant's case, and covered matters which not only were not in issue in the trial, but also the tone and language of the entire pamphlet apparently seeks to cast a doubt upon honesty of persons who defend in criminal cases and their counsel.’

Although instructing a jury in a criminal action in the absence of the defendant either directly or, indirectly by the use of such pamphlets or otherwise is contrary to law and a violation of the substantial rights of a defendant, it does not appear that sufficient prejudice resulted to overcome the mandate of section 4 1/212 of Article VI of the Constitution.

There being no prejudicial errors in the record, the judgment and order are affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.