The opinion
A rehearing of this cause is denied, but it is proper to say that the petition of counsel for the people points out a mistake in my opinion which requires correction. The superior court did not err in refusing defendant's requested instruction 18. It was rendered erroneous by the insertion of the word "misdemeanor." This fault in the instruction was not adverted to in the argument upon which the cause was submitted, and escaped the attention of the court, as it seems to have done in People v. Glover, 141 Cal. 237 , 238, [ 74 P. 745 ], where a similar instruction was said clearly to express the law. In that case, as in this, however, the attention of the court was directed exclusively to other questions affecting the ruling complained of, and this particular fault in the wording of the instruction overlooked. The law on the point is correctly stated in People v. Hecker, 109 Cal. 461 , [ 42 P. 307 ]. It is proper, also, to state that for another reason there was no error in refusing to give either the eighth or eighteenth instruction requested by defendant. The points to which they were directed were fully covered by instructions 9, 10, and 11, given at request of the defendant. This fact was pointed out in the brief *Page 357
of the attorney-general, but by some inadvertence in preparing the opinion my attention was confined to the instructions given at the request of the people, which, as stated, merely pointed out the limitations of the right of self-defense.
As to the question of the right of the people to prove the incest without evidence aliunde of actual jealousy, the point, though not decided in my opinion, seems to be clearly decided by a majority of the court in favor of the people.