People v. Bruggy

Paterson, J., dissenting.

In my opinion, the seventh instruction was clearly erroneous. If the defendant declined any further struggle immediately prior to the firing of the shot, although he was the assailant, he was justified in shooting the deceased, if he believed upon reasonable ground that he was in danger of receiving great bodily injury. (Pen. Code, sec. 197, subd. 3.) The in- • struction ignores the fact that the defendant may have declined any further struggle, and tells the jury, in effect, that the defendant was not justified in shooting the deceased if he was the assailant, unless he believed that he was in danger of losing his own life.

I think that the learned judge of the court below erred also in givingthe fourth instruction and the instruction upon the question of drunkenness.

This court granted a rehearing in this case because, in the opinion of the majority, the petition for a rehearing presented a new point as to which there were grave doubts. It is practically admitted in the opinion of the majority affirming the judgment of the court below that *489 the case upon the evidence is a close one. If, therefore, the instructions are contradictory or confusing, the court should be willing to grant the defendant another trial. There are cases in which the appellate court can say, that although the instructions are somewhat contradictory, yet, taken as a whole, upon all the evidence in the case, it is clear that no prejudice resulted to the defendant; but in this case the evidence is of such a character, it seems to me, that the infliction of the death penalty, at least, was unjust, and unless the instructions are clear and fair in all respects, a new trial should be granted. The evidence shows without conflict that the deceased and the defendant were personal friends, and there is nothing to show that they had ever before had any difficulty. Both were drinking heavily, evidently, and were in a maudlin state. The defendant took offense at something the deceased said or did, and persistently annoyed him, and provoked deserved chastisement. The deceased was a much larger and a more powerful man than the defendant. The defendant had a fractured arm. The deceased threw the defendant violently upon the floor three times before the final struggle. After throwing the defendant down the third time and slapping his face, the deceased took out a pocket-knife, and holding it in hj§ hand, said to Bruggy: “This is the way we fight in Germany.” . There seems to be a conflict as to whether Bruggy had exhibited any weapon before the deceased took out his knife. When the deceased saw the defendant’s pistol, he ran around the saloon, through the alley, and into the back room of the saloon. The parties met right at the back of the saloon, and the deceased immediately grabbed the defendant by the arms, and pushed him back several feet to the billiard-table, and was pushing him over against it when the fatal shot was fired. What occurred beyond what has been stated, or what, if anything, was said by either party after they met at the rear door of the saloon, and before the shot was fired, does not appear in the evidence. If the defendant did decline further struggle, he certainly was justified in *490 shooting the deceased, if he believed that he was in danger of receiving great bodily harm. The court cannot say as matter of law that he did not decline further combat. That was a question peculiarly within the province of the jury to determine, and the law should have been given to the jury upon such an assumption.