191 Cal. App. 2d 478, 481
Defendant was charged with murdering her husband, LeRoy Jones.1 She was tried before a jury and found guilty of manslaughter.2 Her motion for a new trial was denied and she was sentenced to the state prison.3 She has appealed from the judgment and order denying her a new trial.4
The homicide occurred in the evening of March 21, 1960, at the home of defendant and her husband.5 They were arguing for quite some time prior to the husband’s leaving the house at 9 o’clock.6 Upon his return he and defendant resumed their argument.7 The deceased acted as if he had been drinking.8 He had something to eat from the coffee table while sitting on the couch in the livingroom.9 According to defendant’s story, her husband cursed her and threatened to beat her when the children went to bed.10 Later he picked up a table knife, with which he had been eating, held it up and said, “I will throw this knife at you.”11 Finally, he threatened to kill her.12 He stood up with the knife in his hand, raised it, and took some steps.13 At that point she turned to the buffet, which was near where she was sitting, and procured a .22 caliber pistol, purchased by her about six weeks previously, and shot into the ceiling.14 According to her testimony, she admonished her husband not to come upon her, but he kept advancing.15 She further testified, “I was afraid he was going to jump on me or kill me or beat me or something, and I just couldn’t take no more beating.”16 It was then that she shot him.17 There were two wounds, one above the waist on the left side of the body, the other in the upper portion of his back.18 There were also two holes in the ceiling of the livingroom that appeared to be bullet holes.19 He ran out of the house and was found lying on the porch steps of a neighbor.20 Defendant followed him.21 When she reached the deceased, there is testimony that she stated, “I ought to finish killing you.”22
There was testimony from a 12-year-old niece of the decedent, who was visiting in the home at the time, that the deceased did not make any movement toward the defendant prior to the shooting.23 There was also testimony that earlier in the year defendant had told her husband’s sister that she was going to kill her husband.24 This was denied by the defendant.25 However, she claimed that during their married life her husband had beaten her up on numerous occasions.26
Defendant does not challenge the sufficiency of the evidence to sustain her conviction of manslaughter.27 In seeking a reversal defendant makes two contentions: the court erred in refusing to give an instruction proposed by her and the court erred in its comments to the jury on the evidence.28 The defendant requested that the jury be instructed that any husband who wilfully inflicts upon his wife corporal injury resulting in a traumatic condition is guilty of a felony based on Penal Code section 273d.29 In refusing to give the requested instruction the judge noted that it conflicted with instructions on justification submitted by defendant which require apprehension of death or great bodily injury.30 Defendant’s complaint that the court’s comments on the evidence were erroneous is based on the judge’s answers to questions propounded to him by the jurors during the course of their deliberations.31 The first question asked by the jurors was to define for them the term in the instructions great bodily harm and what it entails.32
Whether the trial court erred in refusing to give the defendant's proposed instruction that any husband who wilfully inflicts upon his wife corporal injury resulting in a traumatic condition is guilty of a felony?33
Penal Code section 197 codifies the common law rule that homicide is justifiable when resisting an attempt to commit a felony.34 Yet this principle is limited to felonies involving danger of great personal harm or atrocious crimes attempted by force rather than every statutory felony.35 The legislative purpose behind Penal Code section 273d was to provide a means of dealing with particular family situations and to reduce domestic conflict.36 It did not license a wife to kill her husband or promote resort to violence in the household.37 The trial court therefore correctly refused an instruction that would have allowed the jury to treat the mere existence of the section 273d felony as automatic justification for homicide.38
No. The facts of the case are as follows.
Defendant was charged with murdering her husband LeRoy Jones after a homicide that occurred in the evening of March 21, 1960, at their home following an argument that had resumed upon his return at 9 o'clock after he had left earlier.39 According to the defendant's account, her husband threatened to beat her, picked up a table knife and threatened to throw it at her, and finally threatened to kill her while advancing with the knife in hand, prompting her to shoot him with a .22 caliber pistol after first firing into the ceiling, resulting in two wounds to the deceased.40
A 12-year-old niece testified that the deceased did not make any movement toward the defendant prior to the shooting.41 There was also testimony that the defendant had previously stated her intention to kill her husband.42 She denied this.43 She claimed her husband had beaten her on numerous occasions during their married life.44 The defendant was convicted of manslaughter by the jury and appealed.45 She raised two contentions regarding the refusal of her proposed instruction based on Penal Code section 273d and the court's comments to the jury.46
Applying the rule to these facts shows that the requested instruction conflicted with the self-defense instructions already given.47 Those instructions properly required the jury to find that the defendant had reasonable ground to apprehend death or great bodily injury before justifying the homicide.48 The niece's testimony established that no movement occurred.49 The prior beatings alleged by the defendant did not automatically convert the encounter into one justifying deadly force under the limited construction of section 197.50 The trial court therefore acted correctly in refusing the instruction.51
The trial court did not err in refusing the proposed instruction.52
Whether the trial court erred in its comments to the jury on the evidence during deliberations?53
A trial judge may respond to questions from the jury during deliberations provided the responses do not invade the province of the jury as the exclusive judges of the facts and credibility of the witnesses. When the court has already instructed the jury on that point it is not required to repeat the admonition with every answer.54 Failure of counsel to object to the judge's comments at trial waives any claim of error on appeal.55
No. The judge took great pains to avoid invading the jury's province when answering the question about the definition of great bodily harm.56 It does not appear probable that any lack of precision prejudiced the defendant's defense.57 Counsel made no objection to the judge's comments at the time they were given.58 This waived the right to challenge those comments on appeal.59
The trial court did not err in its comments to the jury on the evidence.60