[8] An instruction which finds no support in the record, even though a correct statement of an abstract proposition of law, is improper when it finds no support in the evidence, and it is ground for reversal if it is calculated to mislead the jury (24 Cal.Jur. 831, 832). In People v. Silver, 16 Cal.2d 714, 723 [ 108 P.2d 4], we said: "Where errors in instructions occur, the question always arises as to whether or not they are prejudicial. Here it may be said that where the proof of a defendant's guilt is clear, and no extenuating circumstances appear, such errors may not be prejudicial.
Objection was made to this question and was sustained. It is now urged that the trial court committed prejudicial error in sustaining the objections to the questions propounded, citing People v. Fong Sing, 38 Cal.App. 253 [ 175 P. 911]; People v. Silver, 16 Cal.2d 714 [ 108 P.2d 4]; People v. Alcalde, 24 Cal.2d 177 [ 148 P.2d 627]; People v. Weatherford, 27 Cal.2d 401 [ 164 P.2d 753]. People v. Fong Sing, supra, was a murder case in which the defense was an alibi.
( Mutual LifeIns. Co. v. Hillmon, 145 U.S. 285 [12 S.Ct. 909, 36 L.Ed 706].) He also cites People v. Alcalde, 24 Cal.2d 177 [ 148 P.2d 627], People v. Silver, 16 Cal.2d 714 [ 108 P.2d 4], and People v. Chenault, 74 Cal.App.2d 487 [ 169 P.2d 29], in support of his position. Declarations of intent have generally been held admissible to prove a completed act only where the declarant is dead or otherwise unavailable ( People v. Alcalde, 24 Cal.2d 177, 185-188 ( supra); People v. Weatherford, 27 Cal.2d 401, 420-423 [ 164 P.2d 753]) or where they fall within other exceptions to the hearsay rule. ( People v. Silver, supra, 16 Cal.2d 714; People v. Chenault, supra, 74 Cal.App.2d 487; People v. Fong Sing, 38 Cal.App. 253 [ 175 P. 911].)
Nakashima, in reversing the judgment in the plaintiff's favor, concluded that the defendant's act was a justifiable homicide under Penal Code section 197, subdivision 2. That case manifestly differs on its facts from the present one in that, among other things, here no one except the asserted would-be burglar and his companion was on the premises when the gun was fired.People v. Silver, 16 Cal.2d 714 [ 108 P.2d 4], does not aid defendant. In Silver the defendant, a watchman assigned to guard a mine, killed a boy, who with two other boys after dark trespassed on the guarded property for the purpose of stealing gasoline.
As we said in People v. Dail, 22 Cal.2d 642, 650 [ 140 P.2d 828], "It is also true, however, that in a close case where the evidence is sharply conflicting, substantial and serious errors vital to defendant that may have resulted in a miscarriage of justice must be regarded as prejudicial and grounds for reversal. ( People v. Silver, 16 Cal.2d 714, 723 [ 108 P.2d 4].)" In the case at bar, the district attorney managed to interject much immaterial and irrelevant matter concerning strikes, the use of pickets, and assaults in other strikes which could not have had any other effect than to prejudice these defendants who were not claimed to have taken part therein.
The addition of such words to the cautionary instruction was wholly unnecessary. Just as the accurate statement of a proposition of law which is entirely inapplicable to the facts of a case may mislead a jury to the prejudice of a party ( People v. Silver (1940), 16 Cal.2d 714, 722 [ 108 P.2d 4]; People v. Roe (1922), 189 Cal. 548, 558 [ 209 P. 560]), so may overemphasis on a particular point ( People v. Hatchett (1944), 63 Cal.App.2d 144, 158 [ 146 P.2d 469]). In the circumstances of this case, where the words were wholly unnecessary to a fair and clear statement of the pertinent proposition of law and were supererogated in the handwriting of the judge on the already adequate printed instruction which was taken into the jury room, their overemphasis upon conviction is manifest.
He does not contend that the instructions were incorrectly worded, but invokes the rule that it is error to give instructions on principles of law that have no application to the facts of a case. ( People v. Sanchez, 30 Cal.2d 560, 572 [ 184 P.2d 673]; People v. Silver, 16 Cal.2d 714, 722 [ 108 P.2d 4]; People v. Roe, 189 Cal. 548, 558 [ 209 P. 560]; People v. Geibel, 93 Cal.App.2d 147, 178 [ 208 P.2d 743].) "The right of self-defense exists only as against an unlawful attack.
Such an instruction therefore may have misled the jury on a matter vital to the defense of defendant. (See People v. Silver, 16 Cal.2d 714, 723 [ 108 P.2d 4]; People v. Dail,supra, 22 Cal.2d 642, 659.) After a consideration of the entire record it is clear that the giving of this erroneous instruction, particularly when considered with the other erroneous instructions, has resulted in a miscarriage of justice.
When the police officers visited appellant's home on Wednesday night prior to the tragedy they directed their inquiries to the ascertainment of the identity of the enemy or enemies of appellant, and no one suggested that juveniles might be involved. There are cases reported where juveniles have been shot while committing burglary, like Viliborghi v. State, supra; State v. Terrell, supra, and People v. Silver, 16 Cal.2d 714, 108 P.2d 4, and while engaged with men in committing other offenses in the night, like Patten v. People, 18 Mich. 314, 333, 100 Am.Dec. 173, and Higgins v. Minaghan, 78 Wis. 602, 47 N.W. 941, 11 L.R.A. 138, 23 Am.St.Rep. 428, but counsel have cited no case, and we have found none, where the facts were similar to those in the case at bar. The connection, if any, between the intruder into appellant's home and the midnight attacks thereon is of small moment, since the matter should be considered solely from the viewpoint of appellant at the time the fatal shot was fired.
However, the giving of an instruction outside the issues or beyond the applicable facts is not reversible error unless it can be said to have been prejudicial. ( People v. Silver, 16 Cal.2d 714, 722-3 [ 108 P.2d 4]; People v. Boggs, 12 Cal.2d 27, 37 [ 82 P.2d 368]; People v. Shallen-berger, 25 Cal.App.2d 402, 407 [ 77 P.2d 506]; People v. Russell, 59 Cal.App.2d 660, 664 [ 139 P.2d 661].) Here there is no indication of prejudice. The jurors were presented with clear and convincing proof of defendant's guilt, and within an hour of submission of the cause to them returned their verdict of guilty.