[6] It has been repeatedly held that it is reversible error to refuse a manslaughter instruction in a case where murder is charged, and the evidence would warrant a conviction of manslaughter. ( People v. Wilson, 29 Cal.App. 563 [ 156 P. 377]; People v. Hayes, 9 Cal.App. 301 [ 99 P. 386]; People v. Sidelinger, 9 Cal.App. 298 [ 99 P. 390]; People v. Darrow, 212 Cal. 167 [ 298 P. 1]; People v. Wallace, 2 Cal.App.2d 238 [ 37 P.2d 1053]; People v. Best, 13 Cal.App.2d 606 [ 57 P.2d 168].) It is said in People v. Hayes, 9 Cal.App. 301, 305 [ 99 P. 386], quoting from Stevenson v. United States, 162 U.S. 313 [16 S.Ct. 839, 40 L.Ed. 980]: "In the Stevenson case the judgment was reversed solely for the reason that the trial court refused to submit to the jury the issue of manslaughter.
In the case of People v. Wilson, 29 Cal.App. 563 [ 156 P. 377], the facts were not nearly so strong in the defendant's favor as were those in the instant case with respect to the defense of this defendant, and yet it was ruled not only that the defendant was entitled to have given to the jury an instruction by which the crime of manslaughter would be defined, but also that the failure of the trial court to give such an instruction to the jury constituted prejudicial error; — and solely for those reasons the judgment was reversed. In the case of People v. Hayes, 9 Cal.App. 301, 305 [ 99 P. 386], the court said: "The case of Stevenson v. UnitedStates, 162 U.S. 313 [16 Sup. Ct. 839, 40 L.Ed. 980], is a case in its essential particulars similar to the case at bar. In the Stevenson case the judgment was reversed solely for the reason that the trial court refused to submit to the jury the issue of manslaughter.
Inasmuch as the majority rely so heavily on selected language from Carmen it seems appropriate to point out also that of the seven decisions purportedly relied on for such language as the majority in the case at bench appear to emphasize in Carmen, two ( People v. Hayes (1908) 9 Cal.App. 301 [ 99 P. 386]; and People v. Sidelinger (1908) 9 Cal.App. 298 [ 99 P. 390]) were decided prior to the adoption in 1911 of article VI, section 4 1/2, of our Constitution; and in none of the remaining five ( People v. Darrow (1931) 212 Cal. 167 [ 298 P. 1]; People v. Best (1936) 13 Cal.App.2d 606 [ 57 P.2d 168]; People v. Wallace (1934) 2 Cal.App.2d 238 [ 37 P.2d 1053]; People v. Wilson (1916) 29 Cal.App. 563 [ 156 P. 377]; People v. Carroll (1912) 20 Cal.App. 41 [ 128 P. 4]) was there any discussion of the effect of that constitutional provision on the point in issue. Moreover, the decisions are plainly distinguishable from the case at bench on the ground (see pp. 786-787 of 36 Cal.2d) that where the jury are properlyinstructed on both degrees of murder and choose to convict the defendant of second degree murder only, a failure to instruct on evidence of manslaughter is prejudicial error because itappears from the evidence, the instructions, and the verdict that the defendant might reas
There must be some evidence of initial aggression on the part of the victim, as well as evidence the defendant was armed or armed himor herself during the altercation. (See, e.g., People v. Carmen, supra, 36 Cal.2d at pp. 771-772; Welch, supra, at pp. 837-838, 840; People v. Clark, supra, 130 Cal.App.3d at pp. 380-381, 382; People v. Landrum (1968) 261 Cal.App.2d 372, 374 [67 Cal.Rptr. 911]; People v. Alfreds (1967) 251 Cal.App.2d 666, 668-669 [59 Cal.Rptr. 647]; People v. Bross (1966) 240 Cal.App.2d 157, 163 [49 Cal.Rptr. 402]; People v. Hayes (1908) 9 Cal.App. 301, 303-304 [99 P. 386].) One may act in self-defense when it reasonably appears there is imminent danger that one's assailant intends to commit a felony upon one's person.
(See People v. Driscoll, 53 Cal.App.2d 590, 595 [ 128 P.2d 382]; People v. Miller, 67 Cal.App. 674, 679-680 [ 228 P. 68].) The cited cases are: People v. Carnine, 41 Cal.2d 384, 390 [ 260 P.2d 16]; People v. Carmen, 36 Cal.2d 768, 772 [ 228 P.2d 281]; People v. Darrow, 212 Cal. 167, 183 [ 298 P. 1]; People v. Wong Hing, 176 Cal. 699, 705 [ 169 P. 357]; People v. Keefer, 65 Cal. 232, 233-234 [3 P. 818]; People v. Burns, 88 Cal.App.2d 867, 871 [ 200 P.2d 134]; People v. Perkins, 75 Cal.App.2d 875, 881 [ 171 P.2d 919]; People v. Wallace, 2 Cal.App.2d 238, 242-243 [ 37 P.2d 1053]; People v. Peete, 54 Cal.App. 333, 356-359 [ 202 P. 51]; People v. Wilson, 29 Cal.App. 563 [ 156 P. 377]; People v. Carroll, 20 Cal.App. 41, 45 [ 128 P. 4]; People v. Hayes, 9 Cal.App. 301, 305 [ 99 P. 386]; People v. Quimby, 6 Cal.App. 482, 486 [ 92 P. 493]; People v. Williamson, 6 Cal.App. 336, 339 [ 92 P. 313]; People v. Stofer, 3 Cal.App. 416, 418 [ 86 P. 734]. [4] An appellate court will not weigh the truth or falsity of evidence to determine whether an instruction based thereon should be given.
The trial court refused to give a voluntary manslaughter instruction apparently reasoning that under no view of the evidence could the jury find the defendant guilty of manslaughter. The Court of Appeal, in the companion case of People v. Hayes (1908) 9 Cal.App. 301, 99 P. 386, found it was error for the trial court to refuse the manslaughter instruction. In Sidelinger the Court of Appeal found the failure to give the manslaughter instruction was prejudicial as to Sidelinger stating, "If, in fact, Hayes actually killed Jenks, and in so doing only committed the crime of manslaughter, his aiders and abettors were only guilty of manslaughter.
In Barnes v. State, 88 Ala. 204, [16 Am. Rep. 48, 7 So. 38], the syllabus (which correctly states the point decided) is as follows: "In a prosecution for rape declarations made by the accused three months before the commission of the crime, tending to show his desire to have carnal knowledge of the prosecutrix, as well as his belief that she would not yield to his wishes, are relevant, as affording to the jury a basis for inferring that he had gratified his passion in the manner charged in the indictment." (See, also, Ricks v. State, 48 Tex. Cr. 229, [ 87 S.W. 345]; 4 Elliott on Evidence, sec. 3103; People v. Hayes, 9 Cal.App. 301, [99 P. 389]; State v. Hoyt, 47 Conn. 518, [36 Am. Rep. 89]; Kerr on Homicide, 462.) The fact that the declarations were made by the defendant a month before the commission of the offense was a matter which went to the probative force of the testimony but not to its admissibility.