Opinion
Appeal from a judgment of conviction and from an order denying a new trial in the Superior Court of the County of Amador. Moore, J.
COUNSEL
C. B. Armstrong, for Appellant.
A. L. Hart, Attorney-General, for Respondent.
JUDGES: Myrick, J. McKee, J., concurred in the judgment. McKinstry, J., concurring.
OPINION First--The defendant asked the Court to instruct the jury: " If the accused was defending himself from an attack of the deceased that rendered it necessary for the protection of his own life that he should kill him, though he resolved to kill him before the fatal shot was fired, the killing was not murder." It is enough to say, even if the instruction should be given in a proper case, the transcript does not contain the evidence; therefore, it is not apparent that the Court erred in refusing the instruction.
Second--The defendant asked the Court to instruct the jury that " where no evidence of the character of the defendant is introduced, his character is presumed to be of ordinary fairness in the traits involved in the crime with which he is charged, and that it is a fact to be considered by them in arriving at their verdict in connection with all the other facts in the case."
The substantial point arrived at in this instruction is fully covered by other instructions given, viz., " that the defendant is presumed to be innocent until his guilt is established by proof, and can not be convicted unless the jury are convinced by the evidence in the case, beyond all reasonable doubt, that he is guilty." He is presumed to be innocent, whatever be his character; he must be proved, by the evidence, to be guilty. His character was not in evidence; the consideration of his character would not add to the strength of the presumption of innocence.
The other points made by appellant are answered by what is said above regarding the first point.
Judgment and order affirmed.