Brown

In denying the petition for rehearing, although this point is not urged in the petition, we do not wish to be understood as approving that portion of the opinion dealing with the last instruction set forth in the opinion with reference to the defendant's testimony. It is unnecessary to determine in this case whether the defendant was entitled to an instruction that “When a defendant does take the stand he has a right to testify about any portion of his case, and no prejudice should be raised in the jurors’ minds against him because he does not testify about all instances concerning his case.” The instruction was properly refused because it infringes upon the province of the jury in the last clause reading as follows: “When a defendant takes the stand his testimony is not to be distrusted merely because he is the defendant; on the contrary, his testimony is to be weighed by you in the same light as the testimony of any other witness in the case.” (People v. Winters, 125 Cal. 325, 330 [ 57 Pac. 1067 ], and other cases cited in the concluding paragraph of the opinion of the district court of appeal. See, also, 8 Cal. Jur., sec. 394, p. 365, and cases cited.)

Defendant was charged with the murder of one William Antior. The jury returned a verdict of guilty of murder in the second degree, and defendant now appeals from the judgment and from the order denying him a new trial. No question is raised as to the sufficiency of the evidence to support the verdict. Appellant, who admitted the killing but claimed that he acted in self-defense, complains of certain rulings and instructions. Defendant occupied an apartment on the third floor of an apartment house in the city of Los Angeles. On the second floor lived a couple who on the evening of May 20, 1922, were entertaining in their apartment the deceased and a few other guests. These latter seem to have been an uproarious party of merrymakers, for some time after midnight defendant went to their door and complained of the noise they were making, threatening to have them arrested for disturbing his peace. The hostess requested defendant to go away, and threatened, in turn, to have him arrested for disturbing the peace of herself and guests. Thereupon defendant returned to his apartment on the floor above. Shortly thereafter the deceased, who was unarmed, left the apartment where he and others…

Defendant was charged with the murder of one William Antior. The jury returned a verdict of guilty of murder in the second degree, and defendant now appeals from the judgment and from the order denying him a new trial. No question is raised as to the sufficiency of the evidence to support the verdict. Appellant, who admitted the killing but claimed that he acted in self-defense, complains of certain rulings and instructions.

Defendant occupied an apartment on the third floor of an apartment house in the city of Los Angeles. On the second floor lived a couple who on the evening of May 20, 1922, were entertaining in their apartment the deceased and a few other guests. These latter seem to have been an uproarious party of merrymakers, for some time after midnight defendant went to their door and complained of the noise they were making, threatening to have them arrested for disturbing his peace. The hostess requested defendant to go away, and threatened, in turn, to have him arrested for disturbing the peace of herself and guests. Thereupon defendant returned to his apartment on the floor above. Shortly thereafter the deceased, who was unarmed, left the apartment where he and others…