Romero

The defendant was informed against for the crime of assault with intent to commit murder, and was convicted of an assault with a deadly weapon. He appeals from the judgment pronounced upon said conviction and from an order denying his motion for a new trial.

1. The court instructed the jury that although the right to take life or use a deadly weapon in self-defense is unquestionable, “yet one on whom another is making a mere assault with the fist, not with intent to kill or do great bodily harm, and who is not deceived as to its character, is not justified in taking life or in using a deadly weapon in self-defense.”

The court elsewhere fully instructed the jury as to what would constitute a killing or shooting in self-defense.

The only objection made by appellant to the instruction quoted above is, that there was no evidence upon which to base it, it being claimed that the evidence of the prosecution was to the effect that the shots were fired by defendant without previous assault of any kind upon the part of the prosecuting witness, and that the evidence of the defense was, that the shots were fired to repel an attack then being made by the prosecuting witness and his…