Atwood

Defendant appeals from a judgment of conviction of assault with a deadly weapon with intent to eom *309 mit murder. Defendant admitted the shooting but denied intent. There is no claim that the evidence was insufficient to support the judgment. The only issue on appeal is whether the court erred prejudicially in overruling defendant’s objection to the closing argument of the district attorney in which the district attorney told the jury that the circumstantial evidence rule did not apply to evidence presented by the defense.

Circumstantial evidence may be introduced and relied upon by both prosecution and defense in a criminal case. CALJIC Instruction No. 24 clearly stated that there are two kinds of evidence which may be introduced in court, direct and circumstantial. There is no limitation as to which side, defense or prosecution, may introduce such evidence. This being true, the court erred in overruling defendant’s objection to the prosecutor’s argument that circumstantial evidence did not apply to defendant’s case.

Following the ruling about which defendant complains, the court explained to the jury that it was the sole judge of the facts and that the court was the sole…