I dissent. In my opinion there are two answers to appellant's contentions concerning the six instructions on self-defense, the soundness of which as propositions of law is not questioned — first, that they were properly given, and, second, that if not applicable the giving of them could not have been misleading. It was the duty of the court to state all matters of law pertinent to the case. (Pen. Code, secs. 1093 and 1127.) The theory of the prosecution was that the Doanes, Bowers and appellant had entered into a conspiracy against Graydon, forcibly and by use of pistols, brass knuckles and a blackjack, to oust him from the premises. Under this theory Graydon would have been justified in taking the law into his own hands against any or all of them and using force against any or all of them proportional to the danger. In such circumstances appellant would not have been warranted in killing him to save the life of any of them. It was therefore the duty of the court, whether requested by appellant or not, *Page 567 to charge the jury on the subject of self-defense in order to aid them in determining whether Graydon or his adversaries in the affray were at fault at the time appellant intervened and fired the shot. Clearly, the right of appellant to intervene depended upon the situation that was presented to her at the time, keeping in view her acquaintance with all the facts, and the jury could not tell what the legal situation was between Graydon and his adversaries, upon which appellant acted, without instructions on the law of self-defense, for, of course, a mingled question of law and fact was involved. Regarded in this light, the instructions would be equally responsive to the claim of the defense that there was no conspiracy, but that Graydon was the aggressor and was endeavoring to kill. Bowers. Moreover, it appears plain to me that these instructions were stated as general propositions of law. The words "defendant" and "slayer" were used, but in the abstract in each instance, and upon no theory can it be claimed they would not have applied to Graydon and his adversaries. But even if it be conceded the instructions were improperly given, I do not see how the jury could possibly have been misled into assuming appellant must be convicted unless she reasonably believed her own life or her bodily safety was in danger, in view of numerous other instructions which were given, particularly No. 39 proposed by appellant, wherein the jury were repeatedly told that if appellant killed Graydon reasonably believing it was necessary to save Bowers from great bodily injury as a result of an unlawful attack by Graydon, she should be acquitted.
Nor do I think the erroneous use of the phrase "by a preponderance of the evidence" instead of "sufficient to raise a reasonable doubt" calls for a reversal of the judgment. Misdirection of the jury is one of the errors contemplated by section 41/2 of article VI of the constitution. The majority opinion proceeds on the theory that because there is a conflict in the evidence, and that there is evidence sufficient, if believed, to have warranted a finding in favor of appellant under the rule of reasonable doubt, it cannot be held the erroneous instruction did not work a miscarriage of justice.
But as I understand the constitutional provision, our inquiry does not end when such a condition is presented on appeal. We must examine the record, not alone for the purpose *Page 568 of determining whether the jury could have arrived at a different result, but also to weigh the probabilities of whether or not the error had in fact worked a miscarriage of justice. It was said in People v. O'Bryan, 165 Cal. 55, 65 [130 P. 1042, 1046], discussing this provision of the constitution: "This much, however, we think may be safely said. Section 4 1/2 of article VI of our constitution must be given at least the effect of abrogating the old rule that prejudice is presumed from any error of law. Where error is shown it is the duty of the court to examine the evidence and ascertain from such examination whether the error did or did not in fact work any injury. The mere fact of error does not make out aprima facie case for reversal which must be overcome by a clear showing that no injury could have resulted. . . .
"The final test is the opinion of the appellate court upon the result of the error. No doubt this view requires the court, to some extent, to weigh the evidence, and form conclusions upon its weight — a function which, heretofore, has been reserved for the jury. But it cannot be doubted that the legislators, in proposing the amendment, and the electors, in adopting it, intended to put upon the courts the performance of just that function. We are not substituted for the jury. We are not to determine, as an original inquiry, the question of the defendant's guilt or innocence. But, where the jury has found him guilty, we must, upon a review of the entire record, decide whether, in our judgment, any error committed has led to the verdict which was reached. If it appears to our satisfaction that the result was just, and that it would have been reached if the error had not been committed, a new trial is not to be ordered."
It does not follow, therefore, that it is sufficient to justify a reversal upon the ground the instruction was prejudicially erroneous that the evidence is in conflict and would sustain a contrary finding; it is the duty of the court to examine the record, including the evidence, in order to determine whether the error actually worked any injury, the burden of showing prejudice being on the party asserting the error.
In my opinion it is altogether improbable that the error affected the verdict. Briefly summarized, the evidence on behalf of the people was to the effect that before the fatal meeting Doane telephoned Bowers requesting him to go to *Page 569 Venice and give notice that a bond on appeal had been filed, staying execution of the judgment under which Graydon held possession of the property. Bowers thereupon got appellant and proceeded to the house where the shooting occurred. It appeared that both Bowers and appellant had previously taken sides in the dispute between the Doanes and the Graydons over the right to the possession of the premises; that appellant had once before accompanied Mrs. Doane to the house while Mrs. Graydon was there, and had taken an active part in the argument which ensued. The evidence shows that on the occasion in question Bowers and appellant arrived at the house and called to the Graydons, who were inside, knocking on the windows and the door and using profane language; that Mrs. Graydon left and went to the police station to secure help, but was unsuccessful and secured a taxicab to take her home; that she endeavored to purchase a revolver at a hardware store, but was unable to do so; that Graydon informed Mrs. Doane, after the latter arrived on the scene, that a mistake had been made and that he and his wife were leaving; that meanwhile Mr. Doane entered the house and that Mrs. Doane called out to the others to come on in.
The testimony of both the taxicab driver and Mrs. Graydon is to the effect that appellant immediately struck Graydon over the head with something which Mrs. Graydon said was similar to the blackjack afterwards found in appellant's handbag. It was testified that Bowers also proceeded to attack Graydon and that in a moment the three men were struggling outside the door, Graydon against Bowers and Doane, with Graydon trying to defend himself. Mrs. Graydon endeavored to go to the assistance of her husband, but was struck over the head by appellant. Recovering herself, she went into the house and procured what she said was a bill-file, with which she struck appellant over the head. The struggle progressed to a point where Graydon was on his knees. He had been standing facing the porch, and his hands were held to his back, Mrs. Doane and Bowers in front of him and Doane behind him. His eyes were closed as he sank to his knees. At this point appellant went behind Graydon while he was being held by Bowers and Doane, holding a blue revolver in both hands, and standing close to him, shot him in the back. This testimony was *Page 570 corroborated by Mrs. Graydon and the taxicab driver. There was evidence that before the shooting Graydon's head and face had been struck with hard instruments which caused abrasions, bruises and blackened spots. A neighbor from her home close by heard Bowers say, immediately after the shot was fired, "You _____ _____, if that don't finish you, I have something that will." The same witness testified that Bowers, who was still behind Graydon, picked something up off the lawn and that he and appellant went around behind the house. The revolver was never found.
When the police arrived in response to a summons by Mrs. Graydon and her sister, they found appellant and Bowers in the automobile, the engine of which had been started. The former had the blackjack in her handbag and the latter had the brass knuckles in his pocket, which articles they told the officers they had taken from the Graydons. A woman who lived in the neighborhood had searched the automobile, but found no weapon nor ammunition of any kind. Another witness testified that a short time later Doane went to the automobile. Following this, the police searched the car and found several cartridges under the floor mat. Bowers' son testified that the previous Sunday he heard his father say to appellant, with reference to Graydon, that "his hours are numbered," that appellant had said Graydon would "get his," and that on that occasion Bowers had a blue revolver in his possession. Another son of Bowers testified that several years prior to the trial Bowers had kept a pair of brass knuckles. It may be observed that of those present the disinterested witnesses testified in favor of the prosecution, and that there was no altercation until Bowers and appellant appeared.
It is inconceivable to me that a slip in the instructions as to the measure of proof, involving a distinction which even those learned in the law might fail to notice when stated in the course of a long charge, contributed to the verdict. The jury undoubtedly concluded that appellant and Bowers were vicious meddlers who injected themselves into the legal dispute between Graydon and Doane. I think that what was said by the district court of appeal in the case of the codefendant Bowers (People v. Bowers, 56 Cal. App. 80 [204 P. 548]), concerning the part he and appellant played in the controversy between Graydon and the *Page 571 Doanes, is equally justified by the record in this case. That opinion says: "Both Bowers and Maybelle Roe, and especially the latter, seem from the evidence to have adopted the Doane-Graydon controversy as personal to themselves. So far as can be learned from any of the evidence, neither Bowers nor Maybelle Roe had any interest whatsoever in the Doane house or any lease made by Mrs. Doane. . . . It was appellant's statement given at the trial that on the day of the affray he took Maybelle Roe with him because she was not feeling well and needed fresh air. Subsequent developments showed that for a person in enfeebled health Maybelle Roe was capable of great physical activity, for on the occasion of this second controversy which resulted fatally to Graydon, her participation therein was of the more deadly consequence. That she and appellant Bowers acted with mutual intent and like purpose no reasoning mind can doubt upon examination of the record here exhibited, and by that record it is shown plainly enough that had it not been for the presence and acts of Bowers and Maybelle Roe the controversy between the Doanes and Graydons as to the possession of the house would have been settled in a peaceful way, unaccompanied by the tragedy which occurred."
The jury passed on the respective stories concerning the tragedy, and in view of the verdict of murder in the first degree it must be presumed they accepted the version of the witnesses for the prosecution. Upon this hypothesis the jury must necessarily have concluded that a foul murder had been committed and utterly rejected the claim of the defense that appellant killed Graydon in order to save Bowers' life. Clearly, it was either a deliberate murder or a justifiable homicide. Indeed, as pointed out in the opinion of the district court of appeal herein, the testimony of appellant herself as to her purpose in firing the shot was equivocal to say the least. I quote: "While asserting on direct examination that she committed the act in defense of Bowers, she on cross-examination, in response to the question, 'Well, why did you fire the shot?' stated: 'Because he was killing Mr. Bowers.' And in reply to the question, 'Because who was killing Mr. Bowers?' answered, 'Mr. Graydon.' In response to further questions by the district attorney, she stated: 'I don't know why I fired it. No, I did not fire it at Mr. Graydon; I never fired it at Mr. Graydon.' " In view of the *Page 572 verdict, the jury could have given no credence to the story of the defense that with Bowers standing over Graydon, Doane struggling against him, and appellant standing close by armed and ready to intervene, that Graydon was able to throw Bowers to the ground and succeed in choking him by pulling at his necktie. It is plain to me that the jury regarded this as a fabricated defense; that they believed there was absolutely no occasion for killing Graydon, but that the killing was a part of the original conspiracy against him. Upon no hypothesis should it be held that the testimony of the defense was of sufficient weight to have created a reasonable doubt in the minds of the jury as to the guilt of appellant even though they had been properly instructed on the measure of proof. In other words, it could have made no difference to the jury, even if they observed the distinction between the terms "preponderance of the evidence" and "sufficient to raise a reasonable doubt," which one was used. In my opinion it is improbable that the verdict was affected by any nice question of thequantum of proof, but that the jury concluded the entire defense was destitute of merit. I can hardly believe that the jury was so undecided as to the effect of the evidence that if the rule had been correctly stated to them they would have held appellant guiltless. This is the second jury that has accepted the theory of the prosecution, and in my opinion no other jury would reach a different conclusion on the evidence. The judgment should be affirmed.
Rehearing denied.
All the Justices present concurred, except Lawlor, J., who dissented.
Richards, J., pro tem., was acting. *Page 573