I dissent.
I am in accord with the reasoning and conclusions of the opinion of Mr. Presiding Justice Finlayson except as to the portions thereof which refer to the admission in evidence of testimony concerning the good reputation of the deceased and those which refer to the giving of instructions numbered XIV and XV. I concede that the trial court erred in overruling defendant's objection to the question, "Do you know his [deceased's] reputation in the community in which he lived for peace and quiet?" This was erroneous, if for no other reason, because the question did not refer to the general reputation. It is plainly apparent, however, that the defendant could not have been injured or prejudiced by any answer which would be responsive to this question. Such an answer could only be "yes" or "no," coupled, perhaps, with an explanation of the nature and extent of the witness' knowledge upon this subject. Conceding this to have been immaterial it could not have injured the defendant. If a categorical answer had been insisted upon it might well have been in the negative and this would have ended the inquiry. On the other hand, if the answer had been in the affirmative the defense would then have been entitled to cross-examine the witness upon voir dire to ascertain the nature and source of the witness' knowledge and this might *Page 315 have disclosed the fact that the witness was not qualified to testify upon this subject. Either of the foregoing situations would have resulted in the exclusion of the testimony here complained of. The prevailing opinion concedes that if a motion to strike out the answer upon the ground that it was not responsive had been made it would have been granted. Inasmuch as neither party made such motion the trial court was fully justified in concluding that both parties were content that this answer should remain in the record and before the jury. I think, therefore, that the defendant is now foreclosed from contending upon appeal that he was prejudiced by this ruling. In order to conclude that he was so prejudiced the prevailing opinion is compelled to assume two states of fact: First, that if a categorical answer had been required of the witness it would have been in the affirmative; second, that the defense would then have refrained from cross-examining the witness upon voir dire or that such cross-examination would have been ineffective. But it has been the settled law in this state ever since the adoption of section 4 1/2 of article VI of the constitution that, upon appeal, injury or prejudice cannot be presumed or assumed from the mere fact of error. Such injury and prejudice must affirmatively appear from an inspection of the record before it can justify a reversal (People v. O'Bryan, 165 Cal. 55 [130 P. 1042]; Vallejo etc. R.R. Co. v. Reed Orchard Co.,169 Cal. 545, 554 [147 P. 238]; People v. Mazzurco, 49 Cal.App. 275, 280 [193 P. 164]; People v. Chapman, 55 Cal.App. 192, 201 [203 P. 126]; People v. McCalla, 63 Cal.App. 783, 797 [220 P. 436]). I am in full accord with the rule announced by this court in People v. Frank, 193 Cal. 474 [225 P. 448], that "When it clearly appears that a verdict of conviction is based upon incompetent evidence which was admitted over the objection of the defendant . . . we must conclude that the judgment resulting therefrom involves a miscarriage of justice. (Italics mine.) It did so "clearly appear" in that case because the incompetent evidence was absolutely essential to sustain the verdict. The evidence here complained of may be eliminated without in the least impairing the sufficiency of the remaining evidence to sustain the verdict of conviction, and, therefore, it does not appear herein that the verdict is based upon incompetent evidence. *Page 316
I am unable to concur with the conclusion that the trial court erred in giving instructions XIV and XV. It is conceded that they correctly state the law, but it is said that they should not have been given for the reason that they are inapplicable to the evidence in the case or to any issue raised by the evidence and were, therefore, well calculated to be misleading and confusing. I think that they both were applicable to the evidence and to issues raised by the evidence and were properly given. It must be conceded that the defendant made the first assault. He admits that he fired the first shot while the deceased was sitting quietly upon the running-board of his automobile and before the latter had made any move or declaration whatsoever. To be sure, the defendant declares that he fired this shot in the air, but the jurors were not compelled to believe this statement, and even if it be true the deceased could not know in the darkness that the shot was not fired at him. Therefore the jurors were warranted in finding that the defendant made an attack which justified the deceased in making a counter-attack in self-defense. It is true that the defendant testified that the deceased advanced toward him and that he retreated, but the jurors were not required to believe this statement. They might well have discredited it because of the vital interest of the defendant in the result of the trial, and because it was controverted both by the testimony of Cornelison and by the dying declaration of the deceased. Instruction XIV was, therefore, relevant to the evidence. The jurors were also warranted in believing from the evidence that if the deceased made an assault it was brought about by defendant's own procurement in firing the first shot, and this is the state of facts referred to in instruction No. XV.
I agree that the trial court erred in admitting testimony by way of rebuttal to the effect that the witness had never seen the deceased carry a weapon, but I am satisfied that this error was not prejudicial. It is suggested in the prevailing opinion that this testimony had the effect of bolstering up the testimony of the same witness that the deceased was unarmed at the time of the homicide. It could not, in my opinion, have had this effect. A witness cannot corroborate his own testimony by restating the same fact in different language. These two statements were both made *Page 317 by the same witness. If the first was true the second was probably also true, but immaterial. If the first was false the second was also false. The making of the second statement by the same witness added nothing to the weight or creditability to be accorded the first. Therefore its admission in evidence was but harmless error.
I am of the opinion that no prejudicial error was committed in this case and that the judgment should, therefore, be affirmed.
Lawlor, J., concurred.