People v. Peak

153 P.2d 464, 66 Cal. App. 2d 894, 1944 Cal. App. LEXIS 792

• Court: California Court of Appeal
• Decided: November 22, 1944
• Docket: Crim. 2298
• Status: Published

Opinions

WARD, J.

The appellant, George Peak, shot and seriously wounded his daughter Jane Epidendio and her husband Ernest Epidendio with a shotgun during a family dispute over the attempted removal by the Epidendios of certain furniture and personal belongings of which they were the owners from a dwelling owned by Ernest Epidendio and in which appellant was then living. There was but one shot fired, and appellant was charged in one indictment, containing two counts, with violating section 245 of the Penal Code—assault with a deadly weapon. He was found guilty by a jury on each count and he appeals from the judgments of conviction and the orders denying his motions for new trial.

Ernest Epidendio who with his wife Jane operated a grocery store in Larkspur, Marin County, lived at 12 Sycamore Street, which property belonged to him. Upon Ernest’s induction into the United States Army, Jane invited her parents to live with her at the Sycamore Street residence. Prior to such time the Peaks had been caring for the child of the Epidendios. For this they were paid $35 a month in cash and given a $15 drawing account on the grocery store. At the time they took up their residence with Mrs. Epidendio it was agreed that the $35 a month payment should cease; that the Peaks were to pay no rental; that Mrs. Epidendio was to pay the bills for the utilities and furnish the groceries; that Mrs. Peak was to buy all the meat. Shortly thereafter, members of Ernest’s family who had assisted his wife at the store after he went into the service, being unable to continue such work, Mrs. Epidendio arranged for her father to help her with the business. At first he refused to accept payments, but finally agreed to take $35 a week for four weeks and thereafter $50 a week, also one-half of the profits of the store during the time of his employment. Mrs. Epidendio said she made the payments of salary in cash and kept no record of them; Mr. Peak denied that he was paid any salary.

Upon Ernest’s discharge from the army he returned to the Sycamore Street address and the two families lived together. Discord developed almost immediately, however, and the record is replete with recitals of quarrels, during some of which Mrs. Epidendio persuaded her husband to leave the house in order to avoid any violence. Shortly after Ernest’s return, Mr. Peak ceased to report for duty at the store, and Ernest tendered him a check for $585 which he said represented as nearly as he could figure one-half of the profits of the business during the time of Peak’s employment. Peak did not accept the check, and Mrs. Epidendio claims the trouble started when her father claimed he was being cheated and wanted more money. Owing to the continued discord, Epidendio and his wife moved to an apartment over their store, taking with them only what clothing they needed for immediate use. Prom time to time Mrs. Epidendio went back to the house and procured articles of clothing for herself and her husband, trying all the while to persuade her parents to leave so that she and her husband could move back into their home. On such occasions arguments developed and bitter words were exchanged.

On November 14th, Ernest, his wife, two of his brothers and four other men in two trucks, one a moving van, proceeded to the Sycamore Street residence. Upon their arrival the party alighted from the trucks and started to ascend the stairs of the dwelling. Mrs. Epidendio was leading, and as she opened the screen door and inserted her key in the lock, her mother came to the inside of the door, threw on the safety catch and called Mr. Peak. Mrs. Epidendio states that she told her mother that since the Peaks would not move out, she and her husband wanted to remove their furniture and belongings. Her mother said she was told they had come to move the furniture and to dispossess her parents at the same time. The father had in the meantime come to the front of the house and could be seen through the front room window at the left of the outside door. He had pulled aside the curtain and was pointing a double barreled shotgun at his daughter. Calling vile names he threatened to shoot unless the party departed. Mrs. Epidendio told him to go ahead; she believed “he was too yellow.” Since entrance to the house could not be gained Mrs. Epidendio left, going to the Assistant Chief of Police of Larkspur, to whom she gave an account of the happenings. She then returned to her apartment, armed herself with a small gun and went back to the scene of the trouble. Upon her arrival there the gun was immediately taken away from her by one of her husband’s brothers, who put it in his truck. Mr. and Mrs. Epidendio then left with the moving man—who had arrived at the conclusion by this time that his services would not be required—and called their attorney, who advised them to take their personal possessions but to leave the furniture. They accordingly went again to the house and, with their friends once more ascended the stairs, Mrs. Epidendio telling her parents that she had been advised by her attorney that she had the right to take her personal effects. She saw her father just inside the door with the gun still in his hands—and he threatened to shoot if they did not go away. Ernest opened the screen door and put his key in the lock. At the same instant Peak discharged the gun through the glass partition of the door, injuring his daughter in both legs and feet, and her husband in one foot.

Appellant contends that the state failed to establish any intent on his part to injure or inflict bodily harm upon any person. “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Pen. Code, § 240.) “Every person who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable” as provided by section 245 of the Penal Code. The difference between the offenses referred to in sections 240 and 245 is that in the latter a deadly weapon is involved. (In re Shull, 23 Cal.2d 745 [146 P.2d 417].) In the simple assault offense there must be an ability and an attempt to commit the offense. In the greater offense the character of the weapon and the method of its use become an essential of the offense. (People v. McCoy,

* (Cal.App.) 147 P.2d 54; People v. Cook, 15 Cal.2d 507 [102 P.2d 752].)

In the offense of assault with a deadly weapon, malice is not an element of the crime; an intent to use the deadly instrument may be implied from the manner of its use. If the act is wrongful and the firing of a gun under the circumstances is unlawful, the intent may be inferred from the method used, including the position of the parties and all of the surrounding circumstances. “Where the act is both unlawful and wrongful, and well calculated to inflict serious personal injury, the law will imply malice and an unlawful intention and override any actual intention existing in the mind of the aggressor. Thus, while it is not an assault to fire a gun in the air for the purpose of frightening another, it is an assault, without regard to the aggressor’s intention, to fire a gun at another or in the direction in which he is standing. The law will not tolerate such a reckless disregard for human life.” (4 Am.Jur., p. 130, § 6.) (See 3 Cal.Jur., pp. 202-203, § 19; People v. Leyba, 74 Cal. 407 [16 P. 200]; People v. Lim Dum Dong, 26 Cal. App.2d 135 [78 P.2d 1026]; People v. Bumbaugh, 48 Cal.App.2d 791 [120 P.2d 703].) In the present case, the manner of the use of the shotgun and other circumstances are all questions of fact that may be decided by the jury. The implied finding in the verdict—that a felonious assault as designated in Penal Code, section 245, had been committed by appellant—may be sustained. (People v. Bumbaugh, supra.)

The cases cited by appellant as holding that in the offense of assault with a deadly weapon there must be a specific intent, do not go that far. A fair sample is People v. Dodel, 77 Cal. 293 [19 P. 484], In the Dodel case the defendant, moving away from the complainant, had a knife in his hand but did not use or attempt to use it. Two instructions are there critisized, the gist of the second being that there must have been an attempt to use the weapon. The drawing of a weapon, the manner in which it was held, and the statements made, if any, by the holder of the instrument are all circumstances which may be considered in determining whether there was in fact an assault with a deadly weapon. (People v. Adams, 76 Cal.App. 188 [244 P. 114].)

The court instructed the jury that in the offense of assault with a deadly weapon no specific intent is necessary, and gave additional instructions upholding the first principle criticized. The eases cited involve offenses wherein specific intent must be proved, viz., assault with intent to commit rape (People v. Johnson, 106 Cal. 289 [39 P. 622]), murder (People v. Jones, 160 Cal. 358 [117 P. 176]; People v. Flannelly, 128 Cal. 83 [60 P. 670]) and assault with intent to commit murder (People v. Mize, 80 Cal. 41 [22 P. 80]; People v. Miller, 2 Cal.2d 527 [42 P.2d 308] and People v. Snyder, 15 Cal.2d 706 [104 P.2d 639]). The latter offense is the nearest approach to the offense of assault with a deadly weapon. In the assault to murder, the crime must be proved by evidence or inferences reasonably deducible therefrom that there was a specific intent to kill; the specific intent to kill is lacking in the offense where the assault is made only to produce bodily injury. In such a case the means or instrument used, together with other circumstances, is sufficient proof of the general intent to inflict bodily injury.

In every public offense there must exist a joint operation of act and intent, or criminal negligence. (Pen. Code, § 20.) There are some crimes in which a wrongful intent is presumed based solely upon the commission of the act itself. If intent is not made an affirmative element in an offense performed knowingly, the law imputes a criminal intent. The law assumes an intent as an essential of a crime. Even in a case where the felony is designed and the life of another is taken accidentally the law presumes an intent to kill. It is only in offenses where the voluntary commission of an unlawful act is based upon the essential element of specific intent that intent should be alleged and proved. The element of criminal negligence is a substitute for proof of specific intent. (Pen. Code, §§ 7, 8, 20, 21, 26; 7 Cal.Jur., pp. 850-851 §11 et seq.; 14 Am.Jur., p. 782 et seq., §23.) In the present case there is evidence that appellant had made threats to shoot Ernest Epidendio. If believed, that evidence, together with the actual shooting and the surrounding circumstances, is sufficient proof of the offense charged in view of the fact that the appellant’s explanation was not acceptable to the jury.

At the time of the trial appellant’s attorney had in his possession six letters written from Jane to Ernest and one from Ernest to Jane. It is contended that the letters establish the cordial relationship existing between Jane and her father during the absence of Ernest in the army, and that “They disclosed a background showing animosity on the part of Ernest Epidendio’s family toward defendant-and established a condition showing that this animosity would operate upon Ernest Epidendio to the extent of causing him in turn to entertain animosity toward the defendant.” Several of the letters were read by Jane to her mother before mailing. These letters were admitted in evidence upon the theory that Jane had waived the privilege by publication of their contents to her mother. All of the letters were obtained by the mother from the bottom drawer of a dresser in the bedroom used by Jane and Ernest or from other places in the house.

The admissibility of the letter written by Ernest to Jane, marked as an exhibit for identification, may be disposed of immediately, it reads: “Hello Sweetheart I just received your letter and Alice’s [Ernest’s sister] as well and it sure upset me an awful lot to hear about your misunderstanding you two had. I wrote Alice and told her to tell you that Im sure she did not know what she was saying after all if it wasnt for your Dad that the store would have had to close in two weeks if it depended on my family. So Honey I want you to do me this one favor and please keep peace in the families and gives Alice another Chance at least to help while you are away with me in New York wont you please? Well honey as always I sure cant tell you how much I really love you and hope you feel the same.” This letter, written in the month of August, 1943, does not show animosity on the part of Ernest to the defendant Peak, or that Jane after reading the letter held any animosity toward her father. It does not indicate favoritism on the part of Ernest for his own family, and was not proper impeaching evidence of any statement made by Ernest based upon facts which were not discovered until his return from the army in September, 1943.

The purpose of section 1881 of the Code of Civil Procedure is to hold intact the confidence which naturally arises from the relationship of husband and wife. It is not the act of communication but the substance thereof that is held legally inviolate. The propriety of the rules covering the admission of written communications between husband and wife which have fallen into the hands of third parties, is similar to the oral communications rule; that is, conversations between spouses overheard by a third party. “. . . the rule is well settled that a third person who overhears a communication between husband and wife, whether with or without their knowledge, and whether surreptitiously or openly, may testify regarding what he thus learns, although the communication may be, as between the husband and wife, one of a confidential character.” (63 A.L.R., pp. 108-109.) “For, even though a conversation between a husband and wife was intended to be confidential, a third person who overheard it, whether his presence was known or not, may testify as to what was said. 40 Cyc. p. 2359; State v. Center, 35 Vt. 378; 5 Wigmore, Ev. 2d ed., secs. 2339, and 2326.” (Nash v. Fidelity-Phenix Fire Insurance Co., 106 W.Va. 672 [146 S.E. 726, 63 A.L.R. 101, 104].)

Evidence produced by third parties without connivance of a spouse, or obtained without the use of force or violence upon a spouse but merely by accident or by design of the third party, is similar to oral admissions accidentally or designedly overheard. “In criminal prosecutions, in particular, evidence is frequently obtained by methods that are morally reprehensible and offensive to fair dealing, under circumstances which meet with disapprobation of the courts, and, in many instances, by means that are illegal. If, however, evidence offered in support of a fact in issue is relevant and otherwise competent, it is generally admissible, although it may have been obtained unethically, wrongfully, or unlawfully or illegally, as where it was secured by trespass, unless its admission will violate a constitutional guarantee of the person against whom its admission is sought or is in contravention of a statutory enactment.” (20 Am.Jur., pp. 352-353, § 393.) When obtained by design the means of obtaining the evidence is not legally excused, but in the interest of justice it is ignored upon the theory that the wrongful invasion of premises is a matter for which ample remedies are provided. It is not the search and seizure but the unreasonable search and seizure which is condemned. (United States v. Bell, 48 F.Supp. 986.) (See, also, Wigmore on Evidence, 3d ed., vol. VIII, §2183 et seq.)

It is true that various jurisdictions are not entirely in harmony with the above stated principles that redress for wrongful possession is not the exclusion of pertinent evidence, so we turn to California decisions which must be accepted as the guidepost directing the rule to follow. In 8 California Jurisprudence, page 78, section 178, it is set forth: “. . . that it is no objection to papers or other subjects of evidence which are pertinent to the issue that they were illegally taken from the possession of the party against whom they are offered or were otherwise unlawfully obtained. This rule is based upon the doctrine that when evidence is offered, the court will consider only its competency and not a collateral issue as to the method by which it was obtained.” (See People v. Mayen, 188 Cal. 237 [205 P. 435, 24 A.L.R. 1383] ; People v. LeDoux, 155 Cal. 535 [102 P. 517]; People v. Kelley, 22 Cal.2d 169 [137 P.2d 1] ; People v. Gonzales, 20 Cal.2d 165 [124 P.2d 44]; People v. Eiseman, 78 Cal.App. 223 [248 P. 716] ; People v. Beilfuss, 59 Cal.App.2d 83 [138 P.2d 332]; In re Ajuria, 188 Cal. 799 [207 P. 516]; People v. Hrjak, 85 Cal.App. 301 [259 P. 353]; People v. Cook, 148 Cal. 334 [83 P. 43].) In People v. Gonzales, it was held one may have civil and criminal remedies against the illegal act of taking property but the state is not precluded from using evidence so obtained. At page 169 the court said: “ . . the accepted rule in this state, as in many others, permits the introduction of improperly obtained evidence on the ground that the illegality of the search and seizure does not affect the admissibility of the evidence.” If the state may use such evidence to prove guilt there does not appear any logical reason why the accused may not in such manner prove innocence or raise a reasonable doubt as to guilt.

We have considered subdivision 1 of section 1881 as applied to the facts herein and have concluded that all of the letters were admissible when limited to a consideration of that particular section but not otherwise. “We are not convinced that said section was intended in any case to shield a party to an action and deprive the adversary of the benefit of the testimony of such party.” (In re Strand, 123 Cal. App. 170, 172 [11 P.2d 89].) “If it be conceded that the letter was illegally obtained, this would not operate to exclude it from evidence on the ground that it was a privileged communication, or that the evidence was self-incriminating. Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. (1 Greenleaf on Evidence, 16th ed., § 254a.) ” (People v. Swaile, 12 Cal.App. 192, 196 [107 P. 134], approved in People v. Baender, 68 Cal.App. 49 [228 P. 536].) The People, in a criminal proceeding against one spouse, may prove declaration of the other spouse if otherwise admissible. In other words by code provision one spouse may be an incompetent witness against the other, but the statements of one spouse made to some one else may be proven by competent testimony. (People v. Chadwick, 4 Cal.App. 63 [87 P. 384, 389] ; First Nat. Bank v. DeMoulin, 56 Cal.App. 313 [205 P. 92] ; People v. Cook, 148 Cal. 334 [83 P. 43].) In People v. Mitchell, 61 Cal.App. 569, 573 [215 P. 117], the court said: “While defendant's wife was not a witness on the trial, counsel for defendant contends-that the letter was inadmissible under the provisions of section 1322 of the Penal Code, which provides in effect that the wife is not a competent witness against the husband in a criminal action. The evidence shows that this particular letter was found on the floor of a cabin shortly after defendant’s wife had removed therefrom. If it may be assumed that defendant’s wife could not have testified as to the contents of the letter, it does not follow that no one else who read 'the letter might not do so. It is analogous to the situation of testimony by a witness who overheard a conversation between husband and wife.” (Lloyd v. Pennie, 50 F. 4; People v. Morhar, 78 Cal.App. 380 [248 P. 975].)

It appears from the last quotation that, irrespective of a confidential relationship existing between Jane and Ernest, Jane’s mother, Mrs. Peak, who found the letters in various parts of the house, could have testified as to their contents. In Commonwealth v. Everson, 123 Ky. 330 [96 S.W. 460, 124 Am.St.Rep. 365] it was held that neither the husband nor the wife could testify to a confidential conversation but that an eavesdropping housekeeper might do so. In People v. Baender, supra, a wife, the recipient of a letter from her husband, did not testify, but her attorney appeared as a witness and the letter in question was so introduced in evidence. The letter under the particular circumstances in the case was admissible, waiver or no waiver. (People v. Mitchell, supra; People v. Morhar, supra.)

One of the letters from Jane to Ernest introduced herein contains the following: “. . . if your wise when you come back you will ask dad to continue helping you because he knows all the answers to keep us out of trouble. , . . Alice didn’t even say Happy Birthday so if that’s the way it is and she is only nice to me to get things from you in your next letter I wish you would ask her to get another job because if I stay home they couldn’t run- the business and your dad hasn’t been in for a week so unless I can have people around me that like me I am not going to work. Well, that’s enough of self pity but I know just what will happen when you come back; the family will be all around you and tell you all things they did, and you will hold the same resentment toward dad you have always had.” The other letters, introduced and not introduced as they appear in the record, are not additional evidence of a different character (Code Civ. Proc., § 1939) but merely evidence of the same character to the same point or, in a word, cumulative (Code Civ. Proc., § 1938). Under the circumstances the rejection of some of the letters was not error.

The additional letters, written previously and subsequently but all within a period of approximately six weeks, merely reiterate a direct disapproval of Alice, a criticism of other relatives of Ernest and an approval of Jane’s “Dad.” It does not appear that the rejection of the additional evidence in any respect was prejudicial to the interests of the appellant. The general rule is that if a party is not prejudiced thereby the court in its discretion may limit the number of witnesses or the number of documents to prove a particular link in a chain of evidence. (26 R.C.L., p. 1033, § 37.) The court may exercise a reasonable control over the sufficiency of evidence upon a particular point. (Code Civ. Proc., § 2044; Estate of Wineteer, 176 Cal. 28 [167 P. 516] ; Sheridan v. Sheridan, 15 Cal.App.2d 200 [59 P.2d 175] ; Estate of Haupt, 200 Cal. 147 [252 P. 597] ; People v. Garbutt, 197 Cal. 200 [239 P. 1080] ; Walter v. England, 133 Cal.App. 676, 689 [24 P.2d 930] ; People v. Tou Jue, 66 Cal.App. 235 [225 P. 759].)

It is suggested that defendant shot to protect himself and his family. Instructions were given on self-defense and defense of habitation. A number of conclusions could have been reached by the jury. It is true there is testimony by the appellant that the Epidendios approached the premises in a loud and tumultuous manner, and there is evidence of previous quarrels during which Ernest left his own home to avoid trouble. There is evidence to warrant the conclusion that after the first appearance of the daughter on the premises on the day in question appellant invited a continuation of the dispute for the purpose of claiming the shot was in self-defense. • There is evidence that Peak was in fear of harm to himself and his wife. Theré is evidence from which the jury could have concluded beyond a reasonable doubt that he was not acting to protect himself and his family. The jury evidently reached the latter conclusion.

The court instructed that there is “a distinction in relationship between the owner or proprietor and a guest on the one hand, and that of landlord and tenant on the other. As a matter of law a tenant has an interest in- the real estate and, among other things, he is entitled to the exclusive possession of the leased property. On the other hand, a guest has no interest in the real estate, of which a residence is a part. He is a mere licensee. He has merely the use of the premises, or a portion of the premises, without the actual or exclusive possession which remains in the owner.

“If you believe from the evidence beyond a reasonable doubt and to a moral certainty that the defendant was not a tenant of Ernest Epidendio and that he was not entitled to the exclusive use and occupancy of the premises owned by said Ernest Epidendio at 12 Sycamore Street, in the City of Larkspur, County of Marin, State of California, but that said defendant was using said premises as a licensee of said Ernest Epidendio, then the defendant did not have the right to exclude said Ernest Epidendio and Jane Epidendio, his wife, therefrom, nor did he have the right to use any force or violence to prevent them, or either of them, from entering said premises together, and any assault with a deadly weapon by the defendant upon said Ernest Epidendio and Jane Epidendio, while they, or either of them, were entering or attempting to enter the said premises together, would not be justified. ’ ’

The first paragraph is a correct statement of the law although the relationship established by the oral hiring or renting of room space depends upon the contract, construed in the light of the intention of the parties, which may be gained from statements made by them and the circumstances surrounding the execution of the contract.

The second paragraph must be read in connection with other instructions and then applied to the evidence. When that isjjlonp .appellant’s criticism that the jury was told to find himjjjg^ilty fn^'0^^terr¡]^h^tqth5r0ei?!iumstances were under whidy&s .$pi4rf$¿ s^g^fi, l^piptpn t]$ firp^es, even if they.^yp .^erp-gting. ¿p pose or in a^pij^,;^lr^^ defendant are read as a whole the law in this respect seems to have been fairly stated and if error occurred the appellant seems to have been favored.

Though not so claimed by appellant, it has been suggested that the instruction is a formula instruction, and that a specific rule applies that would otherwise not be applicable. “It is doubtless the rule that where a so-called ‘formula’ instruction is given, directing a verdict in the event the jury finds certain facts to be true, it must embrace all the elements essential to a recovery, and that the omission therefrom of any of such elements amounts to error, the prejudicial effect of which is not overcome by the inclusion of the omitted elements in other instructions.” (Edgar v. Citraro, 112 Cal.App. 163, 167 [297 P. 645].)

The instruction above is divided into two parts; the first paragraph simply states the law; the second is not in fact a formula instruction. It does not assume to be a complete statement of the law upon which the jury may base a verdict, ignoring all other instructions. (Harvey v. Aceves, 115 Cal. App. 333 [1 P.2d 1043].) It does not, standing alone as set forth in the instruction, state a premise which, if found to be true, would warrant the jury finding the appellant guilty. It simply states certain facts found to be true upon which a finding of assault with a deadly weapon “would not be justified.” There may be other circumstances justifying the use of a deadly weapon that are set forth in other instructions.

It is contended by appellant that the instruction ignores and sets aside the doctrine of self-defense. In other words, that it should contain the elements of self-defense. It is often impossible to frame an instruction containing all the essentials so that laymen may intelligently follow the law and apply it to facts. Instructions at the request of appellant were given to the jury under the provisions of Penal Code, section 197; also the following were given: “The conditions under which the right of self-defense may be asserted are: First, that the party against whom the threat of serious bodily injury exists was not himself at fault or the first aggressor; and Second, that the shooting was necessary to prevent the infliction upon himself or his wife or child of a great bodily injury by the other person. Where one is without fault and is placed under circumstances sufficient to excite the fears of a reasonable person that another designs to commit some great bodily injury upon him, or his wife or child, and to afford ground for the reasonable belief that there is imminent danger of the accomplishment of this design, such person may, acting under these fears alone, shoot or slay the assailant and be justified in so doing by the appearances. ’’ “If the circumstances were such as to justify a reasonable person in believing the danger of- injury to himself or to his wife or to his child would be imminent he may act upon these appearances alone and be justified in so doing.” The jury was instructed upon every phase of self-defense suggested by the appellant.

Appellant suggests that a definition of licensee is not contained in one of the instructions. If it was intended that such instruction was, or if it might be reasonably construed to be, a formula instruction, and no other instruction contained a definition of licensee the point might be worthy of some further consideration. It is not a formula instruction and we fail to find any instruction on the definition of guest or licensee submitted by appellant that was not given. , “If they harmonize as a whole and fairly and accurately state the law, a reversal may not be had because of verbal inaccuracies, or because a separate instruction does not contain all of the elements which are to be gathered from the instructions as a whole. (Douglas v. Southern Pacific Co., 203 Cal. 390, 396 [264 P. 237] ; De La Torre v. Johnson, 203 Cal. 374, 377 [264 P. 485].) ” (Westover v. City of Los Angeles, 20 Cal.2d 635, 637 [128 P.2d 350].)

There is evidence to show that appellant and his family were guests of the Epidendios. Assuming, however, that they had a right as tenants to live in the house, the right was a compion one with the son-in-law and daughter. Under either circumstance appellant was not justified in preventing the Epidendios from obtaining their personal belongings unless in the entry or attempt to enter an unwarranted assault by the Epidendios or their agents occurred. The evidence does not show such conduct on the part of the Epidendios. They had a right to enter and they made no assault upon Peak or his -wife.

It is contended that the court erred in embodying in the instructions Penal Code, section 1127c, covering the subject of flight. Flight, standing alone, is not sufficient to establish guilt, but flight immediately after the commission of an offense or after one is accused of a crime is a circumstance that may be considered and is a matter for the jury to determine. Appellant disappeared the day the grand jury returned the indictment against him, remained away for approximately one week and then returned and surrendered. Whether he knew that the indictment would be or had been filed, his intention in leaving and his intention in returning are all matters to be determined by the jury upon the facts as presented. We are not prepared to say from the record presented th'at the giving of such an instruction in this case was without evidentiary support.

Appellant testified that when he looked out of the window on the morning in question he saw “Shorty” Miller with an iron bar in his hand. There is no testimony that the bar was used or that a threat to use it was made. Miller was called in rebuttal and admitted his presence on the porch but denied that he had an iron bar or any weapon in his hand or possession. He also stated on cross-examination that the Epidendios lived with him. He was asked the following: [1] Tell me everything you did from the time you got there until you left. ... [2] Who else was on the porch with you? . . . [3] What were you doing? What did you go there for ? . . . [4] Had they lived up there with you before?” The record shows that the second and fourth questions were answered by the witness. The first question is rather broad and might call for a lengthy dissertation on irrelevant and immaterial matters. Certainly the trial judge did not abuse his discretion. The first part of the third question had been answered, and the answer to the latter part—-what did you go there for— appears numerous times. The jury was certainly not led astray by the court’s ruling on that question.

The entire transcript discloses that the appellant was tried ably and fairly by court and counsel and that the jury could not conscientiously have returned any other verdict.

The judgments and orders denying motions for new trial on counts one and two of the indictment are affirmed.

Knight, J., concurred.

In People v. McCoy a hearing in the Supreme Court was granted on April 13, 1944. The final opinion of the Supreme Court is reported in 25 Cal.2d 177 [153 P.2d 315].