How have courts interpreted the words "should consider" and "must consider" in the context of an assault charge?

California, United States of America


The following excerpt is from People v. Coleman, 120 Cal.App.3d 530, 174 Cal.Rptr. 756 (Cal. App. 1981):

Defendant's objection is to the use of the words "should consider" in the second sentence; he contends it was error not to instruct the jury it "must consider" his state of intoxication. (The evidence showed defendant had consumed three or four beers in the course of the evening.) The argument lacks merit. Any conceivable ambiguity in the language of CALJIC No. 4.21 was cured when the court delivered CALJIC No. 3.35, which instructs the jury that it "must take all the evidence into consideration" in determining whether defendant was capable of forming a specific intent and in giving the defendant the benefit of any doubt. (People v. Tanner (1979) 95 Cal.App.3d 948, 959, 157 Cal.Rptr. 465.)

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