the rifle directly toward Mort's stomach; that Mort grabbed the rifle barrel, pushed it aside and began beating the defendant with a billy; that the defendant jerked the gun loose from Mort's grasp and fell backward on his buttock; that when Mort lost his grasp on the gun he appeared to be frightened, ran backward toward him (the witness) and seemed to be looking for something to get behind for protection; that the deceased was between ten and fifteen feet from the end of the rifle when it was fired.

There were slight discrepancies in the testimony of the several witnesses, but it may be said that they were no more pronounced than is usual in the description of the same exciting scene by different eye-witnesses. There was, however, a direct conflict in the evidence as to whether the defendant or the deceased spoke first after the deceased came out of Vaughan's store. Some witnesses stated that the defendant spoke first, calling the deceased vulgar names, others testified that the deceased spoke first, accusing the defendant of stealing hogs. Whatever discrepancies or conflicts existed were for the determination of the jury in passing upon the weight of the evidence and the credibility of the witnesses. (People v. Musumeci, 51 Cal. App. 454 [197 Pac. 129].)

[1] From the evidence adduced the jury was justified in finding that on the day of the homicide the defendant arrived in the town before the deceased and with malice and revenge in his heart was waiting for him to appear; that so far as the deceased was concerned the meeting of the two in Earlimart on that day was a chance meeting; that after the first quarrel the deceased abandoned further controversy and went into the store attending to his own business; that thereafter the defendant obtained his rifle with the intent to employ deadly means if the occasion were presented; that the deceased engaged in further controversy only after a challenge to fight had been twice repeated by the defendant in a belligerent and boisterous manner; that before the shot was fired the deceased, being without firearms, realized his unequal and perilous situation and endeavored to seek protection by retreat and that at the fatal moment the deceased was in no position to inflict upon the defendant death or great bodily harm. From these facts it was proper to conclude that the defendant was the aggressor and that the

taking of life under the circumstances was not necessary to the self-defense of the defendant. No other conclusions are reasonably deducible from the evidence.

It is contended that "the right of the defendant to walk the streets had been violated" and that "acting under the sting of his humiliation his first thought was probably to vindicate that right and to arm himself for that purpose." The case of People v. Batchelder, 27 Cal. 70 [85 Am. Dec. 231], is strongly relied upon as a precedent in justification of defendant's conduct. In that case it appeared that the Farallone Egg Company was engaged in gathering and marketing the eggs deposited by wild birds on one of the Farallone Islands in the Pacific Ocean. The defendant endeavored to land on the island ostensibly for the same purpose. He was met with armed resistance on the part of guards stationed by the company at the landing; he departed but returned shortly thereafter with companions fully armed and sought a landing; he was first fired upon. by the company's guards and in the return fire by the defendant or by one of his companions the deceased was killed, and the homicide was held to be justifiable. It appeared that the island was a part of the public domain. It was declared that the defendant had the right, in common with the deceased and all others, to go upon the island to accomplish his lawful purpose, just as one would have the right to roam the mountains in the public domain for the purpose of hunting and fishing, and to do so unmolested and unhindered by others having an equal but no greater right. The equal right of all to go upon public property was involved in that case and it was held in effect that when the defendant had been fired upon he could, under the circumstances shown, meet that force with like force in order to protect his life.

In this case there was no showing to justify the conclusion that the deceased was interfering in any way with the use by the defendant of the public highway. The fact that the controversy took place on a public street was merely a coincidence. The situation of the parties would have been the same if the affair had taken place on the gas-station grounds or on other private property.

The case of People v. Hecker, 109 Cal. 457 [30 L. R. A. 403, 42 Pac. 307], is also relied upon as embodying the rules

in justification of defendant's course of action. That case contains a general discussion of the law of self-defense, both as to what the defendant may do to warrant the taking of life and as to what he may not do in a contest with an adversary. It is declared that the acts which a defendant may do and justify under the plea of self-defense depends primarily upon his own conduct and secondarily upon the conduct of the deceased. The first rule laid down in that case may well apply to the facts presented to the jury in this case. That rule was embodied in one of the instructions of the court in this case and is stated as follows: "Selfdefense is not available as a plea to a defendant who has sought a quarrel with a design to force a deadly issue and thus through his own fraud, contrivance or fault to create a real or apparent necessity for killing."

The right of pursuit after the first quarrel, as contended for by the defendant, was not available to him under the facts shown. That right is subject to the limitation also stated in the Hecker case in the following language: "But the pursuit must not be in revenge, nor after the necessity for the defense has ceased, but must be prosecuted in good faith to the sole end of winning his safety and securing his life."

[2] The following instruction was offered by the defendant and refused by the court: "You are instructed that if from the testimony you find that E. W. Mort had made threats against the defendant, and these threats were communicated to the defendant, thereby placing him under constant fear of bodily harm, as a result of these threats he considered his life in danger when he met the said Mort and if you further find from the evidence that the defendant was in lawful pursuit of business or pleasure in the town of Earlimart on the twenty-first day of August, 1922, and while in such pursuit he was accosted by said Mort who was armed with a deadly weapon, and driven from his ground, then under the law the defendant had a right to immediately arm himself for the purpose of self-protection against any fresh assaults with a deadly weapon from said E. W. Mort." The refusal to give this instruction is assigned as error. Counsel states that this instruction goes to "the very heart of the defendant's case." The term "fresh assaults" employed in the instruction would include a provoked as well

as an unprovoked fresh assault. The question of provocation was involved in this case, and without some qualification the instruction fell short of stating the full right and duty of the defendant under the circumstances. This qualification was incorporated in an instruction also requested by the defendant and given as follows: "The defendant claims that he shot in his own self-defense and to repel an unprovoked assault which the deceased was making upon him. The right of self-defense, that is, the right of one attacked or assaulted by another, to repel such an assault and fully protect himself, is founded on the laws of nature. This right is expressly recognized by the laws of our own state." The court further instructed the jury as follows: "One who has received information of threats against his life or person made by another is justified in acting more quickly and taking harsher measures for his own protection in the event of assault either actual or threatened, than would be a person who had not received such threats; and if in this case you believe from the evidence that the deceased made threats against the defendant and that the defendant because of such threats made previously to the transaction. complained of, and communicated to the defendant, had reasonable cause to fear greater peril in the event of an altercation with the deceased than he would have otherwise, you are to take such facts and circumstances into your consideration in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety." The instructions thus given sufficiently covered the subject.

It is next contended that the court erred in refusing six different instructions tendered by the defendant, also relating to the law of self-defense, and two instructions on the question of reasonable doubt. No argument or citation of authority is presented in support of these contentions and no further notice need be taken of them. (Gray v. Walker, 157 Cal. 381 [108 Pac. 278], and cases cited.)

[3] The refusal to give the following instruction is assigned as error: "You are instructed that no mere words of accusation and insult, however profane or severe, justify an assault under the law. Therefore Mort was not justified by any words spoken by Graham to him or regarding him in assaulting Graham." The court instructed the jury on this

subject as follows: "Mere words of insult or of reproach, however grievous, will not justify an assault, a blow, or a threatening demonstration with a deadly weapon."

The refusal to give the following instructions, relating as counsel states to the law of reasonable doubt as applied particularly to the plea of self-defense, is assigned as error:

"You are instructed that when a person charged with murder sets up self-defense as a defense to the charge that the law does not require that he prove self-defense beyond all reasonable doubt, and to a moral certainty; but if it appears from all the testimony that there is a doubt that the defendant acted in self defense, then I instruct you that such doubt should be construed in favor of the defendant, and that you should by your verdict acquit the defendant."

"You are instructed that the defendant has interposed the plea of self-defense as a defense to the charge of murder in the information filed against him, and if after a consideration of all the testimony in the case there is a reasonable doubt in your minds whether the defendant was justified in acting in self defense under the immediate circumstances surrounding the shooting, then I charge you that under your oaths you are bound to give the defendant the benefit of such doubt, and by your verdict acquit him."

"You are instructed that the burden is on the prosecution to establish the guilt of the defendant by proof beyond every reasonable doubt and to a moral certainty. This rule applies to the whole and every material part of the case, and unless every fact essential to conviction, whether it is as to the act of killing or the reason for, or manner of its commission, shall be proved beyond every reasonable doubt, you must acquit the defendant. If after considering the whole case and all the evidence any one of your number shall entertain a reasonable doubt whether the homicide is excusable or justifiable or whether the defendant acted in lawful selfdefense then it is the duty of such juror so entertaining such reasonable doubt to vote to acquit the defendant."

Counsel states that these instructions are founded upon the principles announced in People v. Bushton, 80 Cal. 160 [22 Pac. 127], and People v. Roe, 189 Cal. 548 [209 Pac. 560]. Those cases affirm the rule that the burden of proving circumstances of mitigation or that justify or excuse the commission of a homicide does not mean that the defendant