MCCARRAN, C. J. (concurring). I concur in the order and in all phases of the opinion of Mr. Justice COLEMAN, save and except that which deals with instruction No. 27, as given by the trial court. As to this instruction, however, I am not in accord with the views of my learned Associate.

In this case the appellant was charged with the crime of murder. He relied on a defense of justifiable homicide. The court gave the following instruction:

"You are instructed that no provocation can justify or excuse homicide, but may reduce the offense to manslaughter. Words or actions, or gestures, however grievous or provoking, unaccompanied by an assault, will not justify.or excuse murder; and, when a deadly weapon is used, the provocation must be great to make the crime less than murder."

The instruction as given is assigned as error. It cannot, in my judgment, receive the sanction of this court. To approve of the giving of this instruction would be to strike down the defense of justifiable homicide. The very first assertion in the instruction declares "that no provocation can justify or excuse homicide." This very assertion, standing alone, would nullify the provisions of our statute defining "justifiable homicide." There (Rev. L. § 6394) it is declared:

"Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, property, or person, against one who manifestly intends, or endeavors, by violence or surprise, to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, or tumultuous manner, to enter the habitation of another, for the purpose of assaulting or offering per

sonal violence to any person dwelling or being

therein."

Section 6396, Rev. L., provides:

"Homicide is justifiable when committed by a public officer, or person acting under his command and in his aid, in the following cases: (1) In obedience to the judgment of a competent court. (2) When necessary to overcome actual resistance to the execution of the legal process, mandate or order of a court or officer, or in the discharge of a legal duty. (3) When necessary in retaking an escaped or rescued prisoner who has been committed, arrested for, or convicted of a felony; or in arresting a person who has committed a felony and is fleeing from justice; or in attempting, by lawful ways or means, to apprehend a person for a felony actually committed; or in lawfully suppressing a riot or preserving the peace."

Section 6397, Rev. L., provides:

"All other instances which stand upon the same footing of reason and justice as those enumerated, shall be considered justifiable or excusable homicide."

Section 6398, Rev. L., provides: "Homicide is also justifiable when committed either (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or, (2) in the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon

or in a dwelling, or other place of abode, in which he is."

Section 6399 makes provision as to the burden of proving circumstances of mitigation or justification of homicide. Section 6401 provides:

"The homicide appearing to be justifiable or excusable, the person indicted shall, upon his trial, be fully acquitted and discharged." Section 6402 provides:

"If a person kill another in self-defense, it pressing, that, in order to save his own life, or must appear that the danger was so urgent and killing of the other was absolutely necessary; to prevent his receiving great bodily harm, the and it must appear, also, that the person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given."

Justifiable or excusable homicide has been repeatedly dealt with by this court. The law of the subject is expressed in State v. Grimmett, 33 Nev. 531, 112 Pac. 273, where it is said:

"The law is well established that where a person, without voluntarily seeking, provoking, inviting, or willingly engaging in a difficulty of his own free will, is attacked by an assailant, and it is necessary for him to take the life of his assailant to protect his own, then he need not flee for safety, but has the right to stand his ground and slay his adversary."

The same principle is involved in State v. Forsha, 8 Nev. 140. The question was also dealt with by this court in the case of State v. Smith, 10 Nev. 106.

As said in the case of Maher v. People, 10 Mich. 212, 81 Am. Dec. 781:

by another, does not, of itself, constitute mur

"Homicide, or the mere killing of one person

der; it may be murder, or manslaughter, or excusable or justifiable homicide, and therefore entirely innocent, according to the circumstances."

In Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, it is said:

"Homicide, of which murder is the highest and most criminal species, is of various degrees, according to circumstances. The term, in its largest sense, is generic, embracing every mode by which the life of one man is taken by the act of another. Homicide may be lawful or unlawful; it is lawful when done in lawful war upon an enemy in battle; it is lawful when done by an officer in the execution of justice upon a criminal, pursuant to a proper warrant. It may also be justifiable, and of course lawful, in necessary self-defense."

We are referred to the decisions of this court in the cases of State v. Anderson, 4 Nev. 265, and State v. Raymond, 11 Nev. 98. They are in no wise applicable to the question raised here. The rule asserted in those cases is that where there is an intent to kill upon the part of the person taking the life of another, or when the act is one which would otherwise be murder, no words of reproach, no matter how grievous, or however abusive and insulting, are a sufficient provocation to free the slayer from the guilt of murder. This rule has been consistently adhered to, not only by this court, but by many others, and we do not find it at all necessary to dis

"You need not repeat any vulgar or obscene expressions that were made use of. You may designate the character of the language without repeating it."

This rule was followed throughout the trial. It appeared on the evidence introduced on the motion for a new trial that the epithets applied to the defendant by Lockridge were of the vilest character. Probably the witnesses should have been required to repeat the exact language, but it was not reversible error to refuse to do so. No sub

stantial right of the defendant was thereby violated. The jury must have understood that language which could not be repeated in the courtroom must have been of the vilest character. The defendant received all the benefit from that evidence that could have been received from the use of the exact language. The conclusion here reached is supported by Wigmore on Evidence, §8 1159, 2180; 14 Ency. of Evidence, p. 219; 3 Jones, Commentaries on Evidence, p. 14; Bell v. State, 1 Swan (Tenn.) 42.

[3] 3. The defendant complains of the exclusion of certain evidence which he attempted to introduce on the cross-examination of William Kimball, who was a witness for the state. The following occurred:

"Q. Can you state to the jury in substance what Mr. Lockridge said? A. Not his exact remember in substance that he said? By Mr. words. Q. Not his exact words, but what you Russell; Objected to as incompetent, irrelevant, and immaterial. By the Court: I think it is a dangerous thing to do. If the witness knows what he said, he may repeat it; but I think it is dangerous to attempt to say in substance what he said. Q. Do you know what he said in substance? By Mr. Russell: Objected to as incompetent, irrelevant, and immaterial; as the witness has testified in chief that he doesn't know, couldn't remember. By the Court: Are you able to state now what language Lockridge used as he went through the room? A. No, I couldn't say just the language he used. By Mr. Taylor: Can you tell in substance? A. he went through the restaurant." No, none other than I heard him mumbling as

The last answer of the witness disposes of this proposition. He testified that he could not tell the substance of what Lock

ridge said. No error was committed.

[5] 5. The defendant sought to introduce evidence concerning what he believed to be the extent of his danger. He testified that Lockridge said he was going to kill him; that he believed that Lockridge intended to kill him; that Lockridge was trying to do so; and that he acted in self-defense in shooting at Lockridge, but did not intend to kill him. The defendant was asked the following question:

"Q. Now you may state, Mr. Long, whether or not, when you first went to Kimball's room and grabbed the revolver-you may state to the jury what you believed was the extent of your danger."

The defendant pleaded self-defense, and contends that by these questions he sought to establish facts that were a part of the res gestæ. The evidence was objected to because it was not proper cross-examination, and was exluded. In his examination in chief, Kimball was not questioned on any of these matters. The objections were therefore properly sustained. Kimball was placed on the stand as a witness for the defendant, and he could have been then questioned concerning everything connected with the shooting.

[4] 4. Another complaint is that the court refused to permit a witness to give the substance of the language used by Lockridge when he was going through the restaurant after Long. The following occurred at the

which tended to show that Lockridge was a quarrelsome, turbulent, and dangerous man. This was done by showing his general reputation.

"Where character evidence is offered in support of the contention that the deceased was the aggressor or to characterize and explain his acts, the defense is restricted to proof of general reputation in the community where the deceased lived, and may not show particular acts or conduct at specified times. It may not be shown that the deceased had engaged in fre quent fights in which he used deadly weapons, and therewith made deadly assaults on his antagonists." 13 R. L. C. 919, 920.

See, also, 6 Ency. of Evidence, 780; Wigmore on Evidence, §§ 63, 246.

The defendant was not permitted to answer the following question:

"Q. I will ask you if you heard conversations, by persons round in that community, with reference to his being a turbulent, and quarrelsome, and dangerous man?

The question was a proper one, and should

Kan. 602, 66 Pac. 633; note in L. R. A. 1916A, 1245.

Was the defendant prejudiced by the exclusion of that evidence? On the night of the shooting, he had seen enough to completely inform him that Lockridge was a quarrelsome, turbulent, and dangerous man. The jury must have understood that fact from the evidence. The exclusion of the evidence does not appear to have been prejudicial.

[7] 7. Complaint is made of the exclusion of the dying declaration made by Lockridge. It appears that Lockridge made a written dying declaration in the presence of the county attorney, the sheriff, and J. J. Norton. The state did not introduce the declaration in evidence either in chief or in rebuttal. The defendant did not attempt to introduce it until after both parties had rested, although counsel for the defendant had knowledge that the declaration existed. The request for the introduction of the declaration came by way of a motion. The court denied the request in the following language: "Now on this the 9th day of June, 1916, after the evidence in the case was closed by both the state and the defendant, and after the instructions were prepared and ready to be read to the jury, the defendant presents a certain motion, asking that the county attorney be put under oath, and required to give evidence concerning and to produce a certain document, which, the defendant alleges in said motion, he understands to be a dying statement or declaration of the deceased, and to furnish the defendant with a copy thereof; and after due consideration the court overrules said motion."

It does not appear why the defendant did not attempt to introduce the declaration before he closed his evidence. Under the circumstances, the request came too late. It does not appear that the introduction of the declaration would have been of any advantage to the defendant. It was not error to refuse to reopen the case for the purpose of permitting the declaration to be introduced.

[8] 8. Complaint is made of certain remarks made by the court to the jury. On the trial it became necessary to excuse one of the jurors. The court very carefully admonished the jurors concerning their duty during their separation, and, in the course of his remarks, stated:

"That some gentleman, whose name I do not now remember, had stated to him that one of the jurors had been seen and that there would be no verdict from this jury. Now I think that was simply a wild rumor. I sincerely hope that it is not a fact."

The court then instructed the jury concerning the great responsibility that rests on the shoulders of jurors and the absolute necessity of their acting with the strictest integrity. One of the jurors then remarked: "I think if you had been in the jury room, and seen how we were laboring conscientiously and to the best of our ability, I think you would be well satisfied in your own mind that the information given to you is absolutely false."

To that remark the court replied: "I don't think there is anything to it. I think the wish was father to the thought in the breast of whoever circulated it. I don't remember the person who made the statement, but I told my informant that I didn't think there was anything to it at all."

There was nothing in what the court said that was in the least degree prejudicial to the rights of the defendant, or that was in any way inconsistent with the duty of the court.

[9] 9. The defendant complains of the argument of counsel for the state. The argument as abstracted by both the defendant and the state has been examined. It does not appear that there was anything improper in the argument. Everything that was said was based on the evidence introduced, and was justified by that evidence.

The judgment is affirmed. All the Justices concurring.

(103 Kan. 370) Atty., v. CITY OF HUTCHINSON et al. (No. 21586.) (Supreme Court of Kansas. June 8, 1918. Rehearing Denied Oct. 18, 1918.)

STATE ex rel. RAMSEY, Co.

(Syllabus by the Court.) 1. MUNICIPAL CORPORATIONS 122(2)—ORDINANCE-STATUTORY PRELIMINARIES-PRE

SUMPTION.

presumption that a certain ordinance adding to Under the facts stated in the opinion, the the territory of the defendant city was preceded by the requisite statutory preliminaries will not be permitted to be overthrown by the claims of the city to the contrary.

(Additional Syllabus by Editorial Staff.) 2. MUNICIPAL CORPORATIONS 121 - PowERS-QUESTION BY STATE.

The state is the creator of municipal corporations, and it gives and takes away, and may raise questions of power and jurisdiction when private parties will not be permitted to do so.

121-ADDI

3. MUNICIPAL CORPORATIONS TIONAL TERRITORY-VALIDITY OF LAW-ACTION BY PRIVATE CITIZEN.

When a city has by ordinance taken over additional territory, a private citizen will not ordinarily be heard to question the law under color of which such action has been taken. Marshall, J., dissenting.

Original proceeding in quo warranto by the State of Kansas, on relation of Herbert E. Ramsey, County Attorney of Reno County, Kan., against the City of Hutchinson and others. Writ allowed.

Herbert E. Ramsey, F. L. Martin, and E. T. Foote, all of Hutchinson, for plaintiff. W. F. Jones, of Hutchinson, for defendants.

WEST, J. This action was brought by the state, on the relation of the county attorney, to determine the authority of the city of Hutchinson over the land occupied by the reformatory. It was averred that this land was taken in by Ordinance No. 14 in 1886, and that by Ordinance No. 241 in 1890 the