The foregoing instruction, as we understand it, does not contain a correct statement of the law, and if it did, the matter covered by the question of self-defense was embraced in other instructions given the jury by the court.

After an examination of all the instructions in the case, we think the law was fully and correctly stated on the trial, and, finding no substantial error in the record, the judgment and order are affirmed. MYRICK, J., and THORNTON, J., concurred.

No. 20,106.

PEOPLE V. ROBERTSON.

Department One. Filed November 19, 1885.

MURDER-KILLING DURING COMBAT-JUSTIFICATION AND MITIGATION.-The mere fact that the deceased and the defendant were in actual combat at the time of the homicide does not, of itself, mitigate the homicide or justify or excuse it. Justification or excuse for taking human life must arise out of the circumstances in which the killing took place, as proved by the testimony on the part of the prosecution or of the defendant. If the circumstances show that a person, armed with a deadly weapon, on being assaulted, takes advantage of the assault made upon him to kill his assailant, and does, in execution of his purpose, kill him, not in the heat of passion caused by the assault, nor in reasonable defense of himself against the assault, it is murder.

THE SAME-EXISTENCE OF MALICE, MAY BE INFERRED FROM FACTS FOLLOWING THE AsSAULT.-If the circumstances of a combat following an assault show that from the outset the words and acts of the defendant indicated an intention to kill, or to take his assailant at an unfair advantage to kill him under the color of the assault, it is murder. The sufficiency of such circumstances, as evidence to prove the existence of malice, is a matter for the consideration of the jury.

THE SAME SELF-DEFENSE ENDEAVOR TO DECLINE FURTHER COMBAT-CASE IN JUDGMENT.-The defendant went into the store of the deceased, and upon the latter's refusal to sell to him on credit, commenced to abuse the deceased with opprobrious and threatening language. The deceased then picked up an iron-hooked stick, and with the end of it "poked and punched" the defendant, who fell on the porch of the store. The defendant got up and, instead of going away, turned upon the deceased, and seized hold of the stick; in the struggle over it the defendant stabbed the deceased, killing him almost instantly. Held, that such killing was not in self-defense; that, in order to constitute a justification, under such circumstances, the defendant should have really and in good faith endeavored to decline any further struggle before taking the life of his assailant.

THE SAME-PAUSE IN COMBAT-RENEWAL OF ASSAULT.-It appeared that when the defendant fell upon the porch the deceased did not coatinue the assault upon him. Held, that such fact constituted a sufficient pause in the combat, upon which to base an instruction as to the effect, on the defense of justification, of a renewal of the affray by the defendant.

THE REFUSAL TO GIVE AN INSTRUCTION THAT HAS ALREADY BEEN GIVEN in substance, is not error.

THE SAME-PROSECUTION NEED NOT CALL ALL PERSONS PRESENT AT KILLING.-The denial of a motion made by the defendant, after the prosecution rested, torder the prosecution to call and examine as witnesses in the case certain persons who were said to have been present at the time of the homicide, is not error.

APPEAL from a judgment of the superior court of Mendocino county, entered upon a verdict convicting the defendant, and from an order denying him a new trial. The opinion states the facts.

J. A. Cooper, J. Q. White and J. M. Mannon, for the appellant.
E. C. Marshall, attorney general, for the respondent

MCKEE, J. Defendant was convicted of murder in the second degree, and sentenced to ten years in the state prison. On this ap

No. 100-3.

peal from the judgment, and an order denying a motion for a new trial, it is contended:

1. That the verdict is not supported by the evidence.

The evidence shows that defendant, on the twenty-fourth of August, 1884, twice stabbed one A. Davis with a butcher-knife. In one of the stabs the knife was driven into his body, between the fifth and sixth ribs, upward and forward toward the heart, the point of the knife penetrating the heart, causing almost immediate death. The stabbing was done in the excitement of an angry quarrel and scuffle which originated in an attempt by the defendant and two others to buy a watermelon at a store in the town of Covelo, kept by the wife of Davis. Davis himself was in charge of the store at the time, and when the parties asked him to sell them a watermelon on credit, he told them he had no watermelons to sell on credit, and to go along about their business. They did not leave. Defendant refused to go, saying he would do as he pleased, and commenced to abuse Davis with opprobrious and threatening language. In these circumstances, Davis picked up an iron-hooked stick, six or seven feet long, which was used in the store for bringing down buckets and things from hooks on which they hung, and with the end of the stick he "poked and punched" the defendant, who fell on the porch of the store. The defendant got up and, instead of going away, turned upon Davis, who was standing inside the store, and Davis again used the stick to "punch him; but the defendant got hold of the stick, and Davis, in trying to jerk it away from him, jerked him inside the store, where, in the struggle over the stick, defendant continued to curse and swear at Davis, and threatened to kill him. In these circumstances, the wife of Davis stepped in between the two, and ordered her husband to go to the back part of the store, and the defendant to go away. But neither let go the stick, and the defendant struck at Davis, past the woman, cutting one of her fingers in the act. The blow caused Davis to stagger and cry out that he was cut. In the act of staggering, he let go the stick and picked up an axe-handle, which he raised as in the act to strike, when the defendant closed with him, stabbed him again, and shoved him against a show-case on the counter of the store, where he fell and died with the defendant atop of him. Defendant immediately arose from the body, walked out of the store, and across the street to a saloon, where, as a witness expresses it, "he laid right upon a card-table in the saloon, turned one leg upon it and pulled out his knife, upon the blade of which there was blood all the way up to the hilt, and said: 'I have been spaying, or splaying, the sof a b

In his own behalf the defendant testified: "Deceased got mad about something I said about the melon, and jumped down and got this rod and called me a d--s-- of a b--, and punched at me with one end of the rod. He then turned the rod and punched at me with the other end and knocked me down. While I was getting up he got an axe handle and hit me; the second time he hit me

I caught the handle and he jerked me inside the store; he jerked away from me in the store and started to hit me again with it. I ran in under him then and cut him. As soon as I could get him to let loose of me, I walked right out and went over to Mr. Montague's. He hit me in the stomach with the stick and knocked me down on my back."

This evidence, it is argued, proves that the killing was done in the heat of blood, upon provocation, and without malice, and that it amounted to manslaughter only, and not murder.

But the conduct of the defendant in connection with the homicide, his persistent threats to kill Davis, the use of a deadly weapon in killing him, and his bravado immediately after the killing, are things which do imply malice in them. Their sufficiency as evidence to prove the existence of malice was matter for the consideration of the jury; and as the jury found from them that the defendant unlawfully killed the deceased in malice, and not in the heat of passion caused by the assault made upon him by the deceased, it cannot be said, as matter of law, that the evidence was insufficient to support their verdict.

The mere fact that the deceased and defendant were in actual combat at the time of the homicide does not of itself mitigate the homicide or justify or excuse it. Justification or excuse for taking human life, must arise out of the circumstances in which the killing took place, as proved by the testimony on the part of the prosecution or of the defendant. And it is well settled, if the circum-. stances show that a person armed with a deadly weapon, on being assaulted, takes advantage of the assault made upon him to kill his assailant, and does, in execution of his purpose, kill him, not in the heat of passion caused by the assault, nor in reasonable defense of himself against the assault, it is murder: 2 Bish. Cr. Law, 736.

It is also well settled that if the circumstances of a combat following an assault show that from the outset the words and acts of the defendant indicated an intention to kill, or to take his assailant at an unfair advantage to kill him under the color of the assault, it is murder: 1 Russell on Crimes, 527, 532, 585, 592; 2 Whart. Cr. Law, secs. 953, 955, 987, 996.

2. The next assignment of error is, that the court instructed the jury as follows:

Before the defendant can claim that he was acting in self-defense, it must appear that the defendant must really, and in good faith, have endeavored to decline any further struggle before the homicide was committed. And in this case, if you believe from the evidence that the defendant was engaged in mortal combat with Davis, the deceased, and that the defendant did not really, and in good faith, endeavor to decline any further struggle before the homicide was committed, if one were committed, then, and in such case, the defendant cannot avail himself of the plea of self-defense. The proposition is, that if a person is assaulted by another, with whom he engages in a combat, he must really, and in good faith,

endeavor to decline any further struggle before taking the life of his assailant.

According to the common law it is the duty of a person assaulted to give way "as far as the fierceness of the assault will permit him:" 1 Hale P. C., 483. But if the assault be so fierce as not to allow him to yield a step without manifest danger of his life or great bodily harm, then, in his defense he may kill his assailant instantly; and this, says Blackstone, "is the doctrine of universal justice as well as of the municipal law:" Comm. Bk., 4 p., 185.

Upon that principle are founded the provisions of our penal code on the same subject. Section 197 of the code in effect declares: That if a person is assaulted in such a way as to give him ground, as a reasonably prudent man in the condition in which the assault places him, to apprehend a design on the part of the assailant to commit a felony upon him, or to do him some great bodily harm, he has the right instantly to defend himself, and, if necessary, to prevent such real or apparent danger to his person, to kill his assailant. Real or apparent danger, or danger imminent and immediate to life or limb, is, therefore, a sufficient condition in which to exercise the right of self-defense. No withdrawal or retreat is required. So assailed a person has a right to stand his ground, and, if necessary, in defense of himself, slay his assailant. But neccessity, real or apparent, for taking human life, arising out of the circumstances in which the homicide is committed, must exist, and the person himself must be without fault.

"The weight of authority," says the supreme court of Indiana, "establishes the doctrine that, when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable:" Runyon v. State, 57 Ind., 84; 1 Bish. Cr. Law, sec. 865.

upon

In this case, according to the evidence, the defendant was not conducting himself lawfully. He should have left the store when he was told to go. He had no right to remain and abuse the person in charge of the same with opprobrious epithets and threats to kill. Being where he had no right to be and doing what he had no right to do, he was not without fault when Davis assailed him in order to compel him to go away. Nor did the nature of the assault him endanger his life or limb. There was no time, from the commencement of the affray to the time of the stabbing, when he could not have withdrawn without danger. That being so, the necessity for taking the life of his assailant did not exist, except by his own creation; for when he got up from the porch where he had fallen, he could have gone away out of danger; but he turned upon Davis, and, engaging him in a struggle over the stick with which Davis had been prodding him, forced him inside the store and killed him. When a killing takes place under such circumstances, it is true, as a matter of law, that the slayer should, really, and in good

faith, have endeavored to decline any further struggle before the homicide was committed: Sub. 3, sec. 197, Penal Code.

3. The giving of the following instruction to the jury is also assigned as error:

"If the jury believe from the evidence that there was first an affray on the porch of the store, and that the deceased pushed the defendant down with the iron hook, and that then the deceased returned to the store, and the affray then ceased for a sufficient length of time for reason to have resumed its sway, and the defendant had sufficient time to realize the situation before anything further was done by the contending parties, and that then the defendant went into the store and there attacked the deceased, and then killed him as charged in the information, and not in necessary self defense, then I charge you that the defendant was not justifiable in inflicting the mortal blow."

It is said there was no evidence of a cessation of hostilities. But it does appear that when the defendant fell on the porch Davis did not continue the assault upon him; there was, therefore, a pause in the combat, and to that phase of the case the instruction was applicable.

4. The refusal to give the ninth instruction, in a series of instructions which the defendant asked, did not prejudice the defendant, because the matter to which it related was substantially covered by the eighth instruction, which the court had given to the jury at the defendant's request.

5. There was no error in the denial of a motion made by the defendant after the prosecution rested, to order the prosecution to call and examine as witnesses in the case certain persons who were said to have been present at the time of the homicide.

Besides, the same persons were afterwards called and examined as witnesses by the defendant.

We find no prejudicial error in the record.

Judgment and order affirmed.

Ross, J., and MCKINSTRY, J., concurred.

No. 8.385.

SCRIVNER ET AL. v. DIETZ ET AL.

Department One. Filed November 19, 1885.

ATTACHMENT IRREGULARITY IN AFFIDAVIT, DOES NOT INVALIDATE. -An irregularity in an affidavit for an attachment, in failing to contain a statement that the payment of the contract sued upon was not secured by any mortgage or lien upon any real or personal property, or if it was so secured, that the security had become valueless, without any act of the plaintiff or the person to whom such security had been given, does not render the attachment void, so that it can be collaterally attacked by a stranger, but merely voidable at the instance of the attachment debtor.

PRIORITY OF LIEN-MAY BE LOST BY ACTS OF LIENOR. A prior lien gives a prior claim, which is entitled to prior satisfaction out of the subject it binds, unless the lien be intrinsi cally defective, or be displaced by some act of the party holding it which shall postpone him in a court of law or equity to a subsequent lien claimant. Consequently in an action to fore