party threatened will lose his life or suffer serious bodily injury unless he immediately defends himself.-People v. Iams, 57 Cal. 115, 127. See People v. Scoggins, 37 Cal. 676; People v. Westlake, 62 Cal. 303, 306.

In or

15. Intent-Time for deliberation. der to constitute the crime of murder, there need be no appreciable time between the formation of the intent and the act of killing, and the intent itself is to be inferred from the circumstances.-People v. Bennett, 161 Cal. 218, 118 Pac. 710.

16. Mistake as to danger-If defendant believed, without his fault or carelessness, in good faith, that deceased was about to carry out previous threat communicated to defendant, and, acting upon such belief, kills his adversary, he is not guilty of murder, though it turned out that defendant was mistaken.-People v. Miles, 55 Cal. 207, 209.

17. Same-Reasonable ground for believing danger imminent, or that design to take away life or do some great bodily harm will be accomplished, is sufficient, and killing will be justifiable, although it may afterwards turn out that appearances were false, and there was in fact neither design to do him injury nor danger that injury would be done.-People v. Herbert, 61 Cal. 544, 547.

18. Past threats and hostile actions-Are incident circumstances, tending to show malice, and are admissible, in connection with homicide, for purpose of showing apprehensions of personal danger from deceased, and of illustrating question which of parties in sudden encounter or quarrel had been assailant.-People v. Travis, 56 Cal. 251, 253.

19. Same-Past threats or conduct of deceased, howsoever violent, will not excuse homicide, without sufficient present demonstration to authorize belief that deadly purpose then exists and fear that it will be executed.—People v. Westlake, 62 Cal. 303, 305. See People v. Iams, 57 Cal. 115, 127. 20. Real or apparent apprehension Brought about by design, contrivance, or fault of defendant, is no defense for commission of a crime.-People v. Westlake, 62 Cal. 303, 307. See Ala. State v. Eiland, 52 Ala. 322. Ga. State v. Roach, 34 Ga. 78. Ill. Gainey v. People, 97 Ill. 271, 37 Am. Rep. 109. Iowa. State v. Neeley, 20 Iowa 109. Miss. State v. Evans. 44 Miss. 762. Ohio. Stewart v. State, 15 Ohio St. 155. Tenn. State v. Rippey, 2 Head 217.

21. Reasonable fear-Belief of accused. -Where there is reasonable fear and actual belief of an attempt to inflict great bodily harm with deadly weapon, or an intent to commit felony, it will justify killing, but where attempt to inflict great bodily harm does not constitute felony, there must exist absolute necessity, to excuse killing.-People v. Hurley, 8 Cal. 390, 391.

22. Sufficiency of information-Technical objection. An information charging the of

fense of murder in the language of the statute is sufficient, and a general demurrer in such case was properly disallowed.-People v. Sampo, 17 Cal. App. 141, 118 Pac. 957. 23. Same-Same-Special demurrer. An objection to the information that in the averment, that the defendants "did then and there wilfully and feloniously and of malice aforethought kill and murder" the deceased, etc., the word "their" before "malice aforethought" is omitted, is a technical objection, and should have been raised by special demurrer, if at all.-People v. Sampo, 17 Cal. App. 142, 118 Pac. 957.

II. EVIDENCE.

24. Bad character of deceased-When allowed to be proven, should tend in some degree, in connection with immediate circumstances of killing, to show that prisoner had sufficient grounds, as reasonable man, to fear that he was about to receive at hands of deceased some great bodily harm and that he acted under influence of that fear in killing.-People v. Edwards, 41 Cal. 640, 644.

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25. Character of deceased-Usually proper subject for inquiry in cases where there is doubt as to who was the first aggressor, and defendant seeks to show that this character was such that he had sufficient grounds as a reasonable man to fear that he was about to receive at the hands of deceased some great bodily injury, and not to a case where there is no question of this kind, where the deceased was the admitted aggressor, but only in the form of battery. People v. Bennett, 161 Cal. 219, 118 Pac. 710.

26. "Whenever the circumstances of a case permit of the admission of evidence of threats made by the deceased against the defendant, either communicated or uncommunicated, evidence of the reputation of deceased as being a violent, quarrelsome, dangerous man, either known or unknown to the defendant, is equally admissible, the consideration of the jury to be limited by proper instructions of the court, where the reputation is unknown to the defendant, to the same extent that the law limits the consideration by them of uncommunicated threats to the question solely as to the assailant in the fatal encounter."-People v. Lamar, 148 Cal. 567, 573, 83 Pac. 933. See People v. Murray, 10 Cal. 310; People v. Scoggins, 37 Cal. 686; People v. Anderson, 39 Cal. 704; People v. Travis, 56 Cal. 251; People v. Tamkin, 62 Cal. 468; People v. Thomson, 92 Cal. 506, 28 Pac. 580.

27. Corpus delicti-Proof of—Admissions and confessions. The prosecution must offer evidence tending to prove the corpus delicti, and the want of such evidence is not supplied by admissions or confessions of the defendant made extra-judicially.People v. Besold, 154 Cal. 367, 97 Pac. 871.

28. Disproof of self-defense -Different crime. Where the defendant relied upon self-defense, it was competent for the prose

murder.

30. Of motive-In trial for Where a motive is sought to be shown in the existence of a marriage between the defendant and deceased, and of bigamous relations with a third party, and the marriage is denied, it is error to reject evidence that defendant was placed by deceased in a house of prostitution, and that he lived off her earnings while there as a common prostitute. Where motive is the subject of the inquiry in this connection, the whole of the conduct, life and character of the parties, as affecting the question, is open to inquiry.-People v. Le Doux, 155 Cal. 551, 102 Pac. 517.

31. Same-Proof of motive not indispensable.—An instruction that proof of motive is not indispensable to conviction held not erroneous.-People v. Besold, 154 Cal. 369, 97 Pac. 871.

32. Order of proof-Trial for murder.— In such a trial the proper practice is to offer evidence of the corpus delicti before offering evidence of any extra judicial statement of the defendant, but variation in this order is not prejudicial to the defendant.-People v. Besold, 154 Cal. 368, 97 Pac. 871.

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33. Province of jury-As to determining what.-Jury should consider, in determining whether circumstances were sufficient to excite fears of reasonable person, and whether defendant acted under influence of those fears alone, apparent necessity of taking life, or absence of such apparent necessity, in order to save his life or prevent his receiving great bodily harm.-People v. Wong Ah Teak, 63 Cal. 544, 545.

34. Same-Question whether appearances real or apparently real is for jury to decide, upon all circumstances out of which necessity springs.-People v. Flanagan, 60 Cal. 2, 4, 44 Am. Rep. 52.

III. INSTRUCTION TO JURY.

25. As to belief by defendant.-An instruction that defendant must have had "a well-founded belief" is not, on that ground, erroneous, as belief in danger such as to justify killing may be well founded, al

though there may be no actual danger. People v. Donguli, 92 Cal. 607, 610, 28 Pac. 782.

36. As to law of self-defense, to effect that to justify person's killing another, killing must be done under well-grounded belief as to absolute necessity to save defendant from great bodily harm, not erroneous, when taken with other parts of charge, although not commendable.-People v. Lemperle, 94 Cal. 45, 47, 29 Pac. 709.

37. Instruction giving law of selfdefense completely, and using expression. "must have acted under the influence of such fears alone," confining its application to ground of defense, is proper and necessary, where justification is claimed by public officer, even where he claims that killing was necessary in order to effect arrest. -People v. Adams, 85 Cal. 231, 235, 24 Pac. 629.

38. As to murder in second degree.—A verdict of murder in the second degree necessarily implies a finding that the killing was without premeditation and design, and an erroneous instruction as to these subjects would be harmless if declared to be applicable only to murder in the first degree. People v. Ryan, 152 Cal. 368, 92 Pac. 853.

39. As to necessity to take life in selfdefense, using clause, "but necessity must be actual, or apparently imminent, absolute, and unavoidable," is correct.-People Gonzales, 71 Cal. 569, 577, 12 Pac. 783.

V.

40. As to self-defense, fear, etc., held not erroneous.-People v. Yokum, 118 Cal. 437, 443, 50 Pac. 686. See People v. Lynch, 101 Cal. 229, 231, 35 Pac. 860.

41. Same-Awkwardly worded instruction as to self-defense, not accurately stating the law of self-defense, is harmless error where the court in another instruction submits to the jury a full, clear and accurate statement of the law of selfdefense. People v. Charlie, 34 Cal. App. 411, 167 Pac. 703.

42. Same-Repetition of.-An instruction to the jury that in deciding to what extent a man may go in resisting an assault, they may assume that he is entitled to act upon the circumstances as they appear to him, and will not be held to the same strict accountability for an error of judgment or the use of force disproportionate to the impending danger, as one who is not required to act quickly, is held to be a proper instruction upon the subject of self-defense, but when once given in the charge of the court, it is not error to refuse a requested instruction which is, in its last analysis, a mere reiteration of the charge given.-People v. Lewis, 17 Cal. App. 623, 120 Pac. 1067.

43. Omitting element of reasonableness of belief of imminent danger, held more favorable to defendant than he was entitled to, and therefore not vulnerable to his objections. People v. Samsels, 66 Cal. 99, 100, 4 Pac. 1061.

tated intent to commit the offense denounced in the above section need not be shown by the prosecution in order to sustain the charge, notwithstanding the use of the word "maliciously" in the above section.-People v. Nunes, Cal. App. —, 190 Pac. 486, following People v. Wright, 93 Cal. 564, 29 Pac. 240. See Worley v. State, 30 Tenn. (11 Humph.) 172, 175; Terrell v. State, 86 Tenn. 523, 8 Am. Cr. Rep. 532, 8 S. W. 212.

the

10, Same-Intent presumed from maiming unless the contrary appears. State v. Hair, 37 Minn. 351, 7 Am. Cr. Rep. 369, 34 N. W. 893.

11. Same-Malice aforethought is not an essential element in crime of mayhem, and proof of premeditation or deliberation is not required; but it is sufficient to prove the commission of the act, from which the law will presume, though it be done in pursuance of intent, formed during conflict, that it was done unlawfully and liciously, unless evidence tends to show that it was done under circumstances constituting self-defense.-People v. Wright, 93 Cal. 564, 29 Pac. 240.

12.

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Indictment-Sufficiency.-Under section, making disabling or disfiguring of member of body of human being mayhem, indictment charging defendant with such crime by biting off portion of left ear of one M., thereby disfiguring said ear, and alleging that M. is human being, and that his left ear is member of his body, is sufficient.-People v. Golden, 62 Cal. 542.

of. - In

13. Lesser offense -Conviction prosecution for mayhem under this section, defendant can not be found guilty of lesser offense, where evidence tended to show that he was guilty of criminal charge, or of no offense at all.-People v. Wright, 93 Cal. 564, 568, 29 Pac. 240. See People v. Madden, 76 Cal. 521, 18 Pac. 402; People v. Barry, 90 Cal. 41, 27 Pac. 62.

14. Same-Included in charge of assault with intent.-Charge of assault with intent to commit mayhem necessarily includes lesser charge of assault.-People v. Demasters, 105 Cal. 669, 672, 39 Pac. 35.

15. Malice aforethought -Not essential element in crime of mayhem.-See par. 11, this note.

16. "Member" of human body-Question of fact, when.-Whether, in prosecution for mayhem, a portion of human body, not mentioned in penal statute defining mayhem, is member of body, is matter of fact to be found by jury, and court, in its charge, should not assume that it is such member. -Slattery v. State, 41 Tex. 619, 620. 17. Object of section-To suppress shocking brutality.-Maiming is generally committed in midst of sudden altercations, without premeditation or deliberation, and object of this section was to suppress such shocking brutality in personal rencounters, and if proof of premeditation or deliberation were required, section would be unavailable for accomplishment of very purpose for which it was plainly intended.People v. Wright, 93 Cal. 564, 567, 29 Pac. 240.

18. Offense complete, when.-On trial of one charged with maiming, if it appears as matter of fact that person injured from loss of member of his body by wilful act of defendant, to such extent as to subtime stantially deprive him of it at of injury, offense is complete, although member of which party was deprived was put back to its proper place and afterwards grew there.-Slattery v. State, 41 Tex. 619, 621.

19. Premeditated design-Not required. -This section does not require, as statutes of some other states do, that, in order to constitute crime of mayhem, maiming must result from premeditated design evinced by lying in wait, and therefore design need not, as it must under those statutes, precede conflict, nor originate or grow out of it.-People v. Wright, 93 Cal. 564, 567, 29 Pac. 240.

name.

20. Variance Complainant's Where complaint and information charged offense of mayhem to have been committed on person of Charles Harris, and at preliminary examination complaining witness swore that his name was Charles Harris, and not Isaac Crossley, but upon trial he testified that he had been known as Charles Harris in place during all of six years of his residence there, and by no other name, but that his true name was Isaac Crossley, and explained that swore falsely as to his name to shield his family and save them from knowledge of outrage of which he was victim, there was no variance, there being absolute identity in names and person, and fact disclosed upon trial for first time that complaining witness' true name was something different did not constitute variance.-People Plyler, 121 Cal. 160, 162, 53 Pac. 553.

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