cumstances and conditions which would make a homicide a murder, and, furthermore, it prescribes the conditions upon which it would be either excusable or justifiable. There could be no such thing as an excusable or justifiable murder, but counsel's argument, carried to its logical end, would inevitably lead to such an absurd result. The authorities cited by counsel on this point need not be specifically noticed, for they do not, of course, uphold their contention. But it is further contended that the instruction is erroneous in that it declared to the jury that an alibi, "if established, is a perfect refutation of any crime." The argument is that by the use of the words "if established," the court in effect told the jury that it rested with the defendant to prove that contention by a preponderance of the evidence. We do not think that the instruction, when considered with the several instructions upon the burden of proof and reasonable doubt, should be so construed. The rule is that if the defendant introduces sufficient proof upon the contention of an alibi to raise a reasonable doubt as to his guilt, he is entitled to an acquittal, and the court in effect so instructed the jury. The words, "if established," should, therefore, be construed to mean, as it was, manifestly, when read by the light of the other instructions, so intended, that if the proof in favor of the contention of alibi was of that degree that it would create a reasonable doubt of the defendant's guilt, then such alibi would be "established," and the accused entitled to an acquittal. It is to be assumed that the jury considered the instructions as a whole and understood them, and upon this assumption it must be said that they understood the instruction here complained of as we have construed it. This instruction is very much different in its phraseology from the one condemned in the case of the People v. Roberts, 122 Cal. 377, [55 Pac. 137]. The instruction in that case treated an alibi as a defense and so characterized it, and declared that it was the duty of the defendant to "prove and establish" it to the satisfaction of the jury. Clearly, such an instruction is erroneous, because an alibi is not a defense, but an element only of the case which the people must make out before they can demand a conviction. In other words, the prosecution must always prove the presence of the accused at the place where the crime was committed, where it is claimed that be

personally participated in its commission. The characterization of an alibi as a defense would of itself be almost sufficient to vitiate the instruction, but the statement therein, in connection with declaring it a defense, that an alibi must be "proven and established" to the satisfaction of the jury rendered it a palpably prejudicial misstatement of the law. We do not approve of the statement in the criticised instruction that an alibi should be "established," but, as declared, the word as so used should be interpreted and the instruction construed by the light of the other instructions, and as so construed and as undoubtedly it was understood by the jury, it was harmless, if not strictly correct.

The instruction upon flight was given in general language, and stated the law correctly. It does not assume the commission of the crime charged against the defendant in this case. Nor is this instruction erroneous because it declares that flight, "if unexplained by other circumstances," may become a circumstance in the chain of evidence of guilt, "depending upon its connection with all of the other circumstances shown." This is a clear and correct statement of the law.

It is vigorously insisted that the following portion of the given instruction defining murder of the first degree does not involve a correct statement of the law on that subject, and that the defendant was thereby greatly prejudiced: "It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer; and if such is the case, the killing is murder of the first degree," etc. This instruction, as thus phrased, was criticised by the supreme court in the case of the People v. Maughs, 149 Cal. 253, [86 Pac. 187], for the reason that there was an omission to insert therein, immediately following the words, "preceded by," the words "and the result of," so that the instruction would have read, "It is only necessary that the act of killing be preceded by and the result of a concurrence of the will," etc. But the court in that case does not say that the instruction as given here amounts to such error as to require a reversal, and it is our opinion that it does not. We readily recognize the soundness of the logic at the bottom of the criticism of the instruction in the Maughs case, and must as readily concede that the inclusion of the omitted words referred to would render the description of the

crime of murder of the first degree clearer and more easily understood by jurors; yet, in view of the evidence in this case that the defendant, just prior to the shooting, was seen walking back and forth from a point on Third street to the corner of Third and I, near which Lee Tong was shot and killed, and that two men were engaged in the shooting and that, immediately upon the cessation thereof, they fled with unusual celerity in different directions from the spot at which the homicide took place, thus strongly tending to show that the shooting and the killing, by whomsoever done, was deliberate, premeditated and willful, and no element of selfdefense appearing from the proven circumstances, we think the jurors must have understood from the instruction that, if the defendant had deliberately and premeditatedly formed the will to slay the deceased, and did thereupon slay him, such slaying must have been the result of the will or intention so formed, and that, under such circumstances only could they find him guilty of murder of the first degree. It may be remarked that the judgment of reversal in the Maughs case, supra, was expressly put upon the ground that the instruction to the effect that it is the duty of a person taking life in self-defense, when attacked, to "employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity for the killing," was prejudicially erroneous.

Other errors are claimed with reference to instructions given and refused, but they are not of sufficient importance to demand special notice here.

We have extended this opinion to a much greater length than we had intended; but the briefs of the appellant are voluminous, and exhaustively argue from appellant's standpoint every question upon which a reversal of this cause was thought to be justified, and we felt that under such circumstances all the main propositions should be to some extent specially reviewed.

We have examined the record with care, and as a result are convinced that the defendant was fairly tried, the court's charge, as a whole, full, clear and correct, and that the verdict is warranted by the evidence.

For the reasons herein given, the judgment and order appealed from are affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 17, 1909.

[Civ. No. 589. Second Appellate District.-July 21, 1909.]

TU JUNGA COMPANY, a Corporation, Respondent, v. H. A. BARCLAY et al., Respondents, and GIOVANNI GAI, Appellant.

PARTITION OF LAND-PLEADING-ANSWER SETTING FORTH WATER RIGHTS -SERVICE ONLY UPON PLAINTIFF ISSUE NOT INVOLVED.-When the property described in the complaint in an action for partition consists solely of land, without any reference to water rights, and there are numerous parties defendant litigating rights solely in the land, but appellant alone, in addition to his interest in the land, answered that he also owns an interest in the waters of a stream flowing through the land, but served his answer solely on the plaintiff, the court properly found, in effect, that the affirmative matter set forth in the answer as to water rights was not involved in the issues of the action.

APPEAL from an order of the Superior Court of Los Angeles County denying a new trial. Chas. Monroe, Judge.

The facts are stated in the opinion of the court.

McNutt & Hannon, for Appellant.

F. E. Davis, and J. W. Cochran, for Plaintiff-Respondent.

Jones & Weller, Geo. S. Hupp, Munson & Barclay, and W. R. Hervey, for Defendants-Respondents.

SHAW, J.-This action was instituted against a number of defendants for the partition of real estate. Defendant Gai

appeals from an order of the court denying his motion for a new trial.

The property described in the complaint consists solely of land, and no reference is made to riparian or other waters or water rights to which the land may be entitled. By answer, appellant claimed affirmatively that as an owner of an undivided interest in the land, he likewise owns an interest in the waters of certain streams flowing through the tract as to which it is riparian.

There were numerous parties whose rights were being litigated in the action, upon none of whom, however, other than plaintiff, was the answer served. For this reason the affirmative matter, conceding it was properly alleged, as to which we express grave doubts, could not be litigated. As to such new matter appellant's codefendants were not in court. Hence, for this reason, if no other, it was not error for the court to find, in effect, that the subject matter of the affirmative allegations of appellant's answer was not involved in the issues of the action. The case of Rose v. Mesmer, 142 Cal. 322, [75 Pac. 905], cited by appellant in support of his contention, bears no analogy to the case at bar. It might furnish authority under which a party interested in the land could, after the partition thereof, maintain an action for the protection of rights in the waters of the stream to which ownership of land might entitle him.

The order appealed from is affirmed.

Allen, P. J., and Taggart, J., concurred.