discharged and released from the same." The obligation of the surety was to pay the debt when it should be established by a judgment. [5] A judgment was recovered in that action by plaintiff, and we think the liability of the surety to pay it was unaffected by the subsequent proceedings in bankruptcy. It has been so heid in this state and elsewhere. In Coombs v. Alien et al., 82 N. Y. 115, upon the faith of an undertaking to pay the amount of any judgment which might be recovered, property held by virtue of an attachment was discharged, and it was there held to be no defense to an action against the sureties on the bond that the judgment debtor had filed a petition in bankruptcy within four months from the date of the attachment. The court said: "There was no attachment lien nor any attachment in force upon which such proceedings could operate, and this fact is conclusive against the defendants' claim so far as it rests upon the provisions of the bankrupt law." Continuing the court said: Whatever effect the provisions of the bankrupt law "might have had upon the attachment, they cannot avail the defendant in this action when called upon to perform his promise. By reason of it the debtor's property was restored to him, and became subject, whether in his own hands or those of his assignee in bankruptcy, to the claims of creditors. Neither the letter nor the policy of the statute is infringed by holding defendants liable upon their undertaking". (See also King v. Black Amustment Co.. 126 App. Div. [N. Y.] 48; Eastin v. Ormsby, 18 R. I. 309; Rosenthal v. Perkins, 123 Cal. 240.)

In the last case it is said that if, at the time the proceeding in bankruptcy is instituted, there is no attachment in force on which the proceedings can operate, the attachment en having already been discharged by a bond given, the liability of the sureties on the bond is not released or affected by the subsequent bankruptcy of their principal.

The judgment and order are affirmed.

We concur:

HALL, J.

COOPER, P. J.

KERRIGAN, J.

Civil No. 645. First Appellate District. November 10, 1909. SAN FRANCISCO SULPHUR COMPANY (a Corperation), Plaintiff and Respondent, v. AEINA INDEMNITY COMPANY (a Corporation), Defendant and Appellant-No. 11.

Appeal from the Superior Court of the City and County of San Francisco-Geo. H. Buck, Judge.

For Appellant-Geo. F. Hatton, II. F. Peart, Franklin P. Nutting, of Counsel.

For Respondent-Wm. J. Herrin.

In the above entitled cause it has been stipulated by the respective parties that the matters to be determined by this court are identical with the matters to be determined in the cause bearing the same title but numbered in the trial court No. 3619, and that the judgment of this court may be the same in both cases. In the case numbered

in the trial court No. 3619 we have this day affirmed the judgment and order appealed from. It is therefore ordered in accordance with the aforesaid stipulation that in the cause numbered No. 11 in the trial court, the judgment and order are athrmed.

KERRIGAN, J.

We concur:
HALL, J.

COOPER, P. J.

Crim. No. 134.

Second Appellate District. November 12, 1909. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOHN CYTY, Defendant and Appellant.

[1] CRIMINAL LAW-MURDER-VERDICT OF MANSLAUGHTER-ACQUITTAL OF MURDER.-A verdict of manslaughter is the equivalent of a verdict of not guilty of the charge of murder.

[2]

ID.--ID.-ID.-PROOF OF MURDER-ERROR IN GRANTING NEW TRIAL. A defendant charged with murder and convicted of manslaughter, is not entitled to a new trial, on the sole ground that the crime proved was that of murder.

131 ID.—ID.—EVIDENCE-NON-REMOVAL OF TOOLS FROM SCENE OF HOMICIDE FEAR OF DEATH-IMPROPER QUESTION-STRIKING OUT OF ANSWER-ABSENCE OF ERROR.-Where over an objection by the defendant, a witness in a prosecution for murder, gives as the reason for the non-removal of certain tools found near where the defendant was working when the trouble began, as that he "wasn't ready to die", the error is cured by the striking out of such answer.

[4] ID.-ID.-DYING DECLARATIONS-EXTENT OF PURPOSES OF ADMISSIBILITY.-The admissibility of dying declarations in evidence, is restricted to the act of the killing, and to the circumstances immediately attending it and forming a part of the res gestae.

[5] ID.-ID.-ID.-ID.-RES GESTAE-MATTERS EMBRACED.-The res gestae embraces, not only the actual facts of the assault and the circumstances surrounding it, but the matters immediately antecedent to and having a direct casual connection with the assault, as well as acts immediately following and so closely connected with it as to form a part of the same.

[6] ID.-ID.-ID.-ID.-ID.-MATTERS NOT EMBRACED.-It does not embrace recitals of past events or suspicions of the deceased, nor his expectations of trouble with the defendant.

[7] ID.-ID.-JUSTIFICATION OF HOMICIDE-RULE OF "ABSOLUTE NECESSITY"-SUDDENNESS OF ATTACK-EFFECT UPON RULE-REFUSAL OF REQUESTED INSTRUCTION-PREJUDICIAL ERROR.-Where in a prosecution for murder, the jury is properly instructed as to the rule of "absolute necessity" required to justify a homicide, it is prejudicial error to refuse to instruct them, as a matter of law, that such necessity is deemed to exist, where the attack is sudden and the danger imminent, even though safety might more easily have been gained by flight.

Appeal from the Superior Court of Inyo County-John L. Childs, Judge.

For Appellant-P. W. Forbes, Wm. J. Clark.

For Respondent-U. S. Webb,

Beebe, Deputy Attorney-General.

Attorney-General, and George

Appellant was informed against for the crime of murder, found guilty of manslaughter, and sentenced to imprisonment in the state prison for ten years.

It is contended in support of this appeal from the judgment and

the order denying defendant a new trial that the evidence does not sustain the verdict, because the facts either establish murder or exonerate the defendant from the commission of any offense whatever; that the court erred in its rulings upon the admission and rejection of certain evidence specified; and that it also erred in giving certain instructions defining and relating to manslaughter and in relation to what acts upon the part of an assailant justify the taking of his life; also, that the court erred in refusing to give an instruction, requested by defendant, which declared the law relating to the right of a person assailed to stand his ground instead of retreating to avoid a conflict.

Appellant and the deceased, C. Kyle Smith, were miners and prospectors in Inyo county, between whom there had been disputes as to their respective rights in the mining claim upon which the defendant was working at the time of the killing, and as to the right of posesssion of certain miners' tools and appliances which defendant was using when he shot Smith. Smith was shot about 3 p. m. on November 21, 1908, and died at 9:30 o'clock the same night. Only Smith and defendant were present at the time of the shooting, but before Smith died he had a conversation with one Grant, who testified upon the trial to what Smith told him, and this was admitted as a dying declaration. In this statement the deceased said that "the Dago" (meaning defendant) shot him unexpectedly as he was going down the trail; that he was hit first in the back on the right hip. When told that he had hit defendant, he said he knew it; that he (Smith) was on the ground when he hit him and that defendant ran when he was hit. This statement was supported by the testimony of the physician who made a postmortem examination of the body of deceased. The physician testified that he had found a bullet wound on the back of the right hip, and also one in the back of one of deceased's thighs. In both instances the bullet passed upward and toward the front in its course, the former passing through the abdominal cavity. This corroborated the theory of the prosecution that Smith was traveling along a trail above the defendant when he was shot; it being the theory of the people that defendant lay in wait for the deceased in a cut or excavation below where he would pass along the trail.

The defendant testified upon his own behalf to the effect that he located the mine upon which he was working in May or June, 1904, that it bore no evidence of having been previously located, and that Smith posted notices and began work on the claim in 1906. On the morning of the tragedy defendant went to work in a cut on the claim, drilling, blasting and shoveling. A trail crossed above the face of the cut six, seven, or eight, or probably ten feet higher. The first he knew of Smith's presence that morning the latter, who was on the trail four or five steps away, spoke, saying, "what are you doing here?" and something else which defendant couldn't remember; "at that time he was on top, right on the cut where I throw the tools on that trail; I was right in the face of the cut". When defendant turned around toward him, he (Smith) "is yanking gun and pointing to me". Defendant made for the east wall of the cut to climb out, when he was shot in the arm; then he ran lengthwise

of the cut to the dump (the cut was into the hillside), tumbled and fell on the dump, when Smith shot again, this time striking the defendant in the abdomen. While starting to run defendant tried to pull a magazine pistol which he carried in his pocket, but owing to his disabled arm had some difficulty in doing so, and when successful in this was still further delayed by the "safety", but finally succeeded in shooting, and (as described by him): "Then I begin to shoot. When I begin to shoot the ground gave out under my feet and I fall again, I begin falling on this side and I throw myself on this because this arm was sore; when I fall my gun fall off my hand. Of course I had been shooting and falling my gun get away from me, of course I tried to catch myself, throw myself on this side like this and the ground give out. I pick myself up and go get that gun back again. I never see Smith no more, never see him since." He further testified: "I did not know at the time I had hit him; I hurried to camp because I thought I was worse hurt than I was." The physician who dressed the defendant's wounds testified that there was a wound in the arm which was made by a bullet entering at the back and coming out at the front; also, that there was a crease across the defendant's abdomen, an abrasion of the skin.

We do not find the record entirely destitute of evidence upon which a verdict of manslaughter could be predicated, but in the consideration of the objection that the evidence shows either that the crime of murder has been committed or that the defendant is innocent, we may, for that purpose, assume that there is some evidence tending to establish that the defendant is guilty of murder. [1] As the offense of manslaughter is necessarily included in the charge of murder, and a conviction of the crime of manslaughter is equivalent to a verdict of not guilty of the murder (People v. Muhl. ner, 115 Cal. 303), the defendant cannot complain because the verdict is more favorable to him than the evidence warrants. (People v. Coulter, 145 Cal. 66.) [2] Even though the verdict for the lesser offense be contrary to the instructions of the court, and for a less offense than the evidence proves-provided it be for an offense inIcluded in the charge in the information-it must be carried out and a new trial cannot be ordered for such a reason alone. (People v. Muhlner, supra, p. 306, and cases cited.)

[3] One of the witnesses for the people was asked on direct examination if he took the tools which were found near where defendant was working when the trouble began, and replied that he did not. Whereupon, over the objection of defendant, the prosecuting attorney was permitted to ask him, "Why didn't you?" and to which he replied, "I wasn't ready to die". This answer was, upon defendant's motion, stricken out, but it is contended that this did not cure the error, and that the answer was one expected by the counsel for the people, and was elicited for the purpose of creating the impression in the minds of the jurors that the defendant was a violent and dangerous person. We find nothing in the record to justify such an inference. The circumstances are entirely unlike those in People v. Rodriguez, 134 Cal. 142.

After the dying declaration of the deceased had been admitted in evidence, defendant sought to show on the cross-examination of

one Kelly, a witness for the people, that when Kelly saw Smith after the shooting the latter was delirious. Upon Kelly testifying that it did not appear so to him, an attempt was made to lay the foundation to impach Kelly by showing that he had made contradictory statements to other persons. The court sustained an objection to this and the ruling is assigned as error. It does not appear in any way from the evidence, or from any offer of proof made, that the time referred to in these questions propounded to Kelly was the time at which the dying declaration was made to Grant. The latter testified without contradiction that he was alone with Smith at the time the statement was made, and we are unable to see the materiality of the evidence of Kelly which it was sought to impeach.

Rulings of the court assigned as Errors Nos. 3 to 7, and 9 to 14, inclusive, relate to the asking of questions by the prosecution, some of which were proper and others which, if material at all, were not prejudicial. The refusal to grant defendant's motion to strike out certain testimony, assigned as Error No. 8, was not prejudicial to the defendant. The answer desired stricken out bore upon the relations between the defendant and the deceased, and in so far as it affected the matter as to which it was material, if it were material at all, tended rather to sustain the view that the defendant intended merely to protect himself and his rights than to provoke trouble with the deceased.

Among the matters testified to in connection with the dying declaration was the following: The witness Grant was asked the question by the presecuting attorney: "Did he (Smith) make any statement to you concerning his expectation of trouble?" This was objected to as calling for a self-serving declaration, and on the grounds that it was immaterial and irrelevant, not made in the presence of the defendant, and hearsay. The question was then withdrawn and the following propounded: "Q. Did he make any statement to you concerning whether he expected anything of that kind?" The same objections were interposed and overruled and an exception preserved by the defendant, and the witness answered: "He did." The witness was next asked: "What was that statement and in what connection was it made?" To this he replied: "He told me he didn't expect any trouble over the ground at all." No objection to this question was interposed, or motion to strike out the answer made, but when the next question was asked, to-wit: “Did he make any statement to you as to how many times the defendant shot?" and this question answered, "Yes, sir", defendant asked to have the latter answer stricken out that he might interpose an objection, which motion was granted, and thereupon the objections which were made to the last question were overruled. Section 1870, Code Civil Procedure, which is the statutory provision as to dying declarations in this state, enumerates among the facts as to which evidence may be given upon a trial;-"in criminal actions, the act or declaration of a dying person, made under a sense of impending death, respecting the cause of his death". [4] The evidence to be so admitted has been construed to be restricted to the act of the killing, and to the circumstances immediately attending it and forming a part of the res gestae. (People v. Fong Ah Sing, 64 Cal. 253.)