case.

CRIMINAL LAW (Continued). lawful acts; and that the jury are the judges of the facts in the

(Id.) 51. APPARENT DANGER—IMMINENCY AT TIME OF KILLING.—Where the

court fully instructed the jury as to the law of apparent danger, as favorably to the defendant as the law would justify, it was not error to state that such danger, “if any, must have existed at the very time the defendant fired the fatal shot.” A defendant cannot justify the taking of human life upon the belief that danger is about to become imminent, or that it will in the future become

imminent. (Id.) 52. NATIONALITY OF DECEASED AND OF DEFENDANT.—Where counsel for

defendant, in argument to the jury, spoke of the deceased as "this Armenian,” and of the defendant as having a father and mother in the “good old state of Missouri,” it was proper to instruct the jury that they had nothing to do with the place of birth or the nationality of the deceased, or the situation of the defendant or the

deceased with reference to their families. (Id.) 63. VERDICT FOR MANSLAUGHTER-INCLUSION OF PENALTY—INSTRUC

TION-CORRECTION BEFORE RECORD.-Where the verdict was for manslaughter, and at first improperly fixed the term of imprisonment of the defendant, the court properly instructed them to eliminate the portion fixing the punishment, that the punishment was entirely for the court, but it was not a matter so arbitrary as to preclude e recommendation. The jury then properly retired and complied with the instruction, and the verdict was properly rendered after it was returned in due form, with a recommendation of defendant to the

mercy of the court. (Id.) 64. MANSLAUGHTER—CLAIM OF SELF-DEFENSE_SUPPORT OF VERDICT.

Upon a conviction of manslaughter, where there was some evi. dence from which the jury might have drawn the inference that the defendant was not in danger of life or bodily injury when he fired the fatal shot, though there was other evidence from which the jury might have inferred that the claim of self-defense was supported, and which would have justified them in so finding, the question was one for the jury to determine, and with their con

clusion this court cannot interfere. (People v. Wright, 704.) 55. EVIDENCE-DEFENDANT'S REPUTATION-SUPPORT OF PRESUMPTION

LIMITING NUMBER OF WITNESSES.—Where the district attorney agreed to call no witnesses to assail defendant's reputation for peace and quiet; and the defendant offered witnesses in support of the presumption in his favor in that respect, it was not error for

CRIMINAL LAW (Continued).

and such cross-examination is in no sense an attack upon his reputation. If, thereupon, it appeared that one or more of such witnesses knew nothing about the matter, defendant cannot complain; and the presumption still remained in his favor unassailed. (Id.)

57. ACQUITTAL OF MURDER BY VERDICT FOR MANSLAUGHTER-SECOND TRIAL INSTRUCTION AS TO MURDER NOT PREJUDICIAL.-Where, upon a former trial, there had been an acquittal of murder, by a verdict for manslaughter, and upon the second trial the jury were instructed that if they believed, beyond a reasonable doubt, that the defendant is guilty of murder in the first or second degrees or of manslaughter, they must find the defendant guilty of manslaughter, an instruction as to what constituted murder in the first degree is not prejudicial where there was nothing misleading in the instructions taken as a whole. (Id.)

58. THREATS-IMPEACHMENT OF WITNESS-INCONSISTENT STATEMENTS -IMPROPER REBUTTAL-PRIOR CONSISTENT STATEMENT.-Where a witness for the defendant had testified to threats made by the deceased, and was impeached by proof of his bad reputation for honesty and integrity and also of inconsistent statements made by the witness, the defendant was not entitled to prove in rebuttal a prior consistent statement made by the witness that he had seen the deceased waiting with a rifle about two hundred yards from his house. (Id.)

EU. MISCONDUCT OF DISTRICT ATTORNEY-FACTS SHOWN BY RECORD

IMPROPRIETY NOT GROUND FOR REVERSAL.-Held, that the district attorney in this case was guilty of improper conduct in bolstering up the denial of a witness sought to be impeached, and improperly referring to meretricious relations between the wife of deceased and defendant having an insufficient basis in defendant's evidence; yet that, under the facts shown by the record, such misconduct was not ground for reversal of the judgment of conviction.

(Id.)

C. CAUTION TO DISTRICT ATTORNEYS.-District attorneys generally are cautioned that reversals are made necessary in too many cases because of a desire on their part for present victory, regardless of consequences to follow on appeal. This officer owes it not only to his own reputation, but to the court and the people whom he represents, to avoid all possible error in the conduct of cases. (Id.) 31. THEORY OF DEFENSE-LOSS OF CAP BY DECEASED REMOTE EVIDENCE. Where it was the theory of the defense that deceased, after having fired one shot, had stooped to pick up a cap which dropped off the nipple of the second barrel of his gun, when he received defendant's shot in the back of the neck, an offer by defendant to prove that about one month before the homicide a witness was handling the same gun, and that when he raised the hammer the

CRIMINAL LAW (Continued).

cap fell off, was inadmissible as being too remote, and casting no light on the kind of caps used by deceased when killed.

(Id.) 62. MURDER-CHANGE TO PLEA OF GUILTY-EX PARTE ORDER CORRECT ING RECORD-EXCEPTION-STATEMENT APPEAL.-Where a defendant charged with murder had in fact changed his plea of not guilty to a plea of guilty of murder of the first degree, but the record by mistake read "plea of murder of the first degree, which mistake was incorporated in the judgment, an ex parte order after judgment correcting the record to correspond to the fact affects the substantial rights of the defendant, and may be reviewed upon appeal. Such order is deemed excepted to as matter of law, and no exception need be noted in the statement on appeal containing the order properly authenticated. (People v. O'Brien, 723.)

CRIMINAL LAW (Continued).

called witnesses to prove that on that day he was in San Fran cisco, evidence was admissible in rebuttal to show that past noon on the day after the homicide he purchased a ticket at Madera for San Francisco, and returned there on that day. The fact that the rebutting evidence tends incidentally to show the flight of the defendant from the scene of the homicide cannot render it inadmissible in rebuttal to disprove the alibi testified to. (Id.)

67. IMPEACHMENT OF WITNESS-CONVERSATION-FOUNDATION-CORRUPT ATTEMPT TO DISSUADE WITNESS.-Though it is better practice in impeaching a witness by a conversation had with him to call his attention on cross-examination to the time, place, and parties present, yet where he was asked if he did not at a certain time and place offer another witness twenty dollars not to testify that he saw defendant in Fresno on the day of the homicide, and though he denied such offer, by giving a different version of the conversation, showed that he understood the time, place and circumstances of it, the foundation is sufficient; and the other witness may contradict him by proving such corrupt attempt to dissuade him from so testifying. (Id.)

68. DISTINCTION AS TO IMPEACHING EVIDENCE.-A witness for defendant who has denied on cross-examination that he has attempted corruptly to dissuade a witness for the prosecution from attending the trial, or giving certain evidence, may be contradicted in this respect. A distinction exists between the right to contradict a witness as to any fact relating to his conduct in connection with the action on trial and the right to impeach his credit generally. (Id.) 69. ADMONITION TO JURY-OMISSION IN RECORD-PRESUMPTION UPON APPEAL.-Where the record upon appeal merely fails to show that the court admonished the jury at each adjournment as required by section 1422 of the Penal Code, this court, in the absence of any showing to the contrary, will presume that the court below did its duty, and gave the proper admonition at each adjournment. (Ia.) 70. INSTRUCTIONS-MURDER IN FIRST DEGREE-PREMEDITATION-RESULT OF CONCURRENCE WITH KILLING.-Where the evidence disclosed no self-defense or facts justifying a verdict of manslaughter or murder in the second degree, an instruction relating to murder in the first degree that "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, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing," is not erroneous as omitting the words "and the result of" after "preceded by," where in a preceding part of the instructions the jury had been expressly told that "the

CRIMINAL LAW (Continued).

intent to kill must be the result of deliberate premeditation."

(Id.) 71. REFUSAL OF REQUEST EMBODIED IN CHARGE –CONTINUANCE OF PRE

SUMPTION OF INNOCENCE.—The refusal of a correct instruction requested by the defendant as to the continuance of the presumption of innocence, throughout the entire case, which might properly have been given, was not prejudicially erroneous, where the requested in.