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 prosecuting 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 The question was then withdrawn and the following propounded: "Q. Did he make any statement to you concerning whether he expected anything of that kind?"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 of 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." 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, [28 Pac. 233].) While it is well settled that 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 causal connection with the assault, as well as acts immediately following the assault and so closely connected with it as to form a part of the occurrence (People v. Cipolla, 155 Cal. 224, [100 Pac. 252]), certainly it was never intended to embrace the recitals of past events or suspicions of the deceased, nor his expectations of trouble with the defendant. Accepting the rule as declared and conceding that it was error to permit the introduction of evidence of the character here under consideration, the question which elicited the answer as to the expectations of the deceased was not objected to, and no motion made to strike the answer out. The question which was objected to was a mere preliminary one. In addition to this, the matter objected to was practically covered by a previous answer of the same witness to the effect that Smith had told him that the defendant had shot him unexpectedly. This testimony was not objected to, and the matter was before the jury, irrespective of the ruling of the court upon the objection presented, and the ruling in this respect cannot be said to have been prejudicial to the defendant.

The assignments of error numbered 17 to 20 relate to the refusal of the court to permit the defendant to further crossexamine the witness Grant as to certain bloodstains upon the handles of a pick and shovel which the cross-examination disclosed the witness had seen on the morning after the trouble at the scene of the tragedy. The questions were not addressed to any matters as to which the witness had testified in his direct examination, and the rulings of the court were correct.

The matter might have been made a part of defendant's case, but was not cross-examination of this witness.

The instructions of the court defining manslaughter were properly given. The jury were not bound to accept as an entirety either the statement of the deceased or that of the defendant, but it was their duty to endeavor, from a consideration of all the evidence, to arrive at the true conditions of the shooting. Without reciting the testimony showing the relations of the defendant and deceased, from which the inference might be drawn that a quarrel arose in which either might have been the aggressor, we need only say in justification of these instructions that there was evidence upon which a verdict of manslaughter could have been predicated.

The giving of instructions Nos. 4 and 6 at the request of the people is assigned as error. The part of No, 4 material to the question before us reads: "The law of self-defense is founded on necessity, and in order to justify the taking of life upon this ground it must not only appear to the slayer, as a reasonable man, that he had reason to believe, and did believe, that he was in imminent danger of his life, or of receiving great bodily harm, but it must also appear to his comprehension, as a reasonable man, that to avoid such danger it was absolutely necessary for him to take the life of the deceased." No. 6 is substantially the same as instruction 4 considered and approved in People v. Bruggy, 93 Cal. 478, [29 Pac. 27], with this difference: The words supplied by the court by construction in the Bruggy case expressly appear in the instruction before us. Appellant contends that by the use of the words "absolutely necessary" in both of the instructions mentioned (4 and 6) the jury was impliedly instructed that the person assailed was forbidden to stand his ground if he could have found safety in flight, and that this is in contravention of the rule relative to retreat declared in People v. Maughs, 149 Cal. 253, 260, [86 Pac. 187].

Since the questions of law involved are practically the same, we may, in this connection, also consider the refusal of the court to give instruction No. 26, requested by the defendant. This instruction reads as follows: "Where one without fault is placed under circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony, or some great bodily injury upon him, and to afford

grounds for reasonable belief that there is imminent danger of the accomplishment of this design, he may, acting under these fears alone, slay his assailant, and be justified by the appearances; and where the attack is sudden and the danger imminent, he may stand his ground and slay his aggressor, even though it may be proved that he might more easily have gained his safety by flight." The attorney general finds no fault with this instruction as a declaration of the law, but contends that everything contained therein material to the defendant's case was embodied in instruction 27, given by the court. With this contention we cannot agree. Instruction 27 declares the law relative to the obligation of the person assailed to consider the question of retreat "while on his own property where he had a right to be," but No. 26 is not so limited..

If, in order to justify the taking of life in self-defense, it must appear to the person assailed, as a reasonable man, that it is absolutely necessary for him to take the life of his assailant to avoid losing his own life, or receiving great bodily harm, and the rule declared in No. 26, that "he may stand his ground and slay his aggressor, even though it may be proved that he might more easily have gained his safety by flight," is also the law, then the latter should be given in every case in which the facts require it in modification or explanation of the rule of "absolute necessity" stated in Ncs. 4 and 6. Instruction No. 26 is apparently taken from People v. Hecker, 109 Cal. 451, 467, [42 Pac. 307, 312], and is in the language of that opinion, except in one respect not material here. In regard to the instruction considered in People v. Bruggy, it is said in the Hecker case: "Instruction E, which is complained of, has often been given and as often approved by this court. The cases in which it is discussed are reviewed in People v. Bruggy, 93 Cal. 476, [29 Pac. 26]. As was said by this court in People v. Herbert, 61 Cal. 544: 'To justify a homicide there must be a necessity, actual or apparent, and this we understand to be true under our statute as well as at common law.' Those cases where the assailed is not required to look to escape as an avenue of safety arise, as has been before discussed, where the peril is swift and imminent and the necessity of action immediate. Therein the law does not weigh in too nice scales the conduct of the assailed, and say he shall

not be justified because he might have resorted to other means to secure his safety. The suddenness of the attack puts him to the wall." After considering the contrariety of opinion among the authorities the court adds: "So that while the killing must still be under an absolute necessity, actual or apparent, as a matter of law that absolute necessity is deemed to exist when an innocent person is placed in sudden jeopardy. The right to stand one's ground should form an element of the instructions upon the necessity of killing and the law of selfdefense."

It is apparent, then, that upon the theory that he was without fault the defendant was entitled to have instruction No. 26 given that the jury might be informed, as a matter of law, that, if he were without fault, and the suddenness of the attack put him to the wall, the "absolute necessity" required by instructions 4 and 6 had arisen. (People v. Newcomer, 118 Cal. 263, [50 Pac. 405].) He was also entitled to have the jury instructed as they were in No. 27. This instruction rested upon the common-law rule, which is the same as our statute, that a person attacked in his own house need retreat no further. (People v. Lewis, 117 Cal. 186, [59 Am. St. Rep. 167, 48 Pac. 1088].)

We do not think the Maughs case changes the rule as recognized above. What is said in that case upon this subject is rested upon the cases which we have cited and quoted from. The language of the instruction which was disapproved there was as follows: "Before a person can justify taking the life of a human being on the ground of self-defense he must, when attacked, employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity for the killing." The rule quoted from People v. Hecker, 109 Cal. 451, 467, [42 Pac. 307, 312], was recognized and is still the law of this state, and the trial court should have given instruction No. 26 requested by the defendant. On account of this error the judgment and order must be reversed.

Judgment and order appealed from reversed.

Allen, P. J., and Shaw, J., concurred.