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where, in the struggle over the stick, defendant continued to curse and swear at Davis, and threatened to kill him. In these circumstances the wife of Davis stepped in between the two, and ordered her husband to go to the back part of the store, and the defendant to go away

But neither let go the stick, and the defendant struck at Davis, past the woman, cutting one of her fingers in the act. The blow caused Davis to stagger and cry out that he was cut. In the act of staggering he let go the stick and picked up an ax-handle, which he raised as in the act to strike, when the defendant closed with him, stabbed him again, and shoved him against a show-case on the counter of the store, where he fell and died with the defendant atop of him. Defendant immediately arose from the body, walked cut of the store and across a street to a saloon, where, as a witness expresses it, “he laid right upon a card-table in the saloon, turned one leg upon it and pulled out his knife, on the blade of which there was blood all the way up to the hilt, and said, “I have been spaying (slaying the s- of a b

In his own behalf the defendant testified:

“Deceased got mad about something I said about the melon, and jumped down and got this rod, and called me a d s- of a b , and punched at me with one end of the rod. He then turned the rod and punched at me with the other end, and knocked me down. While I was getting up he got an ax-handle and hit me; the second time he hit me I caught the handle, and he jerked me inside the store; he jerked away from me in the store, and started to hit me again with it. I ran in under him then and cut him. As soon as I could get him to let loose of me, I walked right out and went over to Mr. Montague's. He hit me in the stomach with the stick, and knocked me down on my back.”

This evidence, it is argued, proves that the killing was done in the heat of blood, upon provocation, and without malice, and that it amounted to manslaughter only, and not murder. But the conduct of the defendant in connection with the homicide, his persistent threats to kill Davis, the use of a deadly weapon in killing him, and his bravado immediately after the killing, are things which do imply malice in them. Their sufficiency as evidence to prove the existence of malice was matter for the consideration of the jury; and as the jury found from them that the defendant unlawfully killed the deceased in malice, and not in the heat of passion caused by the assault made upon him by the deceased, it cannot be said, as matter of law, that the evidence was insufficient to support their verdict. The mere fact that the deceased and defendant were in actual combat at the time of the homicide does not, of itself, mitigate the homicide, or justify or excuse it. Justification or excuse for taking human life must arise out of the circumstances in which the killing took place, as proved by the testimony on the part of the prosecution or of the defendant. And it is well settled, if the circumstances show that a person armed with a deadly weapon, on being assaulted, takes advantage of the assault made upon him to kill his assailant, and does, in execution of his purpose, kill him, not in the heat of passion caused by the assault, nor in reasonable defense of himself against the assault, it is murder. 2 Bish. Crim. Law, 736. It is also well settled that if the circumstances of a combat following an assault show that fiom the outset the words and acts of the defendant indicated an intention to kill, or to take his assailant at an unfair advantage to kill him under ihe color of the assault, it is murder. 1 Russ. Cr. pp. 527, 532, 585, 592; 2 Whart. Crim. Law, $$ 953, 955, 987, 996.

2. The next assignment of error is that the court instructed the jury as follows:

"Before the defendant can claim that he was acting in self-defense it must appear that the defendant must really and in good faith have endeavored to decline any further struggle before the homicide was committed. And in this case, if you believe from the evidence that the defendant was engaged in mortal combat with Davis, the deceased, and that the defendant did not really and in good faith endeavor to decline any further struggle before the homicide was committed, if one were committed, then, and in such case, the defendant cannot avail himself of the plea of self-defense.”

The proposition is that if a person is assaulted by another, with whom he engages in a combat, he must really and in good faith endeavor to decline any further struggle before taking the life of his assailant. According to the common law it is the duty of a person assaulted to give way “as far as the fierceness of the assault will permit him." 1 Hale, P. C. 483. But if the assault be so fierce as not to allow him to yield a step without manifest danger of his life or great bodily harm, then, in his defense, he may kill his assailant instantly ; and this, says BLACKSTONE, “is the doctrine of universal justice as well as of the municipal law.” 4 Bl. Comm. p. 185. Upon that principle are founded the provisions of our Penal Code on the same subject. Section 197 of the Code in effect declares that if a person is assaulted in such a way as to give him ground, as a reasonably prudent man, in the condition in which the assault places him, to apprehend a design on the part of the assailant to commit a felony upon him, or to do him some great bodily harm, he has the right instantly to defend himself, and, if necessary to prevent such real or apparent danger to his person, to kill his assailant. Real or apparent danger, or danger imminent and immediate to life or limb, is therefore a sufficient condition in which to exercise the right of self-defense. No withdrawal or retreat is required. So assailed, a person has a right to stand his ground, and, if necessary in defense of himself, slay his assailant. But necessity, real or apparent, for taking human life, arising out of the circumstances in which the homicide is committed, must exist, and the person himself must be without fault. "The weight of authority,” says the supreme court of Indiana, “establishes the doctrine that when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without

told to go.

retreating, repel force by force; and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable.” Runyan v. State, 57 Ind. 84; 1 Bish. Crim. Law, $ 865.

In this case, according to the evidence, the defendant was not conducting himself lawfully. He should have left the store when he was

He had no right to remain and abuse the person in charge of the same with opprobrious epithets and threats to kill. Being where he had no right to be, and doing what he had no right to do, he was not without fault when Davis assailed him in order to compel him to go away. Nor did the nature of the assault upon him endanger his life or limb. There was no time, from the commencement of the affray to the time of the stabbing, when he could not have withdrawn without danger. That being so, the necessity for taking the life of his assailant did not exist, except by his own creation; for, when he got up from the porch where he had fallen, he could have gone'away out of danger; but he turned upon Davis, and, engaging him in a struggle over the stick with which Davis had been prodding him, forced him inside the store and killed him. When a killing takes place under such circumstances, it is true, as matter of law, that the slayer should, really and in good faith, have endeavored to decline any further struggle before the homicide was committed. Sub. 3, § 197, Pen. Code.

3. The giving of the following instruction to the jury is also assigned as error:

“If the jury believe from the evidence that there was first an affray on the porch of the store, and that the deceased pushed the defendant down with the iron hook, and that then the deceased returned to the store, and the affray then ceased for a sufficient length of time for reason to have resumed its sway, and the defendant had sufficient time to realize the situation before anything further was done by the contending parties, and that then the defendant went into the store and there attacked the deceased, and then killed him as charged in the information, and not in necessary self-defense, then I charge you that the defendant was not justifiable in inflicting the mortal blow.”

It is said there was no evidence of a cessation of hostilities. But it does appear that when the defendant fell on the porch, Davis did not continue the assault upon him. There was, therefore, a pause in the combat, and to that phase of the case the instruction was applicable.

4. The refusal to give the ninth instruction, in a series of instructions which the defendant asked, did not prejudice the defendant, because the matter to which it related was substantially covered by the eighth instruction which the court had given to the jury at the defendant's request.

5. There was no error in the denial of a motion made by the defendant, after the prosecution rested, to order the prosecution to call and examine as witnesses in the case certain persons who were said to have been present at the time of the homicide.

Besides, the same persons were afterwards called and examined as

witnesses by the defendant. We find no prejudicial error in the record. Judgment and order affirmed.

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NOTE. Justifiable Homicide-Duty to Retreat-Refusing Combat. Homicide is not justifiable, as an act of self-defense from an assault threatening bodily harm, if it is apparent to the person assailed that the threatened injury may otherwise be avoided, as by retreating. State v. Rheams, (Minn.) 24 N. W. Rep 302.. One assaulted in his own habitation is not obliged to retreat, but he is not justified in taking life unless it is necessary to protect himself and his home. State v. Middleham, (lowa,) 17 N. W. Rep. 446 ; Roberts v. State, 68 Ala. 156. In order to prove the defense of justifiable homicide, it must appear that the party killing had endeavored by all reasonable means, before giving the fatal blow, to escape from the scene of the conflict. Parrish v. State, (Neb.) 15 N. W. Rep. 357; State v. Sorenson, (Minn.) 19 N. W Rep. 738; People v. Clark, 7 Ń. Y. 385. The killing of an assailant is justified on the ground of self-defense, only when it is, or reasonably appears to be, the only means of saving the life of the one assailed, or of preventing some great injury to his person; and if the danger which scems to threaten the person assaulted can be avoided or prevented by any other reasonable means within his power, he is not justified in taking the life of his assailant. State v. Mahan, (Iowa,) 20 N. W. Rep. 449; Parrish v. State, (Neb.) 15 N. W. Rep. 357. Where parties fight and separate, and afterwards meet, and one slays the other, he is guilty of criminal homicide if he could, at any time from the beginning of the first to the end of the second difficulty, have reasonably withdrawn), from or avoided the difficulty without immediate danger to himself, and one cannot set up self-defense until he has done everything reasonable in his power to prevent, abandon, and decline any further contest with his adversary. Dolan v. State. 40 Ark. 454. Any one who brings on or provokes a personal rencounter, thereby disables himself from relying on the plea of self-defense in justification of a blow which he struck during the rencounter. Page v. State, 69 Ala. 229; State v. Johnson, 76 Mo. 121. Yet a person who has sought a combat for the purpose of taking advantage of another, may afterwards endeavor to decline any further struggle, and if he really and in good faith does so before killing the person with whom he sought such combat for such purpose, he may justify the killing on the same grounds as he might if he had not originally sought such combat for such purpose. People v. Wong Ah Teak, 11 Pac. C, Law J. 572.

(68 Cal. 5)

STEWART v. TAYLOR. (No. 8,336.)

Filed November 19, 1885. 1. ACTION OF CLAIM AND DELIVERY--FORM OF JUDGMENT.

In an action for the possession of personal property, on recovery by the plaintiff the judgment should be for the possession or the value of the property, and damages, if any are awarded, for its detention; and a judgment not

in such alternative form is erroneous. 2. VERDICT IN CLAIM AND DELIVERY-FINDINGS AS TO VALUE OF PROPERTY.

In an action of claim and delivery a verdict for the plaintiff should find the value of the property; and if the jury fails in this, the court should direct then to correct the verdict in that particular; and if no correction is made by them the court has no power to enter judgment for the value of the property, and

judgment so entered is erroneous. 3. VERDICT MUST BE COMPLETE AND CERTAIN.

Unless a verdict which serves as the basis of a judgment is complete and

certain, both the verdict and the judgment entered thereon are erroneous. 4. MOTION FOR A NEW TRIAL-ORDER OX, BEFORE SETTLEMENT OF STATEMENT,

IRREGULAR-SETTING ASIDE.

Where a motion for a new trial is pending, an order denying the same is irregular, if made and entered before settlement of the statement on the motion; but an order so made cannot be set aside by the lower court after an appeal has been taken thereupon to the supreme court.

Department 1. Appeal from the superior court, county of Mono.
Kittrell & Owen and Beatty, Beatty & Beatty, for appellant.
T. A. Stephens, A. N. Drown, and T. W. W'. Davies, for respond-

ent.

McKEE, J. Appeal from a judgment and order denying a motion for a new.trial in an action against the defendant as sheriff of Mono county, for the recovery of personal property or $500, its alleged value, and $600 damages. By his answer to the complaint the defendant specifically denied the allegations of the complaint and pleaded justification under a writ of attachment which was issued in an action against a former owner of the property, from whom plaintiff claimed to have derived his title. The jury before whom the case was tried, after being properly instructed as to the form of their verdict, rendered a verdict as follows: “We

find a verdict for plaintiff in the sum of five hundred dollars;” and the same was entered, without objection, in the minutes of the court. Upon the verdict thus rendered the court rendered judgment for the plaintiff “for the return and redelivery of the property mentioned in the complaint, or the sum of five hundred dollars, the value thereof, in case a redelivery of the property cannot be had, and for costs and disbursements.

The case does not show whether the property had been delivered to the plaintiff or not; and the defendant, by his answer, did not claim a return of the property. It is only where a verdict is found for defendant in an action to recover possession of personal property that judgment must be entered for a return of the property, if the defendant claims to be entitled to its return. But as the action is brought to recover possession, and the plaintiff obtains a verdict, judgment should be for the possession or the value of the property, and damages, if any awarded, for its detention. Such is the rule for the entry of judgment in this class of actions prescribed by section 667, Code Civil Proc., and a judgment which is not in the alternative form as prescribed by the Code is erroneous. Berson v. Nunun, 63 Cal. 550. The judgment in hand is therefore erroneous.

The judgment is also erroneous, because it is founded upon an informal and incomplete verdict. The verdict was informal and insufficient in that it did not find the value of the property. Garlick v. Bower, 62 Cal. 65; Vandeford v. Foster, Id. 179. It is not helped by the fact that the phonographic reporter noted in his report of the proceedings in the case “that the jury retired, and subsequently returned into court with a verdict in favor of plaintiff, fixing the value of the property at $500.” The verdict could not be corrected in that way. The court had the power to have it corrected; for the law made it his duty to call the attention of the jury to the fact that their verdict was insufficient, and to advise them in what it needed to be corrected. The correction could then have been made by the jury in the presence of the court, or they could have retired to further consider

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