MacIel

Defendant, who was charged with an assault upon one Estaban Rosas with a deadly weapon with an intent to commit murder, was found guilty as charged. He now appeals from the judgment of conviction and from an order denying his motion for a new trial. It' is claimed that the court erred in refusing to give certain requested instructions, and that one of the instructions given was prejudicially erroneous.

Defendant and Rosas occupied adjoining premises in the city of Tulare. A toilet located in the rear of defendant’s premises was used in common by both defendant and the members of the Rosas family. On the day of the alleged offense the two men met as Rosas was on his way to the toilet. A quarrel ensued, in the course of which blows were struck. After a few minutes of fighting defendant went into his house and procured a pistol. Rosas’ version of what followed after the first altercation, reduced to narrative form, is substantially as follows: “Defendant went into his house and I proceeded to the toilet. As I came out of the toilet and had taken three or four steps, defendant, who had come out of his back door with a pistol in his hand, fired two shots at me. Neither shot struck me.…