Webber

The defendant was charged by information with the' crime of murder. He was convicted of manslaughter and sentenced to ten years imprisonment. The appeal is from the judgment and from the order denying defendant’s motion for a new trial.

The testimony in this case introduced on behalf of the defendant tended to show that the deceased was the aggressor and made an unlawful assault upon the defendant of such a character as to put him as a reasonable man in fear of his life^or of great bodily harm. The jury should, therefore, have been instructed as requested that if they believed this evidence the defendant was not bound to retreat, but that he had a lawful right to stand his ground. The only instruction given on the subject, however, was as follows: “If he (defendant) could have withdrawn from the danger it was his duty to retreat. Between his duty to flee and his right to kill, he must fly, or, as the books have it, he must retreat to the wall.” This was part of the instruction on the subject of self-defense, and the instruction in full is precisely the same as that given in the case of People v. Lewis, 117 Cal. 186, 191 ; [ 59 Am. St. Rep. 167 , 46 Pac. 1088 ]; and there, on…