tem.—The appellant was charged in the information with the crime of murder and convicted of manslaughter. He appeals from the judgment and order denying his motion for a new trial.

At the trial the appellant relied on the plea of self-defense. There is no question on this appeal, and there could not be, as to the sufficiency of the evidence to support the verdict. There was testimony in the record to the effect that deceased was found lying prostrate on the ground where he had been shot. The evidence disclosed that no weapons of any kind were found upon his person and that he had never been known to have carried any weapons of any kind. The defendant, after firing six shots at the deceased, left the scene without paying any attention whatever to the deceased, and went to a town about two miles distant. So far as the evidence showed, the deceased and defendant had been friendly prior to the encounter. Two of the shots took effect in the region of the hip of the deceased, 'and he died in the hospital on October 22d, after an operation made necessary by the gunshot wounds inflicted by the defendant. The name of the deceased was Jose Quiroz, and the crime was committed about midnight of October 3, 1931, or possibly around 12:30 A. M. of October 4th. The appellant himself testified at the coroner’s inquest and this testimony was introduced at the trial. When asked why he shot the deceased, his testimony was as follows:

Appellant’s sole contention is first, ‘‘The court misdirected the jury as to the law and misstated the law of self-defense or justifiable homicide in the given instructions on the part of the prosecution”; second, “The court erred in modifying defendant’s requested instruction No. 6 and giving same as modified”.

In view of the record in this case, we are not required to consider • the first of these assignments of error. The instructions in the reporter’s transcript do not show at whose request they were given. Each instruction is merely marked “Given”, followed by the name of the trial judge. In People v. Cebulla, 137 Cal. 314, at 317 [ 70 Pac. 181, 182 ], the rule is stated as follows:

Under the authorities above cited, it is incumbent upon appellant to show that the instructions he complained of were not given at his own request, and we may not consider the statements of counsel for appellant and the admission of the attorney-general in their briefs for the purpose of supplying omissions in the record (People v. McPherson, 6 Cal. App. 266 [ 91 Pac. 1098 ]; People v. English, 52 Cal. 211 ; People v. Hower, 151 Cal. 638 [ 91 Pac. 507 ]). Notwithstanding the rule, we have, however, read every word of the evidence in the case and examined each and every instruction and find them to be, when read in connection with the other instructions, substantially correct (sec. 44/2, art. VI, Const, of Cal.). While instruction No. 14 should not have been given in the form it was given as to the first part of the instruction, for the reason that there was no evidence at all that any negligence of the hospital attaches contributed to the deceased’s death, yet it was more favorable to appellant than the evidence warranted and of course he may not complain. (Zolkover v. Pacific Elec. Ry. Co., 81 Cal. App. 772, at 785 [ 254 Pac. 926 ].) The court gave two instructions on “flight”, that is, one in addition to the one provided by section 1127 of the Penal Code, and while it would have been better to have just given the one provided for by the Penal Code, we are satisfied that no prejudice resulted therefrom.

As to assignment No. 2, the modification of instruction No. 6, of which appellant complains, this instruction which appellant requested read as follows:

The court modified this instruction by eliminating that portion shown above in italics. The instruction as requested was erroneous. It purported to tell the jury just what the defendant might do, regardless of the character of the assault. Not every assault gives the assaulted person the right to kill. It was for the jury to say whether the defendant was justified in what he did, not the court, that is, whether defendant used only such force as was reasonably necessary to repel the assault, if they found there was any assault on defendant. The law is clearly stated in People v. Campbell, 30 Cal. 312, at 314 , as follows:

The trial court would have been justified in refusing the instruction as presented, but it was proper to modify it so that it would not be objectionable. (People v. Weber, 149 Cal. 325, at 346 [ 86 Pac. 671 ].) Instructions must be read and considered as a whole and in relation to the evidence in the ease. In Hayden v. Consolidated Min. & Dredging Co., 3 Cal. App. 136, at 139 [ 84 Pac. 422, 423 ], the rule is aptly stated and authorities—both criminal and civil— cited, as follows:

In People v. Weber, 149 Cal. 325 , at page 345 [ 86 Pac. 671, 679 ], it is said: “Only by taking the instructions as a whole would a court be enabled to say whether or not the defendant, had received fair treatment in this regard. ...”

Measured by the above rule, we do not hesitate to say that in this case the jury were fairly and intelligently instructed on all the issues in the case' and that appellant was fairly tried and justly convicted.

The judgment and order appealed from are affirmed.

Barnard, P. J., and Marks, J., concurred.