Terry, C. J., concurring.

Indictment and conviction for manslaughter.

1. The first error assigned by the defendant is that the Court below erred in refusing to arrest the judgment, upon the ground that one of the grand jury was an alien.

The affidavits in support of the motion are not included in the bill of exceptions, and we can not consider them. (The People v. Stonecifer, 6 Cal. Rep., 411 .)

2. On the trial, the defendant offered in evidence a deed of the land from one Crostly, to defendant and his partner, Lee, and offered to prove that Crostly had possession of the land some eighteen months before he sold to Honshell and Lee; and that the latter went into possession under the deed, and had possession of the same for some eighteen months previous to the entry of the deceased upon the land. This evidence was rejected by the Court, and this is assigned as error.

We think there was no error in refusing this evidence. The title to the premises in dispute was not properly involved. It was shown by the testimony that the land was fenced on three sides, and open on the fourth; that Honshell and Lee resided upon another tract near this, which was enclosed and cultivated, and had only put up a small cloth shanty on this, which was not occupied. The deceased, Vance, entered upon the disputed premises with a load of lumber, about sundown on the fourth of January, 1858, and during that night partly put up a small house, ten feet square. He continued to work on the house on the fifth, and slept in it that night. On the sixth, he further continued to work at the house until two o’clock, p. m., when he was killed. At this time, the house was finished, except the *87 door and window. Under those circumstances, Honshell and Lee had no lawful right to turn Vance off by force, conceding that they had the legal title to the land.

3. The counsel of the defendant asked the Court to instruct the jury “that if they believed from the evidence that Vance fired first upon Honshell, then Honshell would be justified in returning his fire,” which was refused by the Court.

This instruction was erroneous, because it was too narrow in its terms, and not adapted to the facts of the case. It required the jury to acquit upon the simple ground that Vance fired the first shot, without any regard to the circumstances under which the shot was fired. There was ample evidence tending to show that Honshell and Lee went with the predetermination to expel Vance, and tear down the house by force, if required. Lee went armed with an axe, and Honshell with a club and revolver; and while Lee was advancing to the house with his axe drawn, as if to strike off the boards, Vance resisted by seizing the axe. At this moment Honshell drew his pistol, and held it pointed downwards, but in readiness to use it, and Vance then instantly drew his pistol and fired. The testimony is conflicting, some of the witnesses stating that Honshell fired first; but the most favorable for the defendant prove that he drew his pistol first, and while his companion was in the very act of advancing upon the house with declared intent to demolish it. This case, in its essential circumstances, is very similar to the case of the People v. Payne, and the People v. McMakin, ( 8 Cal. Rep., 341, 547 .) If Honshell and Lee went with the intention of using such force as might be required to expel Vance, and demolish the house, and were in the act of doing so, then Vance had the right to resist by force. He was not bound to wait till Honshell had pointed his pistol at him before he fired. The Court very properly instructed the jury that “if the defendant went to the house of Vance for the purpose of forcibly putting him out, and tearing it down, this was an unlawful act; and if he killed Vance in pursuing that purpose, you should find a verdict of guilty.”

4. The second and third instructions asked by the defendant are based substantially upon the same ground as the first, and open to the same objections; and were properly refused. The third instruction was almost identical with one of the instructions asked in the case of the People v. Stonecifer, ( 6 Cal. Rep., 405 ,) and which this Court held was properly refused.

5. The Court instructed the jury that “ it was no justification for the defendant to say that the land, on which Vance was building a house, was his, or that he had-some claim on it.”

One of the learned counsel for defendant insists that the Court below erred in giving this instruction, after having refused the evidence offered to prove the ownership of the premises in Honshell and Lee; that this instruction imputed to the defend *88 ant the insolent position that he had the right to kill any man who trespassed, and thus prejudiced the jury against him; while the intention of the defendant in offering the testimony was to show that he was properly on the premises, and to rebut the idea that he went there to kill the deceased.

But we think in this the counsel is mistaken. We can not think that the testimony was offered for this purpose.. The fact that the title to the land was in the defendant and Lee, would go to show that they went there for the purpose of forcibly expelling Vance, as it would show a motive for doing so. There can be no doubt as to the intention of the defendant in offering that testimony, as his counsel who defended him in the Court below, in their brief filed in this Court, expressly place the alleged error of the District Court in refusing to admit the testimony, upon the ground that it “ violated the first principles of defence of life and property.” We can not see how the instruction could injure the defendant, even conceding that it was unnecessary. It was, however, stated in the testimony that defendant and Lee claimed the land.

6. The Court refused to sot aside the verdict. We think there was no error in this, as the testimony was conflicting.

The seventh and eighth assignments of error arc substantially the same as the sixth. The evidence was sufficient (o sustain the verdict, and the Court committed no error in refusing to set it aside.

Judgment affimed.