Homicide—Justification—'Threats.—On the trial of the defendant for murder, the Court instructed the jury: 1 ‘Past threats or conduct of the deceased, bow violent soever, will not excuse a homicide without sufficient present demonstration to authorize the belief that the deadly purpose then exists and the fear that it will then be executed. ” “ The danger

must be present, apparent, and imminent, and the killing must be done under a well-founded belief that it was absolutely necessary for the defendant to kill the deceased at that time to save himself from great bodily harm.” Held: The instructions were correct.

Id.—Id.—Case Distinguished.—The People v. Mahave, 58 Cal. 249, distinguished.

Id.—Id.—Case Criticised.—The Court instructed the jury: “If you believe beyond a reasonable doubt, from the evidence, that the defendant killed the deceased, then to render said killing justifiable, it must appear that the defendant was wholly without fault imputable to him by law in bringing about or commencing the difficulty in which the mortal wound was given.”

Held: The instruction is taken literally from the decision of the late Supreme Court in People v. Lamb, 17 Cal. 323, which has since been followed and approved by this Court in People v. Travis, 56 id. 254. It is true that in People v. Simons, 60 Cal. 72, the doctrine enunciated in those cases seems to have been questioned, but it was not questioned by a majority of the Judges who concurred in that decision, and the case is not entitled to be considered as an authoritative overruling of the former cases. It is not to be doubted that a person accused of crime may show in justification that although he brought upon himself an imminent danger, he, in the presence of that necessity, changed his mind and conduct and honestly endeavored to escape from it, but could not without striking the mortal blow. But that is not the present case. (Sharpstein, J., dissenting.)

■ Id.—Id.—Hypothetical Instruction.—The Court, in effect, instructed the jury that if they were satisfied beyond a reasonable doubt, from all the facts and circumstances in the case, of the existence of the facts which he stated to them and which the evidence tended to prove, then the defendant would be guilty of murder or manslaughter, as they might determine.

Held: It is allowable for a Court to give a hypothetical instruction to the jury, provided the province of the jury be not invaded. Ho invasion took place in this instance. The jury were left entirely free in the exercise of their functions to find the facts stated to them, and were cautioned that the facts must be found by them from the evidencCTftyond a reasonable doubt.

Id.—Beserved Buling as to the Admissibility of Evidence.—Where the ruling upon an objection to a question is reserved by the Court, and the defendant does not afterwards ask for or make any effort to obtain a ruling upon the objection, or move to strike out the answer to the question, the ruling upon which has been reserved, the legal presumption is that a ruling has been waived.

Id.—Medical Expert—Evidence.—An objection was sustained to the following question, asked of a medical witness who had made a post-mortem examination of the body of the deceased: “State, from the examination you gave the wound, the course of the ball and the condition of the deceased, whether, if he were moving in a north-westerly direction, or standing facing a north-west direction, he could have received that wound from the pistol-shot fired by a person standing north of him and facing south.”

Held: Whether the wound of which the witness died could have been inflieted by a pistol-shot fired by the defendant from a certain direction, was a fact to be found by the jury from the evidence of the circumstances under which the homicide was committed, or by inference, from the relative position of the parties at the time the shot was fired. It was not such a matter of science or skill as required the opinion of an expert.

Id.—Declaration of Deceased after the Killing—Bes Gestae.—Declarations of a person who has been shot, made a half an hour after the shooting, as to what he intends to do to the man who shot him, are not part of the res gestee of the shooting.

Id.—Exclusion of Evidence—Uncontradictbd Testimony—Immaterial Error.—The exclusion of the testimony of one witness as to a fact which has been proved by the uncontradicted testimony of another witness, is not a prejudicial error; for the direct evidence of one witness who is entitled to full credit, is sufficient for proof of any fact except perjury and treason.