Marshall

The defendant was convicted of murder in the first degree, and takes this appeal from the judgment and from an order refusing a new trial.

Appellant makes several points upon which a reversal is claimed; but, as I think a new trial must be had, and as most of the alleged errors are of a character not likely to be repeated, they need not be noticed.

The homicide was practically admitted by the defendant, but he claimed that it was in necessary self-defense* At the request of the district attorney the court gave the instruction approved in People v. Hong Ah Duck, 61 Cal. 394 , but which, upon mature consideration, was. declared erroneous in People v. Bushton, 80 Cal. 160 , and in People v. Lanagan, 81 Cal. 142 .

The instruction was as follows: “Up to the moment when the killing is proved, the prosecution must make out its case beyond a reasonable doubt. When the killing is proved, it devolves upon the defendant to show *424 any circumstance in mitigation to excuse or justify by a preponderance of evidence on his part. That is, the killing being proved, the defendant must make out his case in mitigation to excuse or justify by some proof stronger in some appreciable degree than…