Kennett

The defendant, charged with murder and convicted of manslaughter, rests his appeal upon a single specification of error. He contends that the court -erred in giving the following instruction:

It is «insisted that this instruction is in legal intent *20 identical with that condemned in People v. Button, 106 Cal. 628 ; 46 Am. St. Rep. 259 .

In People v. Button, supra, the instruction under review was the following:

The vice of this, as the opinion clearly demonstrates, lies in its failure to recognize that circumstances might arise whereunder one who was the first aggressor might slay his opponent and still avail himself of the plea of self-defense, as after an honest withdrawal from the combat, which withdrawal was fairly made known to his adversary who thereafter forced a new strife upon him.

The qualification which the trial court gave to the instruction in the Button case, as the opinion declares, was not made evident by the record. Counsel for the state nowhere directed the attention of the court to the matter. The statement in the opinion that no explanation or qualification could validate it had reference to any explanation not embracing the principle expounded. This is…

I am compelled to dissent from the views of the majority oí the court. No substantial difference is found when this instruction is-compared with the respective instructions given in People v. Button, 106 Cal. 628 , 46 Am. St. Rep. 259 , and People v. Conkling, 111 Cal. 616 , and a new trial was ordered in those cases, after a thorough consideration and discussion, for the reason that the law therein contained was bad. As was said in People v. Button, supra, the principle of law there declared "was radically wrong, so wrong that qualification and explanation could not validate it; and the instruction here under consideration is so wrong and so unsound in so many ways as to place it beyond all help by qualification. There can be no qualification of it, and what is here termed by the court a qualification in no way qualifies, but is a contradiction pure and simple. Contradictory instructions being given to the jury, one containing good law and the other bad law, the cause must be reversed, for it is not for this court to say that the jury in making up its verdict acted upon one rather than the other. This principle is well settled and elementary.

Let us dwell for a moment upon this…