Frank

*658 ST. SURE, District Judge.

Appellant has been twice tried and found guilty of murder. At the first trial he was convicted of murder in the first degree without capital punishment, and was sentenced to life imprisonment. Upon appeal to this court, the judgment was reversed and a new trial granted. Frank v. United States, 42 F.(2d) 623 . At the second trial, appellant was found guilty of murder in the second degree, and was sentenced to a term of forty-five years. Appeal is taken from this judgment.

Appellant admits that he shot and killed a human being, but claims that the homicide was necessary in self-defense. The facts as shown by the record are similar to those stated in the opinion of this court in Frank v. United States, supra.

The questions involved in this appeal are: First, errors assigned upon rulings of the lower court in impaneling the jury; second, errors assigned upon instructions given and refused.

The first assignment of error is as to the ruling of the trial court relative to the size of the jury box used at the trial. Appellant objected to the box in which the names' of the prospective trial jurors were to be placed, upon the ground that the box was not of…