ADAMS, P. J.— I dissent. The majority opinion holds that the judgment must be reversed because the trial court gave two instructions which were erroneous. I am of the opinion that there was no error in the giving of one of these instructions, and as to the other, that, while it was erroneous, no miscarriage of justice resulted therefrom. The first of these instructions was that the jury was not to consider “the defense talked of by the attorneys for the defendant and de[350]scribed by them as the right to evict a trespasser, because the evidence in the case is that the defendant did not shoot deceased because he was trespassing.”
In support of the instruction and what I have said, I quote from the defendant’s own testimony:
“Q. You had no reason to believe that he (deceased) would harm any of your property there, did you? A. No. Q. You had no thought of your property at the time you fired the shots, did you? A. No. Q. Your main thought, your only thought, was to protect yourself? A. Yes. Q. You didn’t shoot him because he was on the place and you had told him to stay off, did you ? A. No,-I might have. I don’t know how to answer that question. Q. Well, if he hadn’t come at you with the bar, you wouldn’t have shot him, would you? A. No. Q. So it wasn’t because of the mere fact that he was on the property that you owned, that he was shot, was it? A. Well, I was afraid of him. Q. Physical fear? A. Yes, sir.”
Not only was the foregoing instruction proper because defendant testified that he had no thought of harm to his property when he shot, but the evidence shows without contradiction that at the time defendant returned to the scene of the homicide and, after arming himself with his gun, called the decedent to “Come over a minute,” deceased was not trespassing but was where he had a right to be, in the home of the Spurlock family about to dine with them in response to their invitation so to do. While it is true that the Spurlock home was upon the ranch owned by defendant, it could not be seriously contended that a person who was in the home of the Spurlocks by their invitation was a trespasser upon the property of defendant. But even if decedent was upon appellant’s premises without the latter’s permission and against his will, appellant was not, for that reason, justified in shooting him. There is nothing in the evidence which even faintly suggests that when deceased came to the ranch just prior to the shooting he was contemplating the commission of a felony, nor anything showing that while on the premises he committed a felony. It appears without contradiction that he had come there to return his son’s car and to ask his son, who was living with the Spurlocks and working for defendant, to drive deceased and Mr. Gage, his brother-in-law, back to their homes in Firebaugh whence the boy had brought them the morning of the homicide. While section 197 of the Penal [351]Code, cited in the majority opinion, provides that a homicide is justifiable when committed by a person “in defense of habitation, property, or person, against one who manifestly intends or endeavors by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein,” where, as here, there was no evidence that deceased intended or endeavored, by violence or surprise or otherwise, to commit a felony, or that he manifestly or at all intended or endeavored, in a violent or riotous or tumultuous manner, or at all, to enter the habitation of defendant for the purpose of offering violence to any person therein, or otherwise, obviously then, the trial court was fully justified in instriicting the jury that they should not consider the defense referred to as the right to evict a trespasser. And in this connection we note also, as another reason why appellant was not entitled to rely upon such a defense, that section 197 of the Penal Code provides that a person relying upon the defense of habitation, property or person to justify a homicide, “if he was the assailant, or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.” This defendant did not do.
The other instruction, the giving of which is held to constitute reversible error, reads:
“No one has a right to kill another in self-defense unless such killing is really or apparently necessary for such defense. Before a person can justify taking the life of a human being on the ground of self-defense, he must, when attacked, employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity for the killing. ’’
That this instruction was erroneous may be conceded since it was condemned in People v. Maughs, 149 Cal. 253 [86 P. 187]. But in that case prejudicial error was presumed from the giving of the erroneous instruction. However, since that decision, section 4% of article VI of the Constitution has been enacted, which specifically provides that no judgment shall be set aside or new trial granted in any case on the ground of misdirection of the jury, unless, after an examina[352]tion of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.
The question before this court is, then, not whether the instruction was erroneous, but whether, upon an examination of the' entire case, including the evidence, it resulted in a miscarriage of justice. In People v. Will, 79 Cal.App. 101 [248 P. 1078], a case decided in this district, among other errors complained of was the giving of an instruction regarding the consideration to be given by the jury to the testimony of the defendants. This court there said that a similar instruction given in People v. Maughs, supra, had been severely criticized and that the court had there said that in all future eases where such instruction was given the Supreme Court would hold the giving of it so prejudicial as to call for reversal ; but that since the decision in the Maughs case section 4y2 of article VI of the Constitution had been adopted and that “While it was error to give the instruction, the evidence against the appellants is so strong and convincing that it cannot be held that there has been a miscarriage of justice.” Also in People v. Bartol, 24 Cal.App. 659 [142 P. 510], an instruction similar to the one given in the Will case and condemned in the Maughs case, was relied upon for reversal; but this court said (p. 666) that the situation must be viewed in a different light from that which obtained when the Maughs decision was rendered, citing the foregoing constitutional provision and People v. O’Bryan, 165 Cal. 55 [130 P. 1042]. In the latter case the court said that prior to the enactment of the constitutional provision the limitation of appellate jurisdiction to questions of law precluded reviewing courts from weighing the evidence for the purpose of forming an opinion whether the error had or had not in fact worked injury, and that, having no jurisdiction in matters of fact, appellate courts were bound to apply the doctrine that prejudice was presumed to follow from substantial error; that this had produced unsatisfactory results and that it was to avoid them that the constitutional provision had been adopted. It went on to say, page 65:
“This much, however, we think may be safely said. Section 4y2 of article VI of our constitution must be given at least the effect of abrogating the old rule that prejudice is presumed from any error of law. Where error is shown it is [353]the duty of the court to examine the evidence and ascertain from such examination whether the error did or did not in fact work any injury. The mere fact of error does not make out a prima facie case for reversal which must be overcome by a clear showing that no injury could have resulted.”
Also, at page 66:
“The final test is the opinion of the appellate court upon the result of the error. No doubt this view requires the court, to some extent, to weigh the evidence, and form conclusions upon its weight—a function which, heretofore, has been reserved for the jury. But it cannot be doubted that the legislators, in proposing the amendment, and the electors, in adopting it, intended to put upon the courts the performance of just that function. We are not substituted for the jury. We are not to determine, as an original inquiry, the question of the defendant’s guilt or innocence. But, where the jury has found him guilty, we must, upon a review of the entire record, decide whether, in our judgment, any error committed has led to the verdict which was reached. If it appears to our satisfaction that the result was just, and that it would have been reached if the error had not been committed, a new trial is not to be ordered.”
Also see People v. Brown, 22 Cal.2d 752 [141 P.2d 1], where the giving of an instruction regarding the consideration to be given the testimony of defendant was held erroneous under the decision in the Maughs case, but the error was held not prejudicial, citing People v. Bartol, supra, and stating that the record contained substantial evidence connecting defendant with the homicide, and that the trial court had elsewhere correctly instructed the jury on the principle announced in the challenged instruction.
No presumption of prejudice to a defendant now arises from error or irregularity arising during the course of a criminal trial. On the contrary, we are prohibited from reversing judgments unless it is made to appear affirmatively, to the satisfaction of the court, after an examination of the entire cause, including the evidence, that the error resulted in a miscarriage of justice. (People v. Lapara, 181 Cal. 66, 72 [183 P. 545] ; People v. Watts, 198 Cal. 776, 793 [247 P. 884]; People v. Mareck, 17 Cal.App.2d 278, 282 [61 P.2d 972]; People v. De La Roi, 23 Cal.2d 692, 701-702 [146 P.2d 225]; [354]People v. Cooper, 36 Cal.App.2d 6, 13-14 [96 P.2d 1012]; People v. Cowan, 38 Cal.App.2d 231, 246 [101 P.2d 125, 135]; People v. Ratterman, 38 Cal.App.2d 598, 601 [101 P.2d 750]; People v. Wilt, 40 Cal.App.2d 124, 128 [104 P.2d 387]; People v. Harrman, 40 Cal.App.2d 487, 493 [104 P.2d 1063]; People v. Soules, 41 Cal.App.2d 298, 313-314 [106 P.2d 639]; People v. Pearson, 41 Cal.App.2d 614, 621 [107 P.2d 463] ; People v. Hernandez, 47 Cal.App.2d 132, 134 [117 P.2d 394]; People v. Hopper, 55 Cal.App.2d 335, 343 [130 P.2d 798]; People v. Hopkins, 57 Cal.App.2d 382, 387 [134 P.2d 299]; People v. Russell, 59 Cal.App.2d 660, 664 [139 P.2d 661]; People v. Keys, 62 Cal.App.2d 903 [145 P.2d 589]; People v. Mount, 30 Cal.App.2d 286, 290 [86 P.2d 132]; People v. Neumen, 35 Cal.App.2d 82, 87 [94 P.2d 611]; People v. Watson, 35 Cal.App.2d 587, 590 [96 P.2d 374]; People v. Hammer, 74 Cal.App. 345, 348 [240 P. 56] ; 2 Cal.Jur. 1008.)
It is intimated, if not directly stated in the majority opinion, that defendant’s plea of self-defense was denied to him. Such, however, is not the case. At defendant’s request the trial court gave eleven instructions on self-defense as follows:
“You are instructed that a homicide is not always unlawful. A homicide may be entirely lawful and when a homicide is committed in self-defense, it is entirely lawful.”
“You are instructed that the law of California does not compel a person to flee an attack, and seek safety in flight, but may stand his ground and defend himself, and, under some circumstances, may even pursue and slay his assailants. ’ ’
“If you find that the deceased was the aggressor and if you further find that the defendant as a reasonable man was justified in believing himself to be in imminent danger of serious bodily injury or death at the hands of the deceased, then there is nothing further for you to consider, but you must return a verdict of not guilty.”
“You are further instructed that the defendant in the exercise of the right of self-defense,—if you find the circumstances justified the defendant in exercising such right, was entitled to act upon the appearances as they presented themselves to the defendant at the time the defendant was assaulted by the deceased if you so found, and if those appearances justified the defendant in believing as a reasonable man that he was in danger of the infliction of serious physical injury upon him by the deceased, the defendant had a right to repel [355]such assault by the use of all necessary force, even to the point of talcing the life of the deceased.”
“The jury may take into consideration the evidence of the defendant’s knowledge, if any, at the time of the homicide of previous assaults, if any, made by the deceased on other persons in determining the condition or state of mind of the defendant at the time of the homicide, and whether such knowledge, if any, of the defendant, together with the other circumstances in evidence, as you find them, would reasonably have caused the defendant to shoot the deceased while the defendant was acting in self-defense.”
“I instruct you that where one person threatens another with physical violence, and has the apparent ability to carry out such threats, the person threatened has the right to command the other to desist from carrying out such threats, and to draw or exhibit a revolver or other deadly weapon for the purpose of compelling the other to desist from violence.” “The defendant was entitled to act upon appearances and if the language and conduct of the deceased was such as to induce in the mind of a reasonable man under all the circumstances existing, and viewed from the standpoint of the defendant, a belief that he was about to be attacked and that serious bodily injury was about to be inflicted upon him by the deceased, it does not matter if such danger was real or was only apparent; and if the defendant acted in self-defense from real and honest convictions as to the character of the danger, induced by the existence of reasonable circumstances, you should find him not guilty, even though he was mistaken as to the extent of the danger.”
“If you find from the evidence that the deceased was unarmed and threatened an assault and intended to commit a battery upon the defendant with the fists of him, the deceased, and if you also find from the evidence that the defendant at the time in question and theretofore was suffering from a heart ailment as the result of which the defendant was not in the same physical condition to withstand an assault and battery as would be a person without such heart ailment, the physical condition mentioned of the defendant would give the defendant the right which healthier persons might not possess of resorting to a deadly weapon, to-wit, a revolver, for his protection against such an assault and battery.”
“One person may kill another upon a sudden quarrel or in [356]the heat of passion.and the tilling may be entirely lawful. In this connection, you are instructed that if a person has the right under all of the circumstances of the case to shoot another in self-defense the exercise of this right does not make the act unlawful or constitute it a crime merely because it was done in a sudden quarrel or in the heat of passion. A shooting or a killing done in self-defense is entirely lawful whether or not it is done in a sudden quarrel or in the heat of passion.”
“Homicide is the killing of a human being. All homicides are not criminal, that is, one person may kill another person and not be guilty of any crime under our law, as where such killing was done in the lawful exercise of the right of self-defense. A homicide may be either lawful or unlawful. It is only unlawful homicides that are made crimes by our laws.”
“If you have a reasonable doubt as to whether the defendant acted in self-defense, you must find him not guilty.”
The foregoing instructions emphasized by repetition and elaboration the rules of law most favorable to appellant, and it is obvious that the jury were fully and fairly instructed as to defendant’s right of self-defense; and while these instructions to some extent conflict with the one complained of as constituting prejudicial error, it was said in Wells v.Lloyd, 21 Cal.2d 452, 458-459 [132 P.2d 471], that it does not follow that the giving of conflicting instructions will always mislead the jury and warrant a reversal; that in reviewing instructions an appellate court must read the charge as a whole and give the instructions a reasonable construction from the standpoint of their probable effect upon the jury. Also see Barsha v. Metro-Goldwyn-Mayer, 32 Cal.App.2d 556, 565 [90 P.2d 371] Passarelli v. Souza, 37 Cal.App.2d 1, 5 [98 P.2d 809].
The majority opinion in this ease cites People v. Zuckerman, 56 Cal.App.2d 366 [132 P.2d 545], as comparable to the ease before ns. But the instruction held erroneous in that case went much farther than the one here under attack. It read:
“The defendant is not necessarily justified, because he actually believed that he was in imminent danger. When the danger is only apparent, and not actual and real, the question is: Would a reasonable man, under all the circumstances, be justified in such belief? If so, the defendant will be so justified if he in fact had such belief.
[357]“If this was defendant’s position, it was his right to repel the aggression and fully protect himself from such apparent danger. If he could have withdrawn from the danger, it was his duty to retreat. Between his duty to flee and his right to kill, he must flee; or, as the looks have it, must retreat to the wall, lut ly this is not meant that a party must always flee, or even attempt flight. The circumstances of the attack may be such, the weapon if any, with which he is menaced of such a character that retreat might well increase his peril. By ‘retreating to the wall’ is only meant that the party must have mailed himself of any apparent and reasonable avenues of escape by which his danger might be averted, and the necessity of slaying his assailant avoided.” (Italics added.)
In the instruction given in the case before us the jury were not told that if defendant could have withdrawn from the danger it was his duty to retreat, that between his duty to flee and his right to kill he must flee, that is, “retreat to the wall”; here they were merely told that he must “employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity for the killing.” And if, as appellant contends, he shot in defense of his habitation, the foregoing language is not substantially different from the provision of section 197 of the Penal Code, supra. By the giving of the other instructions above quoted, the jury were fully instructed that if the circumstances justified the defendant in believing as a reasonable man that he was in danger, he had a right to stand his ground and defend himself, and to repel assault by use of all necessary force even to the taking of the life of his assailant; they were even told that if they found that deceased was the aggressor and that defendant as a reasonable man was justified in believing himself to be in imminent danger of injury or death at the hands of deceased, there was nothing further for them to consider, and they must return a verdict of not guilty.
The Zuekérman case is further distinguishable in that in that case certain instructions requested by defendant, which correctly stated the law as to the right of one assailed to stand his ground, were refused. Also there, the facts of the case are quite different from the facts in the case before us. Here the evidence shows conclusively that defendant, himself, created the situation that resulted in the killing. Knowing that de[358]ceased was at the Spurlock house he went from the Bagwell house to his own residence, advised his wife to delay dinner, returned to the Bagwell house, took his gun from his car and put it in his belt, called to deceased to come to him from the Spurlock house, and, as deceased complied, invited a conflict by asking: “Can you whip me here?” This evidence plainly indicates that appellant was the aggressor; and while he testified that he was in fear of deceased, his conduct belies such statement.
Since the enactment of article VI, section 4%, of the Constitution it has become, not only the right, but the duty of an appellate court, in reviewing instructions, to read the charge as a whole, to give the instructions a reasonable construction from the standpoint of the jury, and to determine therefrom, and from the evidence in the case, whether it is probable that in the absence of the erroneous instruction the jury would not have returned the verdict, and, therefore, a miscarriage of justice, within the meaning of the constitutional provision, has resulted. As was said in People v. Rogers, 22 Cal.2d 787, 807 [141 P.2d 722], “The question for an appellate court under these circumstances is whether, considering the entire record, the challenged instruction may have prejudiced the convicted person’s rights. (Const., art. VI, §4%.) If it is probable that in the absence of a misleading instruction the jury would not have returned the verdict complained of, then there has been a miscarriage of justice within the meaning of the constitutional provision.”
In my opinion the evidence of defendant’s guilt is clear and convincing and, in view of the evidence and the entire charge of the court, no different verdict would have resulted had the erroneous instruction not been given. Generally speaking there is little conflict in the evidence. While defendant testified that as deceased approached him he held a piece of pipe in both hands, this is contradicted by both Bagwell and his wife, who testified that they saw no object in decedent’s hands except his hat. It was daylight at the time of the shooting and Mrs. Bagwell stated she saw decedent as he was coming from the Spurlock house after defendant called him. She further testified that the piece of pipe in question was at the cesspool, some distance away from the shooting, after the tragedy occurred, and that it had been there for ten days before. The shooting occurred at about 7:00 o ’clock [359]in the evening and at 8:30 o’clock the sheriff was on the scene to investigate. With the aid of Mr. Bagwell and a flashlight he searched the ground where the shooting occurred, located the two bullet holes, recovered one of the bullets and marked the bullet holes. He also traced the blood from the place of the shooting to the Spurlock house, a distance of about 150 feet. He saw many different objects around the premises but neither he nor either of the Bagwells saw the piece of pipe near the scene of the shooting. Later, about 12:30 o’clock, the sheriff returned to the scene to recover the other bullet, and on this second visit he saw a piece of pipe “one step’’ from the bell pole where deceased was shot. Though both Mr. and Mrs. Bagwell were eyewitnesses to the tragedy, neither of them saw any pipe in the immediate vicinity of the shooting. Doubtless if deceased had dropped the piece of pipe when he was shot, as defendant testified, the sheriff or Mr. Bagwell would have seen it at the place of the shooting when the 8:30 p.m. search was made and the bullet holes found. It was three feet long and one and one-half inches in diameter so that it could not have been easily overlooked. By their verdict of murder of the second degree it is clear that the jurors concluded the deceased did not carry a piece of pipe as claimed by defendant.
Defendant also discredited his testimony that deceased advanced toward him with the piece of pipe held in both hands up to his right shoulder, when he testified that, when he fired the second shot, deceased “stopped and dropped the pipe and grabbed his leg with one hand and I guess his hat with the other.” It is not reasonable - to believe that decedent thus carried the pipe in both hands and yet had his hat in either hand. Furthermore the testimony as to the conversation between the two men at the time of the shooting is not consistent with defendant’s contention that he shot in self-defense. It was as follows:
Defendant: Can you whip me here?
Deceased: I still can if you’ll come out in the road, you big Texas longhorn son-of-a-bitch, you’re just a coward.
Defendant: I asked you not to come on my premises any more.
Deceased: I’ll come to Spurlock’s as long as Lawrence [his son] works there.
[360]Defendant: I’ll see whether you come.
Defendant immediately followed with two shots fired in rapid succession when the men" were about five or six feet apart. When the first shot was fired decedent stepped backward, and after the second said: “Don’t shoot me any more, Reese,” and retreated to the Spurlock house. If deceased had. the piece of pipe as defendant claims, there would have been no occasion for his asking defendant to “come out in the road”; and if defendant fired because of fear of bodily harm he would not have said, “I’ll see whether you come.” Furthermore, the conduct of defendant after the shooting is not consistent with a shooting solely in self-defense. Immediately after the shooting he drove a short distance away and put the gun and shells in a vineyard. He then went to his home where he remained a few minutes during which he tried to telephone to his attorney, Mr. Preston, at Merced. Failing to contact Mr. Preston he telephoned to and made an appointment with Mr. Braueht, Mr. Preston’s partner. On his way to Merced he stopped at Harry Tail’s, saw Mrs. Taif, talked with her about a minute, then he went on and stopped at Mr. Nancarrow’s and saw and talked with Mrs. Nancarrow. Mr. Nancarrow was not at home. (The Tails and the Nanearrows subsequently were witnesses for the defense and had been in the barroom during the incident at Planada.) Appellant then went to the home of attorney Braueht and together they went to the home of attorney Hugh Landram where the shooting was discussed. While this discusstion was going on attorney Braueht drove 12 or 15 miles to the Bagwell home to procure Mr. Bagwell to come to attorney Landram’s home for an interview, but Mr. Bagwell was not at home. The meeting at the home of attorney Landram continued from about 8:30 to about 11:00 p. m. when defendant, accompanied by counsel, surrendered to the public authorities.
The evidence is uncontradicted that the decedent and appellant had met about an hour before the shooting in the barroom at Planada, about four miles from defendant’s ranch, and there had engaged in a conversation and some heated words; that defendant left the barroom and went outside followed by deceased, who called the defendant a vile name but made no gesture toward physical violence. From Planada defendant went to the Bagwell house and after talk- ' ing with Bagwell, went to his own residence, about a half mile [361]away, there told his wife to delay cooking the meat, went back to Bagwell’s and from there called to deceased at the Spurlock house, about 150 feet away, to come to him. According to the testimony of the members of the Spurlock family, when called out of their house by defendant, deceased was about to dine with them and was in jovial spirits, laughing and joking “as usual.” Twice the defendant was in his own home and away from the deceased and yet he chose to arm himself and to invite the deceased into an affray by saying: “Can you whip me here?” As was said by this court in People v. Fitch, 28 Cal.App.2d 31, 39 [81 P.2d 1019], “The jury was warranted in concluding that if the defendant was really afraid of bodily harm at the hands of the deceased, he might easily have avoided a conflict by remaining at his home.” There had been a cooling-off period of about an hour between the incident at Planada and the actual shooting, during which deceased showed no signs of rancor. Had defendant refrained from inviting deceased to fight, no tragedy would have occurred.
There is further reason why this court should affirm the judgment in this case, and that is, that the contentions here made were fully presented and argued before the trial court on motion for a new trial, which was denied. In Lafargue v. United Railroads, 183 Cal. 720 [192 P. 538], and in Hulburd v. Worthington, 57 Cal.App.2d 477 [134 P.2d 832], in passing upon the question of whether error had resulted in a miscarriage of justice so as to justify reversal where a new trial had been denied by the lower court, it was said that a trial court is in a much better position than an appellate court to determine whether the verdict of a jury was probably due to errors at the trial, and its conclusion in the matter should not be disturbed unless, under all the circumstances appearing, it was clearly wrong. Here the trial court heard the witnesses and observed their manner of testifying. It was in a much better position than this court can be, to determine whether the testimony of appellant that he was afraid of decedent and killed him in self-defense was convincing and credible. Had that court been of the opinion that there was a miscarriage of justice we must assume that it would have granted a new trial.
I am convinced that the verdict of the jury was just and [362]that had the instruction complained of not been given, no different result would have followed, that the evidence fully sustains the verdict, and that it has not been made affirmatively to appear that there has been a miscarriage of justice. The judgment should be affirmed.
Respondent's petition for a hearing by the Supreme Court was denied August 30, 1944. Edmonds, J., voted for a hearing.