delivered and applied toward the satisfaction of the judgment, or the sureties would pay the value thereof, not exceeding the amount of the judgment, and that if an agreement is in the alternative, and one branch of the alternative cannot by law be performed, the party is bound to perform the other," the court said: "It is clear, for reasons which need not be enlarged upon, that if at the time the proceedings in bankruptcy is instituted there is no attachment in force on which the proceeding can operate, if the attachment lien has already been discharged by a bond for that purpose, then the liability of sureties on the bond is not affected by the subsequent bankruptcy of their principal. (McCombs v. Allen, 82 N. Y. 114, and cases cited; Easton v. Ormsby, 18 R. I. 309, [27 Atl. 216]; Insolvent Act, sec. 45, last proviso.) The mistake of defendants lies in supposing that the lien of the attachment in Rosenthal v. Brusie continued on the attached goods after they had been released to Brusie in consequence of the delivery bond. Our statute and the inferences which follow from the decisions of this court seem to put the question at rest. Upon the execution of the bond, such as was given by defendants, 'an order may be made, releasing from the operation of the attachment any or all of the property attached.' (Code Civ. Proc., sec. 554.) is impossible that property can be 'released from the operation of the attachment' if it yet remains subject to the attachment lien. . . . We are satisfied that no lien of the attachment persisted on the goods in this case after the release to the owner."

It

Our conclusion from all the authorities which we have examined and to many of which special attention has been directed in this opinion is that there is no provision in the Federal Bankruptcy Act with which the judgment asked for by the plaintiff in this action would be in conflict. In other words, there is no language in said act which prevents the rendering or entering of such a judgment, and our opinion is that the court below should have entertained the motion of the plaintiff for a special or qualified judgment against the defendant, and that, in refusing to do so, and in disallowing the above-indicated proof offered by the plaintiff in support of said motion, the court erred to the prejudice of the latter.

As stated above, the defendant has not in his brief or otherwise assailed or challenged the legal propositions above considered, but, as we understand him, he denies the propriety of their application to the case in hand, and further maintains that, even if this case in the abstract presented an appropriate instance for their application, the plaintiff did not properly proceed in the court to make them or to justify a review of the ruling of the court denying him the remedy sought.

In support of this position it is declared: "1. There is absolutely no mention made in any of the pleadings of a writ of attachment having been issued or a bond to prevent its levy having been given. There was, therefore, no issue presented as to those matters. 2. The findings fully covered all the issues raised. 3. The specifications of particulars wherein plaintiff claims the evidence insufficient to support the decision is in fact addressed to the conclusions of law and not to findings of fact. 4. The notice of intention to move for a new trial fails to specify as one of the grounds, 'errors in law, occurring at the trial, and excepted to,' etc., the only grounds of the motion being: Insufficiency of the evidence to justify the decision and that the decision is against law."

The reply to the first of the above-stated propositions is, in our opinion, that, since the ultimate question at issue was whether the plaintiff was entitled to any sort of judgment against the defendant under the issues as finally framed, the fact of the issuance of the writ of attachment, the fact of its levy upon the property of the defendant, the fact of the giving of the undertaking for the purpose of effecting a release of the attachment, and the fact of such release, were purely evidentiary, or constituted mere evidence upon which the court might predicate its conclusion upon said question. It was, therefore, even if proper, unnecessary to plead those facts.

Nor can we conceive of a more appropriate procedure to which the plaintiff might have resorted for the protection and preservation of his rights against the sureties than that adopted. The trial of the case was, of course, necessary, notwithstanding the special plea set up by the supplemental answer and its availability as a perfect defense to the action, if proved. If it transpired, as it did transpire, that the spe

cial plea could be established, then the plaintiff, still concerned with the ultimate decision, was entitled to a judgment in form which could do the defendant himself no possible harm, but which would preserve to him (the plaintiff) certain rights arising out of the controversy to which he was justly and legally entitled.

As to the fourth proposition above stated, it is sufficient to say that whether the grounds upon which the plaintiff founded his motion for a new trial were or were not such as to warrant the trial court in legally considering and passing upon the alleged errors involved in the rulings of the court excluding proof of the attachment and the bond given to secure the release thereof is, so far as this appeal is concerned, wholly immaterial. Indeed, under the existing system for taking appeals in this state, it was not necessary fo the plaintiff to move for a new trial to authorize this court to review the errors mentioned, and, so far as is concerned our right and authority to do so, it may he assumed that no motion for a new trial was in fact made. The appeal here was taken after the abrogation by the legislature of 1915 of the right to appeal from an order denying a new trial (Stats. 1915, p. 209, amending sec. 963, Code Civ. Proc.), and the said errors may, therefore, be reviewed by this court on the appeal from the judgment, notwithstanding that the court below might have been justified in denying the motion for a new trial because of the insufficiency of the grounds upon which the motion was based, as designated in the notice of intention, to point the errors relied upon. (Code Civ. Proc., sec. 956.) The last named section provides: "Upon an appeal from a judgment the court may review the verdict or decision, and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment, or which substantially affects the rights of a party.... (Italics ours.) The motion for a new trial was made upon the minutes of the court, and the errors occurring at the trial were preserved by a bill of exceptions, duly settled, for use on the appeal from the judgment. (Code Civ. Proc., sec. 950.) The errors are, therefore, legally before this court for review, and quite manifestly they "involve the merits," "necessarily affect the judgment," and most unquestionably "substantially affect the rights of" the plaintiff.

The judgment is therefore reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Chipman, P. J., and Burnett, J., concurred.

[Crim. No. 347. Third Appellate District.-September 19, 1916.] THE PEOPLE, Respondent, v. AMEDIO FINALI, Appellant.

CRIMINAL LAW-MURDER-SELF-DEFENSE-DOCTRINE OF APPARENT DANGER-INCONSISTENT INSTRUCTION.-In a prosecution for the crime of murder, where the plea made by the defendant is that of selfdefense, an instruction that there must have been a present ability on the part of the assailant to accomplish his criminal design in order to justify the person assailed in taking his life is inconsistent with the doctrine of apparent danger to one who is assailed, but is not so misleading as to have caused a miscarriage of justice, where the evidence shows whatever real or apparent necessity defendant believed to exist for the killing was created by his own fault. ID.-PLEA OF SELF-DEFENSE-WHEN NOT AVAILABLE-SEEKING OF QUARREL.-An instruction that self-defense is not available as a plea to a defendant who has sought a quarrel with a design to force a deadly issue and thus, through his fraud, connivance, or fault, create a real or apparent necessity for the killing, is proper, where the evidence shows that whatever real or apparent necessity the defendant believed to exist for the killing was created by his own fault. ID.-DOCTRINE OF SELF-DEFENSE.-The doctrine of self-defense presupposes that one who would avail himself of it has, without his fault, found himself in threatened danger of serious bodily injury, to avert which the law gives him the right to resort to extreme measures. But the plea is not available to him where he willfully and without any necessity for his own protection creates the danger with which he is threatened.

ID. RETURN OF JURY FOR FURTHER INSTRUCTIONS-RIGHT OF DEFENDANT. Upon the return of the jury for further instructions while deliberating on the verdict, the defendant is not entitled as a matter of right to have read to them instructions not called for, or to have all of the instructions upon a given subject read, when such as are read are stated to be satisfactory to them.

ID.-ARGUMENT OF DISTRICT ATTORNEY-COMMENT UPON FAILURE OF DEFENDANT TO DENY SELF-INCRIMINATORY STATEMENT-LACK OF PREJUDICE.-In such a prosecution, while it is wrong for the district attorney in his argument to the jury to make reference to the fact that the defendant, while on the witness-stand, had failed to make denial of a somewhat self-incriminatory statement which he made at the time of his arrest and which was introduced in evidence, such misconduct is not prejudicially erroneous, under section 41⁄2 of article VI of the constitution, where the jury was fully advised as to the subject matter of such statement through other testimony. ID.-MISCONDUCT OF DISTRICT ATTORNEY-WHEN GROUND FOR REVERSAL. Where misconduct of the district attorney is claimed as prejudicial, if attention is called to it and the court instructs the jury to disregard it and not allow themselves to be influenced by it, the misconduct must be flagrant and obviously prejudicial to justify a reversal.

APPEAL from a judgment of the Superior Court of Shasta County, and from an order denying a new trial. J. E. Barber, Judge.

The facts are stated in the opinion of the court.

Braynard & Kimball, for Appellant.

U. S. Webb, Attorney-General, and J. Chas. Jones, Deputy Attorney-General, for Respondent.

CHIPMAN, P. J.-Defendant was informed against by the district attorney of Shasta County for the crime of murder, and at his trial was convicted of manslaughter and sentenced to imprisonment for the term of seven years in the state prison. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

Defendant shot and killed Vincenzo Coudera on Sunday at about half-past 4 o'clock in the afternoon of November 28, 1915, at the warehouse (sometimes called stable by witnesses) of Giacossa & Bellone, near the Mammoth mine, in Shasta County. Defendant justifies the killing on the plea of selfdefense. Defendant and deceased met near this warehouse shortly before the homicide; they were but casually acquainted with each other; defendant had been told that deceased had said that defendant was watching for one Tony Claro every evening with intent to assault him; at the meet