2. When committed in defense of habitation, property, or person, against one who inanifestly 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; or, 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person or the person in whose behalf the defense was made, if he was the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or, 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace. Burden of proving homicide justifiable: Sec. 1105, post. Accused commencing difficulty.-As a general rule, to render the homicide justifiable it must appear that the accused was wholly without fault imputable to him, in bringing about or commencing the difficulty in which the mortal wound was given: People v. Lamb, 17 Cal. 323; People v. Travis, 56 Id. 254; and People v. Westlake, 62 Id. 303, 307, not approving People v. Simons, 60 Id. 72, which questions the first two cases mentioned. But that there may be a case where the defendant, although commencing the trouble, did all he could to avert it afterwards, and to save himself kills his opponent, see People v. Westlake, supra; People v. Simons, supra. In People v. Wong Ah Teak, 63 Id. 544, the point is directly passed upon, and the court say that one who has sought a combat for the purpose of taking advantage of another may afterward endeavor to decline any further struggle, and if he really and in good faith does before killing the person with whom he sought combat for such purpose, he may justify the killing on the same grounds as he might if he had not originally sought such combat for such purpose.' How ever, generally speaking, "the right of selfdefense which justifies a homicide does not include the right to attack:" People v. Westlake, supra; see also note to sec. 198, "Threats." 66 Subd. 1. Prevention of felony. The law authorizes the killing of one who is in the act of committing a forcible felony, and even one who appears to be in the act of doing so, for the purpose of prevention, not by way of punishment: State v. Roane, 2 Dev. L. 58; 1 Whart. Crim. L., Sth ed., sec. 484. But the killing is not excusable if the crime resisted could apparently have been prevented by less violent means; 1 Whart. Crim. L., Sth ed., sec. 498; Rex v. Scully, 1 Car. & P. 319; see also Bla. Com. 179, 180; 1 Russell on Crimes, 897. Subds. 2 and 3. Self-defense-Defense of habitation, property, etc.-When a man is assaulted in the course of a sudden brawl or quarrel, he may, in some cases, protect himself by killing the person who assaults him, and excuse himself on the ground of self-defense. But in order to entitle himself to this plea, he must make it appear-1. That before a mortal stroke was given he had declined any further combat; 2. That he then killed his adversary through mere necessity in order to avoid immediate death: 1 East P. C. 280. The law requires that the party assaulted must flee as far as he can, either by reason of some wall or other impediment, or as far as the fierceness of the assault will permit him, before he will be justified in self-defense in killing his assailant: 1 Russell on Crimes, 889; see, however, sec. 198, note. To make it self-defense, it must appear that the slayer had no other possible (or, at least, probable) means of escape: 4 Bla. Com. 184; People v. Sullivan, 7 N. Y. 396; People v. Walsh, 43 Cal. 447. In deciding what force it is necessary to employ in resisting an assault, a man must act upon the circumstances as they appear to him at the time, and he is not to be held criminal because a calm survey of the facts afterwards shows that the use of such extreme means might, by a possibility, have been avoided: Hinton v. State, 24 Tex. 454; Schnier v. People, 23 Ill. 17; Patten v. People, 18 Mich. 314; but see People v. Williams, 32 Cal. 280. The right of self-defense is not confined to those cases where the attack is unexpected. When the attack is actually made, one has a right to repel it, no matter for how long a time he may have anticipated it: 1 Whart. Crim. L., 8th ed., sec. 487. Where a man is assaulted in his dwelling, he is under no obligation to retreat; "every man's house is his castle," and in defense of it, or to prevent an unlawful entry, he may use such means as may be necessary, even to the taking of life: Pond v. People, 8 Mich. 150; see generally 3 Bla. Com. 3; 4 Id. 183; 1 Whart. Crim. L., 8th ed., secs. 484-511; 1 Russell on Crimes, 888; Whart. on Homicide, sec. 541; People v. Arnold, 15 Cal. 476; People v. Batchelder, 27 Id. 69; People v. Campbell, 30 Id. 312; People v. Pool, 27 Id. 572; People v. Scoggins, 37 Id. 675; People v. Walsh, 43 Id. 447; People v. Ah Kong, 49 Id. 6; People v. Perdue, Id. 425; see sec. 198, and note. Human life cannot be taken to prevent a mere trespass upon property, but every person in the defense of his property has a legal right to prevent the commission of a felony; and for the purpose of defense and prevention, every one is entitled to use whatever force may be neces sary, even to the extent of taking the life of a felonious aggressor: People v. Payne, 8 Cal. 341; People v. Flanagan, 60 İd. 2, 3. The law of self-defense is a law of necessity, and that necessity must be real or apparently real. A party acting under it may act upon appearances, and he will be justifiable in acting upon them, even though they turn out to have been false. Whether they were real or apparently real is for the jury, in a criminal case, to decide upon all the circumstances out of which the necessity springs. If from all the evidence in the case they should find that the circumstances were such as to excite the fears of a reasonable man, and that the defendant, acting under the influence of such fears, killed the aggressor to prevent the commission of a felony upon his person or property, he would not be criminally responsible for his death, although the circumstances might be insufficient to prove by a preponderance of the evidence that the 198. Bare fear not to justify killing. aggressor was actually about to commit a felony upon him: People v. Flanagan, supra; see People v. Strange, 61 Cal. 496, where defendant, accused of murder, was convicted of manslaughter for killing deceased in resisting an attack while trying to escape from deceased's house, where accused had been discovered in illicit relation with the former's wife; so also People v. Herbert, 61 Id. 644. Lawful resistances, by whom and when may be made: See secs. 692-694, post. Apprehension of danger: See note to next section. If the transcript does not contain the evidence the court cannot reverse for refusal to give instruction: People v. Johnson, 61 Cal. 142. Subd. 4. Duty to assist in arrest of felon: See sec. 837, post; People v. Raten, 63 Cal. 421. SEC. 198. A bare fear of the commission of any of the offenses mentioned in subdivisions two and three of the preceding section, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances. must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone. Mere apprehension of danger is insufficient to justify a homicide. The fear must have been produced by such circumstances as would be sufficient to excite the fears of a reasonable person: People v. Hurley, 8 Cal. 390; People v. Lombard, 17 Id. 316. And it is essential that the party killing must have acted under the influence of those fears alone: People v. Ye Park, 62 Id. 204. The danger may be apparent, not actual, but the defendant must have reasonable cause to believe, and must believe, it to be real: Flahave's Case, 58 Id. 249; People v. Morine, 61 Id. 367, and cases hereinafter; People v. Gray, Id. 164. The law of self-defense is founded on necessity, and in order to justify the taking of life upon this ground, it must not only appear that the defendant had reason to believe, and did believe, that he was in danger of his life, or of receiving great bodily harm, but it must also appear to the defendant's comprehension, as a reason. able man, that to avoid such danger it was at, solutely necessary for him to take the life of the deceased: People v. Scoggins, 37 Id. 675; People v. Wright, 45 Id. 260; People v. Anderson, 44 İd. 65; People v. Arnold, 15 Id. 476; People v. Campbell, 30 Id. 312; State v. Stewart, 9 Nev. 120; Dupree v. State, 33 Ala. 389; Commonwealth v. Drum, 58 Pa. St. 20; 1 Russell on Crimes, SS8, 891. It is, however, not essential that the jury should find it absolutely necessary for the accused to kill deceased to save himself. It is not necessary for defendant to exhaust all other means: Fahave's Case, supra; People v. Westlake, 62 Cal. 305; Feople v. Herbert, G1 Id. 545; People v. Gray, supra; People v. Morine, supra; see notes to secs. 195-197. For a thorough review of the prineiples of law contained in these sections, see the cases of Shorter v. People, 2 N. Y. 193, and Granger v. State, 5 Yerg. 459; S. C., 26 Am. Dec. 278. Defendant's duty to flee.-Where an attack is made with a murderous intent, or defendant so believes, it is "not incumbent on the defendant to fly for safety, even if he might more readily have secured it by flight than by standing his ground, and if necessary, killing his adversary:" People v. Ye Park, 62 Cal. 204. Threats.-See, as to the effect of threats in determining the character of a homicide, note to Campbell v. People, 61 Am. Dec. 53-58. Whether the defendant, having heard threats, was justified in arming himself and in using his arins, is a question for the jury; the court cannot instruct them that defendant had a right to arin: People v. Hurtado, 63 Cal. 289. A previous threat alone, unaccompanied with any demonstration of force sufficient to excite the apprehension of danger that will justify killing, is not an excuse or justification for a homicide: People v. Iams, 57 Cal. 115; People v. Westlake, 62 Id. 305; People v. Scroggins, 37 Id. 676; People v. Tamkin, 62 Id. 468. Naked threats, without acts showing real or apparent danger, are not competent evidence: People v. Campbell, 59 Id. 243. It is also true, as a general rule, that the threat must have been communicated to the accused, otherwise it could not in any manner have influenced his conduct: People v. Arnold, 15 Cal. 481; People v. Iams, 57 Id. 115. That there may be cases in which evidence of threats, although not communicated to the accused, is admissible, see People v. Arnold, 15 Cal. 481; People v. Campbell, 59 Id. 243. In this last case the subject of justification arising from fear occasioned by threats is elaborately considered. In People v. Travis, 56 Cal. 251, 253, it is comprehensively stated, and followed in People v. Tamkin, 62 Id. 468, that "in capital cases past threats and hostile actions, or antecedent circumstances tending to show malice, are admissible, in connection with the homicide, for the purpose of showing apprehensions of personal danger from the deceased, and of illus trating the question which of the parties in a 199. Justifiable and excusable homicide not punishable. SEC. 199. The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged. CHAPTER II. 203. Mayhem defined. SEC. 203. Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem. [Amendment, approved March 30, 1874; Amendments 1873-4, 427; took effect July 1, 1874.] Mayhem, as defined by Mr. East, is such a bodily hurt as renders a man less able in fighting to defend himself or annoy his adversary; but if the injury be such as disfigures him only, without diminishing his corporal ability, it does not fall within the crime of mayhem: 1 East P. C. 393. Upon this distinction, the cutting off, disabling, or weakening a man's hand, or finger, or striking out an eye, or foretooth, or castrating him, are each mayhem; but the cutting off his ear or nose are not such at common law. By statutes, however, both in England and the United States, the offense has been extended so as to cover all malicious disabling injuries to the person: 1 Whart. Crim. L., Sth ed., sec. 581; Foster v. People, 50 N. Y. 598; Godfrey v. People, 63 Id. 207; Riflemaker v. State, 25 Öhio St. 395; State v. Brown, 60 Mo. 141; State v. Vowels, 4 Or. 324; Eskridge v. State, 25 Ala. 30. The ear is a "member" of a person's body, and biting it off is mayhem: People v. Golden, 62 Cal. 542. In Tully v. People, 67 N. Y. 18, it was held that in an indictment for mayhem a premeditated design to maim must be averred, and that 204. Mayhem, how punishable. the jury must find that there was suca design before they could convict. The manner in which this design was evinced, however, and the circumstances establishing it, were held to be matters of evidence, to be proved on the trial, and not necessary to be averred. The issuable fact being whether the particular injury was deliberately and intentionally com mitted, where a maiming is proved to have been done, the commission of the act with intent to maim is prima facie to be inferred: State v. Girkin, 1 Ired. L. 121; State v. Simmons, 3 Ala. 497. In New York it must appear that there was a lying in wait, or some other act, showing a premeditated design to do the act complained of: Godfrey v. People, 63 N. Y. 207, reversing S. C., 5 Hun, 369. Although a specific intent must be shown, the duration of this intent is not material: Foster v. People, 50 N. Y. 598; Godfrey v. People, 63 Id. 207; Molette v. State, 49 Ala. 18; Slattery v. State, 41 Tex. 619. Sufficient indictment: See People v. Golden, 62 Cal. 542. SEC. 204. Mayhem is punishable by imprisonment in the state prison not exceeding fourteen years. 207. Kidnaping defined. CHAPTER III. SEC. 207. Every person who forcibly steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or who forcibly takes or arrests any person with a design to take him out of this state, without having established a claim according to the laws of the United States or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell such person into slavery or involuntary servitude, or otherwise to employ him for his own use, or to the use of another, without the free-will and consent of such persuaded person, is guilty of kidnaping. Kidnaping, at the common law, is seizing a person, and carrying him to a place where he is out of the protection of the law: 1 Whart. Crim. L., 8th ed., sec. 590. As defined by Blackstone, it is the forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another: 4 Bla. Com. 219. It is considered an aggravated species of false imprisonment: Click v. State, 3 Tex. 282. It is not necessary that any actual violence or force should be used, nor is a transportation to a foreign country necessary to complete the offense: State v. Rollins, 8 N. H. 550; Moody v. People, 20 Ill. 315. See Redfield v. State, 24 Tex. 133. The 208. Punishment of kidnaping. requisites of an indictment charging kidnaping were held, in Click v. State, 3 Tex. 282, to be: 1. An averment of an assault; 2. The carrying away or transporting of the party injured from his own country into another, unlawfully, and against his will: See also 1 Archb. Crim. Pl. 987. In People v. Chu Quong, 15 Cal. 332, under the act of April 16, 1850, sec. 54, which was substantially the same as section 207, it was held that to constitute the offense of kidnaping it is necessary that the abduction should be accompanied with a removal into another county, state, or territory, or a design to remove the party beyond the limits of the state. SEC. 208. Kidnaping is punishable by imprisonment in the state prison no less than one nor more than ten years. CHAPTER IV. 211. Robbery defined. SEC. 211. Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of forcé or fear. Robbery is the felonious and forcible taking of the property of another from his person, or in his presence against his will, by violence, or by putting him in fear: 4 Bla. Com. 243; 1 Whart. Crim. L.. 8th ed., sec. 846. See the code definition cited: People v. Nelson, 56 Cal. 77, 80; People v. Gilbert, 60 Id. 108, 110. In People v. Monahan, 59 Id. 389, the definition given to the jury was so confused as to warrant a reversal on appeal. It is not necessary that the property should belong to the person from whose possession it was forcibly taken. It is requisite, however, that it should belong to some other person than the defendant, for the owner of property is not guilty of robbery in taking it from the possession of the possessor: People v. Vice, 21 Id. 344; People v. Shepardson, 48 Id. 189. The taking must be from the person, or in the presence of the party robbed: United States v. Jones, 3 Wash. 209; Rex v. Grey, 2 East P. C. 708; Commonwealth v. Snelling, 4 Binn. 379; Rex v. Hamilton, 8 Car. & P. 49; and against his will: Long v. State, 12 Ga. 293. See application of the requisite taking in People v. Clough, 59 Cal. 438. So where a thief puts a man in fear, and then drives away his cattle, the offense is complete: 1 Hale P. C. 533. Also, where a man flying from a robber drops his hat, which the robber steals: Id.; 1 Whart. Crim. L., 8th ed., sec. 847. The goods must appear to have been taken animo furandi: Murphy v. People, 3 Hun, 114; Matthews v. State, 4 Ohio St. 539; State v. Holly way, 41 Iowa, 200; State v. Curtis, 71 N. C. 56; Long v. State, 12 Ga. 293. But where a creditor assaulted his debtor, and compelled him to give him a check in part payment, and then again assaulted him in order to force him to give him money in payment of the debt, it was held that, there being no felonious intent, the defendant could not be convicted of robbery: Regina v. Hemming, 4 F. & F. 50. So if a party, under a bona fide impression that prop erty is his own, obtain it by menaces, he is not guilty of robbery: Rex v. Hall, 3 Car. & P. 409; Brown v. State, 28 Ark. 126; Hammond v. State, 3 Coldw. 129; United States v. Durkee, 1 McAll. 196; Commonwealth v. Holland, 1 Duv. 182; see People v. Vice, 21 Cal. 344. There must be an actual taking and carrying away: 1 Hale, 533; Farrell's Case, 1 Leach, 4th ed., 322, note. In the latter case the defendant stopped the prosecutor as he was carrying a feather-bed on his shoulders, and told him to lay it down or he would shoot him. The prosecutor laid the bed on the ground, and the defendant took it, and while in the act of removing it was apprehended. The court held the offense was not complete, and discharged the defendant. In Lapier's Case, 1 Leach, 4th ed., 320, the defendant snatched out a lady's ear-ring, and succeeding in separating it from the ear, and it was afterwards found in her hair, the offense was held complete: See Rex v. Mason, Russ. & Ry. 419. If "force" is used, "fear" is not an essential ingredient of the crime: McDaniel v. State, 8 Smed. & M. 401; Commonwealth v. Snelling, 4 Binn. 379; State v. McCune, 5 R. I. 60; 1 Whart. Crim. L., 8th ed., sec. 850; State v. Gorham, 55 N. H. 152; Commonwealth v. Humphries, 7 Mass. 242; State v. Cowan, 7 Ired. L. 239; State v. Burke, 73 N. C. 83; Bonsall v. State, 35 Ind. 460; State v. Howerton, 58 Mo. 581. In State v. Broderick, 59 Id. 318, it appeared that defendant, coming unexpectedly upon the prosecutor, had snatched his watch-chain with such violence as to tear it away from the watch, and from the buttonhole; the offense was held complete. Where the indictment avers fear, fear must be proved: Glass v. Commonwealth, 6 Bush, 436. It is not necessary that the fear should be of robbery. Fear of bodily hurt is enough: Commonwealth v. Snelling, 4 Binn. 379. Upon an indictment charging a person as principal in a robbery, he cannot be convicted as an accessary after the fact: People v. Gassaway, 28 Cal. 404. The property must be alleged to have been taken from the person of another: People v. Beck, 21 Id. 385; see People v. Shuler, 28 Id. 490. See generally, as to what evidence is admissible upon the trial of an indictment for robbery, People v. Jones, 32 Id. 80; People v. McCrea, Id. 98; People v. Hoy Yen, 34 Id. 176. In People v. Pool, 27 Id. 572, the court characterized the crime of robbery as an outrage, in instructing the jury, and it was held that the defendant was not prejudiced thereby. In People v. Jones, 53 Id. 58, robbery was held to include larceny. Larceny and robbery: See sec. 484, note. 212. What fear may be an element of robbery. SEC. 212. The fear mentioned in the last section may be either: 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, 2. The fear of an immediate and unlawful injury to the person or property of any one in the company of the person robbed at the time of the robbery. [Amendment, approved March 30, 1874; Amendments 1873-4, 427; took effect July 1, 1874.] Subd. 1. Fear of injury to person or property.-Any threat calculated to produce terror is sufficient: Long v. State, 12 Ga. 293; Rex v. Reane, 2 East P. C. 734. Thus, if a man take another's child, and threaten to throw it into the river or otherwise injure it unless the other give him money, this is robbery: Id. So if a man part with his money in 213. Punishment of robbery. order to save his house from being fired, the offense is complete: Rex v. Donnelly, Id. 718. See Rex v. Winkworth, 4 Car. & P. 444. To extort money from a person under threat of charging him with an unnatural crime has been held to be robbery: People v. McDaniels, 1 Park. Cr. 199; 1 Whart. Crim. L., 8th ed., sec. 852, and cases there cited. SEC. 213. Robbery is punishable by imprisonment in the state prison not less than one year. Cited in People v. Gilbert, 60 Cal. 108, 110. CHAPTER V. ATTEMPTS TO KILL. 216. Administering poison. SEC. 216. Every person who, with intent to kill, administers, or causes or procures to be administered, to another any poison or other noxious or destructive substance or liquid, but by which death is not caused, is punishable by imprisonment in the state prison not less than ten years. Stats. 1861, 588, sec. 1. Administering poison.-In People v. Van Deleer, 53 Cal. 147, the defendant was convicted under section 216, of the crime of "having administered a poisonous and noxious substance" to the prosecuting witness, with intent to kill. The court instructed the jury that "a poisonous substance is one which has an inherent and deleterious property capable of destroying life. A noxious substance is not necessarily poisonous, but may be a substance which is hurtful and injurious." On appeal, the court, in reviewing the definitions given, and holding them to be erroneous, said: "Accurate definitions of those terms cannot be readily given, and perhaps are impossible, and proximate accuracy is all that may be required in the application of the statute in a given case; but the above definitions omit some of the essential elements of the meaning of those terms, as employed in the statute. A poison is defined by Wharton & Stille, Med. Jur., sec. 493, as a substance having an inherent deleterious property, which renders it, when taken into the system, capable of destroying life.' A definition stated in 2 Beck's Med. Jur. with approval is as follows: 'A poison is any substance which, when applied to the body externally, or in any way introduced into the system, without acting mechanically, but by its own inherent qualities, is capable of destroying life.' The definition of a poison given by the court would include substances which act upon the system mechanically, so as to destroy life. In that respect the definition was too broad; but such substances are, in our opinion, included within the meaning of the words of the statute, other noxious or destructive substance or liquid.' The noxious or destructive substance or liquid mentioned in the statute is not merely such as might, when administered, be hurtful and injurious, but, like a poison, it must be capable of destroying life. Pulverized glass or boiling water, when administered in sufficient quantities, would destroy life, but they are not poisonous. The purpose of the statute is to provide a punishment for attempt to kill, by the means therein mentioned; and in order to bring a case within the statute, it must be proved that the substance or liquid which was administered was capable of destroying life. The intent to kill could not be inferred from |