
    State of Iowa, Appellee, v. Nick Christ, Appellant.
    1 HOMICIDE: Nonpositive Identification of Accused. Evidence held to sustain a verdict of guilt, even though the identification of the accused was not altogether positive.
    2 HOMICIDE: Negativing Self-Defense. Circumstantial evidence reviewed, and held to negative a plea of self-defense.
    3 CRIMINAL LAW: Failure to- Call All Witnesses. The State is not bound, on the trial of a criminal, to call every attainable witness; neither is the accused entitled to an instruction that the failure to call an attainable grand jury witness creates a presumption that the testimony of such omitted witness would be adverse to the State. Especially is this true when other witnesses testify to every, fact immediately attending the comí mission of an offense which the omitted witness could testify to.
    4 CRIMINAL LAW: Suggesting Conviction on Former Trial. It is not error for the court to say to the jury “that, Try reason of a former trial, the defendant cannot be convicted of murder in the first degree.” Such expression does, not, in effect, tell the jury that the defendant has already been convicted of second-degree murder.
    5 EVIDENCE: Res Gestae. Statement of a witness, material, and explanatory of circumstances immediately -preceding a homicide and connected therewith, reviewed, and held to constitute a part of the res gestae.
    
    6 TRIAL: Gambling on Result of Answers. Objections to questions must be timely. A litigant may not gamble on the result of an answer — retain it if favorable, move to strike if unfavorable.
    7 CRIMINAL LAW: Misconduct in Argument. The appellate court will not declare prejudicial a statement by the prosecutor in argument that defendant is “guilty as hell,” when it appears that such claim of prejudice has been overruled by the trial court. , ■
    8 CRIMINAL LAW: Curing Error by Striking Testimony and by Instructions. Error, if any, in receiving testimony is cured by striking it from the record, and by pointed instructions to disregard it.
    9 HOMICIDE: Self-Defense — Instructions. Instructions, reviewed, and held (1) not to turn the jury into a field of mere conjecture on the subject of self-defense, nor (2) to assume that deceased was not armed with a dangerous weapon.
    10 CRIMINAL LAW: Inexplicit but Correct Instructions. Instructions inexplicit, but correct so far as they go, are sufficient, in the absence of a request for more explicit ones.
    
      Appeal from Dubuque District Court. — D. E. Maguire, Judge.
    April 13, 1920.
    Rehearing Denied July 6, 1920.
    Dependant was tried to a jury, aud convicted of the crime of manslaughter, and judgment pronounced. Defendant appeals.
    
    Affirmed.
    
      Frantsen, Bonson & Gilloon, for appellant.
    
      
      1-1. M. Earner, Attorney General, B. J. Powers, Assistant Attorney General, and E. II. Willging, County Attorney, for appellee.
   Preston, J.

Defendant was accused of causing the death of one George Parios, on September 30, 1918, by shooting. There were three bullet wounds in the body of deceased, in front and to the left: one near the collar bone, another an inch below the left nipple, and the third in the abdomen. No question is made but that the wounds were the cause of his death. The shooting occurred between 7 and 8 o’clock in the morning. We take it from the arguments that the principal ground relied upon for a reversal is the alleged insufficiency of the evidence to sustain the verdict, though other questions are argued. The question as to the sufficiency of the evidence was raised by motions for a directed verdict, at the close of the State’s evidence and all the evidence; also by motion for new trial. There are 29 assignments of error. Some of them are wholly without merit. All have been considered, and those which seem to be the more important will be discussed.

1. The State’s evidence is not denied by witnesses for the defendant. The only witnesses for defendant were a photographer ivho testified as to photographs taken by him and measurements of the upstairs rooms where the shooting took place and the distance from the building to the alley, which was 67 feet, and four witnesses under and with whom defendant worked in the roundhouse and shops, who testified as to his character for peaceableness.

At the outset, it may be well to describe the premises and the surroundings, in view of some of the questions argued. This may be more conveniently done by the plat, which is as follows:

As ire understand the evidence. Maple Street is to the east, and the alley to the Avest. Mrs. Enos lived a short distance south. She Avas the mother of the Avife of deceased. Evidently, the shooting took place in the southeast bedroom, “G.” Such is the claim. The rooms are small. After the shooting, Parios was seen hanging to the bannister, and Mrs. Enos Ai'ent to him, and soon after, he Avas helped by his Avife to the Enos yard, AAdiere he died. Tt is not shoAvn aaíio avus in possession of or aat1io occupied the rooms Avhere the trouble occurred. Deceased and his Avife at one time lii-ed in the basement of the Enos place, but. at the time of the killing, they had been living in a box car. As AAre understand it, the railroad yards are not far from this property. There is a board fence betAAreen the Enos residence and the premises Avhere the shooting took place,-so that, to go to the deceased, Mrs. Enos had to go by the street or the alley. She went by the alley. In the plat, “A” is the platform upon Avliich Parios stood Avhen first seen by Mrs. Enos. “B” represents the door with glass panels, through which Mrs. Enos says she heard Parios talking in Greek to someone on the inside. The nature of the conversation is not disclosed. There were not many Avords spoken. The kitchen, “G,” is connected with the trunk room, “E,” by the door, “D.” The trunk room, “E,” Avas connected Avith the bedroom, “G,” by the door, “F,” which swung east, as indicated. There avus no lock on this door. The floor showed evidences of scuffling of feet. “HI” is a bullet hole, near the north wall and the door, which went straight into the floor. “H2” is a bullet hole 8 feet and 4 inches from the doorway. It is a glancing shot into the floor, and deflected towards the east. “H3” marks bullet holes, one in the east wall and one in the north wall. Seven empty cartridges were found on the floor in the room “G.” These empty shells belonged to a 32-caliber automatic gun. The four shots in the floor and walls, together with the three' wounds inflicted on the body of Parios, account for the seven shells. The evidence is that bullets taken from body of deceased were such as were used in a 32-caliber automatic revolver, and were of the same caliber as a box of bullets found in one of the rooms where the shooting occurred. “K” is a door between room “G” and -the bedroom to the north. This door was nailed shut. “L” is the only window in room “G,” and is 12 feet from the ground on Maple Street.

At about 7 o’clock on the niorning of September 30th, Eluis Parios, wife of deceased, came into the home of her mother, Mrs. Enos, and left a small package, supposed to contain a lunch, on the cupboard, and left the room. Some time after this, within the next 45 minutes, as appellant contends, — though the time is not definitely fixed, — Mrs. Enos went outdoors to get water to use in combing her little girl’s hair. She ivas getting her child ready for school. While she was in the back yard, deceased called to Mrs. Enos from the top of the stairs shown in the plat, and said, “Ma, come up here, and see for yourself.” This was the first time deceased was seen that morning by any of the witnesses. Whether he came out of this upstairs apartment, or from some other place, does not appear. Mrs. Enos went to the stairway by way of the alley. At about the time she started from her home, or while on the way, she heard a sound like the crashing of glass. On reaching the top of the stairs, she saw deceased with a chair in his hand. He had smashed the door “B.” When Mrs. Enos arrived at the landing, or at about that time, she heard the talking before referred to. Deceased forced his way into the kitchen by battering down the door, which, it is claimed, had been locked against him. After entering the kitchen, he proceeded to the door “D,” which he broke through with the chair. After deceased had broken through the door “D,” he dropped the chair, and Mrs. Enos says she then saw her daughter, Mrs. Parios, in the trunk room. Her testimony is:

“I saw her in the second room when he broke the second door open. I saw Mrs. Parios in front of the second door; it was from the kitchen side in front of it.”

She testifies she did not see the defendant there at that time, or anybody except Parios and the girl. After deceased entered the trunk room, he passed from Mrs. Enos’ sight; for she says she then turned and started to go out and downstairs. She went directly down the stairs, and-went right along till she got to her own yard. The shooting took place after she started to go down the stairway. She testifies that, when she got to the bottom of the stairs, Mrs. Parios was there with her, and Mrs. Enos went on around to her own yard, she says, to look after her little sick girl in the house. She came out of' the house, and saw Parios hanging to the stairway, the bannister. He said for her to bring him water. She took the wash dish, and went out with it, full of water, to bathe his face. Mrs. Parios had assisted deceased from the stairway to Mrs. Enos’ yard. Mrs. Enos says that she saw deceased lying in the yard; that she saw no other person in the yard at that time, except Mr. and Mrs. Parios and the folks that lived next door; that she was excited. She was looking at his, Parios’, features, when he was lying in the yard. At that time, she says she saw a man running, with a gun in his hands.

“Q. Who was the man? A. Nick Christ. Q. Is this the man you saw, that is sitting here in the court room? A. Yes, sir. Q. Where did he go? A. He went between the two buildings, and that is the last I seen of him.”

She did not see him come down the stairs. When she first saw him, he was running, running in the yard. With reference to .the railroad tracks, he was running west. When she first saw him, he Avas running in a Avesterly direction, then turned north between the buildings. After she brought Parios .the basin of Avater, he died. As near as she could tell, she heard three or four shots fired that morning; may have been more or less; she did not stop to count them; they were fired rapidly. The police came just before Parios died. On cross-examination, she says:

“I think it Avas this defendant. Q. But you are not certain, are you, Mrs. Enos? You onty think so, isn’t that it? Isn’t it a fact that you only think so? A. Well, I don’t remember, but I think it Avas.”

On re-examination, she Avas asked Avhether defendant Avas the man, and she said, “Yes, sir, I saAV him running, Avith a gun in his hand.” A search Avas made for Nick Christ by the police. On the second day of October, in company AAdth Judge Bonson and an attorney from Chicago, he appeared at the police station, and gave himself into the custody of the police. The coroner examined the premises at about 8 o’clock. He seems to have been the first one, after the death of Parios. He says there Avas a table in the kitchen, AAdiich shoAved that somebody had recently been having breakfast. There Avere cups and saucers, a fork, and a common kitchen knife on the table, and some chairs in the .room. The cook stove Avas still Avarm. He did not see a butcher knife or a pocket knife. There Avere some trunks and clothes in the trunk room. He then AArent into the bedroom, “G;” The bed looked as though it had been occupied that night. He noticed a Avet spot in the bed. On the table in this room AA^ere tivo glasses. One had sonie beer in it. There was also a pint bottle, partly filled Avitli Avhisky, and some empty beer bottles. He says he made a careful examination. The chief of police visited the rooms about 8:30 o’clock that morning. He testifies that, Avhen he Avent there, he suav a butclier knife, a pocket knife, and a table knife on the table. It is argued by appellant that there is no evidence Avhich connects the defendant with the offense, except the testimony of Mrs. Enos, and that her identification of the person she says she saw running from the scene.was not sufficient, because, at one point in her cross-examination, she said, “I think he is the one.” She had testified in chief with more positiveness, and the answer just referred to was brought out on cross-examination, and in answer to a leading and persuasive question. In State v. Porter, 34 Iowa 131, 133, witnesses introduced their statements with similar expressions, and the court said:

“There is no rule of law which requires a witness to be absolutely positive in his statement of fact. The positive witness ■ is often entitled to less consideration than • the more cautious.”

See, also, Abbott v. Church, 288 Ill. 91. (123 N. E. 306, 4 A. L. R. 975, and note).

The weight of the evidence of this witness was for the jury, and sufficient, if they believed her. In addition to this, the defendant’s fleeing hurriedly from the scene, with a gun in his hand, and passing near the deceased lying on the ground in a helpless condition, and defendant’s concealment, were proper circumstances, with others, to be considered by the jury as indicating guilt. It may be true that no person directly charged defendant with the commission of the crime as a reason for flight, but the circumstances just related, and all the circumstances, in the case, were such as to charge him therewith: that is, from them, he had reason to believe he would be apprehended as the perpetrator of the crime. Flight has been held to be prima facie indicative of guilt. State v. O’Callaghan, 157 Iowa 545, 554. We do not understand appellant to complain of the law as laid down by the court in regard to flight, except that they contend that there is no evidence of flight. It is further contended by appellant that the witness Mrs. Enos was not asked by the State to describe the kind of a gun she saw defendant have. The argument is that it may have been a shotgun, and that it should be shown that the gun was such a one as the bullets indicated was used. It could readily have been shown what kind of a gun it was, by simply asking the witness. Under defendant’s theory, it would have been a circumstance in his favor to have asked and shown that it was a shotgun, if such is the fact. But a pistol or revolver is quite commonly called a gun. Furthermore, if the jury believed that the defendant was the person who was seen in flight by Mrs. Enos, they must have found that defendant was the party who did the shooting, and ivas in the room Avhere revolver bullets and cartridges Avere found. Under these, and all the circumstances, it would be a proper inference for the jury to believe that the gun Avas a pistol. Considering all the evidence and circumstances, Ave think there Avas a jury question, and that the verdict is sustained by the evidence.

2. It is contended by appellant that the .evidence conclusively shoAvs that the defendant, if it Avas the defendant, or AArhoever it Avas who did the shooting, Avas acting in self-defense. To this Ave cannot agree. The circumstances before set out, as to the breaking in of the door by deceased, and the position of the bullet holes, and so on, are relied upon to sustain the contention. At the most, it Avould be a jury question. The trial court submitted the question of self-defense to the jury. This is an affirmative defense, in a sense. The jury could have found that deceased, at the time of the shooting, was not armed. The evidence shows that he had dropped the chair in the trunk room; but Avhether defendant was in danger, or Avhether to his apprehension he Avas, and whether defendant Avas justified in using a deadly weapon in a deadly manner Avhen his assailant was not armed, and the other elements going to make up the defense of self-defense, were questions for the jury. There was evidence that deceased, in breaking the door, was angry, and there was evidence tending to shoAv a scuffle in the room Avhere the shooting occurred. These matters Avere doubtless taken into consideration by the jury in arriving at a verdict of manslaughter.

8. It seems to have been the desire of defendant that the State should ha\re put the Avife of deceased on the stand as a witness. It appears that she Avas a Avitness before the grand jury. It was shown that she was present at the trial. Appellant cites authority from other jurisdictions, holding that a prosecuting attorney may not select and call only such witnesses as are most favorable to the prosecution, where there are others who are in a. position to know, and do, in fact, know, as much about the transaction, etc.; but these cases recognize that there are times when the State is not required to produce at the trial those who may be intimately acquainted with the facts. The authorities hold that the State is required to introduce proof of the whole transaction, but that it is not necessary to use all the witnesses, and that the State may have good reason to question the truthfulness of some of the witnesses. It is claimed by the State that there were improper relations between the wife of the deceased and the defendant, or whoever the party was in the rooms before .this trouble began,- and they had reason to believe that she would shield herself from such an embarrassing situation, and would be unlikely to tell the truth about it. There is nothing to indicate that the State designedly omitted to prove any fact in regard to the killing. Under the evidence,' Mrs. Parios was not in the room where the shooting occurred, at the time it took place. The evidence before set out shows that, when last seen, she was in the trunk room, and that was before the shooting; and further, that she must have been on the stairway outside, when the shooting occurred. She had reached the foot of the stairway at the time her mother did; so it would appear that everything she could have testified to in regard to the shooting was testified to by her mother. We think the ruling is sustained by our own oases. State v. Middleham, 62 Iowa 150, 153; State v. Dillon, 74 Iowa 653, 655. It was said in the Middleham case, quoted in the Dillon case, that:

“The failure of the State to produce all witnesses who testified before the grand jury is not a wrong, and creates no presumption of wrong.”

4. In connection with the last proposition, the defendant asked an instruction which ivas refused, to the effect, in substance, that, if the State had proved that a witness was present, and in a position to have knowledge of the perpetrator of the act, and the name of such party was on the indictment, it should be considered by the jury as tending to show that her testimony would be adverse to the State. The discussion in Paragraph 8 of the opinion, and the holding that there is no presumption of wrong, dispose of the assignment of error in regard to the refusal to give such an instruction. But, for the other reasons given, we think there was no error at this point.

5. The indictment charged murder in the first degree. The trial court said,'in one of its instructions:

“That, by reason of a former trial, the defendant in this case cannot be tried or convicted for the crime of murder in the first degree, and you should in no manner consider the offense of murder in the first degree.”

The court instructed in regard to murder in the second degree and manslaughter. Appellant contends that this instruction was error, because it indirectly and inferentially told the jury that, on the former trial, defendant had been convicted of murder in the second degree. The facts in regard to the former trial -and the alleged conviction are not pointed out in argument, and we do not find that there is any evidence in regard to this. We assume, from the arguments, that there was a prior conviction for second-degree murder, and a new trial granted for some reason. From the language' used, a jury would not be likely to infer that defendant had been convicted of second-degree murder. We are unable to determine from the record just how the attention of the court ivas called to the matter, or whether he took notice of it himself. No complaint is made, of course, that the court did not submit the question of first-degree murder to the jury. It is possible that the court could have used some other language, such as that, under the record, the jury should not consider first-degree murder. But, after all, it was a matter of defense for the defendant to show that he had been acquitted of the charge of murder in the first degree, and, had the court not instructed as he did, it would have been necessary for the defendant to prove that he had been acquitted of murder in the first degree. This he could only do by proving the former verdict; so that, had he done so, it would have called the attention of the jury more directly to the fact than did the court in its instruction. Furthermore, had the jurors had sufficient legal learning to reason the matter out, it is not likely that they wpuld so lightly regard their own oaths that they would convict or be influenced because some other jury had rendered a certain verdict; and this is especially so when the verdict was not allowed to stand.

6. Error is assigned because of the ruling of the court in permitting Mrs. Enos to state that deceased called to her from the stairway landing, and that deceased said:

“Ma, come up here and see for yourself.” It argued that.the statement was not made }n presence of the defendant, and is not binding upon him, and that it is not a part of the res gestae. There is no testimony in the record, unless it be by inference, as to what deceased wanted his mother-in-law to see. The record is:
“There was nothing else that occurred that attracted my attention particularly on that morning, after she [Mrs. Parios] left, only her husband calling me up. Q. Just tell us how that was, and what was done at that time. A. Well, he says, 'Ma, come up here and see for yourself,’ and I went up.
“Mr. G-illoon: We move that the answer be stricken out, unless it was in the presence of the defendant, as not binding on him, — I mean, in the presence a.nd hearing of the defendant. We object to the question for the same reason.
“Court: Overruled. (Exception.) ”

It will be observed that there was no objection to the question. It was as apparent when the question ivas asked, and before the answer, that the question was objectionable, if it was objectionable, as later; because the witness had stated, before this question was put, that deceased was calling her up, and she was then asked to state how it was. We have often ruled that a party may not ivait and take his chances, and, if the answer is unfavorable, then object. The objection was not timely. But can it be said that the statement Avas not in the presence and hearing of the defendant? At most, the deceased was not then more than about 20 feet from the party who' did the shooting,, Avho, the jury has found, Avas this defendant. They AArere much closer than was Mrs. Enos. Naturally, deceased would speak louder in calling to Mrs. Enos at a greater distance than he Avould to the party in the room closer. The evidence shows’ that deceased, from’the same position on the landing, was, at about the same time, talking through the door to the party inside. We think the circumstances Avere such that it AAras for the jury to say whether, under the conditions, the defendant was in a position to hear. We think, too, that it AAras a part of the transaction, and res gestae. It Avas not the relation of a past- event, with opportunity for fabrication. It Avas before the shooting, and was the first thing to call Mrs. Enos’ attention to matters that immediately led up to the shooting, and Avhich were detailed by her. He called to her to call her attention, and she then went over. It shoAved the presence of deceased at that point, as the evidence of Mrs. Parios’ leaAÚng the lunch, nearly an hour before, shoAAred her presence in the vicinity of the transaction. The Avhole tragedy occurred in the space of a few minutes. His calling to Mrs. Enos was the cause of her going to him. We said in State v. Peffers, 80 Iowa 580, 582:

“We think the testimony Avas properly admitted as a part of the transaction Avhich led to the killing of Gathers. It explained, to some extent, his reason for being with Mrs. Peffers when the affray occurred, and Avas so far a part of the res gestae as to be competent. State v. Cross, 68 Iowa 186. It may be, as claimed, that it would naturally be inferred from the remark of Cathers that he had been invited by Mrs. Peffers to follow her, but the jury had before them all the facts upon which the remark was based, and knew whether it was well founded.”

We think there ivas no error at this point.

7. It is contended by appellant that there was misconduct on the part of the assistant county .attorney in his closing argument to the jury, in that he said that defendant .was as guilty as hell, and that he shot to kill. We think it was not improper for counsel to draw his conclusion, from all the circumstances, that he shot to kill. It may be ’ we ought not to take the time or space to discus.s - this question at any length, because there was no objection or exception to the remark, and it appears that an affidavit, or perhaps two, were filed by the State in resistance; but the record as to the affidavits is not clear as to just when they were filed, or whether they are a part of the. record. The trial court had the advantage in knowing what the real situation was in this respect. Doubtless, counsel for defendant insisted to the jury, and gave their opinion, that defendant was not guilty, and tried to convince the jury that he was not. There is no direct showing of that fact. The trial court heard all the arguments, and, so. far as we know, may have concluded that the statement by the county attorney was in answer to argument for defendant.. We held, in State v. Cameron, 177 Iowa 379, 381, opinion by Salinger, J., that it will be presumed, nothing appearing to the contrary, that argument by a public prosecutor was a legitimate response to an argument for the defendant. At any rate, the court was on the ground, and, in overruling the motion for new trial, held that there was no prejudice. State v. Burns, 119 Iowa 663. In State v. Shultz, 177 Iowa 321, 326, it was held not erroneous for the prosecutor to state that he had no doubt of defendant’s guilt, which is equivalent to saying that he believes, or is of opinion, that defendant is guilty. See, also, State v. Peirce, 178 Iowa 417, 440. Appellant cites the Peirce case, at pages 443 and 444, as holding that, where the argument is clearly improper and naturally prejudicial, no failure to object, nor act of the court, can be held to effectuate either waiver or cure. But, for the reasons given, that principle does not apply to the statement made in this case. .

8. In describing conditions in the room, some of the witnesses referred to a wet spot on a sheet on the bed, saying that it was about a, foot across, and that, after it was dry, it was of a yellowish color. It is thought by appellant that this was prejudicial, for that it created an undue prejudice in the minds of the jury. Much of the evidence in regard to this went in -without objection. It was all stricken out later, and the court in Instruction No. 84, specifically instructed the jury not to consider any evidence rejected or ruled out or stricken out, and that the jury should not allow any such rejected matters to make any impression upon their minds, or have any weight whatever in making up the verdict, but that they should decide the case from the evidence submitted alone, independent of all other consideration, and acting fairly and impartially, etc. We see nothing in this calculated to excite the passions of the jury. It was cured by striking it out, and by the instruction.

9. Many of the instructions are complained of. Some have already been noticed. The argument in regard to them is brief, and we think there is no substantial merit in the objections thereto, so that we shall notice complaints as briefly as maj"- be. In one of the instructions on the subject of self-defense, the court said that the jury ,was to take into consideration “whether or not defendant was warranted in doing what you may find from the evidence he did do, at the time and place in question.” It is complained that by this the court left it to the jury to guess and conjecture on what may have happened, instead of confining them to what the evidence in the case showed did happen. The court simply left it to the jury to determine what the defendant did, if he did anything, as shown by the evidence. Had tlie court confined himself to telling the jury what did happen, as suggested, he would have assumed a fact as having happened. We do not understand this to be permissible in a criminal case.

By Instruction No. 9, in regard to circumstantial evidence, the court stated that there ivas no direct evidence,— that is, no evidence of eyewitnesses to the alleged shooting, — and that the State must rely upon circumstantial evidence. It is thought that this was erroneous, because there was an eyewitness, in the person of Mrs. Parios. This has been disposed of by prior discussion.

Instruction No. 10 is complained of, for that it is thought that it assumes that defendant did take the life of Parios. We do not so read the instruction. A sentence or clause is separated from the rest by the defendant, upon Avhich the argument is based. The subject of the instruction is that, if the jury find from the evidence, beyond a reasonable doubt, that defendant took the life of Parios, they should consider and determine Avhether or not, at the time, he was acting in self-defense, and that, in determining whether or not he was so acting in self-defense, the burden is' not upon the defendant to so slioAAr, but Avas upon the State to shoAV, beyond all reasonable doubt, that he Avas not acting in self-defense. Defendant Avas claiming self-defense at the trial, and is doing so here. We do not see how the court could have stated it differently. The court left it to the jury to determine Avhether defendant did take the life of Parios, and then stated the laAv of self-defense. Some of the later instructions are complained of, for that it is thought that the State Avas relieved of proving that defendant was not acting ifi self-defénse. The court had properly covered it once, and it Avas not necessary to repeat that statement in every other instruction on the subject.

After having left it to the jury to determine Avhether defendant did the shooting, — and the jury did so find, Avhich Avould necessarily be a finding that the person in the room Avith Avhom Parios Avas talking Avas the defendant,— the court said that no mere AVords would, justify the defendant in taking the life' of Parios, if the jury should find from the evidence that defendant did take his life. The jury was also told in this instruction that, if Parios made an assault upon the defendant without a dangerous and deadly weapon, this would’not justify the shooting, unless the attack was of such a character as to lead him, while acting as a reasonably prudent or cautious person, under similar circumstances, to believe that his own life was in danger, or that-he ivas in danger of great bodily injury, etc. The complaint of this last is that it assumes that Parios did not have a weapon. We do not think it does, and there was evidence that Parios dropped the chair in the trunk room, before the shooting in the bedroom.- There was evidence upon which to base such an instruction. We have not given all the instructions on self-defense, but only answered those parts selected for attack by the defendant.

Instruction No. 18 does not assume that the defendant did the shooting. This instruction is on the question of intent, and the court, in at least two places, qualified his language by saying, “If you should find he committed the act.”1

The objection to Instruction No. 19, on malice, is that it states that malice may be express or implied, but does not define what is express, or what is implied malice. We set out in full Instructions Nos. 19 and 20.

“19. Malice, within the meaning of the law, includes not only hatred and ill will, but also any other unlawful or unjustifiable motive which inspires one person to injure another, and it may be inferred from the willful doing of an unlawful act, within just provocation or excuse, with intent to injure the person of another. It does not necessarily mean hatred or ill null, but may be simply a vicious and wanton disregard of another’s rights. Malice may be express or implied.
“20. Express malice may be shown by the exercise of such conduct in a transaction complained of as to indicate g wicked mind of malignant heart. Malice may be implied from the unlawful use of a deadly weapon in a manner calculated to take the life .of another human being. A deadly weapon may be any instrument capable of producing death from the manner in which it is used in a given case.”

No instructions on this subject'were asked by the defendant, and it seems to us there-can be no just cause of complaint in regard to this matter.

In Instruction No. 23, the court told the jury that, if they should find from the evidence, beyond all reasonable doubt, that defendant was not acting in self-defense, and, using a revolver, assaulted deceased and shot him, and the deceased died as a result of the shooting, and there was malice aforethought, either express or implied, and so on, then, if the jury should so find, defendant would be guilty of murder in the second degree. We have not given it exactly as worded, because the only complaint is that it did not state upon whom the burden of proof rested; but the court had thoroughly stated that in previous instructions. This same complaint is made of other instructions.

It is said that Instruction No. 29, standing alone, assumes that the defendant is guilty of some crime charged in the indictment. This instruction has reference to motive. The instruction says no more than that, if the evidence fails to show any motive, or if it does, these are circumstances to be considered in making up the verdict.

The opinion is too long. We have considered some matters that perhaps do not really deserve attention. .There may be some other matters which have not been- noticed. All have been considered. After considering the whole case, we are of opinion, that no prejudicial error appears. The judgment is, therefore, — Affirmed.

Weaver, C. J., Evans .and Salinger, JJ., concur.  