The defendants being on trial under an indictment for' murder, the Court, at the request of the prosecution, charged the jury “that killing being shown, the law throws the burden of showing the justification or other excuse of defendants devolves upon the defense.” The wording of the instructions is very awkward; but the meaning is apparent, and could not have misled the jury. It could not well have been understood otherwise than as stating, that if the killing by the defendants was shown, the burden of proving a justification or excuse was upon them. But section one thousand one hundred and five of the Penal Code provides that “ upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.” The defendants object that the instruction as given omits the qualifying portion of this section, and was for that reason erroneous. If there was anything in the evidence for the prosecution, tending to show that the offense amounted only to manslaughter, or that the defendants were justifiable or excusable, the instruction, as given, could not be supported.
But after a careful examination of the evidence for the prosecution, we find none whatever tending to show that the offense was only manslaughter, or that the defendants *8were either justifiable or excusable. The evidence was that while the deceased was passing along the street, one of the defendants came to the door and fired a pistol shot at him, the deceased being wholly unarmed, and having his back towards the said defendant; that thereupon the deceased clinched the defendant, and seized the pistol with one hand and the other hand of the defendant with the other; that while they were in this position, the other defendant came from a contiguous building, and shot the deceased in the back or side; that thereupon the first-named defendant shot the deceased in the neck, breaking the spinal column and inflicting a mortal wound. There was nothing in this tending in the remotest degree to show that the crime was only manslaughter, or that the defendants were either justifiable or excusable.
There was nothing, therefore, in the evidence for the prosecution which required the Court to qualify the instruction; and the defendants were not damaged by the omission.
The Court also instructed the jury as follows: “If the jury believes from the evidence that both defendants entered into a conspiracy to feloniously shoot and kill Ah Sam, the deceased, and that they both feloniously shot at him in pursuance of that' agreement, and that the deceased died of the wounds so inflicted by one or both of the defendants, the jury will find them guilty of murder in the second degree.” The defendants object to this instruction on the ground that upon the facts which it assumes, the jury should have been instructed to convict the defendants in the first, instead of the second degree. The obvious answer to the objection is that if the instruction was more favorable to the defendants than it should have been, they could not have been damaged by it.
The only remaining point is that the Court erred in admitting evidence tending to impeach the witness Orea by proof of contradictory statements made by him, without a proper foundation having been first laid. But the point is not tenable. We think a proper foundation was laid for the admission of the evidence.
*9Judgment and order affirmed. Remittitur forthwith.
Neither Mr. Justice Rhodes nor Mr. Justice Niles expressed an opinion.