An information was filed by the district attorney in the Superior Court of Monterey County, charging the defendant with *124the crime of murder, and the trial resulted in a conviction of the crime of manslaughter. On the appeal, several errors are assigned to the proceedings in the Court below, which we will consider in this opinion :
1: The first objection taken by the defendant on the trial was in the form of a challenge to the panel of trial jurors drawn to serve at the July session of the Superior Court of Monterey County. It was claimed that there was a substantial departure from the form prescribed by the statute in respect to the drawing of the jury, in this: that the clerk failed, in his certificate, which was attached to the list of jurors drawn, to state the date of the order directing such drawing.
Section 219 of the Code of Civil Procedure provides, that, “ after the drawing shall be completed, the clerk shall make a copy of the list of names of the persons so drawn, and certify the same. In his certificate he shall state the date of the order and of the drawing, and the number of jurors drawn, and the time when and the place where such jurors are required to appear. Such certificate and list shall be delivered to the sheriff for service.” The order itself was introduced in evidence, from which it appears that it was properly made and entered on Tuesday, June 15th, 1880.
The only purpose which could be subserved by incorporating in the clerk’s certificate the date of the order would be the identification of it. The Code does not require that it shall be made any given number of days before the session of the Court, or at any stated time before the jurors shall be required. Section 214 of the same Code provides, that, “ whenever the business of the Superior Court shall require the attendance of a trial jury for the trial of criminal cases, * * * and. no jury is in attendance, the Court may make an order, directing a trial jury to be drawn and summoned to attend before said Court ”; and the succeeding section provides, that “ immediately upon the order mentioned in the preceding section being made, the clerk shall, in the presence of the Court, proceed to draw the jurors from the jury box.”
It appears from the transcript, that' the order was made on the 15th day of June, and it further appears that the drawing took place on that day. The proceedings were in all respects *125regular, and in accordance with the provisions of the Code. "Wc are, therefore, of the opinion that the mere omission of the clerk to insert in his certificate the date of the order was not a fatal one, and therefore the Court below committed no error in denying defendant’s challenge to the panel of trial jurors.
• 2. The second point made on this appeal is, that the Court erred in the mode pursued by it in selecting a jury. It was claimed on the trial, that it was defendant’s right to have twelve jurors in the box, before he should be at any time required to exercise his right to challenge a juror, either peremptorily or for cause. This question has been passed upon twice by the Supreme Court, and both times adversely to the position now taken on this appeal. In the case of the People v. Scoggins, 37 Cal. 676, Mr. Justice Crockett examines the provisions of the statute relating to the selection of jurors in both civil and criminal cases, and after clearly defining the method to be pursued in each case, he says: “ In order to avoid all misconstruction on this important point of practice, we repeat, that in a criminal action twelve names must be drawn from the jury box, and the defendant may examine each separately, and exhaust his challenges for cause, before challenging any one peremptorily. If he should accept say six, and challenge six, those accepted must then be sworn, and six additional names must be drawn and presented for examination, with which the same process should be repeated, and so continued until the jury is complete. In the more recent case of The People v. Russell, 46 Cal. 121, the same Court says: “ The first ground of error relied upon is, that the Court eri’ed in requiring the defendant to exercise his right of peremptory challenge prematurely, and before twelve jurors had been procured whom the Court decided to be competent and qualified. But the action of the Court was in strict accordance with the ruling of this Court in People v. Scoggins, 37 Cal. 676, and was correct, unless that case is to be now overruled. After a careful consideration of the question, we adhere to the ruling in that case as to the method to be pursued in impaneling a jury in a criminal action.” These cases settle this question of practice, and we adhere to the rule laid down by them.
3. The third point presented on this appeal is, that the Court *126erred in sustaining certain objections to the testimony of Mrs. Susie Mattart, the widow of the deceased. It appears from the evidence that a knife and piece of iron were found in the boots of the deceased when his boots were taken off, which knife and piece of iron the witness made some disposition of. She was asked: “Did you put them away of your own volition?” To this question an objection was made by the district attorney, and the objection was sustained by the Court. She was also asked: “ If any one directed her to put them away ? ” and to this question an objection was interposed on behalf of the people, which was also sustained. We are of the opinion that the inquiry was an immaterial one, and cannot see how the defendant was prejudiced by the action of the Court. If the question had elicited the reply that the knife and piece of iron were put away by the direction of the deceased, we cannot see how that fact would have been of any benefit to the defense.
4. The homicide was admitted, but there was a plea of justification. It was claimed on behalf of the accused, that the deceased had made threats against the life of the accused. Indeed,. this fact was fully established by the dying declaration of the deceased, which was as follows:
“April 22nd, 1880.
“Ifeel I may die soon, and cannot die till I have told the truth. I told those men I had never threatened his life or packed a knife. I have, and feel now without a just cause, and may God forgive me for all. Geo. W. Mattaet.”
This sufficiently proved the threats.
But are mere threats sufficient to justify a homicide in any case? In case of the The People v. Scoggins, 37 Cal. 676, the Court says: “If the threats of the deceased had been-communicated to the defendant before the killing, the evidence would have been clearly competent. A person whose life has been threatened by another, whom he knows or has reason to believe has armed himself with a deadly weapon, for the avowed purpose of taking his life or inflicting a great personal injury upon him, may reasonably infer, when a hostile meeting occurs, that his adversary intends to carry his threats into execution. The previous threats alone, however, unless coupled at the time >vith an apparant design then and there to carry them into *127effect, will not justify a deadly assault by the other party. There must be such a demonstration of an immediate intention to execute the threat as to induce a reasonable belief that the party threatened will lose his life or suffer serious bodily injury, unless he immediately defends himself against the attack of his adversary. The philosophy of the law on this point is sufficiently plain. A previous threat alone, and unaccompanied by any immediate demonstration of force at the time of the rencounter, will not justify or excuse an assault, because it may be that the party making the threat has relented, or abandoned his purpose, or his courage may have failed, or the threat may have been only idle gasconade, made without any purpose to execute it.”
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. The Supreme Court says, in the case of The People v. Arnold, 15 Cal. 481: “ It is clear that the mere fact that one man threatens to kill another is no sort of justification to the latter to kill the former. The threats must be shown to have been communicated to the accused before they are admissible for any purpose. * * * But when a rencounter occurs between two persons, one of whom is killed, and the witnesses to the difficulty differ, or the circumstances are equivocal as to which one of the two commenced the affray, then the fact that one of the parties had previously procured a weapon for the avowed purpose of using it against the other— the weapon being found at the place of the affray—is a circumstance tending to show that the purpose was fulfilled, and hence is proper for the consideration of the jury.”
We will now look at the evidence for the purpose of determining whether the facts of the case were such as to make the evidence of the threats of the deceased material, even if the same had been communicated to the accused before the homicide.
John Campbell, a witness sworn on behalf of the prosecution, testified that he was present and witnessed the shooting—was within fifteen or twenty feet of the parties, and could see them plainly. “ I heard the deceased and defendant talking. I stood up and looked at them. Heard the defendant say to deceased, *128to come out with whatever he had. Mattart (the deceased) told him he had nothing to come with except a pocket-knife. Mattart was holding an armful ofioood at that time. Defendant then had his pistol in his hand. * * * Defendent then told Mattart to look out, and Mattart then threw his armful of wood down, and threw up his arms, standing still, and telling the defendant to shoot if he wanted to. Defendant immediately fired three shots at the deceased. At the first shot, Mattart doubled up and turned towards the house—turned around, like; when the second shot was fired at him, he was kind of turning around, kind of doubled up. The three shots struck him before he got turned around. They were fired very quickly. The deceased stood facing the defendant, about eleven feet from him, and made no perceptible advance on the defendant. I did not see the deceased have any weapon or arms of any kind.”
. W. M. Kent testified that he got a horse to ride for a physician which he, the witness, let the defendant have. Witness got another horse, and caught up with defendant before he reached Salinas. The defendant turned in the saddle, and said to witness, “ I expect they will punish me like hell for this.”
Louis Meyer was present, and saw the defendant kill George Mattart. His evidence is substantially the same as that of the first witness.
A. Higbia testified substantially to the same facts, as do also A. Blood and Daniel Bcagan.
But leaving out of view the strong and concurrent testimony of all these witnesses, who were very near the scene of the homicide, and saw everything that occurred, and accepting the evidence of the defendant himself as the truth, and we have then a case which presents no circumstances of justification. The defendant was asked:
“ Q. Did Mattart, on that occasion—the occasion of the shooting—make any effort to draw a pistol or a knife, or anything else, before you shot him ?
“ A. Not that I seen
“ Q. During the firing of these three shots, did Mattart make any perceptible advance towards you ?
“ A. I don’t think he did. I can’t say exactly how he held his hands, but he did not hold them up as testified to by Campbell and others.
*129“ Q. What reason had you to suppose that he would draw anything on you, when he had made no- demonstration of drawing any weapon on you 2
“ A. I was well satisfied that he had the weapon.
“ Q. Did you see it on his person?
“ A. Not at that time.
“ Q. Did you see him- make any effort to go to his boots to draw that knife or anything else ?
“ A. No, sir; he had not very much of a chance, because pretty quick after he threw his wood, I had my pistol in my hand, and I suppose the reason he did not go after his weapon was because he was afraid to.”
This is enough of the evidence of the defendant to show that he was in no peril of life, or danger of serious bodily injury, at the time he did the shooting. The deceased was not in a condition to injure the defendant at the time he was approached by the defendant. He then had, as all the evidence shows, his arms full of wood. The difficulty was not begun by the deceased ; but, on the contrary, the defendant was the aggressor throughout, and by his own conduct invited a difficulty with the deceased. There is, therefore, not the shadow of legal, justifiable self-defense in the case. Indeed, the verdict of the jury was a most lenient one, and was tempered with a great degree of mercy; for certainly the evidence would have justified a conviction of a higher crime.
5. The defendant, in the course of his examination, was asked if any criminal intimacy had ever existed between him and the wife of the deceased. Objection was made to the question, and the objection was sustained by the Court. We do not see how the inquiry could have affected the question of guilt or innocence of the accused, and there was no error in the ruling of the Court on that question.
6. There is but one other point in the case (independent of the instructions) which we deem it necessary to notice, and that is, the objection made to evidence offered by the prosecution respecting the character of the deceased. It is a sufficient answer to this objection to state, that the character of the deceased was first put in issue by the defendant, and it was in answer to such inquiry that the testimony on this point was in-*130traduced by the prosecution. There was, therefore, no error in allowing the evidence to go in.
7. The last point involves the correctness of the charge of the Court, and the instructions to the jury. We have examined that part of the transcript with great care, and are obliged to say, in justice to the learned judge who presided at the trial, that the charge to the jury is a very clear and able statement of the law of homicide. It is a long charge, completely covering all the points in the case, and is, in our opinion, entirely correct.
We find no error in the proceedings which'demands, or which would justify, a reversal. The judgment-and-order are-therefore affirmed.
Myrick, J., and Sharpstein, J., concurred.