I concur in the judgment. The evidence clearly shows that the fifteen or sixteen acres which the wife of deceased claimed as being a part of her pre-emption was within the inclosure of defendant; that defendant had been in the actual possession of it, in a common field with other lands held by him, for eighteen years; that he had sown it and the whole field with grain, which was nearly ready to harvest, when some one ran a fence, consisting of two wires, stretched upon pickets, set fifteen or eighteen feet apart—a mere sham of a fence—'through his field, cutting off from the rest the sixteen acres claimed by the wife of deceased. It further shows that when defendant had finished heading the balance of his grain he undertook to go through this wire fence with his headers to harvest that sixteen acres. He was as fully in possession as he had ever been, and had a right to harvest that crop. When he had reached the fence, and his header was about to pass *40through, the deceased came up on a gallop and undertook to prevent it. In the combat that ensued (which in one sense may be called a mutual combat), the evidence is clear and positive that the deceased was the assailant. He had drawn his pistol and fired at least two shots, one at the defendant and one at his son, both of which took effect, before the defendant fired upon him. The firing then became mutual, and both fired until their pistols were empty. When defendant commenced firing he was already smarting under the sting of a severe and dangerous wound, and saw the blood flowing from a wound iir the head of his son (whose whole effort in the case had been to prevent a collision), and an effort being made to again fire upon the son.
Not being the aggressor, the defendant was not bound to retreat or decline further struggle. He was an old man, seventy years of age, at first acting in defense only of his own property, without the use of deadly weapons, and when attacked, acting in defense of his own life and of that of his son. In my judgment, it is clearly a case of justifiable homicide, under section 197 of the Penal Code.