— I think the defendant waived his right to complain of the ruling of the court with respect to the statement made by Moore at the restaurant immediately after the shooting, by withdrawing his objection to the questions asked; but if this were not so, the error was cured by the court in its instruction to the jury, that the defendant was not bound by anything Moore may have said, not in his presence and hearing.
For the reasons stated in paragraph 4 of the opinion, however, and on account of other errors, not noticed in the opinion,! think the defendant was prejudiced by the rulings of the court, and that he is entitled to a new trial. The written statement of Charles F. Smith contained evidence of conversations, other than the conversation inquired into in his examination in chief, — statements which were clearly hearsay. The testimony of Asche as to what the deceased stated before he met the defendant prior to the homicide may not have had any important bearing on the case in the minds of the jury, but it was, nevertheless, erroneous^ admitted. The instruction of the court that “the killing must take place while the *170person killed is in the very act of making such unlawful and violent attack, and under such circumstances that the person assailed cannot resort to other legal means to save and protect himself, except retreating or running, which he is not bound to do,” omits the element of appearances on which the party assailed is entitled to act, provided for by section 197, subdivision 2, of the Penal Code. (People v. Flanagan, 60 Cal. 2; 44 Am. Rep. 52.)