I think the instruction referred to in the opinion was erroneous. It ignores the fact that the defendant may have declined any further struggle immediately prior to the firing of the shot. Although he was the assailant, if he in good faith “endeavored to decline any further struggle before the homicide was committed, the homicide was justifiable”: Pen. Code, sec. 197, subd. 3. Whether he did so decline further combat was a question of fact for the jury to determine on the evidence. It cannot be said that there was no evidence tending to show such a declination. The parties met right at the back door of the saloon, and the deceased immediately, grabbed the defendant by the arms, and pushed,him back several feet to the billiard-table, and was pushing him over against it when the fatal shot was fired. What occurred beyond what has been stated, or what, *410if anything, was said by either party after they met at the rear door of the saloon, and before the shot was fired, does not appear in the evidence. If the defendant did decline further struggle, he was justified in shooting the deceased if he believed that he was in danger of receiving great bodily injury. This element was also omitted from the instruction.
The court instructed the jury that “to reduce a felonious homicide from the grade of murder to that of manslaughter, upon the ground of sudden quarrel, or heat of passion, the provocation must be of such a character as would be naturally calculated to excite and arouse the passions; and it must appear that the party acted under the smart of his sudden passion and resentment.” Here the element of malice is entirely wanting in the charge, yet without malice there can be no murder. The instruction is erroneous because it in effect tells the jury that, although the defendant acted under a heat of passion, it could not be manslaughter unless the provocation was of such a character as would naturally excite and arouse the passions of an average man. The question is not whether some other person would probably have been excited and thrown into a passion by similar circumstances, but whether the defendant acted “upon a sudden quarrel or heat of passion”: Pen. Code, sec. 192. What will excite and anger one man might simply amuse another. The court gave this instruction: “Upon the law of self-defense, I instruct you as follows: To justify the killing of another in self-defense it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline further trouble before the fatal shot was fired. If the jury believe from the evidence that the defendant, George Bruggy, at the time he fired the fatal shot which killed the deceased, Dick Louison (if he did fire such shot and kill him), believed, and had good reason to believe, that his life was in imminent danger at the hands of said Dick Louison, then I charge you that the defendant was justifiable in firing said shot, and you should acquit him.” This instruction is loaded down with errors of a glaringly prejudicial character. The first part of the instruction has been condemned here several *411times: People v. Flahave, 58 Cal. 250; People v. Gonzales, 71 Cal. 577, 12 Pac. 783; People v. Dye, 75 Cal. 113, 16 Pac. 537. The last part of the instruction in effect tells the jury—and no doubt they so understood it—that unless the defendant believed, and had good reason to believe, that his life was in imminent danger, he was not justifiable in firing the shot, thus ignoring the question of appearances, and fear of great bodily injury: People v. Flanagan, 60 Cal. 4, 44 Am. Rep. 52; Pen. Code, sec. 197. If these instructions were erroneous (and I think it must be conceded that they were), they were not cured by other instructions on the same point, although the latter may have been correct: People v. Anderson, 44 Cal. 65. The court in another instruction used this language: “If the murder was deliberate and premeditated, it was murder of the first degree; otherwise it was murder of the second degree.” In calling the attention of the jury to the fact that the defendant had been a witness in his own behalf, the court said: “It is proper for the jury to consider whether this position and interest [the defendant’s] may not affect his credibility, or color his testimony.” The peculiar terms employed here seem to indicate an intimation by the learned judge that the defendant’s interest in the case had evidently caused him to “color his testimony.” The defendant requested the court to give an instruction on the question of reasonable doubt, which has been several times approved here. It was refused on the ground that it had already been given in the charge of the court, and it is true that the substance of the instruction was given by the court in its own charge, but it was given in such an attenuated form that I think the defendant may justly complain, although standing alone, perhaps, it could not be held to be prejudicial. It is true some of the instructions I have referred to have not been criticised by counsel for the appellant in his brief, but they were all excepted to in the court below, and I think, considering the importance of the case, it is the duty of our court to notice them, whether defendant’s counsel refers to them or not. The learned judge of the court below doubtless would have corrected the instructions if his attention had been called to the matters omitted therefrom, but I am unable to see how it can be claimed that other instructions given on the same subject cured the errors in those referred to.