OPINION OF THE COURT.
ABBOTT, J.1 The first three assignments of error are based on the claim that the defendant‘was forced to go to trial without time for preparation by counsel and the procurement of witnesses. Counsel for the defendant concede that the applications for continuance were addressed to the discretion of the court, and that only an abuse of that discretion would warrant this court in reversing the Trial Court for its denial of the applications. The case, although of the highest moment, was simple. There was no denial that the defendant killed Curtis, but it was claimed that the homicide was justifiable on the ground of self-defense. The law of that defense is not complicated or unfamiliar. More time could have been needed only to obtain witnesses, but it clearly appeared that as a result of the prompt action of the authorities, all who were on the train and present when the homicide occurred, and indeed all the passengers who could by any reasonable probability have thrown any light on the matter, were present and testified. Delay in all probability would have resulted in less evidence, rather than more, unless the witnesses, most of whom were not residents of New Mexico, had been detained an unreasonable length of time, surely they who were, doubtless were much incommoded by their detention as it was, had some rights which the court was bound to consider. It did not appear, and is not here claimed, that there actually was any evidence in existence which would naturally have led to a result more favorable to the defendant if it had been produced, but it is urged that there may have been such evidence. In view of the course of procedure in criminal cases prevailing in some parts of the United States, it is not very surprising to find that promptness, in bringing on and carrying through a trial in a criminal cause should take on the aspect of abuse of discretion by the judge responsible for it to those who have become accustomed to regard delay, instead of the speedy trial guaranteed by the Constitution, as one of the valued and inalienable rights of the accused. -It seems clear, however,, that if the object of the trial in the case at bar was not to afford the defendant every chance to escape conviction, but to give to the jury all the circumstances of the homicide that were known to human beings, the best possible time for it was chosen, and the Trial Judge should be commended rather than censured for his course. Territory v. Kinney, 3 N. M. 147; Territory v. Ye Dan, 7 N. M. 439; “Cyc.” 9, 167.
2 The fourth assignment of error relates to the admission in evidence of a diagram made by one -of the witnesses, a physician, who had examined the body of Curtis, and which it is claimed was shown to have been ineor-rect, if certain other evidence offered by the Territory was true. The diagram was used to illustrate the-testimony of the witness and to enable the jury to better understand it. It w'as not claimed to be absolutely accurate.. Its incorrectness, if established, would affect the weight and not the admissibility of the evidence. The entire testimony of that or any other witness might have been incorrect or absolutely false, tested by other evidence in the case, without affecting its admissibility. It is for the jury to-decide which of two conflicting statements in evidence they will credit. Jones on Ev., See. 414.
3 The fifth, sixth and seventh assignments of error rest on exceptions taken to the admission of evidence relating to-the acts, words and the condition of the defendant shortly before the homicide, and which were made known to Curtis before the altercation between him and the defendant began and' were, in part at least, the subjects of that altercation. Ail! those circumstances leading up to and preceding the homicide, within not exceeding an hour as the evidence indicated,- must have been fresh in the' 'mind, and presumably influencing the conduct of Curtis, and the defendant, one or both in the collision between them. Indeed, it was that evidence which disclosed the motive of the reprimand Curtis addressed to the defendant and for the attack he says Curtis made on him which forced him to shoot in self-defense. To that extent the evidence was favorable to the defendant, as without it Curtis’s alleged angry aggressiveness toward the defendant would have been inexplicable, and perhaps incredible to the jury.
That the evidence was admitted on other grounds and was in part withdrawn was not reversible error if it was properly admissible on any ground. Jones on Ev., Secs. 138, 353; Hemmingway v. Chicago etc., Ry., 72 Wis. 42.
6 The admission of evidence that after the arrest of the defendant a knife and matches were found on his person or in his possession is made the basis of the ninth assignment of error. It was admitted for the purpose of accounting for marks on his clothing which he testified were caused by á shot he fired at Curtis. Its admission for that purpose was, we think, proper.
4 The instruction that a reasonable doubt is not a mere possibility of innocence, which is claimed to have been error, is well grounded in reason and authority. State v. Garrison, 147 Mo. 548; Smith v. People, 152 Mo. 522; Earl v. People, 73 Ill. 329; Blashfield Inst. to Juries 847, 852.
7 The assignments of error from the 12th to the 25th inclusive, omitting the 19th,• which was waived, relate to the right of self-defense and to justifiable homicide, and are baséd on instructions given and instructions refused. But for the testimony of the defendant that all the shots were fired before Curtis desisted from his assault on him, those questions would hardly have had a place in the case, since the evidence, aside from his, was to' the effect that Curtis was killed by a shot fired by the defendant when they were some distance apart, when he was retreating from the defendant with his back toward him, unarmed, and already twice badly wounded. Nevertheless, the instructions on self-defense and justifiable homicide gave the defendant the full benefit of his testimony, and besides, covered in his favor every point discussed in the brief here submitted in his behalf, with a single exception. On those subjects they were full and complete. So fax as the statutes of the Territory deal with them they were followed; and so far as general principles were applied, they were well-founded. We do not think it necessary to consider separately more than the single objection to which we have referred. The instruction which is to the effect that the right of self-defense does not exist for one who purposely induces an attack upon himself in order to be able to kill his assailant under the shield of self-defense is in substance what Blashfield' and Hughes recommend in their works on Instructions to Juries, and had the distinct sanction of this court so recently as 1902 in Territory v. Gonzales, 11 N. M. 301, 323; State v. Thomas, 78 Mo. 278; State v. Harper, 142 Mo. 478.
5 8 As to the instructions which were refused, it is too well settled to require discussion or citation of authorities; that even when such instructions are eor-rect statements of the law applicable in the case, it is not incumbent on the court to give them if the points involved are otherwise covered by appropriate instructions.
The judgment of the Trial Court is affirmed.