i. Criminal law: murder: in-eluded offenses: instruetjons. I. The deceased, Henry Britton, lived at the home of Mrs. Chocklett. In the afternoon of September 22, 1911, at .about 5:30 o’clock, he dame, for supper and, as it was not ready, assaulted and beat her.’ She . , sent Dewey, her son about thirteen years old, J ’ for another son, the defendant, then twenty- # 7 jo six years of age, who came before she had washed the blood from her face or changed her tattered garments. She told him the story. After hearing it, he left to see what Britton had to say about, the matter and found him about a half mile away, and upon demanding an explanation of the treatment of his mother, Britton responded that it did not come before him (defendant) and then proposed to go to the house and talk the matter over. When they reached the gate, defendant seized Britton by the legs and threw him to the ground. A struggle ensued but they were parted, and when they arose defendant took his revolver from his pocket and Britton went into the house. Whether defendant followed him to the door and was pushed back by his mother was in dispute. Britton soon returned, probably with a gun, though some of the witnesses saw none, and may have fired first at defendant, though there was plenty of evidence from which the jury might have concluded that defendant shot first and lodged five bullets in the person' of Britton, inflicting mortal wounds. This recital of facts disposes adversely to defendant of the contention that the evidence was insufficient to carry the issues raised by defendant’s *513plea of not guilty to the jury, and also of the error assigned that included offenses below manslaughter were not submitted. Whether defendant was the aggressor was put in issue by the evidence and, if he was such, then of course the killing was not justifiable as in self-defense and he must have been convicted of murder or manslaughter, for there was no controversy as to the wounds inflicted by defendant having been mortal.
ant counsel: reading of indictment. 2. Same- assist II. James A. Devitt assisted the county attorney in the trial and, in so doing, read the indictment to the jury and made the opening statement. Exception is taken thereto for that the statute- requires -that instrument to be read by the county ■attorney or clerk. In what he did, Devitt was acting for -the county -attorney, land reading the indictment by him was the s-ame as though this had been done by such officer. State v. Crafton, 89 Iowa, 109.
.j vifwmo£t:ap-e" pea1, In his -argument to the jury, Devitt is said to have alluded to matters not borne out by the record. It is enough to say that, in so far as objectionable, what is claimed in the affidavit by Brown to have been said is controverted by Devitt’s affidavit, and the decision of the trial judge who was present ought not to be disturbed. Moreover, no objection appears to have been interposed by defendant as was essential to save the point (State v. Sale, 119 Iowa, 1), and what was said does not appe-ar to have been preserved, as required, by a proper bill ,of exceptions. State v. Burton, 103 Iowa, 28; State v. Watson, 102 Iowa, 651; State v. Bigelow, 101 Iowa, 430; State v. Helm, 97 Iowa, 378.
4' servEaAti¿nPóf" • ' Appellant also complains of the peremptory discharge of two jurors of the regular panel, by the court. Though asserted in the abstract, this is denied by the amended 'abstract, and, as the record has not been certified, the denial must be accepted as correct.
*514s' vIéwEofE’otíe jections. As no rulings on the admissibility of evidence appear in the abstract, the alleged error in permitting leading questions is noit before us for ° . consideration.
• ' submission of' The twenty-third instruction is criticised, not because of .any inaccuracy therein, but as being so worded that it may have misled the jury in exacting a finding to exclude the plea of self-defense “that defendant went to Britton with a view to provoke a quarrel or bring on a difficulty.” It is said there was no evidence to support this, and the same should have been omitted. If a finding not essential to conviction was exacted, it is not perceived how the accused was prejudiced thereby. But there was evidence from which- the jury might 'have found that defendant sought deceased for the purpose mentioned. In going to see Britton, 'he carried a loaded revolver. He first seized and threw him down at the gate and upon separation exhibited his revolver without apparent provocation, though he testified that he supposed deceased had a gun and was going to the house for ammunition, but indicated no ground for such supposition. So, too, he explained that he carried a revolver for his protection on days when miners were not at work, owing to having lost a leg and wearing an artificial one in its stead. But what credit should be given to these explanations was for the jury to determine, and that body in view of all the circumstances might have rejected them and have concluded that he had armed himself for the occasion and set out to revenge the wrong done his mother. That his mother had warned him that she thought deceased had a gun tended to confirm rather than obviate this conclusion. The issues as to whether he sought out deceased with the design of provoking a quarrel was for the jury, and the instruction can not be regarded as misleading. On the contrary, it is strongly to be approved as forcibly and clearly directing attention to the facts as these might have been *515found. The instruction following submitted the question of 'defendant’s guilt on the theory of findings, if made, that the encounter at the gate had ended and that Britton returned from the house to renéw it.
The instructions were without error and the extentuating circumstances, if such there are, 'doubtless will be accorded appropriate consideration by the parol board.— Affirmed.