I dissent. In my opinion, examination of the entire record in this case impels the conclusion that no error of any substance appears, that the evidence strongly supports the verdict, and that no miscarriage of justice has occurred.
Much of the lengthy reporter’s transcript is devoted to a picture of the domestic relations of defendant and Dr. Moore prior to the killing of Dr. Moore on May 6, 1952. The discord between them increased after defendant returned from Hawaii in July, 1951, instituted her separate maintenance action against Dr. Moore, and hired detectives to follow Dr. Moore and to obtain recorded evidence against him. It appears unnecessary to recount details of the various verbal and physical altercations between defendant and Dr. Moore which appear in the record and a number of which are referred to in the majority opinion.
It may be mentioned that the majority opinion states, “A former police officer, Sawyer, testified that he had given her the gun [which defendant thereafter used to shoot Dr. . Moore] when he saw, on her person, evidence of a beating *532administered by the deceased and after she had told him that her husband had threatened to do away with her.” Sawyer, who became acquainted with defendant when he was privately employed by her to obtain recordings of Dr. Moore’s conversations with defendant and with Mrs. Blanchard and to “tail” Dr. Moore, testified that he loaned defendant the gun because she complained of prowlers. Defendant testified that she had not complained of or had prowlers; that Sawyer gave her the gun for “protection” after they spoke of “some of Toni’s [Mrs. Moore’s 15-year old daughter’s] friends who had jumped over the back fence.”
The evidence as to the events of October 6, 1951, which culminated in the death of Dr. Moore overwhelmingly tends to negative defendant’s claim of necessary self-defense. As indicated in the majority opinion, after defendant talked with Dr. Moore on the telephone on the evening of the 6th, and knew that he intended to come to her house, she asked Mr. Lydon, a private detective employed by her, and Mrs. Jones, a friend, to move their cars from in front of her house because, defendant said, Dr. Moore would not stop if he saw them. When defendant’s friends the Holroyds shortly thereafter arrived at her house, she asked them to go to the Blanchards, who lived near by, and said that she would bring Dr. Moore and they would have a “showdown.” Defendant then told Patricia Silvagni, the young school friend of Toni who was living with them, to go upstairs and not allow Timmy, the child of Dr. and Mrs. Moore, to come downstairs while his father was there. Defendant then got the gun, went downstairs with it, and answered Dr. Moore’s knock with it in her hand.
After she had shot Dr. Moore defendant went to the telephone. She did not call the police or an ambulance, or call to Patricia Silvagni upstairs, but telephoned her friends Dr. Doty and Dr. Wells, her attorney, and Mrs. Blanchard. To Dr. Doty she said, ‘ ‘ George, this is Pat. I have just done it”; Dr. Doty asked, “You have done what, Pat?”; she answered, “I have shot Telford.” Defendant in her conversation with Mrs. Blanchard called the latter a “lowdown bitch” and told her to send all defendant’s friends back to the Moore house.
Although defendant stated and testified that she recalled firing only one shot, it was indisputably proved by physical evidence that two shots had been fired; that the lethal bullet was fired from the dining room toward the swinging door be*533tween the pantry and dining room, hit the door as it swung out toward the dining room, then ricocheted into Dr. Moore’s chest from the side; that Dr. Moore finally fell wounded in the entrance hall just past the swinging door from the pantry; and that a second shot was fired from the entrance hall and hit the wall of the hall just above the spot where Dr. Moore fell.
Reasonable inferences from the physical and testimonial evidence are that after Dr. Moore entered the house he ran to escape defendant’s gun; that his assault on defendant was made in an attempt to disarm her; that the lethal shot was fired not when Dr. Moore was facing defendant but when he had his back at least partially toward her and was going away from her from the dining room into the pantry; that after the bullet had ricocheted into his chest, he went on through the pantry and into the entrance hall, where he fell; that defendant stepped through the opening from the dining room into the entrance hall, fired the second shot while Dr. Moore was still upright in the entrance hall, missed him, and hit the wall above him.
The jury were fully warranted in determining—and on this appeal we are bound to accept the fact that they did determine—that on the evening of the killing defendant armed herself to meet Dr. Moore while she was in a jealous rage at his asserted affair with Mrs. Blanchard and was determined to force Dr. Moore to go to the Blanchards for a “showdown”; that if at any time before Dr. Moore arrived defendant was in fear, she could have barred the entrance to the house, called the police, or recalled the people she had told to go to the Blanchards, but that she rejected these choices; that if the doctor struck defendant before he was shot, he did so to protect himself and in an attempt to disarm defendant; that the armed defendant did not act in necessary self-defense when she killed the unarmed Dr. Moore.
Contrary to defendant’s position, the record reveals ample evidence which supports the giving of the instructions, eoncededly correct statements of law, quoted in the majority opinion at page 524. From the evidence it could be inferred that defendant, not Dr. Moore, was the original aggressor in the affray. She expressed a determination that Dr. Moore should confront the wronged husband of his asserted paramour, which she must have realized he would be unwilling to do. After expressing her lack of fear of Dr. Moore, refusing the aid of her friends, and carefully clearing *534her house of potential witnesses, she armed herself with a gun and displayed it when she opened the door to Dr. Moore. There is overwhelming evidence (some of it from defendant herself and from recordings made by her) that in previous quarrels with the doctor, defendant had not merely persisted in provocative abuse but had instigated the use of physical violence and had made no effort to terminate the altercations. The jury were justified in inferring that in this as in previous altercations Mrs. Moore’s conduct was designed to provoke rather than to avoid an affray.
As appears from the majority opinion, defendant complains of the refusal of instructions requested by her, quoted at pages 524, 525 of that opinion, which are phrased in terms of the law applicable “If the- jury believe from the evidence that Telford Moore attempted to and was about to commit an assault upon defendant” and “If the jury believe from the evidence that Telford Moore was the first aggressor.” Instructions which the trial court gave on the subject of self-defense1 adequately and fairly cover the law on the subject and are properly phrased to apply to whomever the jury considered the instigator of the affray.
Defendant asserts that the giving of the instructions quoted at pages 525, 526 of the majority opinion unduly emphasized the prosecution point of view, and the majority, without suffi*535cient analysis, accept this argument. Defendant relies upon People v. Estrada, (1923), 60 Cal.App. 447, 483 [213 P. 67], and People v. Hatchett (1944) 63 Cal.App.2d 144, 158-159 [146 P.2d 469], which emphasize that instructions should be not merely correct but also impartial in their point of view. That principle, of course, is true and should be strictly adhered to by trial courts. In the Estrada case, however, the appellate court concluded that the prosecution evidence showed that defendant acted only in self-defense, and in the Hatchett case there was evidence strongly tending to show that defendant acted in self-defense and the charge to the jury not only emphasized the prosecution’s point of view in the instruction as to self-defense but also contained various errors which, the appellate court concluded, in combination required reversal. In the present case the charge as a whole is not “prosecution slanted” and there is evidence which strongly tends to show that the killing terminated the last of a long series of altercations which were instigated at least as much by defendant as by the husband she killed.
The majority opinion accepts defendant’s argument that the failure to give the requested instruction quoted at pages 527, 528 of that opinion substantially prejudices defendant. The instruction, omitting the matter italicized and enclosed in brackets, was as follows: “ [I] f you believe from the evidence that prior to the 6th day of May 1952, the defendant Patricia G. Moore had received information, either from the deceased or other persons, of threats against her life or person made by the deceased Telford I. Moore [and believed such threats or was thereby made more apprehensive of harm] she is justified in acting more quickly and taking harsher measures for her own protection in event of assault, than would a person who had not received such threats and if you should believe from the evidence that the deceased did make threats against the defendant and because thereof defendant had reasonable cause to [and did] fear greater peril than she would have had otherwise, you are to take such facts into consideration in determining whether defendant acted in a manner which a reasonable person would act in protecting his or her own life or bodily safety.”
Obviously the instruction as requested, lacking the qualifying element that the threats, if made and communicated to defendant, were believed by her or at least made her more apprehensive of peril, is not a complete and accurate statement of law. (People v. Gonzales (1887), 71 Cal. 569, 576 *536[12 P. 783]; People v. Glover (1903), 141 Cal. 233, 238 [74 P. 745]; People v. Hagemann (1949), 90 Cal.App.2d 748, 751 [203 P.2d 830].) The record, however, tending as it does to show that both defendant and deceased had at one time or another made threats against the other, fully justified instruction on the law of self-defense and on the possible effect of threats, and the trial court did give the instructions next hereinafter quoted which cover accurately the principles governing the right to take life in self-defense. Such principles, it will be noted, include the right to act as a reasonable person upon “what such person in real or apparent danger knows and sees,” upon “the appearance of peril” and on “an honest conviction and fear” of death or “great bodily harm,” whether the “danger is real or merely apparent.” The instructions given on this particular subject differ from the one requested by defendant in that the given instructions contain the element (of belief or increased apprehension) omitted from the requested instruction and do not specifically mention the making of threats or hypothetically translate those principles into a formula instruction applicable only on a resolution of the evidence favorable to the defendant. Such instructions, as given, are as follows:
“The law of self-defense is founded on the principle of necessity, either actual or apparent, and in order to justify the taking of human life on this ground the slayer, as a reasonable person, must have reason to believe and must believe that there is a danger of receiving great bodily harm-, and further, the circumstances must be such that an ordinarily reasonable person, if such person were in those circumstances and if such person knew and saw what such person in real or apparent danger knows and sees, would believe that it was necessary for such person to use, in one’s defense and to avoid great bodily injury to one’s self, such force or means as might cause the death of the adversary.” (Italics added.)
“You will note that actual danger is not necessary to justify self-defense. If one is confronted by the appearance of peril which arouses in his mind, as a reasonable person an honest conviction and fear that he is about to suffer death or great bodily harm, and if a reasonable man in a like situation, seeing and knowing the same facts, would be justified in believing himself in like danger, and if the person so confronted acts in self-defense upon such appearances and ' from such fear and honest convictions, his right of self-defense is the same whether such danger is real or merely apparent. Even if in the light of after-acquired information *537or from the distance and perspective of the jury box it should appear that there was no actual or only slight danger, that fact would not affect the right of self-defense if the appearances establishing that right, as I have stated them, existed.” (Italics added.)
In People v. Torres (1949), 94 Cal.App.2d 146, 151, 153 [210 P.2d 324], it was held that under the circumstances of that case the refusal of an instruction as to the possible effect of antecedent threats was ground for reversal. But in that case the trial court does not appear to have given any instruction, such as those last hereinabove quoted, covering the right to act upon known facts as well as currently surrounding circumstances; indeed, to the contrary in that case the instruction as to the right to act in self-defense appears to have been related to “the immediate circumstances surrounding the encounter” and the court in its ruling stated that “as there could be no certainty that . . . the expression ‘immediate circumstances’ would not divert their [the jury’s] attention from the previous threats, the giving of the prepared instruction telling them to consider the previous threats was" made more important.” Furthermore, in the Torres case it does not appear that the court’s attention was directed to or that it considered any failure of the requested instruction to require that the defendant actually believe or be made more apprehensive by the communicated threat. It is also noted that the instruction approved in the Torres case is taken from one which had been given in People v. Graham (1923), 62 Cal.App. 758, 765 [217 P. 823]. In the Graham case, however, the instruction was not held to be a necessary or even proper one to be given; it was merely held in affirming the judgment of conviction that “The instructions . . . given sufficiently covered the subject.”
"While the trial court in the present case could well have modified the proposed instruction to include the elements of bona fide belief in the threats or some measure of apprehension added thereby, in my opinion it cannot properly be held that the court erred in denying such instruction in. the form requested. To have given it as requested would have created a conflict between it and the instruction which was given that “The law of self-defense is founded on the principle of necessity, either actual or apparent, and in order to justify the taking of human life on this ground the slayer, as a reasonable person, must have reason to believe and must believe that there is a danger of receiving great bodily harm.” *538In any event it appears that the entire charge to the jury on the subject of self-defense was fair and in general substance sufficient, and the refusal of this particular instruction, and the failure to modify it and give it as modified, cannot reasonably, on the entire record, be held to establish a miscarriage of justice and to constitute reversible error. (See People v. Cruse (1914), 24 Cal.App. 497, 501 [141 P. 936].)
The majority opinion concludes that there is no support in the record for the second sentence of the following instruction given by the trial court: “The right of self-defense exists only as against an unlawful attack. The right does not exist, even though bodily injury appears probable, as against a person who, in threatening or appearing to threaten injury, is acting lawfully." On the contrary, there is evidence tending to show that if Dr. Moore assaulted defendant, he did so in a vain attempt to disarm her and save his own life; that defendant initiated a show of violence by displaying the gun; that she created a situation in which Dr. Moore, rather than defendant, might have the justification of acting in self-defense.
Defendant refers to her testimony that Dr. Moore ran through the house, swore at her, and struck her, asserts that he was acting in violation of the order by which he was enjoined from molesting her, and says, “Where, we ask, is this evidence susceptible of an inference that he was acting lawfully." Although defendant’s description of the events immediately preceding the killing does not indicate that Dr. Moore was acting lawfully, there is, as previously pointed out, other evidence from which the jury could, and under established law we should presume did, infer that she deliberately incited the affray and did not thereafter put herself in a position where she was justified in using deadly force, and that Dr. Moore struck defendant in an effort to disarm her. On such entirely tenable view of the evidence the last quoted instruction is not an erroneous statement of law.
Defendant complains of the playing before the jury of tape recordings of conversations between the defendant and deceased. When she first raised this point on appeal she asserted that the recordings were in part inaudible and unintelligible. She relied upon People v. Stephens (1953), 117 Cal.App.2d 653, 660 [256 P.2d 1033], where it was held that “to be admissible in evidence, the conversations as recorded, should be audible and intelligible. And if not, the witness who had the conversations should be called to testify." In *539the Stephens case it appeared from the record and the prosecuting attorney himself said that “a considerable portion” of the recordings was not intelligible. In the present case the trial court told the jury that if any juror wished any portion of the recordings played back it would be done, but the jury made no such request; after the recordings were played the prosecuting attorney asked defendant, “Is that a fair transcription of what can be heard of what was done and said at that time?” and she testified that it was. Defendant’s objection that the recordings were unintelligible was advanced for the first time after she had taken her appeal.
The original reporter’s transcript of the recordings as played in the courtroom is interspersed with asterisks; according to a subsequently filed affidavit of the court reporter, the asterisks were used to indicate both omissions of words which he could not transcribe and to designate pauses; the reporter further avers that when he listens to a recording without occasion to report it he can grasp its meaning without ascertaining each word, but that in listening to a recording as a reporter and attempting to coordinate his hearing, understanding, and reporting, his task is more complex and his understanding is below the standard of court reporting.
After the defendant advanced the contention on appeal that the recordings should not have been played before the jury because they were unintelligible, the People presented to the trial court a more complete transcript of the recordings which had been prepared after the reporter had heard and reported a replaying of the recordings; the prosecuting attorney offered defendant’s counsel an opportunity to listen to the recordings again and compare them with the proffered transcript; defendant’s counsel declined to do so; and the trial court on the People’s motion ordered that the more complete transcript be substituted for the transcript of the courtroom notes.
The People then obtained an order of the District Court of Appeal2 for augmentation of the record by supplemental reporter’s and clerk’s transcripts of the last mentioned trial court proceedings. Thereafter defendant moved the District Court of Appeal to strike the supplemental transcripts from the record, and this motion is now before us.
It does not appear that the playing of the recordings (which, it will be remembered, were caused to be made by defendant) *540before the jury was improper, or that it was improper to substitute in the record the more complete transcript of such recordings. As to the substance of the matters recorded, the original reporter’s transcript, the supplemental reporter’s transcript, and defendant’s testimony all show that defendant instigated quarrels with Dr. Moore and that upon such instigation he struck defendant. It is the fact of the altercations, together with the fact that they were deliberately instigated by defendant, which was important to the jury’s appraisal of the recordings. The precise identification of each and all of the words which were spoken by defendant and deceased is not of importance; there is no claim by defendant, and no indication in the record, that the exact phraseology of the disputes could affect the jury’s disposition of the question whether the killing, some nine months later, was justified.
For the reasons above stated the motion to strike the supplemental transcripts should be denied; the judgment and order appealed from should be affirmed.
Shenk, J., and Edmonds, J., concurred.
Respondent’s petition for a rehearing was denied November 17, 1954. Shenk, J., Edmonds, J., and Sehauer, J., were of the opinion that the petition should be granted.
The trial court gave the following instructions:
"It is lawful for a person who is being assaulted, and who has reasonable ground for believing that bodily injury is about to be inflicted upon him, to stand Ms ground and defend himself from such attack, and in doing so he may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”
"A person who has been attacked and who is exercising his right of lawful self-defense is not required to retreat, and he not only may stand his ground and defend himself against the attack but may also pursue his assailant until he has secured himself from danger if that course appears to him, and would appear to a reasonable person in the same situation, to be reasonably and apparently necessary; and this is his right even though he might more easily have gained safety by withdrawing from the scene.”
"A person who without fault on his part is exposed to a sudden felonious attack need not retreat. In the exercise of his right of self-defense he may stand his ground and defend himself by the use of all force and means apparently necessary and which would appear to be necessary to a reasonable person in the same situation and with the same knowledge; and he may pursue his assailant until he has secured himself from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.”
At the time of the motion the cause was pending before the District Court of Appeal. It has since been transferred to this court.