of the defendant's mind at the time of firing the fatal shot if the defendant is shown by the evidence to have known the reputation of the deceased for peace and quiet."

5. "You are instructed that it is the duty of the prosecution to prove every material fact necessary to constitute the charge against the defendant beyond all reasonable doubt and to a moral certainty, and in this case among the material facts to be proven, are,-First: That the deceased was killed by the defendant. Second: That the killing was done with malice aforethought and with premeditation. And if you have a reasonable doubt upon any one of these material facts, it is your duty to acquit the defendant of murder in the first degree."

The court did not err in refusing any of these requested instructions. [2] Under the first point, appellant relies upon section 1847 of the Code of Civil Procedure. The requested instruction does not conform to that section. Moreover, no evidence was offered in this case for or against the reputation of the defendant in any particular, and we are unable to see that appellant has been prejudiced by the absence of this instruction, even if appropriately it could have been given.

The second point is sufficiently met by the fact that the court did give to the jury the following instruction: "The jury are instructed that the defendant as a reasonable man, knowing what he knew and seeing what he saw, had a right to act upon the appearances as they presented themselves to him as a reasonable man, even if you find that Warn at the time was actually unarmed, and if the defendant as such reasonable man, knowing what he knew and seeing what he saw, had a right to believe and did believe from such appearances that he was about to suffer great bodily harm at the hands of Warn, and that if acting alone upon such belief he fired the shot at Warn, then I instruct you that the defendant is entitled to an acquittal at your hands."

[3] Without saying that the instruction given is entirely correct, we do say that it is free from any error of which the defendant is entitled to complain. This instruction having been given, the defendant could not be prejudiced by the refusal of the court to instruct the jury in the language requested by him.

In connection with point 3, it should be noted that the court instructed the jury that "if there is any testimony

as to the oral admissions alleged to have been made by the defendant, you are instructed that you are to receive the same and consider them with caution"; and also fully charged the jury as to the necessity for proof of defendant's guilt beyond all reasonable doubt. From the defendant's own testimony it appears that he fired the shot by which Warn, the deceased, was killed. Aside from the extrajudicial admissions shown by the testimony, the evidence against the defendant is abundant and clear as to all matters connected with such extrajudicial statements or admissions by the defendant.

Under point 4, we note that the court instructed the jury as follows: "You are instructed that the defendant had a right at the time of firing the fatal shot to consider fully all acts of violence that he had seen the deceased commit; all threats that he had heard the deceased make, together with the disposition of the deceased as the defendant knew it in order that the defendant might know or believe what the deceased meant or intended at the time that the fatal shot was fired." There was no evidence of bad "reputation" of the deceased for peace and quiet, but the defendant testified concerning a quarrel which he had recently witnessed between the deceased and another person in which the deceased used threatening language toward that other person. The subject matter of the instruction refused by the court was sufficiently covered by the instruction given as above stated.

[4] Under the fifth point, it is admitted that the court gave all of the requested instruction except the last sentence thereof. In view of the fact that defendant was convicted of manslaughter only, he is in no position to complain of this modification of the instruction, and we need not discuss the merits of appellant's criticisms thereon. [5] 6. Appellant objects to the closing sentence of the fourteenth instruction, which is as follows: "Evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of crime, and the weight to be given it is a matter for the jury to determine in connection with all the other evidence and circumstances in proof in the case." The language quoted is a correct statement of the law. (People v. Keyes, 178 Cal. 794, [175 Pac. 6].)

[6] 7. Instruction No. 17 defines murder of the first and second degrees and manslaughter. In that instruction the court said: "In determining the intention of the defendant at the time of the transaction complained of it is important to consider the means used to accomplish the killing." It is of this statement in the instruction that appellant complains. There is no doubt in our minds that the jury is entitled to consider the means used by one in making an assault as an element in the determination of his intention at the time. The statement quoted, especially in the connection in which it was used, is without error.

[7] 8. Instruction No. 21 reads as follows: "Upon a trial for murder if the commission of the homicide by the defendant is proved to a moral certainty and beyond a reasonable doubt, then it devolves upon the defendant to prove circumstances of mitigation or that justify or excuse the act, unless the proof on the part of the prosecution tends to show that the crime only amounts to manslaughter, or that the defendant was justifiable or excusable." Appellant's objection to this instruction is that "it was virtually instructing the jury that the defendant should prove mitigation or justification and not that he might raise a reasonable doubt as to these defenses." We think that the instruction, when taken together with the other instructions given by the court to the jury, was without error. The jury was fully instructed that the burden was upon the prosecution to prove defendant's guilt beyond a reasonable doubt.

9. The last point insisted upon refers to an instruction concerning the right of self-defense. That the instruction. correctly stated the law is not denied, but appellant claims that there was no evidence to which it could apply, and, therefore, that the instruction was confusing and misleading. There was evidence of circumstances to which the instruction reasonably might be applied.

Our examination of the case convinces us that the defendant had a fair trial, free from prejudicial error, and that he was fortunate to escape with a conviction which reduced his offense to manslaughter.

The judgment is affirmed.

Shaw, J., and James, J., concurred.

[Civ. No. 2159. Second Appellate District, Division Two.-July 30,

1919.]

H. B. MCAULIFF, Appellant, v. JOSEPH E. MCFADDEN et al., Respondents.

[1] APPEAL- ALTERNATIVE METHOD RECORD REQUIRED IN BRIEFS.— Where an appeal is taken under the alternative method, the appellant is only required to print in his brief such portions of the record as may be necessary to present to the appellate court, fairly and lucidly, the points upon which he relies.

[2] ID.-FAILURE TO PRINT PLEADINGS-FACTS ADMITTED BY PLEADINGS NOT BEFORE COURT.-Where an appeal is taken under the alternative method, and the entire complaint and entire answer is not printed in appellant's brief, the appellate court cannot consider his claim that certain facts, material to the questions presented, were admitted by the answer.

OF.

[3] VENDOR AND VENDEE-CONTRACT FOR SALE OF REAL PROperty— CONTEMPORANEOUS COLLATERAL AGREEMENT-CONSTRUCTION In this action for the reformation of a contract, for the recovery of a given sum alleged to have been paid by plaintiff on the contract, and for a further given sum as damages alleged to have been suffered by reason of the defendants' breach of the contract, the contract entered into by plaintiff with the defendants, who were the record owners of the lots, for the sale and purchase thereof, and the collateral contract executed contemporaneously therewith by such defendants wherein it was provided that payment for such lots was to be made out of funds to be paid by such defendants to plaintiff for sign painting to be done for them, constituted but one transaction and evidenced but one single contract.

[4] ID.-CONTEMPORANEOUS EXECUTION OF PAPERS CONSIDERATION TOGETHER. Where several papers covering the same subject matter are executed by or between the same parties at the same time, all are to be considered together, and with the same effect as if all had been incorporated in one document.

[5] ID.-WANT OF AUTHORITY TO EXECUTE CONTRACT-EQUITY-RIGHT OF PLAINTIFF TO MONEY WITHHELD.-Where the defendants, who were the record owners, had no authority to bind their undisclosed co-owners by the collateral agreement wherein it was provided that payment for the lots was to be made out of funds due the plaintiff for sign painting done for such record owners, and such collateral agreement was not ratified by such co-owners, there was no contract binding upon the plaintiff, and in such action in equity the court should have awarded judgment against

the defendants who signed the agreement for the amount which they had withheld from plaintiff out of his earnings for sign painting and applied on the purchase price of the lot.

APPEAL from a judgment of the Superior Court of San Diego County. C. N. Andrews, Judge. Reversed.

The facts are stated in the opinion of the court.
Herbert N. Ellis and C. B. Ellis for Appellant.

Riley & Heskett for Respondents.

FINLAYSON, P. J.-This is an action for reformation of a contract, for the recovery of $421.07 alleged to have been paid by plaintiff on the contract, and for the further sum of two thousand dollars damages alleged to have been suffered by reason of the defendants' breach of the contract. From a judgment in favor of defendants, plaintiff appeals. The contract was one for the sale to plaintiff of certain real property.

The appeal is prosecuted under the "alternative method," and a lengthy typewritten reporter's and clerk's transcript is presented to us as the record on appeal. No part of the record is printed in respondents' brief, or in any supplement thereto. In appellant's brief there is printed the findings, in full, fragments of the pleadings, and a few excerpts from the testimony of the witnesses. [1] As appellant is only required to print in his brief such portions of the record as may be necessary to present to this court, fairly and lucidly, the points upon which he relies (De Bock v. De Bock (Cal. App.), 184 Pac. 890), we think enough is printed in appellant's brief to necessitate a consideration by us of the principal question presented by his appeal. [2] We cannot, however, consider appellant's claim that certain facts, material to the question mainly relied upon by him, are admitted by the answer. Whether such facts are so admitted could be determined only from a careful comparison of the entire complaint with the entire answer. As neither pleading is printed in full in the briefs, we are unable to say that the answer makes any of the admissions claimed by appellant.