at your place. We will probably not get away from here (Yreka) for several days and will call you up when we start." He testified that plaintiff did not tell him he had the place for sale. "Q. Did Mr. Stafford have one single thing to do with bringing you together with Mr. Rainey in making the A. No, sir; nothing in the world." It appeared that Stewart left Yreka to go to the Rainey Ranch on February 27th. Before going he applied to plaintiff for a blank option which was given him by plaintiff and plaintiff volunteered to give him a letter of introduction to Rainey whom Stewart had never met. On that day or the day before plaintiff telephoned Rainey soliciting an answer to his former letter concerning the terms on which he would sell his ranch and it was in response to this request that Rainey wrote the letter of February 27th, relied upon by plaintiff in the action. Rainey testified that his correspondence with Stewart was before talking with plaintiff over the phone and before he had received any letter from plaintiff stating that he had a possible purchaser. "Q. As I understand you, Mr. Stewart never was mentioned to you by Mr. Stafford over the phone? A. Never. Q. And you had no idea that the man he talked about sending down was the man whom you had written to? A. I didn't have any idea. Q. So you had no chance to tell Mr. Stafford that the man he was talking about was the very man you had written to yourself about the farm, you did not have any chance to do that? A. I didn't have any chance, no. Q. You didn't suspect that Stewart was the man Stafford was talking about? A. I did not."

Without stating the evidence further, we think there was sufficient to justify the findings of the court. There is some conflict between the testimony given by Stewart and Rainey and that given by plaintiff as a witness in his own behalf, but it was for the trial court to determine, in view of all the facts and circumstances shown, whether plaintiff had procured Stewart as a purchaser for defendant's ranch. Where there is sufficient substantial evidence supporting the findings we have no concern with conflicting testimony of witnesses.

Appellant claims error in overruling his objection to the letters written by Stewart and Rainey to each other, on the ground that they were hearsay and not binding on plaintiff who had no knowledge of them. It was competent for defendant to show by this or other proper means that he had himself,

unaided by plaintiff, procured the purchaser. In Crane v. McCormick, 92 Cal. 176, [28 Pac. 222], cited by appellant, the contract provided that the commission should be paid if the owner should withdraw the property from sale or effect a sale in any way during the year. This is not the case here. Plaintiff was not given the exclusive right to sell the land and he does not base his claim on such right. He claims only that he procured Stewart as a purchaser. Failing to establish this claim he failed to maintain his action, for he makes no pretense of having procured any other purchaser or having tried to do so. No other alleged errors of law seem to call for notice. The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

[Crim. No. 291. Third Appellate District.-April 24, 1915.] THE PEOPLE, Respondent, v. FOX BURNS, Appellant. CRIMINAL statement of guilt made by a defendant charged with murder to the sheriff after his arrest, is admissible in a prosecution for such offense as a voluntary confession, notwithstanding that the defendant was informed by the officer prior to the making of the statement that he had interviewed other persons also under arrest for the same offense and had been informed by them that the defendant did the killing, that he already had sufficient evidence to convict the defendant and that the defendant ought to tell the truth. ID. EXTRAJUDICIAL

LAW-MURDER-EVIDENCE-CONFESSION.-A

CONFESSIONS-ADMISSIBILITY OF.-Evidence of extrajudicial confessions is never admissible unless the prosecution shows, previously to the reception of such confessions, that they were freely and voluntarily made without any previous inducement or offer of leniency in punishment or by reason of any intimidation or threat. ID. NATURE OF CONFESSION-QUESTION FOR TRIAL COURT.-Whether a confession is free and voluntary is a preliminary question addressed to the trial court and to be determined by it, and a considerable measure of discretion must be allowed that court in determining the question.

ID. EVIDENCE-STATEMENT AT CORONER'S INQUEST-ADMISSIBILITY OF. Where the defendant in a prosecution for murder, after a confession of guilt made to the sheriff, appears at the inquest held by the coroner to inquire into and determine the cause of the death of the de

ceased, and states to the coroner and the jury that he himself had shot and killed the deceased, such statement is admissible in evidence against him at the trial.

ID. INSTRUCTIONS--RULE GOVERNING-ADMISSIBILITY OF EXTRAJUDICIAL ADMISSIONS. An instruction to the jury upon the law bearing upon extrajudicial admissions from which the jury could, by reason of the inapt phraseology of the instruction, have obtained the impression that a finding by the court that the confession was true was a necessary legal prerequisite to its admission in evidence, is prejudicial to the substantial rights of the accused, and sufficient to constitute a reversal in a case not within the provisions of section 4% of article VI of the constitution.

ID. SELF DEFENSE-INACCURATE INSTRUCTION.-An instruction which declared it to be the duty of the defendant to have avoided the killing of the deceased if he could have done so with perfect safety to himself or his person, is not prejudicial, where the defendant did not become a witness in his own behalf, and it is shown by the evidence that the defendant in the place of attempting to avoid further trouble after the first altercation, needlessly and purposely put himself in the way of a renewal thereof.

ID.-PLEA OF SELF DEFENSE-WHEN NOT AVAILABLE.-An instruction that the plea of self defense is not available to a defendant who has sought a quarrel with a design to force a deadly issue and thus by his own wrongful acts creates a real or apparent necessity for killing his adversary, is a correct abstract statement of law.

APPEAL from a judgment of the Superior Court of Mendocino County and from an order denying a new trial. J. Q. White, Judge.

The facts are stated in the opinion of the court.

T. J. Weldon, and Charles Kasch, for Appellant.

U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Respondent.

HART, J.-The defendant, having been charged by information filed by the district attorney of Mendocino County with the crime of murder, was adjudged guilty by the jury of the crime of manslaughter, and he brings the cause to this court on an appeal from both the judgment and the order denying his application for a new trial.

The homicide occurred in a hop-field of a Mr. Hildreth in Mendocino County, on the night of the eighteenth of September, 1914.

The defendant, who is an Indian, with other Indians and a number of white persons, was, at the time of the homicide, engaged in picking hops. It appears that, among those so engaged, was a woman by the name of Rosie Judd. She was living in a tent, a temporary affair, erected for the purpose of use during the hop-picking season. The Indian hoppickers maintained a camp several hundred yards distant from the tent of the Judd woman.

On the night in question the deceased, Chester C. Rich, who was also a hop-picker and engaged in that work up to the time of the homicide in the Hildreth fields, visited the Judd tent at about ten o'clock on the night of the killing. He was accompanied by one William Mitchell, another hoppicker. Gathered at the Judd tent then were the deceased, Mitchell, a man named Binkley, all three white men, and several Indians. The deceased had a bottle of whiskey in his possession and all then present in the Judd tent drank more or less of the liquor, none of them, however, getting under the influence thereof to any great degree. Within a brief time after the deceased and his companion reached Rosie Judd's tent, Fox Burns, the defendant, put in an appearance. At this time Tony Bell, an Indian, and deceased were engaged in gambling for money at a game known as the "grass game." The deceased accused Bell of cheating at the game and a quarrel followed, each calling the other a s-n of a b-h. Burns, during the game, although not then playing at it, interjected remarks about the playing, when the deceased told him to keep his "d-m mouth shut," and this seems to have provoked an exchange of opprobrious epithets between the two men. A little later, however, the deceased and the defendant played at the game, the latter wagering his hat. The deceased won the game and the hat, but returned the latter to the defendant, saying that he had no use for it. The deceased then challenged Tony Bell for another game, and, accepting the challenge, Bell placed a dollar on the ground, on which, it seems, the game is usually played among the Indians. The deceased thereupon grabbed the dollar and put it into his pocket. Another quarrel between the deceased and Bell ensued, each abusing the other in scurrilous language. Almost immediately after the happening of this last circumstance the defendant, Bell and an Indian named Ed. Switser left the tent,

the defendant preceding the others a few seconds or perhaps a minute. Thereafter and within a very short space of time the deceased and Mitchell and an Indian, Dave Poe by name, started to leave the tent, Poe being a little ahead of the deceased and Mitchell, and, just as they had reached the outside the Judd woman called Mitchell and requested him to return and light her lantern or lamp. Mitchell returned into the tent and the deceased and Poe remained outside. While Mitchell was engaged in the act of lighting the lantern, a shot was fired and Rich received the contents of the weapon and a mortal wound, a rifle ball having entered his abdomen and presumably penetrated the stomach and intestines.

Immediately after the shooting a messenger was dispatched for a physician and Dr. Cleland responded, but found that Rich had expired before his arrival at the scene of the homicide. The doctor made only a superficial examination of the wound-that is, such an examination only as enabled him to ascertain the point of entrance of the bullet into the body.

A hat was lying on the ground a short distance from where the body lay and this the doctor picked up and carried to Ukiah, where later in the day, he delivered it into the possession of the sheriff.

The testimony, while not strictly consistent on some points which may well be characterized as of minor importance, is, generally, marked by no conflict as to the circumstances under which the killing was committed.

The night was very dark and a drizzling rain was falling. Tony Bell testified that, while he and Switser were on their way to the Indian camp and before they had proceeded no farther than forty yards from the tent of Rosie Judd, they met the defendant going in the direction of the Judd tent. At the same time, having looked back, they saw the deceased coming toward them. After the defendant had passed them he heard him (the defendant) say: "Come on out, I'll fix you." He heard no reply to the challenge, but immediately thereafter heard the report of a gun and saw a flash from the explosion, instantly following which he heard the exclamation, "Oh!" in a loud tone of voice and saw the deceased fall to the ground. Someone then hastily fled from the spot and in a direction from Burns's camp.