We find nothing seriously objectionable in the method pursued by the district attorney in the examination of the witness Barthold, although in that connection bitter criticism against that officer is directed by appellant. Some of the questions were somewhat suggestive, but we cannot say that the purpose was otherwise than to elicit the truth or that such result was not accomplished.

One Mah Guey was an important witness for the defendant, and complaint is made of his cross-examination, appellant going so far as to state that it constitutes "simply a long prejudicial argument to the jury tending to throw distrust upon Mah Guey, and thereby cast doubt upon all of the Chinese witnesses." We do not so regard it. In the light of calm reflection, doubtless some reason is disclosed for criticism of the cross-examination, but we do not think that thereby any serious error was committed. No doubt the district attorney believed that the witness was not telling the truth, and he had the right to use every legal means within his power to vindicate his belief. The examination seems to have been unduly prolonged and the district attorney unnecessarily persistent as to unimportant circumstances, and some of the questions should not have been propounded at all, but we cannot say that by anything said or done while the witness was on the stand appellant's cause was illegally impaired. Indeed, as far as concerns the witness himself, he seems to have emerged from the avalanche of questions with his credit unimpaired and his original story remaining unshaken for what it was worth. As to some matters, covering which he was interrogated and which may not have been within the proper range of cros -examination, we may say further that they were established by other witnesses beyond question, and hence they furnish no just ground for complaint.

While one Hong Jo was on the stand appellant's counsel sought to show by the interpreter that in using an expression "angry" the witness had used a Chinese word indicating an appearance of the face. The court would not permit it, but whether the court was right or wrong, it is entirely apparent from the testimony of the witness that such was his meaning. In other words, it clearly appears that he referred to the appearance of the face.

We cannot say that the district attorney was guilty of improper conduct in asking Lee Wah the following questions:

"Isn't it a fact that the Suey Sings have threatened there will be a tong war here if the defendant is convicted?" and "Isn't it a fact that you are testifying in this case the way you have because you know that the Suey Sings have threatened a tong war in case the defendant is convicted?" We cannot assume that the district attorney did not believe such fact existed or that the witness had knowledge of it, or that the knowledge of such threat affected his testimony. We must assume, on the contrary, that the district attorney acted in good faith, believing that he had the legal right to ask the questions, although it seems the court sustained an objection to them.

It is claimed that appellant was not allowed to testify as to the condition of his own mind at the time of the shooting. One important element in his theory of self-defense was that he believed his life was in danger, and his mental condition in that respect was, of course, a matter peculiarly within his own knowledge. While the jury would not be compelled to accept his statement, it would seem entirely proper for him to testify whether he actually did believe that he was in danger of death or great bodily harm. (People v. Overacker, 15 Cal. App. 620, [115 Pac. 756]; Barnhart v. Fulkerth, 93 Cal. 497, [29 Pac. 50]; Kyle v. Craig, 125 Cal. 107, [57 Pac. 791].) The particular question to which appellant refers is as follows: "Did you at the time believe or not believe that it was either your life or his life?" But it is apparent that the question was fully covered by other questions and answers, as the following from the record will show: "Why did you shoot Lee Yow Juck A. He threatened to kill me in the tan game. Had it not been that Mah Guey took the pistol from him, he would have killed me in the tan game, and then he threatened to go and get another pistol and kill me, so I was afraid of him. Q. Now, why did you continue shooting as Lee Yow Juck went across the street? A. His hand was still in his pocket, and I was afraid he might kill me." He could have added nothing to the force of the foregoing by stating that he believed it was either his "life" or the "life" of the deceased. There was a similar situation in the Overacker case, wherein it was held that the error was cured.

Appellant is very much dissatisfied with his cross-examination. One circumstance that he especially emphasizes relates to his age. He had testified in chief that he was eighteen years old. Naturally this was important, as the average juror would

be inclined to treat a minor more leniently than an adult charged with the same crime. The district attorney apparently believed that the defendant was much older than thateven twenty-eight years old-and he sought earnestly to compel such admission on the part of appellant. We cannot see that he overstepped the bounds of legal propriety in the matter. We think it not censurable that he asked appellant in reference to his identification papers. The production of them manifestly might have been of great significance in the solution of this question. It does, however, appear, we think, that some improper questions were asked by the district attorney, but nothing of a prejudicial character.

Appellant with some warmth complains because the court, on motion of the district attorney, struck out as not responsive the answer to the following question: "The first time you shot him, did you intend to kill him?" The answer was: "I was protecting my own life; I was afraid." It is apparent that it was not a direct answer to the question. In fact the answer assigned a reason for what he did rather than the purpose he had in view. The question was not objected to, and indeed it was proper, and the court was not in error in insisting upon an answer to it. It may be further said that as far as the reason thereby given is concerned, appellant gave it without objection in answer to other questions. Of course, if the witness had answered the question, he would have been permitted to explain it. Indeed, the court so advised him. He chose, however, to say that he could not answer in that way.

Appellant contends that the court was prejudiced against him as evidenced by the sentence of life imprisonment meted out to him. We must assume that the court believed he deserved this sentence, and that it was not the result of prejudice. At any rate, it would be no evidence of the existence of any prejudice prior to the conviction of the defendant, and a subsequently acquired prejudice could not have affected the fairness of the trial. In fact, there seems to be no ground for the contention that the court was animated by any other desire than to do exact justice as between the people and the defendant, and since the penalty imposed was within that provided for the crime of murder in the second degree, there is nothing in said circumstance demanding further notice.

Finally, taking a general view of the case. we may conclude in a few words. Some errors were probably committed during

the trial, principally in the ruling upon testimony, but there was no invasion of the fundamental rights of the defendant. In our opinion he was justly convicted. To one at all familiar with the Chinese character and the method of Chinese murderers, the story of the conduct of the deceased as told by appellant would seem highly improbable. But granting it credit, then it appears substantially without conflict that appellant was not justified in what he did. The evidence of his guilt is quite clear from the testimony of white witnesses. And conceding that there was evidence of justification for the first shot fired by appellant, it appears from his own statements that he followed and shot the deceased when by no fair understanding of the situation or twist of construction of the law could it be said that he had reason to believe that his life was in danger, or that he acted in self-defense.

If section 42, article VI, of the constitution is not to be invoked here, then we should not seek to follow it in any case The judgment and order are affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 2177. First Appellate District.-November 7, 1917.] JAMES D. DONLON et al., Copartners, etc., Respondents, v. CELINE MEYER et al., Copartners, etc., Appellants.

SALE OF GRAIN BAGS-DEMAND FOR DELIVERY-TENDER OF PRICE-WHEN NOT REQUIRED.-In an action for damages for refusal to make full delivery of grain bags under an agreement to sell and deliver, it is unnecessary for the complaint to allege a tender of the price of the undelivered bags, where it is fairly inferable from the allegations of the complaint that the defendants were doing business in a different place from where the bags were located, since it is unnecessary that actual payment or offer of payment accompany a demand for delivery, where the goods are not present at the time of demand.

ID. REFUSAL OF DEFENDANTS TO DELIVER-ACCRUAL OF CAUSE OF ACTION -PERFORMANCE OR OFFER OF PERFORMANCE NOT REQUIRED.-In an action for damages for failure to make full delivery of grain bags under an agreement to sell and deliver, where it appears from the allegations of the complaint that in response to a demand for de35 Cal. App.-15

livery subsequent to the time when delivery was due under the agreement, the defendants notified plaintiffs they would make no other or further delivery under the terms of the original agreement, the plaintiffs' cause of action accrued without the necessity of performance or offer of performance.

ID. EXTENSION OF TIME FOR DELIVERY-UNEXECUTED ORAL AGREEMENT -ASSERTION OF INVALIDITY DEFENDANTS NOT ESTOPPED.-In an action for failure to make full delivery of grain bags under a written agreement to sell and deliver, where it is found that the time for delivery was extended by an unexecuted oral agreement, at the request and for the convenience of the defendants, the defendants are not estopped from asserting that they are not bound by the agreement, in the absence of any allegation of fraud on the part of the defendants.

ID.-WRITTEN CONTRACT-ORAL AGREEMENT EXTENDING TIME FOR PERFORMANCE-CONSTRUCTION OF SECTION 1698, CIVIL CODE.-Section 1698 of the Civil Code does not prevent a plaintiff from suing on the original written contract, as the rule that neither party to an action can at law avail himself of a parol agreement to vary or enlarge the time for performing a contract previously entered into in writing, and required so to be by the statute of frauds, serves rather to preclude the defendant from setting up an agreement to enlarge the time for delivery in answer to the plaintiff's demand than to prevent the plaintiff from suing on the original contract for a breach of it.

APPEAL from a judgment of the Superior Court of Contra Costa County. A. B. McKenzie, Judge.

The facts are stated in the opinion of the court.

M. R. Jones, and Titus, Creed, Jones & Dall, for Appellants.

W. S. Tinning, A. B. Tinning, and Matthew Ward, for Respondents.

LENNON, P. J.-This is an appeal from a judgment in favor of the plaintiffs. Defendants appeal on the judgmentroll alone and urge as grounds for a reversal of the judgment the following points, namely, that the amended complaint does not state a cause of action, and that the findings do not support either the conclusions of law or the judgment.

It appears from the record that on April 29, 1915, L. Meyer & Company agreed to sell, and Donlon Brothers agreed to buy, thirty thousand grain bags at six and three-fourths cents per bag, payable on delivery, delivery to be made during the