submitting plat and survey to the board of 14. CRIMINAL LAW 368(2)-EVIDENCE-RES county commissioners; for laying off the GESTÆ. town site into lots, blocks, streets, and alleys, and filing plat thereof in the office of the clerk and recorder after acceptance by the board of county commissioners, etc. Sections 2011 to 2039, inclusive, Compiled Stat. of 1887.

[4-6] 4. That the court erred in excluding evidence tending to show that Severino Calvetti was practically running amuck the entire evening, armed with a stiletto, quarreling with and threatening other persons besides the accused. This was all res gestæ; but independently of that, it was a proper subject of inquiry which the accused was entitled to pursue within the limits of a reasonable liberality, as tending to support his claim of fear as well as to show who was the aggressor and thus responsible for the tragic end. State v. Whitworth, 47 Mont. 424, 133 Pac. 364; State v. Hanlon, 38 Mont. 557, 100 Pac. 1035. The theory of the exclusion seems to have been that upon the trial for killing Rocchino, the acts and conduct of Severino were irrelevant; but this ignores the right of Caterni to contend that Rocchino was killed undesignedly while Caterni was properly defending himself against Severino; yet Caterni was entitled to so contend and to be acquitted if his contention should be upheld, as the jury were told with more or less clarity in the instructions.

ceiving himself to be in danger of his life | against Severino. Other instructions make from Severino, shot twice at the latter, and this apparent; there was no need for the it is claimed by the state that both shots confusion created by No. 19. took effect, one killing Severino and the other Rocchino. As to whether Rocchino was in fact shot by Caterni, and whether Caterni was acting in self-defense, the evidence is more or less conflicting, but the conflict must be taken as resolved against Caterni by the verdict of the jury. That he did not in fact desire or purpose to shoot or kill Rocchino must, however, be conceded, for all the evidence is to that effect. How, then, stands the verdict in this situation, remembering that the statute requires, as a constituent of murder in the first degree, a deliberate, premeditated design to kill (Rev. Codes, § 8292)? The general rule as stated in 13 R. C. L. at pages 745, 746, is that the slayer "is guilty or innocent exactly as though the fatal shot had caused the death of the person intended to be killed; the intent is transferred to the person whose death has been caused." But in this jurisdiction the law is settled otherwise. Section 21, chapter 4, Fourth Division, Compiled Statutes 1887, applied by this court in Territory v. Rowand, 8 Mont. 110, 19 Pac. 595, is the same as our present section 8292, Revised Codes; and in that case four opinions were written which, though differing in other respects, do all agree that a charge of murder in the first degree against R. for the premeditated, intentional killing of B. was not sustained by evidence showing that B. was killed undesignedly in an effort by R. to accomplish the murder of M. Territory v. Rowand, 8 Mont. 110, 121, 19 Pac. 595; Id., 8 Mont. 432, 438, 20 Pac. 688, 21 Pac. 19. In such case the homicide is of course not a guiltless one, but it is not murder in the first degree because the

specific intent required by the statute, the deliberate, premeditated design specifically to kill the person who was killed or to kill him as one of a crowd, is lacking; and it becomes murder in the second degree or manslaughter, according to the circumstances. See, also, People v. Robinson, 6 Utah, 101, 21 Pac. 403.

5. That the court erred in very many other rulings in the course of the trial, covered by 85 assignments. Some of these have merit, others not; and as we are confident that upon a retrial valid ground of complaint will not recur, we deem it unnecessary to further discuss them.

The judgment and order appealed from are reversed, and the cause is remanded for new trial.

Reversed and remanded.

BRANTLY, C.

HOLLOWAY, J., concurs. J., being absent, takes no part in the foregoing decision.

(176 Cal. 738)

HALL V. THURSTON. (L. A. 4053.) (Supreme Court of California. Dec. 14, 1917.) 1. BILLS AND NOTES 524-TITLE TO SUSTAIN ACTION-EVIDENCE.

The possession of notes, showing no payments thereon duly indorsed by the payee, constitutes a prima facie showing of plaintiff's right to recover, which, coupled with proof that assignor was done by order of the board of dithe transfer complained of made to plaintiff's rectors of a rightful holder, of which board defendant was a member present and acting, is sufficient.

2. BILLS AND NOTES 489(3)
DEFENSES-PLEADING.

ACTIONS

[3] 3. That the district court misdirected the jury in its charge, especially in instructions 14, 16, 17, and 19. Instructions 14, 16, and 17 explicitly authorize the jury to convict of murder in the first degree. In view of what we have just said, these instructions were improper and, as the jury followed them, manifestly prejudicial. Instruction 19, offered by the state, undertook to present the theory and limitations of self-defense; but it was ill adapted to this particular case because it required Caterni to be in fear from the deceased Rocchino. Caterni never claimed to be in fear of Rocchino; his claim -by which he was bound for good or ill-3. BILLS AND NOTES 489(3)-PLEADINGSBONA FIDE PURCHASERS AFTER MATURITY. was that if he killed Rocchino, it was undeWhere, under Code Civ. Proc. § 368, a note signed and in the course of self-defense is assigned, after maturity any defenses existing

The rejection of defendant's offer in evidence of a purported agreement between himself and his assignee of his own indorsed notes for the purpose of showing equities in defendant's favor by which plaintiff would be bound is not error, where such equities or agreements were not pleaded.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

in favor of the maker at the time or before notice of assignment are not available, unless pleaded.

4. BILLS AND NOTES 427(3) PAYMENT AND DISCHARGE.

The maker's payment of a note to a former holder after notice of transfer was at his peril. Department 2. Appeal from Superior Court, Los Angeles County; A. J. Buckles, Judge.

Action by F. R. Hall against L. F. Thurston. Judgment for plaintiff, and defendant appeals. Affirmed.

B. F. Woodard and E. J. Fleming, both of Los Angeles, for appellant. A. C. Routhe, of Los Angeles, for respondent.

VICTOR E, SHAW, Judge pro tem. This is an appeal by the defendant from a judgment entered in favor of plaintiff upon two promissory notes made by defendant, payable to his own order and by him indorsed and de livered to the International Security Com. pany (a corporation), of which one Newton J. Skinner was at the time president.

pears to have been ratified by the board of directors of which defendant was a member present and acting in the transaction.

[2] The action of the court in sustaining plaintiff's objection to defendant's offer in evidence of a written agreement made by him with the International Security Company acting through Skinner, then president of said company, is assigned as error. Appellant claims this agreement related to said notes and modified their terms in reference to his obligation for the payment thereof, and thus, as between the defendant and the company created equities in his favor whereby plaintiff was bound. A sufficient answer to his contention and the alleged error predicated upon the ruling of the court in sustaining plaintiff's objection to the question asked defendant, "Did you make an agreement (with the company) by which these notes were not to be paid?" is that no such equities or agreements were pleaded and no tender made by answer of any issue under which the document was admissible in evidence. Moreover, the agreement on its face makes no reference to the notes involved in the action. There was no error in the ruling.

[3] Immediately following the ruling upon the question last referred to counsel for defendant said, "Your honor rules that we cannot put in any evidence as to the payment of these notes?" to which the court replied, "It is just about that way." For the reason that the answer did not allege facts constituting any defense to the notes in the hands of plaintiff as legal holder thereof the ruling was correct. They were payable to the maker by whom they were indorsed, and hence passed by delivery. Bank of Lassen Co. v. Sherer, 108 Cal. 513, 41 Pac. 415. The delivery con

The complaint alleges that after their maturity the notes were for a valuable consideration transferred by said corporation to said Skinner, who thereafter for value transferred them to one George C. Smith, by whom they were delivered to plaintiff. The answer admits the making and delivery of the notes to the International Security Company for a valuable consideration and as a defense to the cause alleges that at all the times mentioned the notes were the property of said corporation, and that "Skinner falsely and fraudulently secured possession thereof"; that no transfer of the same was made by said corporation; and "that prior to the commencement of the action plaintiff paid to said International Se-stituting an assignment thereof was made by curity Company the entire indebtedness represented by said promissory notes, together with interest thereon."

[1] Upon the ground of want of sufficient evidence to sustain the same appellant attacks the finding that after the maturity of the notes they were for a valuable consideration transferred to and became the property of Newton J. Skinner. In the absence of want of consideration pleaded for the making of the notes, we are unable to perceive the materiality of the finding so far as it concerns defendant. However, conceding it to be material, possession of the notes by plaintiff, duly indorsed by the payee therein named, and upon which no payments appear to have been made, was as to plaintiff a sufficient prima facie showing to establish his right to recover thereon. In addition to this fact, there was evidence tending to show that the notes were, by resolution of the board of directors of the International Security Company, ordered transferred in settlement of an account known as the Magee account in which Skinner had some interest, which transfer so made by the president of the company ap

the International Security Company after the notes had matured. As provided in section 368 of the Code of Civil Procedure, they were as to plaintiff subject to any defenses existing in favor of defendant at the time or before notice of the assignment. As stated, the only defense pleaded was that plaintiff was not the owner of the notes (as to which the court upon sufficient evidence found in favor of plaintiff), and the alleged fact that defendant prior to the commencement of the action paid, not the notes, but "the indebtedness represented by said promissory notes" to the International Security Company. Clearly if at the time of the transfer made by the company defendant had paid the notes, or if subsequent thereto he had without notice of the assignment made payment, such facts, if pleaded, would constitute a defense. Bank of Stockton v. Jones, 65 Cal. 437, 4 Pac. 418. It is not alleged, however, that payment was made before notice of the transfer. Indeed, we may say the state of the record is such that defendant could not truthfully have made such allegation. Hence, since proof of the allegation, in the absence of evidence that

payment was made prior to notice, as to [fornia has surrendered its title to these which there was neither averment nor offer of evidence, would constitute no defense to the action.

[4] After the transfer of the notes prior to payment thereof, of which fact defendant by uncontradicted evidence is shown to have had notice, payment thereof if made by him to the International Security Company, having, as he knew, no interest therein, was at his peril. The judgment is affirmed.

lands to the United States, and only the action of an executive department of the United States-the Land Office-is necessary to complete the legal transfer of title.

Upon rehearing before this court, however, it is argued that the sole allegation touching this matter is simply that the state alleges "that the land described in plaintiff's complaint is surveyed land and is wholly situate within the exterior boundaries of a permanent reservation." It is contended

We concur: MELVIN, J.; HENSHAW, J. that this allegation is insufficient to present

(176 Cal. 745)
DESERET WATER, OIL & IRRIGATION
CO. v. STATE. (Sac. 2081.)

(Supreme Court of California. Dec. 14, 1917.)
APPEAL AND ERROR 835(2) REHEARING-
MATTERS NOT URGED ON ORIGINAL HEAR-

ING.
Where, in a suit to condemn land within a
national forest reservation as land of the state,
the defense that the state had parted with its
title by offering the land to the United States
as a basis for lieu land selections was treated
as in issue, and evidence thereon was introduc-
ed, and the decisions of the state and federal
Supreme Courts were based thereon, the objec-
tion could not be made on a rehearing in the
state Supreme Court that the pleadings were in-
sufficient to present this defense.

In Bank. Appeal from Superior Court,
Mono County; William S. Wells, Judge.
On rehearing. Judgment reversed.

the defense that the state had thus parted with its title, and that to treat it as presenting such a defense would be to do violence to the admissions in the pleading that the land is owned by the state of California.

But to this it must be answered that at the trial the pleadings were accepted as being sufficient to present the issue which was elaborately discussed in the former decision of the case and which formed the subject of review by the Supreme Court of the United States. The matters having been accepted as being questions in issue, evidence having been addressed to them pro and con, and the decision by this court and by the Supreme Court of the United States having been based thereon, respondent cannot be heard upon the objection which it now presents.

It follows therefrom that the judgment appealed from must be reversed, and it is or

For former opinion, see 167 Cal. 147, 138 dered accordingly. Pac. 981.

U. S. Webb, Atty. Gen., and John T. Nourse, Deputy Atty. Gen. (Percy V. Long, City Atty., and J. F. English, Asst. City Atty., both of San Francisco, amici curia), for the State. A. H. Ricketts and Metson, Drew & Mackenzie, all of San Francisco, and Horatio Allen, for respondent.

BUDD v. HUGHES et al. (Supreme Court of California.

(176 Cal. 687) (L. A. 4068.) Dec. 13, 1917.)

1. EVIDENCE 391 PAROL EVIDENCE AFFECTING WRITING-BILLS OF SALE.

sale.

Oral evidence will not be received to vary the terms of a written instrument, a rule anplicable in actions between parties to a bill of 2. EVIDENCE 419(7)-PAROL EVIDENCE AFFECTING WRITING NONAPPLICATION OF RULE WHERE CONTROVERSY IS BETWEEN PARTY TO WRITING AND ONE NOT A PARTY.

PER CURIAM. Upon appeal to this court the judgment of the trial court was affirmed, for reasons given in the opinion. 167 Cal. 147, 138 Pac. 981. Under writ of error to the Supreme Court of the United States (243 U. S. 415, 37 Sup. Ct. 394, 61 L. Ed. 821), that ter, having re-entered for nonpayment of rent, Where the lessor of a motion picture theacourt decided that the construction which executed bill of sale of the personalty therein, this court put upon the federal statute, including theater chairs installed by her tentherein following the decision of the highest ant, to a corporation, selling and transferring the property for $7,500, in action by the asfederal court which had spoken upon the signee of the tenant against the lessor's execumatter (Hibberd v. Siack [C. C.] 84 Fed. 571), tor and executrix to recover for the personalty was erroneous, and that, while the state of thus wrongfully sold, evidence that other conCalifornia had acquired title to the lands ined into the transaction resulting in the bill of siderations than the tenant's personalty enterquestion it had waived its right to such lands. The lands were withdrawn from sale by the state by an act of the Legislature, and the surveyor general of the state had offered the land back to the United States as bases for lieu land selections. The effect of the acts of the state under the construction which the Supreme Court of the United States has put upon the federal statute is not doubtful. In equity the state of Cali

sale was not inadmissible as varying the terms of the bill of sale, since where the controversy is between a party to a written contract, and who is, the rule excluding parol evidence to exone who is neither a party nor privy to one plain, vary, modify, or contradict a writing does not apply.

3. APPEAL AND ERROR 1071(1)-HARMLESS ERROR-FINDING OF NO INDEBTEDNESS.

defendant for plaintiff's use, error in finding In an action for money had and received by that defendant was not indebted to plaintiff's

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes