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of fact, it does not follow that the plaintiff will be
injured thereby, nor can it be intended that the
defendant will fail or refuse to deliver to the
plaintiff, the quantity of water claimed in the
complaint. The number of contracts in which
the defendant is about to enter and the quantity
of water it is about to engage to deliver, are there-
fore matters which do not concern the plaintiff, in
a legal point of view.

We think that there is nothing in the complaint
entitling the plaintiff to an injunction, and that
the injunction was correctly dissolved.

It is proper to remark however, that this disposi-
tion of the appeal in no way effects the substan-
tial rights, if any, of the plaintiff, to the water in
question, and that the defense set up in the an-
swer, or attempted to be set up, to the effect that
the contract between Chapman and the defendant
was fraudulent, does not constitute an element of
the judgment rendered here. If the defendant
should refuse to deliver the water claimed by the
plaintiff, and should seek to justify the refusal by
setting up that the contract with Chapman was
fraudulent in its character, it will then be proper
to consider of that defense.
Order affirmed.

(Filed August 26, 1878.)

PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,

V8.

No. 10,356

WM. COLLINS Defendant and Appel.
Appeal from the County Court of Colusa county,

F. L. HATCH, COUNTY JUDGE.
BURGLARY-INSTRUCTIONS-Held, that if the money
taken was taken by toe pretended accoa plice in
pursuance of a previous y arranged plan with
the Sueriff. solely to entrap the defendant, no
burglary was committed, for want of felonious
intent on the part of the accomplice. If it were
burglary. the Sheriff would be privy to the
offense.
STATEMENT OF FACTS.

The defendant was indicted April 2, 1878, by the
Grand Jury of Colusa county, for burglary, com-
mitted March 31st, by entering the room of one
Pedro Velardi, with intent to commit larceny.
Defendant demurred. First-On the grounds of
non-compliance with Secs. 950-51-52 of Penal Code,
as it does not state whether committed by day or
night. Second-Does not state the facts contrib-
uting to the crime clearly enough for him to plead
and defend. The demurrer was overruled, and
the trial proceeded by jury, and a verdict ren-
Motion was
dered of burglary in the first degree.
made for a new trial, which was denied; and de-
fendant sentenced to 4 years in the States Prison,
on April 20, 1878.

Defendant appealed from the judgment and or-
der denying motion for new trial.

The other sufficient facts are stated in the opinion, as already published.

Jickson, Dist. Attorney, assisted by Richard Bayne, for the People. John C. Denel and A. L. Hart, attorneys for defendant.

BY THE COURT.

There was evidence tending strongly to show that the defendant requested Parnell to enter a certain building in the night time and to steal therefrom a sum of money which he knew to be concealed there; and that the money, when stolen, should be divided between them. The evidence also tended to prove, that instead of accepting and acting upon this proposal, Parnell immediately informed the Sheriff of it, who, after consultation with the District Attorney, advised Parnell to pretend to

the defendant, that he accepted the proposition and would carry out the enterprise. It was thereupon agreed between Parnell and the Sheriff, that when the money was taken, it should be marked with acid so that it could be identified; and that when the money was delivered to the defendant, a signal should be given by Parnell to enable the Sheriff to arrest the defendant with the money in his possession. The evidence tended to prove that this programme, as agreed upon by Parnell and the Sheriff, was carried into effect; that Parnell entered the building, secured the money, marked it with acid, delivered a part of it to the defendant, gave the signal as agreed upon, and the Sheriff thereupon arrested the defendant with the money in his possession.

On this state of the evidence the court instructed the jury that if it was agreed between Parnell and the defendant that the former should enter the building and steal the money, to be divided between them, and if in pursuance of the agree ment, Parnell did enter the building and take the money and divide it with the defendant was guilty of burglary, and the jury should so find "without regard as to the part taken in the offense by the witness Parnell or as to the motives or intentions of said Parnell." This instruction was erroneous.

If Parnell entered the building and took the money with no intention to steal it, but only in pursuance of a previously arranged plan between him and the Sheriff, intended solely to entrap the defendant into the apparent commission of a crime, it is clear that no burglary was committed, there being no felonious intent in entering the building, or taking the money. If the act of Parnell amounted to burglary, the Sheriff, who counseled and advised it, was privy to the offense; but no one would seriously contend, on the foregoing facts, that the Sheriff was guilty of burglary. The evidence for the prosecution showed that no bur. glary was committed by Parnell, for the want of a felonious intent, and the defendant could not have been privy to a burglary, unless one was committed.

Judgment and order reversed and cause remanded for a new trial.

(Wallace C. J. did not express an opinion in this case.)

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STATEMENT OF FACTS.

This was an action brought by plaintiff (on March 20, 1877,) for damages, for an alleged malicious injuncion sued out by defendant, without probable cause against the plaintiffs, who were butchers at San Rafael as the firm of "Anderson & Dubois."

That injunction was brought to restrain them from erecting any slaughter-house or pens, or doing any such business on any lot claimed by them in Block No. 1 of " Picnic Valley Tract" in Marin county.

It was served on them on December 28, 1874 and was in force till November 15, 1875, when 1'

t

was dissolved by the court, and, on appeal to the Supreme Court, affirmed. These plaintiffs were owners in fee of said Block No 1.,and claimed great Costs and loss and damages by the injunctionhaving paid $1,000 counsel fees, and sustained damages, $5,000, in the suspension of their business-hence claim damages $6,000. For answer, defendant makes full denial, except that the inJunction was in force to March 9, 1875 (when it was dissolved); and pleads that the cause of action is fully barred by Section 339, C. C. P.

Cause tried by jury, and a verdict for plaintiffs, for $1,012, and costs of suit.

that they had had some trouble previously.
The instructions given or refused appear suffic-
lently in the opinion.

A verdict of guilty was returned, upon which, defendant moved for a new trial, on the ground, among others, that it was proved that the ple given did not contain strychnine, the only substance mentioned by any witness as so contained, and hence not proved that it contained any poisonous or noxious substance.

Motion denied, also for arrest of judgment which was overruled, and the defendant sentenced to 10 years in the State Prison; upon which defendant appealed from the orders and judg

Defendant moved for a new trial, upon a statement of the case, which was denied, and he ap-ment on December 27, 1877. pealed on April 20, 1878, from the judgment and order.

L. E. Pratt, and T. H. Hanson, attorneys for plaintiffs and respondents. B. B Mahon, and B. 8. Brooks, attorneys for dcfendant and appellant. BY THE COURT.

Irrespective of the other points relied upon by the appellant and which it is not necessary to notice now, we are satisfied that there was error in the refusal of the court below to give the second instruction asked by the defendant and refused by the court. That instruction, as asked, was as follows: "Second-If the defendant instituted the

action against W. W. Anderson and E. Dubois, to obtain an injunction in good faith, without malice, and with no other motive than to protect his own property from threatened injury, the plaintiffs cannot, in this action, recover against him.”

In order to sustain an action for malicious prosecution, malice and want of probable cause must concur. If either of these be wanting, the action must fail. This is the settled rule, and was conceded by the counsel for the respondents at the argument. Now was the error in this respect cured by the other instructions,given at the trial. Judgment and order denying a new trial reversed and cause remanded.

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B F. Thomas, District Attorney, for plaintiff and respondent. Thomas McNulta, attorney for defendant and appellant, and Paul R. Wright, of counsel.

BY THE COURT.

The defendant is charged with having administered "a poisonous and noxious substance" to the prosecuting witness. The section under which the indictment was framed is as follows: "Section 216-Every person who, with intent to kill, administers or causes or procures to be administered, to another, any poison or other noxious or destruc tive substance or liquid, but by which death is not caused, is punishable by imprisonment in the State Prison not less than ten years." ant ave or administered to Henry Warmstead The court instructed the jury that if the defendeither a poisonous or noxious substance, with the indictment," they must find the defendant the intent then and there to kill him, as alleged in substances as follows: "A poisonous substance is guilty. The court defined poisonous and noxious erty capable of destroying life. A noxious su one which has an inherent and deleterious propstance is not necessarily poisonous, but may be a substance which is hurtful and injurious.”

Accurate definitions of those terms cannot be readily given, and, perhaps, are impossible, and proximate accuracy is all that may be required in the application of the statute in a given case; but the above definitions omit some of the essential elements of the meaning of those terms, as employed in the statute. A poison is defined by Wharton & Stille (Med. Juris., 493,) as "a substance having an inherent deleterious property, which renders it, when taken into the system, capable of destroying life." A definition stated in

Appeal from the County Court of Santa Barbara 2 Beck's Med. Juris., with approval, is as follows:

County. JUDGE. FELONY-INSTRUCTIONS - DEFINITIONS — 830 16, PENAL CODE DEFINED-Its purpose is to provide a punishment for atter pts to kill, b. some substance or liquid capable of destroying life. The act of ade 1 istering a sub tarce that has rot the capacity of destroying life, not to be construed as an intent to kill. The omission of that quality or capacity from the definition in the instruction given at request of the prosecution held erroneous.

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"A poison is any substance which, when applied to the body externally, or in any way introduced into the system, without acting mechanically, but by its own inherent qualities, is capable of destroying life." The definition of a poison given by the court would include substances which act upon the system mechanically so as to destroy life. In that respect the definition was too broad: but such substances are, in our opinion, included within the meaning of the words of the statute, other noxious or destructive substance or liquid." The noxious or destructive substance or liquid mentioned in the statute, is not merely such as might, when administered, be hurtful and injuri ous, but, like a poison, it must be capable of destroying life. Pulverized glass or boiling water when administered in sufficient quantities would destroy life, but they are not poisonous. The purpose of the statute is to provide a punishment for attempts to kill, by the means therein mentioned; and in order to bring a case within the statute, it must be proved that the substance or liquid which was administered was capable of destroying life. The intent to kill, could not be inferred from the

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On May 7, 1878, R. S. Farrelly, and Michael Kerwin, Executors of the will of Dennis Sullivanwho died at San Leandro, on April 30th, preced. ing, petitioned the Probate Court of Alameda County to admit to Probate the will of the decedent, dated April 29, 1878.

The minor heirs resisted the application on the ground that the will was not legally attested, in that one of the two witnesses, subscribing by his mark, had no witness to his signature, (made by an X.)

To this the petitioners demurred which, was overruled, and the court decided that the sig. nature of the witness, Bernard Glancey, not being witnessed by Nugent, who wrote the name for him-for that reason and no other-the will was not executed according to law, and admission to probate refused.

Judgment and order affirmed. Remittitur forthwith.

Montgomery & Martin, attorneys for appellant. N. Hamilton,attorney jor respondents.

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This action was brought to recover from defendant the sum of $761 25, claimed to have been deposited in said bank, on November 27, 1875, as a term deposit, on which interest should be allowed at the rate of 10 per cent. per annum, if left in for 6 months. On December 28th, plaintiff gave the bank notice of withdrawal in 6 months, and at that time did demand it, and tendered a pass book, the evidence of its deposit, but it was refused. The bank denied the debt, but admitted that the plaintiff delivered to them a check drawn on Phillips & Chandler, Oakland, by themselves, to the order of plaintiff for the sum in question, which the bank took for collection, and forwarded the same day, to the Anglo California Bank in San Francisco-having no correspondent in Oakland. On November 27th notice was received that the check was placed to defendant's credit, from which defendant understood that it had been paid, and

thereupon issued a pass book of credit to plaintiff for the amount. But it was all a mistake, as the check was not, and never had been paid, and it was through no fault or neglect of defendant, and that no real consideration for the credit had ever been received.

The said check had been presented to the drawers at Oakland and payment refused for want of funds, and duly protested on November 27, 1875, and thereupon defendant rescinded the contract with plaintiff, offered to restore the check, and demanded the pass book of deposit, and cancelled the credit on the books of the bank; and now claims $7 costs of protest fees, and $15 21 damages.

To this answer plaintiff demurred, which was overruled, and a jury on the trial gave a verdict for the plaintiff.

The matter was then referred to Geo. C. Gibbs, who reported findings in aceordance with the above; and further, that the Anglo-California bank charged 75 cents for collecting the check, and that their correspondent in Oakland, the "Union National Gold Bank," neglected for some 10 days, to present the check to the drawers for payment, for which defendant was liable, through its agents or corespondents, to the amount of the draft. And that the issuance of the pass book to plaintiff operated to make him urety for its payment, upon which he was entitled to notice of non-payment strictly as required by law-in order to charge him as such endorser.

The notices of dishonor were not sent in time required by law, hence the check has become the property of the defendant, and he is liable to plaintiff for the amount, $905 75, for which sum Judgment was given.

Motion was made on the judgment roll by defendant to set aside the judgment, which was

denied.

Defendant then appealed on November 30, 1877. Judgment and order now affirmed.

Ganahl & McDaniel attorneys for plaintiff and respondent. R. M. Widney attorney for defendant and appellant.

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Appeal from Proba'e Court of Santa Cruz county. A. CRAIG, Judge. CONTEST OF WILL-HABITUAL INTEMPERANCE-INSANE PREJUDICE-STATEMENT OF THE CASE. John Werner made application to probate the alleged will of David Gharky, deceased, who died August 16, 1977, at Santa Cruz, and left property of the amount of over $1,000.

It was willed in trust to several certain persons. and one half the net annual income, was to be paid to his son David Gharky, semi-annually, during iife, aud after his death to bis wife, and after that to the children, it any, and the other half of the annual income to the support of such poor people of Santa Cruz county as the trustees might name, and also the first nameo bair to the sawe object, after the death of the heirs. Half the principal or property might be vested in land and buildings near Santa Cruz to aid in carrying out his last purpose.

Of this will John Werner was appointed exec

'utor.

1877.

If any child of the son David attained majority, then the one-half the estare to be theirs in fee absolute. Io a codicil, dated May 19, 1973, the provisions in favor of the son David were transferred to his wife, Mary E., and be to have $10 only. Mary E. died, leaving two children-a son and a daughter-and all her sbare was then transferred to them and the son David to receive $70 cer month during life. Date of last codicil August 15, The petition for probate of the will, dated August 22, 1877, shows property about $3,000, The son, David Goark, contes s the wilt on the ground that the farmer was incompetent to make the will or conicis, by reason of habitual 10 mperance, and ab insane delusion as to the son, and under undue irauence of passions and prejudice against him. All of which the defendCause tried October 26, 1677. by a jury, and he will sustained, ani Werner coudrmed as executor. Motion made for a new trial, with a bill of exceptions of the case, which was denied, and an appeal taken by patti on February 25, 1878, from the judgment and the order aenying new trial.

ant deoles.

Appellant gave two notices of intention to move for a new trial. One after the special verdict of the jury, stating that the motion would be made on a statement, and the other after the judgment admitting the wlil to probate, which stated that the motion would be made on a bill of exceptions. Before the hearing of the motion, the Probate Court made an order directing the Clerk to insert "bill of exceptions" for "statement" in the first notice. This correction was not made until after the transcript was filed in this court, when a certified copy of the first notice as corrected was filed, and appellant moved to correct the transcript accordingly. This motion was denied on the ground that the lower court could not make the change pending the appeal.

Respondents objected to the bill of exceptions because it did not appear to have been settled on notice; but this court said that it would be presumed that, whatever was necessary to have been done was done prior to the signing of the bill of exceptions. Respondents objected to hearing the appeal from the order denying motion for a new trial, because the statement mentioned in the first notice was not filled. It was held that, as the bill of exceptions formed a part of the judgment roll, whatever error was thereby disclosed could be considered, and that it was not necessary th a statement should have been filed.

At the trial respondents offered in evidence the depositon of Greeley, taken under the third subdivision of section 2021 of Code of Civil Procedure. Appellant objected to it, because there was no proof that the witness is absent from the country or is infirm or

dead.

read in evidenee. This testimony tended to Objection overruled and deposition show that deceased, at the time he signed the last codicil, thoroughly understood what he was doing, and was of sound and disposing mind and memory. Respondent argued here that as the bill of exceptions did not of the witness, it would be presumed that show that no proof was offered of the absence such proof was made, and that, if the deposition was erroneously admitted, the transcript shows that appellant could not have been injured thereby. It was held, First, that the admission of the deposition was prima facie erroneous, and that it devolves on respondents to show that the requisite proof was made of the absence of the witness; and Second, that it was no answer to this error to say that the appellant was not thereby injured; that, as this is not a mere contest between litigants, as in ordinary cases, but a proceeding in rem and binding on all the world, the proceeding must be without error.

Judgment and order reversed, and cause remanied for a new trial. Remittitur fortowiro. F. Adams And Charles B. Younger attorneys for contestant and appellant. W. D. Storey attorney for respondent

Unwritten Decisions.

[No. 10,325.]-Decided Aug. 5, 1878. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent.

VS.

WALTER CARRICK, Defendant and App't. Appeal from the Ninth District Court, Siskiyou County.

ROSBOROUGH, Judge. MURDER-ACCESSORY-EVIDENCE OF AN ACCOMPLICE. — Court held on the day of the State Judicial Election.

STATEMENT OF THE CASE.

The defendant was indicted, by the Crand Jury of Siskiyou County, along with one Indian Jim, and David Carrick,-for the murder of Walter Scott, who was shot and mortally wounded by the Indian.

He was hired to do the deed by David Carrick,-Walter assisting the murderer to catch the horse, upon which he rode to the spot where it was done, and loading and delivering to him the gun, and giving him food to eat while on his way. Upon arraignment before the Ninth District Court, on June 6, 1877, Jim pleaded guilty, and David and Walter Carrick not guilty. Upon trial-commenced October 15th-Jim, and Lucy, an In

dian woman, testified on the part of the State.

The verdict of the Jury was murder in the first degree, fixing the punishment at imprisonment for life.

Defendant's counsel objected to the Court's pronouncing judgment, on the ground that the verdict was illegal, the Court having no jurisdiction to receive it or render judgment thereon, said Court having performed its judicial functions in the case, on the 17th of October, a non-judicial day, the day on which the judicial election of California was held.

Moved further that he be discharged from custody, in that he could not be tried the

second time for the same offense.

A motion for a new trial was made and overruled, and sentence was passed upon him in accordance with the verdict; and an appeal taken.

Among defendant's instructions it was held that a conviction cannot be had on the testimony of an accomplice, unless corroborated by other evidence, as it should be received with distrust.

Judgment and order affirmed, remittitur forthwith.

C. Edgerton, attorney for appellant.
Attorney-General for respondent.

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STATEMENT OF THE CASE.

tried to shoot deceased, when a witness named Rollins interfered and took the gun away, whereupon a scuffle took place, during which defendant drew a butcher knife from bis boot leg, and inflicted three wounds upon deceased, from which death immediately resulted. Upon the trial the defense attempted to prove insanity, upon which point there was conflicting testimony, but the jury ig nored it entirely. This is made a ground of appeal,-also errors on other points, particularly as to instructions asked."

The judgment and order are affirmed-Remittitur forthwith.

E. H. Gaylor, District Attorney for Nevada County, attorney for the prosecution. George S. Hupp, attorney for defendant and appellant.

We cannot forbear rescuing from the dusty archives of the law, the subjoined peroration of the eloquent counsel for the defense :

"If it were permitted me to travel somewhat beyond the record, and to present to the consideration of your Honors a series of facts which have come to the surface since the trial of this cause, and which by the reason of the local obscurity and impecuniosity of the defendant, and the utter friendlessness which in this country seems almost always to follow in the wake of impecuniosity, I have an abounding confidence that I could win that civic wreath which under the iron law of old Rome it was the custom to bestow upon him who should save the life of a citizen.

If I were arguing a cause involving the ownership of a horse, of the value of three hundred dollars, it might be that I could in. voke the aid of Equity, for the purpose of correcting th Law wherein it is defective by reason of its universality;'--but in the discussion of an issue upon which the unimportant matter of a human life depends, I am

This was a trial and conviction for murder nailed down to the cold and technical rules in the first degree.

The defendant and his victim had been partners in a mining operation.

of the law, and must accept the situation." Tis true 'tis pity!

And a pity 'tis 'tis true."

SUIT FOR ATTORNEY'S FEES. A Friendly Lawyer and an Impecunious Client.

On the morning of September 6th, 1877, having previously had some disagreement in their work, they met at their mining shaft, and defendant, who had brought a shot gun with him, threatened to shoot the first man who shouln attempt to descend, unless he were first paid $25.00 due him. Deceased then left the ground, (with two parties he had employed to assist him), and went to a house, about a half mile distant, where the defendant soon followed with the gun still in by an attorney of this city against a former hand; angry words ensued, and defendant' client, to recoyer $225 for services as attor

An action touching the relative rights of attorney and clients, in the matter of attor ney's fees, was tried in the Municipal Court of Appeals a few days ago, It was brought

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