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of fact, it does not follow that the plaintiff will be the defendant, that he accepted the proposition injured thereby, nor can it be intended that the and would carry out the enterprise. It was theredefendant will fail or refuse to deliver to the upon agreed between Parnell and the Sheriff, that plaintifl, the quantity of water claimed in the when the money was taken, it should be marked complaint. The number of coltracts in which with acid so that it could be identified ; and that the defendant 18 about to enter and the quantity when the money was delivered to the defendant, & of water it is about to engage to deliver, are there. signal should be given by Parnell .to enable tha fore matters which do not concern the plaintiff, in sheriff to arrest the defendant with the money in a legal point of view.

his possession. The evidence tended to prove We think that there is nothing in the complaint that this prdgramme, as agreed upon by Parnell entitling the plaintiff to an injunction, and that and the Sherifi, was carried into effect ; that Par. the injunction was correctly dissolved.

nell entered the building, secured the money, It is proper to remark however, that this dispos1. marked it with acid, delivered a part of it to the tion of the appeal in no way effects the substan- defendant, gave the signal as agreed upon, and tial rights, if any, of the plaintiff, to the water in the Sheriff thereupon arrested the defendant with question, and that the defense set up in the an- the money to his possession. swer, or attempted to be set up, to the effect that On this state of the evidence the court instructed the contract between Chapman and the defendant the jury that if it was agreed between Parnell and was fraudulent, does not constitute an element of the defendant that the former should enter the the judgment rendered here. If the defendant building and steal the money, to be divided be. should refuse to deliver the water claimed by the tween them, and 11 in pursuance of the agree plaintiff, and should seek to justify the refusal by ment, Parnell did enter the building and take the setting up that the contract with Chapinan was money and divide it with the defendant was fraudulent in its character, it will then be proper guilty of burglary, and the Jurj should so find to consider of that defense.

without regard as to the part taken in the offense Order affirmed.

by the witness Parnell or as to the motives or in. tentions of said Parnell." This instruction was

erroneous. (Filed August 26, 1878.)

If Parnell entered the building and took the PEOPLE OF THE STATE OF CALIFORNIA,

money with no intention to steal it, but only in Plaintiff and Respondent,

No. 10,356

pursuance of a previously arranged plan between

hm and the Sherift, intended solely to entrap the Wu. COLLINS. Defendant and Appel.)

defendant into the apparent commission of a Appeal from the County Court of Colusa county, there being no felonious Intent in entering the

crime, it is clear that no burglary was committed, F. L. HATCR, COUNTY JUDGE.

building, or taking the money. If the act of Par. BURGLARY-INSTRUCTIONB-Held, that if the money nell amounted to burglary, the Sherifi, who countaken was taken by toe pretended accoa plice in

seléd and advised it, was privy to the offense ; but pursuance of previnus'y arrranged plan with

no one would seriously contend, on the foregoing burçlary was

committed, for want of telonious tacts, that the sherift was guilty of burglary. Tho intent on ihe part if the accomplice. U it were evidence for the prosecution showed that no bur. burrlary. tne Shenff wruld be privy to the glary was committed by Parnell, for the want of a offense.

felonious intent, and the defendant could not STATEMENT OF FAOTS.

have been privy to a burglary, unless one was The defendant was indicted April 2, 1878, by the committed. Grand Jury of Cologa county, for burglary, com- Judgment and order reversed and cause ra mitted March 31st, by entering the room of one manded for a new trial. Pedro Velardi, with intent to commit larceny: (Wallace C. d. did not express an opinion in this Defendant demurred. First-On the grounds of cage.) non-compliance with secs. 950-51-52 of Penal Code, as it does not state whether committed by day or

(Filed August 26, 1878.) night. Second-Does not state the facts contribating to the crime clcarly enough for him to plead WM. N. ANDERBON, AND E. DUBOIS, and defend. The demurrer was overruled, and Plaintifts and Respondents,

No. 6084 the trial proceeded by jury, and a verdict ren.

V. dered of burglary in the first degree. Motion was Wm. T. COLEMAN, Defendant and appel.) made for a new trial, which was denied : and de- Appeal from Twenty-second (formerly soventh) tendant sentenced to 4 years in the States Prlson,

District Court, Marin County. on April 20, 1878.

JACKBON TEMPLE, JUDGE. Defendant appealed from the judgment and or- MALICIOUS INJUNOTION -DAYAGES -Action tsi malte der denying motion for new trial.

cious prosecution can be sustained, only when The other sufficient facts are stated in the opin. mhon, and want of probable cause, conour. I ion, as already published.

either be wanting, it must fail. Jickson, Dist. Attorney, assisted by Richard Bayne,

STATEMENT OF PAOTS. for the People. John C. Denel and A. L. Hart, at

This was an action brought by plalatiti con torneys for defendant.

March 20, 1877.) for damages, for an alleged mallBY THE COURT.

cious injuncion sued out by defendant, without There was evidence tending strongly to show that probable cause against the plaintiffs, who were the defendant requested Parnell to enter a certain butchers at San Rafael as the firm of " Anderson building in the night time and to steal therefrom & Dubois." a sum of money which he knew to be concealed That injunction was brought to restrain them there : and that the money, when stolen, should from erecting any slaughter-house or pens, or do. be divided between them. The evidence also ten- ing any such business on any lot claimed by them ded to prove, that instead of accepting and acting in Block No. 1 of “ Picnic Valley Tract" in Marin upon this proposal, Parnell immediately informed county. the Sherit of it, who, after consultation with the It was served on them on December 28, 1874 District Attorney, advised Parnell to pretend to and was in force till November 15, 1876, when l'


was dissolved by the court, and, on appeal to the that they had had some trouble previously. Supreme Court, affirmed. These plaintiffs were The instructions given or refused appear sufficowners In fee of said Block No 1.,and claimed great lently in the opinion. costs and loss and damages by the injunction- A verdict of guilty was returned, upon which, having pald $1,000 counsel fees, and sustained defendant moved for a new trial, on the ground, damages, $5,000, in the suspension of their busi. among others, that it was proved that the pie ness--hence clalm damages $6,000. For answer, given did not contain strychnine, the only subdefendant makes full dental, except that the instance mentioned by any witness as 80 contained, Junction was in force to March 9, 1875 (when it was and hence not proved that it contalned any poidissolved); and pleads that the cause of action is Honous or noxious substance. fully barred by Section 339, C. C. P.

Motion denied, also for arrest of judgment Cause tried by Jury, and a verdict for plaintiffs, which was overruled, and the defendant sen. for $1,012, and costs of sult.

tenced to 10 years in the State Prison ; upon which Defendant moved for a new trial, upon a state- defendant appealed from the orders and judg. ment of the case, which was denied, and he ap-ment on December 27, 1871. pealed on April 20, 1878, from the judgment and B F. Thomas, District Attorney, for plaintiff and order.

respondent. Thomas McNulta, attorney for deL. E. Pratt, and T. H. Hanson, attorneys for fendant and appellant, and Paul R. Wright, of plaintifts and respondents. B. B Mahon, and B. Counsel. 8. Brooke, attorneys for dcfendant and appellant.


The defendant is charged with having adminis. Irrespective of the other, points relied upon prosecuting witness. The section under which

tered "& poisonous and noxious substance" to the by the

appellant and which it is not necessary to no.the Indictment was framed 19 as follows: "Section tice now, we are satisfied that there was error in 216-Every person who, with intent to kill, admin. the refusal of the court below to give the second in. Isters or causes or procures to be administered, to struction asked by the defendant and refused by another, any polson or other noxious or destruc. the court. That instruction, as asked, was as fol. tive substance or liquid, but by which death is not lows : “Second--If the defendant institated the caused, is punishable by imprisonment lu the action against w. W. Anderson and E. Dubois, to state Prison not less than ten years." obtain an injunction in good faith, without mal.

The court Instructed the Jury that if the detend. ice, and with no other motive than to protect his

ent own property from threatened injury, the plaintiffs either a poisonous or noxious substance, with

sve or administered to Henry Warmstead cannot; In this action, recover against him."

the intent then and there to kill him, as alleged in In order to sustain an action for malicious pros. the indictment," they must find the defendant concur. If either of these be wanting,

the action guilty. The court detined poisonous and noxious must fall. This is the settled rule, and was con.

substances as follows: “A poisonous substance is ceded by the counsel for the respondents at the erty capable of destroying life. A poslous sal

one which has an inherent and deleterious prop. argument. Now was the error in this respect stance is not necessarily poisonous,

but may be a cured by the other instructions.given at the trial.

sabstance which 18 hurtful and injurious." Judgment and order denying a new trial re

Accurate definitions of those terms cannot be versed and cause remanded.

readily given, and, perhaps, are impossible, and

proximate accuracy is all that may be required in (Flled August 26, 1878.]

the application of the statute in a given case ; but

the above definitions omit some of the essential PEOPLE OF THE STATE OF CALIFORNIA,

elements of the meaning of those terms, as em. Plaintiff and Respondent,

ployed in the statute. A poison is defined by No. 10,387.

Wharton & stille (Med. Juris., 1493,) as "a sub BETSEY VAN DELSER, Defendant and

stance having an inherent deleterious property, Appellant.

which renders it, when taken into the system, C Appeal from the County Court of Santa Barbara Beck's Med. Juris., with approval, is as follows;

pable of destroying lite." A definition stated in County.

"A polson 18 any substance which, when applied JUDOL.

to the body externally, or in any way latroduced MELONY - INSTRUCTIONS - DEFINITIONS - 82016, Into the system, without acting mechanically, but

PENAL UODE DEFINED Its Porvose le to provide by its own inherent qualities, is capable of des.

pupi.bment for attor pro to Hil, b. some fabulanco troying life." The definition of a polson, given The act of add 1 Istering a nuh tance that has not the by the

court would include substances which act capacity of destroying Ufs pot to be construed ne upon the system mechanically so as to destroy ad intent to kill. tipe omision of thest quality of lite. In that respect the definition was too broad: Capacity from the definition la tho instruction bat such substances are, in our opinion, included given at request of the prosecution hala erroneous.

within the meaning of the words of the statute, STATEMENT OP TACT.

• other noxious or destructive substance or liquid." The defendant was indicted, at the December The noxious or destructive substance or liquid term of 1877, of the County Court, for "adminis- mentioned in the statute, is not merely such as tering a poisonous and noxious substance to one might, when administered, be hurtful aud injuri. Henry Wormstead." “on the 7th day of No. 00s, but, like a poison, it must be capable of devember, 1871, with the intent feloniously and of stroying life. Palverized glass or bouing water malice aforethought to kill."

when administered in sufficient quantities would Upon arraigament the defendant demurred on destroy life, but they are not poisonous. The purDecember 4th, (upon several grounds) which was pose of the statute is to provide a punishmeni for overraled. and defendant pleaded "'not guilty." attempts to kill, by the means therein mentioned Cause tried by Jury.

and in order to bring a case within the statate, it It appeared in evidence that the deleterious sub- must be proved that the substance or liquid which stance administered was in a ple given by the de- was administered was capable of destroying lite. fendant to the prosecuting witness, who admitted the intent to kill, could not be inferred trom the


act of administering a substance which has not thereupon issued a pass book of credit to plaintiff the capacity of destroying life. The omission of for the amount. But it was all a mistake, as the that quality or capacity from the definition of a check was not, and never had been paid, and it noxious substance as given at the request of the was through no fault or neglect of defendant, and prosecution, rendered it erroneous.

that no real consideration for the credit had ever Judgment and order reversed, and cause re been received. mended for a new trial.

The said check had been presented to the drawere at Oakland and payment refused for want of

funds, and duly protested on November 27, 1875, l'owritten Docleron.

and thereupon defendant rescinded the contract

with plaintift, offered to restore the check, and (Decided August 26, 1878.)

demanded the pass book of deposit, and cancelled MATTER OF THE ESTATE OF

the credit on the books of the bank ; and now


claims $7 costs of protest fees, and $15 24 dame.

ges. Appeal from the Probate Court. Alameda County. To this answer plaintiff demurred, which was S. G. NYE, Probate Judge.

overruled, and a jury on the trial gave a verdict PROBATE OF WILL-INSUFFICIENT ATTESTATION.

for the plaintift.

The matter was then referred to Geo. C. Gibbs, STATEMENT OF CASE.

who reported findings in aceordance with the On May 1, 1878, R. S. Farrelly, and Michael Ker. above ; and further, that the Anglo-California win, Executors of the will of Dennis Sullivan- bank charged 75 cents for collecting the check, who died at San Leandro, on April 30th, preced. and that their correspondent in Oakland, the ing, petitioned the Probate court of Alameda "Union National Gold Bank," neglected for some Couniy to admit to Probate the will of the decedent, 10 days, to present the check to the drawers for dated April 29, 1878.

payment, for which defendant was liable, through The minor heirs resisted the application on the Its agents or corespondents, to the amount of the ground that the will was not legally attested, in draft. And that the issuance of the pass book to that one of the two witnesses, subscribing by his plaintiff operated to make him wurety for its mark, had no witness to his signature, (made by payment, upon which he was entitled to notice of an x.)

non-payment strictly as required by law-in order To this the petitioners demurred which, was to charge him as such endorser. overruled, and the court decided that the sig. The notices of dishonor were not sent in time nature of the witness, Bernard Glancey, not being required by law, hence the check has become the witnessed by Nugent, who wrote the name for property of the defendant, and he is liable to bim-for that reason and no other--the will was plaintift for the amount, $405 75, for which sum not executed according to law, and admission to Judgment was given. probate refused.

Motion was made on the judgment roll by de. Judgment and order affirmed. Remittitur fendant to set aside the judgment, which was forthwith.

denied. Montgomery & Martin, attorneys for appellant. Defendant then appealed on November 30, 1877. N. Hamilton, attorney jor respondents.

Judgment and order now affirmed.

Gunahl & McDaniel attorneys for plaintiff and

respondent. R. M. Widney attorney for defendant Vowriccro Dostulos.

and appellant. (Decided August 26, 1878.) Bex. LYNCH, Plaintiff and Respondent,

Vowrition Urclelon.

[Decided August 1, 1878.) THE LOS ANGELES COUNTY BANK, De

No. 5934.

Matter of the estate of David Gharky, deceased. fendant and appellant.

DAVID GHARKY Appeal from the seventeenth District Court, Los


NO. 6066.
Angeles County.


Appeal from Proba'e Court of Santa Cruz BANK DEPOSIT8-LIABILITY OF BANKS ON COLLEC


A. CRAIG, Judge.

CONTEST OF WILL-HABITUAL INTEMPERANCE-IN. This action was brought to recover from defend. SANE PREJUDICE-STATEMENT OF THE CASE. ant the sum of $761 25, claimed to have been de. Jobp Werarr made applicauon to probate tha posited in sald bank, on November 27, 1876, as a alleged #111 or David Gharky, deceased, who died term deposit, on which interest should be allowed August 16, 1977, au Santa Cruz, and lert property at the rate of 10 per cent. per annum, 11 left in for of ibe an uni of over $1,000. 6 months. On December 28th, plaintiff gave the It was willed in irusi, to several certain persons, bank notice of withdrawal in 6 months, and at and one ball the per. annual 10 cothe, was to be paid that time did demand it, and tendered a pass book, ro his son Divid Ghurky, semi-annually, during the evidence of its deposit, but it was refused. ilfe, and after his opath ro bis wife, aid after The bank denied the debt, but admitted that the thai tn thr children, 11 ans, and the other half of plaintiff delivered to them & check drawn on ibe annual income to the support of such pour Phillips & Chandler, Oakland, by themselves, to people of Santa Cruz county as the trustees the order of plaintiff for the sum in question, wigot name, and also the first dated ball to the which the bank took for collection, and forwarded sawe object, after the deaib ot tbe helis. Hall the same day, to the Anglo California Bank in San tbe priucipal or property might be lurested in Francisco-having no correspondent in Oakland. la pd and buildings peas Santa Cruz o ata in car.

On November 27th notice was received that the rying out bis last. pou pore. check was placed to defendant's credit, from which of this will John Werder was appointed execdefendant understood that it had been paid, and 'utor.




tien toe one-half the estare to be theirs in fue ad read in evidenee. This testimony tended to

If any child of the son David atrained majority, dead. Objection overruled and deposition solucr. Io a codicil, dated May 19, 1873, the provisions 10 fa vor of son David were transferred show that deceased, at the time he signed to his wife, Mary E., ada ne to tave $10 oply. the last codicil, thoroughly understood what Mary E. dien, leading to collareu-a con add a he was doing, and was of sound and dispos. to them and the son David to receiv* $70 ner ing mind and memory. Respondent argued mooth during lire. Date

or last codicii August 16, here that as the bill of exceptions did not Tbe petition for probite of the walls

area of the witness, it would be presumed that

show that no proof was offered of the absence The sin. David Goark, copres she will on such proof was made, and that, if the depothe groups to at ibe faroer was locompetent to sition was erroneously admitted, the tran10 moperance, add av ingade delusind as to the script shows that appellant could not have son, and under undue irauenre of passinds and been injured thereby. It was held, First, prejudice against him. All of which tar defend that the su mission of the deposition was unt deotes.

Cause tried October 26, 1877, by a jury, and the prima facie erroneous, and that it devolves Will sustained, an 1 w raer coudraled as execu- on respondents to show that the requisite tor. Motion made for a new trial, with a bull

of proof was made of the absence of the witness; exceptions ut the case, which was deplrd. d an and Second, that it was no answer to this from the judgment and the order aeaying Dew error to say that the appellant was not trial.

thereby injured ; that, as this is not a mere Appellant gave two notices of intention to contest between litigants, as in ordinary move for a new trial

. One after the special cases, but a proceeding in rem and binding verdict of the jury, stating that the motion on all the world, the proceeding must be would be made on a statement, and the

other without error. after the judgment admitting the wlil to pro

Judgment and order reversed, and causa rebatı, which stated that the motion would be mantea

cor a new trial. Remita ur forto eiro. made on a bill of exceptions. Before the ror coniestapt. and appellant. w.D. Storey actorhearing of the motion, the Probate Court ney for respondent made an order directing the Clerk to insert "" bill of exceptions” for “ statement" in the

Unwritten Decisions. first notice. This correction was not made until after the transcript was filed in this

(No. 10,325. ]—Decided Aug. 5, 1878. court, when a certified copy of the first no- THE PEOPLE OF THE STATE OF CALIFURNIA, tice as corrected was filed, and appellant moved to correct the transcript accordingly.

Plaintiff and Respondent. This motion was denied on the ground that WALTER CARRICK, Defendant and App't. the lower court could not make the change pending the appeal.

Appeal from the Ninth District Court, Respondents objected to the bill of excep-Siskiyou County. tions because it did not appear to have been

ROSBOROUGH, Judge. settled on notice ; but this court said that it MURDER-A-CESSORY-EVIDENCE OF AN ACCOMPLICE.— would be presumed that, whatever was nec.

Court held on the day of the State Judicial Election. essary to have been done was done prior to the signing of the bill of exceptions. Respondents objected to hearing the appeal The defendant was indicted, by the Crand from the order denying motion for a new Jury of Siskiyou County, along with one trial, because the statement mentioned in Indian Jim, and David Carrick,--for the the first notice was not Aled. It was held inurder of Walter Scott, who was shot and that, as the bill of exceptions formed a part mortally wounded by the Indian. of the judgment roll, whatever error was He was hired to do the deed by David thereby disclosed could be considered, and Carrick, -Walter assisting the murderer to that it was not necessary th a statement catch the horse, upon which he rode to the should have been filed.

spot where it was done, and loading and deAt the trial respondents offered in evidence livering to him the gun, and giving him food the depositon of Greeley, taken under the to eat while on his way. Upon arraignment third subdivision of section 2021 of Code of before the Ninth District Court, on June 6, Civil Procedure. Appellant objected to it, 1877, Jim pleaded guilty, and David and because there was no proof that the witness Walter Carrick not guilty. Upon trial-com. is absent from the country or is infirm or 'menced October 15th-Jim, and Lucy, an In

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dian woman, testified on the part of the tried to shoot deceased, when a witness State.

named Rollins interfered and took the gun The verdict of the Jury was murder in away, whereupon a scuffle took place, during the first degree, fixing the punishment at im- which defendant drew a butcher knife from prisonment for life. Defendant's counsel objected to the Court's deceased, from which death immediately re

his boot leg, and inflicted three wounds upon pronouncing judgment, on the ground that sulted. Upon the trial the defense attempt. the verdict was illegal, the Court having no ed to prove insanity, upon which point there jurisdiction to receive it or render judgment was conflicting testimony, but the jury, ig, thereon,—said Court having performed its nored it entirely. This is made a ground of judicial functions in the case, on the 17th of appeal,

also errors on other points, particuOctober, a non-judicial day, the day on larly

as to instructions asked. which the judicial election of California was

The judgment and order are affirmed-Ro. held.

mittitur forth with. Moved further that he be discharged from

E. H. Gaylor, District Attorney for Ne. custody, in that he could not be tried the vada County, attorney for the prosecution. second time for the same offense. A motion for a new trial was made and and appellant.

George S. Hupp, attorney for defendant overruled, and sentence was passed upon him in accordance with the verdict; and

We cannot forbear rescuing from the dusty peal taken.

archives of the law, the snbjoined peroration Among defendant's instructions it was of the eloquent counsel for the defense :held that a conviction cannot be had on the If it were permitted me to travel some. testimony of an accomplice, unless corrobor. what beyond the record, and to present to ated by other evidence, as it should be re- the consideration of your Honors a series of ceived with distrust.

facts which have come to the surface since Judgment and order affirmed, remittitur the trial of this cause, and which by the reaforth with.

sou of the local obscurity and impecuniosity C. Edgerton, attorney for appellant,

of the defendant, and the utter friendlessness Attorney-General for respondent.

which in this country seems almost always to follow in the wake of impecuniosity, I have

an abounding confidence that I could win (No. 10,344.—Decided Aug. 5, 1878.]

that civic wreath which under the iron law THE PEOPLE OF THE STATE OF CALIFORNIA, of old Rome it was the custom to bestow Plaintiffs and Respondents.

upon him who should save the life of a citizen.

If I were arguing a cause involving the Geo. BUTTS, Defendant and Appellant. ownership of a horse, of the value of three Appeal from the Fourteenth District

hundred dollars,' it might be that I could in.

voke the aid of Equity, for the purpose of Court, Nevada County. REARDON, Judge.

correcting th Law wherein it is 'defective

by reason of its universality ;'--but in the MURDER--PLEA OF INBANITY.

discussion of an issue upon which the unim.

portant 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.

of the law, and must accept the situation.” The defendant and his victim had been

Tis true'tis pity! partners in a mining operation.

And a pity 'tis-'tis true.” On the morning of September 6th, 1877, having previously had some disagreement in

SUIT FOR ATTORNEY'S FEES. their work, they met at their mining shaft,

A Friendly Lawyer and an Impecunious and defendant, who had brought a shot gun with him, threatened to shoot the first man who shouln attempt to descend, unless he

An action touching the relative rights of were first paid $25.00 due him. Deceased attorney and clients, in the matter of attorthen left the ground, (with two parties he ney's fees, was tried in the Municipal Court had employed to assist him), and went to a of Appeals a few days ago, It was brought 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 seryices as attor.

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