told him if he felt like it he could make a statement to these men. I told him that it was not necessary unless he wanted to, and he said he would tell them. Even if there was a question as to the admissibility of these confessions, the error, if any, became cured when the defendant became a witness in his own behalf, and corroborated every statement contained in his various confessions. People v. Ketchum, 73 Cal. C35, 15 Pac. 353; People v. Daniels, 70 Cal. 521, 11 Pac. 655; 12 Cyc. 466.

Last

5. After Ibapah had testified in his own defense, and rested his case, counsel for Johnny called as a witness Antelope Jack, Chief of the Goshouts, to testify to the character of Ibapah. To his testimony counsel for Ibapah interposed the following objection: "I object to placing any witnesses on the stand with reference to Ibapah by the codefendant Johnny, as it cannot possibly touch the question as to who was the instigator of this crime." The objection was overruled, and we quote from the record the following testimony of the witness: "My name is Antelope Jack. I live at Deep Creek. I live there long time. I know Ibapah, since he was small boy-ever since his father give him whisky. Ibapah's father all the time give him whisky. He is a good boy-everybody know he is a good boy. Everybody think when he grow up he was a good boy. summer Indians think about him, maybe he kill white man and maybe he kill Indian. Everybody around Deep Creek is afraid of Ibapah. Ibapah was a little boy when his father first gave him whisky. I think Ibapah was a good boy when he was little. When he was a boy he was always a good boy. When he get big everybody was afraid of him. When he got drunk he was bad: When he was not drunk he good boy." Conceding, without deciding, that it was error to have admitted this testimony, we are unable to see how it could have been prejudicial to the defendant Ibapah. Ibapah had already testified that he had killed the deceased by cutting his throat while Johnny held his hands, and that thereafter they had thrown the body upon the fire. He was not seeking to establish innocence of crime, but his effort was directed to avoiding a convic tion of murder in the first degree, by showing that he was in a drunken condition at the time he killed the deceased, and was therefore incapable of that premeditation which is an essential element of murder in the first degree. Evidence which tended to show that intoxicating liquor had the effect of transforming him from a good boy into a dangerous character, we think could not have prejudiced the defense, but would rather tend to strengthen it.

6. Counsel for Johnny assigns error in the refusal of the court to strike out, upon the ground that it was hearsay, the testimony of an Indian witness called "Captain Jim," who testified upon the part of the state, to

the effect that on the night of the killing the two defendants were at his camp, and that Ibapah said in the presence of Johnny, that "Johnny held the man's hands while Ibapah cut his throat." We doubt if the record of this testimony will warrant a conclusion that it was hearsay. But, conceding that it was, the error in admitting it was harmless, for other witnesses testified to the same conversation, and Johnny, as a witness in his own behalf, also testified to the same effect. People v. Marseiler, 70 Cal. 98, 11

Pac. 503.

7. Upon the law of drunkenness as a defense to crime, the court gave instructions Nos. 26 and 27 of its own motion, and defendant's requested instruction No. 5, which instructions read as follows:

"(26) It is a well-settled rule of law that drunkenness is no excuse for the commission of a crime. Temporary insanity, produced by intoxication does not destroy responsibility, when the party, when sane and responsible made himself voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt, for when a crime is committed by a party while in a fit of intoxication, the law will not allow him to avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. Evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of the crime, and, for this purpose, it must be received with great caution.

"(27) In this case if you find that the defendants unlawfully and with malice aforethought, as already defined to you, killed the person designated as Fred Foreman, it is murder and if such killing was willful, deliberate, and premeditated, or was done in the perpetration or attempts to perpetrate robbery, it is murder of the first degree, otherwise it is murder of the second degree; and in determining the degree, any evidence tending to show the mental status of the defendants is proper for the consideration of the jury. The fact, if it be a fact, that the defendants were drunk, does not render the act less criminal, and in that sense it is not available as an excuse, but there is nothing in this to exclude it as evidence upon the question as to whether the act was deliberate and premeditated or was committed in the carrying out of an intent to rob. Presumptively, every killing is murder, but so far as the degree is concerned, no presumption arises from the mere fact of killing, considered separately and apart from the circumstances under which the killing occurred. The question is one of fact to be determined by the jury from the evidence in the case, and it is not a mere legal conclusion, and drunkenness, as evidence of a want of premeditation or of an intent to rob, is not within the rule which excludes it as an excuse. Drunkenness neither excuses the offense nor avoids the punishment which the law inflicts, when the

character of the offense is ascertained and determined; but evidence of drunkenness is admissible solely with reference to the question of premeditation, or where there is evidence tending to show that a murder has been committed in the perpetration or attempt to perpetrate a robbery, as to the question of the existence of the felonious intent to steal which is an essential element of robbery. In cases of premeditated murder, the fact of drunkenness is immaterial. A man who is drunk may act with premeditation as well as a sober one, and is equally responsible for the consequences of his act. In murder of the first degree, it is necessary to prove the killing was premeditated or was committed in the perpetration or attempt to perpetrate robbery or one of the other felonies already enumerated, which involves, of course, an inquiry into the state of mind under which the party committed it, and in prosecution of such an inquiry, his condition as drunk or sober is proper to be considered. The weight to be given it is a matter for the jury to determine, and it should be received with great caution and carefully examined in connection with all the circumstances and evidence in the case. You should discriminate between the conditions of mind merely excited by intoxicating drink and yet capable of forming a specific and deliberate intent to take life, and such a prostration of the faculties as renders a man incapable of forming the intent, or of deliberation or premeditation. If an intoxicated person has the capacity to form the intent to take life, and conceives and executes such intent, it is no ground for reducing the degree of his crime that he was induced to conceive it, or to conceive it more suddenly by reason of his intoxication."

Defendants' requested instruction No. 5: "You are instructed that in order to find the defendants or either of them guilty of murder in the first degree you must find from the evidence beyond all reasonable doubt that the murder was perpetrated by means of poison, or lying in wait, or torture, or by any other willful, deliberate, and premeditated killing, or in the perpetration or attempt to perpetrate robbery. This ingredient of deliberate premeditated killing must be clearly shown and proven beyond all reasonable doubt. It is not sufficient that you think that the killing was deliberate and premeditated, the evidence must convince you of that fact to an abiding certainty and beyond all reasonable doubt. The evidence of deliberation and premeditation must be such as to convince you that the deliberate premeditated design and purpose to murder was knowingly and intentionally formed and considered in the mind of each defendant and meditated upon before the fatal blow was struck; and, in considering whether such a design was formed in the minds of each of the defendants, you should consider the evidence, if any, of drunkenness. If the defendants were

It

drunk at the time, and were too much intoxicated to form such a deliberate and premeditated purpose, they cannot be found guilty of murder in the first degree. is true that drunkenness is no excuse for the commission of an offense, but nevertheless the jury must consider the evidence of drunkenness and determine whether it was sufficient to so cloud the minds of the defendants as to interfere with the formation of deliberate and premeditated purpose to kill. If the drunkenness was sufficient to create a reasonable doubt in your minds as to the existence of such a deliberate premeditated purpose you cannot find the defendants guilty of murder in the first degree."

Counsel for defendants attack the court's instruction No. 27 as being an erroneous statement of the law, ambiguous and misleading, consequently, highly prejudicial to the defendants. The instruction complained of was doubtless copied in the main from an instruction that has a number of times met with the approval of the Supreme Court of California. People v. Williams, 43 Cal. 345; People v. Belencia, 21 Cal. 545; People v. Lewis, 36 Cal. 531; People v. Ferris, 55 Cal. 592; People v. Jones, 63 Cal. 168; People v. Vincent, 95 Cal. 425, 30 Pac. 581. The instructions upon the law of drunkenness, as applicable to this case, should be considered together. The jury, we think, were fairly and correctly instructed upon this point of the law. People v. Leonardi, 143 N. Y. 364, 38 N. E. 372; State v. Hawkins, 23 Wash. 289, 63 Pac. 258; Wilson v. State, 60 N. J. Law, 171, 37 Atl. 954, 38 Atl. 428; Hopt v. People, 104 U. S. 632, 26 L. Ed. 873; Booher v. State, 156 Ind. 447, 60 N. E. 156, 54 L. R. A. 391; State v. Thompson, 12 Nev. 151. See, also, 21 Cyc. 670; McClain on Cr. Law, § 162. 8. The refusal of the court to give certain requested instructions upon the law of manslaughter was not error, as there was no evidence tending to reduce the offense to the grade of manslaughter. State v. Donovan, 10 Nev. 36; State v. Millain, 3 Nev. 409; Pirtle v. State, 9 Hump. (Tenn.) 663; State v. Weaver, 35 Or. 415, 58 Pac. 109.

9. A number of instructions requested by defendants were refused by the court, either upon the ground that they were inapplicable to the case, or that they were covered by instructions already given. A careful examination of these requested instructions convinces us that the court did not err in their refusal. State v. Buralli, 27 Nev. 54, 71 Pac. 532; State v. Maher, 25 Nev. 465, 62 Pac. 236.

10. It is contended that the instruction given at the request of the prosecution relative to the consideration which the jury should give to the defendants' testimony, was erroneous and prejudicial. This instruction, substantially as given by the court in this case, has heretofore in a number of cases been approved by this court. State v. Hartley, 22 Nev. 360, 40 Pac. 372, 28 L. R. A. 33; State

v. Streeter, 20 Nev. 403, 22 Pac. 758; State v. Hing, 16 Nev. 307; State v. Hymer, 15 Nev. 49. The following language of the instruction is that to which exception is particularly taken: "If convincing and carrying with it a belief in its truth, you have a right to act upon it; if not, you have a right to reject it," etc. As this instruction has been given in other cases in this state, the words we have italicized have been omitted. It is urged by counsel here that the use of these words was, in effect, a direction to the jury that it was entirely optional with them whether they should act upon the testimony of the defendants, even though they believed in the truth of the same. While we think it would have been clearer to have omitted from the instruction the words in question we do not think it at all probable that the jury placed any such construction as contended upon them. In another instruction the jury were told that they "must consider all the evidence," etc. That a jury would fail to give due consideration to the testimony of a defendant, which was convincing and carried with it a belief in its truth, is too unreasonable for consideration. We have no hesitancy in saying that the defendants were not prejudiced by this instruction.

There are some other alleged errors in the record, but we have examined them, and think they are not of sufficient merit to require notice here. Counsel for defendants have dwelt in their briefs upon the point that the defendants were Indians, and that, as a matter of general knowledge, intoxicating liquor more readily destroys the mental faculties of the Indian than it does those of the white man. It is further argued that the very revolting manner in which this crime was committed tends strongly to prove that at the time the crime was committed the defendants were impelled to commit the murder because of their drunken condition. We may concede all that counsel has to say upon this question. This case serves as a terrible illustration of what may result from the crime of disposing of spiritous liquors to Indians. Liquor has the effect of arousing in the Indian all the dormant savagery and cruelty of his nature. It is a crime in this state to dispose of liquor to Indians, and it may not be out of place here to say that the violation of this law doubtless led to the revolting murder committed by these two defendants. The statute of this state applies the criminal laws to the Indians, without reservation, other than where the offense is committed' by one Indian against another upon a government reservation. Comp. Laws, § 4655. Upon the trial for an offense, they are subject to the same laws, rules, and conditions, as govern in the case of a white man. The case appears to have been very carefully tried in the lower court. We have examined all of the assignments

of error, and our conclusion is that the judgment of the trial court must be affirmed.

The judgment and order denying the motion for a new trial are affirmed, and the district court is directed to fix a time and make all necessary and propers orders for having its sentence carried into effect by the warden of the state prison.

FITZGERALD, C. J., and TALBOT, J.,

concur.

(149 Cal. 543)

ARROYO DITCH & WATER CO. v. BEQUETTE. L. A. 1,634.

(Supreme Court of California. Aug. 13, 1906. Rehearing Denied Sept. 12, 1906.)

1. WATERS AND WATER COURSES-IRRIGATION DITCHES-REPAIR-LIABILITY OF OWNERS

STATUTES.

Where land owners constructed an irrigation ditch, and by custom, prior to the formation of a corporation to operate the ditch, contributed to the cost of maintenance above, but not below their point of diversion, a corporation thereafter organized could not compel a co-owner of the ditch, not a member of the corporation, to contribute to the improvement of the ditch below his point of diversion either at common law or under St. 1889, p. 202, c. 168, declaring that where two or more persons construct a common irrigation ditch, each shall be liable to the other for the reasonable expense of maintaining and repairing it, in proportion to his share in the use of the water, etc. 2. SAME-ISSUES AND PROOF.

Where plaintiff sought to recover defendant's alleged proportionate share of the cost of all improvements on an irrigation ditch, and introduced no evidence of the amount of defendant's share of the cost of the improvements made above defendant's point of diversion for which alone defendant was liable, the court was justified in giving judgment for defendant.

Department 1. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by the Arroyo Ditch & Water Company against L. L. Bequette. From a judgment for defendant, plaintiff appeals. Affirmed.

Kendrick & Knott and J. H. Ardis, for appellant. John S. Chapman, J. L. Fleming, and Goodrich & McCutchen, for respondent.

SHAW, J. This is an action to recover $364.52, alleged to be due plaintiff as the defendant's proportion of the cost of certain improvements and repairs made by plaintiff to a ditch owned in common by plaintiff, defendant and others. About the year 1869 certain persons, each being the owner in severalty of a tract of land susceptible of irrigation by water to be diverted from the stream now known as the "Old Sam Gabriel River," constructed a dam in the stream for the diversion of the necessary water, and made a common ditch leading from the dam to, or adjacent to, their respective tracts of land, by means whereof they thereafter diverted water from the stream and

each used a due proportion thereof on his land for its irrigation and for domestic use. From time to time thereafter other owners of land were admitted to share in the water and in the use of the ditch until the water became appurtenant to an aggregate area of 3.950 acres of land, owned in small tracts, in severalty, by a large number of persons. The main ditch, which became known as the "Arroyo Ditch," was several miles in length from the dam on the river to the lowest tract reached thereby. Some tracts did not abut upon the main ditch, and were supplied through branch ditches, each constructed from the main ditch by the particular persons owning the tracts situate along such lateral. By a common custom, or understanding, among the respective persons interested, each contributed to, or assisted in, the maintenance and repair of the main ditch from the dam down to the point where it passed the lower line of his land, if the land abutted thereon, or down to the point of departure of his particular branch ditch, if his land did not abut upon the main ditch, but did not contribute to, or assist in, such maintenance or repair, below his land or ditch, as the case might be; and each landowner along each branch contributed in like manner to maintain and repair his part of the particular branch ditch upon which he was situated, but did not so contribute to the other branch ditches. many years' use in this manner, and apparently without any specific or express common agreement, oral or written, except such as would be inferred and implied from their conduct, each owner, respectively, acquired a right to the water, and to the common use of the ditch to convey the water to his land, and a corresponding estate in common in the ditch and in the water diverted from the river thereby; the interest of each being such proportion of the whole as the acreage of his irrigated land bore to the entire acreage irrigated, or considered as entitled to irrigation, by the diverted water. In the course of this process common rights of way for the main ditch were acquired, from time to time, by the users of the water, either by conveyances or prescription, and a compromise was effected with other claimants of water from the river, whereby the parties herein concerned acquired the right, as against the others, to divert for their use a specific proportion of the water of the river. The defendant purchased from the original owner one of these tracts of land, containing 40 acres entitled to the water, and thereby became the owner of an interest in the water and ditch; his interest being such proportion of the whole as 40 is to 3,950.

By

For convenience of management, the owners of all the irrigated lands, except 622 acres, organized the plaintiff corporation, each taking stock therein proportioned to the number of acres of his irrigated land,

and each transferring to the corporation his interest in the water and ditch; the corporation undertaking the obligation to distribute and deliver to its stockholders' land the water to which such land was entitled, and to perform the aggregate obligations of all of its stockholders to maintain and repair the ditch and its branches. The cost of the maintenance and repairs thereafter done by the corporation was raised by assessments upon the stock, from time to time, which were levied uniformly upon all the stockholders alike. The respective owners of the 622 acres, usually known as "outsiders," among whom was the defendant, did not become members or stockholders of the corporation, but each thereafter continued to use his respective share of the water from the ditches, and to contribute to the maintenance and repair of the ditches down to but not below, his own land, in the same manner as before. The defendant's land was situated on a branch ditch known as the "Sand Ridge Ditch" near its junction with the main ditch. This was the first branch ditch leading off from the main ditch. The ditches were ordinary open ditches, constructed in the earth, such as were in ordinary use for the distribution of water. The soil was dry and, in some places, light and sandy, in consequence whereof a considerable part of the water was lost by seepage and absorption in transmission to the lands. Defendant's land was near the head of the ditch and his loss from this cause was comparatively small, but the loss to the more remote lands was very great, so much, in fact, that at times, according to the evidence, the entire flow would be lost in that way before it would reach lands situated at the lower end of the ditch. This loss was not due to the bad condition or lack of repair of the ditch and its branches, but to the nature of the soil, and, at the time of the improvements made by the plaintiff, was not greater than it had been usually ever since the ditch was first constructed. To prevent this loss and save the water for the users, particularly those situated toward the lower end of the ditch, the plaintiff corporation built a wooden flume over 5,000 feet long, above the defendant's land, connecting it with the main ditch at each end, and also cemented the sides and bottom of parts of the main ditch and its branches, including a part of the Sand Ridge ditch; the aggregate length of such cement work in all the ditches amounting to several miles. Since this work was done the water has been carried through this flume and through the ditches thus cemented, and has been received by the interested parties in the same proportions as before.

The entire cost of these improvements made by the plaintiff was $35,997.24, and the defendant's proportion thereof, computed according to his interest in the water diverted

in common from the river, that is, as 40 to 3,950, would be $364.52. The length of the cement work above and across defendant's land is less than half a mile, while its length below his land is more than three miles. The court does not find the distances more exactly. The defendant derives no benefit from the cement work below. The cost of the entire cement work was $31,880.99. One-seventh of this, or $4,550.14, together with the cost of the flume, $4,146.25, aggregating $8,696.39, comprise all the expense for work on and above the defendant's land. This assumes that the expense of the cement work was uniform throughout the course of the ditches, and nothing appears to the contrary. The defendant's pro rata share of the above sum of $8,696.39 would be only $88.06. The plaintiff sues for $364.52, being, as stated, his share of the whole cost of the work both above and below his land. The water has never been distributed among the respective owners by giving to each a continuous flow of a small stream, proportionate to his undivided interest in the stream diverted from the river. The division has always been effected by the method of delivering to each owner in his turn, beginning with those nearest the dam, a stream of water designated as a "head," for a certain number of hours; the time being regulated in proportion to the amount of his interest, until all were served in turn, and by repeating the process throughout the irrigating season. When the water was low the stream constituted but a single head. If the flow was sufficient, it was divided into from two to three heads, according to the volume of water available, and each head was delivered to a different owner. The defendant was the third person entitled, in order, at the beginning of a turn. Although it is not expressly stated, it is nevertheless plain from the facts found, that this method of division, if it was not originally specially agreed upon, has been continued so long that it has become part of the right of each owner of an interest in the water. Since the cementing of the ditch and the building of the flume, the defendant has received, and claimed the righ to receive, his "head" of water for the same number of hours in each "turn" as before, although the effect of the flume and cement has been such that he has thereby received a substantially larger quantity of water than before; the amount of the increase being indeterminable from the evidence. The defendant did not consent to the making of the improvements. He was not asked to assist in the work, but was previously informed by the plaintiff that it proposed to make the improvements, and was asked to pay his share of the expenses. His situation is such that he cannot obtain the water at all except through the improved ditch.

The contention of the plaintiff is that, although plaintiff was under no compulsion, as a common owner, to make the improvements for the preservation of the common

property; that is, of the portion previously lost by absorption in dirt ditenes, and had no legal right to compel contribution in advance thereto by the defendant, or to force him to increase the amount of his water supply by those means, and although the defendant has the undoubted right to continue to demand and receive his full supply of water through the improved ditches, without contributing at all to the cost of the improvement, he is thus compelled to use for that purpose, nevertheless, if he knowingly claims and receives the additional amount of water which the improved ditch carries to his land; that is to say, that portion of his share of the water diverted at the dam which would have been lost by absorption before reaching his land if the improvements had not been made, he thereby assents to and ratifies the action of the plaintiff in the construction of the improvements and becomes bound to pay his proportionate share of the cost thereof. In support of this proposition the plaintiff cites the case of Stockwell v. Mutual L. I. Co., 140 Cal. 201, 74 Pac. 21, 98 Am. St. Rep. 25, in which case it was held that if one of several beneficiaries in a life insurance policy, who desires to preserve the policy from forfeiture, is compelled to pay the whole of the premium in order to do so, and the policy thereafter becomes due, the other beneficiaries cannot share in the proceeds thereof without paying to him their proper share of the premiums paid to prevent forfeiture.

No exception can be taken to the just and equitable rule laid down in that case. If the plaintiff's conduct and cause of action came within its terms its case would be impregnable. There are, however, vital differences. The court finds that a large proportion of the saving of water occurs in the branch ditches not used by the defendant, and in the main ditches below the defendant's land, and that the defendant had water sufficient for his land without the saving caused by the improvements. The defendant, of course, cannot share in or receive any benefit from the saving made after the stream passes his land, unless he takes it out below and uses it elsewhere. It is not shown that he does so, nor that he desires to do so, nor that he claims any such right. On the contrary, his claim is limited to the flow of the usual "head" for the usual number of hours in regular order, and the court finds that his acceptance of the benefits of the increase in the flow produced by the improvements, "has been because of his inability to obtain any water otherwise" than through this ditch. Thus, although the defendant has participated only in the saving made above his land, the demand of the plaintiff is not limited to a due proportion of the cost of the improvements made upon that portion of the ditch, the improvements which caused. the saving in which alone he shares, but extends to and includes his regular pro rata share, according to his relative acreage, of