or premises, or of any interest therein whatever except a mere equitable interest as mortgagee under and by virtue of a certain indenture of mortgage, and that the Bank of Nevada, a corporation, was the owner in fee thereof, and that the same appeared of record on the public records of said Washoe county, of which plaintiffs were ignorant, and which defendants could, by the exercise of proper diligence and skill have discovered, and which they failed to discover by omitting to exercise due care and skill; and defendants were guilty of neglect and want of due care in examining into, and in the investigation of, the title of said land. (6) That the said mortgage by and through which said Hancock held said equitable interest, as aforesaid, was given to secure, and did secure, the payment of a certain promissory note, dated and executed November 1, 1897, and, by its terms, payable on demand. That the first plaintiffs, or either of them, discovered or learned that said Hancock was not the owner in fee of said lands and premises, but was the holder only of said equitable interest, as aforesaid, was on or about the day of February, 1904, and more than six years after the date and execution of said promissory note, and after any action to foreclose the said mortgage or collect the said note was barred by section 3718 of the Compiled Laws of Nevada of 1900, and when the said equitable interest which said Hancock held in and to said lands and premises, as aforesaid, had, without the fault of these plaintiffs, or either of them, become of no value whatever. (7) That said Hancock has failed and refused, and still does fall and refuse, to pay to plaintiffs, and said plaintiffs have not received from said Hancock, or at all, the said sum of $1,100, or any part thereof. (8) That by reason of the said Hancock's want of title, and the fact that plaintiffs took no title by said deed from Hancock, and the fact that said Bank of Nevada was the owner of sald lands and premises, as aforesaid, the plaintiffs were ousted and dispossessed of said land and premises by due course of law. Wherefore plaintiffs pray judgment against said defendants jointly and severally, in the sum of $1,100, together with interest thereon at the legal rate from the 28th day of June, 1902, and for costs and disbursements of suit." To this complaint defendants filed a general demurrer, the court sustained the demurrer, and, on plaintiffs de clining to amend, gave judgment for the defendants. From said judgment, this appeal is taken.

To sustain the judgment respondent's counsel make, if we correctly gather them from their brief, many points of objection to the complaint.

1. That the plaintiffs "do not allege that said purchase depended upon the abstract that was to be afterwards furnished to them by said defendants, or that said purchase

in any way depended upon what said abstract might disclose." Without going into an elaborate analysis of the allegation on this point, we deem it sufficient to meet the assault of a general demurrer; and whether it was sufficient to repel a special demurrer on the ground stated is not before us for determination.

2. Counsel's second point is that: "Said complaint does not allege that said abstract was to be made from the time of the issuing of the patent by the United States, nor from any particular date, time, or conveyance." We think this allegation is sufficient. It required defendants to furnish a "full and complete" abstract. We can see no reason why respondents should arbitrarily take any particular date, and say that, prior to that date, they were not required to make search and report of the title.

3. As a third point, counsel say: "In section 5 of page 3 of sald amended complaint, the plaintiffs allege that, at the time of the purchase of said described land the Bank of Nevada was the owner in fee thereof, and that the same appeared of record on the public records of Washoe county; but they allege nothing to show that said mortgage was not due and paid prior to the furnishing of the abstract by defendants, and plaintiffs simply assume that said title was in the Bank of Nevada." On the contrary, the allegation is an "assertion" not an "assumption" that the "Bank of Nevada was the owner in fee," etc.

4. Under the fourth point counsel say "plaintiffs allege that they were ousted and dispossessed of said land and premises by due course of law, by the Bank of Nevada, but they fail to show when or how they were ousted and dispossessed of said land and premises by said Bank of Nevada. They don't show when they went into possession or that they ever had possession of said land and premises. They don't show by what due course of law the Bank of Nevada ousted and dispossessed the plaintiffs of said land and premises. They simply state a conclusion of law, and all the authorities hold that you must state facts, and from those facts the conclusions are drawn." This allegation, too, we think, good under the general demurrer.

5. Fifth, counsel claim that the complaint does not "show that the plaintiffs, on discovering the defect in the abstract, took proper measures to avert the loss; and, if they fail to do so, cannot hold the abstracters liable." This claim is, we think, untenable. Plaintiffs were not required to show this. If the facts were otherwise, it was a matter of affirmative defense to be set up by defendants.

6. The sixth point states that there was "nothing to show that there ever was a demand made of said Hancock for the return of said $1,100, or any part of the same, and, without a demand on said Hancock for

the return of said $1,100, the plaintiffs cannot say that said Hancock would refuse to return the same if a demand was made, in other words, the plaintiffs have no cause of action against the defendants until all lawful means for the recovery of said $1,100 from said Hancock have failed. It must be shown, first, that said Hancock is insolvent, and nothing whatever can be collected from him, before the defendants have become liable in damages to said plaintiff." We think there was. It said "Hancock has * refused * * * and still does

*

** * * refuse to pay plaintiffs * * * the sum of $1,100, or any part thereof." Refusal to do a thing implies a demand made to do it. Certainly this would be so on general demurrer.

7. The seventh point is that there is no allegation that the plaintiffs have suffered loss of $1,100, or any sum; but only the statement of a conclusion of law that plaintiff's have so suffered. On the contrary we think an inspection of the allegation in this respect shows allegation of an ultimate fact, good as against general demurrer at least.

8. Counsel say there was no report in the abstract of title furnished by respondents that the land in question was free from all incumbrances; but only that it was from some incumbrances. Their contention is expressed as follows: "The attorneys for the plaintiff in their said brief on the demurrer, compare the Morange v. Mix case, in 44 N. Y. 315, with this case, and claim that this case is much stronger than the New York case; and we call the court's attention to line 4 on page 2 of their brief, where this language is found: 'While, in our case, the complaint alleges that it was to be free from any incumbrance.' Webster defines the word 'any' as one out of many, indefinite. 'Nor knoweth any man the Father, save the Son.' Matt. xi, 27. It is also defined as 'some,' an indefinite number or quantity, as 'Are there any witnesses present? Now the word 'any' incumbrance does not mean all incumbrances, as the word 'any,' in its largest meaning simply means 'some,' and does not mean from all incumbrances."

The language in the allegation (allegation 4) is: "That defendants, in the performance of the duties of such employment, did thereafter, and on or about the 25th day of June, 1902, furnish to plaintiffs a pretended ab stract of title to the said land, and did report and represent to plaintiffs that the same was a full, true, accurate, and correct abstract of the title to said land, by which pretended abstract of title it appeared and was shown that the said W. H. Hancock was the owner of said land and premises in fee simple without any incumbrances; in

reliance on said pretended abstract of title, and depending solely thereon, plaintiffs were induced to and did, on or about the 28th day of June, 1902, purchase said land and premises from said Hancock and did pay him therefor the sum of $1,100, in lawful money of the United States." The allegation is that "Hancock was the owner of said land and premises in fee simple without any incumbrances." The phrase "without any incumbrances," means just what it says. It means there were no incumbrances. deed, it means there was not a single incumbrance. It could not possibly mean there was some incumbrances, or even there was a single incumbrance. So to hold would be a strange perversion of language.

In

A few other points are made in the brief of respondents; but we think they are not of such moment as to require mention here, except the following:

9. Ninth point, if we correctly apprehend it, is this: That in case of negligence in the abstracter's work, and consequent loss therefrom, the damaged employer cannot sue the negligent abstracter until he has exhausted all remedy against the grantor of the title involved or shown that such grantor is insolvent. And, further, that this showing of exhaustion of remedy against grantor or his insolvency is an affirmative showing on the part of the plaintiff, and that, without such showing, his complaint would be bad on general demurrer. Is this the law? We think it is not necessary that such affirmative showing be made in the complaint, and it is unnecessary now to determine whether the same would constitute a defense if pleaded by answer. It is urged in the brief that Hancock may have paid the damages of $1,100 to plaintiff. It is alleged in the complaint, however, that Hancock has not se paid. It is also urged that Hancock may be able to pay it on being sued. Defendants' obligation was a direct contract to furnish plaintiff a full, complete, and correct abstract of title to the land in question, such as would protect the plaintiffs from incurring the loss that they have alleged. If plaintiffs had it in their power to protect themselves from such loss by any course of action that they could be reasonably and legally required to take; that is, an affirmative defense that respondents should set up and plead to defeat plaintiffs' action. The case of Morange v. Mix, 44 N. Y. 315, throws considerable light on this question.

We think the judgment appealed from in this case is erroneous. Said judgment is reversed, and the case is remanded to the trial court, for further proceedings in accordance with this opinion.

TALBOT and NORCROSS, JJ., concur.

(34 Mont. 418)

STATE. HOUR. (Supreme Court of Montana. Oct. 22, 1906.) 1. HOMICIDE-INSTRUCTIONS.

Where the court in its instructions defined the grades of unlawful homicide, and defined justifiable homicide, and charged that accused could not be convicted of murder in the first degree unless all the necessary elements including malice aforethought were present, an instruction that to constitute murder in the first degree, it was not necessary that the unlawful design to take life should have been entertained for any precise length of time, but it was sufficient if the killing was the result of deliberate premeditation, was not misleading because omitting malice aforethought as an element.

2. CRIMINAL LAW-EFFECT OF CHARGE AS A WHOLE.

A charge must be read as a whole, and if, when so read, it correctly states the law, it is sufficient, though an isolated sentence may when standing alone be erroneous.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 1990.]

3. HOMICIDE-SELF-DEFENSE-INSTRUCTIONS.

An instruction on a trial for homicide, that the right of self-defense is to be measured by what a reasonable person would have done under like circumstances, sufficiently conforms to Pen. Code, 361, declaring that the circumstances to justify self-defense must be sufficient to excite the fears of a reasonable person.

[Ed. Note.-For cases in point, see vol. 26, Cent, Dig. Homicide, §§ 616, 617.] 4. CRIMINAL

LAW-INSTRUCTIONS-MISLEAD

ING INSTRUCTIONS.

Where, on a trial for homicide, the court declared that the evidence must establish the guilt of accused beyond all reasonable doubt before a verdict of guilty could be rendered, an instruction that if "from the evidence," the jury found that accused, at the time he shot decedent, did not, as a reasonable man, believe that he was in imminent danger of losing his life, the killing was not in self-defense was not erroneous as leading the jury to find a verdict of guilty on a mere preponderance of the evidence because of the omission of the words "beyond a reasonable doubt," after the words quoted.

Appeal from District Court, Beaverhead County; Lew. L. Callaway, Judge.

Sidney Houk was convicted of murder in the second degree, and he appeals. Affirmed. Edwin Norris, C. M. Robison, and J. H. Duffy, for appellant. Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

BRANTLY, C. J. The defendant was convicted of murder of the second degree. He has appealed from the judgment of conviction and from an order denying him a new trial.

The questions submitted for decision arise upon certain paragraphs of the charge submitted to the jury which follow:

"No. 31. You are instructed that while the law requires, in order to constitute murder of the first degree, that the killing must be willful, deliberate, and premeditated, still it does not require that the willful intent, premeditation, or deliberation, shall exist for any length of time, before the crime is com

mitted; it is sufficient that there was 8 design and determination to kill distinctly formed in the mind at any moment before or at the time the Winchester rifle gun was fired; and in this case if you believe from the evidence, beyond a reasonable doubt, that the defendant feloniously shot and killed the deceased, as charged in the information, and that before or at the time the shot was fired, the defendant had formed in his mind a willful, deliberate, and premeditated design or purpose to take the life of the deceased, and that the shot was fired or that the fatal blow was given in furtherance of that design or purpose, and without any justifiable cause or legal excuse therefor, as explained in these instructions, they should find the defendant guilty of murder in the first degree."

"No. 35. The court instructs you, that in order to justify the use of a deadly weapon in self-defense, it must appear to the defendant that the danger was so urgent that, in order to save his own life, or to save himself from great bodily harm, the attack upon the deceased was absolutely necessary. And it must appear that the deceased was the assailant, or that the defendant had really and in good faith endeavored to decline any further struggle before the fatal shot was fired. A bare fear of the commission of the offense, to prevent which defendant used a deadly weapon, is not sufficient to justify it; but the circumstances must be sufficient to excite the fears of a reasonable man, and the party attacking must have acted under the influence of such fears alone. It is not necessary, however, to justify the use of a deadly weapon, that the danger be actual. It is enough that it be an apparent danger; such an appearance as would induce a reasonable person to believe he was in danger of great bodily harm. Upon such appearance a party may act with safety, nor will he be held accountable though it should afterwards appear that the indications upon which he acted were wholly fallacious, and that he was in no actual peril. The rule in such case is this: What would a reasonable person-a person of ordinary caution, judgment, and observation-in the position of the defendant, seeing what he saw, knowing what he knew, suppose from this situation and these surroundings? If such reasonable person so placed would have been justified in believing himself in imminent danger, then the defendant would be Justified in believing himself in such peril and acting upon such appearances."

"No. 37. If, however, you find from the evidence that at the time he shot Owen F. Ellis the defendant did not, as a reasonable man, believe he was in imminent danger of losing his life or suffering great bodily injury at the hands of the said Owen F. Ellis, then the killing was not done in self-defense,

but was either murder or manslaughter, no matter who began the affray, and even though the defendant had really and in good faith endeavored to decline any further struggle, and had so informed the said Owen F. Ellis."

The fault found with paragraph 31 is that it omits the expression "malice aforethought," an essential element of the crime of murder, and also conflicts with paragraphs 29 and 30 of the charge as given. In preceding paragraphs of the charge the court had defined all grades of unlawful homicide, pointing out and defining clearly and carefully the distinguishing elements necessary to constitute any grade of the crime. It had also correctly defined and distinguished justifiable homicide. In paragraphs 29 and 30 it further explicitly told the jury that the defendant could not be convicted of murder of the first degree unless it appeared from the evidence beyond a reasonable doubt that all the necessary elements, including malice aforethought, were present. In the paragraph in question it then properly pointed out that it was not necessary that the unlawful design to take life should have been entertained for any precise length of time, but that it was sufficient if it was the result of deliberate premeditation and prompted the killing. The court was at the moment dealing particularly with this element and no other. It then proceeded to say that, if the killing appeared to have been done in furtherance of such design and without lawful excuse, "as explained in these instructions," the jury should convict the defendant of murder of the first degree. Under this condition of the instructions it is hardly conceivable that the jury could have been misled. Besides, even if the paragraph is open to the objection made, it seems apparent that the jury were not misled, because the defendant was not convicted of the higher grade of the crime with which the court was then dealing. In considering a charge it should be read as a whole and judged accordingly. The court cannot discuss all phases of the law or cover every branch of the case in one paragraph. An isolated sentence or paragraph of a charge may be subject to adverse criticism when standing alone, but, when read in its proper connection, no fault can be found with it. Such, in our opinion, is the case here. When read in connection with other parts of the charge, particularly paragraphs 29 and 30, it is not only a correct exposition of the law, but is entirely consistent with these paragraphs and the rest of the charge. But counsel say that that paragraph is almost a literal copy of an instruction criticised by this court in State v. Shafer, 22 Mont. 17, 55 Pac. 526, and held to be objectionable. A comparison of the two shows that this contention is without foundation. The instruction in the

Shafer Case, not only omitted the expression "malice aforethought," but by the use of the word "only," in the phrase "it is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer," etc., actually excluded that element. Furthermore, the defendant in that case had been convicted of murder of the first degree, and the court was constrained to disapprove the instruction because it was, for the reason just stated, not in harmony with the rest of the charge.

The criticism made of paragraph 35 is that it does not state the legal standard by which the defendant's right to act upon appearances should be measured. It is said that he had a right to act upon appearances as they were presented to him, as a reasonable person; whereas the jury were told that his right was to be measured by what a reasonable person would have done under like or the same circumstances. The statute (Pen. Code, 361) adopts the reasonable person standard, for it declares that the circumstances must be sufficient to excite the fears of a reasonable person, and it must control. But after all, what substantial difference is there in the meaning of the two phrases, "fears of a reasonable person" and "fears of the defendant as a reasonable person?” We can see none. If the defendant must act upon appearances as a reasonable person, then his conduct must be judged by what a reasonable person would have done under the same circumstances, and this is the legal measure of his right. Counsel cites State v. Rolla, 21 Mont. 582, 55 Pac. 523, in support of his contention; but it is apparent from a reading of the opinion that the court's attention was not directed to the refined technical distinction for which contention is now made, and that it had no such notion in mind when it used the language it did. In any event, in this case the court followed the statute, and that must be held sufficient.

It is said that paragraph 37 is erroneous, in that it omits the words "beyond a reasonable doubt," after the word "evidence" in the first line. This paragraph was copied from State v. Tighe, 27 Mont. 327, 71 Pac. 3. The remarks made above upon instruction 31 are pertinent here. Standing alone, the statement may be open to the criticism made, but, when read in connection with the other parts of the charge, wherein the court again and again declared that the evidence must be sufficient to establish the guilt of the defendant beyond all reasonable doubt before the jury could convict, they could not have understood that they could find a verdict of guilty upon a mere preponderance of evidence.

Counsel for defendant assigns as error the refusal of the court to give certain instructions requested. The remarks upon the in

structions given sufficiently meet all contentions made in that behalf.

The judgment and order are affirmed.
Affirmed.

MILBURN and HOLLOWAY, JJ., con

cur.

(34 Mont. 424)

STATE v. FARRISS.

(Supreme Court of Montana. Oct. 22, 1906.) CRIMINAL LAW-RECORD-MANNER Of BringING UP.

Where the record defined by Pen. Code, 2229, as including the indictment, a copy of the minutes of the plea and of the trial, the charge given or refused, and the indorsements thereon, and a copy of the judgment, is included in the bill of exceptions, and not certified up by the clerk as the record, as required by section 2281, the merits of the appeal cannot be considered.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2887.]

Appeal from District Court, Silver Bow County; M. Donlon, Judge.

Shabin Farriss was convicted of an assault in the second degree, and he appeals. Affirmed.

E. S. Booth and H. A. Frank, for appellant. Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for the State.

BRANTLY, C. J. The defendant was convicted of assault in the second degree and sentenced to a term of three years in the state prison. He has appealed from the judgment and an order denying him a new trial.

The Attorney General makes the contention that the appeals may not be considered on their merits, for the reason that the transcript filed in this court does not contain an authenticated copy of the record of the trial in the district court, but a bill of exceptions only, settled, signed, and allowed by the judge who tried the cause. We think the contention must be sustained. Section 2229 of the Penal Code provides how the record shall be made up. The papers constituting the record proper cannot be brought up in a bill of exceptions, but must be certified up by the clerk as the record. Penal Code, 2281; State v. Morrison, 34 Mont. 85 Pac. 738.

In the transcript before us are what purport to be the papers constituting the record proper; but they are included in the bill of exceptions, and are not certified as the record, nor are they identified in any way by the certificate of the clerk or judge. Such being the case, there is no legal evidence before this court of what the action of the district court was. and consequently the merits of the appeals may not be considered. We more readily sustain the position of the Attorney General because of the fact that though his brief has been on file since August 8th, and the appellant has been fully 87 P.-12

ONIOUS INTENT.

Both at common law and under Pen. Code, 880, and section 883, as amended by Sess. Laws 1897, p. 247, defining larceny as a taking "with intent to deprive or defraud" the true owner, an indictment charging that defendant "feloniously and with the intent then and there to steal," etc., sufficiently charges a felonious intent, the phrase following the word "feloniously" taking nothing from the effect thereof.

[Ed. Note.-For cases in point, see vol. 32, Cent. Dig. Larceny, § 63.]

2. CRIMINAL LAW-EVIDENCE-ADMISSIBILITY -CO-CONSPIRATORS.

Prior to the formation of any conspiracy for the stealing and disposing of horses between defendant, a witness, and S., S., without defendant's knowledge, urged the witness to buy defendant's ranch, and pay for it with stolen horses, to be disposed of by defendant. Subsequently such an arrangement was made, S. being included in the agreement. Held, that the conversation between S. and the witness was inadmissible in a prosecution of defendant for the larceny.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 997-999.] 3. SAME.

Conversations between S. and the witness, having reference to the purpose of the conspiracy and occurring after its formation, were admissible, though without defendant's knowledge. [Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 996-1001.] 4. SAME.

It is not essential to the admission of declarations of co-conspirators out of the presence of the defendant that the witness be required to fix the time and place of the occurrence, and the persons present.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 989-990.] 5. SAME EVIDENCE OF OTHER CRIMES.

Where, in a prosecution for larceny, there is evidence to show a conspiracy under which horses stolen by others were to be disposed of by defendant, evidence is admissible of the larceny by co-conspirators of other horses than the one mentioned in the indictment, the brands on such horses having been changed, and most of them disposed of by defendant.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 833, 834, 9891001.]

6. SAME-POSSESSION OF STOLEN PROPERTYGUILTY KNOWLEDGE-CONSPIRACY.

In a prosecution for larceny, the possession of the stolen property by defendant soon after it had been stolen, in connection with an obvious change of the brands, and the fact that at different times animals with various brands