In Bank. Appeal from Superior Court, Sonoma County; A. G. Burnett, Judge.

A. J. Grill was convicted of murder, and he appeals. Affirmed.

See 86 Pac. 613.

Ross Campbell, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, for the People.

SHAW, J. The defendant was charged with the murder of one W. S. Pearse. He was convicted of murder of the first degree. His motion for a new trial was denied, and he was sentenced to death. He appeals from the judgment and order.

1. Certain statements made by the defendant, wherein he admitted that Pearse received his death wound from a shotgun which defendant at the time held in his hands, he claiming that the discharge was accidental, were introduced in evidence. It is urged that there was no sufficient proof of the corpus delicti aside from these admissions. This claim is evidently based on the assumption that the deposition of Mae Pearse, daughter of the deceased, was improperly admitted in evidence, and upon a consideration only of the other evidence of the prosecution. We have concluded, as will hereafter be shown, that her deposition was properly admitted, and with that evidence the proof of the corpus delicti is ample, without aid from the defendant's admissions.

At the time of the homicide Pearse, with his daughter, who was 14 or 15 years old, was living in a small cabin consisting of two rooms, one in front of the other, with a door communicating between them. Grill had arrived at the Pearse cabin the day before on a visit and had remained overnight, sleeping in a bed in the rear room. On the day of the homicide, which was Sunday, Pearse and Grill went hunting together, returning to the cabin about seven in the evening. Pearse then, according to the evidence for the prosecution, accused Grill of stealing some money which he said he had left in the house, and there was a quarrel between them which continued from time to time until about 9 o'clock, Pearse in the meantime having taken off his clothes preparatory to going to bed. Some noise was made by a dog on the outside of the house, whereupon both went out of the house. Grill carrying a shotgun. The noise subsided, both re-entered the house, and Pearse apparently laid down upon the bed in which he usually slept. This bed stood in the left-hand corner of the front room, with the head toward the door leading to the rear room. The quarrel continued after they reentered the house and presently a shot was heard. Grill came out of the house, saying to the daughter that he had killed a skunk. Thereupon he and the daughter, who had remained outside, left the premises in a buggy and drove to the residence of Mrs. Stoffal, where the daughter remained. Grill had been

working for Mr. Jacobs, a neighbor of the deceased, and he arrived at Jacobs' residence about midnight and stayed there the remainder of the night, sleeping in a room by himself. The following morning he went to his work without mentioning Pearse's death, or saying anything about any trouble at Pearse's residence. The next morning Pearse was discovered by the neighbors lying upon his bed dead from a gunshot wound in the back part of the head. He was lying on his back, but partly on his left side, facing towards the front of the house, with the back of his head toward the rear room, his head resting on a pillow. A double-barreled shotgun, with one barrel recently discharged, lay upon the floor in front of the bed. The position and character of the wound indicated that the shot had come from the rear, and a witness who saw the body as it was found testified that "the shot came right from the rear, right square from the rear. It couldn't come from any other direction." Five or six slits cut in the pillow a few inches from the head of the deceased, and apparently made by shots from the gun, pointed in the direction leading from the partition door to the wound. There were no powder marks on the pillow. The nature of the wound, its location in the back part of the head, the position of the body, the slits in the pillow, the absence of powder marks, and the conduct and statement of the defendant after the shooting, furnished sufficient evidence of the fact that the deceased was killed by a shot from the defendant's gun fired with criminal intent.

2. The court, in its instructions, read to the jury section 1105 of the Penal Code, which is as follows: "Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable." It is claimed that this was error. The position of the defendant is that this instruction is not applicable, except where the defendant admits the intention to kill and claims that it was in self-defense, and that it was harmful because of the phrase. "the commission of the homicide by the defendant being proved," which, it is said, constituted an intimation or statement by the court that the fact that the defendant intentionally fired the shot had been proven. It is not the law that this instruction is applicable only where the justification offered is that the killing was in self-defense. It applies in any case where the defendant offers evidence in mitigation of the offense, that is, to reduce the degree of the crime; or in justification, as that it was in self-defense or in the lawful execution of a death sentence; or in excuse, as that it occurred by accident and not design. The defense in this case was that it occurred by accident, and this, if

proved, would have been an excuse for the homicide. The instruction was therefore applicable to the case. The phrase objected to was not inserted in the instruction as a statement by the court that the commission of the homicide by the defendant had been proved. It was meant as an expression of a condition or event, upon which the succeeding part of the instruction would become applicable, and that is its true rhetorical meaning when considered in connection with the text. Its signification is the same as if the sentence began thus, "When, upon a trial for a murder, the commission of the homicide by the defendant has been proved," etc. Thus understood, it does not constitute a statement of the fact by the court. In People v. Tapia, 131 Cal. 647, 63 Pac. 1001, this instruction was given with some additions declaring the extent of the burden of proof cast upon the defendant. It was criticised in that case upon the ground that the jury might have understood the above-quoted phrase as a declaration that the fact referred to had been proved. The defendant in that case did not attempt to mitigate, justify, or excuse the homicide, but denied that he had committed the act. Consequently, it was said, "the instruction should not have been given, for it was entirely inapplicable." The evidence that Tapia did commit the homicide was said to be very weak and unsatisfactory. It was in view of this condition of the evidence and of the inapplicability of the instruction to the case that the court considered that the jury might have misconstrued the expression as a statement by the court with regard to the sufficiency of the evidence. In the present case the instruction could not have been so understood by the jury. Other instructions repeated frequently the proposition that the jury were the exclusive judges of the facts. They were told that they must not decide upon a preponderance of the evidence, but that the prosecution must show the defendant's guilt, and every fact essential to a conviction, beyond a reasonable doubt, and must prove the corpus delicti by competent evidence beyond reasonable doubt before they could consider the admissions of the defendant; that if they had a doubt whether or not Pearse was killed by the accidental discharge of the defendant's gun they must acquit the defendant; that the burden of proof was upon the prosecution, and if upon the proofs there was a reasonable doubt of his guilt remaining the defendant must be acquitted. In view of these instructions it would be impossible for any jury of ordinary intelligence to have supposed that the instruction complained of was intended to state to them that the fact that the defendant had committed the homicide had been proven. See People v. Hawes, 98 Cal. 653, 33 Pac. 791.

3. Another instruction stated that "a witness willfully false in a material part of his testimony is to be distrusted in others." That this is a principle of the law of evi

dence, and one of the rules by which the court or jury must be guided in the consideration of the weight of evidence, cannot be disputed, for it is made so by statute. Code Civ. Proc. § 2061. It has been repeatedly held by this court that the giving of such an instruction is not cause for reversal, and we adhere to the precedents thus made. People v. Dobbins, 138 Cal. 694, 72 Pac. 339; People v. Tibbs, 143 Cal. 103, 76 Pac. 904; People v. Wardrip, 141 Cal. 229, 74 Pac. 744; People v. Farrington, 140 Cal. 656, 74 Pac. 288; People v. Wong Bin, 139 Cal. 65, 72 Pac. 505; People v. Wilder, 134 Cal. 184, 66 Pac. 228; People v. Kelly, 146 Cal. 123, 79 Pac. 846.

4. Upon a former trial for the same charge the defendant was convicted of murder of the first degree with the penalty of imprisonment for life. A new trial was granted upon his own motion. It is now claimed that. where there is a charge of murder of the first degree and a conviction of murder of the first degree with the penalty of imprisonment for life, such judgment is a virtual acquittal of the character of murder sufficiently atrocious to justify the death penalty and is a bar to the infliction of the death penalty upon a retrial of the same charge. There is no foundation for .such claim. It has been held that a conviction of murder of the second degree, upon the trial of a charge of murder of the first degree, is no bar to a subsequent conviction of the higher degree, upon a retrial of the same case granted upon defendant's motion. People v. Keefer, 65 Cal. 235, 3 Pac. 818; People v. Carty, 77 Cal. 216, 19 Pac. 490; People v. Gordon, 99 Cal. 232, 33 Pac. 901. Upon this exact point we need express no opinion. The discretion given to the jury to mitigate the punishment upon a conviction of murder in the first degree and inflict imprisonment for life only does not divide that degree of murder into two degrees, but merely reduces the punishment. The mere substitution of imprisonment for life for the death penalty is not a determination that any element of murder of the first degree is lacking. On the contrary, such a verdict cannot be given until all the facts necessary to constitute that degree of murder are established. The former conviction was not an acquittal of the first degree of murder, nor of any degree thereof. The instruction asked by the defendant to the effect that it was a bar against the infliction of the death penalty was properly refused.

5. A photograph of the front room of the Pearse cabin, taken six days after the homicide, was admitted in evidence after proof that the articles shown therein, including a shotgun lying on the floor, were, respectively, in the same position as when the body of Pearse was found the morning after the homicide. It is claimed that there was some uncertainty in the evidence introduced as a foundation for the introduction of this photograph as to whether the gun was in exact

per centum per annum, until this note is paid in full. William II. Jameson, Trustee." This note was assigned to plaintiff before suit. Judgment was given for the plaintiff, and the defendant's motion for a new trial was denied. The defendant appeals from the judgment and order.

1. It is first contended that the note is not binding upon the defendant personally, but only upon him in his capacity as trustee, and that, therefore, the personal judgment against him is erroneous. Prior to the execution of the note, one William L. Joy had executed a deed conveying to the defendant, as trustee for certain stated purposes, a tract of land in Massachusetts. The deed empowered the defendant, as trustee. "to mortgage said property, or any part thereof, from time to time for such sumns, to such persons or corporations (and) upon such terms as he may deem expedient," and gave directions as to the disposition of the money thus to be obtained. In pursuance of this power the defendant borrowed of Walker, the payee of the note, the sum of $2800, for which he executed the above note, and at the same time, to secure its payment, he executed to Walker a mortgage upon the Joy land. This mortgage, being part of the same transaction, must be read in connection with the note, and the whole construed as one contract in order to arrive at the true meaning of each. The mortgage was in the common-law form, purporting to convey the land to Walker as security for the debt. It began thus: "Know all men by these presents, that I. William H. Jameson, as I am trustee under a certain deed from William L. Joy, * by virtue

of the power in said deed contained and every other power me hereto enabling, in consideration of two thousand eight hundred dollars. * * * do hereby give, grant, bargain, sell and convey unto the said Nathaniel U. Walker." etc., the land particularly described. The condition was in part as follows: "Provided, nevertheless, that, if I, my heirs, executors, administrators, or assigns, shall pay unto the grantee or assigns, the sum of two thousand eight hundred dollars in three years from the date hereof, with interest thereon." etc.. * "then this deed, as also a note of even date herewith, signed by me, whereby for value received, I promise to pay the grantee or order the said principal sum and interest at the times aforesaid, shall be void." There followed a covenant in these words: "And I hereby, for myself and my heirs and assigns, covenant with the holder or holders hereof to perform and observe each and all of, the terms of the foregoing condition." In explanation of the meaning of the contract as affecting the personal liability of Jameson, evidence was introduced to show that he obtained no personal benefit from the transaction, and that he was acting throughout solely in the interest of the trustor and the beneficiaries. There was also testimony of a contempo

raneous understanding that Jameson was not to be held personally liable, but as this was contradicted by other testimony and the finding is in favor of the plaintiff, we must disregard that testimony, even if we considered it competent.

This contract by its terms purports to make the defendant personally liable thereon, and neither the context nor the circumstances proven are sufficient to change its effect in that particular. It has been held that where a promissory note reading "we promise to pay," etc., is signed by the president of a company subscribing his own name with the addition of the words "Prest. Pac. Peat Coal Co." and by the secretary of the company with the addition of the words "Sec. pro tem.," it is the note of the company and not the personal obligation of the president and secretary. Farmers' & M. Bank v. Colby, 64 Cal. 352, 28 Pac. 118. On the other hand, a note reading "we promise to pay," etc., and signed "D. Hassett, President." was held to be the personal liability of D. Hassett. Hobson v. Hassett. 76 Cal. 203, 18 Pac. 320, 9 Am. St. Rep. 193. The court in the latter case said: "There is nothing on the face of the note to show that there was any principal back of the defendant. He signed his own name, and wholly failed to indicate, if he had a principal, who or what the principal was. The word 'president,' which he added to his name must be regarded as a mere descriptio persona." These cases perhaps sufficiently illustrate the rule applicable to contracts thus signed where the maker claims exemption from personal liability on the ground that he is an agent. If the facts in this case brought it within the rule applied in Farmers' & M. Bank v. Colby, supra, the defendant would be exonerated. But it is not a similar case. In the Colby Case there was no question but that the president and secretary had power to bind the company by contract. and to that extent at least it is different from the case at bar. In the assett Case the decision went upon the ground that the contract of Hassett did not purport to bind any one but himself, and that, although he did not so intend and was in fact acting for his principal, the contract could not be varied by parol evidence. This case is governed by the latter rule. The contract made by Jameson consists of two distinct and separate parts-the mortgage on the land, and the promise and covenant to pay the money, which the latter purported to bind the trustee personally. The trust deed of Joy to Jameson gave the latter power only to mortgage the trust property. It gave no power whatever to make any promise or covenants to pay any money on behalf of Joy or on behalf of the beneficiaries. With respect to the mortgage, Jameson was acting solely as trustee, and could not act otherwise, for he had no personal interest in, or power over, the land. With respect to the note and covenant, he was acting solely in his own behalf, for he had no

authority thus to contract except for himself. Where an agent makes a contract really on behalf of his principal, but which purports to be his promise and to bind himself alone, and he has not in fact any authority to make that particular contract for his principal, the general rule is that the agent will be personally bound by the contract, notwithstanding his lack of personal interest in the consideration. He will be conclusively, presumed to have intended to bind himself. This rule is particularly applicable where a trustee, in dealing with trust property, makes some personal promise to pay money in furtherance of the trust, which he has no authority to make as trustee. In regard to such contracts he is a principal and must be presumed to have intended to act for himself alone. The rule is thus stated by the Supreme Court of the United States in Taylor v. Mayo, 110 U. S. 330, 4 Sup. Ct. 147, 28 L. Ed. 163: "When a trustee contracts as such, unless he is bound, no one is bound, for he has no principal. The trust estate cannot promise. The contract is therefore the personal undertaking of the trustee. As a trustee holds the estate, although only with the power and for the purpose of managing it, he is personally bound by contracts he makes as trustee, even when designating himself as such. The mere use by the promisor of the name of trustee or any other name or office or employment will not discharge him. * If a trustee,

contracting for the benefit of a trust, wants to protect himself from individual liability on the contract, he must stipulate that he is not to be personally responsible, and that the other party is to look solely to the trust estate." There is nothing in the note or mortgage of Jameson that can be construed as a stipulation relieving him from personal liability or requiring the lender to lock to the mortgaged property alone as security. The reference, in that part of the instrument operating as a conveyance, to the fact that Jameson was conveying as trustee, was properly inserted therein for the purpose of designating the source of the power by which he was assuming to hypothecate the trust property. It only indicates the character in which he acted and the power which he possessed in relation to the part of the contract which constituted the mortgage, and it does not purport to qualify the direct covenant to pay contained in that instrument, nor the express promise contained in the note. The power to "mortgage" the property did not include power to make a personal promise on behalf of the beneficiaries, or the trustor, that they, or either of them, should pay the money. It carried power only to pledge, convey, or hypothecate the property as security for money. Civil Code, § 2920. The defendant's promise to pay the money was not necessary to the execution of the power, and it must be considered as his own personal obligation whereby he became surety for the payment of the money.

There is nothing in section 2267 of the Civil Code contrary to this conclusion. It is as follows: "A trustee is a general agent for the trust property. His authority is such as is conferred upon him by the declaration of trust and by this chapter, and none other. His acts within the scope of his authority, bind the trust property to the same extent as the acts of an agent bind his principal." This refers to the trust property alone. His acts respecting that property, if authorized by the terms of the trust, bind the property. IIe is to that extent an agent for the property and for the interested parties. Consequently, the mortgage of the trust estate in this case was yalid; but nothing in this section, nor in the deed of trust, gave him an authority to bind the trustor or beneficiaries personally.

We are therefore of the opinion that the personal judgment against Jameson is supported by the evidence.

*

2. It is further claimed that the action is barred by the statute of limitations. The note and mortgage were executed in the state of Massachusetts, and therefore under subdivision 1, § 339, Code of Civil Procedure, the action would be barred two years after the cause of action accrued. The action was begun on January 3, 1902. By the terms of the note it did not become due until June 8. 1900, which was less than two years before the action was begun. The mortgage provided that the sum borrowed should be paid in three years from its date, "with interest thereon, at the rate of 5 per centum per annum, payable semiannually." It also contained the following provision: "But upon the default in the performance of any part of the foregoing conditions, the holder or holders hereof may sell the granted premises at public auction; such sale to be on or near the granted premises, or at the real estate exchange and auction board in the city of Boston, without notice or demand, except giving notice of the time and place of sale once in each of three successive weeks in any one newspaper published in said Newton, and may convey the same by proper deed or deeds to the purchaser. * * * And out of the proceeds of such sale or sales the holder or holders hereof shall be entitled to retain all sums then secured by this deed (whether then or thereafter payable), including all costs," etc. Default was made in the payment of the interest due on December 8, 1898, and again on June 8, 1899. Thereupon on June 14, 1899, under the power aforesaid the mortgagee sold the premises for the sum of $2,000. This left a balance of $1,221.68 remaining unpaid on the principal and interest on the note.

The argument is that, under the terms of the power of sale above set forth, it was necessary for the mortgagee to declare the principal and interest on the note and mortgage immediately due and payable, as a condition precedent to, or concurrent with,