Imágenes de páginas

of fact, it does not follow that the pl&Intiit will be the defendant. that he accepted the proposition injured thereby, nor can it be intended that the land would carry out the enterprise. It was there. defendant will fail or refuse to deliver to the upon agreed between Parnell and the Sheriff, that plaintifi, the quantity of water claimed in the when the money was taken, it should be marked complaint. The number of contracts 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 & legal point of view.

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

| pell entered the building, secured the money, It is proper to remark however, that this disposl. 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, 11 any, of the plaintift, to the water in the Sheriff thereupon arrested the defendant with question, and that the defense set up in the an- the money in his possession. gwer, 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 11 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 beshould refuse to deliver the water claimed by the tween them, and 11 in pursuance of the agree plaintift, and should seek to justify the retusal 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 wag traudulent in its character, it will then be proper guilty of burglary, and the jury should so find to consider of that defense.

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

by the witness Parnell or as to the motives or in. teptions 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 VS.

him and the Sheritt, intended solely to entrap the WM. COLLINS. Defendant and Appel.)

defendant into the apparent commission of a

crime, it is clear that no burglary was committed, Appeal from the County Court of Colusa county,

| there being no telonious intent in entering the F.L. HATCH, COUNTY JUDGE.

building, or taking the money. If the act of ParBUROLABY-INSTRUCTIONS-Held, that of the money I nell amounted to burglary, the Sherifi, who countaken was taken by toe pretended accomplice in

seled and advised it, was privy to the offense: but pursuance of previous'y arranged plan with the Suerit. sololy ro en trap the defendant, no

no one would seriously contend, on the foregoing burglary W88 committed, for want of felonious

tacts, that the Sherift was guilty of burglary. Tho intent on the part of the aocomplice. V it were evidence for the prosecution showed that no bur. burglary. the Shenff would be privy to tbe glary was committed by Parnell, for the want ot & offense.

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

have been privy to & burglary, unless one was The defendant was indicted April 2, 1878, by the committed." Grand Jury of Colusa county, for burglary, com Judgment and order reversed and cause re mitted March 31st, by entering the room of one manded for a new trial. Pedro Velardi, with intent to commit larceny. (Wallace C. J. did not express an opinion in this Defendant demurred. First-On the grounds of case.) non-compliance with secs. 950-51-52 01 Penal Code. as it does not state whether committed by day or

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

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

V8. 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 trom Twenty-second (formerly seventh) tendant sentenced to 4 years in the States Prison,

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

JACKBOX TEMPLE, JUDGE. Defendant appealed from the judgment and or- | MALICIOUS INIUNOTION DAXIES_Action for m e der denying motion for new trial.

cious proseoution can be Subtained, only wb The other sufficient facts are stated in the opin. m on, and west of probable cause, conour. ion, as already published.

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

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

This was an action brought by plafatiti (on 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 & certain butchers at San Rafael as the firm of “Anderson building in the night time and to steal therefrom & Dubois." & gum 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 Sherill 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 1' was dissolved by the court, and, on appeal to the that they had had some trouble previously. Supreme Court, affirmed. These plaintifts were The instructions given or refused appear sufficowners in fee of said Block No 1., and claimed great iently in the opinion. Costs and loss and damages by the injunction A verdict of guilty was returned, upon which, having paid $1,000 counsel fees, and sustained defendant moved for a new trial, on the ground, damages, $6,000, in the suspension of their basi. among others, that it was proved that the ple ness--hence clalm damages $6,000. For answer, I given did not contain strychnine, the only subdefendant makes full denial, 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 contained any poi. dissolved); and pleads that the cause of action is | BOnous 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 suit.

tenced to 10 years in the State Prison ; upon which Defendant moved for a new trial, upon & 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 plaintitts 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

tered "& poisonous and noxious substance" to the

prosecuting witness. The section under which by the appellant and which it is not necessary to no

The indictment was framed 19 as follows: Section tíce now, we are satisfied that there was error 10

216-Every person who, with intent to kill, admin. the refusal of the court below to give the recond in- Is

Isters or causes or procures to be administered, to struction asked by the defendant and refused by

another, any poison or other noxious or destructhe court. That instruction, 88 asked, was as fol.

tive substance or liquid, but by which death is not lows: “Second--If the defendant instituted 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 11 the defend. ice, and with no other motive than to protect bis

ant sve or administered to Henry Warmstead own property from threatened injury, the plaintifts

1 either a poisonous or Doxious substance, with 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 prog

the indictment," they must find the defendant ecution, malice and want of probable cause must

guilty. The court detined poisonous and noxious concur. It either of these be wanting, the action

substances as follows: "A poisonous substance is must fail. This is the settled rule, and was con.

one which has an inherent and deleterious propceded by the counsel for the respondents at the

erty capable of destroying life. A noxious sur argument. Now was the error in this respect

stance is not necessarily poisonous, but may be & cured by the other instructions, given at the trial.

sabstance which 18 hurtful and injurious." Judgment and order denying & 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

the application of the statute in a given case ; but (Flled August 26, 1878.)

the above definitions omit some of the essential PEOPLE OF THE STATE OF CALIFORNI

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

ployed in the statute. A poison is defined by V8.

No. 10,887, Wharton & Scille (Med. Juris., 8493,) as "& sub BETJET VAN DELEER, Defendant and

stance having an inherent deleterious property, Appellant.

which renders It, when taken into the system, ce

pable of destroying lite." A definition stated in Appeal from the County Court of Santa Barbara

2 Beck's Med. Juris., with approval, is as follows: County.

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

to the body externally, or in any way Introduced PALONY - INSTBOOTIONS - DEFINITIONS - 8E0 16into the system, without acting mechanically, bu

PENAL UODE DEPIXED-Itu parvose ir to provide i by its own inherent qualities, is capable of despuni.bment for attor pto tokil, b. some sobutano or liquid capanle of destroying Hie.

troying life." The definition of a polson given The act of adolatering a pub tarce bat bae rot the by the court would include substances which act

apacity of destroying B, pot to be oonstrued ne upon the system mechanically 80 88 to destroy 3D intent to kill. Toe om Jon of that quality or nte. In that respect the definition was too broad: capaorty from the definition in the instruotion

bat such substances are, in our opinion, included sived at request of tbe prosecutivo hold arroneous within the meaning of the words of the si STATEMENT OF 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 & poisonous and no ious substance to one might, when administered, be hurtful aud injuriHenry Wormstead."... won the 7th day of NO. 00s, but, like a poison, it must be capable of devember, 1871, with the intent teloniously and otstroying lite. Pulverized glass or boiling water malice aforethought to kill." .

when administered in sufficient quantities would Upon arraignment 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 & punishment for overruled, 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 statute, 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 i The intent to kill, could not be inferred trom the

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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. manded 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, lawritten Docinion.

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 DENNIS SULLIVAN, DECEABED.S

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

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 7, 1878, R. S. Farrelly, and Michael Ker. above: and further, that the Anglo-California win, Execators of the will of Dennis Sullivan bank charged 75 cents for collecting the check, who died at San Leandro, on April 30th. preced. I and that their correspondent in Oakland, the ing, petitioned the Probate Court of Alameda "Union National Gold Bank," neglected for some County to admit to Probate the will of the decedent. 10 days, to present the check to the drawers for dated April 29, 1878.

I 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 tbat the will was not legally attested, in draft. And that the issuance of the pass DOOK TO that one of the two witnesses, subscribing by his plaintift 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 thesis. 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 him-for that reason and no other-the will wag plaintift for the amount, $905 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 sotthwith.

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

Judgment and order now affirmed.
Ginahl & McDaniel attorneys for plaintiff and

respondent. R. M. Widney attorney for defendant Uowriccro Doninios.

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

Uowrition Decision.

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

De No. 6934.

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

DAVID GHARRY Appeal from the Seventeenth District Court, Los


No. 6066.
Angeles County.


appeal from Proba'e Court of Santa Cruz BANK DEPOSITE-LIABILITY OF BANKS ON COLLEC


A, CRAIG, Judge.

CONTEST OF WILL-HABITUAL INTEMPERANCE-IN. This action was brought to recover from defend.

SANB PREJUDICE-STATEMENT OF THE CASE. ant the sum of $761 25, claimed to have been de John Werapr made application to probate tbA posited in said bank, on November 27, 1876, as a alleged will of 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 the amunt of over $1,000, 6 months. On December 28th, plaintiff gave the It was willed in trust, to several certain persons,

f withdrawal in 6 months, and at and one half the peraonual 10 coche, was to be paid that time did demand it, and tendered a pass book, to his son Duvid Gharky, seal-annually, during the evidence of its deposit, but it was refused.ilte, and after his Opath to bis wife, and after The bank denied the debt, but admitted that the bar to the children, 11 ans, and the other halt of plaintiff delivered to them & check drawn on the apoual income to the support of such pour Phillips & Chandler, Oakland, by themselves, to people of Santa Cruz county as the trustees the order of plaintift for the sum in question, bigbt name, and also the first dated balr ro the which the bank took for collection, and forwarded sawe object, after the death of tbe bells. Halt the same day, to the Anglo Callfornia Bank in San tbe principal or property might be lovested in Francisco-having no correspondent in Oakland. Tapd and buildings Dear Santa Cruz to aid in car.

On November 27th notice was received that the rying out 'bly last, poi poxe. check was placed to defendant's credit, from which or this wol John Werder was appointed execdefendant understood that it had been paid, and 'utor.


If any child of the son David attained majority, then the one-half tbe estare to be theirs in fpe a lread in evidenee. This testimony tended to solute. Id a codicil, dated May 19, 1973, the provigious ip Ta vor of the son David were transferred

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, leaving to cbllore -son and an daug brer-and all her sbare was then craosterred to them and the son David to receiv* $20° per ing mind and memory. Respondent argued mooth during lire. Date of last codicil August 16, here that as the bill of exceptions did not 1877.

show that no proof was offered of the absence The petition for probate of the will, dated August 22, 1877, showg property about 5811.000 of the witness, it would be presumed that

The sin, David Goarki, contes she will on such proof was made, and that, if the depothe grupi tpat ide tardér was incompetent to sition was erroneously admitted, the tranmake the will or conlciis, by reas70 of babi ual 101 mperance, and an irsa ne delusion as to the BOD, and under undue irQuedee of passions and been injured thereby. It was held, First, prejudice against him. All of which toe defend that the admission of the deposition was unt deotes. Cause tried October 26, 1677, by a jury. and he

prima facie erroneous, and that it devolves will sustained, ani w råer covarajea as execu- on respondents to show that the requisite tor. Monon mage for a new trial, wirb & bull of exceptions ut the case, which was depid, upd an Supprl taken by patut 00 February 28, 1878,

and Second, that it was no answer to this from the judgment and be 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

ment and the other withont error. after the judgment admitting the wlil to pro- ! Judgment and order reversed, and cause rebate, which stated that the motion would be 17 Adams And Charles B, Younger

Manted for a den tilal. Remittitur Tortbwiro,

attorneys made on a bill of exceptions. Before the ror contestant and appellant. W. D, Storey attorhearing of the motion, the Probate Court Dey (or 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 |

Plaintiff and Respondent. moved to correct the transcript accordingly. 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. Re

STATEMENT OF THE CASE. spondents 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 murder 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 than 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 pot guilty. Upon trial-comis 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 laway, whereupon a scuffle took place, during the first degree, fixing the punishment at im- , which defendant drew a butcher knife from prisonment for life.

bis boot leg, and inflicted three wounds upon Defendant's counsel objected to the Court's deceased, from which death immediately re. pronouncing judgment, on the ground that sulted. Upon the trial the defense attempte 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, particu. October, a non-judicial day, the day onlarly as to instructions asked. which the judicial election of California was The judgment and order are affirmed-RA.

mittitur forth with. Moved further that he be discharged from E. H. Gaylor, District Attorney for Necustody, in that he could not be tried the vada County, attorney for the prosecution. second time for the same offense.

| George 8. Hupp, attorney for defendant A motion for a new trial was made and

and appellant. overruled, and sentence was passed upon him in accordance wlth the verdict; and an ap.

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 connot be had on the | “lf 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 roa. forth with.

800 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 Respondenta.

upon him who should save the life of a citizen. vs.

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.

correcting th Law wherein it is defective REARDON, Judge.

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

discussion of an issue upon which the unim. STATEMENT O) THE CASE.

portant matter of a human life depends, I am This was a trial and conviction for murder

om for morder 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, and defendant, who had brought a shot gun

t he A Friendly Lawyer and an Impecunious

client. 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 attor. then 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 lot house, about a half mile distant, where the

a of Appeals a few days ago, It was brought 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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