cure a defendant from being a witness against | Pen. Code, § 189, defining murder and its dehim. grees, to constitute the crime. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1042, 10422; Dec. Dig. 300.] 778 INSTRUCTIONS [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. 142.] Appeal from Superior Court, Tulare County; J. A. Allen, Judge. Jose Andrade was convicted of murder, and he appeals. Reversed. 3. CRIMINAL LAW BURDEN OF PROOF. Such an instruction throws upon defendant, without the verdict of a jury in the matter, the burden of proving circumstances of mitigation or of justification or excuse, contrary to Pen. Code, § 1105, which imposes this burden, except when the proof on the part of the prosecution tends to show that the crime committed only Webb, Atty. Gen., and Robert M. Clarke, Depamounts to manslaughter, or that the defendant uty Atty. Gen., for the People. was justifiable or excusable. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854-1857, 1960, 1967; Dec. Dig. 778.] H. Walker, of Visalia, for appellant. U. S. Edwards & Smith, of Dinuba, and Ralph CONREY, P. J. Defendant was convicted of the crime of murder and sentenced to imprisonment for life. He appeals from the CURE OF EVI-judgment and from an order denying his mo When evidence of a custom of deceased in carrying considerable sums of money with him is received to prove a motive for his murder, and is subsequently stricken, such striking cures the error. tion for a new trial. On the morning of January 10, 1915, the dead body of one Ina P. Cook was found on a public road in the county of Tulare, and from the evidence it clearly appears that his [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; death had been caused by a bullet wound in Dec. Dig. 1169.] 5. HOMICIDE 166 DENCE. In a trial for murder, testimony as to a specific sum of money which deceased had upon his person two days before his death was received upon the assurance of the district attorney that knowledge of the possession of this sum by the deceased would be brought home to the defendant, and other evidence was received showing the possession of money by the deceased the day previous to his death, and exhibited by him in the presence of defendant. Held, that such evidence was properly received, notwithstanding the fact that it was also shown that a certain sum of money was found in the pockets of the deceased after his death, as such a circumstance, while favorable to the defendant on the question of motive, was properly subject to the consideration of the jury. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. 166.] 6. CRIMINAL LAW 519-EVIDENCE-CONFESSION-ADMISSIBILITY. A confession made by a defendant to a sheriff, which is shown, and properly determined by the court, to have been made voluntarily and without any of those promises, threats, or other means of coercion which would require exclusion of a so-called confession, is admissible in evidence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dec. Dig. 519.] 7. HOMICIDE 142-INFORMATION-PROOF. Where the information charges that defendant "did willfully, unlawfully, feloniously, and with malice aforethought kill and murder," etc., the fact that the people attempted to prove that the motive was robbery does not confine the charge to one of murder committed in the perpetration or attempt to perpetrate robbery, and a requested instruction to the contrary is properly refused. the head. The evidence further shows that on the previous afternoon and evening he had been traveling along that road in an open buggy and in company with the defendant. When the deceased was last seen alive, so far as the evidence shows, he was in company with the defendant. There are no eyewitnesses to the attack which caused the death of deceased, and in that respect the defendant has been convicted entirely upon circumstantial evidence, with the single exception of an alleged confession by the defendant. The sheriff of Tulare county gave testimony concerning an interview between himself and the defendant after defendant's arrest and that in that interview the defendant admitted that he had shot Mr. Cook. The precise words covering this point, as stated by the sheriff, were that: Defendant "said that he did not remember whether he shot him as he was getting up or after he got up. After he shot him he ran away. He did not know where he throwed the gun." [1, 2] The defendant did not testify in his own behalf, but stood silent under his plea of not guilty. On this state of the record the court charged the jury as follows: "You are instructed that the defendant does not deny that he killed one Ina P. Cook on the 9th day of January, 1915, but claims that such killing was done in self-defense." The defendant claims that the giving of this instruction constitutes prejudicial error; and with this contention we are constrained to agree. "No person shall be compelled in any criminal case to be a witness against himself. Const. Cal. art. 1, § 13. "A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself. His neglect or refusal to be a witness cannot in any manner prejudice him 8. HOMICIDE 142-INFORMATION-Proof. nor be used against him on the trial or proceedUnder an information charging that defend-ing." Pen. Code, § 1323. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 250-259; Dec. Dig. 142.] * * * ant "did willfully, unlawfully, feloniously, and "Judges shall not charge juries with respect with malice aforethought kill and murder," etc., to matters of fact, but may state the testimony any kind of willful killing is sufficient, under and declare the law." Const. Cal. art. 6, § 19. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The other contentions made in the brief with respect to the reception of evidence are of minor importance, and do not disclose any errors requiring discussion here, if indeed any there were. [7, 8] It is further claimed that the court erred in refusing to give to the jury the following instruction: "Before you can convict the defendant of the crime charged, you must be satisfied beyond a he did commit such a crime with the intent and reasonable doubt and to a moral certainty that motive of robbery, and, if you do not so find from the evidence herein, you must acquit him." [3] In giving the foregoing instruction the so-called confession. People v. Miller, 135 court usurped the functions of the jury. It Cal. 69, 67 Pac. 12. withdrew from the jury the determination of the essential question whether or not the deceased came to his death at the hands of defendant, and, without a verdict of the jury upon this fact, threw upon the defendant the burden of proving circumstances of mitigation or of justification or excuse. Pen. Code, 1105. Thereby the failure of the defendant to give testimony in his own behalf was used against him at the trial, notwithstanding his plea of not guilty addressed to the entire issues of the case. In the absence of direct testimony or other overwhelmingly convincing evidence connecting the defendant with this homicide, other than the circumstances of the alleged confession, we are unable to say that the giving of such instruction was nonprejudicial error, or that the jury necessarily would have convicted the defendant if such instruction had not been given. The substantial effect of the record is that the judge set up the unsworn statement of the defendant that he did kill the deceased against the unsworn statement implied in his plea of not guilty, and made a finding of fact thereon which could lawfully be made by the jury only. People v. Strong, 30 Cal. 151. [4, 5] Appellant claims that the court erred in permitting the introduction of certain testimony of the witness Jarrad with respect to the amount of money which deceased had on his person on the 8th day of January, and as to the custom of the deceased as to carrying considerable sums of money with him. The second specific part of this testimony, that relating to the deceased being accustomed to carry money with him, was afterwards stricken out by the court, and we think the error was thereby sufficiently corrected. The testimony as to the specific sum was received upon the district attorney's assurance that knowledge of the fact would be brought home to the defendant. Other evidence was introduced showing the possession of money by the deceased on the 9th day of January and exhibited by him in the presence of the defendant. We think that this evidence was properly received. It is true that the evidence further showed that about $20 was found in the pockets of the deceased after his death, but this circumstance, so far vorable to the defendant on the question of motive, was properly subject to the consideration of the jury. The fact that the people introduced testimony for the purpose of showing the intent and motive of robbery did not have the effect to confine the charge to one of murder perpetrated in the perpetration or attempt to perpetrate robbery. The information charged that the defendant committed the crime of murder in that he "did willfully, unlawfully, feloniously, and with malice aforethought kill and murder one Ina P. Cook, a human being," etc. The particular motive above mentioned was not necessary to a successful prosecution in this case. Any kind of willful and premeditated killing would be sufficient to constitute the crime. Pen. Code, § 189. The judgment and the order denying defendant's motion for a new trial are reversed. We concur: JAMES, J.; SHAW, J. BENSON v. BENSON. (Civ. 1429.) (District Court of Appeal, Third District, California. Nov. 20, 1915.) 1. DIVORCE 172-JUDGMENT-CONCLUSIVENESS-PLEADING AS DEFENSE-NECESSITY. In a husband's suit for divorce, where, ancruelty and desertion, he did not plead a former swering the wife's cross-complaint charging judgment for himself in an action for divorce by the wife against him, and no proof of such former judgment was offered under the plea of estoppel set up by the wife in her answer to the complaint, the judgment roll in the former action not being introduced in evidence by either party, and defendant wife merely pleading in her anfa-swer the cross-complaint, in the former action, in such action, there was nothing in the record of the then defendant husband and the judgment disclosing the grounds upon which defendant wife, as plaintiff in the former action, relied for confes-clusive in the suit upon her right to maintain a divorce, to render the former judgment conher cross-complaint. 172.] [6] The objection that the alleged sion as detailed by the sheriff in his testimony should have been rejected because not [Ed. Note.-For other cases, see Divorce, Cent. proved to be a voluntary statement by the Dig. §§ 559-561; Dec. Dig. defendant cannot be sustained. It was suf-2. DIVORCE 171-CONCLUSIVENESS OF ADficiently shown and the court was authorized JUDICATION-SUBSEQUENT MATTERS. to determine that the statement was made freely and voluntarily and without any of those promises, threats, or other means of coercion which would require exclusion of a Where a wife sued for divorce, charging cruelty and desertion, and judgment was for the husband, who thereafter committed acts of cruelty and desertion, the judgment was not conclusive upon the wife's right to maintain a cross bill, based on such acts, in a subsequent action | men over him; that the defendant abused for divorce by the husband. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 554-558; Dec. Dig. 171.] 3. DIVORCE 184—PROCEEDINGS--APPEAL HARMLESS ERROR-EVIDENCE. In a husband's action for divorce, where both parties had, on sufficient grounds, persistently been engaged in an effort to get rid of each other as husband and wife, and the wife brought a cross-bill charging cruelty and desertion, the ruling sustaining defendant's objection to plaintiff's question to her on cross-examination as to whether she was willing to go back to plaintiff and live with him was harmless, if er roneous, and not ground for reversal. [Ed. Note.-For other cases, see Divorce, Cent. Dig. 88 570-573; Dec. Dig. 184.] 4. DIVORCE 308-ALLOWance for SUPPORT OF CHILDREN-PROPRIETY. Where the husband, against whom a divorce was awarded, was a carpenter and building contractor, making good wages and usually employed, an allowance to the wife, solely for the support and maintenance of three minor children, of $15 a month each, was proper as not unreasonable. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 801, 802; Dec. Dig. 308.] Appeal from Superior Court, San Mateo County; George H. Buck, Judge. Action for divorce by Carl Benson against Gerda Benson. From an interlocutory decree adjudging defendant to be entitled to a divorce on her cross-complaint, and awarding her a one-half interest in the community property, the custody of the children, and making an allowance for their support, plaintiff appeals. Affirmed. Austin Lewis, of San Francisco, and R. M. Royce, of Oakland, for appellant. Willard & Ferrell, of San Francisco, for respondent. HART, J. The court below rendered and entered its interlocutory decree, adjudging the defendant to be entitled to a divorce upon her cross-complaint, and awarding her a one-half interest in the community property and the custody of three minor children, issue of the marriage of the parties, and making an allowance of $15 per month to each of said children for their support and maintenance. This appeal is by the plaintiff from the judgment so rendered and entered. their children, being in the habit of address- The defendant answered the complaint by The court made no findings upon the causes of action for desertion and failure to provide set up in the defendant's cross-complaint. It did, however, in substance, find as to the cause of action therein stated, involving the charge of extreme cruelty, that the plaintiff for and during the course of a number of years prior to the date of the institution of this action by the plaintiff and cross-defendant, on numerous occasions, and often in the presence of other persons, had The complaint is in two counts, the one in called the defendant and cross-complainant due form charging the defendant with will- vile and, indeed, unprintable names; that he fully deserting the plaintiff in the month of during that time told other people, in her October, 1908, and the second alleging ex- absence, that she was an immoral woman, treme cruelty on the part of the defendant and that the persons to whom he so spoke toward the plaintiff. Certain specific acts of her had communicated to her the fact of of cruelty are set forth in the latter count, his denunciation of her in the manner inand, in substance, they are: That the dedicated; that, without cause or provocation fendant had been in the habit of bestowing | therefor, he attempted to strike her on one ocunbecoming attention on men other than her husband, and that in the month of July, 1908, the plaintiff discovered "that she had a man other than her husband in her bedroom"; that defendant on numerous occasions expressed to the plaintiff a preference for other casion, and but for the interference and pro- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and a fool, and said she was not a moral or ture and extent of the acts of cruelty of respectable or virtuous woman, and assever- which she said her husband had been guilty. ated "that he would not live with said Gerda But, having given testimony in the most emBenson again, even if she begged him to al-phatic manner of outrageous acts of cruelty low her to live with him"; that for many habitually inflicted upon her by the plaintiff years he had kept up a continuous abuse of for many years prior to the filing of her the defendant and cross-complainant of a cross-complaint in this action, it is more character which made it impossible for her than probable that the defendant would not to live in peace or happiness with him. have answered the question in the affirmative, as evidently counsel desired might be the answer. But, however that may be, we do not think that the ruling, even if not strictly correct, should be held to afford a sufficient reason for sending the cause back for retrial, particularly since it appears to be true that both parties have persistently been engaged in an effort to get rid of each other as husband and wife upon what appears to be sufficient reason. As to the last of the propositions above stated, it is said that "the allowance to the wife is out of all proportion to the financial status of the parties." There is no claim here that the evidence does not support the allegations of cruelty of the cross-complaint or the findings upon which the judgment is planted. It is contended, however: (1) That each and all of the matters set up by the defendant in the several counts of her cross-complaint were made issues by the respective pleadings in the former divorce action between the parties and were adjudicated by the judgment therein, whereby the court denied to both of the parties the relief prayed for in their complaint and cross-complaint, respectively, filed in said action, and dismissed the said action and all the proceedings therein; (2) that the court erred to the serious detriment of the rights of the plaintiff by refusing to allow certain testimony to be received; (3) that the allowance for the support of the minor children is too large and not justified. [1, 2] There are two conclusive answers to the first of the propositions above stated: (1) That the plaintiff, in his answer to the cross-complaint of the defendant, did not plead the former judgment, nor was there proof thereof offered or received under the plea of estoppel based upon said judgment set up by the defendant in her answer to the complaint. The judgment roll in said former action was not introduced in evidence by either party, and, the defendant having merely pleaded in her answer the cross-complaint of the plaintiff here (defendant there) | NETT, J. and the judgment in said action, there is nothing in the record disclosing the grounds upon which the defendant here, as plaintiff in the former action, relied for a divorce. (2) It appears that the acts of cruelty charged in the cross-complaint of the defendant in the present action occurred after the judg-1. ment in the former action was rendered and entered, and in such case, of course, the plea of res adjudicata cannot be maintained. There is nothing said in Civille v. Civille, 22 Cal. App. 707, 136 Pac. 503, cited by ap pellant, in conflict with this declaration. [4] The allowance was not made to the wife, but solely to and for the support and maintenance of the minor children of the parties. The amount allowed for that purpose to each of said children is $15, or a total of $45, per month. The evidence showed that the plaintiff is a carpenter and building contractor, earns good wages, and is usually employed. We cannot say that the allowance is unreasonable as to the plaintiff or beyond what may be reasonably required to support and maintain the children in a manner consistent with the plaintiff's circumstances and earning ability. No other points are raised. We concur: CHIPMAN, P. J.; BUR ANDERSON v. LEWIS, County Auditor. (Civ. 1730.) (District Court of Appeal, Second District, California. Nov. 20, 1915.) OFFICERS 104-DE FACTO OFFICEr—Va LIDITY OF ACTS. The acts of a person performing assumed duties as an officer de facto are ordinarily regu lar and valid. Dig. 8 173; Dec. Dig. 104.] 2. OFFICERS 95-COMPENSATION-DE FAC- The collection of the salary or compensation of an office is an incident to the title to such office, and not to its occupation and exercise by a de facto officer. [3] Counsel for the plaintiff asked the defendant on cross-examination the following question, to which objection was made by the defendant and sustained by the court: "Are you willing to go back to Mr. Benson and live with him?" It is here urged that the ruling was error and prejudicial. Of course, if a reply to the question had been allowed, and the defendant had answered in Const. art. 11, § 72, par. 5, as amended the affirmative, it might have had some tend-October, 1911, authorizes freeholders' charters ency to weaken her testimony as to the na- for, counties to provide that boards of super [Ed. Note. For other cases, see Officers, Cent. Dig. §§ 134, 139; Dec. Dig. 95.] 3. COUNTIES 63 OFFICER-VALIDITY OF APPOINTMENT-SAL ARY. ASSISTANT PROBATION visors shall, by ordinance, regulate the appoint- demand to appellant auditor, which he had 1 refused to comply with, and that there was sufficient funds in the treasury of the county of Los Angeles available to pay the claim. The facts as they were presented to the trial judge are set out in abstract in a bill of exceptions. It appears that Hugh C. Gibson, the probation officer, testified that on the 12th day of December, 1913, there were vacancies in several of the positions designated as assistant probation officer, and that the petitioner was at that time nominated by the probation committee of the juvenile court as that thereafter she was "appointed to said a candidate to fill one of such positions, and vacant position by Fred H. Taft, judge of the juvenile court of said county." Further, that the appointment was made in writing, filed in the office of the county clerk, and that petitioner thereupon took the oath of office. This witness further testified that on the 15th day of December, 1913, he assigned petitioner to duty in her office, and that she had Appeal from Superior Court, Los Angeles since that time continued to act. Further, County; Lewis R. Works, Judge. the bill of exceptions also contains this clause: see Counties, Mandamus by Mrs. P. T. Anderson against Walter A. Lewis, Auditor of the County of Los Angeles. Writ issued, and defendant appeals. Reversed. A. J. Hill, County Counsel, and Roy V. Reppy, Asst. County Counsel, both of Los Angeles, for appellant. Ford & Hammon and Tyrrell, Abrahams & Brown, all of Los Angeles, for respondent. It is urged that the judgment was unwar "The witness testified further that on the 12th day of December, 1913, he consented to and was willing that said Mrs. P. T. Anderson be appointed to the said position, and that he did not at any time discharge her." Gibson testified that he had recognized and considered petitioner as the duly qualified and appointed assistant probation officer of Los Angeles county during all the times material to the controversy. Three letters were written to Gibson as chief probation officer introduced in evidence, the first of which was by the county civil service commission, readded to his department. This letter bore questing Gibson to give the names of persons date of the 19th day of December, 1913. The second letter was one written by Gibson in answer to the letter just referred to, where in he (Gibson) stated the names of persons added to his department, which included the name of this petitioner as assistant probation officer. The third letter was written later by Gibson to the probation committee of the county wherein again was given a list of all employés in the probation office, which list included the name of petitioner as assistant probation officer. An ordinance of the board of supervisors was introduced in evidence, which provided for officers in the probation department as follows: ranted because of the insufficiency of the evidence as to several material matters embraced within the findings of the court. The trial judge, in brief, determined the facts to be that: Petitioner, on the 12th day of December, 1913, was on the civil service list as an eligible for appointment as assistant probation officer, and that on or about said 12th day of December, 1913, she was nominated, and appointed to the position by the chief probation officer and assigned to duty, and that she entered upon her duties as such officer and ever since that time, to and including the month of December, 1914, continued to so act under the direction of the chief probation officer; that the salary attached This ordinance was shown to have been to the position had been duly fixed by or- adopted in June, prior to the date of the dinance of the board of supervisors of Los alleged appointment of petitioner. It will be Angeles county at the sum of $100 per noted that the evidence showed that the month; that petitioner had presented her | formal appointment of petitioner as assistant and fifty dollars per month: Provided it shall * |