CRIMINAL LAW (Continued).

the jury, and the appellate court cannot interfere with such determination. (People v. McDonnell, 694.)

45. FEAR OF GREAT BODILY INJURY OR DEATH INSTRUCTION.-An instruction that if the circumstances surrounding defendant at the time of and immediately preceding the killing were sufficient to arouse the fears of a reasonable man that deceased was about to inflict upon defendant great bodily injury or death, it is not essential that deceased should have had or attempted to use a weapon in order to entitle the defendant to defend himself, is properly refused, where the court gave several instructions of similar import, as, for example, where one without fault is placed under circumstances sufficient to excite the fears of a reasonable man that another designs to commit a felony, or some great bodily injury upon him, and to afford grounds for reasonable belief that there is imminent danger, he may, acting under such fears alone, slay his assailant, and be justified by the appearances. (Id.)

46. "MORAL CERTAINTY"-INSTRUCTION.-An instruction that the words "moral certainty" is a state of impression produced by facts in which a reasonable mind feels a sort of coercion or necessity to act in accordance with it, and is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it, is properly refused, as being of no benefit to the average juror in relation to the conviction of the defendant. (Id.)

47. ASSAULT WITHOUT INTENT TO KILL INSTRUCTION.-An instruction that although the right to take life or use a deadly weapon in self-defense is unquestionable, one on whom another has made a mere assault with his fist, not with the intent to kill or do great bodily harm, and who is not deceived as to its character, is not justified in taking life or in using a deadly weapon in self-defense, while not entirely clear or accurate, is not misleading, where the jury is fully instructed on the subject of self-defense by other instructions. (Id.)

48. JUSTIFIABLE HOMICIDE EVIDENCE

ERRONEOUS INSTRUCTION.-An instruction that homicide is justified when committed by any person in the lawful defense of himself, when there is reasonable ground to apprehend a design on the part of another to take his life, or to do him some great bodily injury, and imminent danger of such design being accomplished, but a person claiming such justification if he were the assailant, or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed, is prejudicially erroneous, where the defendant had been violently and inexcusably beaten in his own home by the deceased, who was a man of quarrelsome disposition, and who, upon being ordered from the defendant's

CRIMINAL LAW (Continued).

house, apparently seized a deadly weapon and turned with manner and language plainly indicating his intention to kill or seriously injure the defendant. (Id.)

49. PRELIMINARY EXAMINATION-TIME.-While the statute does not prescribe the number of days after an information is laid before a committing magistrate within which the preliminary examination of the person informed against must be held, yet it is opposed both in letter and spirit to an unreasonable delay. (Ex parte Chambers, 476.)

50. PERJURY-AMENDMENT OF INDICTMENT-OFFENSE NOT CHANGEDHABEAS CORPUS.-A defendant in custody under an indictment charging her with the crime of perjury is not entitled to discharge on habeas corpus by the filing against her, after demurrer sustained to the indictment, of an amended indictment by the district attorney under leave of court, where the amended pleading did not change the offense, but simply made more certain the date of the instrument set out in the indictment upon which the alleged perjury was based. (Id.)

51. AMENDMENT OF INDICTMENT

CONSTRUCTION OF CODE AMENDMENT.Under section 1008 of the Penal Code, as amended in 1911, the amendment of an indictment or information by the district attorney is permitted, subject to the limitation that the amendment shall be as to matters of form only and not in matters of substance. (Id.)

52. ATTEMPT TO RECEIVE STOLEN PROPERTY PROOF OF INTENT AND OVERT ACT.-A charge of an attempt to commit the crime of receiving stolen goods is sufficiently established by proof that the accused, when told that stolen copper wire was hidden in a certain place, hired a vehicle, procured some canvas to cover the wire, and then went to the place where the property had been cached, and where he believed it to be, with the intention of taking it away. (Matter of Magidson, 566.)

53. IMPOSSIBILITY TO TAKE PROPERTY PREVIOUS DISCOVERY AND REMOVAL BY POLICE OFFICERS - - IMMATERIAL CIRCUMSTANCE.- The criminal nature of such a charge is not affected by the fact that it was impossible to receive the stolen property, by reason of the fact that it had been previously discovered by the officers of the law, removed from its place of secretion, and returned to the owner. (Id.)

54. POSSESSION OF STOLEN PROPERTY UNEXPLAINED EFFECT OF PROOFINSTRUCTION. In a prosecution for the crime of burglary, the defendant is not prejudiced by the giving of an instruction with reference to the possession of stolen property, unexplained, and the effect of such proof, where no evidence was introduced tending to show that the defendant had the property in his possession. (People v. Sweetman, 645.)

CRIMINAL LAW (Continued).

55. RAPE-EVIDENCE-STATEMENTS OF PROSECUTRIX.-In a prosecution for the crime of rape alleged to have been committed by the defendant upon his own daughter of the age of fifteen years, where the testimony of the prosecuting witness lies close to the border line of incredibility, it is prejudicial error to admit certain statements made by the prosecuting witness to another of the principal witnesses for the prosecution respecting complaints which the prosecutrix claimed to have made with regard to her father having committed many acts of sexual intercourse with her. (People v. Prietz, 727.)

56. ROBBERY IMMUNITY OF WITNESSES FROM PROSECUTION FOR GAMBLING LIMITATION OF CROSS-EXAMINATION-LACK OF PREJUDICE.— Upon the trial of a defendant upon an information jointly charging him with two other persons with the crime of robbery in taking by means of force and fear a specified sum of money from the possession and person of the prosecuting witness, the defendant is not prejudiced by the rulings of the court in limiting the cross-examination of the prosecuting witness and certain other persons appearing as witnesses on behalf of the prosecution, concerning circumstances from which the jury might make the deduction that the witnesses, who were at the time of the commission of the offense engaged in gambling, were promised immunity from prosecution for that offense, where it is made to appear that the cases against them were dis missed without their knowledge, and upon the order of the justice before whom the actions were pending. (People v. Horgan, 105.) 57. ROBBERY-EVIDENCE-EFFORT TO INDUCE WITNESS TO CHANGE TESTIMONY-EXCLUSION OF PROOF-LACK OF ERROR.-In a prosecution for the crime of robbery, the defendant is not prejudiced by the rulings of the court in sustaining objections to questions addressed to a witness for the defense on his direct examination, as to whether or not the district attorney's office had promised the witness, who was jointly charged with the crime, immunity from prosecution if he changed his testimony from that given at the two former trials of the case, in the absence of any claim that the testimony of the witness was influenced in any way, or that he testified other than truthfully. (People v. Allen, 110.)

58. DEFENDANT AS WITNESS AT TRIAL OF PERSON JOINTLY CHARGEDFAILURE TO READ SECTION 1324, PENAL CODE-DISMISSAL UNWARRANTED. A defendant jointly charged with the commission of a crime is not entitled to have the prosecution against him dismissed upon the ground that he was called as a witness for the defendant in the trial of the person jointly charged with him and therein gave testimony which clearly tended to incriminate himself as well as the defendant, and that section 1324 of the Penal Code was not read to him when he was thus called. (Id.)

CRIMINAL LAW (Continued).

59. CONVICTION OF ASSAULT WITH INTENT TO COMMIT ROBBERY.-A verdict of assault with intent to commit robbery may be found under an information charging the crime of robbery, where the evidence is in conflict as to whether any money was taken by the defendant from the person named in the information. (Id.) 60. ROBBERY-EVIDENCE-CONFESSIONS OF DEFENDANT-PROOF OF CORPUS DELICTI. In a prosecution for the crime of robbery it is not necessary that the testimony of the prosecuting witness be corroborated in establishing the corpus delicti, as preliminary to the admission in evidence of testimony of confessions made by the defendant. (People v. Henson, 600.)

See Intoxicating Liquors.

CRUELTY. See Husband and Wife, 5-9.

CUSTOM. See Workmen's Compensation Act, 6.

DAMAGES. See Eminent Domain, 8, 10, 12, 13, 14; Municipal Corporations, 9, 12; Negligence, 10; Sale, 7.

DEBTOR AND CREDITOR. See Association; Contract, 1; Partnership, 1-7.

DEED.

1. DELIVERY OF GRANT-ABSOLUTE CHARACTER OF.-Under section 1056 of the Civil Code a grant cannot be delivered to the grantee conditionally. Such a delivery is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made. (Burkett v. Doty, 337.)

2. ACTION TO SET ASIDE DEED-INTEREST OF DEFENDANT PLEADING— PROPER MATTER OF ADJUDICATION.-In an action to set aside a deed made by a husband to his wife, where the complaint asks for general relief and asserts facts sufficient to show that under the contention of the defendant the title of the plaintiff to the property might be clouded, it is proper to adjudge what interest, if any, the defendant acquired by reason of the conveyance. (Sherriff v. Sherriff, 681.)

3. HUSBAND AND WIFE DEED OF UNDIVIDED OR COMMUNITY INTEREST-ESTATE CONVEYED-CONSTRUCTION OF INSTRUMENT.-A deed from a husband to a wife of "an undivided or community interest" in certain property owned by him prior to their marriage, conveys to her a community interest such as she would have had had the property been acquired during their marriage, and not a fee interest to the extent of one-half of the property. (Id.)

DEED (Continued).

4. CONSTRUCTION OF DEEDS.-Deeds are to be construed like any other contract and the intent of the grantor arrived at, if possible, from the terms set forth in the instrument. (Id.)

See Deed of Trust.

DEED OF TRUST.

1. SUFFICIENCY OF NOTICE OF SALE-INJUNCTION.-Where the trustees under a deed of trust, upon default in payment and demand for sale by the beneficiary upon the trustees, gave notice of sale in one parcel, as provided in the deed of trust, but one day before the time for the sale, the debtor procured a temporary injunction restraining the sale and directing its postponement, and thereafter the court made an order that the property be offered for sale in three parcels, and that notice should be published not less than five days prior to the date of sale, and the trustees postponed the sale by proper notice as provided in the deed of trust until the day ordered by the court and gave the notice required by the order, objection to the sale on the ground that the notice was not published for the full period of three weeks, but only for five days under the court's order, is without merit, where the deed of trust expressly authorized the sale of the premises as a whole or in parcels at the discretion of the trustees, as the original notice of sale was sufficient to give the trustees jurisdiction to make the sale, which jurisdiction the order of the court requiring an offer of the property for sale in parcels might direct but could not destroy. (Portola Realty Company v. Carlston, 282.)

2. PAYMENT OF PURCHASE PRICE.-A sale under a deed of trust is not invalid because the purchaser does not physically deliver to the trustees the amount of his bid or any portion thereof in gold coin, but immediately after the sale borrows from the bank which holds the notes and is the beneficiary under the deed of trust the sum bid, which is credited to the trustees and a deed executed to the purchaser. (Id.)

DESERTION. See Divorce, 1-3.

DISTRICT COURT OF APPEAL. See Appeal, 4.

DIVORCE.

1. DESERTION CONTINUANCE FOR ENTIRE YEAR NECESSARY.-Separation by consent is not sufficient to constitute desertion, and where there has been desertion in fact it must continue for the entire period of a year in order to constitute a ground for divorce. (Silva v. Silva, 115.)