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and in the manner designated in section 2957, the record could impart no constructive notice. But plaintiff had a mortgage upon the personal property described in its complaint, which was valid as a common-law mortgage between the parties, and as against all other persons except creditors of the mortgagor and subsequent purchasers in good faith for value. Tregear v. Water Co., 76 Cal. 537, 18 Pac. 658; Works v. Merritt (decided Jan. 5, 1895) 38 Pac. 1109; Civ. Code, §§ 679, 2924. The mortgage not being due at the date of suit brought, and not providing, so far as appears, for a change of possession of the mortgaged property, plaintiff, under section 2927 of the Civil Code, was not entitled to possession, and was without remedy at law. In many of the states it is held, as at common law, that a mortgage of personal property transfers the title and the right to immediate possession in the mortgagee, unless otherwise provided in the mortgage. Jones, Chat. Mortg. § 426. In such cases the mortgagee may bring replevin or trover for an interference with the mortgaged chattels, and, having a remedy at law, equity will not intervene. Such is not the rule in this state.

The complaint does not aver that the defendants had actual notice of the existence of the mortgage, but does aver that they were purchasers without consideration, which, if true, rendered the mortgage valid as against them. "The power of a court of equity to preserve the mortgaged property from destruction, so that it may answer the purpose of the mortgage, is undoubted. A bill for an injunction may be sustained where it is shown that this remedy is proper for the mortgagee's protection, although the time of pavment set out in the mortgage has not arrived." Jones, Chat. Mortg. § 459, citing Dock Co. v. Mallery, 12 N. J. Eq. 93, 431; Rose v. Bevan, 10 Md. 466; Clagett v. Salmon, 5 Gill & J. 314; Maish v. Bird, 59 Iowa, 307, 13 N. W. 298. The complaint in this case states all the facts essential to invoke action by a court of equity for the preservation of the mortgaged chattels, and the demurrer should have been overruled; and, as the order dissolving the injunction was, except as to the defendant Drew, based upon the supposed insufficiency of the complaint, its dissolution was error.

As to the defendant Mahulda C. Drew, who answered denying the equities of the complaint, and showing that she was a purchaser of the sheep in good faith, without notice and for a valuable consideration, and who moved a dissolution of the injunction upon the complaint and her answer, the order of dissolution was proper.

The judgment appealed from should be reversed, and the court below directed to overrule the demurrer to the complaint; and the order dissolving the injunction should be reversed as to all the defendants except Mahulda C. Drew, and as to her it should be affirmed.

We concur: HAYNES, C.; BELCHER, C.

v.39P.no.10-68

PER CURIAM. For the reasons given in the foregoing opinion, the judgment appealed from is reversed, and the court below directed to overrule the demurrer to the complaint, and the order dissolving the injunction is reversed as to all the defendants except Mahulda C. Drew, and as to her it is affirmed.

(106 Cal. 628)

PEOPLE v. BUTTON. (No. 21,127.) (Supreme Court of California. April 2, 1895.) HOMICIDE-SELF-DEFENSE-INSTRUCTIONS.

1. One who makes a violent assault upon another is not justified in killing him in selfdefense, after he has endeavored to abandon the difficulty, if the injuries inflicted by him were such as to deprive the person assaulted of his capacity to receive impressions concerning the assailant's design and endeavor to cease further combat.

2. It is error to give an instruction that a plea of necessity is a shield for those only who are without fault, and which assumes that, if the defendant was the aggressor, the quarrel could subsequently assume no form or condition whereby he would be justified in taking the life of the person assaulted by him in self-defense.

3. An instruction that defendant is entitled to an acquittal if, after he assaulted deceased, he endeavored in good faith to withdraw from the struggle, and, after an interval had elapsed between the first and final assaults, deceased attempted to shoot defendant, causing him reasonable apprehension of danger, is misleading in intimating that, if the affray was but one connected quarrel or altercation, defendant would have no right to kill in self-defense under any circumstances.

In bank. Appeal from superior court, San Bernardino county; G. E. Otis, Judge.

Prosecution against Charles Button for murder. From a conviction of manslaughter and the refusal of a new trial, defendant appeals. Reversed.

Byron Waters, Wm. A. Harris, and Waters & Shoup, for appellant. Atty. Gen. Hart, for the People.

GAROUTTE, J. The appellant was charged with the crime of murder, and convicted of manslaughter. He now appeals from the judgment and order denying his motion for a new trial. For a perfect understanding of the principle of law involved in this appeal, it becomes necessary to state in a general way the facts leading up to the homicide. As to the facts thus summarized there is no material contradiction. The deceased, the defendant, and several other parties were camped in the mountains. They had been drinking, and, except a boy, were all under the influence of liquor, more or less; the defendant to some extent, the deceased to a great extent. The deceased was lying on the ground, with his head resting upon a rock, when a dispute arose between him and the defendant, and the defendant thereupon kicked or stamped him in the face. The assault was a vicious one, and the injuries of deceased occasioned thereby most serious. One eye was probably uestroyed, and some bones of the face broken. An expert testified that these injuries were so serious

as likely to produce in the injured man a dazed condition of mind, impairing the reasoning faculties, judgment, and powers of perception. Immediately subsequent to this assault, the defendant went some distance from the camp, secured his horse, returned and saddled it, with the avowed intention of leaving the camp to avoid further trouble. The time thus occupied in securing his horse and preparing for departure may be estimated at from 5 to 15 minutes. The deceased's conduct and situation during the absence of defendant are not made plain by the evidence, but he was probably still lying where assaulted. At this period of time the deceased advanced upon defendant with a knife, which was taken from him by a bystander, whereupon he seized his gun, and attempted to shoot the defendant, and then was himself shot by the defendant, and immediately died. There is also some further evidence that deceased ordered his dog to attack the defendant, and that defendant shot at the dog, but this evidence does not appear to be material to the question now under consideration.

Upon this state of facts, the court charged the jury as to the law of the case, and declared to them in various forms the principle of law which is fairly embodied in the following instruction: "One who has sought a combat for the purpose of taking advantage of another may afterwards endeavor to decline any further struggle; and, if he really and in good faith does so before killing the person with whom he sought the combat for such purpose, he may justify the killing on the same ground as he might if he had not originally sought such combat | for such purpose, provided that you also believe that his endeavor was of such a character, so indicated as to have reasonably assured a reasonable man that he was endeavoring in good faith to decline further combat, unless you further believe that in the same combat in which the fatal shot was fired, and prior to the defendant's endeavoring to cease further attack or quarrel, the deceased received at the hands of the defendant such injuries as deprived him of his reason or his capacity to receive impressions regarding defendant's design and endeavor to cease further combat." It is to that portion of the foregoing instruction relating to the capacity of the deceased to receive impressions caused by the defendant's attack upon him that appellant's counsel has directed his assault, and to which our attention will be addressed. The recital of facts indicates to some extent, at least, that the assault upon deceased was no part of the combat subsequently arising in which he lost his life; yet the events were so closely connected in point of time that the court was justified in submitting to the jury the question of fact as to whether or not the entire trouble was but one affray or combat. Section 197 of the Penal Code, wherein it says in effect that the assailant must

really and in good faith endeavor to decline any further struggle before he is justified in taking life, is simply declarative of the common law. It is but the reiteration of a wellsettled principle, and in no wise broadens and enlarges the right of self-defense, as declared by courts and text writers ever since the days of Lord Hale. It follows that the declaration of the Code above cited gives us no light upon the matter at hand, and from an examination of many books and cases we are unable to find a single authority directly in point upon the principle of law here involved. It is thus apparent that the question is both interesting and novel.

The point at issue may be made fairly plain by the following illustrations: If a party should so violently assault another by a blow or stroke upon the head as to render that party incapable of understanding or appreciating the conditions surrounding him, and the party assailed should thereupon pursue the retreating assailant for many hours and miles with a deadly weapon and with deadly intent, and, upon overtaking him, should proceed to kill him, would the first assailant, the party retreating, be justified in taking the then aggressor's life in order to save his own? In other words, did the first assault, producing the effect that it did, debar defendant (after retreating under the circumstances above depicted) from taking his opponent's life, even though that opponent at the time held a knife at his throat with deadly intent? Or, putting it more concisely, did the aggressor by his first assault forfeit his life to the party assaulted? Or, viewing the case from the other side, should a man be held guiltless who without right assaults another so viciously as to take away his capacity to reason, to deprive him of his mind, and then kill him because, when so assaulted, his assailant is unable to understand that the attacking party is retreating. and has withdrawn from the combat in good faith? In other words, may a defendant so assault another as to deprive him of his mind, and then kill him in self-defense, when he is in such a condition that he is unable to understand that his assailant has withdrawn in good faith from the combat? In order for an assailant to justify the killing of his adversary, he must not only endeavor to real ly and in good faith withdraw from the combat, but he must make known his intentions to his adversary. His secret intentions to withdraw amount to nothing. They furnish no guide for his antagonist's future conduct. They indicate in no way that the assault may not be repeated, and afford no assur ance to the party assailed that the need of defense is gone. This principle is fairly illustrated in Hale's Pleas of the Crown (page 482), where the author says: "But, if A. assaults B. first, and upon that assault B. reassaults A., and that so fiercely that A. cannot retreat to the wall, or other non ultra without danger of his life, nay, though A.

falls upon the ground upon the assault of B., and then kills B., this shall not be interpreted to be se defendendo." The foregoing principle is declared sound for the reason that, though A. was upon the ground and in great danger of his life at the time he killed B., still he was the assailant, and at the time of the killing had done nothing to indicate to the mind of B. that he had in good faith withdrawn from the combat, and that B. was no longer in danger. In Stoffer v. State, 15 Ohio St. 47, in speaking to this question, the court said: "There is every reason for saying that the conduct of the accused relied upon to sustain such a defense must have been so marked in the matter of time, place, and circumstance as not only clearly to evince the withdrawal of the accused in good faith from the combat, but also such as fairly to advise his adversary that his danger had passed, and to make his conduct thereafter the pursuit of vengeance, rather than measures taken to repel the original assault." It is also said in State v. Smith, 10 Nev. 106, citing the Ohio case: "A man who assails another with a deadly weapon cannot kill his adversary in self-defense until he has fairly notified him by his conduct that he has abandoned the contest; and, if the circumstances are such that he cannot so notify him. it is his fault, and he must take the consequences." It is therefore made plain that knowledge of the withdrawal of the assailant in good faith from the combat must be brought home to the assailed. He must be notified in some way that danger no longer threatens him, and that all fear of further harm is groundless. Yet, in considering this question, the assailed must be deemed a man of ordinary understanding. He must be gauged and tested by the common rule,-a reasonable man. His acts and conduct must be weighed and measured in the light of that test, for such is the test applied wherever the right of self-defense is made an issue. His naturally demented condition will not excuse him from seeing that his assailant has withdrawn from the attack in good faith. Neither his passion nor his cowardice will be allowed to blind him to the fact that his assailant is running away, and all danger is over. If the subsequent acts of the attacking party be such as to indicate to a reasonable man that he in good faith has withdrawn from the combat, they must be held to so indicate to the party attacked. Again, the party attacked must also act in good faith. He must act in good faith towards the law, and allow the law to punish the offender. He must not continue the combat for the purpose of wreaking vengeance, for then he is no better than his adversary. The law will not allow him to say, "I was not aware that my assailant had withdrawn from the combat in good faith," if a reasonable man so placed would have been aware of such withdrawal. If the party assailed has eyes to see, he must see; and, if he has ears to

hear, he must hear. He has no right to close his eyes or deaden his ears.

This brings us directly to the consideration of the point in the case raised by the charge of the court to the jury. While the deceased had eyes to see and ears to hear, he had no mind to comprehend, for his mind was taken from him by the defendant at the first assault. Throughout this whole affray, it must be conceded that the deceased was guilty of no wrong, no violation of the law. When he attempted to kill the defendant, he thought he was acting in self-defense, and, according to his lights, he was acting in selfdefense. To be sure, those lights, supplied by a vacant mind, were dim and unsatisfactory; yet they were all the deceased had at the time, and not only were furnished by the defendant himself, but the defendant, in furnishing them, forcibly and unlawfully deprived the deceased of others which were perfect and complete. But where does the defendant stand? It cannot be said that he was guilty of no wrong, no violation of the law. It was he who made the vicious attack. It was he who was guilty of an unprovoked and murderous assault. It was he who unlawfully brought upon himself the necessity for killing the deceased. It cannot be possible that in a combat of this character no crime has been committed against the law. Yet the deceased has committed no offense. Neither can the defendant be prosecuted for an assault to commit murder, for the assault resulted in the commission of a homicide as a part of the affray. For these reasons, we consider that the defendant cannot be held guiltless. Some of the earlier writers hold that one who gives the first blow cannot be permitted to kill the other, even after retreating to the wall, for the reason that the necessity to kill was brought upon himself. 1 Hawk. P. C. 87. While the humane doctrine, and especially the modern doctrine, is more liberal to the assailant, and allows him an opportunity to withdraw from the combat, if it is done in good faith, yet it would seem that, under the circumstances here presented, the more rigid doctrine should be applied. The defendant not only brought upon himself the necessity for the killing, but, in addition thereto, brought upon himself the necessity of killing a man wholly innocent in the eyes of the law; not only wholly innocent as being a person naturally non compos, but wholly innocent by being placed in this unfortunate condition of mind by the act of the defendant himself. We conclude, therefore, that the instruction contains a sound principle of law. The defendant was the first wrongdoer. He was the only wrongdoer. He brought on the necessity for the killing, and cannot be allowed to plead that necessity against the deceased. who at the time was non compos by reason of defendant's assault. The citations we have taken from Hale, the Ohio case, and the Nevada case all declare that the assailant

must notify the assailed of his withdrawal, that, prior to the time of the shooting of the from the combat in good faith before he will be justified in taking life. Here the defendant did not so notify the deceased. He could not notify him, for by his own unlawful act be had placed it out of his power to give the deceased such notice. Under these circumstances, he left no room in his case for the plea of self-defense.

2. The court gave the following instruction to the jury as to the law bearing upon the facts of the case: "And no man by his own lawless acts can create a necessity for acting in self-defense, and then, upon killing the person with whom he seeks the difficulty, interpose the plea of self-defense, subject to the qualification next hereinafter set out. The plea of necessity is a shield for those only who are without fault in occasioning it and acting under it. The court instructs the jury that if you are satisfied that there was a quarrel between the defendant and deceased, in which the defendant was the aggressor, and first assaulted the deceased by means or force likely to produce and actually producing great bodily injury to the deceased, and that the defendant thereafter in the same quarrel fatally shot the deceased, then you must find the defendant guilty, subject to this qualification." This instruction appears to have been given subject to some qualification, and as to the extent and character of the qualification the record is not plain. But, whatever it may have been, the vice of the instruction could not be taken away. The instruction is bad law, and no explanation or qualification could validate it. It is not true that the plea of necessity is a shield for those only who are without fault in occasioning it and acting under it. As we have already seen, this is the rigid doctrine declared by Sergeant Hawkins, but not the humane doctrine of Lord Hale and modern authority. The latter portion of the instruction is in direct conflict with the Stoffer Case, already cited, where the declaration of the same principle in a somewhat different form caused a reversal of the judgment. It was there said: "If this is a sound view of the matter, the condition of the accused would not have been bettered if he had fled for miles, and had finally fallen down with exhaustion, provided Webb was continuous in his efforts to overtake him. But this view is consistent with neither the letter nor the spirit of the legal principle." The instruction assumes that, if the defendant was the aggressor, the quarrel could subsequently assume no form or condition whereby the defendant would be justified in taking the life of the party assailed. The law of self-defense is to the contrary, and is clearly recognized to the contrary by the provision of the Penal Code to which we have already referred.

3. The court also gave the jury the following instruction to guide them in their deliberations: "If you find from the evidence

deceased by the defendant, they had a quarrel and altercation, and that the defendant stamped or kicked the deceased in the face, and that defendant thereafter really and in good faith, although he was the assailant, endeavored to decline any further struggle before the homicide was committed, and that [after the first assault had ceased, and there had an interval elapsed between said first assault and the final assault, making said assaults respectively, although in some degree related to each other, yet substantially distinct transactions, each attended with its own separate circumstances] the deceased procured his gun, and made such an attempt to shoot defendant as gave the defendant reasonable ground to apprehend and fear that the deceased was about to take his life, or do him great bodily injury, and that, acting under such reasonable apprehension alone, defendant shot the deceased, then you will acquit the defendant; and this will be your duty, notwithstanding the defendant may have been in the wrong in first assailing or attacking the deceased." That portion of the charge inclosed in brackets embodied a modification of the original charge, as asked by counsel, and we think should not have been inserted. It had a tendency to mislead the jury, and the instruction was perfectly sound without it. The question as to the capacity of the deceased's mind to understand and appreciate was not an element involved in this charge, and with that the court was not then dealing; but, by the modification, it deprived the defendant of the right to go before the jury upon the plea of self-defense, if there was but one assault which led up to the homicide. The right of the defendant to act in self-defense was in no way dependent upon the commission of two assaults. If there was but one assault which caused the combat, even though that assault was a part of the combat, and was made by the defendant, still he had the right of self-defense if his subsequent conduct was such as to indicate to the assaulted party that he had withdrawn in good faith from the struggle. The effect of the modification was to plainly intimate to the jury that, if the whole affray was but one connected quarrel or altercation, then the defendant under no possible set of circumstances could be justitied in law in killing his adversary. This is wrong. As to the true solution of the question by the jury which the court was then discussing, it was entirely immaterial whether or not there was one or two assaults.

We think the questions we have discussed dispose of all material matters raised upon the appeal.

For the foregoing reasons, the judgment and order are reversed, and the cause remanded for a new trial.

We concur: BEATTY, C. J.; HARRISON, J.; MCFARLAND, J.; VAN FLEET, J.

(106 Cal. 638)

(No. 21,140.) April 2, 1895.)

PEOPLE v. JOCHINSKY. (Supreme Court of California. BURGLARY-INFORMATION-DUPLICITY-SufficienCY OF EVIDENCE-FORM OF VERDICT. 1. An information for burglary, alleging that defendant entered a store with intent to steal in one county, and that he stole certain property, and removed it to another county, where the venue is laid, is not bad, as charging both burglary and grand larceny, under Pen. Code, § 786, providing that when property taken in one county by burglary has been brought into another county the jurisdiction of the offense is in either county.

2. A conviction of burglary is sustained by evidence that defendant was seen looking into a certain store on the evening before it was burglarized, and on being noticed walked rapidly away, and that some of the stolen goods were sold by him and some of his associates, who represented themselves as being merchants from a distant city, and that other portions were found on the premises occupied by defendant.

3. A verdict of guilty of burglary under an indictment charging burglary of a store in a certain county is not fatally defective in form because it does not specify the county in which the offense was committed; nor is it defective, as being both general and special, because it also contains the unnecessary statement, also alleged in the information, that the goods stolen were taken by defendant into another county, where the venue is laid.

Commissioners' decision. In bank. Appeal from superior court, city and county of San Francisco; Wm. R. Daingerfield, Judge.

Information against Martin Jochinsky for burglary. From a conviction of burglary in the first degree, and the overruling of a motion for a new trial, defendant appeals. firmed.

Af

Robert Ferral, for appellant. Atty. Gen. Hart, for the People.

BELCHER, C. The information in this case was filed in the superior court of the city and county of San Francisco on the 15th of November, 1893. It charges that in March, 1893, the defendant and one Alexander Schenkovsky did feloniously and burglariously enter the store of one Morris Prince, known as the "IXL Dry Goods Store," in the city of Santa Rosa, county of Sonoma, state of California, with the felonious intent then and there and therein to commit larceny. It further charges that in the commission of the burglary the parties accused did then and there willfully, unlawfully, and feloniously steal, take, and carry away as proceeds of said burglary 15 suits of men's clothing, of the value of $15 per suit, and certain other described articles of clothing, all of the aggregate value of $434, lawful money of the United States, and the personal property of the said Morris Prince; and that thereafter in October, 1893, they brought, carried, and removed the said personal property into the city and county of San Francisco. The defendant demurred to the information upon the ground that it "charges more than one offense, to wit, buriary and grand larceny." The demurrer

was overruled, and the defendant then pleaded not guilty. The case was tried, and the verdict was: "We, the jury, find the defendant guilty of burglary in the first degree; and we further find that the goods taken from Prince's store on the night of the 13th or 14th of April, 1893, were brought from Sonoma county into the city and county of San Francisco, state of California, by the defendant." A motion for new trial was subsequently made and denied, and thereupon judgment was entered that the defendant be punished by imprisonment in the state prison at San Quentin for the term of 10 years. From this judgment and the order denying his motion for a new trial the defendant appeals.

1. The first point made for a reversal is that the demurrer to the information should have been sustained; and in support of this point sections 954 and 1004 of the Penal Code are cited and relied upon. These sections provide that the indictment or informa. tion must charge but one offense, and that the defendant may demur to the indictment or information when it appears upon the face thereof that more than one offense is charged. But section 786 of the same Code also provides that "when property taken in one county by burglary, robbery, larceny or embezzlement has been brought into another, the jurisdiction of the offense is in either county," etc. Ordinarily, of course, the offense of burglary can be tried only in the county in which it is committed, but under the last-named section it can be tried in any county into which the property burglariously taken has been brought. To give the court in the latter county, however, jurisdiction of the offense, the facts showing that a burglary was committed and that property was burglariously taken and carried to the said county must be set out. It was so held in People v. Scott, 74 Cal. 94, 15 Pac. 384, where/ the court quoted, as indicating the true rule in such cases, the following language used in deciding the case of Haskins v. People, 16 N. Y. 344: "The difference between the two cases is this: Burglaries may be tried out of their proper counties in certain special cases, that is, where the goods burglariously taken are carried into another county by the offenders; but this is by positive law, and not because the burglary was actually committed in the county where the indictment is found, or in judgment of law is considered to have been committed there. The fact must, therefore, be set out which brings the case within the statute; but in the case of an indictment for a simple larceny, found in a county into which the thief has carried the property stolen in another county, the law adjudges that the offense was in truth committed there, and hence there is no occasion for a statement in the pleading of what occurred in the other county." The information complained of here simply complied with the rule thus indicated,

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