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and in the manner designated in section 2957, PER CURIAM. For the reasons given in the record could impart no constructive no- the foregoing opinion, the judgment appealed tice. But plaintiff had a mortgage upon the from is reversed, and the court below directed personal property described in its complaint, | to overrule the demurrer to the complaint, and which was valid as a common-law mortgage the order dissolving the injunction is reversed between the parties, and as against all other as to all the defendants except Mahulda C. persons except creditors of the mortgagor and Drew, and as to her it is affirmed. subsequent purchasers in good faith for value. Tregear v. Water Co., 76 Cal. 537, 18 Pac.

(106 Cal. 628) 658; Works v. Merritt (decided Jan. 5, 1895) 38 Pac. 1109; Civ. Code, $8 679, 2924. The

PEOPLE v. BUTTON. (No. 21,127.) mortgage not being due at the date of suit

(Supreme Court of California. April 2, 1895.) brought, and not providing, so far as appears,

HOMICIDE-SELF-DEFENSE-INSTRUCTIONS. for a change of possession of the mortgaged

1. One who makes a violent assault upon

another is not justified in killing him in selfproperty, plaintiff, under section 2927 of the

defense, after he has endeavored to abandon the Civil Code, was not entitled to possession, and difficulty, if the injuries inflicted by him were was without remedy at law. In many of the such as to deprive the person assaulted of his states it is held, as at common law, that a

capacity to receive impressions concerning the

assailant's design and endeavor to cease furmortgage of personal property transfers the

ther combat. title and the right to immediate possession in 2. It is error to give an instruction that a the mortgagee, unless otherwise provided in

plea of necessity is a shield for those only who

are without fault, and which assumes that, if the the mortgage. Jones, Chat. Mortg. 8 426. In

defendant was the aggressor, the quarrel could such cases the mortgagee may bring replevin subsequently assume form or condition or trover for an interference with the mort- whereby he would be justified in taking the life gaged chattels, and, having a remedy at law,

of the person assaulted by him in self-defense.

3. An instruction that defendant is entitled equity will not intervene. Such is not the rule

to an acquittal if, after he assaulted deceased, in this state.

he endeavored in good faith to withdraw from The complaint does not aver that the de- i the struggle, and, after an interval had elapsed

between the first and final assaults, deceased atfendants had actual notice of the existence of

tempted to shoot defendant, causing him reasonthe mortgage, but does aver that they were able apprehension of danger, is misleading in inpurchasers without consideration, which, if timating that, if the affray was but one contrue, rendered the mortgage valid as against i have no right to kill in self-defense under any

nected quarrel or altercation, defendant would them. "The power of a court of equity to circumstances. preserve the mortgaged property from destruc- In bank. Appeal from superior court, San tion, so that it may answer the purpose of the

Bernardino county; G. E. Otis, Judge. mortgage, is undoubted. A bill for an injunc

Prosecution against Charles Button for tion may be sustained where it is shown that

murder. From a conviction of manslaughter this remedy is proper for the mortgagee's and the refusal of a new trial, defendant approtection, although the time of pavmept set

peals. Reversed. out in the mortgage bas not arrived." Jones, Chat. Mortg. $ 459, citing Dock Co. v. Mal

Byron Waters, Wm. A. Harris, and Waters lery, 12 N. J. Eq. 93, 431; Rose v. Bevan, 10

& Shoup, for appellant. Atty. Gen. Hart, for

the People. Md. 466; Clagett v. Salmon, 5 Gill & J. 314; Maish v. Bird, 59 Iowa, 307, 13 N. W. 298.

GAROUTTE, J. The appellant was charThe complaint in this case states all the facts

ged with the crime of murder, and convictessential to invoke action by a court of equity

ed of manslaughter. He now appeals from for the preservation of the mortgaged chat

the judgment, and order denying his motels, and the demurrer should have been over

tion for a new trial. For a perfect underruled; and, as the order dissolving the injunc

standing of the principle of law involved in tion was, except as to the defendant Drew,

this appeal, it becomes necessary to state based upon the supposed insufficiency of the

in a general way the facts leading up to the complaint, its dissolution was error.

| homicide. As to the facts thus summarized As to the defendant Mahulda C. Drew, who there is no material contradiction. The deanswered denying the equities of the com

ceased, the defendant, and several other parplaint, and showing that she was a purchaser

ties were camped in the mountains. They of the sheep in good faith, without notice and

had been drinking, and, except a boy, were for a valuable consideration, and who moved

all under the influence of liquor, more or a dissolution of the injunction upon the com

less; the defendant to some extent, the depiaint and her answer, the order of dissolution

ceased to a great extent. The deceased was was proper.

lying on the ground, with his head resting The judgment appealed from should be re

upon a rock, when a dispute arose between versed, and the court below directed to over

him and the defendant, and the defendant rule the demurrer to the complaint; and the thereupon kicked or stamped him in the face. order dissolving the injunction should be re

The assault was a vicious one, and the inversed as to all the defendants except Mahulda

juries of deceased occasioned thereby most seC. Drew, and as to her it should be affirmed.

rious. One eye was probably uestroyed, and

some bones of the face broken. An expert We concur: HAYNES, C.; BELCHER, C. testified that these injuries were so serious

v.39p.no.10–68

as likely to produce in the injured man a really and in good faith endeavor to decline dazed condition of mind, impairing the rea- any further struggle before he is justified in soning faculties, judgment, and powers of taking life, is simply declarative of the comperception. Immediately subsequent to this mon law. It is but the reiteration of a wellassault, the defendant went some distance settled principle, and in no wise broadens from the camp, secured his horse, returned and enlarges the right of self-defense, as and saddled it, with the avowed intention declared by courts and text writers ever of leaving the camp to avoid further trouble. since the days of Lord Hale. It follows that The time thus occupied in securing his horse the declaration of the Code above cited gives and preparing for departure may be estimat- us no light upon the matter at hand, and ed at from 5 to 15 minutes. The deceased's from an examination of many books and conduct and situation during the absence of cases we are unable to find a single authordefendant are not made plain by the evidence, ity directly in point upon the principle of but he was probably still lying where as- law here involved. It is thus apparent that saulted. At this period of time the deceased the question is both interesting and novel. advanced upon defendant with a knife, The point at issue may be made fairly plain which was taken from him by a bystander, by the following illustrations: If a party whereupon he seized his gun, and attempted should so violently assault another by a to shoot the defendant, and then was himself blow or stroke upon the head as to render shot by the defendant, and immediately died. that party incapable of understanding or apThere is also some further evidence that de- preciating the conditions surrounding him, ceased ordered his dog to attack the defend- and the party assailed should thereupon purant, and that defendant shot at the dog, but sue the retreating assailant for many hours this evidence does not appear to be material and miles with a deadly weapon and with to the question now under consideration. deadly intent, and, upon overtaking him,

Upon this state of facts, the court char- should proceed to kill him, would the first ged the jury as to the law of the case, and assailant, the party retreating, be justified in declared to them in various forms the prin- taking the then aggressor's life in order to ciple of law which is fairly embodied in the save his own? In other words, did the first following instruction: “One who has sought assault, producing the effect that it did, dea combat for the purpose of taking advan- bar defendant (after retreating under the cirtage of another may afterwards endeavor cumstances above depicted) from taking his to decline any further struggle; and, if he opponent's life, even though that opponent really and in good faith does so before kill- at the time held a knife at his throat with ing the person with whom he sought the deadly intent? Or, putting it more concise. combat for such purpose, he may justify the ly, did the aggressor by his first assault forkilling on the same ground as he might if feit his life to the party assaulted? Or, he had not originally sought such combat viewing the case from the other side, should for such purpose, provided that you also a man be held guiltless who without right believe that his endeavor was of such a char- assaults another so víciously as to take away acter, so indicated as to have reasonably his capacity to reason, to deprive him of his assured a reasonable man that he was en- mind, and then kill him because, when so deavoring in good faith to decline further assaulted, his assailant is unable to undercombat, unless you further believe that in stand that the attacking party is retreating, the same combat in which the fatal shot and has withdrawn from the combat in good was fired, and prior to the defendant's en- | faith? In other words, may a defendant so deavoring to cease further attack or quar- | assault another as to deprive him of his rel, the deceased received at the hands of mind, and then kill him in self-defense, when the defendant such injuries as deprived him he is in such a condition that he is unable to of his reason or his capacity to receive im- understand that his assailant has withdrawn pressions regarding defendant's design and in good faith from the combat? In order for endeavor to cease further combat." It is an assailant to justify the killing of his adto that portion of the foregoing instruction versary, he must not only endeavor to reai relating to the capacity of the deceased to ly and in good faith withdraw from the comreceive impressions caused by the defend- bat, but he niust make known his intentions ant's attack upon him that appellant's coun- to his adversary. His secret intentions to sel has directed his assault, and to which withdraw amount to nothing. They furnish our attention will be addressed. The recital no guide for his antagonist's future conduct. of facts indicates to some extent, at least, They indicate in no way that the assault that the assault upon deceased was no part may not be repeated, and afford no assurof the combat subsequently arising in which ance to the party assailed that the need of he lost his life; yet the events were so close- defense is gone. This principle is fairly illusly connected in point of time that the court trated in Hale's Pleas of the Crown (page was justified in submitting to the jury the 482), where the author says: “But, if A. asquestion of fact as to whether or not the saults B. first, and upon that assault B. reentire trouble was but one affray or com- assaults A., and that so fiercely that A. canbat. Section 197 of the Penal Code, wherein not retreat to the wall, or other non ultra it says in effect that the assailant must without danger of his life, nay, though A.

in . , 106, cit. "

falls upon the ground upon the assault of B., hear, he must hear. He has no right to and then kills B., this shall not be interpret- close his eyes or deaden his ears. ed to be se defendendo." The foregoing prin- This brings us directly to the consideration ciple is declared sound for the reason that, of the point in the case raised by the charge though A. was upon the ground and in great of the court to the jury. While the dedanger of his life at the time he killed B., ceased had eyes to see and ears to hear, he still he was the assailant, and at the time of had no mind to comprehend, for his mind the killing had done nothing to indicate to the was taken from him by the defendant at the mind of B. that he had in good faith with- first assault. Throughout this whole affray, drawn from the combat, and that B. was no it must be conceded that the deceased was longer in danger. In Stoffer v. State, 15 guilty of no wrong, no violation of the law. Ohio St. 47, in speaking to this question, the When he attempted to kill the defendant, he court said: “There is every reason for say- thought he was acting in self-defense, and, ing that the conduct of the accused relied up- according to his lights, he was acting in selfon to sustain such a defense must have been defense. To be sure, those lights, supplied so marked in tue matter of time, place, and by a vacant mind, were dim and unsatisfaccircumstance as not only clearly to evince | tory; yet they were all the deceased had at the withdrawal of the accused in good faith the time, and not only were furnished by the from the combat, but also such as fairly to defendant himself, but the defendant, in furadvise his adversary that his danger had nishing them, forcibly and unlawfully depassed, and to make his conduct thereafter the prived the deceased of others which were pursuit of vengeance, rather than measures perfect and complete. But where does the taken to reped the original assault.” It is defendant stand? It cannot be said that he

was guilty of no wrong, no violation of the ing the Ohio case: “A man who assails an- law. It was he who made the vicious atother with a deadly weapon cannot kill his tack. It was he who was guilty of an unadversary in self-defense until he has fairly provoked and murderous assault. It was he notified him by his conduct that he has who unlawfully brought upon himself the neabandoned the contest; and, if the circum- cessity for killing the deceased. It cannot be stances are such that he cannot so notify him. possible that in a combat of this character it is his fault, and he must take the conse- no crime has been committed against the quences.” It is therefore made plain that law. Yet the deceased has committed no knowledge of the withdrawal of the assail- offense. Neither can the defendant be prosant in good faith from the combat must be ecuted for an assault to commit murder, for brought home to the assailed. He must be the assault resulted in the commission of a notified in some way that danger no longer homicide as a part of the affray. For these threatens him, and that all fear of further reasons, we consider that the defendant canharm is groundless. Yet, in considering this not be held guiltless. Some of the earlier question, the assailed must be deemed a man writers hold that one who gives the first of ordinary understanding. He must be blow cannot be permitted to kill the other, gauged and tested by the common rule,-a even after retreating to the wall, for the reareasonable man. His acts and conduct must son that the necessity to kill was brought be weighed and measured in the light of that upon himself. 1 Hawk. P. C. 87. While the test, for such is the test applied wherever humane doctrine, and especially the modern the right of self-defense is made an issue. doctrine, is more liberal to the assailant, and His naturally demented condition will not allows him an opportunity to withdraw from excuse him from seeing that his assailant has the combat, if it is done in good faith, yet it withdrawn from the attack in good faith. would seem that, under the circumstances Neither his passion nor his cowardice will here presented, the more rigid doctrine be allowed to blind him to the fact that his should be applied. The defendant not only assailant is running away, and all danger is brought upon himself the necessity for the over. If the subsequent acts of the attack- killing, but, in addition thereto, brought upon ing party be such as to indicate to a reasona- himself the necessity of killing a man wholble man that he in good faith has withdrawn ly innocent in the eyes of the law; not only from the combat, they must be held to so in- wholly innocenť as being a person naturally dicate to the party attacked. Again, the non compos, but wholly innocent by being party attacked must also act in good faith. placed in this unfortunate condition of mind He must act in good faith towards the law, by the act of the defendant himself. We and allow the law to punish the offender. conclude, therefore, that the instruction conHe must not continue the combat for the tains a sound principle of law. The defendpurpose of wreaking vengeance, for then he ant was the first wrongdoer. He was the is no better than his adversary. The law | only wrongdoer. He brought on the neceswill not allow him to say, "I was not aware sity for the killing, and cannot be allowed to that my assailant had withdrawn from the plead that necassity against the deceased. combat in good faith,” if a reasonable man so who at the time was non compos by reason placed would have been aware of such with- of defendant's assault. The citations we drawal. If the party assailed has eyes to have taken from Hale, the Ohio case, and the see, he must see; and, if he has ears to 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 deceased by the defendant, they had a quarbe justified in taking life. IIere the defend- rel and altercation, and that the defendant ant did not so notify the deceased. He stamped or kicked the deceased in the face, could not notify him, for by his own unlaw- and that defendant thereafter really and in ful act be had placed it out of his power to good faith, although he was the assailant, give the deceased such notice. Under these endeavored to decline any further struggle circumstances, he left no room in his case before the homicide was committed, and that for the plea of self-defense.

(after the first assault had ceased, and there 2. The court gave the following instruction had an interval elapsed between said first asto the jury as to the law bearing upon the sault and the final assault, making said asfacts of the case: “And no man by his own saults respectively, although in some degree lawless acts can create a necessity for acting related to each other, yet substantially disin self-defense, and then, upon killing the tinct transactions, each attended with its person with whom he seeks the difficulty, in- own separate circumstances] the deceased terpose the plea of self-defense, subject to the procured his gun, and made sucb an attempt qualification next hereinafter set out. The to shoot defendant as gave the defendant reaplea of necessity is a shield for those only sonable ground to apprehend and fear that who are without fault in occasioning it and the deceased was about to take his life, or do acting under it. The court instructs the ju- him great bodily injury, and that, acting un. ry that if you are satisfied that there was der such reasonable apprehension alone, de a quarrel between the defendant and de- fendant shot the deceased, then you will acceased, in which the defendant was the ag- quit the defendant; and this will be your gressor, and first assaulted the deceased by duty, notwithstanding the defendant may means or force likely to produce and actual- have been in the wrong in first assailing or ly producing great bodily injury to the de- attacking the deceased.” That portion of the ceased, and that the defendant thereafter in charge inclosed in brackets embodied a modthe same quarrel fatally shot the deceased, ification of the original charge, as asked by then you must find the defendant guilty, sub- counsel, and we think should not have been ject to this qualification.” This instruction inserted. It had a tendency to mislead the appears to have been given subject to some jury, and the instruction was perfectly sound qualification, and as to the extent and char- without it. The question as to the capacity acter of the qualification the record is not of the deceased's mind to understand and applain. But, whatever it may have been, the preciate was not an element involved in this vice of the instruction could not be taken charge, and with that the court was not away. The instruction is bad law, and no then dealing; but, by the modification, it de explanation or qualification could validate it. prived the defendant of the right to go beIt is not true that the plea of necessity is fore the jury upon the plea of self-defense, a shield for those only who are without fault if there was but one assault which ledi up in occasioning it and acting under it. As to the homicide. The right of the defendant we have already seen, this is the rigid doc- to act in self-defense was in no way depend. trine declared by Sergeant Hawkins, but not ent upon the commission of two assaults. the humane doctrine of Lord Hale and mod- If there was but one assault which caused ern authority. The latter portion of the in- the combat, even though that assault was a struction is in direct conflict with the Stoffer part of the combat, and was made by the Case, already cited, where the declaration of defendant, still he had the right of self-de the same principle in a somewhat different fense if his subsequent conduct was such as form caused a reversal of the judgment. It to indicate to the assaulted party that he was there said: "If this is a sound view of had withdrawn in good faith from the strug. the matter, the condition of the accused gle. The effect of the modification was to would not have been bettered if he had tled plainly intimate to the jury that, if the whole for miles, and had finally fallen down with affray was but one connected quarrel or alexhaustion, provided Webb was continuous tercation, then the defendant under no posin his efforts to overtake him. But this view sible set of circumstances could be justitied is consistent with neither the letter nor the in law in killing his adversary. This is spirit of the legal principle.” The instruc- wrong. As to the true solution of the ques. tion assumes that, if the defendant was the tion by the jury which the court was then aggressor, the quarrel could subsequently as- discussing, it was entirely immaterial whethsume no form or condition whereby the de- er or not there was one or two assaults. fendant would be justified in taking the life We think the questions we have discussed of the party assailed. The law of self-de- dispose of all material matters raised upon fense is to the contrary, and is clearly rec- the appeal. ognized to the contrary by the provision of For the foregoing reasons, the judgment the Penal Code to which we have already re- and order are reversed, and the cause re ferred.

manded for a new trial. 3. The court also gave the jury the following instruction to guide them in their delib- We concur: BEATTY, C. J.; HARRI. erations: "If you tind from the evidence SON, J.; McFARLAND, J.; VAN FLEET, J.

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as

(106 Cal. 638)

was overruled, and the defendant then pleadPEOPLE Y. JOCHINSKY. (No. 21,140.)

ed not guilty. The case was tried, and the

verdict was: (Supreme Court of California. April 2, 1895.)

“We, the jury, find the de BURGLARY-INFORMATION-DUPLICITY-SUFFICIEN

fendant guilty of burglary in the first deCY OF EVIDENCE-FORM OF VERDICT.

gree; and we further find that the goods 1. An information for burglary, alleging

taken from Prince's store on the night of the that defendant entered a store with intent to 13th or 14th of April, 1893, were brought steal in one county, and that he stole certain

from Sonoma county into the city and counproperty, and removed it to another county, where the venue is laid, is not bad, as charging

ty of San Francisco, state of California, by both burglary and grand larceny, under Pen. the defendant." A motion for new trial was Code, g 786, providing that when property taken subsequently made and denied, and thereupin one county by burglary has been brought into another county the jurisdiction of the offense

on judgment was entered that the defendant is in either county.

be punished by imprisonment in the state 2. A conviction of burglary is sustained by prison at San Quentin for the term of 10 evidence that defendant was seen looking into

years. From this judgment and the order a certain store on the evening before it was burglarized, and on being noticed walked rap

denying his motion for a new trial the de idly away, and that some of the stolen goods

fendant appeals. were sold by him and some of his associates, 1. The first point made for a reversal is who represented themselves being mer

that the demurrer to the information should chants from a distant city, and that other portions were found on the premises occupied by

have been sustained; and in support of this defendant.

point sections 934 and 1004 of the Penal 3. A verdict of guilty of burglary under an Code are cited and relied upon. These secindictment charging burglary of a store in a certain county is not fatally defective in form

tions provide that the indictment or informa. because it does not specify the county in which

tion must charge but one offense, and that the offense was committed; nor is it defective, the defendant may demur to the indictment as being both general and special, because it

or information when it appears upon the also contains the unnecessary statement, also alleged in the information, that the goods stolen

face thereof that more than one offense is were taken by defendant into another county, charged. But section 786 of the same Code where the venue is laid.

also provides that “when property taken in Commissioners' decision. In bank. Appeal one county by burglary, robbery, larceny or from superior court, city and county of San embezzlement has been brought into another, Francisco; Wm. R. Daingerfield, Judge. the jurisdiction of the offense is in either

Information against Martin Jochinsky for county," etc. Ordinarily, of course, the ofburglary. From a conviction of burglary in fense of burglary can be tried only in the the first degree, and the overruling of a mo- county in which it is committed, but under tion for a new trial, defendant appeals. Af- the last-named section it can be tried in any firmed.

county into which the property burglariously Robert Ferral, for appellant. Atty. Gen.

taken has been brought. To give the court Hart, for the People.

in the latter county, however, jurisdiction of

the offense, the facts showing that a burBELCHER, C. The information in this glary was committed and that property was case was filed in the superior court of the burglariously taken and carried to the said city and county of San Francisco on the county must be set out. It was so held in 15th of November, 1893. It charges that in People v. Scott, 74 Cal. 94, 15 Pac. 384, where March, 1893, the defendant and one Alexan- the court quoted, as indicating the true rule der Schenkovsky did feloniously and bur- in such cases, the following language used glariously enter the store of one Morris in deciding the case of Haskins v. People, Prince, known as the “IXL Dry Goods 16 N. Y. 344: “The difference between the Store," in the city of Santa Rosa, county of two cases is this: Burglaries may be tried Sonoma, state of California, with the feloni. out of their proper counties in certain speous intent then and there and therein to com- cial cases, that is, where the goods burmit larceny. It further charges that in the glariously taken are carried into another commission of the burglary the parties ac- county by the offenders; but this is by posicased did then and there willfully, unlaw- tive law, and not because the burglary was fully, and feloniously steal, take, and carry actually committed in the county where the away as proceeds of said burglary 15 suits indictment is found, or in judgment of law of men's clothing, of the value of $15 per is considered to have been committed there. suit, and certain other described articles of The fact must, therefore, be set out which clothing, all of the aggregate value of $134, brings the case within the statute; but in lawful money of the United States, and the the case of an indictment for a simple larpersonal property of the said Morris Prince; ceny, found in a county into which the thief and that thereafter in October, 1893, they has carried the property stolen in another brought, carried, and removed the said per- county, the law adjudges that the offense sonal property into the city and county of was in truth committed there, and hence San Francisco. The defondant demurred to there is no occasion for a statement in the the information upon the ground that it pleading of what occurred in the other coun“charges more than one offense, to wit, bur- ty.” The information complained of hore ;iary and grand larceny." The demurrer | simply complied with the rule thus indicated,

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