and hence the demurrer to it was properly overruled.

2. It is contended that the verdict was not justified by the evidence, because there was no sufficient evidence to prove that the burglary in the county of Sonoma was committed by the defendant, or that the property taken was carried by him into the city and county of San Francisco. The evidence to establish the defendant's guilt was circumstantial, and it would subserve no useful purpose to set out the circumstances in detail. It was proved, however, that during the nights of April 13 and 14, 1893, the store of Morris Prince in Santa Rosa was burglariously entered, and goods, consisting of various kinds of clothing, of the value of about $2,000, were stolen therefrom. It was also proved that in the evening before the burglary was committed the defendant was seen in Santa Rosa looking into the said store, and on being noticed he walked rapidly away. It was further proved that some of the stolen goods were sold in San Francisco by the defendant and his associate, who represented themselves to be Chicago merchants, and that they had brought the goods from Chicago, and that other portions of the goods were found in trunks and closets in a room occupied by defendant in San Francisco. Looking at all the testimony, we think it must be held sufficient to warrant the jury in finding that the burglary was committed by the defendant, and that the property taken had been brought by him into the city and county of San Francisco.

3. The last point made is as to the form of the verdict. It is objected that the verdict is both general and special, and that it is faulty because it does not specify where the burglary was committed. Burglary is divided into two degrees (Pen. Code, § 460), and it was necessary, therefore, for the jury to find, as it did, the degree of the crime of which the defendant was guilty. The information charged that the burglary was committed in the county of Sonoma, and the general verdict imported a conviction of the offense charged. It was not necessary that the verdict specify the county in which the offense was committed.

Neither was it nec

essary for the verdict to specify that the goods were taken by defendant into the county of San Francisco, although, of course, there must have been proof of that fact. A general verdict of guilty implies proof of all facts necessary to a conviction. But the latter part of the verdict was mere surplusage, and results in no prejudice to appellant. We find no prejudicial error in the record. The judgment and order appealed from should be affirmed.

DENCE-MERGER.

1. In partition by an owner of an undivided interest in an estate for years against the owners of other undivided interests, one of whom is also the sole owner of the reversion, it is not error to order a sale of the estate for years without ordering that the reversion be sold with it, under Code Civ. Proc. § 752, providing for the partition of property which cotenants hold and are in possession of.

2. The mere opinions of witnesses that it would be prejudicial to the interests of the parties to sell the estate for years alone are properly excluded.

3. Where a cotenant on an estate for years is also the owner of the reversion, the estate for years will not be deemed merged in his reversionary interest, so as to prevent a separate sale in partition of the estate for years, where his interests would be jeopardized by the sale of such reversionary interest.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge.

Action by James S. Jameson against Alvinza Hayward and others for the partition of lands in which plaintiff and defendants were owners in common of an estate for years, the defendant Hayward being also the sole owner of the reversion. From a decree ordering a sale of the estate for years, and refusing to order a sale of the reversion, plaintiff and defendant George Brown appeal. Affirmed.

Wm. H. Chapman, Edwin G. Knapp, and Wm. B. Sharp, for appellants. Estee & Miller, for respondents.

SEARLS, C. This is an action for the partition of three 50-vara water lots in the city and county of San Francisco. The court found that the plaintiff was the owner of an undivided tenth of an estate for years, viz. an estate for 99 years, from March 16, 1851, in and to two of the three lots; that defendant George Brown is the owner of an undivided tenth interest of an estate for years, viz. an estate for 99 years, in the third lot; that the defendant Alvinza Hayward is the owner of the remaining nine-tenths of said estate for 99 years, in all the three lots, and is also the owner of the whole of the remainder or reversion, after the termination of said estate for 99 years. The court further found that actual partition could not be made of said property without great preju dice to the owners thereof, and ordered a sale to be made of 99-years estate. At the trial, plaintiff introduced evidence tending to show the relative values of the said estate for years and the reversion, and also as to the value of both titles, and testimony tending to show that the two, if sold separately, would realize less than if sold together. Testimony was also offered and rejected by the court tending to show that it would be prejudicial to the interests of the parties

1 Rehearing denied.

to sell the title for years without ordering a sale of the reversionary interest. Plaintiff and defendant Brown thereupon requested and moved the court to ascertain and settle the proportionate value of the future right and interest claimed by the defendant Hayward in said land, which the court refused to do, and the plaintiff and defendant Brown then and there excepted to such refusal by the court. The appeal by plaintiff is from the interlocutory judgment and decree determining the rights of the parties, and from an order denying his motion for a new trial. Defendant Brown appeals from the same decree only. By stipulation of the parties, the two appeals are brought up on the same record.

The sole question involved in these appeals is this: Did the court below err in ordering a sale of the estate for 99 years in the land in which all the parties were tenants in common, and in refusing to order a sale of the reversion of which defendant Hayward is the sole owner? The contention of appellants is that a sale of both the common property of all the parties and the exclusive interest or property of Hayward should have been decreed. Section 752 of the Code of Civil Procedure reads as follows: "When several co-tenants hold and are in possession of real property as parceners, joint tenants or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein, and for a sale of such property or a part thereof, if it appear that a partition cannot be made without great prejudice to the owners." It will be observed from the foregoing section that in this state it is only the cotenants mentioned, who hold and are in possession of real estate, who can bring the action for partition, and it is only that real property which is thus held by them that can be partitioned. In some of the states their statutes are broad enough to include the holders of nearly every estate which can exist in lands as proper parties plaintiff in this statutory action. It is the cotenancy which gives the right to a partition. Several persons together may own a thing without being cotenants thereof, and in such a case, under a statute like our own, no partition can be had. McConnel v. Kibbe, 43 Ill. 12; Freem. Coten. § 431. It was the evils and inconveniences of cotenancy which gave rise to the writ of partition in the English courts, and it was to avoid these detriments to full and complete enjoyment of realty that statutes have been created to enforce partition. This court has gone to great length in upholding the right of a tenant in common to maintain the action where he had a right to the present possession, although not in actual possession. Martin v. Walker, 58 Cal. 590; De Uprey v. De Uprey, 27 Cal. 329;

Morenhout v. Higuera, 32 Cal. 290; Hancock v. Lopez, 53 Cal. 371. Martin v. Walker has been followed by other decisions, and is the settled law of this state upon the question involved. It does not, however, go to the extent of holding that any person having an estate in land, but not holding as a coparcener, joint tenant, or tenant in common, can maintain an action for partition. It has often been said by the courts that the first inquiry in an action of partition is, is there such a cotenancy established as warrants the action? This question answered in the affirmative, the court must then determine the rights of the parties to the action, so far as it can be done. The power of the court in case a sale becomes necessary is not greater, nor its discretion to be exercised different, than in cases where a partition is made. It would, we think, hardly be contended in this case that, if the court had ordered a partition of the rights of the parties to the property as tenants for years, it would have been incumbent on the court, or even proper, to have awarded to either plaintiff or defendant Brown any share or interest with Hayward in the reversion. It is hard to comprehend how it becomes any more proper to do so in the case of a sale.

To trace the history of proceedings for partition from an early period in the jurisprudence of England to the present time, both at law and in equity, and to note the growth and development of the action, would consume much space, and be productive of but little good. It is sufficient to say that, while in this state the action is statutory, still the powers conferred upon courts by the statute are substantially those formerly exercised by the chancery courts in pursuit of the same object, and the methods employed by our Code are in the main but a reflex of those pursued under the former equity practice. It is equitable practice prescribed by law. Under it property may be divided in whole or in part. Compensation may be required of one for the greater value which he receives over that awarded to another. The statute evidently contemplates that a given estate or interest in the property may be sold, and the residue not sold. Section 755, Code Civ. Proc., which prescribes the manner of sale and the notice to be given, provides as follows: "The notice must state the terms of sale, and if the property or any part of it is to be sold subject to a prior estate, charge or lien, that must be stated in the notice." The estate for years in which all the parties have an interest has nearly half a century to run. Plaintiff and defendant Brown have no interest, legal or equitable, in the reversion, and no reason is perceived why a court, proceeding upon equitable principles, should enforce at their request the sale of the reversionary interest which does not concern them. But it is said that, when the estate for years and the reversion vested in defendant Hayward, there

was a merger, and that as to him the estate for years has ceased to exist. In Dall v. Mining Co., 3 Nev. 535, the court, by Beatty, C. J., said: "Though partition had its origin in the common-law courts, it is a subject over which the courts of equity assume almost exclusive jurisdiction; and in disposing of the cases for partition the equities of the respective parties growing out of their ownership of the property, as tenants in common or otherwise, are taken into consideration, and disposed of upon the broad principles which govern its courts in the administration of justice." In consonance with these principles, equity will prevent or permit a merger as will best subserve the purposes of justice and the actual and just intent of the parties. McClain v. Sullivan, 85 Ind. 174; Fowler v. Fay, 62 Ill. 375; Andrus v. Vreeland, 29 N. J. Eq. 394; Watson v. Investment Co., 12 Or. 474, 8 Pac. 548. In other words, equity is not guided by rules of law as to merger. Rumpp v. Gerkens, 59 Cal. 496; Bailey v. Richardson, 66 Cal. 416, 5 Pac. 910. In the absence of an expression of intention, if the interest of the person in whom the several estates have united, as shown from all the circumstances, would be best subserved by keeping them separate, the intent so to do will ordinarily be implied. Such is the rule enunciated in the cases cited supra. It needs but little argument to show that the interests of Hayward would be jeopardized by the sale of an interest in land vested in him, but which cannot be enjoyed by the purchaser for 45 years; and, as no corresponding benefit is u.scernible to any of the parties, the court below did not err in refusing to order a sale of the reversionary interest of defendant Hayward, or in rejecting the mere opinions of witnesses in the proffered testimony.

The judgment appealed from by plaintiff and defendant Brown, and the order appealed from by the plaintiff, and each of them, should be affirmed.

means used were reasonable for the protection of his property and the prevention of crime, is a question of fact, and not of law, on a prosecution against him for the murder of one who was shot while attempting to enter the cabin to stay overnight.

2. An indictment for murder is not fatally defective because it charges defendant with having purposely killed deceased, while the proof shows that he did not intend to kill any particular person, the facts as stated therein showing a general intent to kill any person who might come within the range of a spring gun set by defendant.

3. One charged with murder, who has been permitted to introduce proof as to his reputation, covering all the later years of his life, cannot complain because the court refused to allow a witness to testify as to his reputation from his boyhood up to the time of the homicide. Appeal from superior court, Whatcom county; John R. Winn, Judge.

Prosecution against Newel S. Barr for murder. From a conviction of murder in the second degree, defendant appeals. Affirmed.

E. P. Dole, for appellant. Newman & Howard, for the State.

HOYT, C. J. Defendant was convicted of the crime of murder in the second degree, and from the judgment and sentence impos ed thereunder prosecutes this appeal. The circumstances connected with the homicide were substantially as follows: Defendant and one Walter Pixley, a boy of 17 years of age, occupied a cabin together. The cabin belonged to the defendant, but the land upon which it was situated was the property of the Bellingham Bay Improvement Company. The cabin was a small building, about 10 by 14 feet in dimensions, constructed of boards one inch in thickness, placed up and down, and battened with shingles. There was one door and a single window. The lock on the door fitted so loosely that the door could be pushed open with little force without unlocking it. About December 8, 1893, defendant and Pixley went into the mountains for a hunting trip, intending to be gone most of the winter. On the morning they left, defendant placed a spring gun inside the cabin. It was loaded with a double charge of powder and shot, and in addition thereto a loaded Winchester rifle 45-90 cartridge was placed therein, on top of the shot and powder. It was aimed directly at the casing of the door, in such a way that a person of ordinary height standing in front of the door, and placing his hand on the knob, would, upon pushing the door open a few inches, receive the entire charge in his body. The window and door were then nailed up, the door being first locked with the insecure lock above referred to. The boards were placed up and down over the door, and fastened by nails driven through a one-inch board. Before the cabin was so fastened up, some of the best of its contents were removed to the house of a neighbor, and those remaining were of but little value. On the day of the homicide,

from the jury, and decided it itself, cannot be sustained, and since for that reason it was properly submitted to the jury, under what seems to us to have been proper instructions, we could content ourselves with what we have said as sufficient to require us to find against the above-stated contention of the defendant; but owing to the importance of the question, and the fact that it is claimed that there was some technical error connected with the instructions, we feel called upon to make some brief additional observations. It was the settled law in England that means which might reasonably be expected to cause death could not be made use of to prevent other crimes than those classed as felonies. But it was held that, to prevent felonious crimes, such means might be made use of, and this same distinction has been adopted by many of the courts of this country, but without any good reason existing therefor. The reason why the use of such means was allowed to prevent crimes of that kind in England was that they were there punishable by death. This being so, there was reason for the rule. If one was about to perpetrate a crime for which, under the law, his life would be forfeited, there was reason in holding that his life might be taken, if necessary to prevent his committing it. But in this country few crimes subject the ones who have committed them to the death penalty, and it is only as to those which do that the reason of the rule has any force. What were felonies at common law usually subject the offender here to comparatively light punishment, and upon principle it should be here held that one could only properly make use of means which might be expected to cause death to prevent the commission of a capital offense.

We are aware that courts of high standing have come to a contrary conclusion, and have held that such means might be made use of to prevent the commission of some felonies, especially to prevent the crime of burglary; but it seems to us that in so doing they have lost sight of the changed condition of things in this country, and have adhered to the English rule, when the reason therefor has no existence. The crime of burglary has been so much extended by the statutes of this state that, excepting in the case of burglary of a dwelling house when occupied by the owner or some member of his family, there is no reason why more extreme means should be allowed for its prevention than to prevent other felonies. As to what may properly be done to prevent the burglary of a dwelling house when occupied is another question. There it is not simply the damage to the property which may result from the burglary, or the sanctity connected with the property when so protected, that it can only be reached by the commission of a burglary that is involved, but in addition thereto is the question of the risk to the lives of the inmates. It is common knowledge that burglaries, under such

circumstances, often result in the death of some of the inmates of the dwelling upon which the burglary is committed, and for that reason it might well be held that a burglary of that kind could rightfully be prevented by such means as might result in death.

Applying the principles which will naturally arise from the above suggestions to the conceded facts in the case at bar, it must re sult that not only was the defendant not entitled to the instruction asked for, but that, on the contrary, the court might have been justified in holding that the defendant did that which he had no right to do. The undisputed facts showed that there was no person in this cabin whose life could have been endangered by a burglary committed thereon; hence, if what we have said is correct, it might not be prevented by means which might be expected to destroy the life of a human being. That the means used were of that kind is evident, whether judged by what might reasonably have been expected to have been the result or by the result itself.

It is not necessary, however, to go to the extent above suggested in order to sustain the ruling of the trial court. Even if it should be assumed that the defendant had a right to protect his cabin by setting a gun to defend the same, such right would still be subject to the universal rule that only such means as are reasonably necessary to prevent the crime should be made use of, and the undisputed facts abundantly warranted the jury in coming to the conclusion that more than the prevention of the burglary of the cabin was intended by the defendant in loading and setting the gun as he did. The extreme charge of both powder and shot, and the addition of such a terrible missile as an entire rifle cartridge, in a gun so placed that it would hit one but a few feet from the muzzle, furnished abundant reason for the jury to find that a vindictive desire to take the life of whoever should interfere with the cabin, rather than the prevention of the commission of a crime therein, was the object sought by the defendant. Authorities might be given upon this proposition, but on account of the confusion and want of harmony among the cases, growing in part, at least, out of the reasons above suggested, their citation would be of little use. In our opinion, the court committed no error in refusing the instruction asked, for the reason that the question to be decided was one of fact, or mixed fact and law, and therefore for the jury; and for the further reason that, under the undisputed facts, any proper interpretation of the law applied thereto would have warranted the court in instructing the jury that the defendant had no right to protect his property by the means used. Some other reasons for reversal have been urged in behalf of the defendant. If considered as founded upon each separate exception taken during the progress of the trial, as they seem to be by the manner of their statement in the brief of appellant, their examination would