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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 comunitted 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 beld 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 necessary 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 prejudke to appellant. We find no prejudicial error in the record. The judgment and order appealed from should be affirmed.

(106 Cal. 682) JAMESON v. HAYWARD et al. (No.

15,743.)? (Supreme Court of California, April 3, 1895. PARTITION-SALE-ReverSIONARY INTEREST-Evi

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 er ror to order a sale of the estate for years with. out 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 tbat it would be prejudicial to the interests of the partics 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 defend. ant George Brown is the owner of an undi. vided 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 prejudice 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. Tes. timony 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.

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to sell the title for years without ordering a Morenhout v. Higuera, 32 Cal. 290; Hansale of the reversionary interest. Plaintiff cock v. Lopez, 53 Cal. 371. Martin v. Walkand defendant Brown thereupon requested er has been followed by other decisions, and and moved the court to ascertain and settle is the settled law of this state upon the the proportionate value of the future right question involved. It does not, however, go and interest claimed by the defendant Hay- to the extent of holding that any person havward in said land, which the court refused to ing an estate in land, but not holding as a do, and the plaintiff and defendant Brown coparcener, joint tenant, or tenant in comthen and there excepted to such refusal by mon, can maintain an action for partition. the court. The appeal by plaintiff is from It has often been said by the courts that the the interlocutory judgment and decree deter- first inquiry in an action of partition is, is mining the rights of the parties, and from an there such a cotenancy established as warorder denying his motion for a new trial. rants the action? This question answered Defendant Brown appeals from the same de- in the affirmative, the court must then detercree only. By stipulation of the parties, the mine the rights of the parties to the action, two appeals are brought up on the same so far as it can be done. The power of the record.

court in case a sale becomes necessary is not The sole question involved in these appeals greater, nor its discretion to be exercised difis this: Did the court below err in ordering ferent, than in cases where a partition is a sale of the estate for 99 years in the land made. It would, we think, hardly be conin which all the parties were tenants in tended in this case that, if the court had orcoinmon, and in refusing to order a sale of dered a partition of the rights of the par. the reversion of which defendant Hayward ties to the property as tenants for years, is the sole owner? The contention of appel- it would have been incumbent on the court, lants is that a sale of both the common prop- or even proper, to have awarded to either erty of all the parties and the exclusive in- plaintiff or defendant Brown any share or terest or property of Hayward should have interest with Hayward in the reversion. It been decreed. Section 752 of the Code of is hard to comprehend how it becomes any Civil Procedure reads as follows: "When more proper to do so in the case of a sale. several co-tenants hold and are in possession of real property as parceners, joint tenants tition from an early period in the jurispruor tenants in common, in which one or more dence of England to the present time, both of them have an estate of inheritance, or for at law and in equity, and to note the growth life or lives, or for years, an action may be and development of the action, would conbrought by one or more of such persons for sume much space, and be productive of but a partition thereof according to the respective little good. It is sufficient to say that, while rights of the persons interested therein, and in this state the action is statutory, still the for a sale of such property or a part thereof, powers conferred upon courts by the statute if it appear that a partition cannot be made are substantially those formerly exercised without great prejudice to the owners." It by the chancery courts in pursuit of the will be observed from the foregoing section same object, and the methods employed by that in this state it is only the cotenants our Code are in the main but a reflex of mentioned, who hold and are in possession those pursued under the former equity pracof real estate, who can bring the action for tice. It is equitable practice prescribed by partition, and it is only that real property law. Under it property may be divided in which is thus held by them that can be par- whole or in part. Compensation may be retitioned. In some of the states their stat- quired of one for the greater value which utes are broad enough to include the holders he receives over that awarded to another. of nearly every estate which can exist in The statute evidently contemplates that a lands as proper parties plaintiff in this stat- given estate or interest in the property may utory action. It is the cotenancy which be sold, and th residue not old. Section gives the right to a partition. Several per- 755, Code Civ. Proc., which prescribes the sons together may own a thing without be- manner of sale and the notice to be given, ing cotenants thereof, and in such a case, provides as follows: "The notice must state under a statute like our own, no partition the terms of sale, and if the property or any can be had. McConnel v. Kibbe, 43 Ill. 12; part of it is to be sold subject to a prior esFreem. Coten. § 431. It was the evils and tate, charge or lien, that must be stated inconveniences of cotenancy which gave rise in the notice." The estate for years in which to the writ of partition in the English courts, all the parties have an interest has nearly and it was to avoid these detriments to full half a century to run.

Plaintiff and defendand complete enjoyment of realty that stat- ant Brown have no interest, legal or equiutes have been created to enforce partition. table, in the reversion, and no reason is perThis court has gone to great length in up- ceived why a court, proceeding upon equiholding the right of a tenant in common to table principles, should enforce at their remaintain the action where he had a right to quest the sale of the reversionary interest the present possession, although not in ac- which does not concern them. But it is said tual possession. Martin v. Walker, 58 Cal. that, when the estate for years and the re590; De Uprey v. De Uprey, 27 Cal. 329; version vested in defendant Hayward, there

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was a merger, and that as to him the estate means used were reasonable for the protection for years has ceased to exist. In Dall v. of his property and the prevention of crime, is a

question of fact, and not of law, on a prosecuMining Co., 3 Nev. 535, the court, by Beatty,

tion against him for the murder of one who C. J., said: “Though partition had its origin was shot while attempting to enter the cabin to in the common-law courts, it is a subject over stay overnight. which the courts of equity assume almost

2. An indictment for murder is not fatally

defective because it charges defendant with exclusive jurisdiction; and in disposing of

having purposely killed deceased, while the the cases for partition the equities of the re- proof shows that he did not intend to kill any spective parties growing out of their owner

particular person, the facts as stated therein

showing a general intent to kill any person who ship of the property, as tenants in common

might come within the range of a spring gua or otherwise, are taken into consideration, set by defendant. and disposed of upon the broad principles 3. One charged with murder, who has been which govern its courts in the administra

permitted to introduce proof as to his reputa

tion, covering all the later years of his life, tion of justice.” In consonance with these

cannot complain because the court refused to al. principles, equity will prevent or permit a low a witness to testify as to his reputation merger as will best subserve the purposes of

from his boyhood up to the time of the homicide. justice and the actual and just intent of the Appeal from superior court, Whatcom parties. McClain v. Sullivan, 85 Ind. 174; county; John R. Winn, Judge. Fowler v. Fay, 62 III. 375; Andrus v. Vree- Prosecution against Newel S. Barr for land, 29 N. J. Eq. 394; Watson v. Invest- murder. From a conviction of murder in ment Co., 12 Or, 474, 8 Pac. 548. In other the second degree, defendant appeals. Af. words, equity is not guided by rules of law firmed. as to merger. Rumpp v. Gerkens, 59 Cal.

E. P. Dole, for appellant. Newman & 496; Bailey V. Richardson, 66 Cal. 416, 5

Howard, for the State. Pac. 910. In the absence of an expression of intention, if the interest of the person in

HOYT, C. J. Defendant was convicted of whom the several estates have united, as

the crime of murder in the second degree, shown from all the circumstances, would

and from the judgment and sentence impos. be best subserved by keeping them sepa

ed thereunder prosecutes this appeal. The rate, the intent so to do will ordinarily be

circumstances connected with the homicide implied. Such is the rule enunciated in the

were substantially as follows: Defendant cases cited supra. It needs but little argu

and one Walter Pixley, a boy of 17 years ment to show that the interests of Hay

of age, occupied a cabin together. The cab ward would be jeopardized by the sale of an

in belonged to the defendant, but the land interest in land vested in him, but which can

upon which it was situated was the propernot be enjoyed by the purchaser for 45 years;

ty of the Bellingham Bay Improvement and, as no corresponding benefit is discernible

Company. The cabin was a small building, to any of the parties, the court below did not

about 10 by 14 feet in dimensions, constructerr in refusing to order a sale of the rever

ed of boards one inch in thickness, placed Bionary interest of defendant Hayward, or

up and down, and battened with shingles. in rejecting the mere opinions of witnesses

There was one door and a single window. in the proffered testimony.

The lock on the door fitted so loosely that The judgment appealed from by plaintif

the door could be pushed open with little and defendant Brown, and the order ap

force without unlocking it. About Decempealed from by the plaintiff, and each of

ber 8, 1893, defendant and Pixley went into them, should be affirmed.

the mountains for a hunting trip, intending

to be gone most of the winter. On the morniWe concur: BELCHER, C.; HAYNES, C. ing they left, defendant placed a spring gun

inside the cabin. It was loaded with a PER CURIAM. For the reasons given in double charge of powder and shot, and in the foregoing opinion, the judgment appealed addition thereto a loaded Winchester rifle from by plaintiff and defendant Brown, and 45-90 cartridge was placed therein, on top the order appealed from by the plaintiff, and of the shot and powder. It was aimed dieach of them, are affirmed.

rectly 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 (11 Wash, 481)

door open a few inches, receive the entire STATE v. BARR.

charge in his body. The window and door (Supreme Court of Washington. March 25,

were then nailed up, the door being first 1895.)

locked with the insecure lock above referred HOMICIDE — SETTING SPRING GUN - QUESTION OF LAW OR Fact-SUFFICIENCY OF INFORMATION

to. The boards were placed up and down -EVIDENCE OF CHARACTER.

over the door, and fastened by nails driven 1. Whether one who, upon leaving his cab- through a one-inch board. Before the cabin to be absent a long time, set a spring gun in was so fastened up, some of the best of containing a double charge of powder and shot,

its contents were removed to the house of a and a rifle cartridge on top, near the door, in such a position as to hit any one attempting to neighbor, and those remaining were of but enter, had the right to do so, and whether the little value. On the day of the homicide, and the preceding day, deceased, with three | judgment and sentence, and the discharge of companions, had made several trips to a con- the defendant. If the question as to what struction camp a little further from the the defendant had a right to do by way of business part of Whatcom than this cabin, providing for the defense of the cabin and for the purpose of securing work upon a property contained therein were one of law, road in process of construction. On the unmixed with any question of fact, there morning of the day of the homicide they might be force in this claim; but, in our took their blankets and started for said opinion, it is not. It is no doubt true that camp, but, not having completed arrange- in the old English cases, and perhaps in ments for getting work, they thought best some of the earlier cases in this country, not to carry their blankets all of the way, this question was passed upon by the courts and left them in a tree or stump a short as one of law; but, in our opinion, in so dedistance from this cabin. After arriving at ciding this question, such courts made a misthe camp they found it would be necessary take which has led to most of the trouble to return to town to find the man they wish- connected with the proper determination of ed to see. Having done so, they found this this and kindred questions. The relation of man, and completed arrangements under the English cases to this question is so well which they were to go to work on the road. stated by the learned judge who wrote the Thereafter two of them, deceased and one opinion in the case of Aldrich v. Wright,

of bread and some bologna sausage, upon “On the subject of defending a man's propwhich to make a supper, started to walk erty, in his absence, by spring guns, manto camp. It was then dark, the road was traps, or other engines calculated to destroy rough and muddy, and it was raining. human life or inflict grievous bodily harm, When they came near the cabin, which they the English courts turned a question of fact had passed before, and which was boarded into a question of law, and were not successup and apparently unoccupied, the deceased ful in their efforts to prescribe adequate stated that he did not think anybody had rules for determining the reasonable neceslived in it for a long while; that he would sity of such engines, under the varying cirsee if they could not get in, and, if they cumstances of different cases." This error could, they had better get their blankets, of the courts, and the trouble and uncertain. and sleep there, instead of going on to camp. ty arising therefrom, resulted in the regulaIn attempting to make an entrance through tion of this matter in England by statute, the door, secured as before stated, the spring the enactment of which was necessary and gun was discharged, and the entire charge proper, under the circumstances, but would penetrated the casing of the door, and pass- have been unnecessary if the courts had ed entirely through the body of the deceased, treated this question as one of fact, and left killing him instantly. There is some testi- it to the jury to decide, under proper instrucmony as to statements made by the defend- tions, in the light of the facts of each parant tending to show what his intentions ticular case. If the reasonable necessity of were in setting the spring gun. Such testi- employing defensive machinery of all kinds mony is more or less conflicting, and the had been left to the jury, as such a question determination of what was proved thereby | of fact should have been, this judicial and was properly left to the jury; and to our legislative trouble would have been avoided, minds it appears, from a fair preponderance and the general principles of the common of such testimony, that the statements made law would have been amply sufficient to proby the defendant were not such as would tect the rights of all concerned. The result have been likely to have been made by one in England of holding this to be a question who had no other motive than to protect his of law, instead of one of fact, furnishes a cabin and the property therein by such good reason for the courts of this country means as could be made use of without wan- adopting a different rule. Those of several ton disregard for the lives of his fellowmen. of the states have done so, while those of But whether or not this was so is, in our others have adhered to the rule laid down in opinion, immaterial in the determination of England. By this decision we hope to place the questions presented on this appeal. this court in a line with those of the former There was also testimony tending to show class, for the reasons above suggested, and that, after the door had been nailed up, a for many others which might be given. placard bearing the word “danger” was post- It is a universal principle that neither in deed on the outside of the boards nailed over fense of person or property can que go further the door. But whether or not this was so than is reasonably necessary for that pur. is also immaterial.

pose, and this single principle, followed to a The principal contention of the defendant logical conclusion, will establish the proposiwas that in setting the gun as above stated tion that whether or not what was done in a he only did what he had an absolute right particular case was justified under the law to do, and he asked the court so to instruct must be a question of fact, or mixed law and the jury, and now assigns as error its re- fact, and not a pure question of law. It fol. fusal so to do, which assignment of error, if lows that the contention of the defendant sustained, will result in the reversal of the that the court should have taken this question from the jury, and decided it itself, cannot circumstances, often result in the death of be sustained, and since for that reason it was

1

some of the inmates of the dwelling upon properly submitted to the jury, under what which the burglary is committed, and for that seems to us to have been proper instructions, reason it might well be held that a burglary we could content ourselves with what we of that kind could rightfully be prevented by have said as sufficient to require us to find such means as might result in death. against the above-stated contention of the de- Applying the principles which will natural. fendant; but owing to the importance of the ly arise from the above suggestions to the question, and the fact that it is claimed that conceded facts in the case at bar, it must re there was some technical error connected sult that not only was the defendant not enwith the instructions, we feel called upon to titled to the instruction asked for, but that, make some brief additional observations. It on the contrary, the court might have been was the settled law in England that means which might reasonably be expected to cause that which he had no right to do. The ondeath could not be made use of to prevent disputed facts showed that there was no per other crimes than those classed as felonies. son in this cabin whose life could have been But it was held that, to prevent felonious endangered by a burglary committed thereon; crimes, such means might be made use of, hence, if what we have said is correct, it and this same distinction has been adopted might not be prevented by means wbicb by many of the courts of this country, but might be expected to destroy the life of a huwithout any good reason existing therefor. man being. That the means used were of The reason why the use of such means was that kind is evident, whether judged by wbat allowed to prevent crimes of that kind in might reasonably have been expected to have England was that they were there punisha- been the result or by the result itself. ble by death. This being so, there was rea- It is not necessary, however, to go to the son for the rule. If one was about to perpe- extent above suggested in order to sustain the trate a crime for which, under the law, his ruling of the trial court. Even if it should life would be forfeited, there was reason in be assumed that the defendant had a right to holding that his life might be taken, if nec- protect his cabin by setting a gun to defend essary to prevent his committing it. But in the same, such right would still be subject to this country few crimes subject the ones who the universal rule that only such means as have committed them to the death penalty, are reasonably necessary to prevent the crime and it is only as to those which do that the should be made use of, and the undisputed reason of the rule has any force. What were facts abundantly warranted the jury in comfelonies at common law usually subject the ing to the conclusion that more than the preoffender here to comparatively light punish- vention of the burglary of the cabin was inment, and upon principle it should be here tended by the defendant in loading and set. held that one could only properly make use ting the gun as he did. The extreme charge of means which might be expected to cause of both powder and shot, and the addition of death to prevent the commission of a capital such a terrible missile as an entire ritle car. offeuse.

tridge, in a gun so placed that it would hit We are aware that courts of high standing one but a few feet from the muzzle, furnished have come to a contrary conclusion, and have abundant reason for the jury to find that a held that such means might be made use of vindictive desire to take the life of whoever to prevent the commission of some felonies, should interfere with the cabin, rather than especially to prevent the crime of burglary; the prevention of the commission of a crime but it seems to us that in so doing they have therein, was the object sought by the defendlost sight of the changed condition of things

Authorities might be given upon this in this country, and have adhered to the Eng- proposition, but on account of the confusion lish rule, when the reason therefor has no ex- and want of harmony among the cases, growistence. The crime of burglary bas been so ing in part, at least, out of the reasons above much extended by the statutes of this state suggested, their citation would be of little use. that, excepting in the case of burglary of a In our opinion, the court committed no error dwelling house when occupied by the owner or in refusing the instruction asked, for the reasome member of his family, there is no reason son that the question to be decided was one why more extreme means should be allowed of fact, or mixed fact and law, and therefore for its prevention than to prevent other felo- for the jury; and for the further reason that, nies. As to what may properly be done to under the undisputed facts, any proper interprevent the burglary of a dwelling house pretation of the law applied thereto would when occupied is another question. There it have warranted the court in instructing the is not simply the damage to the property jury that the defendant had no right to prowhich may result from the burglary, or the tect his property by the means used. Some sanctity connected with the property when so other reasons for reversal have been urged in protected, that it can only be reached by the behalf of the defendant. If considered as commission of a burglary that is involved, founded upon each separate exception taken but in addition thereto is the question of the during the progress of the trial, as they seem risk to the lives of the inmates. It is com- to be by the manner of their statement in the mon knowledge that burglaries, under such brief of appellant, their exa.nination would

ant.

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