ali

the city tax-collector, and cense tax must be paid therefor for engaging in carrying on or pursuing every business or occupation mentioned hereinafter in this ordinance, within the corporate limits of the city of San Luis Obispo, as follows: *

"Sec. 26. For each bar-room, saloon or other place where vinous, spirituous or malt liquors are sold by the glass, bottle or otherwise, to be drank upon the premises where sold, twenty-five dollars per quarter."

The petitioner was prosecuted and convicted for a violation of the foregoing ordinance, and is now held a prisoner by virtue of a commitment based upon such conviction. The complaint does not state a cause of action. It is fatally defective in not bringing the acts of petitioner within the prohibitions found in the ordinance. A license is required for keeping or conducting a bar-room, saloon, or other place where vinous, spirituous, or malt liquors are sold, to be drank upon the premises. The complaint charges the prisoner with carrying on "the business of selling liquor." Upon the slightest inspection of the ordinance, it will be perceived that it does not forbid "the business of selling liquor." No reference is made in the complaint to that part of the ordinance referring to "a saloon or bar-room or other place"; and, conceding the term "liquor" to be broad enough to include "vinous, spirituous or malt liquors," still the complaint contains no allegation that the liquors were to be drank upon the premises where sold; and this element of the ordinance is certainly a most material one, and must necessarily form a material element in the case. The allegations of the complaint are broad enough to include a dealer who sells liquor by wholesale, and not to be drank upon the premises, yet the ordinance covers no such case. The allegations of the complaint are sufficiently broad to include a retail vendor who travels about the country selling liquors, and who has no "bar, or saloon or other place"; yet the ordinance does not cover that case. The prisoner is committed for the offense "charged in the complaint," and the commitment necessarily falls with the complaint. We conclude that the allegations of the complaint charge no violation of any ordinance of the city of San Luis Obispo to which our attention has been directed. For the foregoing reasons the prisoner is discharged.

proach absolute certainty; that is, a condition of their minds so perfect, complete, and unconditional as to exclude the possibility of a doubt," is properly refused, as belief beyond a reasonable doubt of the guilt of the accused is alone required.

2. An instruction in regard to making one a principal in a crime who aids in its commission is presumably injurious, where there is no evidence to base it upon, but this presumption may be rebutted by an affirmative showing that the error was harmless.

Commissioners' decision. In bank. Appeal from superior court, Nevada county; John Caldwell, Judge.

The defendant, George B. Smith, was convicted of manslaughter. From an order denying a motion for new trial, defendant appeals. Affirmed.

A. J. Ridge and C. W. Cross, for appellant. Atty. Gen. Hart, for the People.

VAN CLIEF, C. Upon an information accusing him of the crime of murder, the defendant was convicted of manslaughter, and sentenced to imprisonment in the state prison for the term of five years, and has appealed from the judgment, and from an order denying his motion for a new trial.

1. Counsel for appellant contends that the verdict of the jury is contrary to the evidence. No particular in which the verdict is claimed to be contrary to the evidence is specified either in the brief of counsel for appellant or in the bill of exception; and, though the evidence is wholly circumstantial, it strongly tends to prove that the defendant committed the crime of which he was found guilty, and appears to be sufficient to justify the verdict.

2. It is contended that the court erred in refusing to give to the jury the following instruction: "(2) The jury are directed that their opinion of the guilt of the defendant, based upon the evidence in this case, must nearly approach absolute certainty; that is, a condition in their minds so perfect, complete, and unconditional as to exclude the possibility of a doubt." This requested instruction is obviously erroneous, in that it requires a condition in the minds of the jurors which shall exclude "the possibility of a doubt," whereas the law requires only a belief to that degree of moral certainty which excludes all reasonable doubt of the guilt of the accused. And this legal qualification of the doubt to be excluded implies the "possibility" of unreasonable doubt, which the requisite degree of belief need not exclude.

3. At the request of the district attorney. the court instructed the jury as follows: "The jury are instructed that all persons concerned in the commission of a crime, whether it be a felony or a misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission; and all persons counseling, advising or encourag

ing children under the age of fourteen years, lunatics, or idiots to commit any crime, or who by fraud, contrivance, or force occasion the drunkenness of another for the purpose of causing him to commit any crime, or who by threats. menaces, command, or coercion compel another to commit any crime,-are principals in any crime so committed." Appellant contends that there is no evidence of the hypothetical facts upon which this instruction was based; that the propositions of law therein stated are merely abstract propositions, having no concrete connection with the evidence; and that they probably had the effect to confuse or mislead the jury to the prejudice of the defendant. It it true that there was no evidence substantially tending to prove any fact stated in either of the propositions of which the instruction is composed, except that defendant alone committed the crime of which he was convicted; and the only question to be decided is whether or not it affirmatively appears from the record that the jury could not have been misled or confused by the instruction to the prejudice of the defendant, for, while it is well settled that such an instruction is erroneous, and therefore presumably injurious, yet the presumption of injury may be rebutted and overcome by an affirmative showing or appearance upon the record that the error was harmless, and I think it so appears in this case, since the jury was imperatively instructed that "unless the jury are entirely satisfied from the evidence that the defendant, and no other person, killed the deceased, they should acquit the defendant." I think the judgment and order should be affirmed.

1. Evidence that is really and substantially conflicting will not be considered upon appeal.

2. The evidence showed that the grantor was an illiterate woman, and was ignorant of business outside of her household and domestic affairs, but had good natural intellectual faculties, and that, after the execution of the deed in question, she had given to some of the witnesses her motive for making it. Held, that the grantor had sufficient capacity to execute a deed.

In bank. Appeal from superior court, Monterey county; James F. Breen, Judge.

Action brought by Benito Soberanes, guardlan ad litem, to set aside deed given by plaintiff, Isabel Soberanes, to defendant, Abel SoFor opinion on rehearing, see 39 Pac. 527.

beranes, on ground of plaintiff's mental incapacity to execute the deed. Tried by couri without a jury. Judgment for defendant. Plaintiff appeals. Affirmed.

D. M. Delmas (Morehouse & Tuttle, of coun sel), for appellant. Myrick & Deering and Alexander & Daugherty, for respondent.

MCFARLAND, J. This action was brought in the name of Isabel Soberanes by Benito Soberanes, who, for that purpose, procured himself to be appointed her guardian ad litem, to set aside a deed of conveyance of land executed by said Isabel to the defendant, Abel Soberanes, on the ground of her mental incapacity and undue influence of said defendant. Judgment went in the superior court for defendant, and this present appeal is from an order denying plaintiff's motion for a new trial. There was also an appeal by plaintiff from the judgment, which was determined here in favor of defendant. 97 Cal. 140, 31, Pac. 910. The findings are very full, and on the appeal from the judgment the case was considered in nearly all its aspects in the opinion delivered by Mr. Justice Paterson, the law applicable to it declared, and the conclusion reached that the findings supported the judgment. Appellant contends that, upon an appeal from an order denying a new trial, a former decision on an appeal from the judgment does not establish the law of the case; but, however that may be, we are satisfied that the views expressed in the opinion on the former appeal are correct. The only question, therefore, to be considered on this present appeal is the sufficiency of the evidence to sustain the findings.

To hold that the evidence does not warrant the findings would be to plainly violate the rule that we will not here weigh evidence that is really and substantially conflicting. That rule is, to some extent, founded on the fact that the trial judge has the opportunity of having the witnesses in person before him; and the advantage of seeing and observing, and to some extent at least knowing, the witnesses, is very important in such a case as the one at bar. Here was a family quarrel, and the members of the family were before the judge exhibiting their manners, tempers, interests, prejudices, and characters in forms which cannot be brought here in a printed transcript. We do not see anything in the ev idence that would warrant us in disturbing the findings, and it would be a useless work to reproduce the evidence here. Indeed, the findings themselves show very fully what the evidence was; that is, no important or coutrolling fact can be deduced from the evidence that does not appear in the findings. In fact, the real question in the case is, and always has been, do the findings support the judgment? But that question was determined in the affirmative on the former appeal, in an elaborate opinion in which the whole case was fully stated and discussed; and, as we

Fremont Smith was convicted of murder in the first degree, and appeals. Affirmed.

Edwin Gwinford, for appellant. Atty. Gen. Hart, for the People.

SEARLS, C. The defendant, Fremont Smith, was convicted of murder in the first degree, and sentenced to suffer the extreme penalty of the law, for the felonious killing of one Dolph, at the county of Colusa, state of California. The appeal is from the judgment and from an order denying defendant's motion for a new trial.

The first point relied upon by appellant for a reversal is that the evidence is insufficient to justify the verdict of the jury. The defendant was the owner of a span of horses, harness, and buckboard wagon. In the fall of 1893 he formed a partnership in the fishing business with two men, of whom but little seems to be known, except that they were fishermen, and that one was called "Charlie," and the other, "Dolph." The parties occupied a house in Moulton's pear orchard, adjoining the levee of the Sacramento river, county of Colusa. Charlie and Dolph did the fishing, and defendant, with his wagon, peddled the product about the surrounding country. On or about December 27, 1893, defendant left the house in which the parties had been living, and traveled with his team south. Two days after he left, the dead bodies of Charlie and Dolph were found in the Sacramento river, near the house in which they had lived. Charlie had been shot, a portion of his head being blown off, and Dolph had received fatal wounds upon and about the head, apparently from an ax or a similar instrument. The door of their house was found locked, and upon a platform in front of the house a piece of human skull was found, portions of brains, and blood. From near the house to the river there was a trail of blood, and evidence that a heavy body had been dragged, leaving a mark on the surface. The blood along the trail, and a pool of blood near the house, bore evidence of having been partially covered by earth being shoveled upon it. The small pits left in the ground, from which earth had been taken to cover the blood, showed that an instrument or tool had been used with a protuberance on the back of it. Upon opening the house, an ax was found within, which appeared as though washed since being used. No bedding was found, although the dead men were known to have had beds in the house. Defendant was arrested at Collinsville, Solano county, on or about December 30, 1893; and on his person and wagon a large number of articles were found, among which were a shotgun, a gold watch and chain, a silver or nickel watch, a broken-handled shovel, six pair of blankets, half a dozen suits of clothes, two pair of gum boots, overalls, etc. The shovel, upon being returned to the scene of the tragedy, and tested in the earth, was found to have a protuberance on its back

making a similar mark to those found in the pits, and there was some evidence of a mark upon it resembling blood. The overalls were smeared with blood, which, upon being analyzed by Prof. Price, an analytical chemist, and examined microscopically, was pronounced to be human blood. A portion of the clothing was too small for defendant, but might have fitted one of the deceased men, who was much smaller. There were two keys to the house, one of which was found upon defendant, and the other in the pocket of the pants upon the body of Dolph.

The chain to the gold watch had been seen previously upon the person of Dolph. Upon a pair of old shoes found near the house, and admitted by defendant to be his, human blood was found. There were many other circumstances, of less importance, tending to point to defendant as the guilty person. Taken together, they are believed to be sufficient to uphold the verdict, and to stamp the defendant as the perpetrator of a most heinous murder.

Defendant asked the court to instruct the jury in the following language. The instruction was given as asked, except that portion included in brackets, which was refused, and such refusal is assigned as error: "When independent facts and circumstances are relied upon to identify the accused as the person committing the offense charged [and if together are regarded as sufficient basis for a presumption of his guilt to a moral certainty, yet] each material fact or circumstance neces sary to complete such chain or series of independent facts, tending to establish the guilt, should be established to the same degree of certainty as the main fact which these independent circumstances, taken together, tend to establish,-that is, each essential and independent fact in the chain or series of facts relied upon to establish the main fact must be established to a moral certainty and beyond a reasonable doubt; and, if the jury should then have a reasonable doubt upon any single essential fact relied upon to complete the chain of circumstances, they cannot convict the defendant as long as they entertain such doubt." The instruction, as given, embodied the law relating to circumstantial evidence, and the necessity of the establishment of each independent fact essential to a conviction beyond a reasonable doubt, with great clearness. The sentence eliminated tended to involve and cloud the instruction, without rendering it more favorable to the defendant. If the sentence in brackets did. not conflict with the other portions of the instruction, it at least detracted from their perspicuity, and tended to draw the minds of the jurors from a careful analysis of the independent facts which it was the object of the instruction to invoke. The case of People v. Phipps, 39 Cal. 333, cited by appellant, fails to support his contention. In that case the court below refused to instruct the jury that in case of a reasonable doubt they

should acquit. This court, in reversing the case, laid down the rule precisely in accord with the instructions given in this case. In this action of the court no error was involved.

Two errors are assigned upon the action of the court in eliminating from instructions asked and given for defendant upon expert testimony. In the first the jury were instructed, in substance, that in considering expert testimony they should "weigh it with all the other evidence in the case, but are not bound to determine any fact in accordance with the opinion of such expert, if not convincing to the minds of the jury. The jury should weigh it carefully, and, if convincing, they have a right to act upon it, but they have a right to consider the conditions under which the testimony was given." The portion omitted was as follows: "The facts upon which the opinion of the expert is based, and caution should be exercised by the jury in accepting the opinion of an expert as a fact proven in the case." In the other instruction, which was quite favorable to defendant as given, the court struck out the words, "such evidence should therefore be received with great caution by the jury," and inserted in lieu thereof as follows, "After considering all these things, and any other circumstances in evidence, you are to give to such testimony such weight as you, in your judgment, think it entitled to," followed by the words, "If convincing, and carrying with it a belief in its truth, act upon it; if not, you have a right to reject it." Grigsby v. Clear Lake Water Co., 40 Cal. 396, is cited as authority for the contention that the court should have instructed the jury that "such evidence should be received with great caution by the jury." In the case cited the court, speaking through Temple, J., spoke of the propriety of having expert witnesses selected by the court, of the necessity of their being impartial as well as learned and skillful, and dwelt upon the fact that such witnesses are often but adroit advocates of the theory upon which the party calling them relies, etc. That all of this, and much more that might be said of expert testimony, in the abstract, is true, cannot be denied. It does not follow, however, that all that may be said by this court in discussing the facts or comparing different kinds of testimony, and determining their value, is properly question of law to be submitted to a jury. The reasons for a rule are not the rule itself. There is a wide difference of opinion to be found in the cases upon the question of the propriety of cautioning the jury against the dangers and uncertainty of expert testimony. Under our constitution (article 6, § 19), "judges shall not charge juries with respect to matters of fact, but may state the testimony and declare the law." It may be plausibly argued that to direct a jury to look with caution upon a class of testimony, which experience has demonstrated to be subject to uncertainties, is not, in ef

fect, to instruct them as to matters of fact, but rather as cautionary to the mode of reaching such facts. Rogers, in his work on Expert Testimony, at chapter 11, has collected and cited a large number of cases bearing upon this point. We need not refer to them at length, for the reason that whatever the conclusion reached might be the case at bar is not one calling for the application of the caution contended for by appellant.

Prof. Price was called as a witness for the prosecution, to prove that blood found upon the clothing of defendant was that of a human being. There was nothing apparent in the character of the witness, his relation to the parties, or his manner of testifying, calculated to arouse suspicion as to his capacity, skill, or impartiality. His testimony was mainly as to facts, viz. the method resorted to for determining the character of the blood; the means by which it was separated, and the corpuscles or globules measured; their size and shape; the size and shape of the corpuscles found in the human family, in a variety of animals, fishes, etc.,-showing that the measurements indicated the corpuscles to come within the size found in the human family. This evidence was mainly demonstrative of well-established scientific facts. which, with proper appliances and instruments, and perhaps some skill, are open to all. Conceding, then, without deciding, that in a proper case the cautionary instruction contended for by appellant should be given, there was nothing here to call for its expression.

Objection was made to the introduction in evidence of certain clothing and a great variety of other articles found upon the person of defendant, and upon his wagon, at the time of his arrest. They were properly identified, and were properly admissible in evidence. There was certainly some evidence tending to show that a portion of them, at least, were the property of the murdered men, and, under the peculiar circumstances, constituted highly-damaging circumstances against the defendant. They were so intimately connected with the case as to form a part of the res gestae.

The fifth error assigned relates to the testimony admitted in regard to the killing of the man known as "Charlie." The witness Jamison was questioned, and his testimony admitted, showing blood stains upon the platform in front of the house, a portion of the skull and brains upon such platform, and one lobe of a human brain, containing shot, where it had fallen through a hole in the platform. As Charlie was shown to have had a large portion of his head blown off, these vestiges tended to point to the place of his death. The contention of appellant is that defendant being charged with the murder of Dolph, and not Charlie. it was error to admit testimony of the murder of another man. It is true that, in a criminal prosecu