words would have been entirely superfluous, and we must therefore conclude that the legislature enacting the statute placed that construction on the language first mentioned, which we feel constrained to do.

We are also of opinion that it was within the jurisdiction of the trial court to make the order for the view by the jury of the place where "the offense is charged to have been committed, or in which any material fact occurred," under section 1119 of the Penal Code.

Nor do we perceive any error arising from the taking of that view. Section 1119 of the Penal Code confers the right on any Superior Court in this state, in the exercise of a sound discretion, to cause a view to be taken by a jury trying a criminal cause, of any "place in which the offense is charged to have been committed, or in which any other material fact occurred," and this right is there given whether the place cr places to be viewed lie in the county where the cause is then on trial, or, in any other county of this state.

This right, thus given, clearly and without limitation, is not, as we think, in any way in conflict with the provisions of section 6 of article 6 of our state constitution. We have formerly held that the statute contemplates the presence of the defendant and his counsel at such view, in order that he may not be deprived of any of his constitutional rights, to be confronted by witnesses against him, and to appear and defend in person and with counsel, and to that opinion we still adhere. (People v. Bush, 68 Cal. 623.)

The objection made that Thomas Bundy, the person appointed by the court to show the jury the places named in its order for the "view," pointed out and named such places to the jury, is without merit, for we cannot conceive how he could have shown the jury the two places which they were sent to view in any other way, under the statute.

What is said by this court in the case of People v. Green,

53 Cal. 60, does not in any degree militate against the propriety of such a method of procedure.

We perceive no merit in the point that the court erred in not forcing the prosecution to introduce as its own three of the defendant's witnesses, Maud and Cora Parsons, his nieces, and Albert Bush, his son.

It is insisted that the eleventh and twelfth instructions asked by the defense, and refused, ought to have been given.

The court, in its general charge upon the same subject as that contained in the instructions, said: “If you find that the defendant committed the homicide, the law presumes it to have been done with malice, and the burden of proving circumstances of mitigation, or that justify or excuse it, devolve upon him, unless the proof on the part of the prosecution tends to show that it only amounted to manslaughter, or that the defendant was justifiable or excusable."

That was a clear and explicit enunciation of the law on the point covered by the refused instructions, and the defendant was not prejudiced by their refusal.

It is also assigned for error that the court gave this instruction: "In this case, Maud and Cora Parsons, nieces of the defendant, have been examined as witnesses in behalf of the defense. This is their right. It is proper, however, for the jury to bear in mind the relationship between them and the defendant, and the manner in which they may be interested by your verdict, and the very grave interest they must feel in it; and it is proper for the jury to consider whether their position and interest may not affect their credibility or color their testimony."

By that instruction, the court simply informed the jury of certain facts and circumstances in the case before them, which they would, perhaps, as men of ordinary observation, have been bound to know, and this was within a proper latitude of observation from a court

in its charge to a jury. (People v. Wong Ah Foo, 69 Cal. 180; Bishop's Crim. Proc., secs. 982-1064.)

Upon the whole case, we perceive no prejudicial error, and the judgment and order should be affirmed.

BELCHER, C. C., and SEARLS, C., concurred.

The COURT.

For the reasons given in the foregoing

opinion, the judgment and order are affirmed.

[No. 20275. In Bank. - January 29, 1887.]

EX PARTE JOHN W. ROBINSON, ON HABEAS CORPUS.

CONTEMPT

ACTION FOR DIVORCE - ORDER FOR COUNSEL FEES - REFUSAL TO COMPLY WITH. In an action of divorce in which the petitioner was the defendant, an order was made directing him to pay a certain sum of money to his wife as counsel fees, or to show cause on a specified day thereafter why he should not be punished for contempt. The money was not paid, and no affidavit showing non-payment was presented; but the petitioner with his counsel appeared before the court on the day specified for the purpose of showing cause, when the court, after hearing evidence as to his ability, ordered him to pay the money. The petitioner thereupon, in the presence of the court, refused to comply with the order, saying he would go to jail before doing so. The court thereupon adjudged him guilty of contempt, and ordered that he be imprisoned until the payment was made. Held, that the refusal to pay, being made in the presence of the court, could be punished as a contempt, notwithstanding no affidavit of non-payment had been made.

HABEAS CORPUS

REHEARING SUPREME COURT.

A petition for a rehearing in the Supreme Court cannot be made in a case of habeas corpus.

APPLICATION for a writ of habeas corpus. The facts are stated in the opinion of the court.

W. H. H. Hart, and Aylett R. Cotton, for Petitioner.

Sawyer & Burnett, for Respondent.

PATERSON, J. The petitioner was adjudged guilty of contempt in the Superior Court of Del Norte County for refusing to pay certain sums of money which the court had directed him to pay as costs and attorney fees

in an action for divorce therein pending between his wife and himself.

In the action referred to, the plaintiff wife of petitioner had been awarded a decree of divorce, the defendant had moved for a new trial, and prepared and served his bill of exceptions. The plaintiff, having no means to present her defense to said motion, applied to the court for an order requiring the defendant to pay the cost of transcribing the short-hand notes, and a sufficient fee to enable her to employ an attorney to attend to the proceedings for a new trial.

After hearing the matter upon affidavits, the court directed the defendant to pay the plaintiff or her counsel the sum of $160 within two days after service of the order, or show cause thereafter, to wit, on the fourth day of November, 1886, why he should not be punished for contempt. The money was not paid; no affidavit showing non-payment was presented, but on said fourth day of November the defendant and his counsel appeared before the court to show cause why he should not be punished for contempt. The court heard the evidence of the parties as to the ability of the defendant to pay, and decided that the defendant had been and then was amply able to pay the said sum. Immediately upon learning the decision of the court, the defendant refused to pay the money, saying he "would be locked up❞— meaning, of course, that he would go to jail - before he would obey the order of the court. Thereupon the court adjudged him guilty of contempt, and ordered that he be confined in the county jail until he complied with the order for the payment of the $160.

Petitioner claims that the court exceeded its jurisdiction in making the order adjudging him guilty of contempt, and that the order is therefore void, and his detention thereunder unlawful. It is contended that the contempt, if any, was committed without the presence of the court, and that the court could not lawfully

LXXJ. CAL.-39

make any order requiring him to show cause except upon affidavit being first presented, showing his failure to comply with the order for the payment of the money. In support of this proposition, petitioner relies upon the case of Batchelder v. Moore, 42 Cal. 412. In that case, the contempt alleged was clearly one which was not and could not be committed in the presence of the court. The affidavit upon which the proceedings were based was defective in the most important particular, and it resulted that the court had no authority to proceed. We are not disposed to question the correctness of that decision, and if the petitioner herein had contented himself with answering the question why he had not complied with the order of the court, whether his reasons were good or bad, or if he had objected in any way to the proceedings, or if he had voluntarily appeared and said nothing, we should hold that the court below, in the absence of an affidavit showing failure to comply with the order, had no authority to convict him of contempt. The defendant, however, did not content himself with excuses, good or bad, nor did he object to the proceedings of the court, nor did he keep that silence which would have been circumspect, but he went further, and showed his defiance of the court and its lawful order by a declaration plainly indicating that he never intended to obey the order, and that if imprisonment was the ultimatum, he was ready for it. We think that this direct challenge to the authority of the court was a contemptuous defiance of a lawful order in the presence of the court, and that he was properly adjudged guilty of contempt therefor. It was a repetition in the presence of the court of the offense for which the court had without authority cited him to appear and answer.

It is claimed that since the issuance of the writ herein, a compliance with the order of the court has become unnecessary, because the proceedings on motion for new trial have lapsed or have been dismissed, and there is