leased all claim to the crop should be sustained. Respondent, in his brief, says: "Anything charged to Akins for seed or feed was settled by the receipts, because this was a book account." But it must be evident that the defendant cannot shield himself behind the settlement from any liability connected with the crop, and at the same time insist that his right to the crop was not considered in or affected by the settlement. Putting such contention in plain English, the defendant would say: "The plaintiff furnished the land and the seed, advanced the cost of the summer-fallow, paid for the labor in putting in the crop, and paid me for superintending it, then released me from all these liabilities, and leaves me three-fourths of the crop for harvesting it."

The evidence of the inability of the defendant to respond in damages was sufficient. Absolute and complete insolvency need not be shown. The granting of injunctions are to some extent matters of discretion, and should be exercised in favor of the party most likely to be injured. Hicks v. Compton, 18 Cal. 206; Real Del Monte Consol. Gold & Silver Min. Co. v. Pond Gold & Silver Min. Co., 23 Cal. 83, 85.

The judgment and order appealed from should be reversed.

We concur SEARLS, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are reversed.

(112 Cal. 345)

STEVENS v. HOLMAN et ux. (No. 19,475.) (Supreme Court of California. April 11, 1896.) MORTGAGE ON HOMESTEAD-ACKNOWLEDGMENT BY WIFE MISTAKE -REFORMATION.

1. The statute, requiring a mortgage on the homestead to be signed and acknowledged by the wife in the statutory form, relates merely to the execution of the instrument, and will not prevent the reformation of a mortgage on the homestead, properly signed and acknowledged, which, by mistake of the mortgagee, did not include all the land which the parties had agreed that it should cover, on the theory that the mortgage, as reformed, would not be so acknowledged by the wife.

2. Civ. Code, § 3399, providing for the reformation of written instruments which, by "mutual mistake of the parties or a mistake of one party which the other at the time knew or suspected." applies to a mortgage on the homestead, which, by mistake of the mortgagee, but with the knowledge of the mortgagors, did not include all the land that the parties had agreed it should cover.

Temple, J., dissenting.

In bank. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

Action by William Stevens against one Holman and his wife to reform a mortgage. Judgment for plaintiff, and defendants appeal. Affirmed.

Jos. McKinley, for appellants. J. D. Reymert, for respondent.

MCFARLAND, J. This is an action for the reformation of a mortgage executed to plaintiff by the defendants, Holman and wife, and to foreclose the same. Judgment went for plaintiff, and defendants appeal from the judgment, bringing up the judg ment roll alone.

Respondent had a former note and mortgage from appellants, and appellants, desiring further time, agreed to give a new note and a mortgage to secure it covering certain described land. Respondent consented, whereupon the old note and mortgage was canceled, and the note and mortgage now in suit was given. But the description in the new mortgage did not include all the land which appellants had agreed to mortgage. Respondent supposed that the description did include all such land, and accepted the mortgage under the mistaken notion that he was thereby getting a lien upon all the land which appellants had promised to mortgage. Appellants knew that the description did not embrace all said land, but they, and each of them, "knew that plaintiff believed that the mortgage, as executed by them to him, did include all the land they, and each of them, had agreed to mortgage as aforesaid, and that plaintiff was deceived in so believing, and took and accepted said mortgage with the mistaken belief that the same did embrace all the land said defendants had agreed to mortgage to him."

If the appellants were both men, and there were no question of homestead rights involved, there would be no plausible objection to the judgment. But the land constituted the homestead of the appellants, and their counsel contend that, as a homestead can be conveyed or incumbered only by an instrument signed and acknowledged by both husband and wife, the acknowledgment of the latter to be in the form provided for the acknowledgment of married women, therefore there could be no reformation of the mortgage by the court, because such reformation would not have the sanction of the wife's acknowledgment. But the provisions of the statute invoked merely prescribe the things which are requisite to the due execution of a written instrument by a married It may be readily conceded that she is not bound by any instrument not executed by her in the manner prescribed by the statute. When, however, she has duly executed a contract, there is no reason why she does not bear the same relation to it, and to rights and remedies under it, as any other contractor. See Hamar v. Medsker, 60 Ind. 413, and Society v. Meeks, 66 Cal. 371, 5 Pac. 624. And in the case at bar the contract-the mortgage-was duly executed by the appellants, the wife having signed and acknowledged it with all the formalities prescribed by the Code. If, therefore, the mortgage could have been rightfully reformed as decreed by the court, in case neither of the mortgagors had been a married woman,

woman.

the decree was right as against the appellants. The fact that the land was a homestead cuts no figure. Parties can contract as to their homestead as fully as to any other land, provided their contract be executed in the manner prescribed by statute. These views are sustained by the decision and opinion in Society v. Meeks, 66 Cal. 371, 5 Pac. 624. There the lower court had reformed a mortgage upon land which was the separate property of the wife, so as to make it describe the land intended to be mortgaged; and we see no difference in principle between that case and the one at bar. It was there contended that "the court erred in reforming the mortgage, because the mortgage, as reformed, was not the act and deed of the wife, as it was not acknowledged by her as required by law." But the court said: "It is merely carrying into effect the intention of the parties. No new right was conferred. The instrument was reformed, so as to express truly the intention of the parties. Hayford v. Kocher, 65 Cal. 389, 4 Pac. 350. If such mistakes could not be corrected, gross wrong and injustice would result. By the reformation of the instrument and the correction of the mistakes, the object and policy of the law as to the conveyance of the separate property of a married woman are not controverted or thwarted." In Hayford v. Kocher, 65 Cal. 389, 4 Pac. 350, Flavel Hayford had made a conveyance to Kocher in which certain premises were "intended to be, but by mutual mistake were not, included." Kocher afterwards, in an action against Flavel, had the conveyance reformed so as to include said premises. But before the reformation, Flavel's wife, Lydia Hayford, selected said premises as a statutory homestead. The two Hayfords then brought an action in ejectment to recover said premises, upon the theory that there could be no judicial reformation of a conveyance affecting a homestead. They were defeated in the lower court, and the judgment was affirmed here. But, if the homestead had existed at the time of the conveyance, and the wife had duly executed the conveyance in the manner as prescribed by the statute, must not the judgments in the suit for reformation and in the action of ejectment have been, upon principle, the same?

Counsel for appellants cite Barrett v. Tewksbury, 9 Cal. 14; Leonis v. Lazzarovich, 55 Cal. 52. The former case is not at all in point; for there it was merely held that the consent of a married woman to execute an instrument must be perfectly free, and that "it is not in the province of a court of equity to compel a married woman to correct an insufficient acknowledgment." Leonis v. Lazzarovich lends some support to appellants' contention; but that case, in the character of the action and the substance of the judgment, is different from the case at bar, and the form of the judgment was evidently the thing most prominent in the mind of the

court when the opinion was delivered. That action was evidently not for the reformation of a conveyance which had been already properly executed by a married woman, but for a decree compelling her to execute another conveyance. The court, in its opinion, says: "Was it within the equitable powers and jurisdiction of the court below to decree, as it did, that the defendant should, within a certain time, fixed by the decree, execute to the plaintiff her deed conveying lands not described in any deed or other written instrument, and, in case she made default, that such deed should be executed by the clerk of the court? That is what the court did by its decree, and it is the correctness of such proceeding that we are now called upon to review." It is true that, in the opinion, there are some statements about the reformation of a married woman's deed which are inconsistent with Society v. Meeks; but they are mainly dicta, and, if any of them can be considered as forming a part of the decision, they must be held as overruled by the case last above mentioned. See, also, Banbury v. Arnold, 91 Cal. 610, 27 Pac. 934. When a conveyance, mortgage, or other contract of a married woman has been duly executed by her as provided by statute, it is subject to reformation in like manner as the contract of any other person. In such a case, she has no special license to insist upon a wrong caused by fraud or mistake.

Most of the adjudged cases upon the subject deal with mutual mistakes, but the Code provides expressly for the kind of mistake involved in this action. By section 3399 of the Civil Code it is enacted as follows: "When through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written instrument does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it may be done without prejudice to rights acquired by third parties in good faith." There is no difference between a description which does not include all the property intended to be included, and a description which is defective in any other respect. In either instance, an action for a reformation lies. Hayford v. Kocher, supra, is an instance of the one kind. Society v. Meeks, supra, is an instance of the other.

We see nothing in the point that there is no averment in the complaint that the mortgage as mistakenly made is not sufficient security. Respondent was entitled to all the security for which he contracted. The judgment is affirmed.

We concur: GAROUTTE, J.; VAN FLEET, J.; HARRISON, J.; HENSHAW, J.

TEMPLE, J. I dissent. The mortgage in question here was executed February 9, 1889, long before the provisions of the Code

requiring conveyances of married women to be executed in a special mode were repealed. The complaint charges that certain parts of the homestead which defendants had agreed to mortgage were omitted by mutual mistakes. Defendants denied that they ever made such promise and that there was any mistake. The court found that plaintiff supposed that the mortgage was to include the certain homestead, and that defendants knew that such was his understanding, but they knew that it did not include the homestead, and did not intend that it should. In other words, the wife signed and acknowledged the mortgage after having it explained to her that it did not cover the entire homestead, and would not have executed it if it had included it, and now, on a finding that her husband practiced a fraud upon plaintiff, the court is asked to hold that she did execute such a mortgage, and acknowledged that she did so freely and voluntarily, and that, after being made acquainted with its contents, she did not wish to retract the execution of the same. To my mind the mere statement has the force of a demonstration, but the identical question was settled by this court in Leonis V. Lazzarovich, 55 Cal. 52. This decision has been frequently affirmed by this court. The finding that the defendants promised and agreed to mortgage to plaintiff the entire homestead is not supported by the evidence. No such agreement could be made except by an instrument signed and acknowledged by both husband and wife. The action is really to enforce specific performance of a parol contract to give a mortgage upon the homestead. To so decree is, in my opinion, to violate the law.

(27 Or. 138)

STATE v. HOWE.1

(Supreme Court of Oregon. April 22, 1895.) LARCENY BY PUBLIC OFFICER-FORMER JEOPARDY

-INDICTMENT-TRIAL.

1. Under Hill's Ann. Laws, § 1772, providing that any person having in his possession public money, who shall convert the same to his own use, "or" who shall loan the same without interest, "or" who shall neglect to pay over the same as by law directed, shall be guilty of larceny, the conversion, loaning, and refusal to pay over are each prima facie separate crimes.

2. A prosecution against a public officer during his term for the conversion of a specific sum of public money is not a bar to an action for refusal to pay over at the expiration of his term money in his hands, unless it appears that both grew out of the same identical act or transaction.

3. Where defendant goes to trial, without objection to the state's failure to reply to his plea of former acquittal, he waives a formal reply, if it were necessary.

4. In a prosecution against a public officer for failure to pay over public money, an allegation that he failed to pay over a certain sum of money is a sufficient allegation of value.

5. The granting of continuances is discretionary with the trial court.

1 Affirmed on rehearing January 13, 1896.

Appeal from circuit court, Jackson county; H. K. Hanna, Judge.

W. E. Howe was convicted of larceny, and appeals. Affirmed.

J. W. Hamaker, for appellant. C. M. Idleman, Atty. Gen., and H. L. Benson, Dist. Atty., for the State.

BEAN, C. J. The defendant, who was treasurer of Klamath county from July 6, 1892, to July 6, 1894, was, on November 14, 1894, indicted for the crime of larceny of public money, alleged to have been committed on January 23, 1893, by converting to his own use the sum of $52 of the county funds which came into his possession, and which he held by virtue of his office. Upon this indictment he was tried and acquitted. On the 15th of November, 1894, another indictment was returned against him, in which it was alleged that, at the expiration of his term of office, he had in his possession as treasurer the sum of $8,000 of the public moneys of the county, and that he "did then and there fraudulently and feloniously steal, make way with, and convert to his own use, the said $8,000, and then and there neglected and refused to pay over the said sum of $8,000, or any part thereof, to his successor in office, as by law directed and required.” When called upon to plead to this indictment, in addition to the plea of not guilty, he pleaded his acquittal under the former indictment as a bar to this prosecution, and at the trial offered in evidence the record of the proceedings therein, which being excluded, he again presented the same record, accompanied by an offer to show that the $52 mentioned therein was a part of the $8,000 which, it is charged in the second indictment, he failed to pay over to his successor. This was also excluded, and these rulings of the trial court present the important question in this case.

It is a principle as old as the common law itself, and which has been firmly imbedded in the jurisprudence of nearly every state of the Union by constitutional provision, that "no person shall be put in jeopardy twice for the same offense." It is upon this principle that the pleas of former acquittal and of former conviction are allowed in criminal cases. "The right not to be put in jeopardy a second time for the same cause is as sacred as the right of trial by jury, and is guarded with as much care by the common law and by the constitution." Black, C. J., in Dinkey v. Com., 17 Pa. St. 126. But the solution of the question as to what facts will sustain the plea is attended with difficulty, and has provoked much discussion by the courts and text writers. The general rules upon the subject, and the tests usually applied, are well settled; but, in the method of their application, much contrariety of opinion appears, owing, no doubt, to the generality and consequent elasticity of the rules themselves. We do not propose at this time

to enter upon any elaborate discussion of the question, but, having examined all the authorities cited in the briefs of counsel, and as many others bearing upon the question as were within our reach, we shall proceed to state our view of the law applicable to the facts in this case. All the writers seem to concur that a plea of former conviction or acquittal must be "upon a prosecution for the same identical act and crime." 4 Bl. Comm. *336. "But," as said by Chitty (page 455), "it is not in all cases necessary that the two charges should be precisely the same in point of degree, for it is sufficient if an acquittal of the one would show that the defendant could not have been guilty of the other." We are therefore to determine whether the charges in the two indictments in question are for the same identical act and offense, or, applying the test of Mr. Chitty, whether the acquittal of the crime charged in the first indictment shows that the defendant could not have been guilty of the crime charged in the second.

It is first contended that the defendant could have committed but one crime in violating any or all of the provisions of section 1772, and that, after the expiration of his term of office, he could be prosecuted only on one indictment for a violation of such provisions, even though it embraced all the enumerated acts, and hence the prosecution under the first indictment, charging the crime to have been committed by the conversion of $52 in January, 1893, was a bar to another indictment charging him with having converted to his own use and failed to pay over $8,000 at the expiration of his term, 18 months later. This argument proceeds on the theory that the crime is, under the statute, necessarily a continuing offense, commencing with the first taking or misappropriation of money while in office, and ending with the failure to account for or turn over the balance in his hands to his successor at the expiration of his term. It is settled that when embezzlement is committed by means of a series of connected transactions, a charge that the crime was committed on a certain day will cover and admit evidence of the whole. State v. Reinhart (Or.) 38 Pac. 822. But when the acts constituting the crime are separate and distinct, so that the prosecution can allege and prove one distinct act, which renders the offense complete, it is ordinarily to be held to the general rule that the proof must correspond with the crime charged in the indictment. See Edelhoff v. State, 36 Pac. 627, for a wellconsidered discussion of this question. It seems to us plain that the statute defining the crime of larceny of public money clearly specifies three separate and distinct acts, the commission of either of which will constitute the crime, to wit, conversion by the party having the same in possession, loaning with or without interest, and neglecting or refusing to pay over as by law directed v.44P.no.6-43

or when lawfully demanded (section 1772); and, unless two or more of these enumerated acts are in truth only successive steps in one appropriation, they will each constitute a full statutory offense. They are enumerated in the statute in the disjunctive, are of equal legal import, and, prima facie, each charge is a separate offense. From this it necessarily follows that a prosecution for a crime committed in either of the three ways mentioned will not bar a prosecution for one committed in either of the other two, unless it be for the same identical act. A defendant could not, of course, be tried for converting public money to his own use, and afterwards prosecuted for failing to pay over the same money as by law directed or required; or, e converso, he could not be tried for failing to pay over public money as by law required, and afterwards prosecuted for converting the same money to his own use. But the fact that he had been indicted and tried for converting a specific sum of money at a certain date during the term of his office would not bar a prosecution for failing to pay over money in his hands at the expiration of his term, unless it further appeared that both grew out of the same identical act or transaction, and were for the same offense. Thus, if the defendant was tried for converting certain money to his own use, and the prosecution failed because the money did not in fact belong to the county, such trial would be a bar to a prosecution for failing to pay the same money over to his successor in office, because it would be for the same act or offense; but, if he was acquitted because, in fact, he had not converted the money, but still had it in his official capacity, such acquittal would not bar a subsequent prosecution for failing to pay the same money over at the expiration of his term, for the reason that the offenses charged are different, and grow out of a violation of separate provisions of the statute.

Many tests have been announced by which the question as to when the offense is the same can be determined, but their application must necessarily depend largely upon the facts of each particular case. For instance, it is often said, and stated as a test, that a conviction or acquittal upon one indictment is a bar to a subsequent prosecution upon another, when the facts alleged in the second indictment would, if given in evidence, have warranted a conviction on the first; and this is the rule principally relied upon by the defendant in this case. But it must be accepted with some qualification, and as only true in a general sense. Thus if, after a conviction of assault and battery, the injury resulted in death, the defendant, it is held, may be prosecuted for manslaughter or murder, although, under the facts set out in the second indictment, he might have been convicted of the crime charged in the first. 1 Bish. New Cr. Law,

§ 1059. So, too, in prosecutions for the unlawful sale of intoxicating liquors, each sale constitutes a separate offense, and although both indictments ́ charge a sale to the same person, and the prosecution could support either by the same evidence, inasmuch as the date is immaterial, yet a prosecution on one would not be a bar to the other, unless it was for the same act of selling. State v. Ainsworth, 11 Vt. 91. So, also, where each obstruction of a highway by a railway company constitutes a distinct offense, an acquittal on the trial of one indictment is not, ipso facto, a bar to another, found at the same time, and charging the same character of offense as having been committed on the same date, although the same evidence would have supported a conviction on either, at the election of the prosecution. But in such case it is only a bar to a prosecution for such offense as was proven or attempted to be proven on the trial of the first indictment. Chesapeake & O. R. Co. v. Com. (Ky.) 11 S. W. 87. So, then, it cannot be said that the rule suggested affords an infallible guide. Another rule, sometimes adopted, is that the conviction or acquittal on one indictment will be a bar to another prosecution growing out of the same transaction. But this, also, must be taken as true in a general sense. A single act or transaction may be an offense against two statutes, or against the law of two different jurisdictions; in which case one prosecution will not bar the other. State v. Stewart, 11 Or. 238, 4 Pac. 128; Morey v. Commonwealth, 108 Mass. 433. The question is not so much whether the defendant has been tried for the same act, or whether the facts alleged in the second indictment would have warranted a conviction on the first, as it is whether he has been put in jeopardy for the same offense, or some part or constituent element thereof; and the rules to be found in the books are only means for the determination of that question. As said by the learned editor of the American Decisions, in an exhaustive and very instructive note to Roberts v. State, 58 Am. Dec. 537, "the offenses charged in the two indictments must be substantially the same, or, as we shall see, they must be of the same nature or the same species, so that the proof of one involves the proof of the other, or such that one is a part or constituent element of the other."

Now, the two indictments against the defendant in this case were not for the same offense, prima facie, nor did the proof of one necessarily involve the proof of the other, nor did an acquittal on the first necessarily show that the defendant could not have been guilty of the crime charged in the other; and hence such acquittal was not a bar to a prosecution on the second indictment, unless the defendant had shown that

they were both for the same identical act, which he did not do. The fact, if it was a fact, that the $52 which he was accused of converting to his own use in January, 1893, but which the jury found he did not convert, was a part of the $8,000 which the jury found he did not turn over to his successor 18 months afterwards, would certainly not make the first acquittal a bar to the second indictment without additional proof that the failure to turn over was on account of the same identical act which it was charged constituted conversion in 1893; for such acquittal did not in any way tend to show that he was not guilty of the crime charged in the second indictment. We think, therefore, that the trial court committed no error in excluding the testimony offered.

The remaining questions in this case require but a brief notice. It is claimed that the court erred in refusing to instruct the jury to find for the defendant on the plea of former acquittal because the same was not formally denied by the state. Pleadings in criminal actions are governed alone by the statute, and while it makes provision for the manner and form of the plea of former conviction and acquittal (sections 1266, 1322), it nowhere requires a reply by the state to such a plea, nor do we think it necessary (Vowells v. Com., 83 Ky. 193); but, in view of this question, the defendant, by going to trial on his plea without objecting that issue had not been joined on it, waived a formal reply, even though it were necessary (Com. v. McCauley, 105 Mass. 69).

It is next claimed that the indictment is fatally defective, because it does not allege the value of the money which the defendant is charged with having failed to pay over to his successor in office. An allegation of value in cases of this character is usually essential to the validity of an indictment, but the rule applicable to this case seems to be that, where a public officer, charged with the receipt and disbursement of public moneys, is accused of a violation of the statute, an allegation that he failed to pay over a specified sum of money is a sufficient allegation of value, as the presumption is that it was lawful money, such as had been received for and could be used in payment of the debts of the county. State v. Knox (Neb.) 24 N. W. 382.

It is also claimed that the court erred in denying defendant's motion for a continuance on account of the absence of a witness. But this was a matter in the sound discretion of the trial court, with the exercise of which this court will not interfere, except in case of manifest abuse of discretion, which does not appear to have been the fact in this case. State v. O'Neil, 13 Or. 183, 9 Pac. 284.

It follows that the judgment of the court below must be affirmed.