We find in the case of Campbell v. State, 133 Ala. 81, 31 South. 802, 91 Am. St. Rep. 17, the following instruction was requested by defendant: tory which subsequently was included in Ben- | found, such evidence will not be considered ewah county when the latter county was by this court in connection with an offered created. After the organization of Benewah instruction refused by the lower court. county, this case was transferred to the district court of that county for trial. Defendant was tried before the court and jury, and was found guilty of manslaughter, and sentenced to serve a term in the state penitentiary of not less than two nor more than ten years. Motion for a new trial was then made and overruled. This is an appeal from the judgment, and from the order of the trial court overruling appellant's motion for a new trial. "The court charges the jury that any threats made by deceased towards defendant, if such threats are shown to have been made by deceased, whether recently made or not, may be con sidered by the jury, in connection with all the other evidence in the case, in determining whethdefendant at the time he fired the fatal shot." er or not there was real or apparent danger to It will be seen that this instruction is prac Court of that state held that the instruction struction in the case at bar. The Supreme had been properly refused, for the reason that it was argumentative. Appellant specifies four assignments of error: (1) The court erred in refusing defend-tically the same as appellant's proffered inant's instruction No. 1; (2) the court erred in denying defendant's motion to strike from the record the affidavits of ten certain jurors; (3) the court erred in denying defendant's motion for new trial; and (4) the court erred in entering judgment and passing sentence on the verdict. These assignments of error will be discussed and disposed of in their order. The instruction offered and refused upon which the first error is predicated is as fol lows: "You are to determine from the evidence the state of mind of the defendant when he shot and killed the deceased (if he did so), and in that connection you may consider threats (if any) made by the deceased, either expressed or implied, regarding the defendant, the reputation of the deceased (if such it was) as a violent and dangerous man, the defendant's personal knowledge (if such he had) that the deceased was a violent and dangerous man, the relation of the deceased and the defendant, and all other facts in the case that may shed light on the case. That portion of the first paragraph of appellant's requested instruction in respect to the reputation of the deceased as a violent sonal knowledge of this fact is clearly objecand dangerous man and the appellant's pertionable on the ground that it is not within the province of the court to select a particular fact and suggest to the jury what effect they may give it. The jury are to consider all the evidence and base their verdict upon their conclusions from it as a whole. Carpenter v. State, 62 Ark. 286, 36 S. W. 900; Gilmore v. State, 126 Ala. 20, 28 South. 595; Commonwealth v. Hourigan, 89 Ky. 305, 12 S. W. 550; State v. Cantlin, 118 Mo. 100, 23 S. W. 1091. We will refrain from comment upon the phrase of the first paragraph of appellant's refused instruction as to the re"And you are further charged that the relative | lation of the deceased and the appellant, since size and strength of the deceased and the accus- our attention has not been directed in the ed should be considered by you in determining the question whether or not the defendant had brief to any testimony in the transcript bearreasonable grounds to apprehend death or great ing upon this matter. The entire first parabodily harm at the hands of the deceased. graph of appellant's proposed instruction is "And in this connection you are further in- subject to the objection that it is argumenstructed that the defendant is not required to wait until an actual assault made upon him has tative, and is an effort on the part of appelreached a stage where resistance would be use-lant, by the medium of an instruction, to call less. If the situation is such that a reasonable man in the situation of defendant would be justified in believing that his life is in danger, or that he was in danger of great bodily harm, which was to be committed upon him, he could act; and what was apparent danger to him should be considered by you as the real danger.' [1] That portion of the first paragraph of appellant's requested instruction which refers to threats is subject to numerous objections, but we will not detail them all. It is a cardinal rule that the sufficiency and correctness of an instruction must be determined from the evidence; and we fail to find any reference in appellant's assignments of error, nor does he direct our attention in his brief by folio or page of the transcript, to any evidence therein showing that the deceased made threats regarding appellant either expressly or impliedly. Under the wellknown rule of practice, where no reference is made in the brief to the page or folio of the attention to, and to emphasize, certain parts of the evidence particularly favorable to him. The second paragraph of appellant's proposed instruction with reference to the relative size and strength of the deceased and the accused we find is substantially what was contained in an instruction requested by defendant and refused by the court in the case of Gordon v. State, 140 Ala. 29, 36 South. 1009. It is as follows: "The jury may consider the age and size and character of the defendant and the size and age and character of deceased, in connection with all the other evidence in this case, in order to determine whether the defendant was impressed with a reasonable necessity, either apparent or actual, to shoot." In that case the Supreme Court held on appeal that the instruction was bad for the reason that it was argumentative. The instructions quoted from the cases of Campbell v. State and Gordon v. State, su case at bar, for the express purpose of de-tain acts and conduct of the deceased, and to termining the state of mind of the defendant comment upon the relative size and strength when he committed the act with which he of the deceased and the defendant, it is was charged, but neither of them is as far- equally its duty to call to the attention of the reaching in an effort to emphasize and give jury certain facts which may be damaging undue prominence to isolated facts as the to the defendant. one we have here under consideration. We think, therefore, that the first two paragraphs of appellant's requested instruction were properly refused by the court, as we deem such an instruction to be argumentative, giving undue prominence to certain portions of the evidence, and suggesting inferences of fact to be drawn therefrom by the jury. All of the facts in this case were before the [2] Under the provisions of section 7886, jury, and it was for them to determine the Rev. Codes, the court, in charging the jury, truth, force, and importance of those facts. must state to them all matters of law neces-It certainly was not the duty of the court sary for their information, but is not re- to draw inferences from the facts in proof. quired, and it would be error, to charge the Neither was it proper for it to point out what jury, either of its own motion or by giving inferences the jury might or could draw from requested instructions, with respect to any them. The rule seems to be that, where an particular matters of fact. It is the duty of instruction is argumentative, and directs the the court to instruct the jury upon the law attention of the jury especially to certain of the case, but it is equally the duty of the portions of the evidence, and suggests to jury to determine what facts have been them certain inferences of fact to be drawn proved, and of this they are the sole judges. therefrom, thus singling out for their con[3] It will be observed from a reading of sideration particular facts favorable to the the first and second paragraph of appellant's defendant, and ignoring, by failing to parrequested instruction that the attention of ticularize, other evidence having a contrary the jury is directed to certain facts favor- tendency, the giving of such an instruction able to appellant for the purpose of indicat-is error. ing that he was entitled to have these facts more carefully scrutinized and weighed than other evidence adduced on the trial which tended to prove his guilt of the crime charged. In short, the jury are invited, in this instruction, to treat lightly all of the facts in the case except the particular ones pointed out as being more advantageous to appellant. The jury are told to consider the threats made by the deceased, either express or implied, regarding the appellant. They are not admonished to consider threats or conduct of the appellant against the deceased. They are advised to consider only the reputation of the deceased as a violent and dangerous man, but not that of the appellant, By adopting this method counsel for appellant sought to have the court argue to the jury, through the instruction, that from a consideration of these particular facts to which their attention was then directed they would be warranted in reaching the conclusion that the appellant's mind was in such a condition of fear as to wholly justify him in committing the deadly assault as an act of selfdefense. While it was proper for the trial court to permit evidence to be introduced showing the relative size and strength of the deceased and appellant (State v. Buster, 28 Idaho, - 152 Pac. 196), yet we know of no rule of law which imposes the additional duty upon the court of saying to the jury, for the benefit of a defendant, that, if the deceased is a larger man than the defendant, We are fully satisfied that the foregoing the defendant is, for that reason alone, jus-instructions given by the court, in connection tified in committing a murderous assault upon him. Nor should the size of the deceased necessarily determine the question of whether a defendant has reasonable grounds to apprehend death or great bodily harm. If, in other words, it is incumbent upon the trial court to point out and call attention to cer [4, 5] The matter contained in the third and last paragraph of appellant's requested instruction was fully covered in the instructions given by the trial court; and, as the instructions given were more favorable to appellant than the one asked, he cannot be heard to complain. The instructions given covering this particular point read as follows: * * "If the jury believe from the evidence that the defendant, H. C. Jones, at the time he fired the fatal shot which killed the deceased (if he did fire the fatal shot and kill him), believed, and had good reason to believe, that his life was in imminent danger, or that he was in danger of receiving great bodily harm at the hands of the said Charles E. Plunkitt, then I instruct you that the defendant was justified in firing said shot, and you should acquit him. jury can convict the defendant they must be satisfied to a moral certainty, not only that the proof is consistent with the defendant's guilt, other rational conclusion, and, unless the jury but that it is wholly inconsistent with every are so convinced by the evidence of defendant's guilt that they would venture to act upon that importance to their own interest, then they must decision in matters of the highest concern and acquit the defendant." "You are further instructed that before the with other instructions given, correctly stated the law of self-defense as applied to the facts in this case, and that the appellant was in no wise prejudiced by the refusal of the court to give the instruction he requested. [6] The second assignment of error is based on the action of the trial court in refusing, under an immediate sense of responsibility to God, it would seem that one taken before any officer authorized under the law to administer it would have the same force and effect as if taken before an officer particularly designated. It is the taking of the oath before a properly constituted official that should entitle it to weight and consideration for any purpose, rather than its administration by a particularly designated officer. on motion for a new trial being made by | ward pledge that one's testimony is given appellant, to strike from the record the affidavits of the ten jurors of the panel before which the defendant was tried, for the reason that the same were sworn to before the prosecuting attorney, deputy clerk of the district court, and chairman of the board of county commissioners-officers of Benewah county. It is contended by counsel for appellant that the affidavits were null and void and should not have been considered by the trial court in resisting their motion for a new trial. The question, therefore, arises whether the county officers taking these oaths are authorized so to do, and, if so, can such affidavits be used before the trial court as counter affidavits in opposition to a motion for a new trial? Section 6055, Rev. Codes, provides: "An affidavit to be used before any court, judge or officer of this state, may be taken before any judge or clerk of any court, or any justice of the peace, or notary public in this state." Section 1983, Rev. Codes, provides: "Every county officer and every justice of the peace may administer and certify oaths." It is insisted by counsel for appellant that section 6055 is a limitation on section 1983, and that no affidavit can be used before any court, judge, or officer of this state, unless it be taken by the officer designated in the former section. These two sections of our statutes have never been construed by this court, as the question is now before us for the first time, but we find that they were taken from the California Codes, and both have received a construction by the Supreme Court of that state. In the case of Haile v. Smith, 128 Cal. 415, 60 Pac. 1032, it was insisted that section 4118 of the Political Code of California (which corresponds with section 1983, Rev. Codes), gave authority to officers therein enumerated to administer and certify oaths only in proceedings peculiar to their own department or office. The court said: From the record in this case it appears that the ten affidavits of the jurors objected to by counsel for appellant were submitted by the state in opposition to the affidavits of McGillvray, Elixmann, Thompson, and Bowers, who made affidavits to the effect-and all of their affidavits are in the same language that when the jurors who tried the case of the state against the appellant went upon the street of St. Maries, where the cause was tried, in company with two bailiffs, that one of the jurors, whose name to from the other jurors, and left the presence the affiant was unknown, separated himself of the bailiffs, and engaged in a conversation in a low voice with a man who was walking upon the streets in said city, whose name was also to affiant unknown, that this conversation continued in said manner for several minutes, and that affiant saw one of said jurors, whose name to affiant was unknown, leave the bailiffs and the other jurors and enter a retail storehouse in said town, and so absented himself from the remaining jurors and bailiffs for a period of from three to five minutes. The counter affidavits made on behalf of the state by the ten jurors whose oaths were administered and certified by county officers in the manner above stated were all directly contradictory to those made by the four above named persons for the appellant, and were to the effect that during the entire trial of said cause the jury was kept together and was in the custody of two bailiffs; that they never separated, and none of the members of the jury were ever separated to such an extent that the rest of the jurors and the bail "While it is not improbable that this is what the framers of the Code meant, still there is no such restriction in the language used, and there is no such room given for the play of construction as would warrant this court in overturning the judgment by taking that view. Neither iffs could not see and hear what was trando we think that section 2012 of the Code of spiring. Each of the ten jurors state positiveCivil Procedure [which corresponds with section ly in their affidavits, which are objected to 6055, Rev. Codes] excludes all officers except those therein mentioned from taking affidavits by appellant, that they did not talk with any to be used before a court. * It is not one other than among themselves, and then confined to affidavits to be used before a court not about the case until it was finally subor judge, but includes affidavits to be used before any other 'officer of this state'; and we mitted, and that there was no separation of think that this section and all other sections of any one of their number from the jury or the same Code on the subject * * * are all the bailiffs at any time during the entire cumulative, and that, where a general author- trial of the cause. ity is given an officer to 'administer and certify oaths,' that authority cannot be limited by judicial construction to particular kinds of oaths." [8] Section 1983, Rev. Codes, provides in express terms that every county officer and every justice of the peace may administer and certify oaths. An "oath" being a solemn appeal to the Supreme Being in attestation of the truth of some statement, and an out In addition to the affidavits of these ten jurors, we have the affidavits of the two additional jurors taken before the clerk of the district court of Benewah county to the same effect, and also the affidavits of the bailiffs appointed by the court, who had charge of the jury, to the effect that during the entire trial of this cause the jury were kept togeth (Syllabus by the Court.) 1. STATUTES 123 TITLE AND SUBJECTMATTER-DRAINAGE ACT. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 176-183; Dec. Dig. 123.] 2. CONSTITUTIONAL LAW 61, 67, 74 DRAINS 2-DRAINAGE DISTRICTS CONSTI TUTIONALITY OF STATUTE-"POWER OF TAXA TION. er and never allowed to separate, and that affiants could see and hear what transpired In re DEXTER-GREENFIELD DRAINAGE at all times; that during the entire trial none DIST. (No. 1782.) of the jurors conversed with any one who (Supreme Court of New Mexico. Dec. 31, 1915.) was not a member of the jury. We think that these affidavits, independent of the ten affidavits against which the objection that they were not sworn to before the proper officer is urged would be sufficient to overcome Code 1915), construed, and limited, in its appliSection 82, c. 84, Laws 1912 (section 1958, the affidavits made by McGillvray, Elixmann, cation to such persons as have been assessed for Thompson, and Bowers. Upon an examina- the cost of construction of works of a drainage tion of the affidavits of these last-named per-district, and, as so construed, held not to be unsons, it will be observed that they say they constitutional as violative of section 16 of article did not know the juror who, they state, talk- islature from embracing more than one subject 4 of the Constitution, which prohibits the Leged with some person other than a juror, or in a bill. the person with whom such conversation was had, or the business house which the juror is alleged to have visited. From these affidavits it could be fairly assumed either that the affidavits were intended to be so worded that a prosecution for perjury could not be based thereon, or, viewing the affidavits in a more favorable light, it seems to have been a case of mistaken identity which was made so apparent to the trial court that in passing upon them it considered they were entitled to no weight in support of appellant's motion for a new trial. It may also have appeared strange to the trial court, in view of the activity displayed at the trial in appellant's behalf by one of the affiants who was a detective, that he should be wholly ignorant of the name of the juror or the name of the person with whom that juror is supposed to have had a conversation, or the business house in the village of St. Maries in which one of the jurors is alleged to have entered, or of any other material fact that was possible of being directly contradicted by the person or persons charged with the violation of the statutes and the positive instructions of the court. [7] This court has the same power to pass upon affidavits furnished on motion for new trials and in opposition thereto as has the trial court, and, having examined all of the affidavits submitted for and against the motion, we find there is a direct conflict as to the facts alleged in the affidavits made on behalf of appellant and those made on behalf of the state. That being true, where the misconduct of the jury is involved, the ruling of the trial court will not be disturbed. People v. Biles, 2 Idaho (Hasb.) 114, 6 Pac. 120. In our opinion, the learned trial court did not err in refusing to give the instruction asked by appellant, or in refusing to strike the affidavits from the files, or in its ruling in denying appellant's motion for a new trial. To our minds it is very evident that no injustice has been done the appellant in this case, and that the sentence and judgment of the trial court was properly entered, and the judgment is hereby affirmed. SULLIVAN, C. J., and MORGAN, J., con cur. Chapter 84, Laws 1912 (sections 1877-1958, Code 1915), which provides for the organization of drainage districts through the courts, held not to be unconstitutional as violative of section 1 of article 3 of the Constitution, which provides that no officer charged with the exercise of powers properly belonging to one of the three departments of the state government shall exereither of the other departments, except as othercise any of the powers properly belonging to wise in the Constitution provided or permitted, the duties imposed by the act being held to be judicial in character, and not legislative or executive; nor unconstitutional as violative of section 5 of article 5 of the Constitution, which provides for the nomination, and by and with the consent of the Senate, the appointment by the Governor of all officers whose appointment or election is not otherwise provided for, the commissioners of drainage districts being held not to be of the class contemplated by the section; nor unconstitutional as conferring upon the courts the powers of taxation, the duty and powbenefits in drainage districts being held not to er of approving and confirming assessments for be the power of taxation. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 103-107, 123, 124; Dec. Dig. 61, 67, 74; Drains, Cent. Dig. § 17; Dec. Dig. 2. For other definitions, see Words and Phrases, First and Second Series, Taxation.] OR"PUBLIC 3. DRAINS 2 DRAINAGE DISTRICTS [Ed. Note. For other cases, see Drains, Cent. Dig. 17; Dec. Dig. 2. First and Second Series, Corporation; Public 4. EMINENT DOMAIN 2 DRAINAGE DISTAKING PROPERTY WITHOUT COM TRICTS Said chapter held not to be violative of section 20 of article 2 of the Constitution, which prohibits the taking of private property for a public use without just compensation. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. 2.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Section 35 of chapter 84, Laws 1912 (Code 1915, § 1911), held to give the right of appeal to this court from the findings of the district court in regard to the required signatures of the petition for the organization of a drainage district within 30 days after the same are filed and, consequently, to cut off the right thereafter to question such findings; such findings being findings of fact upon which the court assumes to act. Ed. Note. For other cases, see Drains, Cent. Dig. §§ 44-50; Dec. Dig. 36.] 6. APPEAL AND ERROR 5. DRAINS 36-DRAINAGE DISTRICTS-PETI- shall be passed, except general appropriaTION FOR ORGANIZATION. tion bills, and for the codification and revision of the laws. This assignment of error proceeds upon the theory that section 82, providing that any persons, firm, corporation, or association may exercise the right of eminent domain, and can take and acquire land and right of way for the construction, operation, and maintenance of a drainage ditch in the manner provided by law for the condemnation and taking of property in the state of New Mexico for railroad, telegraph, and other public purposes, is a separate and distinct subject from the remainder of the act, to wit, the organization and operation of drainage districts, and conferring additional powers on BELOW-NECESSITY. 169-PRESENTATION A question not presented to the trial court will not be considered here. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1018-1034; Dec. Dig. 169.] Appeal from District Court, Chaves Coun- certain officers, and providing for the issuty; McClure, Judge. Jacquez Michelet filed a remonstrance to the report of the commissioners of the Dexter-Greenfield Drainage District for assessments. The remonstrance was overruled, and he appeals. Affirmed. Dye & Mathews, of Roswell, for appellant. Reid & Hervey and George S. Downer, both of Roswell, for appellee. PARKER, J. This is an appeal from an order of the district court of the Fifth judicial district within and for the county of Chaves, overruling the remonstrance of the appellant, Jacquez Michelet, to the report of the commissioners of the Dexter-Greenfield drainage district upon assessments for benefits, damages, and costs of construction in said district theretofore filed in said court. There are five assignments of error, all of which seem to be relied on by the appellant, attacking the constitutionality of what is known as the drainage law of New Mexico, being chapter 84 of the Laws of the Legislative Assembly, approved June 14, 1912, set forth in Code 1915 as sections 1877 to 1958, inclusive, and also the refusal of the court to allow the appellant to submit evidence tending to prove that the original and amended petitions filed in said court, initiating the proceeding for the establishment of this drainage district, were not signed by a majority of the adult owners of lands within the proposed district, not by adult owners representing one-third in area of the lands situated therein. We will consider these assignments of error in the order in which they appear in the assignments of error on file in this cause. ing of bonds, and levying assessments on lands benefited, etc., as set forth in the title of the drainage act. It is argued by the appellant that this section is an unrestricted grant of the right of eminent domain, without regard to its connection with any drainage district as provided for in the preceding sections of the act, and that it may be extended to cases not only for private drains, but to drains for other than agricultural purposes, as restricted by the general provisions of the drainage act. We do not deem it necessary to discuss one of the answers which the appellee makes to this proposition, to wit, that, although an act may include two distinct subjects, the whole act shall not be declared void if it is possible from an inspection of the act itself to determine which part of the act is void, and which is valid, because in our opinion section 82, when construed in the light of the remaining provisions of the act, does not embrace a different or distinct subject from such provisions. If this were a proceeding to review a judgment granting the right of condemnation to a private drain, or to a drain for other than agricultural purposes, there might be some force to the appellant's contention; but our opinion is that this section, in view of section 79 of the drainage act, which contains a direct reference to section 82, was intended by the Legislature to confer this power, not upon private drainage systems or for purposes other than agriculture, but upon the individual owners of lands embraced within a drainage district, as provided for in the Section 79 of the drainage drainage act. law provides, in substance, that the owner of any land that has been assessed for drain[1] 1. It is insisted that the drainage act age, as provided in the drainage act, shall is unconstitutional and void, in that it con- have a right to use the drain as an outlet travenes section 16 of article 4 of the Con- for lateral drains, and that if his land is stitution by embracing within itself two separated from such drain by the land of separate and distinct subjects. This sec- others, and he is unable to agree upon the tion provides that the subject of every bill terms upon which he may construct his latershall be clearly expressed in its title, and al across such land, he may acquire a right no bill embracing more than one subject of way by condemnation as provided by sec |