would be absurd to say that the verb "must appear" related to the jury, or to anybody other than the actor in the homicide, the party killing. To support their contention in this regard appellant's counsel rely upon the case of People v. Flahave, 58 Cal. 249, and undoubtedly that case is directly opposed to the views here expressed; but the opinion is not indorsed by a unanimous court, and stands alone in the Reports of this state, for the cases of People v. Gonzales, 71 Cal. 577, 12 Pac. Rep. 783, and People v. Dye, 75 Cal. 108, 16 Pac. Rep. 537, upon which counsel rely to give it support, entirely fail in that regard. Upon the contrary, the great weight of authority supports the validity of this instruction. This identical instruction was given by the court in People v. Nichol, 34 Cal. 217, and, referring to the instructions given to the jury in that case, the court said; "They are not even obnoxious to criticism." The same instruction was again given in People v. Iams, 57 Cal. 119. The court, after remarking that it had examined the charge to the jury with great care, said: "It is a long charge, completely covering all the points in the case, and is, in our opinion, entirely correct. It was again before the court in People v. Gray, 61 Cal. 164, and the case was reversed upon other grounds. And in People v. Morine, found in the same volume of Reports, (369,) the instruction was again given verbatim, and, referring to it, the court said: "It is claimed that the instruction given was disapproved by this court in the case of People v. Flahave, and it may be conceded for the purposes of this case that the position taken by the learned counsel for the defense is correct, but it does not follow therefrom that the judgment of the court should be reversed. If other instructions were given, which qualify and explain the objectionable instruction, the whole charge will be considered; and if, as a whole, it correctly presents the law applicable to the case, the judgment will not be reversed. In other words, it is not necessary that each instruction should fully state the law of the case, but an instruction may be helped out and explained by another on the same point; and in such case the court will look to all the instructions in pari materia for the purpose of determining whether the law has been correctly given to the jury:" and the court affirmed the judgment. In People v. Herbert, which is also found in 61 Cal. 546, the same instruction was again directly approved. It was also given and approved in People v. Raten, 63 Cal. 425; People v. Turcott, 65 Cal. 129, 3 Pac. Rep. 461; and People v. Guidice, 73 Cal. 228, 15 Pae. Rep. 44. In the latter case 'the opinion was written by Justice TEMPLE, and concurred in by the whole court. The learned justice said: "The instruction in regard to the right to act in self-defense was taken from the case of People v. Iams, 57 Cal. 115, and has been approved by this court. It correctly lays down the law on the subject;" and, in speaking of the instruction given by the court in the Flahave Case, said: "This instruction was not qualified by any statement of the right to act upon

apparent danger. Here the right of the defendant to act upon appearances was fully and clearly stated." The same reasoning, applied to this case, takes it also out of the authority of the Flahave Case; for here, as in the Guidice Case, the right of the defendant to act upon appearances was fully and clearly stated to the jury by the court. The doctrine of apparent danger was repeatedly explained to the jury. It is stated in a subsequent portion of the instruction under discussion, and is reiterated in various forms in the three following instructions. It would seem that this instruction has been before the court many times in the past, and with but a single exception has been sustained; many times as an abstract proposition of law, and many times when read and considered in connection with other instructions. As we have already seen, it can only be correct as an abstract proposition when the appearances "are directed to the defendant;' and, if superior courts are still inclined to give this instruction, it would be clearer and more satisfactory if the words, "to the defendant as a reasonable man, were inserted after the verb "must appear." The jury, as men of ordinary intelligence, must have understood that the defendant was justifiable in killing the deceased when it appeared to him as a reasonable man that he was in danger of losing his life, or suffering great bodily injury. Indeed, taking all the instructions upon the question of selfdefense pari materia, as was said in People v. Morine, supra, the jury could not have been misled upon the question.

Counsel insist that instruction No. 5 is erroneous, inasmuch as it confined the defendant's right to kill the deceased to a state of facts where the deceased was endeavoring to “murder Bruggy, or do him some great bodily harm;" and that it should have stated further that "an attempt to kill Bruggy by the deceased, either with or without malice aforethought," would have warranted the defendant in taking the life of the deceased. The instruction is entirely correct, and does not attempt to limit or confine the right of the defendant to kill the deceased only in the case of an attack to murder, or an attempt to do great bodily harm. If the defendant desired an instruction including other and additional conditions, he should have asked for it. People v. Franklin, 70 Cal. 642, 11 Pac. Rep. 797; People v. Northey, 77 Cal. 618, 19 Pac. Rep. 865, and 20 Pac. Rep. 129.

Counsel complain of instruction No. 7. It is based upon a hypothesis founded upon evidence in the case; and, if the facts existed as stated in the instruction, there is no question of self-defense involved, for the hypothesis stated makes a case of murder. If one person, with murder in his heart, and a deadly weapon in his hand, pursues and overtakes another, and then and there fires the fatal shot, he is guilty of murder, regardless of what the deceased may have been doing at the moment of the shooting, for murder was in his heart, and he acted upon that malice, and not upon any appearances created by the deceased. Again, if he had

murder in his heart when he overtook the deceased, and then and there fired the fatal shot, no question of his declining a further struggle is involved in the issue. We think the instruction correct.

We see no error in the instruction given to the jury upon the question of drunkenness. As a principle of abstract law, the instruction is entirely correct. The court defined the two degrees of murder, and then instructed the jury as to the effect of the evidence of drunkenness upon the question of degree of the crime. In using the word "murder," the jury, as men of average intelligence, certainly did not understand that the court considered the defendant guilty of murder, or that it was their duty to so return their verdict. Necessarily is this the fact when we consider that previously the court had fully instructed the jury as to the definition of "manslaughter," and stated to them that under the information and the evidence the defendant could be convicted of such offense.

While some of these instructions might bave been improved to their advantage in clearness, we see no error sufficient to justify a reversal of the judgment. The practical administration of justice should not be defeated by a too rigid adherence to a close and technical analysis of the instructions of the court. The instructions are for the enlightenment of the jury as to the law of the case, and a jury never enters into such character of analysis in construing them. In this case the evidence discloses that the killing of the deceased was to some extent the result of a drunken brawl; and it would seem that a verdict by the jury of imprisonment for life would have satisfied the law, but that is not a question to be here considered. The law gives the power of fixing the punishment in such cases to the jury, and the only appeal from their decision as to that matter is to the executive. The judgment and order denying a new trial are affirmed.

We concur: MCFARLAND, J.; HARRISON, J.; SHARPSTEIN, J.

DE HAVEN, J. I dissent. In my opinion, the court erred in giving the following instruction: "If the murder was deliberate and premeditated, it was murder of the first degree; otherwise, it was murder of the second degree. And in determining the degree, any evidence tending to show the mental status of the defendant is a proper subject for the consideration of the jury. The fact that defendant was drunk does not render the act less criminal, and in that sense it is not available as an excuse. But there is nothing in this case to exclude it as evidence upon the question as to whether the act was deliberate and premeditated. It was murder, whether premeditated or not. And, as between the two degrees of the offense, there is no presumption or intendment of law in favor of the first. Presumptively every killing is murder. But, so far as the de gree is concerned, no presumption arises from the mere fact of the killing, considered separately and apart from the cir cumstances under which the killing oc

curred. The question is one of fact, to be determined by the jury from the evidence in the case, and is not a matter of legal conclusion.' This instruction was given in connection with others relating to the purpose for which the evidence of defendant's drunkenness was received, and doubtless the court in its charge intended to state the familiar rule which is found in section 22 of the Penal Code, to the effect that the jury might consider such evidence for the purpose of determining whether the defendant was capable, at the time of the homicide, of acting with that peculiar deliberation which is necessary in order to make an unlawful killing murder of the first degree; that is, whether his mental condition was such that he could and did form in his mind a design deliberately and premeditatedly to take the life of deceased. But it must be conceded, I think, that the language chosen was not sufficiently guarded. The use of the word "murder" throughout the instruction, and particularly in the sentence, "it was murder, whether premeditated or not," must have been understood by the jury as intended to apply to the particular case before them, and indirectly as an expression of what the judge believed the evidence to establish. Instructions should not, directly or indirectly, assume or suggest that a defendant is guilty of any degree of crime. People v. Lanagan, 81 Cal. 144, 22 Pac. Rep. 482. And when a defendant claims that the act of killing was done in self-defense, the act should not be spoken of by the judge as a murder.

PATERSON, J., (dissenting.) In my opinion, the seventh instruction was clearly erroneous. If the defendant declined any further struggle immediately prior to the firing of the shot, although he was the assailant, he was justified in shooting the deceased, if he believed upon reasonable ground that he was in danger of receiving great bodily injury. Pen. Code, § 197, subd. 3. The instruction ignores the fact that the defendant may have declined any further struggle, and tells the jury, in effect, that the defendant was not justified in shooting the deceased if he was the assailant, unless he believed that he was in danger of losing his own life. I think that the learned judge of the court below erred also in giving the fourth instruction, and the instruction upon the question of drunkenness. This court granted a rehearing in this case because in the opinion of the majority the petition for a rehearing presented a new point, as to which there were, grave doubts. It is practically admitted in the opinion of the majority affirming the judgment of the court below that the case upon the evi dence is a close one. If, therefore, the instructions are contradictory or confusing, the court should be willing to grant the defendant another trial. There are cases in which the appellate court can say that, although the instructions are somewhat contradictory, yet, taken as a whole, upon all the evidence in the case, it is clear

that no prejudice resulted to the defendant; but in this case the evidence is of such a character, it seems to me, that the infliction of the death penalty, at least, was unjust, and, unless the instructions are clear and fair in all respects, a new trial should be granted. The evidence shows without conflict that the deceased and the defendant were personal friends, and there is nothing to show that they had ever before had any difficulty. Both were drinking heavily, evidently, and were in a maudlin state. The defendant took offense at something the deceased said or did, and persistently annoyed him, and provoked deserved chastisement. The deceased was a much larger and a more powerful man than the defendant. The defendant had a fractured arm. The deceased threw the defendant violently upon the floor three times before the final struggle. After throwing the defendant down the third time, and slapping his face, the deceased took out a pocket-knife, and, holding it in his hand, said to Bruggy, "This is the way we fight in Germany.' There seems to be a conflict as to whether Bruggy had exhibited any weapon before the deceased took out his knife. When the deceased saw the defendant's pistol he ran around the saloon, through the alley, and into the back room of the saloon. The parties met right at the back of the saloon, and the deceased immediately grabbed the defendant by the arms, and pushed him back several feet to the billiard table, and was pushing him over against it, when the fatal shot was fired. What occurred beyond what has been stated, or what, if anything, was said by either party after they met at the rear door of the saloon, and before the shot was fired, does not appear in the evidence. If the defendant did decline further struggle, he certainly was justified in shooting the deceased, if he believed that he was in danger of receiving great bodily harm. The court cannot say, as matter of law, that he did not decline further combat. That was a question peculiarly the prov. ince of the jury to determine, and the law should have been given to the jury upon such an assumption.

(93 Cal. 194)

DAWSON V. SCHLOSS et al. (No. 14,085.) (Supreme Court of California. Feb. 4, 1892.) JUDGMENT AGAINST TWO DEFENDANTS-NEW TRIAL AS TO ONE-MALICIOUS PROSECUTION-EVIDENCE -INSTRUCTIONS-APPEAL.

1. Where two defendants are sued jointly for malicious prosecution, and judgment is rendered against them, but one defendant obtains a new trial, a judgment for a less amount may be rendered against him, while the former judgment remains in force against the other.

2. In an action for a malicious prosecution, defendant cannot contend, on appeal that the evidence does not justify the verdict that defendant prosecuted plaintiff maliciously, and without probable cause, unless these points are specified in the statement on motion for a new trial.

3. Where plaintiff, for the purpose of refreshing the memory of a witness, is permitted to read to him a portion of his testimony on the former trial, and to ask him if he so testified, but the witness does not answer, and the portion read is afterwards stricken out, if error to permit the reading, it is not reversible, when the testimony

read contains nothing which defendant does not admit.

4. In an action for malicious prosecution for perjury, where it appears that the attorney for defendant advised him that there was "probable cause" for believing that plaintiff had perjured himself in a certain suit, defendant's attorney cannot testify as to what plaintiff's attorney said in such suit without showing that plaintiff was present or assented.

5. In an action for malicious prosecution for perjury, where it appears that in a former suit plaintiff verified an answer alleging that he had paid the rent for certain property, and where there is evidence tending to prove that he had good reason to believe, and did believe, that the rent had been paid by him, and that defendant so understood it at the time he commenced the prosecution, it is not error for the court to refuse to charge that, if the rent had not been paid at the time the answer was sworn to, there was probable cause that plaintiff had committed perjury.

6. In an action for malicious prosecution, the erroneous sentence in an instruction to the jury that "if you find, in this case, that malice existed on defendant's part, then the plaintiff would be entitled to recover," is not ground for reversal, where three times before and once after this sentence the court charged that before plaintiff could recover he must prove that the prosecution was both malicious and without probable cause; and especially where the record shows that the instruction was at defendant's request.

Commissioners' decision. Department 1. Appeal from superior court, city and county of San Francisco;, T. H. REARDEN, Judge.

On

Action by George Dawson against Sigmund B. Schloss and Phillip Hinkle. the first trial plaintiff recovered a judgment against both defendants for $5,000. A new trial was granted to Schloss, and a verdict and judgment for $3,000 was rendered against him; from which judgment, and from an order denying his motion for a new trial, he appeals. Affirmed. Olney, Chickering & Thomas, for appellant. H. H. Lowenthal, for respondent.

VANCLIEF, C. Action for malicious prosecution on a charge of perjury in verifying an answer in an action by Schloss and others against Dawson and others. On the first trial plaintiff recovered a judg ment against both defendants for the sum of $5,000 and costs. A new trial was granted to Schloss alone. The new trial resulted in a verdict and judgment against Schloss for $3,000, and Schloss alone appeals from this judgment against him, and from an order denying his motion for a new trial. Both trials were by jury, and the judgment against Hinkle remains in force, but wholly unsatisfied.

1. It is contended by counsel for appellant that no judgment should have been rendered against Schloss on the new trial so long as the original judgment of $5,000 existed against Hinkle; that "while separate suits may be brought against each of joint tort-feasors, yet it is well settled that if the defendants are sued jointly, as here, there can be but one verdict and judgment. Such is not the prevailing rule in the United States. Says Judge Cooley at page 159 of his book on Torts, (2d Ed.:) "The rule laid down by that eminent jurist, KENT, in Livingston v. Bishop, 1 Johns. 290, and which has since been generally followed in this country,

in that the party injured may bring separate suits against the wrong-doers, and proceed to judgment in each, and that no bar arises to any of them until satisfaction is received." See cases cited in note. The same author, on page 160, says: "It is to be observed, in respect to the point above considered, where the bar accrues in favor of some of the wrong-doers by reason of what has been received from or done in respect to one or more others, that the bar arises, not from any particu lar form that the proceeding assumes, but from the fact that the injured party has actually received satisfaction, or what in law is deemed the equivalent. This pas

sage is quoted with implied approval by Mr. Justice MCKINSTRY, in Urton v. Price, 57 Cal. 270. See, also, Tompkins v. Railroad Co., 66 Cal. 164, 4 Pac. Rep. 1165. There is nothing in the California cases cited by counsel for appellant opposed to the above quotations from Judge Cooley. There is no pretense that any part of the judgment against Hinkle has been paid or satisfied, or even that execution has been taken out upon that judgment.

Un

2. In their brief, counsel for appellant make and specify the point that the evidence does not justify the verdict that defendant prosecuted plaintiff maliciously, or without probable cause. Counsel for respondent object to the consideration of this point, for the alleged reason that it is not specified in the statement on motion for new trial; and in my opinion this objection should be sustained. The truth of several propositions of fact are essential to constitute a cause of action for malicious prosecution, which must be alleged in the complaint, and which are alleged in this complaint. Among them are the two propositions that the proscution was malicious, and that it was without probable cause. There is no specification in the statement on motion for new trial that either of these is not justified by the evidence. der the head of “Specifications of particulars in which the evidence is insufficient to justify the verdict," counsel undertake to allege what "the evidence shows, "-which is unnecessary and out of place in the specificatious required by section 659 of the Code of Civil Procdure,-yet do not allege even" that the evidence shows" either of the two propositions to be untrue. Indeed, neither of these propositions is stated or referred to in the so-called "specifications." It is further alleged: "There is no evidence to support the verdict as against the defendant Schloss." But this is not a specification of any particular one of the several facts involved in and affirmed by the verdict. If this is sufficient, it would be sufficient, in any case tried without a jury, to allege merely that there is no evidence to support the findings of fact, even though there may be 20 distinct findings of fact. Edelbuttel v. Durrell, 55 Cal. 277. Of course, the specification is not required to be made in any particular form of words, but, in some form, should distinguish each particular proposition of fact excepted to from all others found by the court, or involved in a general verdict of a jury. Hence it has been held that a

statement that there is no evidence to support a particular finding of fact is a sufficient specification of the particular finding alleged not to be justified by the evidence, (Knott v. Peden, 84 Cal. 300, 24 Pac. Rep. 160;) and such a specification of a particular fact involved in a general verdict would probably be held sufficient. The principal object of requiring these specifications in statements on motions for new trial, and in bills of exceptions, is to abbreviate the statement of evidence by restricting it to such as is relevant and material to prove or disprove the specified fact. By the specifications required, the opposing party and the judge are notified of the exact points of contest, and thereby enabled to determine what evidence should be brought into the statement, and what should be excluded therefrom. Without such specifications the judge could not perform the duty enjoined upon him “to strike out of it [the statement or bill of exceptions] all redundant and useless matter, and to make the statement truly represent the case, (Code Civil Proc. §§ 650, 659;) nor would the opposing party have any means of distinguishing what portions of the evidence would be redundant from that which tends to prove the issue on his part; and the consequence would generally be that all the evidence would be brought into the statement or bill of exceptions, though nine-tenths of it were irrelevant and useless. So important were the required specifications in a statement on motion for new trial regarded by the legislature that it enacted, "If no such specifications be made, the statement shall be disregarded on the hearing of the motion,' (Code Civil Proc. § 659;) and this penalty has been enforced by this court in so many cases that there seems to be no excuse for failure to comply with the Code rule, especially as a compliance with the rule is not difficult in any case; it being much easier to state, in a few lines, each distinct proposition of fact not justified by the evidence, than, as is often done, to cover pages with a restatement of evidence, and of counsels' arguments and inferences therefrom, as to what the evidence shows, and thus obscuring, if not entirely concealing, the specific points to be contested upon the hearing of the motion or on appeal. But should it be conceded that the specifications are sufficient, I think the statement on motion for a new trial contains evidence tending to prove both malice and want of probable cause; and although such evidence, as it appears in the record, may seem to be overbalanced by rebutting evidence, it is nevertheless suffi. cient, under the well-settled rule of this court, to justify the verdict of the jury.

19

Appellant contends that he was advised by counsel that there was probable cause for believing respondent guilty of perjury; that he in good faith acted upon such advice; and, therefore, that he is not responsible, even though there may have been no probable cause. In order to avail himself of this defense, it devolved upon the defendant to prove that, before receiving the advice, he had fairly and fully communicated to his counsel, or at least