plant there; that said company owns all the real estate within said town or upon which it stands, and that the town has a population of approximately two thousand five hundred, all of whom are employees, or members of the families of employees, of said company.

It appears from the record that the company maintains a number of boarding, lodging and bunk houses, in which many of its employees are housed and boarded, and also a number of private residences for use by employees having families. One of the places so established and maintained by the company is the "Hotel Seville," in which a number of employees, principally those of the Spanish and Mexican races, occupied apartments.

It seems that the company, from the beginning of the time at which it established its enterprise at Westwood, laudably attempted to maintain the town as a peaceful and law-abiding community and to encourage and promote habits of sobriety and industry among its employees, and to that end adopted and promulgated a rule prohibiting gambling and the use of intoxicating liquors within the town limits among and by such employees. To enforce said rule, it was, quite naturally, deemed essential to police the town, and to some extent this was done, and thus a necessary and reasonable surveillance over the employees maintained.

The defendant had been commissioned by the company to discharge the duties of a special police officer, and, to vest him with authority to make arrests and otherwise enforce the law and the rules and regulations of the company within the limits of the town of Westwood, he was appointed a deputy sheriff by the sheriff of Lassen County. He had been given instructions by the officers of the lumber company to report to them any gambling among the employees of the company within the town which he might discover, and, furthermore, was instructed that, in the event he had reason to believe that gambling was being carried on in any room of any of the lodging and bunk houses, to break open the door of such room, if necessary, so that he might be able to identify and report to the company the names of the employees thus engaged in violating the rule against that practice.

The immediate facts and circumstances of the shooting are correctly told in the brief of counsel for the defendant as follows:

"About midnight, between the 13th and 14th of March, 1915, defendant, being on duty, took with him one Robert Weber, who was in the employ of the company and acting as night watch at the time, and started out to see if any of the men were gambling in any of the company's lodging or bunk houses. At about half an hour after midnight, in the morning of March 14th, they came to a lodging-house known as the Hotel Seville, and seeing from the outside that there was light in one of the rooms on the first floor of the building, they went inside, and by listening at the door of room No. 8, they heard what they believed to be the noise of gambling from within, and, finding the door locked, defendant determined to break it open. With this in view, according to his statement, he took his pistol-a Colt army special, double action revolver of 38-caliber-from his hip pocket and placed it in his left hand, so that he might take the door knob in his right hand and put his right shoulder against the door. The gun was not cocked-of this he is very positive-but the very instant the door was broken open the gun was discharged. This is shown by the evidence of five witnesses for the prosecution who were in the room at the time.

"By the evidence of the prosecution it is shown that there were, at the time, in the room, nine persons, all of them being Spaniards. They were sitting around a table, gambling. One sat in a chair behind the table facing the door; three sat on a bed on the left-hand side of the room and two on a chair, which was turned down, between the table and the door, so that the one man could sit on the legs of the chair, and the other on the back of the chair-the top of the chair back resting on the bed, which was on the right-hand side of the room as you go in.

"The man sitting on the legs of the chair, with his back to the door, was Francisco Escrivano, the one who was killed. The evidence shows that he was shot through the body-the bullet having entered a few inches above the crest of the hip and about half an inch to the left of the spine; the point of exit being about one and one-half inches above the navel and half an inch to the left of the middle line of the front of the body; the bullet having taken a horizontal course through the body, perforating the stomach and the bowels in several places.

"Defendant testified that he first thought, when he heard the discharge of the gun, that someone in the room had shot him, but he soon realized that he was not hit and that Escrivano was wounded. In any case, it is clear from the evidence that Escrivano immediately made an outcry in Spanish, and got up and moved about in such a way as to lead the witnesses to think at first that he was wounded in his leg. Almost immediately upon discovering that the man was wounded, and believing the wound to be in the leg, and therefore not necessarily serious, Sidwell gave his gun to Weber, told him to keep all the men in the room, and ran upstairs in the building to the clerk's room, where there was a telephone, and called up a nurse at the hospital, to have the doctor come at once to the Seville, that a man was shot in the leg. He then went back downstairs, by which time the man's friends had opened his clothing and discovered that he was shot through the body. When the defendant returned to the room and found this state of facts and found the man on, or partly on, his feet, he told the men to lay him on one of the beds; that he was too badly hurt to be allowed to stand up and walk around; and then immediately ran upstairs again and called up the stable to have a conveyance sent at once, to use as an ambulance, to take the man to the hospital. After coming downstairs the second time Sidwell became impatient because the doctor did not arrive promptly and, after a few minutes, started to the hospital to see what was delaying him. He met the doctor near the hospital and returned with him to the Seville. Escrivano was placed in a wagon-on a cotbut, the road being rough and causing him much pain, the cot was taken from the wagon and he was carried to the hospital by hand, the defendant assisting him. The doctor gave such attention to the case as was possible, but Escrivano died about 8 o'clock on Monday evening, March 15th."

The above embraces a synoptical statement of all the facts brought to the attention of the jury.

The defendant complains: 1. That the evidence is insufficient to support the verdict; 2. That the court erred to his prejudice by its rulings excluding certain testimony; 3. That it likewise erred in its refusal to adopt and read to the jury certain instructions proposed by him; 4. That prejudicial error was committed in the order denying him a new trial on

the ground of the alleged misconduct of the jury, whereby a fair and due consideration of the case was prevented.

While it instructed the jury that the Red River Lumber Company, being the owner of the Hotel Seville, had the right to make a rule that no gambling would be permitted in any room or part of said hotel, and the further right to "direct and instruct the defendant to use all lawful means for the purpose of detecting persons engaged in gambling" in any of the rooms of said hotel, the court refused to instruct, as requested by the defendant, that the said company had the right to direct and authorize the accused to break into such rooms or houses, if necessary, for the purpose of ascertaining whether the rule of the company against gambling was being violated, and that the defendant, when breaking into the room of the deceased on the occasion of the shooting, "was actually within his legal rights." To the contrary, the court told the jury that the breaking into the room of the deceased by the defendant "was a wrong."

The court refused to permit the defendant to show that the penalty of violating the rule against gambling would be the discharge of those found engaged therein from the employment of the company, and, furthermore, disallowed testimony offered by the defense which would have shown or tended to show that the employees of the company expressed dissatisfaction with the company's inhibition against gambling, and that certain of them, not named and perhaps not individually known, had threatened to resist by violent means any attempt of the defendant or any special officer of the company to enter their rooms for the purpose of detecting them in the act of violating said rule.

"Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds: 1. Voluntary-upon a sudden quarrel or heat of passion. 2. Involuntary-in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (Pen. Code, sec. 192.)

Thus it will be observed that, while involuntary manslaughter may be committed in two different ways, the legislature has not recognized, as between those two ways, any distinction in the degree of turpitude characterizing that crime. In other words, the crime is that of involuntary manslaughter,

29 Cal. App.-2

whether the killing be committed in the execution of an unlawful act, etc., or in the execution of a lawful act, etc., or where death, not willfully or intentionally produced, is, nevertheless, caused by the gross or culpable negligence of the defendant-negligence which, in degree, goes so far beyond that negligence merely which suffices to impose a civil liability for damages as to constitute it criminal negligence for which the party guilty of it may be held criminally liable.

Now, conceding that the court erred in instructing the jury that the defendant committed a wrong by breaking open the door of the room in which the deceased and others were supposed to be gambling, or, in other words, that the defendant had no legal right to break into a room or house of the company for the purpose of apprehending its employees in the act of violating the rule against gambling; conceding, further, that the court should have allowed the defendant to prove that the employees were dissatisfied with said rule and had threatened to do violent injury to the defendant or any other employee who might undertake to detect them in the act of gambling in the houses or rooms of the company, and, further, assuming that the court erred in not permitting the defendant to show what would be the result to the employees if found in the act of gambling contrary to said rule; conceding, furthermore, what is true as a legal proposition, that the defendant had the right to carry a deadly weapon upon his person and the right, in view of the threats above referred to and which had previously been communicated to him, to carry such weapon in his hand at the time he attempted to ascertain whether gambling was going on in the room in which the fatal shooting occurred-conceding, we say, the legal integrity of all the foregoing propositions, still one of the issues involved in the charge against the defendant was whether, in the handling of the weapon, at the time of the fatal shooting, he was culpably negligent, and, if so, whether such negligence was the cause of the death of the deceased, and, in view of the conclusion of the jury that the accused was guilty of involuntary manslaughter, which crime involves no element of intent, but proceeds solely from a degree of negligence which makes the act of killing unlawful, it cannot be conceived or justly be declared that he suffered any prejudice by reason of the alleged errors complained of; for, by the verdict, he was given the full benefit of whatever force there might have been