58 Cal. 260; Dillon v. Saloude, 68 Cal. 269, 9 Pac. Rep. 162; Gilson v. Robinson, 68 Cal. 543, 10 Pac. Rep. 193; Garfield v. Wilson, 74 Cal. 177, 178, 15 Pac. Rep. 620. And we think that it applies to actions to determine contests concerning the right to patents to mining land. Upon this theory, it was held in Lee Doon v. Tesh, 68 Cal. 43, 6 Pac. Rep. 97, 8 Pac. Rep. 621, that the complaint in such an action must allege that the plaintiff was a citizen; and, as a matter of course, where the party claims under a location made by another, he must show that the location was properly made by a qualified person. The defendants' answer in this case fails to show any right in them to a patent to the tract in controversy. They claim under two locations,-one known as the "Green & Guy Claim," and the other known as the "A. K. Smith & Co. Claim." The answer does not mention either, and does not show that either Green or Guy, or any one from whom they may have purchased, or Smith, was a citizen of the United States. There is nothing definite averred concerning either of the locations, unless what appears at folio 41 be considered such. The requirement that a certain amount of work be done each year is imperative. Morgan v. Tillottson, 73 Cal. 520, 15 Pac. Rep. 88; Jackson v. Roby, 109 U. S. 440, 3 Sup. Ct. Rep. 301; Chambers v. Harrington, 111 U. S. 353, 4 Sup. Ct. Rep. 428. But, beyond a general statement that a great deal of valuable work was done, nothing is averred. The evidence in relation to the claims is meager and unsatisfactory; but it is unnecessary to examine it in detail, because the matters above referred to are sufficient to dispose of the appeal. It is sufficient to say that, in our opinion, there are several particulars in which it clearly fails to make out a case of right in the defendants against the United States. In fact, hardly anything that was required is shown to have been done.

The defendants contend, however, that they were in possession of the ground for a sufficient time to entitle them to a patent without reference to any location; and they rely upon the following provisions of the Revised Statutes: "Sec. 2332. Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state,

*

** evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter." The appellants contend that the evidence does not show that the defendants or their predecessors were in possession of the property for the period prescribed by the above provision; and the respondents reply that possession is found, and that there is no specification attacking the finding. But we do not think that there is any finding of possession of the tract in controversy. The finding is that, for five years prior to 1877, Green and Guy had been in pos

session and working a "hill claim of 1,080 feet in length on the channel under Tunnel ridge, between Chili gulch, on the west, and Old Woman's gulch, on the east," and that transfers of the possession were made through va rious persons to the defendants. Now, aside from any other objection, there is nothing to show that the “1,080 feet in length" was a part of the 7.44 acres in controversy. It is found that it was a part of the 36 acres surveyed for the defendants on their application for a patent. But that might well be so, and yet it not be a part of the smaller piece in controversy. There is nothing in the pleadings or the findings which throws light on this subject. If this piece of 1,080 feet be in fact a part of the tract in controversy, the record should make the fact appear. Similar observations apply to the A. K. Smith & Co. claim, of 600 feet.

But, if the possession were otherwise sufficient, the showing would still be defective, because it is not pleaded or found that the persons whose possession is relied on were citizens of the United States, or had declared their intention to become such. That class is the only one that can acquire mineral land from the government. Rev. St. U.S. § 2319; Lee Doon v. Tesh, supra. The section above quoted provides an additional mode of acquisition, but does not enlarge the class who can acquire. Upon the record before us, we think that none of the parties showed a right to a patent for the tract in controversy; and we therefore advise that the judgment and order appealed from be reversed, and the cause remanded for a new trial.

1. Pen. Code Cal. § 1170, giving defendant, on trial of an indictment, the right to take exception to a decision of the court in disallowing a challenge to a juror for implied bias, or in admitting or rejecting testimony on the trial of a challenge for actual bias, etc., does not authorize an exception to a decision disallowing a challenge for actual bias.

2. On a trial for murder, resulting in a conviction of manslaughter, an erroneous instruction as to malice, not having been prejudicial, is no ground for reversal.

3. On such trial an instruction that, "when the act is proved to have been done by defendant, if it be an act itself unlawful, the law in the first instance presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this presumption," does not require defendant to overcome such presumption by a preponderance of the evidence, and is not erroneous; Pen. Code Cal. § 1105, though not requir ing a preponderance of evidence, does require de

fendant to prove circumstances in justification of the homicide.

Commissioners' decision. Department 2. Appeal from superior court, San Luis Obispo county; V. A. GREGG, Judge.

Pen. Code Cal. § 1170, referred to in the opinion, provides that, "on the trial of an indictment or information, exceptions may be taken by the defendant to a decision of the court (1) in disallowing a challenge to the panel of the jury, or to an individual juror, for implied bias; (2) in admitting or rejecting testimony on the trial of a challenge to a juror for actual bias; (3) in admitting or rejecting testimony, or in deciding any question of law not a matter of discretion, or in charging or instructing the jury upon the law on the trial of the issue."

Ernest Graves and Wm. Graves, for appellant. Geo. A. Johnson, Atty. Gen., for the people.

FOOTE, C. The defendant was convicted of the crime of manslaughter, under an information charging him with murder. From the judgment and an order denying a new trial he appeals. His first point is that the court erred in not allowing his challenges as to three persons, sworn to answer questions as jurors, on the ground of actual bias. There was no exception taken to the decision of the court in the admission or rejection of testimony upon the trial of the challenges. It has been often held by the appellate court that no exception can be taken to a decision disallowing a challenge to a juror for actual bias; that section 1170 of the Penal Code does not authorize it. People v. Riley, 65 Cal. 108, 3 Pac. Rep. 413, and cases there cited.

It is also urged that the court erred in giving, of its own motion, a part of instruction 8, which is: "When the act is proved to have been done by the defendant, if it be an act itself unlawful, the law in the first instance presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this legal and natural presumption." And also in giving in the same way this part of instruction 9: "Malice is implied by law from any deliberate, cruel act, committed by one person against another, however sudden; as when a man kills another suddenly, without any considerable provocation, the law implies malice, and, unless overcome by preponderating proof the other way, it must be held murder. If malice be proved to the satisfaction of the jury, beyond all reasonable doubt, to have existed a short time before the crime was committed, if any there was, it will be presumed to have continued down to the actual commission, unless modifying circumstances are shown to have taken place, or the defendant is in some other way proved to have acted under fresh controlling motives." As to the last mentioned instruction, it may be said that, even conceding it to have been erroneous under the rule laid down in People v. Bushton, 80 Cal. 160, 22 Pac. Rep. 127,549, we do not per

ceive that the defendant suffered any injury. He was not convicted of murder, where the ingredient of malice is necessary to be proven, but was convicted of manslaughter. The instruction could not have prejudiced him, as he was acquitted of malice in the killing. People v. O'Neal, 67 Cal. 379, 7 Pac. Rep. 790, and case cited.

The first-mentioned instruction, it is urged, shifts the burden of proving that the killing was justifiable on the defendant, after it is proved that the killing charged was done by him, which is in itself unlawful. The instruction does undoubtedly require that the defendant shall remove by some kind of evidence in the case (whether appearing in his own or the people's evidence, is not important) the presumption which arises from his having killed the deceased, and to that extent the law does shift the burden of proof on him; but the instruction does not declare that it shall be incumbent on him to remove the presumption by a preponderance of evidence, which was the vice found in the instrùction declared erroneous in the Bushton case, supra. As was said in that case, page 164: "The section [1105, Pen. Code.] casts upon the defendant the burden of proving circumstances of mitigation, or that justify or excuse the commission of the homicide. This does not mean that he must prove such circumstances by a preponderance of the evidence, but that the presumption that the killing was felonious arises from the mere proof by the prosecution of the homicide, and the burden of proving circumstances of mitigation, etc., is thereby cast upon him. He is only bound under this rule to produce such evidence as will create in the minds of the jury a reasonable doubt of his guilt of the offense charged."

An unlawful act is presumed to have been done with unlawful intent. Subdivision 2, § 1963, Code Civil Proc. But such intent may be controverted by other evidence, and in a case of this sort, as we have seen, the intent may be rebutted by any evidence which may raise in the minds of the jury a reasonable doubt of its existence, but such rebuttal it is incumbent on the defendant to make somewhere in the evidence. The jury were directed in instruction 5, given on the part of the court, that they could not convict the defendant of manslaughter unless they were convinced beyond a reasonable doubt that the deceased was killed, that the killing was unlawful, and that it was done by the defendant. The instruction complained of did not conflict with this fifth instruction, but simply stated in addition that, the killing by the defendant once proved, there must appear from the evidence something to rebut the presumption that it was unlawful, and still left the fifth instruction unimpaired as to the requirement that all the concomitants of manslaughter must be proved beyond a reasonable doubt. In fact, in various other portions of the instructions, the necessity that the defendant should not be found guilty under

the information, unless the jury were satisfied from the evidence beyond all reasonable doubt that all the elements necessary to constitute his guilt of such crime existed, was fully and forcibly expressed. As to the point that the evidence shows without conflict that the defendant acted in self-defense, and was innocent of all crime, and was improperly convicted, it is simply to be said that such a state of facts does not so clearly appear as to warrant us in declaring that the jury convicted the defendant against all the evidence. What was said, what appearance the witnesses presented, and how they impressed the jury by their acts and language, the jury were in a better position to appreciate than an appellate court can be, and we do not think their verdict on that account should be disturbed, No prejudicial error appearing, we advise that the judgment and order be affirmed.

We concur: BELCHER, C. C.; HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(9 Mont. 349)

PIERCE v. TEN EYCK.

(Supreme Court of Montana. Feb. 13, 1890.) PARTNERSHIP-DISSOLUTION BY PURCHASE OF IN

TEREST-ACCOUNTING.

1. Though a partner has purchased the interest of his copartner in the partnership and its assets, he can recover from the latter one-half the amount of a private debt due him which had been collected by the copartner, and mixed with the firm assets.

2. A purchase by a partner of his copartner's interest for a sum certain without any reservation of demands, relinquishes a claim for a sum paid in by the purchaser in excess of his share, which it had been agreed should be first deducted from the assets on dissolution; the agreement not contemplating a dissolution by purchase by one of the partners of the other's interest.

3. Though the purchasing partner was misled by the way the retiring partner kept the books, and by the latter's failure to give him proper credits, and paid a larger sum than he would have done if he had known the condition of the books, he cannot recover the excess; he having been negligent in not examining the books.

4. The partner purchasing the interest of the retiring partner for a fixed sum cannot recover his portion of a sum which it is alleged the firm was to be credited with on account of the absence of the latter for a few months, the credit never having been made or looked after by plaintiff.

Appeal from district court, Jefferson county; N. W. McCONNELL, Judge.

McConnell & Clayberg, for appellant. Massena Bullard, Cowan & Parker, and John W. Eddy, for respondent.

BLAKE, C. J. Pierce brought this action to recover certain amounts which he alleged had been collected by Ten Eyck when they were copartners, and not entered upon the books of the firm, or accounted for. A referee was appointed to take the testimony, and his findings were adopted by the court. It appears that the copartnership continued

from the 15th day of September, 1882, until the 18th day of March, 1886, wher: Pierce "purchased the said defendant's interest in said partnership and in the property, and resources and assets belonging thereto, paying the said defendant for his said interest the sum of $4,000." The judgment consists of three items, which will be considered in their order, in the report of the referee.

One Hubble was indebted to Pierce, personally, before the formation of the copartnership, in the sum of $422.50, which was received by Ten Eyck in the year 1883, and not placed to the credit of Pierce upon the books. The entries regarding this amount indicate clearly that it was not appropriated by the appellant to his individual use, but became a part of the assets of the firm. The account of Hubble shows that there has been placed to his credit the sum of $300, which is followed by the remark: "Debtor to Pierce." Hubble was in the employ of the firm, and one Locker, through a cattle trade with the parties, paid a debt to Hubble, who had another credit in the sum of $122.50. While the books are not accurate in these matters, they do not establish the right of Pierce to the whole amount. This sum of $422.50 did not lawfully constitute any part of the property of the firm, and the purchase by Pierce of the interest of Ten Eyck did not embrace or settle the account. But Ten Eyck, as a copartner, actually had the beneit of one-half of the amount, which had been credited to Hubble; and the respondent should have a judgment therefor.

Pierce contributed to the firm the sum of $387.52 in excess of his share; and it was agreed that upon the dissolution of the copartnership this amount should be first deducted from the assets, and that the remainder should be divided equally between the parties. This is the second item of the account for which the respondent recovered judgment. There was no contract in writing which defines the rights of the copartners, and the evils which generally ensue under these conditions attend the parties. The sale by Ten Eyck to Pierce of his entire interest in the property of the firm worked a dissolution. Rogers v. Nichols, 20 Tex. 719. But we are of the opinion that the agreement did not contemplate a termination of the partnership in this way, and that Pierce, by his new bargain with Ten Eyck, which was a purchase without any reservation of demands, relinquished all claims of this class.

The respondent testified before the referee that he feared there was something wrong; that he did not believe the books were properly kept; and that he had discovered some mistakes. The errors of which he chiefly complains are the omissions of Ten Eyck, who was the book-keeper, to make entries pertaining to the business. Pierce could have investigated thoroughly the books, with the aid of experts, if necessary, and ascertained every fact therein concerning the affairs of the firm. Instead of pursuing the course

which was dictated by wisdom, when his mind was swayed by suspicion of the conduct of Ten Eyck, he purchased voluntarily the interest of his partner. The referee finds "that the books were in a condition to mislead the plaintiff, and that, by reason of defendant's failure to give to plaintiff his proper credits, plaintiff was misled, and plaintiff did pay a greater sum for defendant's interest than he would have paid if he had known the true condition of the books." This comprises a fair statement of the excuse which has been pleaded by the respondent to justify his negligence in the exercise of ordinary diligence. We confess that we cannot perceive any grounds on which Pierce is entitled to recover the amount of this excess from Ten Eyck. Mr. Justice FIELD, in Slaughter's Adm'r v. Gerson, 13 Wall. 383, lays down the law in one sentence: "A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness."

Judgment was entered against the appellant for the sum of $75 through the following finding of the referee: "That it was agreed between plaintiff and defendant that during an absence of defendant, while out of the territory for three months, between December, 1883, and April, 1884, the firm should be credited with $50 per month to compensate for defendant's loss of time; that no such credit was ever given." This demand is governed by the views which have been expressed in respect to the preceding item. When Ten Eyck was absent, it was the duty of the person in charge of the books, under the direct command of Pierce, to put in black and white the figures referring to this agreement. We cannot understand why the appellant is to be held responsible for this omission, or why the respondent did not look after the business in which he was an equal partner. The claim must meet the fate of its | predecessor. It is therefore adjudged that the judgment be reversed, with costs, and that the cause be remanded, with directions to the court below to enter a judgment for the plaintiff for the sum of $211.25, and in- | terest thereon from the 23d day of February, A. D. 1888.

HARWOOD and DE WITT, JJ., concur. (18 Or. 540)

STATE . AH LEE. (Supreme Court of Oregon. March 4, 1890.) PERJURY-INDICTMENT-TIME-HEARSAY EVI

DENCE.

1. An indictment which contains every allegation mentioned, in the form given in the appendix to the Criminal Code for such crime, is sufficient.

2. In the trial of a criminal case, it is not competent for the prosecution to introduce hearsay evidence; and, when it becomes material to prove the time when a Chinese row occurred in the city of Portland, it was not competent for the prosecution to ask a car-driver, who was shown to have been in a distant part of the city at the time, if he heard of the row in Chinatown on that trip, nor can he be permitted to state where he was when he first heard of the row.

8. "Hearsay," in its legal sense, denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other persons.

4. In prosecutions for perjury, the commonlaw rule seems to be that the time when the crime was committed must be truly alleged in the indictment, and proved as laid.

5. Whether section 1274 has changed that rule, quære?

(Syllabus by the Court.)

Appeal from district court, Multnomah county; L. B. STEARNS, Judge.

The defendant, Ah Lee, was convicted of the crime of perjury, from which judgment he has appealed. The indictment, after averring that a criminal charge was pending before the police judge of the city of Portland against one Pon Long, wherein this defendant was duly called and sworn as a witness, and that certain questions became and were material, which are fully set out in the indictment, proceeds as follows: "The said Ah Jo, so sworn as aforesaid, then and there, on said hearing, falsely, corruptly, willfully, knowingly, and maliciously, before said court and magistrate, did depose and say, among other things, in substance and to the effect, the following, that is to say: That the said Pon Long was engaged in the row which took place in Chinatown on the 2d day of December, 1888, and that the said Pon Long was present, on and in the neighborhood of Second and Alder streets, county of Multnomah, and state of Oregon, at the time that one Ah Lung was shot, and that Pon Long had assaulted the said Ah Lung with a revolver pistol charged and loaded with gun-powder and leaden balls, and that the said Pon Long inflicted a dangerous wound upon the said Ah Lung; whereas, in truth and in fact, the said Pon Long was not engaged in a row which took place in Chinatown on the second day of December, A. D. 1888; and whereas, in truth, the said Pon Long was not present on Second and Alder streets, nor was he in the neighborhood of Second and Alder streets. in said city of Portland, county and state aforesaid, at the time said Ah Lung was shot; and whereas, in truth and in fact, the said Pon Long had not assaulted the said Ah Lung with a revolver pistol charged and loaded with gun-powder and leaden ball, nor had he assaulted him at all, or in any manner; and whereas, in truth and in fact, the said Pon Long did not inflict a dangerous or any wound upon said Ah Lung,—all of which facts the said Ah Jo then and there well knew; and the said false statements made so upon oath, by the said Ah Jo, were material to the questions and matters then and there being inquired into before the said magistrate; and the said Ah Jo did then and there, and thereby, commit willful and corrupt perjury." The defendant was indicted by the name of Ah Jo. The other facts appear in the opinion.

W. H. Adams, for appellant. H. E. McGinn, Dist. Atty., for the State.

STRAHAN, J., (after stating the facts as ubove.) Upon the argument here, three points were insisted upon by the appellant's counsel: First, error in the court below in overruling the demurrer to the indictment; second, error in admitting hearsay evidence; third, a variance between the evidence and the indictment.

1. The objection to the indictment will first be considered. It is, that it is not alleged in the indictment that the defendant knew that the testimony given by him was false. Much of the learning found in the books in reference to the sufficiency of an indictment for the crime of perjury, and the particularity requisite in such cases, has been rendered inapplicable by the provisions of the Code of Criminal Procedure. Section 1270, Hill's Code, provides: "The manner of stating the act constituting the crime, as set forth in the appendix to this Code, is sufficient in all cases where the forms there given are applicable; and, in other cases, forms may be used as nearly similar as the nature of the case will permit." It has been several times held by this court that this appendix was a part of the Code, and that the forms of indictments therein set forth were sufficient in all cases where they are applicable, (State v. Dodson, 4 Or. 64; State v. Spencer, 6 Or. 152; State v. Brown, 7 Or. 186; State v. Lee Yan Yan, 10 Or. 365;) and it must not be overlooked that State v. Spencer, supra, was upon a charge of perjury. All the forms of indictments given in the appendix referred to are very concise and brief. The substance of the one for perjury is as follows: "On his examination as a witness duly sworn to testify the truth in the trial of an action at law, in the court of between C. D., plaintiff, and E. F., defendant, which court had authority to administer said oath, he testified falsely that, [stating the facts alleged to be false;]the matters so testified to being material, and the testimony being willfully false." It will be observed that this form does not require the averment used in common-law indictments immediately succeeding the assignments of perjury, to-wit: "All which statements made by the said J. S., the said J. S. then and there well knew to be false." Whart. Prec. Ind. p. 577. It is true the plead er undertook to follow the common-law form, and probably intended to use the exact phraseology contained in the precedent, but by oversight varied the language thus: "All of which facts the said Ah Jo then and there well knew." This averment, or any equivalent for it, might have been omitted entirely, and still the indictment would have been sufficient, under our Code. It is not intended by this to suggest that knowledge of the falsity of the matters sworn to is eliminated from this crine. If such knowledge was a necessary ingredient of the crime before the enactment of the Code, it is so still. The Code has wrought no change in the substance of the crime. It has only abolished useless forms. Under the Code, this is not a matter

of averment, but one of proof. The indictment is therefore sufficient.

2. The next assignment of error arises on the ruling of the court in the admission of evidence. One W. H. Adams was called as a witness on behalf of the state, and testified, in substance, that on the 2d day of December last he was driving a street-car on Third street; that his regular drive was on the line running up Morrison street to Ninth, up Ninth to Montgomery, and up Montgomery; and that about 1 o'clock, in the changes that were made for dinner, he drove the car out Third street; and that the time of leaving Carruther's street, in the upper end of the city, was 25 minutes past 1, and that he left there within a minute or two of that time. That, on that trip down, Pon Long got into the car at Carruther's street, with two other Chinamen, and rode with him, on his car, down to Third and Morrison streets; that he arrived at Morrison street 35 minutes past 1; and that his time of getting there did not vary more than two minutes from that time. The district attorney then asked him if he heard of the row in Chinatown on that trip, to which question an exception was taken, and he answered that he did. The district attorney then asked this witness to state where he was when he first heard of the row, to which an exception was also taken, and he answered: "About Market street. " The object of this evidence, manifestly, was to prove that Pon Long could not have been present at the time Ah Lung was shot; thus negativing Ah Lee's evidence given before the magistrate. If this evidence was competent, it was of the highest importance. It tended to prove that Pon Long could not have been present at the row, and therefore did not shoot Ah Lung. That was the very fact which the state was bound to prove to secure Ah Lee's conviction. But it is objected that this report, which the car-driver heard as he came down the street, was pot competent, because it was hearsay. "The term 'hearsay,'" says Mr. Greenleaf, (section 99,) "is used with reference to that which is written, as well as to that which is spoken; and, in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person." Nothing can be plainer than that what this car-driver heard about the China row falls exactly within this definition. He had no knowledge of the fact himself. He was testifying to a fact that some person, not a party to this action, communicated to him. The person who gave him that information would not have been allowed to testify to the fact that he did communicate it, had he been present in court. The fact would have been res inter alios acta, and inadmissible for that reason. How, then, can it be claimed to be competent where the statement is removed still one step further from the person who first repeated it. No authority has been cited to support such a rule as is