ter diverted by the Hyde ditch is concerned, | dence as to who had the control and manthat the plaintiff's original appropriation agement of the Lakeside ditch is inconsisof the water was prior to that of the de tent with its ruling upon the same subject fendants. There is some evidence tending when evidence was offered in behalf of the to show that the Hyde ditch was enlarged defendants. We think the court erred in about the year 1882, and its carrying ca- excluding the latter. pacity greatly increased; but the defendants are entitled to a finding as to the quantity of water carried by their ditch during its uninterrupted use by them prior to 1882. It is clear that the ditch carried away an appreciable quantity of water. How much-what quantity-we do not pretend to say. It is for the trial court to determine that matter.

claim is so clearly unsupported by the evi- apart, and the value of both of them was dence as to justify us in reversing it. The less than $5,000. Prior to his death the detestimony seems to be entirely consistent ceased resided with his wife on the 80-acre with the view that from 1876 to 1884 the tract, and afterwards the widow continoriginal, unenlarged Hyde ditch diverted ued to reside thereon. No homestead was no appreciable quantity of water, except ever selected by either husband or wife durwhen the stream was high and water ing the life-time of deceased. In due time abundant. As to the offer of the defend- the widow presented to the court having ants to show that other persons, not par- jurisdiction of the estate a petition asking ties to the action, had taken out water to have both tracts set apart to her as a higher up the stream by means of ditches homestead, under the provisions of section constructed later than any diversion by 1465 of the Code of Civil Procedure. The plaintiff or themselves, and that such more application was opposed by nine relatives recent diversions of water were the real and heirs at law of deceased, on the grounds cause of the injury to plaintiff, I think the-First, that the petition did not show that ruling of the court excluding the testimony any homestead was ever selected, designatwas correct in the present state of the ed or recorded during the life-time of depleadings. To make such testimony mate- ceased; and, second, that the petition did rial, defendants should set up in their an- not show that there were any minor chilswer the facts showing the necessity of dren of the petitioner or of the deceased. making such third persons parties to the The court made an order setting apart as action in order to a complete determina- a homestead to the petitioner the 80-acre tion of the rights of all in the waters of tract on which she resided, and refused to the stream. Upon a proper showing of set apart to her the other tract. Both parthe facts-which I think should be allowed ties have appealed from the order. by amendment, if requested-the court might direct other subsequent appropriators to be brought in. Differing in these particulars from the views expressed in the opinion of the court, I nevertheless concur in the judgment upon the ground that there should have been a more specific finding of the exact quantity of water, measured by some definite standard, (miner's inch, for example,) appropriated by plaintiff, and that the decree should have been equally specific in its injunction.

I concur: THORNTON, J.

WORKS, J. I concur in the judgment and In the views expressed by Chief Justice BEATTY.

(80 Cal. 71)

In re ARMSTRONG'S ESTATE. (No. 12,969.) (Supreme Court of California. Aug. 2, 1889.)

HOMESTEADS.

1. Code Civil Proc. Cal. § 1465, authorizing a court to set apart for the benefit of the surviving wife or husband the homestead already selected, if any, or, if none, to designate a homestead for the use of the "surviving husband or wife and the minor children," when construed with section 1468, which provides that a homestead set apart shall be the property of the surviving wife or husband where there is no minor child, entitles a widow to such homestead, though her husband died child

less.

.

It is urged on behalf of the opposing heirs that, since the amendment of section 1465 in 1880, the court has had no power, where no homestead was selected during the life-time of the decedent, to set apart a homestead to a surviving husband or wife, unless there were minor children. The section as amended reads as follows: "Upon the return of the inventory the court may, on its own motion, or on petition therefor, set apart for the use of the surviving husband or wife the homestead selected, designated, and recorded. If none has been selected, the court must select, designate and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children," etc. It is claimed that the words "and the minor children" limit the power of the court so that it can make no order unless there are such children. But we think it clear that the words have no such meaning or effect. The sentence means only that a homestead is to be set apart for the use of the surviving husband or wife and the minor children when there are minor children, and is not to be construed as limiting the power of the court to set apart a home stead for the use of the surviving husband or wife, when there are no such children. That this is so is made evident by section 1468 of the same Code, which provides that

2. Only such land as could have been selected" when property is set apart for the use of during the marriage will be assigned by the court, and therefore the widow is not entitled to a tract 50 miles distant from that on which she and her husband resided, though the united value of the tracts is less than $5,000.

Commissioners' decision. In bank. Appeal from superior court, Tulare county; WILLIAM W. CROSS, Judge.

Justin Jacobs and J. A. Burns, for widow. Lambertson & Taylor, for heirs.

the family, in accordance with the provisions of this chapter, if the decedent left a widow or surviving husband, and no minor child, such property is the property of the widow or surviving husband." There was no error, therefore, in the ruling complained of by the heirs.

As to the ruling complained of by the widow. A homestead consists of a dwelling-house in which the claimant resides, and the land on which the same is situatBELCHER, C. C. The deceased left survived. Civil Code, § 1237. In Re Noah, 73 Cal. ing him a widow, Armilda Armstrong, but 592, 15 Pac. Rep. 290, it is said: "It may be no children. His estate was all communi- conceded that the real property set apart ty property, and consisted of certain personal property and two tracts of land, one containing 80 and the other 160 acres. These tracts were situated about 50 miles

as a homestead to the surviving husband or wife, by order of the court, need not be actually occupied at the time when the or der is made. But it would seem that it

must be property which could have been | Article 6, § 11, Code Civil Proc., provides
selected as a homestead during the contin- that justices' courts shall have jurisdiction
uance of the marriage." Now, as the two "in actions for a fine, penalty, or forfeiture
tracts of land which the widow asked to not amounting to $300, given by statute,
have set apart to her were separated one or the ordinance of an incorporated city
from the other by a distance of some 50 and county, city or town, where no issue
miles, it is evident that they could not is raised by the answer involving the legal-
both have been selected as a homestead ity of any tax, impost, assessment, toll, or
prior to the death of the decedent. If sep- municipal_fine." Code Civil Proc. § 112,
arate parcels of land are selected as a home- subd. 4. From this it will be perceived
stead, and such a selection may perhaps be that the justices' courts have jurisdiction
made, they must at least be so near to- of all penalties "given by statute" which
gether that they can be occupied and used are under $300, whether the legality of the
for the purposes of the homestead; and in penalty is involved or not; but that, in case
this respect there is no difference between of "municipal fines," they have no jurisdic-
a homestead set apart by the court and tion if the legality is denied by the answer.
one selected under the homestead law. This is a case of a penalty or forfeiture
We conclude, therefore, that the rulings of "given by statute," and is not a “munici-
the court were proper, and that the order pal fine," or a tax, impost, toll, or assess-
appealed from should be affirmed, but with- ment, within the meaning of section 5 of
out costs to either side.
article 6 of the constitution. Consequently
the jurisdiction does not trench upon that
of the superior courts. The question, there-
fore, which the counsel present, is one which
may be determined by the justice's court,
and prohibition cannot issue. We therefore
advise that the proceedings be dismissed.

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

PER CURIAM. For the reasons given in the foregoing opinion the order appealed from is affirmed, without costs to either side.

(80 Cal. 40)

In re THOMAS et al. (No. 13,016.) (Supreme Court of California. July 31, 1889.)

JUSTICES OF THE PEACE JurisdicTION.

A penalty imposed by statute for transacting an insurance business without obtaining a certificate of authority to do so from the insurance commissioner is recoverable before a justice, under Code Civil Proc. Cal. § 112, giving justices jurisdiction of actions for penalties less than $300, given by statute or by municipal ordinance, where no issue is made as to the legality of a "municipal fine, tax, assessment, or toll, as such a penalty does not come within the exception mentioned; and the jurisdiction thus given is authorized by Const. art. 6, $11, limiting powers of justices to cases not with in the jurisdiction of courts of record.

We concur: BELCHER, C. C.; GIBSON, C.
PER CURIAM. For the reasons given in
the foregoing opinion, the writ is denied
and the proceedings dismissed.

(80 Cal. 41)
PEOPLE V. MIZE et al. (No. 20,521.)
(Supreme Court of California. July 31, 1889.)
ASSAULT WITH INTENT TO KILL

1. Pen. Code Cal. § 217, provides that "every per-
son who assaults another with intent to commit
murder is punishable by imprisonment in the state-
prison not less than one nor more than fourteen
years." Defendants were tried for assault with
intent to murder, and the court instructed the
jury that, "if the testimony showed that, had the
prosecuting witness been killed, one of the de-
fendants would have been guilty of murder, then
jus-that one should be convicted." Held, that this
was error, as in the crime of attempt to murder the
intent is an essential ingredient, and must be
proved.

Commissioners' decision. In bank. Application to prohibit J. D. Page, a tice of San Francisco, from entertaining an action by the commissioner of insurance against a relief association, to recover a penalty for unlawfully transacting business. C. E. K. Royce, for petitioners. Atty. Gen. Geo. A. Johnson and T. C. Coogan, for respondent.

2. In such case the question of intent is one of fact, and a charge which, in effect, withdraws that question from the consideration of the jury, is error.

In bank. Appeal from superior court, Sonoma county; JOHN G. PRESSLEY, Judge. The defendants, Fred Mize and John Mize, were tried on an information charging them with an assault with intent to murder one Henry Coffey. The court charged the jury that if the testimony showed that the crime would have been murder, in case of the death of Coffey from the assault, then they must find a verdict of guilty. A verdict of guilty was found, and defendants appeal.

HAYNE, C. This is an application for a writ of prohibition to the justice's court of San Francisco, to prohibit it from proceeding with the trial of an action now pending before it. The action was brought to recover the sum of $200 for a forfeiture alleged to have accrued by reason of the issuance of a certificate of relief without having obtained a certificate of authority from the insurance commissioner of the state, as prescribed by section 596 of the Political Code. The question which counsel have argued is whether such certificate of authority is required from an organization like the one here. But we think it clear The court instructed the that the justice's court has jurisdiction of jury, among other things, as follows. the action. The constitution provides that" Gentlemen of the jury, these defendants the legislature shall “fix by law the pow- are charged before you by this information ers, duties, and responsibilities of justices with making an assault upon Henry Coffey, of the peace: provided such powers shall with intent to murder the said Coffey. not in any case trench upon the jurisdic- They cannot be convicted of an assault to tion of the several courts of record," etc. commit murder unless the evidence shows

R. W. Swain and John A. Barnham, for appellants. Geo. A. Johnson, Atty. Gen. for the People.

PATERSON, J.

beyond a reasonable doubt that, had the | to commit murder, a positive intent to murprosecuting witness, Henry Coffey, been der must be proved by the prosecution. It killed, defendants would have been guilty is a statutory offense, and the intent is the of murder. If the testimony shows that, essential ingredient. It differs in this rehad Henry Coffey been killed, one of the spect from the statutory offense of an asdefendants would have been guilty of mur-sault upon the person of another with a der, then that one should be convicted. If deadly weapon, or other means likely to there was an unlawful assault on Henry Coffey, and no intention to commit murder, the defendant making such assault may be convicted of a simple assault." We think that this instruction was erroneous. "To constitute murder the guilty person need not intend to take life, but to constitute an attempt to murder he must so intend." 1 Bish. Crim. Law, § 730. "The wrong-doer must specifically contemplate taking life; and though his act is such as, were it successful, would be murder, if in truth he does not mean to kill, he does not become guilty of attempt to commit murder." 2 Bish. Crim. Law, § 741.

produce great bodily injury, in which no intent is necessary to be proved. People v. Keefer, 18 Cal. 636; People v. Turner, 65 Cal. 540, 4 Pac. Rep. 553. The court gave the following instruction: "The jury are instructed that the natural and probable consequences of every act deliberately done by a person of sound mind are presumed to have been intended by the author of said act. And if the jury believe from the evidence, beyond a reasonable doubt, that the defendants, or either of them, did shoot at said Henry Coffey, as charged in the information, and that the natural and ordinary consequences of such shooting would be It is claimed by the attorney general the death of said Henry Coffey, then the that inasmuch as the court in subsequent presumption of law is that the defendant instructions carefully instructed the jury so shooting did shoot at said Henry Coffey that to constitute the offense charged in with intent to kill him." It is doubtless the information it was necessary to prove true that, as a general rule, a man is prethe intent to kill beyond a reasonable sumed to have intended that which he has doubt, and that it was incumbent upon the done, or that which is the immediate and prosecution to prove such intent, the jury natural consequence of his act; but, where could not have been misled by the instruc- an act becomes criminal only when it has tion which we have quoted above. In been performed with a particular intent, State v. Evans, 39 La. Ann. 912, 3 South. that intent must be alleged and proved. It Rep. 63, which was a case of assault with is for the jury, under all the circumstances intent to murder, the court charged the of the case, to say whether the intent rejury as follows: Where the evidence shows quired by the statute to constitute the that it would have been murder if death offense existed in the mind of the defendant. had ensued, that in itself will be sufficient This charge withdrew from the jury the ground for the jury to infer the existence of consideration of the question whether the the intention to murder.” In another part defendants intended to kill Coffey. The deof its charge the court, at the request of fendants claimed that they were acting in the defendant, instructed the jury that self-defense, and upon real or apparent dan"the jury must be satisfied that the pris-ger. One of the defendants was at his own oner had a positive intention to commit home, and there was evidence tending to murder." It was claimed on appeal that show that a few days before the shooting the subsequent charge cured the vice of the the prosecuting witness, Henry Coffey, had first charge quoted, but the court well said: threatened to take his life, and on the night "The addition of these words to the orig- preceding the affray had assaulted and inal charge given did not, as contended, beaten said defendant at his own home. cure the defect or vice therein. Its force To tell the jury, therefore, that if they bewas left untouched. Its meaning was un- lieved the defendants had shot at Coffey, changed and unimpaired. Together they and that the natural and ordinary conse would in effect amount to this: "The jury quences of the shooting would be the death must be satisfied that the prisoner had a of Coffey, the law would presume them positive intention to commit murder; but, guilty of an intent to kill him, was erroneif the evidence shows that it would have ous, because it entirely disregards the quesbeen murder if death had ensued, that in tion whether the defendants acted in good itself will be sufficient ground for the jury faith, and to defend themselves against to infer the existence of the intention to real or apparent danger. In homicide murder.'" cases, where the killing is proved, it rests on the defendant to show justification, excuse, or circumstances of mitigation, subject to the qualification that the benefit of the doubt is to be given to the prisoner; but this is because the statute expressly shifts the burden of proving circumstances of mitigation upon the defendant in homicide cases. The rule is confined to murder trials. Section 1105, Pen. Code; People v. Cheong Foon Ark, 61 Cal. 527. Judgment and order reversed, and cause remanded for a new trial.

The following instruction, we think, also, was erroneous: “If the jury believe from the evidence, beyond a reasonable doubt, that both or either of the defendants unlawfully pointed a loaded pistol at said Henry Coffey, and discharged the same, either with deliberation and premedItation, or with a reckless disregard of human life, and that the use of said weapon, as used by the defendant or defendants, if so used, was likely to kill the said Henry Coffey, then the said defendant, so using said pistol, is guilty of an assault with intent to commit murder." Here, again, the element of a specific intent to kill is ignored. In a prosecution under section 217 of the Penal Code for an assault with an intent v.22p.no.2-6

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

THORNTON, J., (concurring.) I concur in the judgment on the ground of error in the

An unsigned letter was allowed to go to the jury on the part of the plaintiffs, which is claimed to have been improperly admitted in evidence, because it had no signature, and did not indicate either the place or the person from whom it emanated. proof was that the defendant had agreed by a written contract to deliver to the plaintiffs the amount of wood, and at the Commissioners' decision. In bank. Ap-price and place, as set out in her answer, peal from superior court, Tulare county; WILLIAM W. CROSS, Judge.