The conclusion here reached in regard to the nature and effect of the grant of the right of way to the defendant is fully sustained by the supreme court in Railway Co. v. Alling, 99 U. S. 474, and Railway Co. v. Baldwin, 103 Id. 428. In the latter of these cases, Mr. Justice Field suggests the reasons why grants of land in aid of the construction of railways have generally been made subject to the right of appropriation by individuals under the pre-emption and other like laws of the United States, between the date of the act making the grant and the fixing of the limits and operation of the grant by the definite location of the line of the road; while those of the mere right of way have been made absolute and to take effect from the passage of the act, as against any location, claim, or settlement made after the date of the grant and before the definite location of such right. He says: "The grant of the right of way contains no reservations or exceptions. It is a present absolute grant, subject to no conditions except those necessarily implied, such as that the road shall be constructed and used for the purposes designed. Nor is there anything in the policy of the government with respect to the public lands which would call for any qualification of the terms. Those lands would not be the less valuable for settlement by a road running through them. On the contrary, their value would be greatly enhanced thereby. The right of way for the whole distance of the proposed route was a very important part of the aid given. If the company could be compelled to purchase its way over any section that might be occupied in advance of its location, very serious obstacles would be often imposed to the progress of the road. For any loss of lands by settlement or reservation, other lands are given, but for the loss of the right of way by these means, no compensation is provided, nor could any be given by the substitution of another route."

In the construction of this ditch on the possible line of the defendant's right of way from Portland to the southern boundary of the state, the parties engaged therein took the risk that such line might be located on, along, or across the same, in which case their right under the ditch and canal act of 1866 must so far yield to the prior and better right of the defendant under the railway act of the same year: Doran v. Central Pacific R'y Co., 24 Cal. 259.

In this case the court say: "The grant by congress of the right of way over any portion of the public land to which the United States have title, and to which private rights have not been attached under the laws of congress, vests in the grantee the full and complete right of entry for the purpose of enjoying the right granted, and no person claiming in his own right any interest in the lands can prevent the grantee from entering, in pursuance of his grant, or can recover damages that may necessarily be occasioned by such entry."

But the plaintiff contends that the defendant is estopped by the acceptance of the deed of September 3, 1883, from asserting its prior title to the premises under the act of 1866, granting it the right of way over the same.

It is a well-established rule of law that ordinarily a vendee is under no obligation to support his vendor's title, and therefore he is not estopped to deny the same, except in a few cases where his conduct, in so doing, would be repugnant to his acceptance of the grantor's deed, or a claim made under it: Society etc. v. Pawlet, 4 Pet. 506; Blight v. Rochester, 7 Wheat. 547; Croxall v. Sherred, 5 Wall. 287; Merryman v. Bourne, 9 Id. 600; Sparrow v. Kingman, 1 N. Y. 242; Coakley v. Penny, 3 Ohio St. 344; Stark v. Starr, I Saw. 24; Bigelow on Estoppel,

294.

This is a peculiar case, and my attention has not been called to one that is its exact parallel.

At the date of his deed, the plaintiff's ditch was constructed along and across the premises, but the legal right to the use and possession thereof for the purpose of its incorporation was in the defendant. From the date of the definite location of the line of the defendant's road, the plaintiff had no right or easement to or in the land within the defendant's right of way, and was, to all intents and purposes, a naked trespasser thereon. He therefore had nothing to sell or convey to the defendant. His possession, if any, was merely constructive. Under these circumstances, the parties apparently supposing that the plaintiff had acquired some right to flow the water over the premises, the defendant purchased the privilege of constructing and operating its road across and along the ditch for two hundred and fifty dollars, and on the further condition that it would not thereby obstruct or impair the

same.

But this condition or covenant being incident to and dependent on the conveyance of some right in the premises to the defendant, if the latter is at liberty to show that nothing passed by such conveyance, the condition or covenant is left without consideration or support, and falls to the ground. But if there is any good reason in law or justice, notwithstanding the want of title in the plaintiff, that the defendant should keep this condition or covenant, it will be estopped to show a want of consideration from the plaintiff.

But the plaintiff has really parted with nothing, nor has the defendant obtained anything from him, although it has paid the plaintiff two hundred and fifty dollars. The ditch was dug on what turned out to be the defendant's right-of-way land, and the plaintiff in consenting to allow it to construct and operate its road thereon, surrendered nothing to which it had any legal right. The conveyance was altogether an idle and superfluous act, and whatever misapprehension of the parties, as to their rights in the premises, may have induced it, in legal effect, it is a mere nullity.

The case of Holden v. Andrews, 38 Cal. 119, is somewhat analogous. Holden being in possession of a tract of the public land, sold or abandoned the same to Andrews for a specified sum, to be paid in the future. Andrews failed to pay, and Holden brought an action to recover the possession of the land, in which he had judgment. On the trial, the defendant offered to prove that since the sale he had acquired the title

from the United States under the homestead law, which was not allowed, on the ground that he was estopped from setting up the after acquired title from the United States without first surrendering the possession obtained by his purchase from the plaintiff. On appeal, the judgment was reversed and a new trial ordered. The opinion of the court was delivered by Mr. Justice Sawyer, who said: “We think this is not a case that falls within the rule. The plaintiff did not pretend to have any other title than by naked possession."

In Coakley v. Penny, supra 347, the court says: "The decisions in this country, in which the grantee and those claiming under him were held to be estopped to deny the title of the grantor, were cases in which the grantee received and held possession under the conveyance and relied upon it as his source of title, and not where the grantee held the title under a prior and independent conveyance."

Here the defendant derived nothing from the plaintiff, and does not rely on his conveyance as a source of title, but does rely on a title derived from the United States prior to such conveyance.

On the whole, my judgment is, that this case is not an exception to the rule which allows a vendee to deny his grantor's title. And from the facts stated in this defense it clearly appears that the defendant took nothing by the conveyance from the plaintiff, and is therefore not bound to keep the condition or covenant therein concerning the plaintiff's ditch.

The demurrer must be overruled; and it is so ordered.

SUPREME COURT OF COLORADO.

KENT V. PEOPLE.

In Bank. Filed February 20, 1886.

CRIMINAL LAW-INSTRUCTIONS IN LANGUAGE OF STATUTE.-As a general proposition, an objection that instructions, in a criminal case, were given in the language of the statute, without explanation or qualification, is not tenable.

MURDER MALICE A QUESTION OF FACT.-Section 36 of the criminal code provides: “The killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide:" Held, that such section must be interpreted with reference to the other provisions of the code defining the elements of the crime of murder; that so construed, the ingredient of malice necessary to constitute the crime is a question of fact, to be found by the jury, and not a question of law to be inferred by the court.

THE SAME-Burden of ProoF-RES GESTE-REASONABLE DOUBT.-In such prosecution, the burden of proof rests upon the state to prove to the satisfaction of the jury, beyond a reasonable doubt, the existence of all the material elements necessary to constitute the crime of murder, as defined by the statute. To enable the jury to return a true verdict, the entire res gesta should be laid before them, to be considered as a whole, without distinction as to what party introduced the several matters of evidence; and if, upon such consideration, a reasonable doubt exists as to the guilt of the prisoner of any crime included in the indictment, he must be acquitted. This rule includes all matters of defense growing out of the res gesta which traverse the allegations of the indictment; and it is only when the defendant sets up independent matters of defense, or matters in avoidance of the indictment, that a different rule of evidence prevails.

THE SAME PREMEDITATION-INTENT-PRESUMPTION OF MALICE.-The distinguishing feature between murder in the first degree and murder in the second degree is, that to constitute murder in the first degree the jury must find "premeditation," or a specific intent to take life, and specify the same in their verdict; whereas if said fact be not found and specified in the verdict, it is murder in the second degree. In both cases there must be the violation of a public law, in the commission of which there must be a union or joint operation of act and intention; there must also be the unlawful killing of a human being, in the peace of the people, and such killing must be with inalice aforethought, either express or implied. The inference of implied malice, in such case, is one of fact, and not of law.

THE SAME.-The existence of these elements is to be found by the jury, either from the proof of circumstances which manifest a deliberate intention unlawfully to take away life; or as inferences of fact to be drawn from the circumstances attending the killing, which clearly indicate either that no considerable provocation operated on the mind of the slayer, or that he acted under the impulses of an abandoned and malignant heart. Such inferences are not presumptions of law, but of fact, to be drawn by the jury from the evidence of facts and circumstances attending and surrounding the commission of the homicide.

THE SAME JUSTIFICATION AND MITIGATION-PROOF OF KILLING.-Before an accused can be convicted of murder, or called upon to produce evidence in justification or mitigation of such offense, the prosecution must make out such a case as will, under the law, sustain a verdict of guilty. Proof of the mere abstract fact that the accused killed the deceased will not sustain such verdict, as such proof does not establish the material elements of the crime. The necessary element of malice aforethought cannot be inferred from the act alone, but must be proved, or circumstances of the killing shown, from which it can be inferred as a fact in the case.

THE SAME WHOLE EVIDENCE MUST BE CONSIDERED.-Under section 36 of the criminal code, when the circumstances surrounding the commission of the homicide are produced in evidence on the part of the state, all matters, if any, which go to justify or excuse the killing must be considered in favor of the defendant, and if sufficient to manifest that the accused was justified or excused in committing the homicide, he is not bound to prove it by affirmative evidence in his own behalf. It is the duty of the jury, in such case, to inspect and consider the evidence with respect to its sufficiency to establish the crime, and to examine and weigh the same with respect to matters of mitigation,

justification, or excuse; and, if upon the whole evidence, a reasonable doubt exists as to the guilt, to return a verdict of not guilty.

THE SAME BURDEN OF PROOF, WHEN CAST ON DEFENDANT.-Where the prosecution has proved the offense charged beyond a reasonable doubt, the burden of proof as to matters of mitigation or excuse is then cast upon the defendant. He is not required, however, to prove such circumstances beyond a reasonable doubt, or to the extent of satisfactorily establishing his defense; but only to prove the same as any other facts are required to be proved; and if the matters relied on be supported by such proof as would produce a reasonable doubt in the minds of the jury as to the prisoner's guilt, when the whole evidence comes to be considered by them, they must acquit.

THE SAME INDEPENDENT DEFENSE-PREPONDERANCE OF PROOF.-When the defendant sets up an entirely independent defense, and attempts to prove extrinsic facts, not arising out of the res gesta, such as license, authority from the state, former conviction or acquittal, once in jeopardy, compulsion, and, in general, defenses which do not traverse the indictment, but are in avoidance of the allegations thereof, the same must be sustained by a preponderance of proof.

ERROR to the district court of Lake county. The opinion states the facts.

Taylor & Ashton, for the plaintiff in error.

T. H. Thomas, attorney-general, for the defendants in error.

BECK, C. J. Plaintiff in error, Charles M. Kent, was indicted at the August term, 1882, of the district court of Lake county, for the murder of one Thomas Bennett. The crime was committed on the fourth of July, of the same year, in the city of Leadville, and was witnessed by several persons.

Upon the trial, which took place in the month of November following, the prosecuting attorney did not confine the testimony to the facts occurring at the time of the killing, but called witnesses who had knowledge of the facts and circumstances which led to the rencounter resulting in the tragedy mentioned.

It appears from the testimony of the witnesses that for two or three years prior to the month of April preceding, the deceased had as a mistress a woman familiarly known as Carrie Bennett. In said month of April the plaintiff in error married this woman, and afterwards lived with her in Leadville. The woman, however, appears to have continued her dissolute life after marriage as before. The testimony was to the effect that she visited low dance-halls, frequented only by lewd women, and men who desired to associate with them, and that she hired a room in a house of prostitution for the purpose of meeting men away from her home.

According to the testimony, all the foregoing facts were known to her husband, including her previous life, and her immoral conduct during the married state. It further appears that they were accustomed to speak of and to each other in the most disrespectful style, using towards each other in public places the vilest epithets.

On the morning of the third day of July the husband went down town with the expressed intention of going to Gunnison; but, failing in his purpose, he returned to his rooms, and there found the deceased in bed with his wife. He left the room without offering any violence, and it appears that he went down street and got drunk. Either before or after getting into this condition, he purchased a revolver; and