missed, etc., and all costs that might be recovered against it in the action in the superior court, the bond sufficiently provided for the payment of costs "on appeal," and was therefore sufficient.

In Bank. Petition for writ of prohibition by E. E. Jones against the superior court of Kern county and others, to the District Court of Appeal of the Second Appellate District. Case transferred to Supreme Court. Writ denied.

William W. Keye, for petitioner. George E. Whitaker and H. M. Barstow, for respondents.

MCFARLAND, J. This is an application originally filed in the District Court of Appeal, Second Appellate District, for a writ of prohibition to restrain and prohibit the superior court of Kern county from proceeding with the trial of a cause pending therein, entitled Kern Valley Bank v. E. E. Jones. All of the justices of the said district court were not able to concur in a judgment, and the case was transferred to this court. The said Kern Valley Bank brought an action in the justice's court against the petitioner herein, E. E. Jones, to recover of the latter a money judgment, and Jones answered and demanded judgment against the bank; and after trial judgment was rendered in favor of the defendant Jones for $190.76, and from this judgment the bank appealed to the superior court. Jones moved to dismiss the appeal upon the sole ground that no undertaking for the payment of costs had been given. The superior court denied the motion to dismiss, whereupon Jones commenced this present proceeding to prohibit the superior court from trying the case.

The law governing the matter of undertakings on appeal from a justice's court to a superior court is found in section 978. Code Civ. Proc.. and that part of it which is material is as follows: "An appeal from a justice's or police court is not effectual for any purpose, unless an undertaking be filed with two or more sureties in the sum of one hundred dollars for the payment of the costs on appeal; or, if a stay of proceedings be claimed. in a sum equal to twice the amount of the judgment, including costs. when the judgment is for the payment of money:" etc. In the instrument filed by the respondent as an undertaking on appeal the judgment in the justice's court is fully recited. It is then stated that "the said plaintiff. Kern Valley Bank, is dissatisfied with said judgment and is desirous of appealing therefrom to the superior court of Kern county, state of California, and, pending such appeal, claims a stay of proceedings, and is desirous of staying the execution of the said judgment so rendered as aforesaid." Then the instrument states that. "in consideration of the premises, of such appeal, and of such stay of proceedings and execution, all as aforesaid," the two sureties bind themselves

jointly and severally and undertake in the sum of $500. "and promise on the part of said appellant that the said appellant will pay the amount of the said judgment so appealed from and all costs, if the appeal is withdrawn or dismissed, or the amount of any judgment and all costs that may be recovered against it in the action in the said superior court." We think that this instrument is a sufficiently clear undertaking to pay the costs on appeal. It provides that, if the appeal be withdrawn or dismissed, the sureties will pay the judgment appealed from "and all costs" or the amount of any judgment and "all costs which may be recovered against appellant in the action in the superior court." It is somewhat difficult to imagine what "costs" are alluded to in the undertaking, unless costs on appeal be intended, for the costs incurred at the trial in the justice's court had become inserted in and were a part of the judgment, and were therefore included in the promise to pay the "judgment." However, it is quite clear that "all costs" include costs on appeal; and if in the case at bar the appeal should be withdrawn or dismissed, or a judgment should be rendered against appellant in the superior court, the sureties on the said undertaking are in either event liable for any costs that accrued on the appeal. There is no valid objection to the form of the undertaking. If it provide for the costs on appeal, it matters not that it also provides in the same instrument for a stay of proceedings. If after the words "all costs" there had been inserted the words "on appeal." no one would have objected to the form or sufficiency of the instrument as an undertaking on appeal; but if, as we hold, "all costs" as used in the instrument includes costs on appeal, then the undertaking is as effectual as if the words "on appeal" had been used. It is quite evident from the face of the instrument that it was intended to be an undertaking on appeal as well as for a stay, and the penal sum is more than twice the amount of the judg ment, and the $100 in addition.

We do not think that the above view is in conflict with any former decisions of this court cited by petitioner. The case mainly relied on is McConky v. Superior Court. 56 Cal. 83. But in that case the appellant contended that an undertaking for costs on appeal need not be given at all where there was an undertaking for a stay of proceed ings, because in section 978. after the provision for the $100 undertaking, the word "or" is used; and the only point decided in the MeConky Case is that the word "or" as there used must be considered to mean "and," so that, even where there is an undertaking for a stay, there must also be an undertaking for costs on appeal. But in the McConky Case the undertaking there given does not appear in the record, and it was assumed that it did not contain any covenant which was the equivalent of a promise to pay the costs on

appeal; and the case is therefore not authority on the point here under discussion.

The views above expressed make it unnecessary to consider other points made by respondent.

The application for the writ is denied, and the proceeding is dismissed.

We concur: BEATTY, C. J.; LORIGAN. J.; SHAW, J.; ANGELLOTTI, J.; SLOSS, J.; HENSHAW, J.

(151 Cal. 638)

PEOPLE v. HOWER. (Cr. 1,388.) (Supreme Court of California. Aug. 12, 1907. Rehearing Denied Sept. 5, 1907.)

1. HOMICIDE APPEAL INSTRUCTIONS PREJUDICE.

5. SAME-TRIAL-JURY-MISCONDUCT.

Where, in a prosecution for assault with a deadly weapon with intent to murder, there was nothing in support of defendant's allegation of misconduct of the jury in examining the coat and shirt worn by prosecutor at the time of the assault after submission of the case but the bare "information and belief" statement of defendant's attorney and the affidavits of the state on motion for a new trial supported a conclusion that the articles had been fully inspected by the jury at the time they were received in evidence, defendant was not shown to have been prejudiced by the fact that the garments were left in the courtroom, which was used by the jury after submission of the case.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, $$ 3170, 3176.]

6. SAME APPEAL INSTRUCTIONS NESSES-CREDIBILITY.

WIT

An instruction that a witness who testifies falsely as to one fact is to be distrusted in other parts of his testimony merely stated a commonplace matter, which the jury would be apt to know without instruction, and was not

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3154.]

STRUCTIONS.

In a prosecution for assault with intent to murder, an nstruction given at defendant's request, which merely informed the jury that if defendant, while under the influence of liquor, was unable to tell what he was doing and to distinguish between right and wrong, and was under the influence of liquor at the time of the alleged assault, they must acquit, was in conflict with Pen. Code, § 22, providing that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but that, when the actual existence of a particular motive or intent is a necessary element of a particular species or degree of crime, the jury may consider intoxication in determining such fact.

3. SAME DEGREES OF OFFENSE-INTENT.

Defendant was informed against for assault with a deadly weapon with intent to commit murder, and was convicted of assault with intent to murder. The court correctly charged as to the various kinds or grades of offense included in the information, and instructed that evidence of drunkenness could only be considered for the purpose of determining the degree of the crime. Held, that the instruction should be construed to authorize the jury to consider the fact of intoxication in determining which of the various kinds or grades of offense included in the information the defendant was guilty of, and not as instructing that they should consider such evidence in determining the degree of the offense of assault with intent to commit murder with which defendant was charged which is not divided into degrees.

4. CRIMINAL LAW EXAMINATION OF WITNESSES-PREJUDICE.

Accused was not prejudiced by the court's refusal to permit him to cross-examine certain witnesses examined for the state in order to obtain evidence on the issue of drunkenness as to which they had not been examined in chief, where accused subsequently examined the witnesses on such issue either as his own or when recalled by the state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3148.]

In Bank.

Appeal from Superior Court, Mariposa County; J. J. Trabucco, Judge. J. W. Hower was convicted of assault with intent to murder, and he appeals. Affirmed. John A. Wall, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, for respondent.

ANGELLOTTI, J. The defendant was found guilty of the offense of assault with intent to commit murder, upon an information charging him with the offense of an assault with a deadly weapon with intent to commit murder, and was adjudged to suffer imprisonment in the state prison therefor. He appealed from the judgment and from au order denying his motion for a new trial, and the cause was ordered transferred to this court for hearing and decision, after decision in the District Court of Appeal for the Third district.

1. Error is alleged in the matter of certain instructions given upon the subject of drunkenness. There was some evidence tending to show that the defendant was to some extent under the influence of intoxicating liquor at the time of the commission of the offense. The defendant testified that during the last four years "the drink habit had held him absolutely, that when under the influence of liquor he did not know right from wrong, that when the craving and desire for liquor came over him he could not resist it, and that on the day in question he commenced drinking, and remembered nothing about any trouble with the prosecuting witness." Upon defendant's request, the court gave to the jury the following instruction: "If you believe that in consequence of long intemperance that defendant has arrived at that stage whenever he is under the influence of liquor that he is unable to tell what he is doing, that he is unable to distinguish right from wrong, and that at the time defendant com

mitted the the alleged assault upon Frank Judeas he was under the influence of liquor, then I charge you that it is your duty to acquit." At the same time, the court on its own motion, instructed the jury as follows: (1) "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but, whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act. (2) It is a wellsettled rule that drunkenness is no excuse for the commission of a crime. Insanity produced by intoxication does not destroy responsibility when the party, when sane and responsible, made himself voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt, for, when a crime is committed by a party while in a fit of intoxication the law will not allow him to avail himself of his own gross vice and misconduct to shelter himself from the legal consequences of such crime. Evidence can only be considered by the jury for the purpose of determining the degree of crime, and for that purpose it must be received with great caution."

It is not claimed by appellant that these instructions so given by the court on its own motion did not correctly state the law as to voluntary intoxication. The first was in the words of section 22 of the Penal Code, and the second has been held not to be erroneous in a long line of cases commencing with People v. Lewis, 36 Cal. 531. The claim of learned counsel for defendant is that these instructions are in conflict with the instruction given at his request, hereinbefore set forth, which, it is further claimed, was a proper instruction under the circumstances of this case. That there is such a conflict is apparent. It does not, however, follow that defendant can complain thereof. The instruction given at defendant's request was clearly erroneous. By it the jury were informed simply that if the defendant, while under the influence of liquor, was unable to tell what he was doing and unable to distinguish between right and wrong, and if he was under the influence of liquor at the time of the alleged assault, they must acquit. It disregards entirely the question as to whether the intoxication was voluntary, requiring an acquittal under the circumstances specified, whether the intoxication was voluntary

It was therefore in plain conflict with the provisions of section 22, Pen. Code, set forth in the first of the instructions given on this subject by the court on its own motion, and with the decisions of this court, and, so far as we have discovered, with the decisions of courts generally upon this sub

ject. In People v. Blake, 65 Cal. 275, 4 Pac. 1, relied on by defendant in support of the instruction, the court, after declaring that it has been so frequently and so generally held both in England and in the highest courts of this and other states that drunkenness voluntarily brought on is no excuse for crime, that it may be considered as settled law, said, quoting approvingly from People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484: "It will moreover occur to every mind that such a principle is absolutely necessary to the protection of life. * * But there is, in truth, no injustice in holding a person responsible for his acts committed in a state of voluntary intoxication. It is a duty which every one owes to his fellow men, and to society, to say nothing of more solemn obligations, to preserve, so far as lies in his power, the inestimable gift of reason. If it is perverted or destroyed by fixed disease, though brought on by his own vices, the law holds him not accountable, but if, by a voluntary act, he temporarily casts off the restraints of reasons and conscience, no wrong is done him if he is considered answerable for any injury which, in that state, he may do to others or to society." In People v. Travers, 88 Cal. 233, 239, 26 Pac. 88, 91, it was said by the court in bank, speaking through Mr. Justice McFarland: "As to the instructions asked by appellant on the subject of delirium tremens, etc., it is sufficient to say that settled insanity produced by a long-continued intoxication affects responsibility in the same way as insanity produced by any other cause. But it must be 'settled insanity,' and not merely a temporary mental condition produced by recent use of intoxicating liquor." The law upon this subject was so clearly and coucisely stated by this court, speaking through Mr. Justice Henshaw, in People v. Fellows, 122 Cal. 233, 239, 54 Pac. 830, 832, that we quote therefrom at length: "No act committed by a person while in a state of voluntary intoxication is less criminal for this reason, saving that, when the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any specific species or degree of crime, the circumstance of voluntary intoxication may be considered by the jury in determining the fact whether or not that particular purpose, motive, or in. tent was present. Pen. Code, § 22. But a sane person who voluntarily becomes intoxicated is not relieved from responsibility bccause of any mental derangement maiia a potu, or insanity produced by and consequent upon his own voluntary act. Such is the import of the instruction in People v. Lewis, supra, and it is that form of insanity, if insanity it may be called (for we do not think the word happily chosen), to which the instruction has reference. A sane man, therefore, who voluntarily drinks and becomes intoxicated, is not excused because the result is to cloud his judgment, unbalance his rea

son, impair his perceptions, derange his normal faculties, and lead him to the commission of an act which in his sober senses he would have avoided. Upon the other hand, if one, by reason of long-continued indulgence in intoxicants, has reached that stage of chronic alcoholism where the brain is permanently diseased, where the victim is rendered incapable of distinguishing right from wrong, and where permanent general insanity has resulted, then, and in such case, he is no more more legally responsible for his acts than would be the man congenitally insane, or insane from violent injury to the brain." The italics are ours. See, also, note to Knight v. State (Neb.) 76 Am. St. Rep. 91. It may possibly be that, in view of the evidence of the defendant, he would have been warranted in requesting an instruction embodying the doctrine to the effect that, where permanent general insanity resulting from longcontinued indulgence in intoxicating liquors, it has the same effect as to the responsibility of a person, as permanent insanity resulting from any other cause, although the foundation in the evidence for such an instruction is very slight. But no such instruction was requested, the instruction in fact requested and given being simply a statement absolutely at variance with section 22, Pen. Code, and the well-settled doctrine stated in the decisions above cited. The evidence was such as to warrant a conclusion on the part of the jury that the defendant, when sane and responsible, voluntarily made himself intoxi.cated, and therefore it must be held, under the decisions, that the instructions given by the court on its own motion were correct. The only conflict in the instructions given was that caused by the giving of the erroneous instruction at the request of the defendant, which stated the rule more favorably to him than it should have done. Under such circumstances the defendant has no good ground of complaint. People v. Suesser, 142 Cal. 354, 364, 75 Pac. 1093; Williams v. S. P. Co., 110 Cal. 457, 462, 42 Pac. 974; Dennison v. Chapman, 105 Cal. 447, 458, 39 Pac. 61. People v. Blake, supra, relied on by defendant in support of the instruction, is not opposed to the views we have stated. The question there was as to the admissibility of evidence in a case where an intent to defraud was a necessary element of the offense charged, and evidence tending to show that the defendant was unable or incapable of forming such intent was held admissible. This ruling was in full accord with section 22, Pen. Code.

The learned Court of Appeal held that the second instruction given by the court on its own motion was prejudicially erroneous in stating that "evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of crime," the offense charged-assault with intent to commit murder--not being divided into degrees.

But embraced in the charge made by the information were the lesser offenses of assault with a deadly weapon and simple assault, to constitute either of which the specific intent, which was an essential element of the higher charge, was not necessary. The court correctly instructed the jury as to the various kinds or grades of offense included in the information. We are of the opinion that, under these circumstances, the last-quoted portion of the instruction given could only be understood by the jury as authorizing them to take the fact of intoxication into consideration in determining as to which of the various kinds or grades of offense included in the information the defendant was guilty. So construed, the instruction was certainly not prejudicial. People v. Phelan, 93 Cal. 111, 28 Pac. 855, in which such an instruction was held erroneous, is not in point. The offense there charged was burglary, which is divided into two degrees, the only distinguishing feature between such degrees being as to the time when the crime is committed, burglary in the nighttime being of the first degree, and burglary in the daytime being of the second degree. The specific intent essential to that offense is the intent at the time of the entry to commit larceny or some other felony. The defendant introduced evidence to show that he was intoxicated at the time of entry for the purpose of showing the absence of an intent to commit any felony, in which event he was entitled to an acquittal. Under these circumstances the court instructed the jury that such evidence could only be considered for the purpose of determining "the degree of the crime." Manifestly, this could be read only as referring to the degrees into which the offense was divided by law, and as to which the court had doubtless instructed the jury. So read it was undoubtedly erroneous. See People v. Vincent, 95 Cal. 425, 429, 30 Pac. 581.

2. Four eyewitnesses of the assault were called by the people and examined as to the affair, but on their direct examination they were asked no question and gave no testimony as to defendant's condition so far as sobriety was concerned. On cross-examination each was asked as to defendant's condition for sobriety on that day, and an objection that the same was not proper cross-examination was sustained, the court stating that it would accord the privilege to defendant of recalling the witnesses as his own. One of these witnesses was called by defendant, and testified upon the subject favorably to him. The other three were called in rebuttal by the people, and testified on this subject, and the defendant was then given full opportunity to cross-examine them thereon. This right he then exercised. In view of these facts, it is unnecessary to consider whether the court erred in the rulings complained of. If it be assumed that it did err, manifestly the error was without prejudice.

3. It is claimed that the jury received evi

dence out of court other than that resulting from a view of the premises. This claim is based upon an affidavit made by counsel for defendant showing that the coat and shirt worn by the prosecuting witness at the time of the assault, which, it is said, were in a "most horrible, revolting. and disgusting" condition, by reason of the rents and cuts therein made by defendant's knife and the "dried, matted, and putrid blood thereon" which had come from the wounds made by defendant, were, after being received in evidence and examined and inspected by the jury, left on the floor of the courtroom during the deliberations of the jury, the courtroom, in accord with the custom in said court, being used as the jury room. There is nothing but the bare "information and belief" statement of defendant's attorney to show that any examination of the coat or shirt was made by any juror after the submission of the case, and this, of course, was ineffectual for any purpose. People v. Feld.

32 Cal. Dec. 16, 86 Pac. 1100. The mere fact that they were on the floor in the courtroom and in sight of the jury, does not compel the conclusion that they were so examined. Moreover, the affidavits on motion for a new trial were such as to support a conclusion that these articles had been fully inspected and examined by the jury at the time they were received in evidence, and we are unable to see how. under the circumstances of this case, the defendant could be held to have been prejudiced, even had it appeared that the jurors or some of them had again inspected the garments.

4. The instruction as to distrust of a witness who testifies falsely as to one fact in giving his testimony, and the right of the jury to reject the whole of the testimony of a witness who is found by them to have deliberately testified falsely in one part of his testimony, noted by the learned Court of Appeal in its opinion, was not such as to call for a reversal. See People v. Dobbins, 138 Cal. 694, 72 Pac. 339. It is also to be noted that this instruction, which is word for word the instruction considered in the case last cited, belongs to that class of instructions which contain only mere commonplace matters that the jurors would be apt to know about and act upon in the absence of instructions. It is well settled that the giving of instructions of that class will not be held to be a proper ground for reversal. People v. Tibbs, 143 Cal. 100, 103, 76 Pac. 904; People v. Wardrip. 141 Cal. 229. 74 Pac. 744; People v. Farrington, 140 Cal. 656, 74 Pac. 288; People v. Wong Bin, 139 Cal. 65, 72 Pac. 505.

This disposes of all the points made for a reversal.

The judgment and order are affirmed.

We concur: BEATTY. C. J.; SHAW. J.; SLOSS, J.; HENSHAW, J.; LORIGAN, J.

MCFARLAND, J. (concurring). I concur in the judgment of affirmance, because I think that the error committed by the trial court, which is hereinafter noticed, probably had no prejudicial effect upon the minds of the jury. But, in my opinion, the District Appellate Court was right in holding that the trial court committed an error in Instructing the jury that "evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of crime." This is in direct conflict with section 22 of the Penal Code, and takes away from that section its most important feature. The section is as follows: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary clement to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act." This language is not confined to a "degree" of a crime, but embraces any "species," or kind of crime, whether divided into degrees or not. It applies to every crime of which the existence of a particular intent or purpose is a necessary element. It is true that this court, in two or three cases, used the expression that drunkenness could be considered only in determining the degree of a crime, but it was used only in murder cases where the degrees of the crime depended on a particular intent or purpose: and, as it was said in People v. Vincent, 95 Cal. 425, 30 Pac. 581, "the degrees of murder are based upon the 'intent'the deliberation or premeditation-with which the act is done; and therefore it is not improper, in trials for unlawful homicide, to instruct the jury that they can consider intoxication only for the purpose of determining the degree of the crime, because that is telling them in substance that they may consider it in determining the purpose, motive, and intent with which the act was committed." But the court did not intend to declare the invariable rule that drunkenness can be considered only to determine the degree of crime clearly appears in the case of People v. Phelan, 93 Cal. 111, 28 Pac. 855. In that case the defendant was charged with burglary, which crime consists in entering a building with intent to commit larceny or some felony. The defendant introduced evidence showing that he was greatly intoxicated at the time of the alleged commission of the crime and did not, and could not, have had any intent to commit a felony in the building, but the court instructed the juryas the jury were instructed in the case at bar -that "evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of the crime." Of