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character of the offense is ascertained and drunk at the time, and were too much indetermined; but evidence of drunkenness is toxicated to form such a deliberate and preadmissible solely with reference to the ques meditated purpose, they cannot be found tion of premeditation, or where there is evi guilty of murder in the first degree. It dence tending to show that a murder has is true that drunkenness is no excuse for been committed in the perpetration or at the commission of an offense, but neverthetenipt to perpetrate a robbery, as to the ques less the jury must consider the evidence of tion of the existence of the felonious intent drunkenness and determine whether it was to steal which is an essential element of sufficient to so cloud the minds of the defendrobbery. In cases of premeditated murder, ants as to interfere with the formation of dethe fact of drunkenness is immaterial. A liberate and premeditated purpose to kill. man who is drunk may act with premedita If the drunkenness was sufficient to create ition as well as a sober one, and is equally a reasonable doubt in your minds as to responsible for the consequences of his act. the existence of such a deliberate premeditatIn murder of the first degree, it is necessary ed purpose you cannot find the defendants to prove the killing was premeditatel or guilty of murder in the first degree." was committed in the perpetration or at Counsel for defendants attack the court's tempt to perpetrate robbery or one of the instruction No. 27 as being an erroneous other felonies already enumerated, which in statement of the law, ambiguous and misvolves, of course, an inquiry into the state leading, consequently, highly prejudicial to of mind under which the party committed it, the defendants. The instruction complained and in prosecution of such an inquiry, his of was doubtless copied in the main from an condition as drunk or sober is proper to be

instruction that has a number of times met considered. The weight to be given it is a

with the approval of the Supreme Court of matter for the jury to determine, and it California. People v. Williams, 43 Cal. 345; should be received with great caution and People v. Belencia, 21 Cal. 545; People v. carefully examined in connection with all Lewis, 36 Cal. 531; People v. Ferris, 55 Cal. the circumstances and evidence in the case. 592; People v. Jones, 63 Cal. 168; People v. You should discriminate between the condi Vincent, 93 Cal. 425, 30 Pac. 581. The intions of mind merely excited by intoxicating structions upon the law of drunkenness, as drink and yet capable of forming a specific applicable to this case, should be considered and deliberate intent to take life, and such a together. The jury, we think, were fairly prostration of the faculties as renders a man and correctly instructed upon this point of incapable of forming the intent, or of de the law. I'eople v. Leonardi, 143 N. Y. 364, liberation or premeditation. If an intoxicat 3S X. E. 372; State v. Hawkins, 23 Wash. ed person has the capacity to form the intent 289, 03 Pac. 2.38; Wilson r. State, 60 N. J. to take life, and conceives and executes such Law, 171, 37 Atl. 954, 38 Atl. 428; Hopt v. intent, it is no ground for reducing the de People, 104 U. S. 632, 26 L. Ed. 873; Booher gree of his crime that he was induced to con 1. State, 156 Ind. 447, 60 N. E. 156, 54 L. R. ceive it, or to conceive it more suddenly by A. 391; State v. Thompson, 12 Nev. 151. See, reason of his intoxication."

also, 21 Cyc. 670; McClain on Cr. Law, $ 162. Defendants' requested instruction No. 5:

8. The refusal of the court to give certain "You are instructed that in order to find the requested instructions upon the law of mandefendants or either of them guilty of mur

slaughter was not error, as there was no evider in the first degree you must find from the

dence tending to reduce the offense to the evidence beyond all reasonable doubt that grade of manslaughter. State v. Donovan, the murder was perpetrated by means of Vev. 36; State v. Millain, 3 Nev. 409; Pirtle poison, or lying in wait, or torture, or by any V. State, 9 Hump. (Tenn.) 663; State V. other willful, deliberate, and premeditated Weaver, 35 Or. 415, 58 Pac. 103. killing, or in the perpetration or attempt to

9. A number of instructions requested by perpetrate robbery. This ingredient of de defendants were refused by the court, either liberate premeditated killing must be clearly upon the ground that they were inapplicable shown and proven beyond all reasonable to the case, or that they were covered by doubt. It is not sufficient that you think that instructions already given. A careful exthe killing was deliberate and premeditated, amination of these requested instructions the evidence must convince you of that fact convinces us that the court did not err in to an abiding certainty and beyond all rea their refusal. State V. Buralli, 27 Nev. 54, sonable doubt. The evidence of deliberation 71 Pac. 332; State v. Maher, 25 Nev. 465, and premeditation must be such as to con 62 Pac. 236. vince you that the deliberate premeditated 10. It is contended that the instruction givdesign and purpose to murder was knowingly en at the request of the prosecution relative and intentionally formed and considered in to the consideration which the jury should the mind of each defendant and meditated give to the defendants' testimony, was erroneupon before the fatal blow was struck; and, ous and prejudicial. This instruction, subin considering whether such a design was stantially as given by the court in this case, formed in the minds of each of the defend has heretofore in a number of cases been apants, you should consider the evidence, if proved by this court. State v. Hartley, 22 any, of drunkenness. If the defendants were Nev. 360, 40 Pac. 372, 28 L. R. A. 33; State

of error, and our conclusion is that the judgment of the trial court must be affirmed.

The judgment and order denying the motion for a new trial are affirmed, and the district court is directed to fix a time and make all necessary and propers orders for having its sentence carried into effect by the warden of the state prison.

FITZGERALD, C. J., and TALBOT, J., concur.

v. Streeter, 20 Nev. 403, 22 Pac. 758; State v. Hing, 16 Nev. 307; State v. Hymer, 15 Nev. 49. The following language of the instruction is that to which exception is particularly taken: “If convincing and carrying with it a belief in its truth, you have a right to act upon it; if not, you have a right to reject it," etc. As this instruction has been given in other cases in this state, the words we have italicized have been omitted. It is urged by counsel here that the use of these words was, in effect, a direction to the jury that it was entirely optional with them whether they should act upon the testimony of the defendants, even though they believed in the truth of the same. While we think it would have been clearer to have omitted from the instruction the words in question we do not think it at all probable that the jury placed any such construction as contended upon them. In another instruction the jury were told that they "must consider all the evidence," etc. That a jury would fail to give due consideration to the testimony of a defendant, which was convincing and carried with it a belief in its truth, is too unreasonable for consideration. We have no hesitancy in saying that the defendants were not prejudiced by this instruction.

There are some other alleged errors in the record, but we have examined them, and think they are not of sufficient merit to require notice here. Counsel for defendants have dwelt in their briefs upon the point that the defendants were Indians, and that, as a matter of general knowledge, intoxicating liquor more readily destroys the mental faculties of the Indian than it does those of the white man. It is further argued that the very revolting manner in which this crime was committed tends strongly to prove that at the time the crime was committed the defendants were impelled to commit the murder because of their drunken condition. We may concede all that counsel has to say upon this question. This case serves as a terrible illustration of what may result from the crime of disposing of spiritous liquors to Indians. Liquor has the effect of arousing in the Indian all the dormant savagery and cruelty of his nature. It is a crime in this state to dispose of liquor to Indians, and it may not be out of place here to say that the violation of this law doubtless led to the revolting murder committed by these two defendants. The statute of this state applies the criminal law's to the Indians, without reservation, other than where the offense is committed by one Indian against another upon a government reservation. Comp. Laws, § 4655. Upon the trial for an offense, they are subject to the same laws, rules, and conditions, as govern in the case of a white man. The case appears to have been very carefully tried in the lower court. We have examined all of the assignments

(149 Cal. 543) ARROYO DITCH & WATER CO. V. BE

QUETTE. L. A. 1,634. (Supreme Court of California. Aug. 13, 1906.

Rehearing Denied Sept. 12, 1906.) 1. WATERS AND WATER COURSES-IRRIGATION

DITCHES-REPAIR-LIABILITY OF OWNERS STATUTES.

Where land owners constructed an irrigation ditch, and by custom, prior to the formation of a corporation to operate the ditch, contributed to the cost of maintenance above, but not below their point of diversion, a corporation thereafter organized could not compel à co-owner of the ditch, not a member of the corporation, to contribute to the improvement of the ditch below his point of diversion either at common law or under St. 1889, p. 202, C. 168, declaring that where two or more persons construct a common irrigation ditch, each shall be liable to the other for the reasonable expense of maintaining and repairing it, in proportion to his share in the use of the water, etc. 2. SAME-ISSUES AND PROOF.

Where plaintiff sought to recover defendant's alleged proportionate share of the cost of all improvements on an irrigation ditch, and introduced no evidence of the amount of defendant's share of the cost of the improvements made above defendant's point of diversion for which alone defendant was liable, the court was justified in giving judgment for defendant.

Department 1. Appeal from Superior Court, Los Angeles County; N. P. Conrey, Judge.

Action by the Arroyo Ditch & Water Company against L. L. Bequette. From a judgment for defendant, plaintiff appeals. Affirmed.

Kendrick & Knott and J. H. Ardis, for appellant. John S. Chapman, J. L. Fleming, and Goodrich & McCutchen, for respondent.

SHAW, J. This is an action to recover $361.52, alleged to be due plaintiff as the defendant's proportion of the cost of certain improvements and repairs made by plaintiff to a ditch owned in common by plaintiff, defendant and others. About the year 1869 certain persons, each being the owner in severalty of a tract of land susceptible of irrigation by water to be diverted from the stream now known as the "Old Sam Gabriel River,” constructed a dam in the stream for the diversion of the necessary water, and made a common ditch leading from the dam to, or adjacent to their respective tracts of land, by means whereof they thereafter diverted water from the stream and

each used a due proportion thereof on his and each transferring to the corporation land for its irrigation and for domestic use. bis interest in the water and ditch; the corFrom time to time thereafter other owners poration undertaking the obligation to disof land were admitted to share in the water tribute and deliver to its stockholders' land and in the use of the ditch until the water the water to which such land was entitled, became appurtenant to an aggregate area of and to perform the aggregate obligations of 3,350 acres of land, owned in small tracts, all of its stockholders to maintain and rein severalty, by a large number of persons. pair the ditch and its branches. The cost The main ditch, which became known as the of the maintenance and repairs thereafter “Arroyo Ditch,” was several miles in length | done by the corporation was raised by asfrom the dam on the river to the lowest

sessments upon the stock, from time to time, tract reached thereby. Some tracts did not which were levied uniformly upon all the abut upon the main ditch, and were supplied stockholders alike. The respective owners through branch ditches, each constructed of the 622 acres, usually known as "outfrom the main ditch by the particular per siders,” among whom was the defendant, sons owning the tracts situate along such did not become members or stockholders of lateral. By a common custom, or under the corporation, but each thereafter continstanding, among the respective persons in ued to use his respective share of the water terested, 'each contributed to, or assisted in, from the ditches, and to contribute to the the maintenance and repair of the main maintenance and repair of the ditches down ditch from the dam down to the point where to but not below, his own land, in the same it passed the lower line of his land, if the manner as before. The defendant's land land abutted thereon, or down to the point

was situated on a branch ditch known as of departure of his particular branch ditch, the "Sand Ridge Ditch” near its junction if his land did not abut upon the main ditch, with the main ditch. This was the first but did not contribute to, or assist in, such branch ditch leading off from the main maintenance or repair, below his land or ditch. The ditches were ordinary open ditch, as the case might be; and each land ditches, constructed in the earth, such as owner along each branch contributed in

were in ordinary use for the distribution of like manner to maintain and repair his

water. The soil was dry and, in some part of the particular branch ditch upon places, light and sandy, in consequence which he was situated, but did not so con whereof a considerable part of the water tribute to the other branch ditches. By was lost by seepage and absorption in many years' use in this manner, and ap transmission to the lands. Defendant's land parently without any specific or express was near the head of the ditch and his loss common agreement, oral or written, except from this cause was comparatively small, such as would be inferred and implied from but the loss to the more remote lands was their conduct, each owner, respectively, ac very great, so much, in fact, that at times, quired a right to the water, and to the com according to the evidence, the entire flow mon use of the ditch to convey the water would be lost in that way before it would to his land, and a corresponding estate in reach lands situated at the lower end of common in the ditch and in the water di the ditch. This loss was not due to the bad verted from the river thereby; the interest condition or lack of repair of the ditch and of each being such proportion of the whole its branches, but to the nature of the soil, as the acreage of his irrigated land bore to and, at the time of the improvements made the entire acreage irrigated, or considered by the plaintiff, was not greater than it as entitled to irrigation, by the diverted had been usually ever since the ditch was water. In the course of this process com first constructed. To prevent this loss and mon rights of way for the main ditch were save the water for the users, particularly acquired, from time to time, by the user's of those situated toward the lower end of the the water, either by conveyances or prescrip- | ditch, the plaintiff corporation built a woodtion, and a compromise was effected with en flume over 5,000 feet long, above the deother claimants of water from the river, fendant's land, connecting it with the main whereby the parties herein concerned ac ditch at each end, and also cemented the quired the right, as against the others, to sides and bottom of parts of the main ditch divert for their use a specific proportion of and its branches, including a part of the the water of the river. The defendant pur Sand Ridge ditch; the aggregate length of chased from the original owner one of these such cement work in all the ditches amounttracts of land, containing 40 acres entitled ing to several miles. Since this work was to the water, and thereby became the owner done the water has been carried through of an interest in the water and ditch: his

this fiume and through the ditches thus interest being such proportion of the whole cemented, and has been received by the as 40 is to 3,950.

interested parties in the same proportions For convenience of management, the own as before. ers of all the irrigated lands, except 622 The entire cost of these improvements acres, organized the plaintiff corporation, made by the plaintiff was $35,997.24, and the each taking stock therein proportioned to defendant's proportion thereof, computed acthe number of acres of his irrigated land, cording to his interest in the water diverted

in common from the river, that is, as 40 | property; that is, of the portion previously to 3,950, would be $364.32. The length of lost by absorption in dirt ditches, and had the cement work above and across defend no legal right to compel contribution in adant's land is less than half a mile, while its vance thereto by the defendant, or to force length below his land is more than tbree him to increase the amount of his water supmiles. The court does not find the distances ply by those means, and although the defendmore exactly. The defendant derives no ant has the undoubted right to continue to benefit from the cement work below. The demand and receive his full supply of water ('ost of the entire cement work was $31, through the improved ditches, without conS$0.99. One-seventh of this, or $1,550.14, to tributing at all to the cost of the improvegether with the cost of the flume, $1,146.25, ment, he is thus compelled to use for that aggregating $8,696.39, comprise all the ex purpose, nevertheless, if he knowingly claims pense for work on and above the defendant's and receives the additional amount of water land. This assumes that the expense of the which the improved ditch carries to his land; Cement work was uniform throughout the that is to say, that portion of his share of course of the ditches, and nothing appears the water diverted at the dam which would to the contrary. The defendant's pro rata have been lost by absorption before reachshare of the above sum of $8,696.39 would be ing his land if the improvenients had not only $88.06. The plaintiff sues for $361.52, been made, he thereby assents to and ratifies being, as stated, his share of the whole cost the action of the plaintiff in the construction of the work both above and below his land. of the improvements and becomes bound to The water has never been distributed among pay his proportionate share of the cost therethe respective owners by giving to each a con of. In support of this proposition the plaintinuous flow of a small stream, proportionate tiff cites the case of Stockwell v. Mutual L. to his undivided interest in the stream di I. Co., 110 Cal. 201, 7+ Pac. 21, 98 Am. St. verted from the river. The division has al Rep. 23, in which case it was held that if ways been effected by the method of deliver one of several beneficiaries in a life insurance ing to each owner in his turn, beginning with policy, who desires to preserve the policy those nearest the dam, a stream of water from forfeiture, is compelled to pay the designated as a "head," for a certain num whole of the premium in order to do so, and her of hours; the time being regulated in the policy thereafter becomes due, the other proportion to the amount of his interest, un beneficiaries cannot share in the proceeds til all were served in turn, and by repeat thereof without paying to him their proper ing the process throughout the irrigating share of the premiums paid to prevent forseason. When the water was low the stream feiture. constituted but a single head. If the flow No exception can be taken to the just and was sufficient, it was divided into from two equitable rule laid down in that case. IL to three heads, according to the volume of the plaintiff's conduct and cause of action Water available, and each head was delivered came within its terms its, case would be imto a different owner. The defendant was pregnable. There are, however, vital differthe third person entitled, in order, at the be ences. The court finds that a large proporginning of a turn. Although it is not ex tion of the saving of water occurs in the pressly stated, it is nevertheless plain from branch ditoles not used by the defendant, the facts found, that this method of division, and in the main ditches below the defendant's if it was not originally specially agreed upon, land, and that the defendant had water suffihas been continued so long that it has become cient for his land without the saving caused part of the right of each owner of an inter by the improvements. The defendant, of est in the water. Since the cementing of course, cannot share in or receive any benethe ditch and the building of the flume. the fit from the saving made after the stream defendant has received, and claimed the righ: passes his land, unless be takes it out below to receive, his "head" of water for the same and uses it elsewhere. It is not shown that number of hours in each "turn" as before, he does so, nor that he desires to do so, although the effect of the flume and cement nor that he claims any such right. On the has been such that he has thereby received contrary, his claim is limited to the flow a substantially larger quantity of water than of the usual "head" for the usual number of before; the amount of the increase being hours in regular order, and the court finds indeterminable from the evidence. The de that his acceptance of the benefits of the infendant did not consent to the making of the crease in the flow produced by the improveimprovements. He was not asked to assist ments, “has been because of his inability in the work, but was previously informed by to obtain any water otherwise" than through the plaintiff that it proposed to make the this ditch. Thus, although the defendant has improvements, and was asked to pay his participated only in the saving made above share of the expenses. His situation is such his land, the demand of the plaintiff is not that he cannot obtain the water at all except limited to a due proportion of the cost of through the improved ditchi.

the improvements made upon that portion The contention of the plaintiff is that, al of the ditch, the improvements which caused though plaintiff was under no compulsion, the saving in which alone he shares, but exas a common owner, to make the improve tends to and includes his regular pro rata ·ments for the preservation of the common share, according to his relative acreage, of

the entire expenses of the whole improve. | right to the ditch and water was originally ment, at least three-fourths of which expense acquired, and its origin must be ascribed to: was for cementing ditches below his land, the inaccurate phraseology of a subsequent in which saving he has no interest, and judgment between the interested parties, infrom which he neither receives nor claims troduced in evidence, whereby the undivided any benefit. This demand does not come interest of each party in the Arroyo ditch within the principle invoked by the plaintiff. was determined, or perhiaps to a misappreThe principle is founded upon natural justice | hension of the legal effect of that judgment. and equity—the proposition that he who At all events, the specific facts found and claims a share in a benefit produced by the amply supported by the uncontradicted eviact of another, should pay a like share of dence, conclusively show that if the defendthe expense by which the benefit was secured. ant has any title to the ditches and water It would not justify a charge for a propor- / below his land, it can be nothing more than . tion of the whole expense of a work in a a barren legal title, without any beneficial case where only a small part of the work use or right whatever, a title which, of itself, was of use to the party charged, and where would raise no implied promise to pay for he neither received nor claimed the benefit | improvement made thereto without his conaccruing from the remainder. The same sent. It is further asserted that the defendequitable principle which would impose the ant is liable under the provisions of the act charge in a proper case, so far as the work of 1889 relating to tenancies in common in was beneficial, would deny the validity of a waters. St. 1889, p. 202. C. 168. In subcharge as to that part of the work which was stance that act provides that where two or for the exclusive benefit of others. There more persons construct a commou ditch and was no evidence by which to correctly appor use the same for the irrigation of their lands, tion the amount of the charge to the benefit each shall be liable to the other for the actually claimed and received by the defend reasonable expense of maintaining and reant. The estimates abore made were based pairing the same in proportion to his share on the assumption that both the saving and in the use of the water, and that if either the expense were uniform throughout the neglects. after demand in writing, to pay course of the ditch. Upon this point there his proportion of such expenses, he shall be was no evidence and the court makes no liable therefor in an action by the party finding. The case was not tried upon the the who has paid the sum with 2 per cent. interory that there might be a partial recovery est from the time such demand was made. of the amount claimed, but upon the proposi To this claim what we have heretofore said tion that, as the defendant was a part owner is a sufficient answer. Conceding. for the in the whole, he was, consequently, charge- | purposes of argument only, that the flumable with his proportion of the whole ex ing and cementing done could, under the pense if he claimed and received the benefit circumstances, be classed as "maintaining of any part of the work, and regardless of and repairing,” the plaintiff has no case; the fact that a large part of the expense for it asks contribution to the cost of work was for work which he did not use and was done chiefly on a part of the ditch of which made to save water in which he did not share defendant has no beneficial use, and by which and the previous loss of which did not injure he is not benefited, and the evidence furnishes him. Hence, the proof was not directed to no means of ascertaining separately the cost the proposition of a charge to the defend for which, if any, the defendant might be ant limited to his proportion of the expense held liable under that statute. of that specific part of the work which was It is claimed that some of the other findshown to be of benefit to him. Conceding, ings are conflicting with each other, and that therefore, that the facts and law would justi- | others are contrary to the eridence. We do fy some recovery by the plaintiff, it would be not think it necessary to discuss these points necessary for it. in order to maintain its case, at length. We have examined the findings to produce evidence from which the court and have read the evidence with some care, could ascertain the amount for which the and we are satisfied that the findings can defendant would be liable. Having failed be easily reconciled with each other and to do this, the court was justified in giving that there is sufficient eridence to support judgment for the defendant.

all the material facts in issue. In view of the specific facts found, show The judgment and order are affirmed. ing that the defendant neither has nor claims any beneficial use whatever of the part of We concur: ANGELLOTTI, J.; SLOSS, J. the ditch or its branches situated below his land, the general preliminary statement that

(149 Cal. 487) he is the owner of the stated interest as

In re DEAN'S ESTATE. (Sac. 1,423, tenant in common in the "ditch and its branches, known as the 'Arroyo Ditch,'' ”

(Supreme Court of California. July 26, 1906, .

Rehearing Denied August 23, 1906.) cannot he taken according to its full meaning. He may have some sort of a title to

1. DISMISSAL AND Noysuit--APPEARANCE

Yotice. that part of the ditch, but if so it is not de

I court should not dismiss an action as aurived from the prescriptive use by which the thorized by Code Civ. Proc. $ 581, subd. 3, for

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