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[5] The state did not hold under a subse Such amendment to appear in the permanent quent conveyance or incumbrance, and title printed volume as a part of the departmental is not created by the filing of the notice. opinion in lieu of the last paragraph thereof as The court found that the deed in question appears in the opinion filed September 25, 1024. was not delivered until after the bringing of this action and the filing and recording of a notice of lis pendens, and that the two Jap

NEWPORT et al. v. SUPERIOR COURT OF anese owned the property at the time the ac

STANISLAUS COUNTY et al. tion was brought and the notice filed. This

(S. F. 10401.) finding, however, does not give effect to the legal presumption that the deed was deliv (Supreme Court of California. Sept. 19, ered on the day it was executed and acknowl

1923.) edged. As stated, there is no evidence as to 1. Injunction w223(1) - Suit to have title the time of the delivery of the deed, and quieted adjudged held in trust held not viothere is no evidence as to who was in the lative of injunctive provisions of judgment. possession of the property at any time.

Where a judgment quieting title adjudged The judgment as to the west 25 feet of lot the invalidity of plaintiffs' claims in the prop10 will be affirmed. The gudgment as to the erty and enjoined them from setting up the south 25 feet of lot 11 will be reversed, with same, a suit seeking to have the title quieted direction that as to that tract the action be adjudged held in trust for plaintiffs, held not a

violation of the injunctive provisions. dismissed.

2. Judgment 443(1)-No judgment immune HOLCOMB, TOLMAN, PARKER, and from attack on it on ground of its invalidity. MACKINTOSH, JJ., concur.

A judgment in a suit to quiet title could not enjoin defendants from taking proceedings to have it adjudged that the judgment was void, since no judgment is immune from an

attack on it on the ground of its invalidity. W. H. RICHARDSON et al., Respondents, v. G. 3. Judgment w533--Construed with relation W. YANCY et al., Appellants. (No 18583.)

to particular matter before court for ad(Supreme Court of Washington. Nov. 26,

judication. 1924.)

Every judgment must be construed with re

lation to the particular matter before the Department 1.

court for adjudication. Appeal from Superior Court, King County; 4. Judgment em443(1)-Decree quieting title Neal, Judge.

held not to prevent an attack against it on Donworth, Todd & Higgins, of Seattle, for the ground of its fraudulent procuration. appellants.

Where a judgment quieting title decreed Benton Embree, of Seattle, for respondents.

the invalidity of plaintiffs' claims to the prop

erty and enjoined them from setting them up, PER CURIAM. The departmental opinion in held, that the decree did not prevent plaintiffs this case, filed September 25, 1924, 228 P.; 700; from attacking the decree as fraudulently obclearly shows that the judgment below included one-half of the value of three feet of the party tained and void, where that claim was not wall extending above the top of appellants' | the court had power to enjoin such attack.

before the court for adjudication, even if building, and the finding of the department was that appellants were using this party wall to the extent only of one foot above the roof of their

In Bank. building. We think the language of the opinion, Certiorari to Superior Court, Stanislaus properly construed, indicates that the depart- County; K. S. Mahon, Judge. ment intended only to modify the judgment by excluding that which had been wrongfully in

Petition by Clara E. Newport and others cluded; but by reason of the language used, in for certiorari to review order of the Superior that it failed to state explicitly that the judg- Court of Stanislaus County and K. S. Mahon, ment must be modified by excluding the cost of as Judge thereof, adjudging petitioners one-half of two feet of the wall, there seems to guilty of contempt. Order annulled. be a possibility of its being misconstrued. To obviate any such possibility the last paragraph

Humphrey, Grant, Zimdars & Warren, of of the departmental opinion is hereby amended San Francisco, for petitioners. and modified so as to read:

Hawkins & Hawkins, W. J. Brown, T. B. "We find no error in the case, except as Scott, J. M. Walthall, A. J. Carlson, Dennett hereinbefore pointed out, in allowing for the & Zion, Griffin, Boone & Boone, S. P. Elias, use of the party wall to the extent of three and H, L. Chamberlain, all of Modesto, for feet instead of one foot above the roof of appellants' building. The judgment must be mod

respondents. ified by reducing the amount to the extent of the value of one-half of the excess two feet of

WILBUR, C. J. The petitioners have apthe wall which was allowed by the trial court, plied for a writ of review of the proceedand when so modified it will stand affirmed, but ings by the respondent court, resulting in an without costs in this court to either party." adjudication of contempt of court against

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(230 P.) the petitioners. An order was made requir-, is evident that, even if the court had the ing respondents to show cause why such power to enjoin an action of the character writ should not issue, and in response to such brought by the petitioners, its judgment canorder the respondents have demurred to the not reasonably be construed to have that petition. The entire record is set up in the effect, for every judgment must be construed petition, and it appears therefrom the pe with relation to the particular matter before titioners were adjudged guilty of contempt the court for adjudication. In that action it of court because of the commencement of an was alleged that the plaintiff was the owner action alleging violation of the injunctive of the title in fee simple, and that the adverse provisions of a judgment rendered in the claims of the defendant were invalid and action of Plato v. Newport.

groundless, and enjoined the defendant from [1] The provision of the judgment in the setting up the same. It is obvious that suit to quiet title (Plato v. Newport) con- there was no intention by the decree to pretained the following injunctive provision: vent the defendants claiming that the decree

* And all adverse claims of each and itself was fraudulently obtained and void. all of said defendants in or to said land, or in That is not the character of the claim which or to any part thereof, are invalid and ground- was before the court for adjudication in the less, and that the said defendants are and each suit to quiet title. of them is perpetually enjoined and restrained The adjudication of contempt should be from setting up the same.”

annulled. Unless within 30 days the respond

ents annul the order judging the petitioners It is unnecessary in this opinion to state fully the nature of the action instituted by guilty of contempt of court, a writ will be the petitioners herein, which it is claimed ord to this court.

issued requiring the certification of the recviolated the terms of such injunctive order, for the reason that such facts are fully stated in our decision in Newport v. Hatton, We concur: LENNON, J.; KERRIGAN, filed herewith. Newport v. Hatton, 66 Cal. J.; SEAWELL, J.; WASTE, J.; LAWDec. 351, on rehearing 67 Cal. Dec. 360.1 The LOR, J. action instituted by the petitioners herein, as we view it, is an action which fully recognizes the decision of the superior court in the suit of Plato v. Newport, but prays that the title thereby secured by the plain PEOPLE v. McGANN. (Cr. 2694.) tiff Plato shall be adjudged to be held in trust for the plaintiffs in the case of New-i (Supreme Court of California. Oct. 28, 1924. port v. Hatton, supra. "It was not a viola

Rehearing Denied Nov. 20, 1924.) tion of the injunctive provisions of the judg-1. Criminal law cm368(3)–Testimony as to ment to institute such an action. The action events following killing, held properly exbegun by the petitioners, who were adjudged cluded, not being part of res gestæ. guilty of contempt by the respondents, was Testimony by witness of killing as to acone which fully recognized the fact that the tions of defendant's wife who was with delegal title to the property in question was ceased when killed, immediately after shooting by the decree in the suit to quiet title vested and relating to position of decedent's body aft

er defendant had gone some distance away and in the plaintiff in that action. [2] It is true that the plaintiffs in the fered as "part of the res gestæ;" it not being

then returned, held properly excluded when ofcase of Newport v. Hatton, supra, charged part of res geste. that the judgment in the quiet title suit of Plato v. Newport was obtained by fraud, and 2. Homicide aw 192—Acts and threats of defor that reason claim that the judgment in

ceased, though uncommunicated, tending to that case was void. Even viewed in that

show him the aggressor in deadly encounter,

are admissible. light, a judgment in a suit to quiet title could not enjoin the parties from taking proceed

ed- Where survivor of deadly encounter where

one party is killed alleges self-defense, quesings for the purpose of having it adjudged tion as to who was aggressor becomes vital, that the judgment was void, for no judgment and acts and conduct of deceased communicated could enjoin an attack upon that judgment or uncommunicated to defendant, are properly based upon the claim that such judgment considered on such issue. was absolutely void. [3, 4] We think it wholly unnecessary to 3. Criminal law Como 1120(3)—Where record did

not show substance of proffered evidence, its follow the elaborate argument of the respond

exclusion could not be held prejudicial to deents whereby it is sought to establish that

fendant's rights. the injunctive order had full force and effect

Where record did not disclose substance of until vacated in some fashion, and that the evidence proffered to show deceased the agmere filing of a complaint charging the gressor, further than counsel's statement that judgment to be void does not destroy its it was to show state of mind and declaration validity and effect, for the reason that it I of intent, held court could not determine wheth

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* Superseded by opinion on second rehearing, 231 P. 987.

er substantial rights of defendant were prej-111. Homicide e 309(1), 340(4)-instruction udiced by its exclusion.

Jimiting effect of evidence that defendant had

seen his estranged wife with deceased, held 4. Criminal law Om 1170(3)-Exclusion of ovja improperly given, but not prejudicial. dence indicating deceased was aggressor,

held

Instruction that testimony that defendant not prejudicial.

had left his home at direction of bis wife and on Exclusion of testimony by defendant's wife her statement that sh did not care for him who was with deceased when killed tending to and that he and others had seen her with deshow deceased the aggressor held not prejudi- ceased, should not be considered as having any cial where other facts testified to by her and tendency to reduce defendant's offense from others strongly indicated such fact.

murder to manslaughter, and that it related

solely to defendant's plea of insanity, held er5. Criminal law Om738–Motive is essentially a roneously given, but not prejudicial in view of question of fact.

verdict for manslaughter. Motive is essentially a question of fact.

In Bank. 6. Criminal law Om763, 764 (10)--Instruction that unknown motives exist and that thirst

Appeal from Superior Court, Los Angeles for blood would be 'motive, held improper

County; Sidney N. Reeve, Judge. harge on question of fact.

Frank D. McGann was convicted of manWhere defendant alleged he acted in self- slaughter, and he appeals. Affirmed. defense, and evidence was conflicting as to who Ford, Bodkin, Watt & Herlihy, of Los An. was aggressor, and as to whether appearances geles, for appellant. would justify reasonable man in believing him

U. S. Webb, Atty. Gen., and Erwin W. Wiá. self in danger, instruction “motives exist unknown and innumerable which might prompt ney, Deputy Atty. Gen., for the People. the act. A morbid and restless (but irresistible) thirst for blood would itself be a motive, WASTE, J. Upon information charging

held an improper charge on an ulti- him with the crime of murder, the defendmate question of fact.

ant was convicted of manslaughter. He ap

peals from the judgment, and from an order 7. Criminal law w1172(2)-Error in instruct. denying his motion for a new trial. There is ing on matters of fact is of no greater im- no question of the fact that the appellant portance than any other if no injury results.

killed one R. T. McAdams, as alleged in the No more importance is to be attached to information. On the day of the killing, at error in violating constitutional provision for about 9 o'clock in the evening, the wife of bidding instructions as to matters of fact than the appellant, who appears to have been esto any other, if no injury results from it.

tranged from her husband, and to have been 8. Criminal law Om 1163(1)–Prejudice from very intimate with McAdams, went with Mc

error not presumed; substantial injury must Adams to an amusement section in the city be shown to warrant reversal.

of Long Beach known as the "Pike." There

McAdams was killed, the appellant firing two Prejudice from an error is not presumed, shots from a revolver into his body. McAdbut substantial injury must affirmatively appear to warrant setting aside conviction.

ams fell to the sidewalk, and the defendant

fired three more bullets into the inert body. 9. Criminal law Om 1172(8)-Erroneous in. There is evidence in the record from which

struction on ultimate fact held not prejudi. it may be inferred that one of the first shots cial.

was fatal. The defenses presented at the An erroneous charge that unknown motives trial were, first, self-defense, and, second, inmight exist, and that a thirst for blood might sanity of the defendant at the time he combe a motive, though erroneous as instruction mitted the act. on ultimate question of fact, held not prejudi

[1] On this appeal it is urged that the cial, where issue of malice was resolved in his favor by conviction for manslaughter rather court erred in sustaining an objection of the than for murder.

district attorney to questions asked of a wit

ness, Martin, who was an eyewitness from 10. Homicide On 294(1)-Instruction that law the beginning of the affray until the defend

does not recognize plea of irresistible im- ant was arrested, and who, while on the pulse, and that responsibility depended on stand, minutely described what took place. defendant's knowledge of act, held not er. On cross-examination the defendant sought

to elicit from the witness testimony concernWhere defendant introduced evidence tend- ing the actions of Mrs. McGann immediately ing to show that he had been controlled by after the shooting, and relating to the posisome temporary aberration of the mind when tion of the decedent's body after the defendhe shot deceased, it was not error for court to instruct that law did not recognize plea of ir

ant had gone some distance away, and then resistible impulse, and that responsibility de- returned to the scene after the fatal shots pended on question whether defendant was con

were fired. Although in his briefs on appeal scious of and knew nature of act committed the appellant asserts that he attempted to at time of its commission and that it was cross-examine the witness Martin on these wrong.

matters for the purpose of testing the

roneous.

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(230 P.) strength of his recollection, the record dis-, that, in view of his plea of self-defense, it closes that this evidence was sought to be was important to determine whether or not introduced as “part of the res gestæ, for one the deceased was the aggressor and for that purpose," and also to show "what it was reason he should have been permitted to that the defendant was looking at.” The show that the decedent uttered threats contrial court properly sustained objection to cerning the defendant immediately prior to this testimony. The record discloses that the the affray, which although uncommunicated witness Martin was cross-examined exten- to the defendant had a material bearing upsively concerning all the matters observed on what followed. This court has said that by him during the altercation; and Mrs. Mc- in case of a deadly encounter, where one parGann, while on the stand, narrated fully the ty is killed and the survivor claims that the details of what she did immediately after kiiling was done in self-defense, the quesMcAdams fell to the ground. The additional) tion as to who was the aggressor is an isevidence sought to be elicited from Martin, sue of vital importance for the consideraand to which the objection was sustained, in tion of the jury. Under these circumstances, no way related to the res gestæ.

all the acts and conduct of the deceased, eiIt is next urged that the court erred in re-ther in the nature of overt, acts of hostility fusing to permit the wife of the defendant, or threats, communicated or uncommunicatwho was a witness for the defense, to testi- | ed, are proper evidence to be considered by fy as to what was said by the decedent Mc- the jury as shedding light, to some extent, Adams to her immediately before the shoot- upon the issue as to whether the deceased ing, when the wife and McAdams first saw or the defendant was the real aggressor in the McGann, such conversation not having been affray. People v. Thomson, 92 Cal. 506, 511, heard by the defendant. After locating the 28 P. 589. It is now urged by the defendplace from which the witness and the de- ant, on the strength of this and other auceased saw the defendant, counsel for the thorities, that if Mrs. McGann had been perdefense asked.

mitted to testify as to what the decedent, "At that time did you have a conversation McAdams, said to her, immediately prior to with Mr. McAdams, the deceased, about Mr. the affray, it would have been shown that McGann? A. I did.

the decedent deliberately approached Mo "Q. What was said between you at that time? Gann “with the purpose of starting trouble "Mr. Van Cott (deputy district attorney): and injuring the defendant.” He made no That is objected to as irrelevant and immate- such explanation to the trial court at the rial on any theory.

"Mr. Ford: Showing a state of mind and a time, and does not now enlighten us as to declaration of intention, your honor, not as what the witness would have testified to. eviderice of the narrative, but merely as a dec- Aside from the scant declaration of counsel laration.

at the time the objection was interposed, the "Mr. Van Cott: I object to that as irrelevant only reference, or intimation from which the and immaterial.

trial court might be apprised of the object of "The Court: I will sustain the objection."

the defendant in asking the question is The examination then proceeded without found in the opening statement of counsel for further statement or offer on behalf of the the defense when he said, without referring defendant as to what he intended to show, to any witness or witnesses, “we offer to and the court was not apprised of the pur- show his [the decedent's] state of mind pose for which the evidence was sought, oth- sentiment-I have forgotten the exact laner than as stated by Mr. Ford. The witness guage; the witnesses will testify to in that, then described the shooting. The substance but the effect was, that he would show the of her testimony was that, although she did defendant he was not afraid of him.” not "want to go that way,” after the presence of the defendant was noted, McAdams whether or not the answers of the witness and she walked toward her husband; that would have had the effect now suggested by when they reached the defendant the dece appellant. There is nothing in the record dent bumped into him with his left shoulder; from which we may judge the fact. Counsel that the defendant then took hold of the de- did not attempt to further explain the purcedent's arm and said to him: "Do you know pose of the question, nor offer to show wherethis woman you are walking with is my in the testimony sought to be elicited would wife, and you have broken up my home?” in any way relate to the issue of the defendTo which the decedent replied: “She was ant's guilt or innocence. If, as appellant yours, but she is mine now. I am going to now contends, the real purpose of the ques. keep her.

What the hell are you tion was to show who was the aggressor in going to do about it?

Take your the affray, he should have stated such purhand off my arm." According to the witness, pose more clearly to the trial court, in order the decedent then struck the defendant in that it might intelligently rule upon an obthe face. There was a further altercation, jection to a question which did not, of itself, and the shooting of the decedent by the de- show its relevancy or materiality. This fendant occurred.

court cannot, in the present state of the rec[2] It is the contention of the defendant ord, determine whether or not the substan

- 4 tsp we are, therefore, unable to say

* *

now

tial rights of the defendant were prejudiced, Carthy, 115 Cal. 255, at page 264, 46 P. 1073, by the ruling. People v. Ferdinand (Cal. | 1076, in commenting upon a similar instrucSup.) 229' P. 341; People v. Brent, 11 Cal. tion, that "whatever may be correctly stated App. 674, 676, 106 P. 110; People v. Reyes by counsel in argument to the jury, as a le(Cal. Sup.) 229 P. 947. But, assuming that gal guide to facilitate their deliberations, the trial court was apprised of the nature of must necessarily be held proper matter for inthe evidence sought to be introduced, it does struction by the judge, since the latter is not appear that the defendant was injured. the source from which the jury are to re

[4] Mrs. McGann was permitted to testify ceive their guidance in the law” But the to the fact that she was compelled to go with point here urged was not raised in that case. the deceased against her will to where the It is argued that the instruction defendant was standing. She testified fully amounted to a charge to the jury with reas to the other facts strongly tending to indic spect to matters of fact. The contention cate that the decedent was the aggressor. must be upheld. There is also evidence that other parties had The question of a motive in a criminal told the defendant that the decedent was a prosecution is essentially a question of fact. "bully," and that he was a bad man. The People v. Tom Woo, 181 Cal. 315, 328, 184 P. defendant on the stand gave his version of 389; People v Besold, 154 Cal. 363, 369, 97 the affray. In addition to the facts related P. 871. An instruction, in effect not unlike by his wife, he testified that the decedent, the one here criticized, and in which the after he approached, made a motion as if to trial court discussed the importance of a modraw a gun from his hip pocket, whereupon tive in a criminal case, was held to be "an he [the defendant] “shot him”; that he had argument against the defendant on the been told that the decedent was "quarrel- facts,” and a violation of the constitutional some, bad, and dangerous, and to look out inhibition declaring that judges shall not for him," and that he believed that he was charge juries with respect to matters of fact. in danger at the time the shots were fired. People v. Vereneseneckockockhoff, 129 Cal. In view of the complete testimony in the rec- 497, 508, 58 P. 156, 62 P. 111. Where a deord, we are unable to conceive how any prej- fendant, admitting the homicide, contends udice was done to the defendant by the ac

that it was in necessary self-defense, and tion of the trial court in sustaining the ob- the evidence is conflicting as to who was the jection to the question asked Mrs. McGann. aggressor, and as to whether appearances

[5, 6] In concluding one of its instructions at the time the fatal shot was fired would to the jury, the court said:

justify a reasonable man in believing him"It has been urged on behalf of the defend-self in danger, an instruction that unknown ant that, it being impossible to assign any rea

motives exist, although not proven, and that son for the perpetration of the offense, he

a "thirst for blood" would be a motive urgmust have been acting under what is called a powerful and irresistible influence or homicidal ing the deed, is a charge on the ultimate tendency. But in that connection I charge you question upon which the jury is to pass. that the circumstances of an act being appar- | People v. Enwright, 134 Cal. 527, 530, 66 P. ently motiveless is not a ground from which 726. Here, the instruction practically inyou can safely infer the existence of such an formed the jury that it would be warranted influence. Motives exist unknown and innumer- | in finding a motive for the conduct of the deable which might prompt the act. A morbid fendant without any proof whatever. People and restless (but irresistible) thirst for blood would itself be a motive urging such a deed v: Argentos, 156 Cal. 720, 730, 106 P. 65. The

giving of the instruction not being Justified for its own relief."

in law, or by the facts, it must be deterIt is now urged that the court's statement mined whether or not the trial court's action that "it has been urged on behalf of the de- resulted in material prejudice to the cause fendant that, it being impossible to assign of the defendant. any reason for the perpetration of the of [7,8] No more importance is to be attached fense,” was a comment upon the evidence to an error of the trial court in violating the which practically amounted to the court say- provision of the Constitution forbidding ining that the reason assigned by the defend-structions with respect to matters of fact ant for the firing of the shots which caused than to any other, if no injury results from death was no reason at all, and should not be it. People v. Ybarra, 17 Cal. 166, 171. Such considered by the jury, and that the state- a declaration was made by this court at a ment was prejudicial, when coupled with the time when injury to a defendant in a crimclosing statement that "a morbid and restless | inal cause would be presumed unless the con(but irresistible) thirst for blood would it-trary clearly appeared. People v. Eppinger, self be a motive urging such a deed for its 109 Cal. 291, 297, 41 P. 1037. Prejudice is no own relief.”

longer presumed, but substantial injury, as The statement by the court of what had well as error, must be made affirmatively been "urged on behalf of the defendant” in- to appear before a judgment of conviction dicates that matters of the nature referred to will be set aside. Vallejo, etc., R. R. Co. v. in the instruction had been injected into Reed Orchard Co., 169 Cal. 545, 554, 147 P. the trial, and it was held in People v. Mc- 238; People v. Alba, 52 Cal. App. 603, 608,

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