1 [5] The state did not hold under a subsequent conveyance or incumbrance, and title is not created by the filing of the notice. The court found that the deed in question I was not delivered until after the bringing of this action and the filing and recording of a Such amendment to appear in the permanent printed volume as a part of the departmental opinion in lieu of the last paragraph thereof as appears in the opinion filed September 25, 1924. STANISLAUS COUNTY et al. (Supreme Court of California. Sept. 19, 1923.) notice of lis pendens, and that the two Jap- NEWPORT et al. v. SUPERIOR COURT OF anese owned the property at the time the action was brought and the notice filed. This finding, however, does not give effect to the legal presumption that the deed was delivered on the day it was executed and acknowledged. As stated, there is no evidence as to the time of the delivery of the deed, and there is no evidence as to who was in the possession of the property at any time. The judgment as to the west 25 feet of lot 10 will be affirmed. The judgment as to the south 25 feet of lot 11 will be reversed, with direction that as to that tract the action be dismissed. HOLCOMB, TOLMAN, PARKER, and MACKINTOSH, JJ., concur. W. H. RICHARDSON et al., Respondents, v. G. W. YANCY et al., Appellants. (No 18583.) (Supreme Court of Washington. Nov. 26, 1924.) Department 1. Appeal from Superior Court, King County; Neal, Judge. Donworth, Todd & Higgins, of Seattle, for appellants. Benton Embree, of Seattle, for respondents. PER CURIAM. The departmental opinion in this case, filed September 25, 1924, 228 P. 700, clearly shows that the judgment below included one-half of the value of three feet of the party wall extending above the top of appellants' 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 building. We think the language of the opinion, properly construed, indicates that the department intended only to modify the judgment by excluding that which had been wrongfully included; but by reason of the language used, in that it failed to state explicitly that the judgment must be modified by excluding the cost of one-half of two feet of the wall, there seems to be a possibility of its being misconstrued. To obviate any such possibility the last paragraph of the departmental opinion is hereby amended and modified so as to read: "We find no error in the case, except as hereinbefore pointed out, in allowing for the use of the party wall to the extent of three feet instead of one foot above the roof of appellants' building. The judgment must be modified by reducing the amount to the extent of the value of one-half of the excess two feet of the wall which was allowed by the trial court, and when so modified it will stand affirmed, but without costs in this court to either party." I. Injunction ~~223(1) Suit to have title quieted adjudged held in trust held not violative of injunctive provisions of judgment. Where a judgment quieting title adjudged the invalidity of plaintiffs' claims in the property and enjoined them from setting up the same, a suit seeking to have the title quieted adjudged held in trust for plaintiffs, held not a violation of the injunctive provisions. 2. Judgment 443 (1)—No judgment immune from attack on it on ground of its invalidity. 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. 3. Judgment 533-Construed with relation to particular matter before court for adjudication. Every judgment must be construed with relation to the particular matter before the court for adjudication. 4. Judgment 443 (1)—Decree quieting title held not to prevent an attack against it on the ground of its fraudulent procuration. Where a judgment quieting title decreed the invalidity of plaintiffs' claims to the property and enjoined them from setting them up, held, that the decree did not prevent plaintiffs from attacking the decree as fraudulently obtained and void, where that claim was not before the court for adjudication, even if the court had power to enjoin such attack. In Bank. Certiorari to Superior Court, Stanislaus County; K. S. Mahon, Judge. Petition by Clara E. Newport and others for certiorari to review order of the Superior Court of Stanislaus County and K. S. Mahon, as Judge thereof, adjudging petitioners guilty of contempt. Order annulled. Humphrey, Grant, Zimdars & Warren, of San Francisco, for petitioners. Hawkins & Hawkins, W. J. Brown, T. B. Scott, J. M. Walthall, A. J. Carlson, Dennett & Zion, Griffin, Boone & Boone, S. P. Elias, and H. L. Chamberlain, all of Modesto, for respondents. WILBUR, C. J. The petitioners have applied for a writ of review of the proceedings by the respondent court, resulting in an adjudication of contempt of court against (230 P.) the petitioners. An order was made requiring respondents to show cause why such writ should not issue, and in response to such order the respondents have demurred to the petition. The entire record is set up in the petition, and it appears therefrom the petitioners were adjudged guilty of contempt of court because of the commencement of an action alleging violation of the injunctive provisions of a judgment rendered in the action of Plato v. Newport. [1] The provision of the judgment in the suit to quiet title (Plato v. Newport) contained the following injunctive provision: And all adverse claims of each and all of said defendants in or to said land, or in or to any part thereof, are invalid and groundless, and that the said defendants are and each of them is perpetually enjoined and restrained from setting up the same." is evident that, even if the court had the power to enjoin an action of the character brought by the petitioners, its judgment cannot reasonably be construed to have that effect, for every judgment must be construed with relation to the particular matter before the court for adjudication. In that action it was alleged that the plaintiff was the owner of the title in fee simple, and that the adverse claims of the defendant were invalid and groundless, and enjoined the defendant from setting up the same. It is obvious that there was no intention by the decree to prevent the defendants claiming that the decree itself was fraudulently obtained and void. That is not the character of the claim which was before the court for adjudication in the suit to quiet title. The adjudication of contempt should be annulled. Unless within 30 days the respondents annul the order judging the petitioners guilty of contempt of court, a writ will be issued requiring the certification of the rec ord to this court. We concur: LENNON, J.; KERRIGAN, J.; SEAWELL, J.; WASTE, J.; LAWLOR, J. It is unnecessary in this opinion to state fully the nature of the action instituted by the petitioners herein, which it is claimed violated the terms of such injunctive order, for the reason that such facts are fully stated in our decision in Newport v. Hatton, filed herewith. Newport v. Hatton, 66 Cal. Dec. 351, on rehearing 67 Cal. Dec. 360.1 The 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 plaintiff Plato shall be adjudged to be held in trust for the plaintiffs in the case of Newport v. Hatton, supra. It was not a violation of the injunctive provisions of the judg-1. ment to institute such an action. The action begun by the petitioners, who were adjudged guilty of contempt by the respondents, was one which fully recognized the fact that the legal title to the property in question was by the decree in the suit to quiet title vested in the plaintiff in that action. [2] It is true that the plaintiffs in the case of Newport v. Hatton, supra, charged that the judgment in the quiet title suit of Plato v. Newport was obtained by fraud, and for that reason claim that the judgment in that case was void. Even viewed in that light, a judgment in a suit to quiet title could not enjoin the parties from taking proceedings for the purpose of having it adjudged that the judgment was void, for no judgment could enjoin an attack upon that judgment based upon the claim that such judgment was absolutely void. [3, 4] We think it wholly unnecessary to PEOPLE v. McGANN. (Cr. 2694.) (Supreme Court of California. Oct. 28, 1924. Rehearing Denied Nov. 20, 1924.) Criminal law 368(3)-Testimony as to events following killing, held properly excluded, not being part of res gestæ. Testimony by witness of killing as to actions of defendant's wife who was with deceased when killed, immediately after shooting and relating to position of decedent's body after defendant had gone some distance away and fered as "part of the res gestæ;" it not being then returned, held properly excluded when ofpart of res gestæ. 2. Homicide 192-Acts and threats of deceased, though uncommunicated, tending to show him the aggressor in deadly encounter, are admissible. one party is killed alleges self-defense, quesWhere survivor of deadly encounter where tion as to who was aggressor becomes vital, and acts and conduct of deceased communicated or uncommunicated to defendant, are properly considered on such issue. 3. Criminal law 1120 (3)-Where record did not show substance of proffered evidence, its exclusion could not be held prejudicial to defendant's rights. follow the elaborate argument of the respond- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes er substantial rights of defendant were prej- 11. Homicide 309(1), 340 (4)-Instruction udiced by its exclusion. 4. Criminal law 1170 (3)-Exclusion of evidence indicating deceased was aggressor, held not prejudicial. Exclusion of testimony by defendant's wife who was with deceased when killed tending to show deceased the aggressor held not prejudicial where other facts testified to by her and others strongly indicated such fact. 5. Criminal law question of fact. 738-Motive is essentially a Motive is essentially a question of fact. 6. Criminal law 763, 764(10)-Instruction that unknown motives exist and that thirst for blood would be motive, held improper charge on question of fact. Where defendant alleged he acted in selfdefense, and evidence was conflicting as to who was aggressor, and as to whether appearances would justify reasonable man in believing himself in danger, instruction "motives exist unknown and innumerable which might prompt the act. A morbid and restless (but irresistible) thirst for blood would itself be a motive, held an improper charge on an ulti * * mate question of fact. 7. Criminal law 1172(2)—Error in instructing on matters of fact is of no greater importance than any other if no injury results. No more importance is to be attached to error in violating constitutional provision forbidding instructions as to matters of fact than to any other, if no injury results from it. 8. Criminal law 1163(1)—Prejudice from error not presumed; substantial injury must be shown to warrant reversal. Prejudice from an error is not presumed, but substantial injury must affirmatively appear to warrant Setting aside conviction. limiting effect of evidence that defendant had seen his estranged wife with deceased, held improperly given, but not prejudicial. Instruction that testimony that defendant had left his home at direction of his wife and on her statement that she did not care for him and that he and others had seen her with deceased, should not be considered as having any tendency to reduce defendant's offense from murder to manslaughter, and that it related solely to defendant's plea of insanity, held erroneously given, but not prejudicial in view of verdict for manslaughter. In Bank. Appeal from Superior Court, Los Angeles County; Sidney N. Reeve, Judge. Frank D. McGann was convicted of manslaughter, and he appeals. Affirmed. Ford, Bodkin, Watt & Herlihy, of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Erwin W. Widney, Deputy Atty. Gen., for the People. WASTE, J. Upon information charging him with the crime of murder, the defendant was convicted of manslaughter. He appeals from the judgment, and from an order denying his motion for a new trial. There is no question of the fact that the appellant killed one R. T. McAdams, as alleged in the information. On the day of the killing, at about 9 o'clock in the evening, the wife of the appellant, who appears to have been estranged from her husband, and to have been very intimate with McAdams, went with McAdams to an amusement section in the city of Long Beach known as the "Pike." There shots from a revolver into his body. McAdMcAdams was killed, the appellant firing two ams fell to the sidewalk, and the defendant fired three more bullets into the inert body. There is evidence in the record from which it may be inferred that one of the first shots was fatal. The defenses presented at the trial were, first, self-defense, and, second, insanity of the defendant at the time he committed the act. [1] On this appeal it is urged that the court erred in sustaining an objection of the district attorney to questions asked of a witness, Martin, who was an eyewitness from the beginning of the affray until the defendant was arrested, and who, while on the stand, minutely described what took place. On cross-examination the defendant sought to elicit from the witness testimony concerning the actions of Mrs. McGann immediately after the shooting, and relating to the posi tion of the decedent's body after the defendant had gone some distance away, and then returned to the scene after the fatal shots were fired. Although in his briefs on appeal the appellant asserts that he attempted to cross-examine the witness Martin on these matters for the purpose of testing the (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 introduced as "part of the res gestæ, for one purpose," and also to show "what it was that the defendant was looking at." The trial court properly sustained objection to this testimony. The record discloses that the witness Martin was cross-examined extensively concerning all the matters observed by him during the altercation; and Mrs. McGann, while on the stand, narrated fully the details of what she did immediately after McAdams fell to the ground. The additional evidence sought to be elicited from Martin, and to which the objection was sustained, in no way related to the res gestæ. was important to determine whether or not the deceased was the aggressor and for that reason he should have been permitted to show that the decedent uttered threats concerning the defendant immediately prior to the affray, which although uncommunicated to the defendant had a material bearing upon what followed. This court has said that in case of a deadly encounter, where one party is killed and the survivor claims that the killing was done in self-defense, the question as to who was the aggressor is an issue of vital importance for the consideration of the jury. Under these circumstances, 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, McAdams, said to her, immediately prior to the affray, it would have been shown that the decedent deliberately approached McGann "with the purpose of starting trouble and injuring the defendant." He made no such explanation to the trial court at the time, and does not now enlighten us as to what the witness would have testified to. Aside from the scant declaration of counsel at the time the objection was interposed, the only reference, or intimation from which the trial court might be apprised of the object of the defendant in asking the question is found in the opening statement of counsel for the defense when he said, without referring to any witness or witnesses, "we offer to show his [the decedent's] state of mindsentiment-I have forgotten the exact language; the witnesses will testify to in that, but the effect was, that he would show the defendant he was not afraid of him." "At that time did you have a conversation with Mr. McAdams, the deceased, about Mr. McGann? A. I did. "Q. What was said between you at that time? "Mr. Van Cott (deputy district attorney) That is objected to as irrelevant and immate rial on any theory. "Mr. Ford: Showing a state of mind and a declaration of intention, your honor, not as evidence of the narrative, but merely as a declaration. "Mr. Van Cott: I object to that as irrelevant and immaterial. "The Court: I will sustain the objection." The examination then proceeded without further statement or offer on behalf of the defendant as to what he intended to show, and the court was not apprised of the purpose for which the evidence was sought, other than as stated by Mr. Ford. The witness then described the shooting. The substance of her testimony was that, although she did not "want to go that way," after the presence of the defendant was noted, McAdams and she walked toward her husband; that when they reached the defendant the decedent bumped into him with his left shoulder; that the defendant then took hold of the decedent's arm and said to him: "Do you know this woman you are walking with is my wife, and you have broken up my home?" To which the decedent replied: "She was yours, but she is mine now. I am going to keep her. What the hell are you going to do about it? Take your hand off my arm." According to the witness, the decedent then struck the defendant in the face. There was a further altercation, and the shooting of the decedent by the defendant occurred. [3] We are, therefore, unable to say whether or not the answers of the witness would have had the effect now suggested by appellant. There is nothing in the record from which we may judge the fact. Counsel did not attempt to further explain the purpose of the question, nor offer to show wherein the testimony sought to be elicited would in any way relate to the issue of the defendant's guilt or innocence. If, as appellant now contends, the real purpose of the question was to show who was the aggressor in the affray, he should have stated such purpose more clearly to the trial court, in order that it might intelligently rule upon an objection to a question which did not, of itself, show its relevancy or materiality. This court cannot, in the present state of the rec[2] It is the contention of the defendant ord, determine whether or not the substan 率 * * * 1 tial rights of the defendant were prejudiced, by the ruling. People v. Ferdinand (Cal. Sup.) 229 P. 341; People v. Brent, 11 Cal. App. 674, 676, 106 P. 110; People v. Reyes (Cal. Sup.) 229 P. 947. But, assuming that the trial court was apprised of the nature of the evidence sought to be introduced, it does not appear that the defendant was injured. [4] Mrs. McGann was permitted to testify to the fact that she was compelled to go with the deceased against her will to where the defendant was standing. She testified fully as to the other facts strongly tending to indicate that the decedent was the aggressor. There is also evidence that other parties had told the defendant that the decedent was a "bully," and that he was a bad man. The defendant on the stand gave his version of the affray. In addition to the facts related by his wife, he testified that the decedent, after he approached, made a motion as if to draw a gun from his hip pocket, whereupon he [the defendant] "shot him"; that he had been told that the decedent was "quarrelsome, bad, and dangerous, and to look out for him," and that he believed that he was in danger at the time the shots were fired. In view of the complete testimony in the record, we are unable to conceive how any prejudice was done to the defendant by the action of the trial court in sustaining the objection to the question asked Mrs. McGann. [5, 6] In concluding one of its instructions to the jury, the court said: "It has been urged on behalf of the defendant that, it being impossible to assign any reason for the perpetration of the offense, he must have been acting under what is called a powerful and irresistible influence or homicidal tendency. But in that connection I charge you that the circumstances of an act being apparently motiveless is not a ground from which you can safely infer the existence of such an influence. Motives exist unknown and innumerable which might prompt the act. A morbid and restless (but irresistible) thirst for blood would itself be a motive urging such a deed for its own relief." It is now urged that the court's statement that "it has been urged on behalf of the defendant that, it being impossible to assign any reason for the perpetration of the offense," was a comment upon the evidence which practically amounted to the court saying that the reason assigned by the defendant for the firing of the shots which caused death was no reason at all, and should not be considered by the jury, and that the statement was prejudicial, when coupled with the closing statement that "a morbid and restless (but irresistible) thirst for blood would itself be a motive urging such a deed for its own relief." The statement by the court of what had been "urged on behalf of the defendant" indicates that matters of the nature referred to in the instruction had been injected into Carthy, 115 Cal. 255, at page 264, 46 P. 1073, 1076, in commenting upon a similar instruction, that "whatever may be correctly stated by counsel in argument to the jury, as a legal guide to facilitate their deliberations, must necessarily be held proper matter for instruction by the judge, since the latter is the source from which the jury are to receive their guidance in the law" But the point here urged was not raised in that case. It is now argued that the instruction amounted to a charge to the jury with respect to matters of fact. The contention must be upheld. The question of a motive in a criminal prosecution is essentially a question of fact. People v. Tom Woo, 181 Cal. 315, 328, 184 P. 389; People v Besold, 154 Cal. 363, 369, 97 P. 871. An instruction, in effect not unlike the one here criticized, and in which the trial court discussed the importance of a motive in a criminal case, was held to be "an argument against the defendant on the facts," and a violation of the constitutional inhibition declaring that judges shall not charge juries with respect to matters of fact. People v. Vereneseneckockockhoff, 129 Cal. 497, 508, 58 P. 156, 62 P. 111. Where a defendant, admitting the homicide, contends that it was in necessary self-defense, and the evidence is conflicting as to who was the aggressor, and as to whether appearances at the time the fatal shot was fired would justify a reasonable man in believing himself in danger, an instruction that unknown motives exist, although not proven, and that a "thirst for blood" would be a motive urging the deed, is a charge on the ultimate question upon which the jury is to pass. People v. Enwright, 134 Cal. 527, 530, 66 P. 726. Here, the instruction practically informed the jury that it would be warranted in finding a motive for the conduct of the defendant without any proof whatever. People v. Argentos, 156 Cal. 720, 730, 106 P. 65. The giving of the instruction not being Justified in law, or by the facts, it must be determined whether or not the trial court's action resulted in material prejudice to the cause of the defendant. [7, 8] No more importance is to be attached to an error of the trial court in violating the provision of the Constitution forbidding instructions with respect to matters of fact than to any other, if no injury results from it. People v. Ybarra, 17 Cal. 166, 171. Such a declaration was made by this court at a time when injury to a defendant in a criminal cause would be presumed unless the contrary clearly appeared. People v. Eppinger, 109 Cal. 294, 297, 41 P. 1037. Prejudice is no longer presumed, but substantial injury, as well as error, must be made affirmatively to appear before a judgment of conviction will be set aside. Vallejo, etc., R. R. Co. v. Reed Orchard Co., 169 Cal. 545, 554, 147 P. |