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(230 P.).

199 P. 894. The defendant fired five shots into the body of the decedent. As to the first two, he pleaded necessary self-defense, thereby advancing a motive in justification of his deed. Such contention was prominently before the jury at all stages of the trial. It was fully and correctly instructed on the law of self-defense. In view of the situation thus presented, it seems incredible that the court could have intended, or that the jury considered, that the instruction should have any reference to the defense of selfpreservation interposed by the defendant. So far as it could have had any application to the facts of the case, the instruction must be deemed to have had relation to the 'contention of the defendant that, after the first two shots were fired, his mind became blank and gave way, and that he did not know what had been done, and had no memory of any other shots being fired. If he fired several shots into the body of McAdams after all necessity for the use of a deadly weapon in defending himself against attack had ceased, such action would not be legally justified on the theory of self-defense. People v. Brown, 62 Cal. App. 96, 216 P. 411.

commission, and whether it was wrong. People v. Hoin, 62 Cal, 120, 123, 45 Am. Rep. 651.

[11] The defendant testified that some two months before the shooting of McAdams he moved himself and his belongings from his home, for the reason that his wife told him that he should leave, that she did not care for him any more, and that if he did not leave she would have him forcibly put out of the house. There was also evidence that after he left his home he and others saw Mrs. McGann many times in the company of the deceased. The trial court instructed the jury that this evidence was not received as having any tendency in law to reduce the crime of the defendant from murder to manslaughter, and must not be considered for any such purpose; but that it was received solely in connection with the defense of insanity set up by the defendant, and to assist the jury in determining between the death penalty and imprisonment for life, if it should find the defendant guilty of murder in the first degree as that crime was defined elsewhere in the charge.

The instruction should hot have been given. An examination of the record shows quite clearly that the evidence just cited, part of which is referred to in the instruction, was introduced to show the "state of mind," generally, of the defendant, and the "effect on his state of mind," brought on by the sight of his wife in company of the decedent. There does not appear to have been any such limitation of the evidence, when offered and received, as that placed upon it by the trial court. Neither is there to be found any justification for the assertion that the evidence was received solely to assist the jury in determining between the death penalty and im

[9] The defendant has never contended that he was insane when he fired the first shots. Consequently, it was necessary to demonstrate to the jury that the last three shots were fired without malice and through some irresistible influence or motive unknown to him. It was for this purpose, as the record shows, that the defendant interposed the plea of insanity or mental weakness, in support of which he introduced many witnesses to testify in substantiation of his contention that he and members of his family had suffered mental disturbances of various kinds. It thus becomes apparent that the giving of the instruction did the defend-prisonment for life in the event it found the ant no harm. The effect of the portion of the charge objected to was to argue against, and to deprive the defendant of the plea that he was not actuated by any malice at the

time he fired the last three shots. If the

jury had accepted and followed the court's instructions, it must of necessity have found

the defendant guilty of murder as charged in the information. It did not do so, but found him guilty of manslaughter, and thereby eliminated any question of malice in the perpetration of the homicide. Therefore, we cannot say that any substantial injury was done to the defendant by reason of the erroneous instruction.

[10] The defendant introduced evidence to show that he was "controlled by some temporary aberration of the mind" when he shot

McAdams. It was, therefore, not error on the part of the trial court to instruct the jury that the law does not recognize the plea of irresistible impulse, but that responsibility depends upon the question whether or not accused was conscious of and knew the nature of the act committed at the time of its

defendant guilty of murder in the first degree. While this court is at a loss to understand why the instruction was given, it is to the case of the defendant because it was clear that no substantial prejudice resulted given. When read in its entirety, the record discloses a set of facts from which the jury

might well have found that the defendant formation. It was correctly instructed as to was guilty of murder, as charged in the inthe crimes and degrees of crime included in such a charge. It was fully informed as to the law of self-defense and insanity, the defenses interposed by the defendant. By its verdict it rejected these pleas, but did reder to manslaughter. Therefore, it cannot be duce the crime committed by him from mursaid that the giving of the instruction last complained of did any injury to the defend

ant's cause.

The order and the judgment appealed from are and each is affirmed.

We concur: MYERS, C. J.; LAWLOR, J.; LENNON, J.; SHENK, J.; RICHARDS, J.; SEAWELL, J.

STAR DRILLING MACH. CO. v. HENRY
COWELL LIME & CEMENT CO.

(Civ. 4837.)

(District Court of Appeal, First District, Divi-
sion 1, California. Sept. 22, 1924.)
I. Sales 441 (3)-Evidence held to show
that well-boring machinery measured up to
requirement of implied warranty.

Evidence held to show that well-boring machinery measured up to requirement of implied warranty that it was merchantable and reasonably satisfactory for use intended.

2. Appeal and error 1011(1)—Findings of trial court on conflicting evidence not disturbed.

Finding of trial court on conflicting evidence is binding on appeal.

Appeal from Superior Court, City and County of San Francisco; John L. Hudner, Judge.

ed upon the weight and size of the pipe under
which it was to operate. Thereafter Mr. Gil-
christ advised the Cowell Company that it
might purchase 9%-inch screw pipe, and this
character and size was agreed upon and the
necessary amount was purchased. The Cow-
ell Company then gave its order for an un-
derreamer to run in the pipe so purchased.
In coming to this decision the parties had
consulted a catalogue and selected what is
known as the double underreamer, the weight
of which was 625 pounds. This order was
forwarded to plaintiff company. A few days
later Gilchrist received a wire informing
him that his people did not have a machine of
that make, and that it would take some three
He was further in-
weeks to acquire one.
formed that it had a Grant underreamer,
which was as good, if not better, than the one
ordered. Gilchrist communicated these facts
to George and read the telegram to him. Up-

on being assured that there was no difference in the machines, George agreed to the Action by the Star Drilling Machine Com-substitution. Upon the arrival of the mapany against the Henry Cowell Lime & Cement Company. Judgment for plaintiff, and defendant appeals. Affirmed.

chine, the Cowell Company refused to accept delivery, upon the ground that it weighed 992 pounds, which did not conform to the weight

Alan C. Van Fleet, of San Francisco, for of the one originally ordered. The machine appellant.

P. H. Johnson, of San Francisco (H. S. Derby, of San Francisco, of counsel), for respondent.

TYLER, P. J. Action to recover the sum of $636.80 for a certain machine used in the boring of wells.

was thereupon returned to plaintiff company at Long Beach, Cal., the point from which it was shipped, and this action was brought to recover the purchase price.

Judgment went for plaintiff, and the sole question presented is whether the evidence in the case is sufficient to justify the findings of the trial court. Appellant claims that the [1] Defendant corporation was engaged in Cowell Company ordered a machine of the drilling for water on premises owned by it in weight of 625 pounds, and that it never Contra Costa county. As the well went down agreed to accept one of the weight delivered; it became necessary to purchase what is that, as the machine delivered was not in known as an underreamer, which is a ma-compliance with the contract, the Cowell Comchine or bit inserted in the well for the pur-pany was under no obligation to accept and pose of reaming out the sides of the hole underneath the pipe, so as to permit of its insertion. The managing agent of defendant company, A. N. George, dispatched a letter to plaintiff corporation, asking for prices and information concerning a tool of this character. Upon receipt of the request, one Gilchrist, the sales agent of plaintiff, visited the defendant company and discussed the matter with its agent. It developed, during such discussion, that defendant company was using 12-inch stovepipe casing in the well that was being drilled. Gilchrist informed George that, in his opinion, an underreamer could not be used in that character of casing.

pay for the same. We see no merit in this contention. The evidence, as a whole, shows that the machine was in full compliance with the contract. It appears therefrom that George knew nothing about its character, and that the question of its weight or size did not enter into the consideration of the parties or form an element of the contract; that it was a matter of small, if any, consequence and not a controlling element or condition.

There is also testimony to show that the real cause of the rejection was the fact that the underreamer could not be used by defendant company at the time of its delivery, by reason of a mistake made by it in ordering The parties ascertained this to be so, the size of the pin to be used in connection and the matter of ordering the machine was therewith-a mistake easily remedied by the deferred until it could be determined what substitution of one with proper threads. Unkind of pipe was available. Mr. Gilchrist was der the circumstances surrounding the sale, instructed to obtain this information and to there was, of course, an implied warranty report back to defendant, Cowell Company, that the machine to be furnished was merSo that the proper machine could then be or- chantable and reasonably satisfactory for the dered. The character of the machine depend-use intended, but there is ample evidence in

(230 P.)

the record to show that the one delivered | stances shall this ordinance or any section measured up to this legal requirement.

[2] In short, the point urged is controlled entirely by the conflict of evidence rule. The record contains evidence furnished by both parties abundantly sufficient to support the findings of the trial court that the weight of the machine was not an element entering into the contract, and that the machine delivered fully conformed to the contract requirements and was satisfactory for the use intended. The judgment is affirmed.

thereof be construed to require that a license be obtained where any regularly established business house which has been established more sends out solicitors to take orders for goods than three months in the city of Sacramento, to be delivered from such established place of business or for making delivery of such goods."

The ordinance then provides that it shall be unlawful for any person to act as a solicitor within the meaning of this section, without having first secured a license from the city controller. A bond in the sum of The amount of the license is fixed at $200 per quarter.

We concur: ST. SURE, J.; KNIGHT, J. $500 is also provided for.

[blocks in formation]

(District Court of Appeal, Third District, Cali-
fornia. Sept. 23, 1924.)

Constitutional law 205 (5) — Licenses
7(6)-Ordinance applicable to solicitors held
void as discriminatory.

Portion of ordinance, requiring solicitors representing business houses beyond city limits to pay a license fee and execute a bond, and exempting from such requirements solicitors representing business houses within the city, held void as discriminatory, in violation of Const. art. 1, § 21. prohibiting grants of privileges and immunities.

Petition by F. A. Robinson for writ of habeas corpus directed to the Chief of Police of the City of Sacramento. Writ granted. White, Miller, Needham & Harber, of Sacramento, for petitioner.

Stephen Downey and Joseph L. Knowles, both of Sacramento, for respondent.

PLUMMER, J. The petitioner in this cause was arrested for having failed to take out a license, pursuant to the provisions of section 74 of Ordinance 159, Fourth Series, of the city of Sacramento, and seeks his discharge herein on the ground that the provisions of said ordinance, under and by virtue of which he was arrested, are unconstitutional and void.

On the part of the petitioner, it is contended that the ordinance in question is violative of sections 11 and 21 of article 1 of the state Constitution. Section 11 reads: "All laws of a general nature shall have a uniform operation."

And section 21 provides that:

"No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature, nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens."

As contended by the petitioner, it will be noticed that the ordinance treats of and

relates simply to solictors, and applies only to solicitors who ask and receive a deposit of money at the time of taking the order and preceding the delivery of the article for which the order is taken, and, in doing this, it is divided into three classes:

"(1) Solicitors for newspapers; (2) solicitors for orders to be filled from established houses in the city of Sacramento; (3) solicitors for orders to be delivered from business houses outside the city of Sacramento."

Of these classes a license tax is required only of those who come within the third subdivision, and upon this class a tax of $200 per quarter is imposed. The petitioner belongs to the third class.

There is another distinction made in the Section 74 of said ordinance, among other ordinance, to wit, that applying to business things, provides as follows:

"A solicitor within the meaning of this ordinance is defined to be any person who goes from house to house, or from place to place in the city of Sacramento, selling or taking orders for, or offering to sell or take orders for goods, wares, or merchandise or any article for future delivery, other than newspapers, or for services to be performed in the future, or for the making, manufacturing or repairing of any article or thing whatsoever for future delivery, provided, however, that this section shall apply only to solicitors who demand, accept or receive payment or deposit of money in advance of final delivery.

houses in the city of Sacramento which have not been established or had a permanent place of business for a period of at least three months before sending out solicitors. But, as this distinction or classification is not directly involved in this proceeding, we shall not attempt to determine whether this provision in the ordinance affects its validity.

It will be observed that the boundary line of the incorporation known as the city of Sacramento determines the applicability of the provisions of the ordinance relating to the payment of a license fee. It is not "Provided, further, that under no circum- the character of the business transacted. It For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

is the place of the location of the storehouse or warehouse or headquarters from which a solicitor draws his supplies that determines whether or not he (the solicitor) is subject to the pains and penalties of the ordinance. If he draws his supplies and fills his orders from a house situated within the exterior limits of the city of Sacramento, then he is free from all the provisions of the ordinance, but if he fills his orders from a house situated outside the city limits, whether it be in or outside of the state of California, then he must necessarily pay the sum of $200 per quarter, and also give a bond to protect the persons from whom he may have taken orders. There are two restrictive provisions of the ordinance which relate exclusively to solicitors representing outside houses that do not apply to local houses, or houses having their situs inside the corporate limits of the city of Sacramento, to wit, the giving of a bond and the payment of the sum of $200 per quarter or an annual sum of $800. It will also be noticed that the restrictive provisions of the ordinance apply exclusively to solicitors. They have no application to the houses themselves. It has frequently been held that an ordinance requiring the payment of a license fee may, in its classification, fix a sum to be paid by the solicitors, and also a different or other sum by established business houses, but that classification is not involved herein. It is simply the question whether the solicitor represents an inside or an outside business establishment. In the one case, he is subject to the provisions of the ordinance, in the other, he is exempt therefrom, although in both cases he may be doing exactly the same kind, character, and volume of business. It will also be noticed that the ordinance applies to solicitors engaged in interstate commerce, as well as those representing houses within the state of California but outside the corporate limits of the city of Sacramento, and so comes within the long line of decisions of the United States Supreme Court, wherein it has been held repeatedly that no municipality has the power, even for purposes of regulation, to place a heavier burden upon interstate commerce than upon domestic trade of the same kind and character.

In support of the ordinance the attention of the court is called to the case of Real Silk Hosiery Mills, etc., v. City of Portland (C. C. A.) 297 F. 897. The ordinance in question, as a part of section 74, is drafted along somewhat similar lines to the ordinance considered in the Portland Case, but contains one radical departure therefrom, which takes it out of all the reasoning of the court in the Portland Case. In the Portland Case, section 1 of the ordinance defined a solicitor just as we find that term explained

"One taking orders for goods, wares and merchandise and receiving a deposit of money in advance of final delivery."

The Portland ordinance also required the giving of a $500 bond. Were this all of the provisions of the ordinance now under consideration, we might consider the case relied upon by the respondents as authority for the upholding of the provisions of section 74 of Ordinance 159, Fourth Series, of the city of Sacramento.

The ordinance of the city of Sacramento, however, contains a provision which not only takes it out of the reasoning of the federal court in the Portland Case, but sets it in direct opposition thereto. It is found in that portion of the section which provides that:

“串串 Under no circumstances shall this ordinance or any section thereof be construed to require that a license be obtained where any regularly established business house which has been established more than three months in the city of Sacramento, sends out solicitors to take orders for goods to be delivered from such established place of business or for making delivery of such goods."

Had this provision been found within the terms of the Portland ordinance, then there might be some weight to be given to the decision of the federal court. Whether that decision be or be not correct, so far as it touches the question of interstate commerce, from what we have just said, it is wholly inapplicable to the instant case.

Reliance is also placed by the respondents on the case of Ex parte Haskell, 112 Cal. 412, 44 P. 725, 32 L. R. A. 527. In that case, an ordinance of the city of Chico placed a tax of $50 per quarter on all persons other than those having a regular place of business. Haskell, a traveling salesman for a house in the city of Oakland, was arrested for violation thereof, and, upon habeas corpus proceedings, the ordinance was upheld; but, in the opinion of the court, language was used which applies directly to the ordinance now under consideration. It was there said:

"It may be conceded that, if it could be said to discriminate in favor of residents of the city of Chico by requiring such license only from nonresidents engaged in the line of business pursued by Haskell, it would be bad; or if it discriminated against residents of the state, or against merchandise from without, or not the product of, the state, that it would be void, as being in effect a regulation of interstate commerce-something entirely within the power of Congress. * It in no way discriminates, as to the class against which it is directed, between those living within the city and those without, but is broad enough to include all of such class wherever residing."

In other words, the Chico ordinance, upheld in the Haskell Case, did not do the very

Cal.)

EX PARTE ROBINSON
(230 P.)

would make it bad, and which thing the
city council of the city of Sacramento did
when adopting the ordinance now under
There is a distinct and posi-
consideration.
tive discrimination between solicitors carry-
ing on the same kind of business, taking
orders in the same manner, between those
representing houses outside of the city of
Sacramento and those within the city. One
class is placed under a heavy burden, the
other is exempted entirely.

within the corporate limits of $12 per annum,
and upon every person, firm, or corporation
operating or maintaining a wagon for the
delivery of laundry work to and from any
laundry situated outside the city of Venice
the sum of $130 per annum for each wagon
or vehicle. After quoting section 21 of
article 1 of the state Constitution, the court
said:

"We are of the opinion that the provisions
of the ordinances under which petitioner has
been convicted attempt to create and enforce
a discrimination not based upon differences in
differences in the manner of conducting the
the nature of the business being transacted or
same business, or any other difference other
than the mere fact of difference in destina-
tion of the goods collected and delivered by
wagons collecting for laundries located outside
of the city and the destination of goods col-
lected for delivery to laundries within the city.
The license provisions in question are plainly
devised as a protective tariff for the benefit of
dry wagons doing business with laundries lo-
laundries located in the city of Venice or laun-
cated in the city of Venice, and apparently they
have no other purpose."

A very similar question involving that of was before the Supreme discrimination Court in the case of In re Blois, 179 Cal. 291, 176 P. 449. There an ordinance of the city of Palo Alto was held void, which provided for the inspection of laundries by its health officers, and imposed an inspection fee and mileage charge for the inspector in .an amount which was five times as great for one whose laundry was located in another city as that imposed on local establishments, etc. The court there held in considering the police powers of municipalities, that: "Any county, city, town, or township may make and enforce within its limits all such In the case of Ex parte Frank, 52 Cal local, police, sanitary, and other regulations as are not in conflict with general laws.' Arti- 606, 28 Am. Rep. 642, the question of the In the ex- location of houses, from which orders were cle 11, § 11, state Constitution. ercise of the powers thus conferred the munic-filled, was held to furnish no reasonable ipality is limited by the terms of article 1, sec-distinction for a classification which placed tion 21, of the Constitution, which provides: Nor shall any citizen, or class of a license fee upon one and exempted the citizens, be granted privileges or immunities other, as the depot of supplies was either which, upon the same terms, shall not be grant- inside or outside the city of San Francisco. In the case of In re Hart, 36 Cal. App. ed to all citizens.' This latter section of the Constitution has been given direct application 627, 172 P. 610, it was held that: to statutes and ordinances which have been enacted and sought to be enforced, either by the state or by political subdivisions thereof, and in which attempts have been made to discriminate in favor of or against particular be persons or classes of persons as to whom no reasonable basis of discrimination seen to exist, and in all such cases the courts of this state have uniformly held such attempted legislation to be void. Ex parte Frank, 52 Cal. 606, 28 Am. Rep. 642; In re Smith, 143 Cal. 368, 77 P. 180; Ex parte Dickey, 144 Cal. 234, 77 P. 924, 66 L. R. A. 928, 103 Am. St. Rep. 82, 1 Ann. Cas. 428; Ex parte Hayden, 147 Cal. 649, 82 P. 315, 1 L. R. A. (N. S.) 184, 109 Am. St. Rep. 183; Ex parte Foley, 172 Cal. 744, 158 P. 1034, Ann. Cas. 1918A, 180; In re Hines, 33 Cal. App. 45, 164 P. 339."

* *

can

In the Blois Case the difference in the burden was only 5 times as great upon the outsider as that imposed upon the one doing business within the city limits of the city of Palo Alto. In the instant case, if calculated by the quarter, it would be 200 times as great, or calculated by the year, it would be 800 times as great.

In the case of In re Hines, 33 Cal. App. 45, 164 P. 339, the court had under consideration the ordinance of the city of Venice which fixed the license fee on every person, firm, or corporation carrying on a laundry 230 P.-12

"A city ordinance requiring the payment of
sell merchandise,
contracting to
a license fee of $12 per annum by every person
selling or
of the city, and the payment of a license fee
whose establishment is within the boundaries
of $60 per annum by every person selling or
an attempted pro-
contracting to sell merchandise, whose estab-
lishment is outside of the city limits, is dis-
criminatory and void, as
tective tariff for the benefit of businesses lo-
cated in the city.”

In the case of In re Riley, 39 Cal. App.
58, 177 P. 854, a similar situation was pre-
sented as that we are now considering. An
ordinance of the city of Redwood, requiring
the payment of a license by solicitors solicit-
ing business for cleaning and dyeing work to
be done and performed by an establishment
outside of the city, and exempting solicitors
soliciting like business for plants situated
within the city, was held to be void, under
As stated in the
the constitutional provision which we have
hereinbefore set forth.
Blois Case, the city council possesses and
may exercise certain specified police powers,
but it cannot, under the guise of exercising
its police powers, abrogate the provisions of
section 21 of article 1 of the state Constitu-
tion.

Without deciding whether the provision of

.

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