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(230 P.) 199 P. 894. The defendant fired ive shots in- commission, and whether it was wrong. Peoto the body of the decedent. · As to the first ple v. Hoin, 62 Cal, 120, 123, 45 Am. Rep. two, he pleaded necessary self-defense, there- | 651. by advancing a motive in justification of his [11] The defendant testified that some two deed. Such contention was prominently be- months before the shooting of McAdams he fore the jury at all stages of tbe trial. It moved himself and his belongings from his was fully and correctly instructed on the home, for the reason that his wife told him law of self-defense. In view of the situa- that he should leave, that she did not care tion thus presented, it seems incredible tbat for him any more, and that if he did not the court could have intended, or that the leave she would have him forcibly put out of jury considered, that the instruction should the house. There was also evidence that have any reference to the defense of self- after he left his home he and others saw preservation interposed by the defendant. Mrs. McGann many times in the company of So far as it could have had any application the deceased. The trial court instructed the to the facts of the case, the instruction must jury that this evidence was not received as be deemed to have had relation to the 'con- having any tendency in law to reduce the tention of the defendant that, after the first crime of the defendant from murder to mantwo shots were fired, his mind became blank slaughter, and must not be considered for and gave way, and that he did not know any such purpose; but that it was received what had been done, and had no memory of solely in connection with the defense of inany other shots being fired. If he fired seve sanity set up by the defendant, and to assist eral shots into the body of McAdams after the jury in determining between the death all necessity for the use of a deadly weapon penalty and imprisonment for life, if it in defending himself against attack had should find the defendant guilty of murder ceased, such action would not be legally Jus- in the first degree as that crime was defined tified on the theory of self-defense. People elsewhere in the charge. v. Brown, 62 Cal. App. 96, 216 P. 411.

The instruction should not have been giv[9] The defendant has never contended An examination of the record shows that he was insane when he fired the first quite clearly that the evidence just cited, part shots. Consequently, it was necessary to of which is referred to in the instruction, demonstrate to the jury that the last three was introduced to show the "state of mind," shots were fired without malice and through generally, of the defendant, and the "effect some irresistible influence or motive un on his state of mind," brought on by the known to him. It was for this purpose, as sight of his wife in company of the decedent. the record shows, that the defendant inter- There does not appear to have been any such posed the plea of insanity or mental weak- limitation of the evidence, when offered and ness, in support of which he introduced received, as that placed upon it by the trial many witnesses to testify in substantiation court. Neither is there to be found any jusof his contention that he and members of his tification for the assertion that the evidence family had suffered mental disturbances of was received solely to assist the jury in dèvarious kinds. It thus becomes apparent that termining between the death penalty and imthe 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 defendant guilty of murder in the first dethe charge objected to was to argue against, gree. While this court is at a loss to underand to deprive the defendant of the plea that stand why the instruction was given, it is he was not actuated by any malice at the to the case of the defendant because it was

clear that no substantial prejudice resulted time he fired the last three shots. If the jury had accepted and followed the court's discloses a set of facts from which the jury

given. When read in its entirety, the record instructions, it must of necessity have found the defendant guilty of murder as charged in might well have found that the defendant the information. It did not do so, but found formation. It was correctly instructed as to

was guilty of murder, as charged in the inhim guilty of manslaughter, and thereby the crimes and degrees of crime included in eliminated any question of malice in the per- such a charge. It was fully informed as to petration of the homicide. Therefore, we

the law of self-defense and insanity, the decannot say that any substantial injury was done to the defendant by reason of the er

fenses interposed by the defendant. By its

verdict it rejected these pleas, but did reroneous instruction,

duce the crime committed by him from mur[10] The defendant introduced evidence to der to manslaughter. Therefore, it cannot be show that he was “controlled by some tempo. said that the giving of the instruction last rary aberration of the mind” when he shot complained of did any injury to the defendMcAdams. It was, therefore, not error on

ant's cause. the part of the trial court to instruct the

The order and the judgment appealed from jury that the law does not recognize the plea are and each is affirmed. of irresistible impulse, but that responsibility depends upon the question whether or not We concur: MYERS, C. J.; LAWLOR, J.; accused was conscious of and knew the na- LENNON, J.; SHENK, J.; RICHARDS, J.; ture of the act committed at the time of its SEAWELL, J.

ed upon the weight and size of the pipe under STAR DRILLING MACH, CO. V. HENRY which it was to operate. Thereafter Mr. GilCOWELL LIME & CEMENT CO. christ advised the Cowell Company that it (Civ. 4837.)

might purchase 95/8-inch screw pipe, and this (District Court of Appeal, First District, Divi- character and size was agreed upon and the sion 1, California. Sept. 22, 1924.) necessary amount was purchased. The Cow

ell Company then gave its order for an un1. Sales ww441(3)-Evidence held to show derreamer to run in the pipe so purchased. that well-boring machinery measured up to requirement of implied warranty.

In coming to this decision the parties had Evidence held to show that well-boring ma

consulted a catalogue and selected what is chinery measured up to requirement of implied known as the double underreamer, the weight warranty that it was merchantable and rea

of which was 625 pounds. This order was sonably satisfactory for use intended.

forwarded to plaintiff company. A few days

later Gilchrist received a wire informing 2. Appeal and error Oma 1011(1)-Findings of

trial court on conflicting evidence not dis. him that his people did not have a machine of turbed.

that make, and that it would take some three

He was further inFinding of trial court on conflicting evi- weeks to acquire one. dence is binding on appeal.

formed that it had a Grant underreamer,

wbich was as good, if not better, than the one Appeal from Superior Court, City and ordered. Gilchrist communicated these facts County of. San Francisco; John L. Hudner, to George and read the telegram to him. UpJudge.

on being assured that there was no differ

ence in the machines, George agreed to the Action by the Star Drilling Machine Com- substitution. Upon the arrival of the ma· pany' against the Henry Cowell Lime & Ce chine, the Cowell Company refused to accept ment Company. Judgment for plaintiff, and delivery, upon the ground that it weighed 992 defendant appeals. Afirmed.

pounds, which did not conform to the weight Alan C. Van Fleet, of San Francisco, for of the one originally ordered. The machine appellant.

was thereupon returned to plaintiff company P. H. Johnson, of San Francisco (H. S. Der- at Long Beach, Cal., the point from which it by, of San Francisco, of counsel), for respond- was shipped, and this action was brought to ent.

recover the purchase price.

Judgment went for plaintiff, and the sole TYLER, P. J. Action to recover the sum question presented is whether the evidence of $636.80 for a certain machine used in the in the case is sufficient to justify the findings boring of wells.

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 un- pay for the same. We see no merit in this derneath the pipe, so as to permit of its in- contention. The evidence, as a whole, shows sertion. The managing agent of defendant that the machine was in full compliance with company, A. N. George, dispatched a letter to the contract. It appears therefrom that plaintiff corporation, asking for prices and George knew nothing about its character, and information concerning a tool of this char- that the question of its weight or size did acter. Upon receipt of the request, one Gi?- not enter into the consideration of the parchrist, the sales agent of plaintiff, visited ties or form an element of the contract; that the defendant company and discussed the it was a matter of small, if any, consequence matter with its agent. It developed, during and not a controlling element or condition. such discussion, that defendant company was There is also testimony to show that the using 12-inch stovepipe casing in the well real cause of the rejection was the fact that that was being drilled. Gilchrist informed the underreamer could not be used by defendGeorge that, in his opinion, an underreamer ant company at the time of its delivery, by could not be used in that character of cas- reason of a mistake made by it in ordering ing. 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 le or- chantable and reasonably satisfactory for the dered. The character of the machine depend-/ use intended, but there is ample evidence in

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(230 P.) the record to show that the one delivered , stances shall this ordinance or any section measured up to this legal requirement.

thereof be construed to require that a license [2] In short, the point urged is controlled be obtained where any regularly established

business house which has been established more entirely by the conflict of evidence rule. The than three months in the city of Sacramento, record contains evidence furnished by both sends out solicitors to take orders for goods parties abundantly sufficient to support the to be delivered from such established place of findings of the trial court that the weight of business or for making delivery of such goods." the machine was not an element entering into the contract, and that the machine delivered

The ordinance then provides that it shall fully conformed to the contract requirements be unlawful for any person to act as a soand was satisfactory for the use intended.

licitor within the meaning of this section, The judgment is affirmed.

without having first secured a license from
the city controller. A bond in the sum of

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

the license is fixed at $200 per quarter.

On the part of the petitioner, it is contended that the ordinance in question is

violative of sections 11 and 21 of article 1 Ex parte ROBINSON. (Cr. 800.)

of the state Constitution. Section 11 reads; (District Court of Appeal, Third District, Cali "All laws of a general nature shall have a fornia. Sept. 23, 1924.)

uniform operation.” Constitutional law 205(5) - Licenses

And section 21 provides that: 7(6)-Ordinance applicable to solicitors held void as discriminatory,

"No special privileges or immunities shall Portion of ordinance, requiring solicitors ever be granted which may not be altered, rerepresenting business houses beyond city lim- voked, or repealed by the Legislature, nor its to pay a license fee and execute a bond, shall any citizen, or class of citizens, be grantand exempting from such requirements solici- . ed privileges or immunities which, upon the tors representing business houses within the

same terms, shall not be granted to all citi.

zens." city, held void as discriminatory, in violation of Const. art. 1, § 21. prohibiting grants of

As contended by the petitioner, it will be privileges and immunities.

noticed that the ordinance treats of and Petition by F. A. Robinson for writ of relates simply to solictors, and applies only habeas corpus directed to the Chief of Police to solicitors who ask and receive a deposit of the City of Sacramento, Writ granted. of money at the time of taking the order

and preceding the delivery of the article White, Miller, Needbam & Harber, of for which the order is taken, and, in doing Sacramento, for petitioner.

this, it is divided into three classes: Stephen Downey and Joseph L. Knowles, both of Sacramento, for respondent.

“(1) Solicitors for newspapers; (2) solicitors for orders to be filled from established

houses in the city of Sacramento; (3) solici. PLUMMER, J. The petitioner in this tors for orders to be delivered from business cause was arrested for having failed to take houses outside the city of Sacramento." out a license, pursuant to the provisions of section 74 of Ordinance 159, Fourth Series,

Of these classes a license tax is required of the city of Sacramento, and seeks his only of those who come within the third discharge herein on the ground that the subdivision, and upon this class a tax of provisions of said ordinance, under and by $200 per quarter is imposed. The petitioner virtue of which he was arrested, are uncon- / belongs to the third class. stitutional and void,

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:

houses in the city of Sacramento which

have not been established or had a perma"A solicitor within the meaning of this ordinance is defined to be any person who goes

nent place of business for a period of at from house to house, or from place to place in least three months before sending out sothe city of Sacramento, selling or taking orders licitors. But, as this distinction or classififor, or offering to sell or take orders for cation is not directly involved in this progoods, wares, or merchandise or any article ceeding, we shall not attempt to determine for future delivery, other than newspapers, or whether this provision in the ordinance affor services to be performed in the future, or fects its validity. for the making, manufacturing or repairing of any article or thing whatsoever for future de- line of the incorporation known as the city

It will be observed that the boundary livery, provided, however, that this section shall apply only to solicitors who demand, ac

of Sacramento determines the applicability cept or receive payment or deposit of money in of the provisions of the ordinance relating advance of final delivery.

to the payment of a license fee. It is not "Provided, further, that under no circum-) the character of the business transacted. It

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an

а

is the place of the location of the store "One taking orders for goods, wares and house or warehouse or headquarters from merchandise and receiving a deposit of money which a solicitor draws his supplies that in advance of final delivery.” determines whether or not he (the solicitor) The Portland ordinance also required the is subject to the pains and penalties of the giving of a $500 bond. Were this all of the ordinance. If he draws his supplies and provisions of the ordinance now under confills his orders from a house situated within sideration, we might consider the case relied the exterior limits of the city of Sacramento, upon by the respondents as authority for then he is free from all the provisions of the upholding of the provisions of section the ordinance, but if he fills his orders from 74 of Ordinance 159, Fourth Series, of the a house situated outside the city limits, city of Sacramento. whether it be in or outside of the state of

The ordinance of the city of Sacramento, California, then he must necessarily pay however, contains a provision which not the sum of $200 per quarter, and also give an only takes it out of the reasoning of the bond to protect the persons from whom he federal court in the Portland Case, but sets may have taken orders. There are two re- it in direct opposition thereto. It is found strictive provisions of the ordinance which in that portion of the section which prorelate exclusively to solicitors representing vides that: outside houses that do not apply to local

Under no circumstances shall this houses, or houses having their situs inside the corporate limits of the city of Sacramen- to require that a license be obtained where any

ordinance or any section thereof be construed to, to wit, the giving of a bond and the pay, regularly established business house which has ment of the sum of $200 per quarter or an been established more than three months in the annual sum of $800. It will also be noticed city of Sacramento, sends out solicitors to take that the restrictive provisions of the ordi- orders for goods to be delivered from such esnance apply exclusively to solicitors. They tablished place of business or for making dehave no application to the houses themselves. livery of such goods.” It has frequently been held that

Had this provision been found within the ordinance requiring the payment of

terms of the Portland ordinance, then there license fee may, in its classification, fix a might be some weight to be given to the desum to be paid by the solicitors, and also cision of the federal court. Whether that a different or other sum by established busi- decision be or be not correct, so far as it ness houses, but that classification is not touches the question of interstate commerce, involved herein. It is simply the question from what we have just said, it is wholly whether the solicitor represents an inside inapplicable to the instant case. or an outside business establishment. In the Reliance is also placed by the respondents one case, he is subject to the provisions of on the case of Ex parte Haskell, 112 Cal. the ordinance, in the other, he is exempt | 412, 44 P. 725, 32 L. R. A. 527. In that case, therefrom, although in both cases he may be an ordinance of the city of Chico placed a doing exactly the same kind, character, and tax of $50 per quarter on all persons other volume of business. It will also be noticed than those having a regular place of busithat the ordinance applies to solicitors en

Haskell, a traveling salesman for a gaged in interstate commerce, as well as house in the city of Oakland, was arrested those representing houses within the state for violation thereof, and, upon habeas corof California but outside the corporate limits pus proceedings, the ordinance was upheld; of the city of Sacramento, and so comes but, in the opinion of the court, language within the long line of decisions of the was used which applies directly to the ordiUnited States Supreme Court, wherein it nance now under consideration. It was has been held repeatedly that no municipali- there said: ty has the power, even for purposes of regula "It may be conceded that, if it could be said tion, to place a heavier burden upon inter- to discriminate in favor of residents of the city state commerce than upon domestic trade of Chico by requiring such license only from of the same kind and character.

nonresidents engaged in the line of business In support of the ordinance the attention pursued by Haskell, it would be bad; or if it of the court is called to the case of Real discriminated against residents of the state, Silk Hosiery Mills, etc., v. City of Portland the product of, the state, that it would be void,

or against merchandise from without, or not (C. C. A.) 297 F. 897. The ordinance in as being in effect a regulation of interstate question, as a part of section 74, is drafted commerce--something entirely within the powalong somewhat similar lines to the ordi-er of Congress.

It in no way disnance considered in the Portland Case, but criminates, as to the class against which it is contains one radical departure therefrom, directed, between those living within the city which takes it out of all the reasoning of the and those without, but is broad enough to incourt in the Portland Case. In the Portland clude all of such class wherever residing." Case, section 1 of the ordinance defined a In other words, the Chico ordinance, upsolicitor just as we find that term explained | held in the Haskell Case, did not do the very in the Sacramento ordinance, to wit: thing which the Supreme Court declared

ness,

was

(230 P.) would make it bad, and which thing the, within the corporate limits of $12 per annum, city council of the oity of Sacramento did and upon every person, firm, or corporation when adopting the ordinance now under operating or maintaining a wagon for the consideration. There is a distinct and posi- delivery of laundry work to and from any tive discrimination between solicitors carry- | laundry situated outside the city of Venice ing on the same kind of business, taking the sum of $130 per annum for each wagon orders in the same manner, between those or vehicle. After quoting section 21 of representing houses outside of the city of article 1 of the state Constitution, the court Sacramento and those within the city. One said: class is placed under a heavy burden, the "We are of the opinion that the provisions other is exempted entirely.

of the ordinances under which petitioner has A very similar question involving that of been convicted attempt to create and enforce discrimination

before the Supreme a discrimination not based upon differences in Court in the case of In re Blois, 179 Cal. the nature of the business being transacted or 291, 176 P. 449. There an ordinance of the differences in the manner of conducting the city of Palo Alto was held void, which pro- than the mere fact of difference in destina

same business, or any other difference other vided for the inspection of laundries by its tion of the goods collected and delivered by health officers, and imposed an inspection wagons collecting for laundries located outside fee and mileage charge for the inspector in of the city and the destination of goods col.an amount which was five times as great lected for delivery to laundries within the city. for one whose laundry was located in an- The license provisions in question are plainly other city as that imposed on local establish-devised as a protective tariff for the benefit of ments, etc. The court there held in consider- dry wagons doing business with laundries lo

laundries located in the city of Venice or launing the police powers of municipalities, that: cated in the city of Venice, and apparently they

Any county, city, town, or township may have no other purpose.” make and enforce within its limits all such local, police, sanitary, and other regulations In the case of Ex parte Frank, 52 Cal as are not in conflict with general laws.' Arti- 606, 28 Am. Rep. 642, the question of the cle 11, § 11, state Constitution. In the ex-location of houses, from which orders were 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. ed to all citizens.' This latter section of the In the case of In re Hart, 36 Cal. App. 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

"A city ordinance requiring the payment of the state or by political subdivisions thereof, a license fee of $12 per annum by every person and in which attempts have been made to dis- selling or contracting to sell merchandise, criminate in favor of or against particular whose establishment is within the boundaries persons or classes of persons as to whom no of the city, and the payment of a license fee reasonable basis of discrimination be

of $60 per annum by every person selling or seen to exist, and in all such cases the courts contracting to sell merchandise, whose estabof this state have uniformly held such attempt- | lishment is outside of the city limits, is dised legislation to be void. Ex parte Frank, 52 criminatory and void, as

an attempted proCal. 606, 28 Am. Rep. 642; In re Smith, '143 tective tariff for the benefit of businesses loCal. 368, 77 P. 180; Ex parte Dickey, 144 Cal. cated in the city." 234, 77 P. 924, 66 L. R. A. 928, 103 Am. St. Rep. 82, 1 Ann. Cas. 428; Ex parte Hayden,

In the case of In re Riley, 39 Cal. App. 147 Cal. 649, 82 P. 315, 1 L. R. A. (N. S.) | 58, 177 P. 854, a similar situation was pre184, 109 Am. St. Rep. 183; Ex parte Foley, 172 sented as that we are now considering. An Cal. 744, 158 P. 1034, Ann. Cas. 1918A, 180; ordinance of the city of Redwood, requiring In re Hines, 33 Cal. App. 45, 164 P. 339." the payment of a license by solicitors solicit

ing business for cleaning and dyeing work to In the Blois Case the difference in the bur- be done and performed by an establishment den was only 5 times as great upon the out- outside of the city, and exempting solicitors sider as that imposed upon the one doing soliciting like business for plants situated business within the city limits of the city within the city, was held to be void, under of Palo Alto. In the instant case, if cal- | the constitutional provision which we have culated by the quarter, it would be 200 times herein before set forth. As stated in the as great, or calculated by the year, it would Blois Case, the city council possesses and be 800 times as great.

may exercise certain specified police powers, In the case of In re Hines, 33 Cal. App. but it cannot, under the guise of exercising 45, 164 P. 339, the court had under consider its police powers, abrogate the provisions of ation the ordinance of the city of Venice section 21 of article 1 of the state Constituwhich ixed the license fee on every person, tion. firm, or corporation carrying on a laundry Without deciding whether the provision of

230 P.-12

can

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