be attacked collaterally in this proceeding by showing that the board of supervisors acted without their jurisdiction in effecting its organization. This position cannot be maintained. An irrigation district of this character is a public corporation, formed under a general law, and its object is the promotion of the general welfare. People v. Irrigation Dist., 98 Cal. 206, 32 Pac. 1047, and cases there cited. Corporations organized under the act of the legislature popularly known as the "Wright Act" being public corporations, it is immaterial whether they be corporations de jure or de facto. That is a matter which cannot be inquired into upon a collateral attack; and in a case like the present, where the validity of an assessment levied by such a corporation is the subject of litigation, the validity of such assessment does in no way rest upon the fact of the de jure character of the corporation. This principle must be considered settled law in this state.

Dean

v. Davis, 51 Cal. 411; Reclamation Dist. v. Gray, 95 Cal. 601, 30 Pac. 779; Swamp-Land Dist. v. Silver, 98 Cal. 53, 32 Pac. 866. If appellant's contention goes to the extent that this corporation is not even a corporation de facto, the allegations of the complaint are not sufficient to support such contention.

2. It is insisted that plaintiff is entitled to the relief sought, upon the ground that the levy of the tax was at a rate greater than is authorized by the Wright act. This assessment was levied under section 22 of that act, which provides that "the board of directors shall then levy an assessment sufficient to raise the annual interest on the outstanding bonds." In pursuance of this provision the board of directors made, and had entered upon its minutes, the following order: "The assessment book of Central irrigation district for the year 1892--3 having been completed, and the assessments of property therein having been equalized, and it appearing therefrom that the total assessed value of property in said district for the year 1892--3 is the sum of $2,643,217, the board of directors proceed to consider the amount required to be raised in order to meet the annual interest on bonds of said district during said year. After due deliberation thereon, it is ordered by the said board of directors of said Central irrigation district that an assessment be, and the same is hereby, levied and ordered collected on each $100 assessed valuation of property in said Central irrigation district, for district purposes aforesaid, for the fiscal year 1892-3, as follows, to wit: for bond fund, $1.55 on each $100; total levy of assessment for the purpose before mentioned, $1.55 on each $100." The bonds issued by and outstanding against the district amounted to $574,000, and the amount of money necessary to be raised to pay the interest upon said bonds, at the rate fixed by the act itself, would be $34,440; yet the amount which would be raised under the aforesaid levy would ex

ceed that sum by more than $5,000. While the views we entertain upon another branch of the case prevent plaintiff from securing the relief in this action desired, still the question here presented as to the true construction of section 22 of the Wright act may be said to be directly involved in a proper solution of this litigation, and the question is not only a new one, but one so important to both taxpayers and corporations that we deem it advisable to consider it at the present time, in order that these district corporations, in the future, may so shape their course as to keep within their powers under the law. This board of directors is a creature of the statute, and it can do nothing unless authorized by the statute. Its powers are limited, special, and express, and it can assume no power by inference or implication. It exceeded its power in making a levy of $1.55 upon the $100. The statute says it had the power, and it was its duty, to levy an assessment sufficient to pay the annual interest. But it exceeded its power by levying an assessment largely in excess of that amount. By this section of the act, certain burdens only could be cast upon the land of the taxpayers of the district, and they had the right to insist upon a rigid compliance with this provision of the statute, and that no additional burdens be had, for it is the only section of the act providing for the levying of a tax and the raising of money regardless of the advice or wishes of the parties who are called upon to pay that tax. Money raised under this section of the act can be applied to but one single purpose. The law contemplates no other application of it. Again, the interest upon the bonds must be paid semiannually, and the amount to be raised is a matter of exact mathematical computation. The tax is levied upon the real estate of the district, and, when the assessment has been made and equalized, it would seem the rate to be levied is a matter readily ascertainable. The board has no right to assume that the tax upon any particular tract of land will not be paid by the owner, or by a sale of the land itself. The question of the amount to be raised is not one of discretion, but of pure legal right. If the board could fix the rate at $1.55 per $100, it would have the same right to double that rate, and thus entirely disregard its statutory authority. This it cannot do. In acting under this section, as well as its conduct of all other affairs of the district, it must ever keep its eye upon the statute. The statute furnishes the only road upon which it may safely travel. All others not only lead to danger, but their use is forbidden to it by the law. It is evident in the present case that the board adopted the course laid down in section 41 of the act, and deducted 15 per cent. from the assessment roll for anticipated delinquencies. But the error of the board lies in the fact that the provisions of section 41 are not

The

applicable to section 22. Neither does section 22 contain any authority for a deduction based upon anticipated delinquencies. lawmaking power, in enacting section 41, appeared to recognize the fact that special authority was necessary to justify the course followed in fixing the rate as there declared; but, whether the omission to insert a similar provision in section 22 was intentional or not, it is not our province to decide. Certainly, no good reason is apparent why the provision, if a salutary and necessary one, should be found in section 41, where small amounts of money are contemplated to be raised by taxation, and be absent from section 22, which not only provides for the payment of interest upon all bonds issued, but for the payment of the bonds themselves. It cannot be held that a judicial discretion is vested in the board of directors to fix the levy at any rate which it might deem sufficient to raise the amount necessary to pay the annual interest. The legislature has no power to vest a board with any such discretion. Such a construction of the provision would render it unconstitutional. The principle here involved was directly adjudicated upon in the case of Houghton v. Austin, 47 Cal., at page 652. It was there held that the legislature could not delegate this power to any board or person. The provision of the statute then under consideration provided that the state board of equalization, after allowing for delinquencies in the collection of the taxes, should fix a rate sufficient to raise the amount of revenue directed by the legislature. It was held in that case that the board had no authority to make any estimate for delinquencies in collection. In the act under present investigation, there is not even an attempt of the legislature to clothe the board with authority to take into consideration, in making the levy, any question as to anticipated delinquencies. For the foregoing reasons, we conclude that the board of directors exceeded its power in fixing the rate at $1.55 upon the $100.

3. Notwithstanding the levy was in excess of the power of the board, and the tax was more than plaintiff could be compelled to pay, still he owed the district a portion of the tax levy, upon his own showing; and he will not be heard, in a court of equity, until he has paid the amount the board had the power to levy upon his land. The amount which he honestly owes the district was readily ascertainable, and he should have paid it. It was a matter of computation equally as exact as the computation showing that the levy was at too high a rate; and upon the elementary principle that, if a part of a tax is valid and authorized, such portion must be paid before a party will be allowed to come into a court of equity to make complaint, we think plaintiff is entitled to no relief in this action. Gas Co. v. January, 57 Cal. 614; Esterbrook v. O'Brien,

PEOPLE v. SMITH. (No. 21,080.) (Supreme Court of California. Aug. 17, 1894.) FORGERY-INDICTMENT-EVIDENCE.

1. An indictment for passing a forged check, which fails to state that defendant knew the same was forged, is defective.

2. Where forgery of a check is charged in the first count of an indictment, and the passing of it is charged in the second, the allegations of the first count cannot be read with the second, for the purpose of supplying a defect therein. 3. Where, on the trial of an indictment containing two counts, one of which is defective, evidence pertinent to both is received under a ruling that both are good, a verdict will not be sustained because the evidence is sufficient to sustain a conviction on the count which is good.

4. Where an indictment for forgery charges that the name forged was "R. S. S.," proof that the name was "R. G. S." is sufficient, as the middle initial of a name is not material.

SEARLS, C. Defendant was convicted of the crime of forgery, and appeals from the judgment and from an order denying a new trial. There were two counts in the information filed against him. In the first it is charged that he did on or about November 6, 1893, willfully, unlawfully, knowingly, and feloniously, and with intent then and there to defraud, prejudice, and damage R. S. Southerland and the Santa Rosa Bank (a corporation, etc.), falsely make, forge, and counterfeit a certain check, in the words and figures as follows, to wit: "Santa Rosa, Cal., Nov. 6, 1893. No. 191. Santa Rosa Bank, pay to John W. Fields, or bearer, $17.50 dollars. R. S. Southerland. [Indorsed] J. W. Fields." The second count charges that defendant did thereafter, and on the 8th day of November, 1893, "utter. publish, and pass, as true and genuine, a certain forged, false, and counterfeit check, which said check was the same check referred to in the first count of this information, which check is in the words and figures as follows [then follows a copy of the check, precisely as in the first count], with intent thereby to prejudice, damage, and defraud the said R. S. Southerland and the said Santa Rosa Bank." The information closes in the usual form. It will be perceived the second count fails to aver that the defendant passed as true the check, "knowing the same to be false," etc., as specified in section 470 of the Penal Code. No

objection was taken to the information, by demurrer or otherwise. At the trial, defendant, by his counsel, objected to evidence under the second count of the information, upon the ground that said second count did not state a public offense, in that there was no allegation that defendant knew the check was forged. The objection was overruled, and an exception noted. Evidence was received upon said second count. The ruling of the court admitting such evidence is assigned as error.

To constitute forgery by uttering or passing of a forged instrument, as defined in section 470 of the Penal Code, three important factors are requisite: (1) It must be uttered, published, passed, or attempted to be passed, as true and genuine; (2) it must be known by the person uttering or passing it to be false, altered, forged, or counterfeited; (3) it must be with intent to prejudice, damage, or defraud some person. These three essential elements going to constitute the crime must all be present, and must all be substantially charged in the indictment or information. In the present information the second prerequisite, viz. knowledge on the part of defendant of its falsity, is not charged. The contention of the respondent is that the clause in the second count of the information, that the "said check was the same check referred to in the first count of this information," is such a reference to the first count as serves to incorporate its allegations in the second count, and hence that the second count is sufficient. The language used will bear no such construction. Its object is apparent. Either to forge a check, or to pass it with guilty. knowledge, etc., is a forgery. Each may be charged singly as constituting the crime, or, if charged together, they constitute but one offense. A single offense may be charged in separate counts without being amenable to the objection of charging more than one offense, to do which is interdicted by our Penal Code. In People v. Shotwell, 27 Cal. 394, it was held that where the forgery of a check was charged in one count, and the passing of a check in another count, they would not be presumed to be the same instrument or to constitute the same offense, even though copies of the check were set out in each count, and were alike verbatim et literatim. Since that decision, it has been the practice in criminal pleading, in such cases, to use apt expressions showing that the offense specified under different statements or counts is one and the same. The expression quoted from the second count of the information serves to fill this office of showing the offense to be the same as that specified in the first count, and nothing more. It follows that the second count of the information failed to state an offense, and the proffered testimony relating thereto should have been rejected. This was a defect which was not waived by a failure to demur, but one which went to the very essence of the cause of action, and

which might be raised at any point in the progress of the case. Pen. Code, § 1012. Some of this testimony was no doubt admissible in support of the first count of the information. The possession of an instrument recently forged, by one claiming under it, like the possession of goods recently stolen, is evidence against the possessor. So, too, the declaration of the defendant that he had worked for Southerland; that the latter had no money to pay him, and had given him the check, etc., was admissible under the charge of forgery. Com. v. Talbot, 2 Allen, 161. But when it was admitted as evidence of uttering and passing as genuine under the second count, and when the court refused the instruction of defendant that the second count of the information charged no offense, and that defendant could not be convicted thereunder, it was manifest error. It may be claimed that, conceding the error, there was one good count in the information, with ample evidence in its support, and hence that the judgment is supported by the good count, and will not be reversed. At common law it was held that where an indictment contained two counts, and at a trial no evidence was introduced in favor of one of them, a general verdict and judgment would be upheld upon the ground that the presumption will prevail that the judgment of the nisi prius court was rendered upon the good count, and not upon the unsupported one. This case differs materially from those involving that question. Here there are two counts,-one good and the other bad. The court holds them both good. There is a verdict of guilty upon both counts, upon which judgment is pronounced. Error has intervened, and the good cannot be separated from the bad. The presumption must be that as both were held good, and evidence introduced in support of both, the judgment is upon both, and hence that it is erroneous. See People v. Mitchell, 92 Cal. 590, 28 Pac. 597. For this error the judgment and order appealed from should be reversed, and a new trial had, or the information set aside and a new information filed, as the court below may determine.

There is another question raised by appellant which may come up on a second trial. and which will be briefly noticed. The information charged the defendant with forging a check, signed R. S. Southerland, with intent to defraud R. S. Southerland and the Santa Rosa Bank. The testimony at the trial showed that "R. G. Southerland" was the true name of the party whose name was sought to be forged, and appellant claims the variance was fatal. (1) At common law the name of an individual consists presumptively of one Christian, baptismal, or given name. and also one surname, family name, or patronymic. (2) The common law recognized but one Christian name. Hence, the middle name or names, or the middle initial letter or letters, of a person's name, are not mate

rial, either in civil or criminal proceedings; and a variance between the pleading and proof in respect to such middle names or initials is, in this country, as at common law, regarded as immaterial. Massachusetts is an exception to this rule. People v. Ferris, 56 Cal. 442; People v. Lockwood, 6 Cal. 205; People v. Boggs, 20 Cal. 433; Miller v. People, 39 Ill. 457; Tucker v. People, 122 Ill. 583, 13 N. E. 809; Langdon.v. People, 133 III. 382, 24 N. E. 874; State v. Smith, 12 Ark. 622. The identity of R. G. Southerland as the party intended in the forged instrument was complete. There was no error in the admission of evidence or instructions under this head.

PEOPLE v. LANDMAN. (No. 21,115.) (Supreme Court of California. Aug. 17, 1894.) CRIMINAL LAW-INSTRUCTIONS- PRESUMPTION OF INTENT ASSAULT WITH INTENT TO KILL.

1. On a trial for assault with intent to murder, a charge that, if defendant voluntarily assaulted the prosecuting witness with a deadly weapon, in such manner that the natural consequences would be the death of the witness, then the law presumes that the defendant intended to kill the witness, is error, as the question of intent is one of fact, to be decided by the jury.

2. In order to convict of assault with intent to kill, the facts proven must be such that if death had resulted from the assault the same would have been murder..

Department 1. Appeal from superior court, San Diego county; W. L. Pierce, Judge.

Gustave Landman was convicted of assault with intent to commit murder, and appeals. Reversed.

Daney & Wright, for appellant. Atty. Gen. Hart, for the People.

GAROUTTE, J. The defendant was convicted of an assault with intent to commit murder, and now prosecutes this appeal from the judgment and order denying his motion for a new trial. At the request of the prosecution the court gave the jury the following instruction: "Every person is presumed to intend what his acts indicate his intention to have been; and if the defendant, at the time and place alleged in the information, voluntarily assaulted the prosecuting witness with a deadly weapon, in such a manner that the natural and ordinary consequences of such assault would be to kill the said witness, Stanovitch, then the law presumes that the defendant intended to kill the said witness, Stanovitch; and, unless it appears from the evidence that the intention of the defendant

was other than his acts indicated, the law will not hold him guiltless." It is now ar gued by the attorney general that the foregoing instruction should not be construed as an attempted exposition of the law bearing upon the specific offense charged in the information, but that it related and was pertinent to other and lower offenses necessarily included therein, and that as to such offenses it stated the true rule. To support his contention he says the "intent" to which the instruction was directed was "the intent to kill," and not the "intent to murder." Again, he says the word "guiltless" does not refer to the offense of assault with intent to commit murder, but that such portion of the instruction means that the defendant will not be held guiltless of any and all offenses. We think the argument unsound. In the first place, there is no such offense designated in our Criminal Code as an assault with a deadly weapon with intent to kill. The entire instruction is framed with a view of enlightening the jury upon a question of law as to the intent to kill; and, upon respondent's construction, it would be uncalled for and not demanded by the exigencies of the case, for an intent to kill is only material in this case when we view such an intent as one to commit murder. Again, the fair interpretation of the language of the court is that, under the circumstances depicted by the evidence stated, the defendant could not be held guiltless of the specified crime charged in the information. A jury would so understand it beyond any doubt. Looking at the instruction from this standpoint, it is clearly erroneous, for it trenches upon the province of the jury in passing upon matters of fact. In the offense here charged a specific intent is the all-important element, and it is essentially a question of fact for the jury to decide. When a specific intent is an element of the offense, no presumption of law can ever arise that will decide this question of intent, and therein is found the vice of the present instruction. The saving clause found in the latter portion of it does not cure the objection we have suggested. If it serves any purpose whatever, it casts upon the defendant the burden of introducing evidence to disprove a state of facts created by a presumption of law, and no such burden can be cast upon a defendant in a case charging an offense of the present character. Of course, under these circumstances, a person's intent cannot be proven by direct and positive evidence, yet it is none the less a question of fact, to be proven like any other fact in the case, and all the circumstances surrounding the assault furnish the rule upon which its proper solution depends. As fully and entirely supporting these views, we cite Roberts v. People, 19 Mich. 401; Patterson v. State, 85 Ga. 131, 11 S. E. 620; Lawson, Pres. Ev. p. 271; People v. Mize, 80 Cal 42, 22 Pac. 80.

The court refused to give the following instruction asked by the defendant: "In order to justify a verdict of guilty of the crime of assault with intent to commit murder, the facts and circumstances proven in A case must be such that if death had resulted from the shooting the crime would have been murder, and not manslaughter; for if the crime, in a case of death, would have been only manslaughter, the defendant cannot be convicted of the offense charged." This instruction should have been given, for it is sound law. If death should result from an assault with intent to commit murder, no case can be imagined where the assailant would not be guilty of the crime of murder. Indeed, the death of the party assaulted is the only element necessary to change the offense from assault with intent to commit murder to that of murder. It may be suggested that the converse of this principle does not necessarily follow, to wit, if the killing is murder there must necessarily have been an intent to commit murder. See People v. Mize, 80 Cal. 42, 22 Pac. 80. For the foregoing reasons, it is ordered that the judgment and order be reversed, and the cause manded for a new trial.

re

We concur: VAN FLEET, J.; HARRISON, J

(103 Cal. 588)

RAMBOZ v. STOWELL. (No. 19,345.) (Supreme Court of California. Aug. 18, 1894.) ESTOPPEL BY DEED.

Where a married woman represents that she is a widow, and, for a valuable consideration, executes a deed of land as a single woman, and after her husband's death, without consideration, deeds the land to her daughter, who has actual notice of the prior deed, the daughter is estopped from denying that her mother was a widow when the prior deed was executed.

Commissioners' decision. In bank. Appeal from superior court, Los Angeles county; W. H. Clark, Judge.

Action by Jane Ramboz against N. W. Stowell to quiet title to land. Judgment was rendered for defendant, and plaintiff appeals. Affirmed.

Davis & Matthews and C. C. Stephens, for appellant. Wm. D. Stephens, for respondent.

VANCLIEF, C. Action to quiet title to a lot of land in the city of Los Angeles. It is admitted that Margaret J. Starkey was the owner of the lot in question on June 13, 1878, as her separate property, and both parties claim title from her. On that day, Mrs. Starkey, for a valuable and sufficient consideration, signed, sealed, and delivered to Helen L. Grinnell a deed of the lot, the acknowledgment of the execution of which was certified by a notary public (A. C. Holmes) in the form required for an unmarried woman, and not otherwise, and the deed was recorded on the same day. On September

19, 1887, Helen L. Grinnell, in consideration of $11,000, conveyed the lot to defendant by deed recorded October 4, 1887. On May 13, 1891, Mrs. Starkey, for the nominal consideration of $100, but without any valuable consideration, conveyed the lot to plaintiff, who is her daughter, and who, on the following day (May 14, 1891), commenced this action. At the date of the deed to plaintiff she had actual notice of the prior deed of her mother to Helen L. Grinnell. The trial court gave judgment for defendant upon a finding that the plaintiff was estopped from denying that Mrs. Starkey was a widow at the time she acknowledged her deed to Helen L. Grinnell; and whether or not this finding is supported by the pleadings, and is justified by the evidence, are the only questions requiring special consideration.

That the answer states facts sufficient to constitute an estoppel, within the rule deducible from the cases of Reis v. Lawrence, 63 Cal. 129, and Hand v. Hand, 68 Cal. 135, 8 Pac. 705, have no doubt.

It

As to the sufficiency of the evidence, it is admitted that Mrs. Starkey was married to Thomas Starkey, in Ohio, in 1844; that she and her husband lived together until some time in 1869, when they separated at Chicago, Ill.; that in 1870 she came to Los Angeles, in this state, where she continuously resided until 1880, except that in 1877 she visited Chicago for about three weeks, and there met her husband, who remained with her during that visit; that her husband was never in this state; and that he died in 1885. also appears that she went to Arizona in 1880, and returned to Los Angeles in 1884, where she has ever since remained. The court found that she abandoned and deserted her husband in the state of Illinois in 1869, and this finding seems fairly inferable from the admitted fact that she left him in that state, there being no evidence that he ever left or deserted her. J. S. Severance testified, in substance, that during the year 1878 he was agent for Helen L. Grinnell, who then and ever since resided in New York; that, as such agent, he attended to and conducted the transfer of the premises in question from Mrs. Starkey to Helen L. Grinnell, which was consummated by the acknowledgment of the deed on June 13, 1878; that during the negotiations for that transfer, and before the acknowledgment of the deed, Mrs. Starkey told him that she was a widow, and in a previous transaction with her she had expressly represented herself to be a widow; and that he never had any notice that she was a married woman at the time she executed the deed to Helen L. Grinnell, until since the commencement of this action. A. C. Holmes, the notary by whom the acknowledgment was certified, testified that, in taking acknowledgments of women, it had been his invariable custom to ask them whether or not they were married, and to take and certify their acknowledgments accordingly, and