property is still held by plaintiff, who had taken no steps to subject the same to sale for the payment of the debt. The action had been brought to recover judgment for the amount due with interest.

The defendant insists that according to section 726, C. C. P., the action cannot be maintained; that the plaintiff must first seek to enforce his lien before he can have an independent action for money. This view was taken by the court below, in refusing judgment for plaintiff on the findings, and in rendering judgment for defendant. Section 726, C. C. P., refers in terms to a mortgage. Distinction between a mortgage and pledge is clearly recognized in section 2,920 and 2,928, civil code. In case of a pledge the pledgee may resort to a judicial sale (sec. 3,011, C. C.), or, he may sell on notice (secs 3,000-3,005, C. C.), without suit; the latter remedy not being given in case of a mortgage. We find nothing which will prevent a pledgee from having his action to recover the debt without first exhausting the subject of the pledge: Sonoma Bank v. Hill, 59 Cal., 107.

The order of the court below on a former hearing, granting a new trial, affirmed in 51 Cal., 172, is not the law of the case. The court below may have granted the new trial, for the reason above stated, among others, but this court, in its opinion, stated the ground on which the order was affirmed; which was not the point here pre

sented.

The plaintiff was entitled to judgment for the amount stated in the findings with interest.

The judgment is reversed, and the cause is remanded with instructions to render judgment in accordance therewith.

No. 7.204.

DORLAND V. BERNAL ET AL.

Department Two. Filed November 13, 1884.

STREET ASSESSMENT-JUDGMENT AFFIRMED.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendants a new trial.

M. G. Cobb, for the appellants.

Charles H. Parker, for the respondent.

THE COURT. This is a street assessment case.

Seven reasons are presented by the appellant why the judgment should be reversed. Several of them have been passed upon adversely to the appellants. We see no merit in those not so passed upon.

Judgment and order affirmed.

No. 11,000.

PEOPLE V. SAMUELS.

Department Two. Filed November 14, 1884.

JUROR NOT ON ASSESSMENT ROLL-NEW TRIAL-ARREST OF JUDGMENT.-The fact that a juror in a criminal prosecution is not assessed upon the assessment roll of the county, is not, after verdict, a ground for a new trial or for an arrest of judgment.

CRIMINAL LAW-MURDER-SELF DEFENSE-FEAR OF ASSAULT-INSTRUCTIONS. --An instruction given in a prosecution for murder, at the request of the people, that the "bare fear of an assault upon the defendant will not justify homicide, nor the fear that deceased was about to commit a felony, unless defendant believed there was imminent danger thereof," is no ground for reversal. Such instruction was more favorable to the defendant than he was entitled to, as it omitted the element of the reasonableness of the belief.

INSTRUCTIONS GIVEN BY THE COURT OF ITS OWN MOTION need not be marked. It is sufficient if it appear that the charge was given.

MURDER AND MANSLAUGHTER-MALICE WHEN INFERRED.-The distinction between murder and manslaughter lies in the presence or absence of malice. The existence of malice, like any other fact, may be logically inferred by the jury from all the facts and circumstances of the case, legally proved, the weapon used, the action of the defendant at the time of the killing, and his previous acts and conduct.

MURDER-DEFENDANT'S GOOD CHARACTER.-If the jury believe the defendant guilty of murder, they must so find, notwithstanding his good character.

APPEAL from a judgment of the superior court for Santa Barbara county, entered upon a verdict convicting the defendant of murder, and from an order denying him a new trial. The opinion states the facts.

McNulta & Oglesby, for the appellant.

Attorney-General, for the respondent.

MYRICK, J. The defendant was informed againts for the crime of murder, and was convicted of murder in the second degree.

1. Two persons, being examined as to qualification to serve as jurors, answered that they were assessed upon the last assessmentroll of the county. After the verdict, the defendant caused the index of the assessment-roll to be examined, and not finding the name of either of the persons, moved for a new trial, and an arrest of judgment. People v. Fair, 43 Cal., 137, is directly in point, adverse to the appellant.

2. The court instructed the jury, at the request of the prosecution, that the "bare fear of an assault upon the defendant will not justify homicide, nor the fear that deceased was about to commit a felony, unless defendant believed there was imminent danger thereof." This instruction was more favorable to the defendant than he was entitled to, as it omitted the element of the reasonableness of the belief.

3. The statute does not require that the charge of the court, given of its own motion, should be marked by the judge; it is sufficient if it appear that the charge was given, which does appear in this case.

4. The court instructed the jury: "The distinction between murder and manslaughter lies in the presence or absence of malice. The existence of malice, like any other fact, may be logically inferred by the jury from the facts and circumstances of the case, legally proved, the weapon used, the action of the defendant at the time of the occurrence and his previous acts and conduct."

We fail to see any error in this instruction. The same may be said as to the instruction regarding character, viz.: "If you should believe the defendant guilty, you must so find, notwithstanding his good character."

We see no error.

Judgment and order affirmed.

SHARPSTEIN, J., and THORNTON, J., concurred.

No. 20,004.

PEOPLE v. OILER

Department Two. Filed November 14, 1884.

ADMISSIBILITY OF DEPOSITION TAKEN BEFORE COMMITTING MAGISTRATE-CONSTITUTIONAL LAW.-On the trial of a defendant for having in his possession dies, plates, etc., designed for and used in counterfeiting coins current in this state, the deposition of a witness taken before the committing magistrate is admissible in evidence, upon proof that such witness is absent from the state. Sections 686 and 869 of the penal code, authorizing such evidence, are not in conflict with the last clause of section 13, article I of the constitution of 1879.

APPEAL from a judgment of the superior court for San Luis Obispo county, entered upon a verdict convicting the defendant, and from an order denying him a new trial. The opinion states the facts.

J. M. Wilcoxson, for the appellant.

Attorney-General, for the respondent.

THORNTON, J. The defendant was accused, by information, of the offense of feloniously, willfully and knowingly having in his possession dies, plates, etc., designed for and made use of in counterfeiting silver coins current in this state, and was found guilty as charged.

On the trial, the prosecution offered in evidence the deposition of one Antonio Chavez, taken by the committing magistrate on the preliminary examination before him of defendant, having first shown the absence of said Chavez from the state. The deposition was taken through an interpreter, and before offering it, the interpreter was called, who testified that he correctly translated to the shorthand reporter and the court, on the examination referred to, the testimony of Chavez, and that the deposition shown him written out in long hand, was the testimony of Chavez given on such examination. The reporter and the magistrate who officiated at such examination were also called, who identified the deposition and testified to its correctness.

With this preliminary evidence the prosecution offered to read the deposition to the jury. The defendant objected to its being read, on the ground that it was irrelevant, immaterial, incompetent and hearsay. The court overruled the objection, and defendant reserved an exception.

We are of opinion that the court in this ruling committed no error. The deposition was taken in accordance with the provisions of law

in regard to the preliminary examinations before a magistrate: See Penal Code, sec. 869. The defendant was present at the examination and had an opportunity of cross-examining and did participate in cross-examining Chavez. It was proven before the deposition was offered that Chavez was absent from the state. Under these circumstances, the deposition was, by the express terms of section 686 of the penal code, admissible in evidence.

It is contended on behalf of defendant that sections 686 and 869, above cited, so far as they allow the deposition taken on the preliminary examination of a person charged with a public offense to be read in evidence on the trial of such person, are unconstitutional. And, to sustain this point, reference is made to the last clause of section 13, article I of the constitution of 1879. We are of opinion that this contention is untenable. The clause of the constitution referred to was intended to confer further power on the legislature in regard to the taking of evidence by deposition in criminal cases. This clause invests the legislature, under the circumstances mentioned in it, with power to authorize the taking of depositions in criminal cases, other than on the preliminary examination. It was not intended to take away a power long exercised by legislatures in regard to the depositions of witnesses taken on such preliminary examinations. Such a power as the latter was exercised by parliament in England in the sixteenth century (see Stats. 1 and 2 Phil and M., c. 13, secs. 4, 5; and 2 and 3 Phil. and M., c. 10), and from an early period in various states of the union, and it has been held to be properly exercised in the states, whose constitutions secured to an accused person the right to be confronted face to face with the witnesses against him: People v. Restell, 3 Hill, 289; State v. Johnson, 12 Nev., 121; Com. v. Richards, 18 Pick., 434; Summons v. The State, 5 Ohio St., 325; Bishop's Crim. Pro., secs. 1,194-5-6, etc., to close of chapter 79, and cases cited in notes.

We find no error in the record, and the judgment and order are affirmed.

SHARPSTEIN, J., and MCKINSTRY, J., concurred.

No. 7,612.

SHARP v. MILLER.

Department Two. Filed November 14, 1884.

ORDER MADE AFTER REVERSAL OF JUDGMENT NOT APPEALABLE.—-An order made in an action after the judgment therein has been reversed in the supreme court, is not appealable as a special order made after final judgment. The effect of such reversal is to place the parties in the lower court in the same position as if the case had never been tried.

APPEAL from an order of the superior court for the city and county of San Francisco. The opinion states the facts.

P. B. Ladd, for the appellant.

G. F. & W. H. Sharp, for the respondent.

THE COURT. The order appealed from in this case is not appealable. The appellant contends that it is a special order made after final judgment. The judgment formerly rendered was reversed, and there was no judgment in the cause, when the order appealed from was made. The reversal of the judgment and order denying the motion for a new trial when the cause was here before (see 54 Cal., 329), placed the parties in the lower court in the same position as if the case had never been tried, with the exception that the opinion of this court must be followed, so far as applicable, in the new trial: Stearns v. Aguirre, 7 Cal., 447. Appeal dismissed.

No. 8,377.

CARTER V. ALLEN ET AL.

Department Two. Filed November 14, 1884.

ERRORS OF LAW OCCURRING ON TRIAL MUST BE SPECIFIED.-Errors of law alleged to have occurred on the trial will not be considered on appeal unless the same are specified in the statement of the case.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial.

Tully R. Wise, for the appellants.

Stanly, Stoney & Hayes, for the respondent.

THE COURT. The motion for a new trial was made on a statement of the case, and we cannot consider any alleged error of law, unless it is specified in the statement; and the ruling of the court on the defendant's offer "to show that the money in the hands of the administrator had come to his hands during the existence of the first bond" is not specified as one of the particular errors upon which the defendants would rely.

If the finding that the administrator received after the bond, on which the action is based, was executed, a sufficient sum of money to satisfy the plaintiff's demand, was justified by the evidence, the question whether the sureties would be liable, if their principal had not had, at any time after the date of the bond, any money in his hands belonging to the estate, does not arise in this case. The evidence, as we read it, justifies that finding.

We think the rulings of the court, on the objections to the introduction of the orders of the probate court, and the judgment-roll admitted in evidence, were correct.

Judgment and order affirmed.