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these instructions embodied all the law it was necessary to give the jury, but after passing on these instructions, and giving a large num. ber of them to the jury, the court proceeded of its own motion further to charge the jury, and in such charge fell into at least two errors, which will be noticed. The court said:

“You will apply the evidence in this case to the law of justifiable homicide I have read to you, and if you believe from the evidence, beyond a reasonable doubt, that defendant, at the time he fired the shot, was in imminent danger of losing his life or of having inflicted upon him a great bodily injury,” etc.

It was not necessary that the fact of danger to life or limb should be shown by the evidence beyond a reasonable doubt, to entitle him to an acquittal, and we cannot say that the defendant was not prejudiced by such an erroneous instruction at the end of the charge to the jury. Another error occurs in the closing part of the charge, which is equally serious and erroneous. Charging the jury on the question of good character, the court said :

“Evidence of character can only be considered in relation to the particular crime charged in cases where the guilt of the accused is doubtful.”

This is contrary to the rule laid down by the supreme court in numerbus cases. It will be sufficient to refer to two or three of these cases. People v. Ashe, 44 Cal. 288; People v. Bell, 49 Cal. 485. In the latter case the court says:

“The jury must take such evidence [of character] into consideration for the purpose of determining whether it creates a reasonable doubt of his guilt.”

It is not improper for us to call the attention of the court below, as well as other superior judges, to the suggestion of Justice BALDWIN in the case of People v. Gibson, 17 Cal. 283, on the subject of instructions to the jury in criminal cases.

Judgment and order reversed, and cause remanded for a new trial.

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(68 Cal. 101)

PEOPLE v. HAMBLIN. (No. 20,072.)

Filed November 26, 1885. 1. WITNESS-IMPEACHMENT BY EVIDENCE OF CHARACTER-EVIDENCE OF PAR

TICULAR ACTS.

A witness may be impeached by the party against whom he was called by contradictory evidence that his general reputation for truth, honesty, and integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or record of the judgment, that he has been convicted of a felony. But questions, the object of which were to make it evident that the witness had been arrested on divers occasions for shooting at individuals who had incurred his displeasure, should not be admitted, and to allow them to be asked and to compel their answer would be error. So, also, it would be improper to interrogate him, and force an answer which might show him to be a man engaged as door-keeper of a gambling house, which was an unlawful employment, with a guilty knowledge of

its nature. 2. HOMICIDE-MURDER IN FIRST DEGREE DEFINED-MALICE.

When a killing is shown to be without extenuating circumstances, malice is presumed; and, when this malice is thus shown, if the evidence clearly discloses deliberation or premeditation in the act of killing, or the existence of an intention to kill while giving the fatal blow, such a killing is murder in the first and not in the second degree. Commissioners' decision.

Department 1. Appeal from superior court, city and county of San Francisco.

E. A. Phillsbury, for appellant.
The Attorney General, for respondents.

FOOTE, C. The defendant in this case was convicted of murder in the first degree. He moved for a new trial, the motion was denied, and from the judgment of conviction and the order denying a new trial he appeals. The defendant was called as a witness in his own behalf. Upon cross-examination the district attorney asked the following questions:

Question. I propose to ask you this question, sir: On the night or evening of the twenty-fourth of October, 1881, were you arrested on Third street or Kearney street, in this city, for shooting at a man by the name of James Sanderson, and whether or not you were imprisoned under said arrest in this building?

Q. Were you imprisoned in the city prison here? Were you brought to the city prison, and imprisoned in the city prison at that time?"

"Q. On the twenty-seventh day of December, 1872, in the city of Stockton, in this state, were you arrested and imprisoned for shooting at a man by the name of Bell, who was firemnan on the locomotive on the pay car of the Central Pacific Railroad?"

“Q. Were you arrested on the nighu of the twenty-seventh day of December, 1872, at the city of Stockton for firing at any man, and imprisoned,-and imprisoned for firing at any man up there?

The witness was compelled to answer each of these questions against his exceptions as defendant.

In a case of recent occurrence in this state, where similar questions were put to a witness, the court said:

“ The only possible object of asking the questions was to impeach the credibility of the witness. But the testimony was not admissible for that purpose.

The mere fact that the witness had been arrested does not prove, nor tend to prove, that he had been convicted of any offense; and until there is proof of conviction the witness was protected by the legal presumption of innocence. Hence the rule formulated by section 2051, Code Civil Proc.: A witness may be impeached by the party against whom he was called by contradictory evidence that his general reputation for truth, honesty, and integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or record of the judgment, that he has been convicted of a felony.' People v. Elster, 3 Pac. Rep. 888, and cases there cited."

In the case at bar there was no effort whatever made to show that the defendant, the witness, had ever been convicted of a felony; the object of the questions seems to have been to make evident that on

divers occasions he had been arrested for shooting at individuals. There the effort to discredit him stopped. The effect of this may have been to create a prejudice in the minds of the jury against the defendant as a man ready with a pistol to shoot at those who had incurred his displeasure. Hence to allow the questions to be asked, and to compel their answer, was error prejudicial to the defendant.

This further question, on cross-examination, was asked the defendant:

"Question. I suppose, Mr. Hamblin, that you knew it was an unlawful business while you were employed there as door-keeper.”

It was objected to, but the objection was overruled, and the witness required to answer. The witness had previously testified to his being employed as door-keeper at a place on Kearny street, in San Francisco, that was frequented by the deceased. It was legitimate for the purpose of showing the terms of intimacy, or the contrary, of the defendant and deceased by proper questions to locate the defendant. But in that connection it was improper to interrogate him, and force an answer which might show him to be a man engaged as door-keeper of a gambling-house, which was an unlawful employment, with a guilty knowledge of its nature; and the minds of the jury might thereby have been prejudiced against him as a willful violator of the law. As we understand the part of the charge of the court complained of, it announced the proposition, taken in connection with the other portions thereof as given, that when the killing is shown to be without extenuating circumstances malice is presumed; that when this malice is thus shown, if the evidence clearly discloses deliberation or premeditation in the act of killing, or the existence of an intention to kill while giving the fatal blow, that such a killing is murder in the first, and not in the second, degree. This is the law as stated in People v. Doyell, 48 Cal. 93-97, where the case of People v. Long, 39 Cal. 694, is explained. And the court does not, therefore, appear in the whole charge as given to have committed error.

For the reasons stated, the judgment of conviction and order denying a new trial should be reversed, and the case remanded for a new trial.

We concur: BELCHER, C. C.; SEARLS, C.

By The Court. For the reasons given in the foregoing opinion, judgment and order reversed, and cause remanded for a new trial.

v.87, no.11-44

(2 Cal. Unrep. 573)

People v. Johnson. (No. 20,075.)

Filed November 26, 1885.
CRIMINAL LAW-APPEAL-INSTRUCTIONS, PRESUMPTION IN FAVOR OF.

Where, in a criminal case, none of the evidence given on the trial appears in the record on appeal, the appellate court must presume that the instructions granted by the court at the instance of the prosecution, and its charge to the jury on its own motion, were proper, if such a state of the evidence therein is conceivable as may have rendered them correct. Commissioners' decision. Department 1. Appeal from superior court, county of Mendocino. T. L. Carothers, for appellant. The Attorney General, for respondents.

Foote, C. Appeal from a judgment of conviction of murder in the first degree, and from an order denying a new trial, in the superior court of the county of Mendocino.

There is an absence of all evidence in the transcript before us. We cannot then say that the instructions asked by the defendant, and re.. fused by the court, had any application to the case as made. People v. Herbert, 61 Cal. 545.

The same thing may be said as to the alleged error, that the court, not being requested so to do by the defendant, failed to instruct the jury as to what constituted either justifiable or excusable homicide.

That part of the court's charge in reference to the law of reasonable doubt, is not subject to the criticism made on it. The jury were not misled into supposing that they were authorized to become “satisfied” of the defendant's guilt from anything except the evidence in the case.

The authorities cited by the defendant do not sustain him in the positions he has assumed.

As has been before stated, none of the evidence given on the trial of this case is before us for examination. We must presume, therefore, that the instructions granted by the court at the instance of the prosecution, and its charge to the jury on its own motion, were proper, since such a state of the evidence therein is conceivable as may have rendered them correct. People v. Padillia, 42 Cal. 535.

The judgment and order should be affirmed.

We concur: BELCHER, C. C. ; SEARLS, C.

BY THE COURT. For the reasons given in the foregoing opinion the judgment and order are affirmed.

(68 Cal. 132)
In re Estate of DOYLE, Deceased. (No. 9,710.)

Filed November 27, 1885.
APPEAL-PROBATE OF WILL-NEW TRIAL-APPEALABLE ORDER.

An order denying a contestant's motion for a new trial in the matter of a
contest for the probate of a will is an appealable order.
In bank. Appeal from superior court, city and county of San
Francisco.

R. Percy Wright, for appellant.
H. C. Newhall, for respondent.

MORRISON, C. J. This is a contested will case, and the appeal is from an order of the court below denying the contestant's motion for a new trial in the matter of contest for the probate of the will. The only question before us is whether such an order is an appealable order. We think that under sections 963, 1714-1717, Code Civil Proc., the order appealed from is an appealable order, and therefore the motion to dismiss the appeal is denied.

We concur: THORNTON, J.; Ross, J.; MYRICK, J.

(68 Cal. 133)
GRAVES and others v. BAKER. (No. 8,298.)

Filed November 30, 1885.
1. HOMESTEAD-DECLARATION OF_STATEMENT OF VALUE.

A declaration of homestead stating that “the cash value of said homestead is about $4,000, gold coin," is sufficient, and complies with the statute re

quiring a statement of the value of the homestead. 2. SAME—How MAY BE ABANDONED).

A homestead selected by the wife out of the husband's property can only be abandoned by a declaration or grant thereof, executed and acknowledged by the husband and wife; and a trust deed executed and acknowledged by the husband alone is void as against such homestead. Commissioners' decision.

Department 2. Appeal from superior court, county of San Luis Obispo.

The declaration of homestead mentioned in the opinion stated that “the cash value of said homestead is about $4,000, gold coin,” and is the same declaration of homestead the sufficiency of which was passed on in Steiner v. Graves, (No.5,276,) unreported, and in Graves v. Baker, (No. 8,360,) post, 693.

W. J. Wm. Graves, McD. R. Venable, and Ernest Graves, for appellant.

Gregory & Shipsley, for respondents.

FOOTE, C. Action to declare a trust under the provisions of a deed made by Crogan Graves to Miriam Graves, his wife. The trust deed was of property on which a homestead had been declared by Miriam, the wife of Crogan Graves, before the trust deed was executed and delivered. The declaration of homestead was offered in evidence,

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