tion in which the title to real property comes in question, and I believe that the party who would have to give evidence of title in order to sustain a complaint on the one hand or a defense on the other, would be the unfortunate party in the case. Thus, if A. were to sue B. for a trespass upon land that was unoccupied, or in the possession of a third person, and his complaint were denied by B., he would fail in his action, for the reason that he could not prove his cause of action without introducing evidence of his title to the realty. Upon the other hand, if A. were in possession of the real property in fact, and B., in order to maintain an affirmative defense, were compelled to allege and prove facts that would raise the question of title, he would fail in his defense. That a court of a justice of the peace has jurisdiction of an ordinary trespass to real property, there can be no doubt. Injuries to the possession of an occupant of land, is an ordinary subject of the jurisdiction. of that court, and I could discover no other reasonable solution of the question. The case of Cox v. Graham, 3 Iowa, 347, seems to support this view.

But since the motion for a rehearing has been filed, my attention has been called to the decision of the Indiana courts upon a similar statute to ours, which hold that if title comes in question by defense or plea, the justice is ousted of his jurisdiction: Parker v. Burrell, 3 Black. Ind. R., 411; and as the legislative assembly has, since our first decision, passed an act providing for the transfer of the case from the justice to the circuit court when title to real property shall come in question, and which will obviate any further embarrassment from that source, I feel inclined to change my first view, and hold that the circuit court, nor the justice, had any jurisdiction in the action. I am not fully satisfied with that construction of the statute relating to the matter, but my associates are of the opinion that it is the correct interpretation of it, and through deference to them, and influenced by the circumstances referred to, I have been induced to make the change.

The former decision will, therefore, be modified as follows: The decision of the circuit court will be reversed, and the case be remanded to that court, with directions to dismiss it for the want of jurisdiction of the justice court, or of that court on appeal, to try it.

CROWLEY ET AL. v. STATE.

Filed February 18, 1885.

JUSTICE'S JUDGMENT APPEAL-COSTS.-A judgment of a justice of the peace. rendered upon a conviction for an assault and battery, is sufficient, if in conformity with the statute. Such judgment may include the costs in the imprisonment. In an affirmance of such judgment on appeal, the circuit court should not include therein the costs of the trial in the lower

court.

Appeal from Polk county. The opinion states the facts.

Daly & Buller, for appellants.

Geo. E. Chamberlin, for respondents.

LORD, J. This cause comes here upon an appeal from the circuit court, on a writ of review from a justice's court, wherein the appellants were charged with an assault and battery, found guilty, and a judgment entered as follows:

"The above named, John F. Crowley, S. H. Crowley, T. H. Pickens, having been brought before me, Thomas Pearce, a justice of the peace, for the precinct in the county and state aforesaid, in a criminal action for the crime of assault and battery, and the said John F. Crowley, S. H. Crowley and T. H. Pickens, having, thereupon, pleaded not guilty, and being duly tried by a jury, and, upon such trial, duly convicted, I have adjudged that each of the said defendants, John F. Crowley, S. H. Crowley, and T. H. Pickens, pay a fine of ten dollars and twenty-four and twenty-four one hundredth dollars of the costs of the said action, being taxed at seventy-two dollars and thirty-five cents, and that in default of the payment of said fine and costs, by any one of said defendants, he be imprisoned in the county jail of Polk county, Oregon, until said fine and costs be paid, not exceeding seventeen days. Thomas Pearce,

"Justice of the Peace as aforesaid." The circuit court affirmed the judgment, and further ordered and adjudged that the defendants have, and recover, judgment of the plaintiffs for their costs herein, taxed at dollars, and the costs. of the lower court, taxed at eighty-one dollars and thirty cents, for which execution may issue.

The first error assigned is, that the judgment of the justice of the peace included the costs in the imprisonment. This is in conformity with the requirements of section 91, p. 474. A statute will not be declared void in whole or in part, unless its invalidity is distinctly pointed out and made clearly manifest. The general rule is, that every intendment must be given in its favor.

In the absence of any authority cited, or sound reason suggested, showing the invalidity of the section, we are of the opinion the error assigned is not well taken.

The next error alleged is, that the judgment of the circuit court included, besides the costs of trial in that court, the costs of the lower court.

This, probably, would have been better omitted, and the court below directed to proceed in the matter reviewed, according to its decision.

We, therefore, direct the judgment to be modified according to the view herein expressed, but, in all other respects, the judgment is affirmed. Neither party is entitled to costs in this court.

SUPREME COURT OF UTAH.

PEOPLE V. CALLAGHAN ET AL.

Filed March 2, 1885.

CRIMINAL LAW-MURDER AND MANSLAUGHTER-INSTRUCTIONS.-The evidence reviewed and held sufficient to warrant the court in submitting the question as to the degree of the homicide to the jury, and in refusing an instruction that the facts only made out a case of manslaughter.

THE SAME SELF-DEFENSE-BURDEN OF PROOF.-In a prosecution for murder, after the homicide is proved beyond a reasonable doubt, the burden of proof devolves upon the defendant to show, by a preponderance of evidence, that the killing was the result of sudden passion or in necessary self-defense.

AN ERRONEOUS INSTRUCTION, IF FAVORABLE TO THE defendant, cannot be complained of by him. MALICE HOW MAY BE DEFINED.-A definition of the word "malice," as used in connection with the degrees of homicide, may be given in the language of the statute.

MURDER SELF-DEFENSE, WHAT CONSTITUTES. —A killing is justified if at the time thereof the deceased was attacking the defendant, and the attack was of such a character as to imperil the life, or do some great bodily harm, and so imminent and pressing that a man of ordinary prudence, in the same or like circumstances would believe that it was necessary to take the life of his assailant, to save his own or prevent his receiving great bodily harm, and the defendant, so menaced, acted in good faith and used no more force than was necessary to save his own life or prevent great bodily harm to himself, although it afterwards appeared that such danger was only apparent and not real.

DECLARATIONS WHEN PART OF RES GESTAE. The declaration of the deceased, that the defendant shot him, if made a few seconds after the shot was fired, is admissible as part of the res gestae. The rule is different as to declarations of the defendant made after he had gone several miles from the place of the homicide.

DYING DECLARATIONS REDUCED TO WRITING ARE ADMISSIBLE.--Dying declarations, which are taken down in writing at the time they were uttered, although not signed by the deceased, are admissible in evidence, if it appears that such declarations were made under the present apprehension of impending death.

EVIDENCE-DEFENDANT WITNESS IN OWN BEHALF.-Where a defendant in a criminal prosecution becomes a witness in his own behalf, the court may direct the attention of the jury to such fact, if the credibility of the witness and the weight of his evidence is left exclusively to the jury.

CRIMINAL LAW-WHO ARE PRINCIPALS.-All persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, may be indicted, tried and punished as principals, under section 168 of the criminal practice act.

THE SEPARATION OF THE JURY, DURING THE PROGRESS of the trial, will not warrant a reversal.

APPEAL from the second district court. The opinion states the facts.

Arthur Rrown, for the appellant.

Zera Snow and W. H. Dickson, for the respondent.

EMERSON, J. The appellant, Callaghan, was jointly indicted with Fennell and Fitzgerald, charging them with murder in the first degree, in the killing of one Daniel Mahoney, at Frisco, in Beaver county. All three pleaded not guilty, and upon the case being called for trial, the defendant Fennell elected to be tried separately, and the trial proceeded as to the other two.

When the prosecution rested their case, at the close of their evidence in chief, the counsel for the defendant Fitzgerald moved for his discharge, on the ground "that there was no evidence implicating him with any criminal act in the case." After argument the motion was granted, and Fitzgerald, the discharged defendant, was the first witness sworn on the part of the defense.

Callaghan was convicted of murder in the second degree, and was sentenced to imprisonment in the penitentiary for a period of fourteen years, and appeals from the judgment, and from an order denying his motion for a new trial.

The record presents several exceptions taken to the rulings of the court, during the progress of the trial, together with a great number of exceptions relating to the instructions given and refused, and which will be noticed in the order in which they were presented to this court.

The first point urged upon our attention by the appellant is, that the court erred in refusing to instruct the jury that it was a case of manslaughter only.

It is the practice of the jury, under proper instructions from the court, to determine the degree of the homicide, and the court should not usurp this function. The court should, as it did in this case, inform the jury what circumstances will, in law, reduce a homicide from murder to manslaughter, or render it excusable or justifiable, and leave them to apply the law to the facts in proof. A case might be imagined, where the testimony was so clear, positive and uncontradicted, that the court would be authorized to instruct the jury, that the uncontested facts did not bring the case within any of the higher degrees of homicide, but whether the defendant is guilty of some lower offense, or not guilty at all, must still be left to the jury upon the facts as they shall find them. This, certainly, is not a case like the one last above referred to.

It appears from the record of the testimony sent up, that the deceased was a constable and night watchman; that the shooting, resulting in his death, occurred at about three o'clock on Sunday morning, August 3, 1883, while he was on duty as such night watchman. The place where this unfortunate affair occurred is what is known on this coast, as a mining camp. It appears that there had been some considerable disturbance in different portions of the town, during the early part of the evening, and preceding the shooting. It also appears, from the testimony, that the appellant and the other two defendants came down from the Carbonate mine early in the evening of Saturday; that they were together visiting saloons and other places and drinking quite freely. That the deceased, while in the discharge of his duty, had met them several times, and had accosted them, at one time asking them if they knew who had fired certain "shots;" of which they disclaimed having any knowledge. There was testimony on the part of the prosecution tending to show that subsequently to this time, the three were together and were watching for some one, and that the deceased was the one for whom they were watching. Other witnesses testified that they heard the shooting at the time the deceased was killed, and saw the defendants running from the scene, and heard the appellant say at this time "I got him at last."

With the above testimony in the case for the jury to weigh and determine, it was not error for the court to refuse the instruction

asked. In connection with this request to charge, the appellant claims, that, at the time of the shooting, the deceased assaulted him and fired the first shot. There is some conflict in the testimony as to what occurred just at that time. The shooting occurred immediately after the deceased had ordered the appellant and his companions to "get off from the streets and go home." One of the witnesses for the prosecution testified that she was awakened by the talking on the street, and that she recognized the appellant by his voice, as one of those who had disturbed her; and saw two others with him, whom she did not know; that she saw the deceased come up and heard him tell the parties to go on, go home," and after some other conversation, he said to them, "you must move on, I tell you, there is people here who want to sleep, you must find some other place to do your talking," and that the appellant turned around and the shooting commenced, and, the witness continued, "all three shots seemed to be fired at me; the first shot seemed to come from where Callaghan stood. Dan. (the deceased) stood between me and the other three and about two feet from Callaghan; the second and third shots were nearer together than the first and second, but all in a few seconds." There is other testimony in the case, some of it direct and positive, that the appellant fired the first shot.

6.

The deceased, as a peace officer, was in the legitimate discharge of his duty, in ordering these parties off from the streets, as they were using it not for the mere purpose of passage as a highway, but as a place of resort, to the annoyance of peaceful citizens, and at a time, and under circumstances when no legitimate business called them there. Certainly the language used by the deceased, even if it had been accompanied by a threat to arrest them, unless they obeyed his order to "get off from the streets and go home," cannot be tortured into such an assault, as would authorize the court to give the instruction asked. The court gave full and proper instruction as to the degrees into which the statutes have divided the subject of homicide.

The next assignment of error is based upon the following portion of the charge: "It is admitted by the counsel for the defendant, Callaghan, on trial, and in his presence and hearing, and without objection on his part, that the defendant, Patrick Callaghan, did, on the fifth day of August, 1883, at the county of Beaver, in the territory of Utah, kill the defendant, Daniel Mahoney, but they claim that such killing was in self-defense, and therefore justifiable or excusable.

"If the killing of Mahoney by the defendant, Callaghan, is admitted or proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed, only amounts to manslaughter, or that the defendant, Callaghan, was justifiable or excusable, in the act of killing. Up to the moment when the killing is proved, or admitted, the prosecution must make out its case beyond any reasonable doubt. When the killing is admitted or proved, it devolves upon the defendant, Callaghan,