No. 20.032. PEOPLE v. SILVAS. In Bank. Filed December 26, 1884. A VERDICT CONVIcting the Defendant of MURDER IN THE FIRST DEGREE, held, warranted by the evidence. APPEAL from a judgment of the superior court for Los Angeles county, entered upon a verdict convicting the defendant, and from an order denying him a new trial. The opinion states the facts. Zed. T. Carson, for the appellant. Attorney General, for the respondent. MORRISON, C. J. The district attorney filed an information in the superior court of Los Angeles county charging the defendant with the crime of murder, alleged to have been committed in the city of Los Angeles on the morning of July 21, 1884. The facts in the case are clearly established by the evidence, and are briefly as follows: James McIntyre, the party killed, and a friend named Hickey were passing along New High street in Los Angeles, when they saw the defendant sitting in a chair on the sidewalk nearly opposite a saloon kept by one Ölivier. The sidewalk at that place was about seven feet wide, and the man was sitting between two and three feet from the side of the house, occupying very nearly the middle of the walk. As the deceased and Hickey passed the defendant between him and the house, one of them rubbed against him-struck him with his foot on the leg, and knocked his hat off, as the defendant says, whereupon, the defendant got up from the chair upon which he was sitting, and addressed a very opprobrious epithet to the two men, particularly to Hickey, and drawing a large knife, the blade of which was about six inches in length, made a hostile demonstration with it, Hickey being the particular object of his anger. Thereupon, the deceased struck at the defendant. The evidence does not show clearly whether the blow reached the defendant or not. At all events, it was a blow with the fist simply, and did not do the defendant any injury. Thereupon, the defendant attacked the deceased with his knife, and pursued him eighty or one hundred feet, striking at him, and cutting him with the knife until the deceased fell upon the ground, and died in a few minutes. The savage nature of the attack is shown by the character of the wounds inficted. The physician who made the post mortem testified as follows: "The external examination showed five wounds, two on the fingers of the right hand-one on the back of one finger and the other on the under side of the next finger; these two lay in a direct line with each other, and could have been made at one time with a double-edged knife. They were small wounds. Another wound as in the left groin, one inch and a half in length, and out of this the bowels were protruding about eight or ten inches. There was another wound in the left side, about an inch and a half or two tches from the left nipple, and an inch long. The fifth wound was * ** Both on the same side just back of the shoulder joint. the wound in the groin and the one in the side, were necessarily fatal, and ordinarily, life would last about ten or fifteen minutes after the infliction of such wounds." No weapon of any kind was found on the body of the deceased, and it is not pretended that any was seen by any of the witnessesnot even by the defendant. The case is one of a felonious attack by the defendant upon Hickey, an attempt by the deceased, however, rash and inefficacious, to resist such an attack, and then a most ferocious and blood-thirsty assault on deceased. The defendant pursued his unarmed and unresisting victim for eighty and perhaps one hundred feet, cutting at him with his knife, and inflicting on him, wounds from which he died in a few minutes. The learned counsel for the defendant labors to show that the crime does not rise higher than the degree of manslaughter; but the jury found the defendant guilty of murder in the first degree, and we do not see anything harsh or unreasonable in the verdict. The charge of the court to the jury is remarkably full, clear and correct. With the law as laid down by the court, the defendant had no cause of complaint, and the verdict of the jury is fully justified by that law and the evidence given in the case. Judgment and order affirmed. Ross, J., MYRICK, J., and THORNTON, J., concurred. No. 20,031. PEOPLE v. MARTINEZ. In Bank. Filed December 29, 1884. MURDER VOLUNTARY STATEMENT OF PRISONER EVIDENCE OF.-A voluntary statement made by a defendant charged with murder, before the coroner's clerk, is admissible in evidence against him. THE SAME DEGREE OF GUILT-MALICE-PROVINCE OF JURY.- In a prosecution for murder, it is the province of the jury, under proper instructions from the court, to determine the degree of the defendant's guilt; and a finding that the killing was done with malice aforethought, if there is any evidence to sustain it, will not be disturbed. APPEAL from a judgment of the superior court for Los Angeles county, entered upon a verdict convicting the defendant, and from an order denying him a new trial. The opinion states the facts. Zed. T. Carson, for the appellant. MORRISON, C. J. On the eleventh day of August, 1884, a judgment of conviction was entered against the defendant by the superior court of Los Angeles county. The charge contained in the information was one of murder, perpetrated by the felonious killing with premeditation and malice aforethought, of one Gabriel Chavez. The appeal is from the judgment, and also from the order of the court denying defendant's motion for a new trial. * * * In the evening of the twentieth day of June, 1884, the defendant and the deceased were seen in a wagon driven by the defendant, and proceeding from the city of Los Angeles in the direction of what is called the "Verdugo Cañon," the place of residence of the defendant. The defendant was driving, and as the witness Mirandetti states, "was looking a little under the influence of liquor, not very much, but you can't tell sometimes. The deceased wanted to stop, but Martinez wanted to go." The witness Rosa Bernero states that the defendant and deceased stopped at her grocery and liquor store, and bought four or five dollars' worth of groceries, which were paid for by the deceased. Chavez exhibited a small sum of money while there, and spoke of having a twenty-dollar gold piece. The witness says "they each had a drink in my place, but did not look as if they had been drinking." This was quite late in the afternoon or early in the evening, between five and six o'clock. Charles Gassen testified that he paid the deceased ten dollars in silver and twenty dollars in gold about four o'clock, P. M., on the twentieth of June, at the freight depot about a quarter of a mile from the residence of Mrs. Bernero. Frank Oakley, the next witness called for the prosecution, swore out a warrant for the arrest of the defendant and went out with officer Berry to make the arrest. There was a lengthy conversation between the defendant and the officer, in the course of which "the defendant appeared to be very nervous, and he denied it, until at last we got near the place where the murder had been committed, when Berry said, they heard three shots,' whereupon the prisoner remarked, 'that is impossible—there was but one. I fired only one.' Berry then asked, 'Why did you kill him?' and the defendant answered in Spanish, por que mi falto,' 'because he insulted me.'" Defendant further stated to officer Berry "that they both got out of the wagon, then they had a row, and he (defendant) shot him." That is the only reason given by the defendant for shooting the deceased, and his only explanation of the affair. The last named witness was the coroner's clerk, and before him the following written statement was made and signed by the defendant voluntarily, without any threats or promises: "I live at the Verdugo rancho. I work where I have got a piece of land rented. I rent from Theodora Verdugo. I was here in town last night almost to six o'clock. From here I went to the rancho. I went with Chavez. Chavez went with me to the rancho. What happened was that I killed him with a pistol. I fired once. He was standing on the ground and so was I. I shot him as he was standing in front of me. Chavez was higher up on the hill than I when I shot him. We were both on the left hand side of the creek. I got the pistol in my house. It was under the pillow of my bed." To the introduction of this statement in evidence defendant objected, and, the objection being overruled, exception was taken. This is the only exception in the case. In the case of People v. Taylor, 9 Pac. C. L. J., 4, this court held that an admission made by the defendant before a coroner's jury, was admissible in evidence against him. The court there uses the following language: "The statement having been voluntary, the evidence was admissible, whether made in a judicial proceeding or any other." There was no error in admitting in evidence the statement made by the defendant in this case. Doctor Nadeau, the physician who made the post mortem examination on the body of Chavez, says that the ball ranged downward from the second to the fifth rib, and from that fact the prosecution argues that defendant's statement that "Chavez was standing higher upon the ground than himself when the shot was fired" is false. Defendant denies that he took or saw any money on the person of the deceased, although it is shown by the testimony of several other witnesses that the deceased had money just before he was killed, and that none was found on the body. The defendant said nothing about the killing until he was arrested, and manifested much indifference about the occurrence when interrogated about it. The learned counsel for the defendant says in his brief: "It is true that the deceased came to his death at the time and place and by the means alleged in the information, but we will always deny that the killing was done with malice aforethought." That argument was made, we have no doubt, before the jury, but did not prevail there. It was the province of the jury, under proper instructions from the court, to determine the degree of defendant's guilt; and as was remarked in the case of People v. Raten, 63 Cal., 425, It is said that to constitute murder of the first degree, express malice must be proved; that it must be proved aliunde, and that it cannot be inferred or implied alone from the act done, or the means used in doing it. To this we have only to say that the questions as to malice were fairly submitted to the jury, the proper tribunal to pass on them, and that they were submitted with appropriate directions." The same may be said of this case. No fault whatever is found with the instructions of the court, and it may be remarked that the law of the case was fully and fairly stated by the court to the jury. The killing was admitted by the defendant, the evidence shows that the place of killing was a secluded one and the time about dark. The judgment and order are affirmed. MYRICK, J., SHARPSTEIN, J., THORNTON, J., MOKINSTRY, J., and MCKEE, J., concurred. No. 7,087. PEOPLE v. CENTER ET AL. In Bank. Filed December 30, 1884. AN APPEAL FROM A JUDGMENT WILL BE DISMISSED if the notice of appeal was served prior to the entry of the judgment NEW TRIAL-NOTICE OF INTENTION, WHEN MUST BE SERVED.-In an action tried by the court, where no notice of the decision was given, a notice of intention to move for a new trial is in time, although the same is not given within tên days after the decision. SETTLEMENT OF BILL OF EXCEPTIONS-STIPULATION FOR.-The consent of all the parties interested to the settlement of a bill of exceptions can not be inferred from a recital of the judge that the same was agreed to, when it appears that such settlement was made upon a stipulation not signed by all the attorneys of the parties interested. A NOTICE OF INTENTION TO MOVE FOR A NEW TRIAL MUST BE SERVED upon all the adverse parties. ON AN APPEAL FROM AN ORDER DENYING A NEW TRIAL BY CERTAIN DEFENDANTS, the defendants not moving should be served with notice of appeal. APPEAL from a judgment of the twelfth district court, entered in favor of the plaintiff, and from an order denying the defendants a new trial. The opinion states the facts. Philip G. Galpin, Stetson & Houghton and Warren Olney, for the appellants. Attorney General and C. R. Greathouse, for the respondent. THORNTON, J. This action was brought to annul a patent purporting to have been issued by the state of California to W. F. Montgomery and others, and their associates and assigns, and to declare the claims of defendants invalid. It is averred in the complaint that the patent was issued without authority of law, and is a cloud on the title of the state. The action was commenced on the fourth of December, 1875, against John Center, James T. Boyd, W. F. Montgomery, F. O. Carter, W. Bryant, F. W. Sampson, and fiftyseven other defendants, the latter being sued by fictitious names. There were several demurrers to the complaint, all of which were overruled. Answers were then filed by defendants Center, Boyd, Bryant, Carter and others, by which issues were joined on most of the material allegations of the complaint. These answers were filed prior to March 20, 1878. Subsequent to the commencement of the action, the legislature of this state passed an act entitled "An act to provide for determining the rights of parties in certain swamp and overflowed lands in Fresno and Kern counties," which was approved on the day last named: see stats. of 1877-78, p. 358; the preamble to which is as follows: "Whereas, the legislature of the state of California by three acts, approved respectively, April 11, 1857, April 10, 1862, and April 25, 1863, granted to W. F. Montgomery and others,, certain lands in what was then the counties of Fresno and Tulare, upon certain conditions in said acts named, and thereafter and on the eleventh day of November, 1867, the governor and the register of the state land office, claiming to act under said statutes or some of them, issued a certain document, purporting to be a patent, for a portion of said lands to the grantees in said acts named; and whereas, an action |