cupied, together with plaintiff and J. H. Howell, moved into and took possession thereof under an agreement that they would occupy the same jointly, each contributing his own belongings and, in a way, sharing the living expenses, in accordance with which arrangement they lived until the acts of defendant complained of. That at most plaintiff's possession was a joint possession in conjunction with Howell and defendant, all having equal possession and right of egress and ingress to the house, to which defendant had a key, clearly appears. While a joint tenant or tenant in common may maintain an action of this character against a cotenant who has ejected him, his right to restitution is restricted to his right of reinstatement to the common possession only. (19 Cyc. 1141; Lick v. O'Donnell, 3 Cal. 59, [58 Am. Dec. 383].) The effect of the findings and judgment based thereon is to oust defendant from the property in which his right to possession is at least equal to that of plaintiff, to whom the exclusive right to the possession of the property is adjudged. "All that plaintiff was entitled to, therefore, was to be let into possession with the defendant, to enjoy his moiety." (Lee Chuck v. Quan Wo Chong & Co., 91 Cal. 593, [28 Pac. 45].) Our conclusion renders it unnecessary to discuss other alleged errors. The judgment is reversed. Conrey, P. J., and James, J., concurred. [Civ. No. 2952. First Appellate District, Division One.-July 29, 1919.] O. L. SEELYE, Respondent, v. THE SOUTHERN CALI- [1] CONTRACTS-ACTION FOR BREACH-CONFLICTING EVIDENCE-JudgMENT APPEAL.-In an action for damages for breach of a contract for the sale and delivery of the plaintiff's crops of fruit covering a series of years, if the evidence is in substantial conflict as to the material facts the decision of the trial court will not be disturbed upon appeal. 42 Cal. App.--32 APPEAL from a judgment of the Superior Court of San Bernardino County. J. W. Curtis, Judge. Affirmed. The facts are stated in the opinion of the court. E. H. Jolliffe and Archie D. Mitchell for Respondent. RICHARDS, J.-This is an appeal from a judgment in favor of the plaintiff in an action brought by him against the defendant to recover damages for breach of a contract between the parties for the sale and delivery of the plaintiff's crops of fruit covering a series of years. The said contract was entered into in April, 1914, and by its terms the plaintiff sold and the defendant bought all of the peaches of specified kinds and grades that should be raised upon the plaintiff's orchard during the ensuing five years. The contract contained various conditions as to the care and delivery of the fruit by the plaintiff, and as to the acceptance and payment therefor by the defendant. The plaintiff's crop of fruit for the year 1914 was delivered and paid for pursuant to the terms of the contract, but as to the crop for the year 1915 disputes arose between the parties, during which some portions of the fruit tendered by the plaintiff were rejected by the defendant as being below standard as fixed by the contract. Other portions of said fruit were accepted, but, as claimed by the defendant, subject to certain discounts from the contract prices, on account of the fruit being inferior to the grade called for by the terms of the agreement. The parties having disagreed as to these matters, and hence as to the amount due to the plaintiff at the close of the cropping season, the plaintiff instituted this action wherein he sought to recover for the fruit delivered and tendered by him according to the full contract prices therefor provided in said contract. The trial of the cause was held before the court without a jury, and findings and judgment were thereupon entered in favor of the plaintiff for the amount prayed for in his complaint, whereupon the defendant prosecuted this appeal. [1] Examination of the briefs of counsel will disclose that the entire discussion of the merits of the case upon appeal is a discussion of matters of fact, and that as to each and every one of said matters, the evidence is in substantial conflict. This being so, the decision of the trial court upon all of such contested matters will not be disturbed upon appeal. The sole contention of the appellant deserving even a passing consideration is the contention that under the terms of the contract between the parties, the appellant, as the purchaser of the fruit in question, was entitled to exercise an unbridled judgment as to whether any portion of said fruit was not in quality up to the specifications of the contract, and was entitled thereupon to elect to accept or refuse to receive said fruit, and that the seller thereof was, under the terms of said contract, bound to abide by the conclusion of the purchaser in this regard, and was not thereafter entitled to insist upon the delivery of such fruit so rejected, and hence that the judgment of the court in respect to so much of the said fruit as the purchaser had thus rejected was erroneous and excessive. We do not so interpret the contract between the parties, but, on the contrary, we are of the opinion shared by the trial court, that if the plaintiff's fruit was of the quality required by the terms of the agreement between the parties, he was entitled to deliver it, and the defendant was bound to receive it, or, in the event of his refusal, to pay such damages as were the rightful penalty imposed upon his wrongful rejection of the fruit. The judgment of the trial court imposed this penalty, and, in our opinion, imposed no more. There being no merit in this appeal, the judgment is affirmed. Waste, P. J., and Bardin, J., pro tem., concurred. [Crim. No. 643. Second Appellate District, Division One.-July 30, 1919.] THE PEOPLE, Respondent, v. JOHN ALBERT HOPPER, Appellant. - [1] CRIMINAL LAW-MURDer - MISCONDUCT OF DISTRICT ATTORNEY WAIVER OF OBJECTIONS.-Objection to the misconduct of the district attorney in making a certain statement in his argument to the jury in a prosecution for murder will not be considered by the appellate court where no assignment of such misconduct was made by the defendant at the time the statement was made to the jury. [2] ID. GOOD REPUTATION OF DEFENDANT - PRESUMPTION INSTRUC TIONS.-A requested instruction "that the law presumes that the defendant has a good reputation for truth, honesty, and integrity" does not conform to section 1847 of the Code of Civil Procedure. [3] ID. RIGHT OF SELF-DEFENSE-INSTRUCTIONS.-The defendant in a prosecution for murder is not prejudiced by the failure or refusal of the court to give an instruction on the right of self-defense in the language requested by him, where the court does give an instruction on that subject that is free from any error of which the defendant can complain. [4] ID.-BURDEN OF PROOF-MURDER IN FIRST DEGREE-VERDICT-INSTRUCTIONS. In a prosecution for murder, the court having instructed the jury "that it is the duty of the prosecution to prove every material fact necessary to constitute the charge against the defendant beyond all reasonable doubt and to a moral certainty, and in this case, among the material facts to be proven, are,First: That the deceased was killed by the defendant. Second: That the killing was done with malice aforethought and with premeditation," the defendant, having been convicted of manslaughter only, may not predicate error on the failure of the court to further instruct the jury in that connection, as requested by him, "if you have a reasonable doubt upon any one of these material facts, it is your duty to acquit the defendant of murder in the first degree." [5] ID. EVIDENCE OF DRUNKENNESS-CONSIDERATION BY JURY-DEGREE OF CRIME-INSTRUCTIONS.-An instruction that "evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of crime, and the weight to be given it is a matter for the jury to determine in connection with all the other evidence and circumstances in proof in the case," contains a correct statement of the law. [6] ID. INTENTION OF DEFENDANT CONSIDERATION OF MEANS USEDINSTRUCTIONS. In a prosecution for murder, it is proper to instruct the jury that "in determining the intention of the defendant at the time of the transaction complained of it is important to consider the means used to accomplish the killing." [7] ID. BURDEN OF PROOF - MITIGATING CIRCUMSTANCES INSTRUCTIONS.-Where in other instructions given the jury was fully instructed that the burden was upon the prosecution to prove defendant's guilt beyond a reasonable doubt, it was not error to instruct the jury that "upon a trial for murder if the commission of the homicide by the defendant is proved to a moral certainty and beyond a reasonable doubt, then it devolves upon the defendant to prove circumstances of mitigation or that justify or excuse the act, unless the proof on the part of the prosecution tends to show that the crime only amounts to manslaughter, or that the defendant was justifiable or excusable." APPEAL from a judgment of the Superior Court of Kern County. T. N. Harvey, Judge. Affirmed. The facts are stated in the opinion of the court. E. J. Emmons for Appellant. U. S. Webb, Attorney-General, and Joseph L. Lewinsohn, Deputy Attorney-General, for Respondent. CONREY, P. J.-The defendant appeals from a judgment rendered against him upon conviction of the crime. of manslaughter. [1] Appellant charges the district attorney with misconduct in making a certain statement in his argument to the jury. No assignment of such misconduct was made by defendant at the time when the statement was made to the jury, and the objection will not be considered now. Appellant claims that the court erred in refusing the following instructions requested by him: 1. "You are instructed that the law presumes that the defendant has a good reputation for truth, honesty, and integrity." 2. "The defendant would be entitled to act upon the appearances as they presented themselves to him as a reasonable man, although it might subsequently turn out that Warn was unarmed and in fact there was no danger to the defendant." 3. "You are instructed that declarations are very weak and unsatisfactory in their nature as evidence and you are instructed that it is your duty to scrutinize closely any evidence of declarations owing to such fact. The extrajudicial statements of a prisoner unaccompanied with other facts or circumstances are not sufficient and will not justify a conviction." 4. "Evidence of the bad character of the deceased for peace and quiet can be considered by you as having a tendency to show the purpose and intent at the time of the affray that actuated the deceased and can be considered further by you for the purpose of arriving at the condition |