motives to intellectual assent too complicated and too sacred to be interfered with. But they have limited the practical consequences of the reliance of jurors upon the testimony of an accomplice, by providing that no verdict shall be based on his testimony, in the absence of other evidence tending to prove the guilt of the defendant. If, however, there is any independent evidence tending to prove such connection of the defendant with the crime, the superior court will not be justified in directing an acquittal; and it is obvious that the power so to direct must be exercised with extreme caution. On the argument it was suggested that the court below excluded from the consideration of the jury all the evidence, except the testimony of the accomplice, and any independent evidence tending to connect the defendant with the offense charged. But the instructions left it with the jury to. decide whether they should believe the testimony of the accomplice. In deciding that question they were bound to take into consideration all testimony contradictory of that of the accomplice, and all circumstances including the fact that he was an accomplice, if he was one-tending in their nature to affect his credibility. The jury were told carefully to scrutinize all the testimony, and were properly charged as to reasonable doubt. The instructions with respect to the testimony of an accomplice were needlessly prolix and repetitive, but there was no substantial error in the charge prejudicial to the rights of defendant. There was evidence, other than the testimony of the accomplice, tending to connect the defendant with the offense charged. Judgment and order affirmed. We concur: SEARLS, C. J.; TEMPLE, J.; THORNTON, J.; SHARPSTEIN, J.; MCFARLAND, J.; PATERSON, J. (73 Cal. 355) PEOPLE v. DAVIS. (No. 20,327.) (Supreme Court of California. September 10, 1887.) 1. HOMICIDE-INFORMATION-CHARGING FELONIOUS INTENT. An information for murder charged that defendant "did willfully, feloniously, premeditately, and of his malice aforethought, make an assault in and upon one William Krumdick, a human being, and did then and there inflict upon the body of said William Krumdick a mortal wound, of which said mortal wound, so inflicted by said James Davis, the said William Krumdick did afterwards die," etc. Held, that the charge was not merely that the assault, but also the infliction of the mortal wound, was felonious and of defendant's malice aforethought. 2. SAME-SUFFICIENCY OF INFORMATION. Under Pen. Code Cal. ?? 950, 959, prescribing the requisites of indictments and informations, and requiring a statement of the facts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended, an information for murder is sufficient if it charges that the defendant did unlawfully, feloniously, and of his malice aforethought, kill the deceased, naming him, and stating the appropriate time and place, 3. JURY-CHALLENGE TO PANEL. A departure from the forms prescribed by articles 3 and 4, c. 1, Code Civil Proc. Cal., with respect to the "drawing and return" of the jury, such as may deprive a defendant of an opportunity to secure a competent and impartial jury, is ground for a challenge to the panel. In bank. Appeal from superior court, Lake county; R. J. HUDSON, Judge. Spencer & Henning and Crawford & Tabor, for appellant. Geo. A. Johnson, Atty. Gen., for respondent. MCKINSTRY, J. Appellant was found guilty of murder of the second degree, and sentenced to imprisonment in the state prison. The information is as follows: "State of California against James Davis-Information for murder. "James Davis is accused by the district attorney of said Lake county by this information of the crime of murder, committed as follows: The said James Davis, on the ninth day of December, A. D. eighteen hundred and eighty-six, at the said county of Lake, and state of California, did willfully, feloniously, premeditately, and of his malice aforethought, make an assault in and upon one William Krumdick, a human being, and did then and there inflict upon the body of the said William Krumdick a mortal wound, of which said mortal wound, so inflicted by said James Davis, the said William Krumdick did afterwards, to-wit, on the thirteenth day of February, 1887, die, in the county of Lake aforesaid, contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of California."" Under our statutes an indictment or information is sufficient if it charges that the defendant did unlawfully, feloniously, and of his malice aforethought, kill the deceased, naming him, and the time and appropriate place being stated. People v. Cronin, 34 Cal. 200; People v. Murphy, 39 Cal. 55. And in the cases cited it was held that the sufficiency of an indictment is not to be tested by the rules of the common law, but by the requirements of our statute. In People v. Martin, 47. Cal. 102, the indictment averred that the defendants "willfully, unlawfully, feloniously, and of their malice aforethought, in and upon one Valentine Eichler, did make an assault, and with an ax, in and upon the head of said Valentine Eichler, then and there feloniously, willfully, and of their malice aforethought, did strike and beat, giving to said Valentine Eichler then and there, and with the ax aforesaid * * * divers mortal wounds, of which the said Valentine Eichler instantly died," contrary, etc. The indictment was held good, notwithstanding it did not conclude with words to the effect, "and so the grand jury say that the defendants, the said Valentine Eichler, in manner and form aforesaid, feloniously, willfully, and of their malice aforethought, did kill and murder," contrary, etc. That case holds, in effect, that, although it is not necessary to state the instrument wherewith the mortal blow was given, yet if the indictment charges that the defendant inflicted the mortal blow of which deceased died, "feloniously, willfully, and of his malice aforethought," it is sufficient. In the present case the information was demurred to on the ground that it neither charges that defendant killed the deceased willfully and of malice aforethought, nor that he inflicted the wound, of which the deceased died, willfully and of his malice aforethought. Does the information charge that the mortal blow was stricken "willfully, unlawfully, feloniously, premeditately, and of malice aforethought?" If so, it is sufficient, within the authority of the cases above cited. In State v. Owen, 1 Murph. 458, it was said that, at the common law, where the death is occasioned by a wound, bruise, or other assault, the stroke should be expressly laid. In that case it was charged that the defendant, "in and upon one Patrick Conway, in the peace of God and the state then and there being, feloniously, willfully, and of his malice aforethought, did make an assault, and that he, the said Jolm Owen, with a certain stick of no value, which he, said John Owen, in both his hands, then and there had and held, in and upon the head and face of him, the said Patrick Conway, then and there feloniously, willfully, and of his malice aforethought, did strike and beat, giving to the said Patrick Conway then and there, with the stick aforesaid, in and upon the head and face of him, the said Patrick Conway, several mortal wounds, of which said several mortal wounds the said Patrick Conway then and there instantly died." In that case it was held that the words "then and there," preceding the averment that the wounds were mortal, so connected that averment with the allegation that the blows were struck "feloniously, willfully, and of his malice aforethought," as to make these last words applicable to the giving of the mortal wounds. And in their opinion the supreme court of North Carolina refer with approbation to certain English decisions. Thus: "Where the indictment charged that A. feloniously and of his malice aforethought assaulted B., and with a sword, etc., and then and there struck him, etc., (held) the first allegation feloniously and of his malice aforethought,' applied to the assault, ran also to the stroke to which it is essential." And so where an indictment stated that the prisoner did willfully, feloniously, and of her malice aforethought, mix poison with the intent the same should be taken and eaten by the deceased, "and the said poison then and there delivered to the deceased,” the indictment was held sufficient by all the judges, without the words "feloniously and of her malice aforethought," immediately preceding the allegation of delivering the poison; for they considered that these words ran by the word "and" and the words "then and there," and became applicable to the delivery of the poison. We think like reasoning is applicable to the information before us, and that the charge is not merely that the assault, but also the infliction of the mortal wound, was felonious and of defendant's malice aforethought. The acts constituting the alleged offense-murder-are stated “in ordinary and concise language, and in such manner as to enable a person of ordinary understanding to know what is intended." The acts charged in the information as constituting murder are "clearly and distinctly set forth in ordinary and concise language," etc. Pen. Code, §§ 950, 959. The demurrer was properly overruled, and the motion in arrest of judgment properly denied. The defendant challenged the panel of jurors upon the ground that the panel was not selected and drawn in conformity with the requirements of articles 3 and 4, c. 1, tit. 3, of the Code of Civil Procedure; and specified certain particulars in which the provisions of the Code had been departed from. The challenge was denied by the prosecution, and the court proceeded to try the same. A strict conformity to the statutory method of selecting, returning, and drawing grand and trial jurors is practicable, and cannot be too strongly recommended. A departure from the forms prescribed with respect to the "drawing and return" of the jury, such as may deprive a defendant of an opportunity to secure a competent and impartial jury, is ground for challenge to the panel. It is difficult to lay down a rule which shall indicate in every case as the question arises what is or is not sufficient compliance with the statute; but we are satisfied that in the case before us there was no such "material departure" from the forms prescribed with respect to the drawing or return of the jury as required the court below to allow the challenge to the panel. Pen. Code, §§ 1059, 1065. Judgment and order affirmed. We concur: SEARLS, C. J.; TEMPLE, J.; THORNTON, J.; SHARPSTEIN, J.; PATERSON, J.; MCFARLAND, J. (73 Cal. 360) CERF v. REICHERT, Surveyor General. (No. 12,201.) (Supreme Court of California. September 12, 1887.) 1. PUBLIC LANDS--PURCHASER AT EXECUTION SALE-RIGHT TO PATENT. A. purchased a quantity of state land, paid a portion of the purchase money, and received the usual certificate of purchase. Plaintiff purchased the land at execution sale, received a sheriff's deed, paid the residue of the purchase money, but was refused a patent by the register of the land office for failure to present the certificate of purchase, as provided by Pol. Code Cal. 22 3518, 3519. The certificate had been assigned to another party by A. Held, that plaintiff was entitled to a patent for the land under section 2, act of March 27, 1872, (St. Cal. 1871-72, p. 587,) providing that where lands have been sold by the state, aud certificates of purchase issued upon part payment of the purchase money, and such lands have been subsequently sold under execution, and a sheriff's deed issued therefor, the register of the state land-office shall issue to the grantee named in such deed a patent for such lands upon making full payment, etc. 2. SAME-CAL. ACT MARCH 27, 1872, NOT REPEALED BY AMENDMENT OF 1874. The act of March 27, 1872, (St. Cal. 1871-72, p. 587,) provides that where lands have been sold by the state, and certificates of purchase issued upon part payment of the purchase money, and such lands have been subsequently sold under execution, and a sheriff's deed issued therefor, the register of the land-office shall issue to the grantee named in such deed, or his assignee, a patent for such lands, upon the production and surrender of the sheriff's deed and assignment, if any, and upon making full payment, etc. Held, that as that act was passed during the session of 1872, it prevails over the provisions of the Political Code inconsistent therewith, the latter being presumed to have been enacted on the first day of the session; and hence the act of March 27, 1872, is not to be repealed by implication by the amendment of 1874 to section 3518 of the Political Code, permitting the owner of a certificate of purchase, lost, destroyed, or beyond his control, to make proof thereof, and to procure a duplicate certificate. 3. STATUTES-ENACTMENT-CALIFORNIA POLITICAL CODE ENACTED ON FIRST DAY OF SES SION. The provisions of the Political Code of California are to be construed as having been passed on the first day of the session of the legislature of 1872, and the laws of that session, where inconsistent with the Code, are to prevail. In bank. Application for writ of mandate from Sacramento county. SEARLS, C. J. This is an application for a mandamus to compel the respondent, as register of the state land-office, to issue to the petitioner a patent to the W. of the S. E. 4, and lots 3 and 4 of section 16, in township 10 S., range 2 W., Mt. Diablo B. and M. An alternative writ issued, to which respondent made answer, and the cause is submitted upon an agreed statement of facts. In July, 1868, one Otis Ashley applied to purchase the land in question, paid 20 per cent. of the purchase price thereof, and, in due time, received the usual certificate of purchase. In 1883 a judgment was obtained against Ashley, under which an execution issued, pursuant to which his interest in the land above specified was sold by the sheriff, and purchased by the petitioner. There having been no redemption, Cerf, in due time, received a sheriff's deed of the premises, paid the residue of the purchase money, presented a receipt showing such payment, together with his sheriff's deed to the respondent, and demanded a deed, which was refused. After petitioner received his sheriff's deed, Ashley assigned his certificate of purchase, but to whom does not appear, and no report of such assignment had been made to the respondent when the patent was demanded. Upon these facts the contention of the attorney general is that the respondent was not bound to deliver the patent to petitioner until the certificate of purchase, or a duplicate thereof, issued in lieu thereof, was surrendered. The Political Code was approved March 12, 1872, and took effect January 1, 1873. Section 3519 of such Code provided that upon final payment for any tract of state land, and "upon the surrender of the certificate of purchase by the person entitled to the same," a patent should be prepared, etc. No provision was made for issuing a patent, except upon the surrender of the certificate of purchase. Section 3518 of the same Code provided that if a certificate of purchase was lost or destroyed, a duplicate might issue upon the proofs and notice specified therein, which duplicate should have the force and effect of the original. In Duncan v. Gardner, 46 Cal. 25, this court held that the certificate must be surrendered before the register could be compelled to issue a patent, and that a writ of mandamus would not lie without an offer to surrender the certificate. The Code made no provision for cases where the certificate, though not lost or destroyed, was yet beyond the reach or control of the owner. Certificates of purchase, and all rights acquired thereunder, were subject to sale by deed or assignment, duly executed. Pol. Code, § 3515. On the twenty-seventh day of March, 1872, an act was approved entitled "An act for the relief of the purchasers of state lands," by the second section of which it was provided that, where lands had been sold by the state, and certificates of purchase issued upon part payment of the purchase money, and such lands had been subsequently sold under execution, and a sheriff's deed issued therefor, the register of the state land office was directed to issue to the grantee named in such deed, or his assignee, a patent for such lands, upon the production and surrender of the sheriff's deed and assignment, if any, and upon making full payment, etc. The provisions of the Political Code are to be construed as having been passed on the first day of the session of the legislature of 1872, and the laws of that session are, where inconsistent with the Code, to prevail. It follows that the act of March 27, 1872, (St. 1871-72, p. 587,) became a law, whether consistent with the Code or not. It applied to cases where the holder under a sheriff's deed, who could not usually present the certificate of purchase, and who, though holding the title of the original purchaser, could not procure a patent under the Code of 1872. In 1874 section 3518 of the Political Code was amended so as to permit the owner of a certificate of purchase, lost, destroyed, or beyond his control, to make proof thereof as provided in the section, and to procure a duplicate certificate. The amendment extended the right to receive a duplicate to cases where, although not lost or destroyed, the certificate was beyond the control of the owner. The amendment does not in terms repeal the act of March 27, 1872, but respondent contends that its effect is to repeal by necessary implication that act. Repeal by implication is not favored, and it is only in cases of clear repugnancy that a repeal by implication occurs. In Ex parte Smith, 40 Cal. 419, it was said: "An act of the legislature is repealed by a subsequent act when it appears from the last act that it was intended to take the place of or repeal the former, and when the two acts are so inconsistent that effect cannot be given to both. That they are repugnant in principle merely forms no reason why both may not stand. It was further said in the same case that “an exception is not repugnant to the general rule, or, if it be, it is only to the extent of the exception.' The legislature of 1872 found a class of cases to which the general law, that the certificate of purchase must be presented to the register, could not well be applied; for those cases they provided that the sheriff's deed should stand in lieu of the certificate; thus creating an exception to the general rule which specified the certificate as the only evidence upon which the patent could issue. This legislation still left a class of cases unprovided for. As the exception only applied to sheriff's deeds, a party claiming under a tax deed, or by any other title than such sheriff's deed, and who could not aver that he was the owner of the certificate, and that it was lost or destroyed, and not having such certificate in his possession, was without remedy. We may well suppose that the object of the amendment of 1874 to section 3518 was intended to apply to this class of cases. At all events, we fail to detect any repugnancy in the law which provides generally for the evidence of ownership of state lands, which shall entitle parties to patents, and at the same time creates an exception under which different evidence shall suffice in a single class of cases. We are of opinion that the act of March 27, 1872, was not repealed by the amendment of 1874 to section 3518 of the Political Code, and that it remains in full force and vigor. The holder of the certificate of purchase is not a party to the proceeding, and his rights (if any he has) cannot be concluded by the effect of our action. Let the writ be made peremptory, so as to require respondent to prepare a patent and certificate, as required by law, and submit the same to the governor, |