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defendant," was erroneous. People v. Mitchell, 55 Cal. 236.

An instruction to the effect that the possession of a key, unexplained, ["if you believe that he had it in his exclusive possession" raises a reasonable presumption that he had it for the purposes shown by the evidence that it could be used for, Held, an instruction upon facts, and erroneous. People v. Walden, 51 Cal. 588. The court should not instruct the jury upon controverted facts nor the weight of evidence. McNeal v. Barney, Id. 603. The court may determine and charge the jury whether there is any evidence with regard to an issue or tending to sustain a fact on which judgment may depend. People v. Welch, 49 Cal. 174. This section is discussed and the policy of the prohibition against instructing upon facts questioned. Instructions upon an hypothesis, if asked, should be given. People v. Taylor, 36 Cal. 256.

The court being authorized to state the evidence, can also state that there is no evidence as to particular facts. King's Case, 27 Cal. 514, approved in People v. Dick, 34 Cal. 665. But it is the province of the jury, unaided by the court, to say whether a given fact is proven or not. Id.

The court instructed the jury that B was to be considered the sole proprietor of the overland mail line, Held, erroneous as instruction upon facts, but as no other conclusion could be arrived at from the evidence, Held, further,

said instruction did not prejudice the defendant. Pico. Stevens, 18 Cal. 377.

The court in charging the jury has no right to employ the word, "victim," in referring to the person killed by the defendant. In the charge given the use of said word seemed to assume that the deceased was wrongfully killed, which was the point in issue, and was calculated to injure the defendant. People v. Williams, 17 Cal. 142. When an instruction asked accurately states the law, it should be given in the very words asked, especially in criminal cases. Id. As to stating evidence, see People v. Ybarra, Id. 166, and instructions as to evidence of justification. People v. Lamb, Id. 323. As to fact of notice from publication in a newspaper, Treadwell v. Wells, 4 Cal. 261.

SECTION 18. The style of all process shall be: "The people of the state of California," and all prosecutions shall be conducted in their name and by their authority. [Amendment ratified Sept. 3, 1862.]


SECTION 18. The style of all process shall be: "The people of the state of California." All the prosecutions shall be conducted in their name and by the authority of the same.

SECTION 19. In order that no inconvenience may result to the public service from the taking effect of the amendments proposed to said article VI, by the legislature of eighteen hundred and sixty-one, no officer shall be superseded thereby, nor shall the organization of the several courts be changed thereby, until the election and qualification of the several officers provided for in said amendments.

[This section was added by amendment ratified Sept. 3, 1862.]

The several courts of the state continued and retained their jurisdiction unimpaired until the organization of the new courts. Gillis v. Barnett, 38 Cal. 393. Also In re Oliverez, 21 Cal. 415.



SECTION 1. The legislature shall provide by law for organizing and disciplining the militia, in such manner as they shall deem expedient, not incompatible with the constitution and laws of the United States.

SECTION 2. Officers of the militia shall be elected or appointed in such manner as the legislature shall from time to time direct, and shall be commissioned by the governor.

SECTION 3. The governor shall have power to call forth the militia to execute the laws of the state, to suppress insurrections and repel invasions.



SECTION 1. The legislature shall not in any manner create any debt or debts, liability or liabilities, which shall, singly or in the aggregate, with any previous debts or liabilities, exceed the sum of three hundred thousand dollars, except in case of war, to repel invasion or suppress insurrection, unless the same shall be authorized by some law for some single object or work, to be distinctly specified therein, which law shall provide ways and means, exclusive of loans, for the payment of the

interest of such debt or liability as it falls due, and also to pay and discharge the principal of such debt or liability within twenty years from the time of the contracting thereof, and shall be irrepealable until the principal and interest thereon shall be paid and discharged; but no such law shall take effect until, at a general election, it shall have been submitted to the people and have received a majority of all the votes cast for and against it at such election; and all money raised by authority of such law shall be applied only to the specific object therein stated, or to the payment of the debt thereby created; and such law shall be published in at least one newspaper in each judicial district, if one be published therein, throughout the state, for three months next preceding the election at which it is submitted to the people.

The legislature alone can determine when such state of war exists as will justify creating a debt to repel invasion and the courts will not review its actions. [Citing Franklin v. Board of Examiners, 23 Cal. 175.] People v. Pacheco, 27 Cal. 177. There is no limitation upon the amount of debt the state may contract in case of war, to repel invasion, etc. Id.

It is not essential that funds should be in the treasury to meet an appropriation when it is made. To constitute a valid appropriation it is only necessary to designate an amount, and the fund out of which it shall be paid. McCauley v. Brooks, 16 Cal. 11; but authorities under section 23, article IV, and State of California v. McCauley, 15 Cal. 429.


The act of March 29, 1860 [Stats. p. 128], authorizing the building of the state capitol at Sacramento is not unconstitutional. The

act provides that the ultimate cost shall not exceed five hundred thousand dollars, but it makes an appropriation of only one hundred thousand dollars, and does not authorize any contract which shall exceed the latter sum. Koppikus v. State Capitol Commissioners, 16 Cal. 249. As to constitutionality of the act, approved in Heyneman v. Blake, 19 Cal. 596, and as to what constitutes state indebtedness, approved in People v. Pacheco, 27 Cal. 208. In the act of April 18, 1856 [Stats. p. 112], a contract for three hundred thousand dollars was authorized to be made, to be paid in bonds of the state, and at the time of its passage the state was indebted to the amount limited by the constitution. That act was, therefore, unconstitutional. Nougues v. Douglass, 7 Cal. 65. As to what constitutes an appropriation see also State v. McCauley, 15 Cal. 492, and McCauley v. Brooks, 16 Cal. 11. This prohibition applies to the state as a political sovereign-a corporation-and does not prevent the state authorizing municipal or county indebtedness. [Subscription to Railroad.] Pattison v. Supervisors of Yuba County, 13 Cal. 176, and see further as to constitutionality of statutes authorizing subscriptions in aid of railroads. S. & V. R. R. Co. v. Stockton City, 41 Cal. 162; Napa Valley R. R. Co. v. Napa County, 30 Cal. 435.

An appropriation is necessary before district judges can draw their salaries. Meyers v. English, 9 Cal. 342.

Claims against the state contracted in defi

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