REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF CALIFORNIA.

[No. 20416. In Bank.-December 29, 1888.] THE PEOPLE, RESPONDENT, v. MARY VON, APPEL

LANT.

CRIMINAL LAW-HOMICIDE-PREVIOUS CONVICTION OF FELONY.-In determining whether a defendant accused of murder is guilty thereof, the jury should disregard evidence introduced to establish a previous conviction of felony which is also charged in the indictment. ID. APPEAL FROM JUDGMENT-REVIEW OF INSTRUCTIONS.-When an appeal in a criminal case is taken only on the judgment roll, which contains the written instructions presented and indorsed as given or refused, but also shows that oral instructions were given, the nature or contents of which do not appear as part of the record, an instruction refused cannot be reviewed. Appellant must either show that such instruction was not given elsewhere, or give the respondent an opportunity to show that it was given. The respondent has no control over the contents of the judgment roll, and the appellant must make error affirmatively to appear.

ID. TRANSCRIPT ON APPEAL-UNAUTHENTICATED COPY OF ORAL IN. STRUCTIONS.-A manuscript purporting to be the oral charge of the court, which is not incorporated in a bill of exceptions, or authenticated in any way provided by law, cannot be considered for the purpose of determining whether a written instruction presented and refused was or was not embodied in the oral charge.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

LXXVIII. CAL.-1

The facts are stated in the opinion of the court.

J. T. Rogers, for Appellant.

Attorney-General Johnson, for Respondent.

MCFARLAND, J.-The information charges defendant with the murder of one Bishop. The jury convicted her of murder in the first degree, and fixed her punishment at imprisonment for life; and she appeals from the judgment. There is no bill of exceptions or statement; and appellant brings the case here on the judgment roll alone.

In addition to the charge of murder, there was put into the information (unwisely, we think, though we cannot say erroneously) another charge of having previously suffered a conviction of felony, to wit, an assault with a deadly weapon. And the main ground taken by appellant for a reversal of the judgment is the refusal of the court to give the third instruction asked by defendant's counsel, which included the proposition (evidently correct) that the jury, in determining whether defendant was guilty of the murder of Bishop, should disregard the evidence introduced to establish her conviction of the previous felony. Whether or not the said third instruc tion was, as a whole, correct, is, perhaps, a doubtful question; but it is a question which, under our view of the law, it is not necessary to determine.

Section 1127 of the Penal Code provides as follows: "Either party may present to the court any written charge, and request that it be given. If the court thinks it correct and pertinent, it must be given; if not, it must be refused. Upon such charge presented and given or refused, the court must indorse and sign its decision." And section 1207 provides that the judgment roll or record shall consist of the following: "1. The indict

ment or information, and a copy of the minutes of the plea or demurrer; 2. A copy of the minutes of the trial; 3. The charges given and refused, and the indorsements

thereon; 4. A copy of the judgment." Now, while the judgment roll in the case at bar contains the written charges presented and indorsed "given" or "refused," it also shows that there were other oral instructions given by the court to the jury, but does not show what those instructions were. We are asked, therefore, to reverse the case, because a particular written instruction presented by appellant is marked "refused," while we are informed that there were other instructions not in the record, and are not informed that the instruction refused (or that part of it which was correct) was not given in those instructions. An appellant must show error affirmatively and clearly. It might be argued that the prosecution should have shown that the "refused" instruction was given elsewhere. But how could the prosecution have done so? The defendant had entire control of the appeal, and chose to make it upon the judgment roll alone. Over the judgment roll, which appellant brings up, respondent had no control, except to see that there was no diminution. If the appellant had submitted a draught of a bill of exceptions or statement, and had put into it what was claimed to be all the instructions, then respondent would have had an opportunity to propose amendments; and in that event, it might be well argued that respondent should have seen to it that all the instructions were in. But when a defendant in a criminal case seeks to reverse a judgment because a proper instruction "presented" by him is found in the judgment roll marked "refused," he must either show that it was not given elsewhere, or he must have given the people an opportunity to show that it was. Otherwise, it would be an easy matter to obtain new trials in cases in which no errors had actually been committed.

There are objections to the refusal of the court to give one or two other instructions; but they are in the same. category with said third instruction. There is in the transcript brought here, attached to the judgment roll,

some manuscript purporting to be the oral charge of the court; but it is not incorporated in a bill of exceptions, or authenticated in any way provided by law. It there fore cannot be considered.

The judgment is affirmed.

SEARLS, C. J., SHARPSTEIN, J., and PATERSon, J., concurred.

THORNTON, J., dissented.

[No. 12849. In Bank. December 29, 1888.]

S. M. DAVIDSON, EXECUTOR ETC., APPELLANT, v. THE CUCAMONGA FRUIT AND LAND COMPANY, RESPONDENT.

STATE LANDS-ACTION TO ANNUL PATENT-VOID CERTIFICATE OF PURCHASE. In order to maintain an action to annul a patent issued by the land department of the state, the plaintiff must connect himself with the source of title, and must show that his rights are injuriously affected by the patent. A certificate of purchase issued to one not entitled to receive it confers no rights, and the person holding such certificate is a stranger to the title, and cannot be heard as a plaintiff to question the rights of the defendant under a state patent.

ID. CERTIFICATE OF PURCHASE-PRIMA FACIE EVIDENCE.-A certificate of purchase of state land is prima facie evidence of title; but prima facie evidence can be contradicted and overcome by other evidence, and it may be shown that the holder of such certificate was not entitled to receive it. ID.-AGRICULTURAL LANDS-REQUIREMENT OF ACTUAL SETTLEMENT.— The provisions of the constitution and of the Political Code requiring actual settlement upon lands belonging to the state which are fit for cultivation are imperative; and an applicant for such land must not only state the requisite facts as to such settlement in his affidavit, but the facts as stated must be true, or he can acquire no rights under his application.

APPEAL from a judgment of the Superior Court of San Bernardino County, and from an order denying a new trial.

The facts are stated in the opinion.

Bicknell & White, and Chapman & Hendrick, for Appellant.

Curtis & Otis, and J. C. Lynch, for Respondent.

BELCHER, C. C.-The facts of this case may be briefly stated as follows: In January, 1869, John Mullan made application to purchase from the state of California a certain tract of land in San Bernardino County, containing six hundred acres. The application was ap proved by the surveyor-general on the twenty-first day of August, 1869, and on the fifteenth day of October following Mullan paid to the county treasurer of San Bernardino County twenty per cent of the purchase price, and interest on the balance up to January, 1870, and thereafter in the same month received from the register of the state land-office a certificate of purchase, which. was in the usual form. On the first day of May, 1880, Mullan not having paid the interest due on the balance of the purchase price, the register of the land-office forwarded to the district attorney of San Bernardino County a statement of all the lands in that county upon which. payments had not been made, and thereafter the district attorney, having given the notice required by law, commenced an action in the superior court of the county, in the name of the people of the state, to foreclose the interest of Mullan in said land, and to annul his certificate of purchase. Afterward, such proceedings were had in the action that on the fourth day of January, 1881, judgment was given and entered foreclosing the interest. of Mullan in the land, and annulling his certificate. Mullan did not pay the amount due the state, nor the costs which had accrued, within twenty days after the entry of the judgment, and thereupon a certified copy of the judgment was filed in the office of the register, and a like copy in the office of county recorder. On the