procuring some one else to perpetrate it. The fact that the information did not go further, and allege whether he was present or absent from the scene of the crime at the time of the commission of the alleged acts on his part, could not affect his substantial rights, and is a matter about which he has no cause to complain.

Beside, it may be fairly said that the information shows that some of the acts committed by him were not done at the time and place of the perpetration of the crime, as it is alleged that he did, on divers dates, and at sundry and several times before said date, encourage and assist. It might, with equal propriety, be said to charge that he was also present at the time, and procured the commission of the offense, as it is alleged that he did, on said date, procure said Grettie Rozelle to throw and pour said substance upon the person of said Petrie.

We think the information was sufficiently specific and certain, and that the demurrer to it was properly overruled.

It is urged that the judgment was corrected in the absence of the defendant, and that this was error. The record itself shows directly to the contrary. As corrected, it recites that the defendant was present in person and by counsel. There is nothing to controvert the truth of this recital, and we must be bound by it.

The defendant was examined as a witness in his own behalf, and denied, in general terms, that he aided, abetted, counseled, or encouraged the commission of the offense charged. On cross-examination, a letter was shown him, and he was asked whether it was in his handwriting. Objection was made that it was not a proper cross-examination. The objection was overruled. The defendant then declined to answer, on the ground that it would have a tendency to degrade his character, and no answer was required of him. It is said in the briefs that the letter was subsequently proved to be in his handwriting, and admitted in evidence; but as the

contents of the letter shown defendant were not disclosed, we do not know from the record before us that it is the same. But conceding the letter, finally introduced,

to have been the one about which the defendant was questioned, we are clear that the court committed no error in overruling the objection. The defendant had

denied explicitly that he had committed the offense charged. The letter introduced in evidence contained statements tending to contradict this denial, and to show that he had perpetrated the crime. If the witness had not been the defendant on trial, there could be no question as to the competency of the evidence on cross-examination, as it tended directly to contradict his evidence in chief. It is contended that because he was the defendant on trial, a different rule must prevail; that the cross-examination must, under the code, be confined to the subject-matter of the examination in chief. The code provides: "Section 1323. A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself; but if he offers himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief."

The impression seems to prevail that the section quoted has the effect to confine the examination of a defendant to narower limits than in the case of any other witness. We do not so undertsand it. He can only be cross-examined as to matters about which he was exaniined in chief. The rule is precisely the same as to any other witness. So far as other witnesses are concerned, however, the court is allowed some discretion as to the extent and scope of the cross-examination that might not be allowed in case of the defendant. But no such question arises here. It must be remembered, also, that the fact that a defendant offers himself as a witness as to a particular matter does not give the prosecution the right to make him a witness for the people and examine

him generally. (People v. O'Brien, 66 Cal. 602.) The questions put must be in cross-examination, and can go no further. It is contended by counsel that the defendant was not asked about a letter in his examination in chief, and therefore it was not a "matter" about which he could be cross-examined. This would be giving the statute a construction so narrow as in many cases to cut off, almost entirely, the important right of cross-examination. The matter about which the defendant was examined in chief was whether or not he had committed the acts charged in the information. The inquiry was such that he could cover the whole case with a denial. The matter to be tested by a cross-examination was the truth or falsity of this denial. Suppose the defendant had been asked: Did you on a certain day have a conversation with A? and it had been proposed to prove by him, on such cross-examination, that he expressly admitted to A, in such conversation, that he did commit the act charged. Counsel might have said, He has not been asked about a conversation in his examination in chief, therefore you cannot inquire about it on cross-examination; it is not a matter about which he has testified. It would hardly be seriously contended, we think, that such a conversation could not be asked for on cross-examination, under the circumstances of this case. Now, can it make any difference that, instead of asking him for such a conversation, a letter is handed him containing the same or similar statements, and he is asked: "Did you write this letter?" Certainly not. The fact that, in order to avoid the effect of such evidence, he is driven to decline to answer on the ground that it will tend to degrade or criminate him, thus, it may be, injuring his case before the jury, cannot alter the rule as to the competency of the evidence. The question as to the scope allowed in the cross-examination of a defendant, under the section of the code referred to, has been before this court in other cases. In the case of People v. McGungill,

41 Cal. 431, it was said: "The fact that defendant offered himself as a witness in his own behalf did not, as to him, change or modify the rules of practice with reference to the proper limits of a cross-examination of a witness." See also, to the same effect, People v. Dennis, 39 Cal. 634; People v. Russell, 46 Cal. 121; People v. Reinhart, 39 Cal. 449; People v. Johnson, 57 Cal. 571; People v. Beck, 58 Cal. 212; People v. O'Brien, 66 Cal. 602. The objection to the question asked was properly overruled.

Defendant was also asked if he did not have a conversation with one Westerfield, in which he defendantsaid he would fix up something that was new for Petrie, which would disfigure him so that he would not want to see another woman. The defendant, having denied all knowledge of an intent to injure Petrie, or that he had participated in, or advised, or encouraged the act resulting in such injury, the evidence was material and competent for the reasons above stated.

The judgment and order denying a new trial are

affirmed.

SEARLS, C. J., THORNTON, J., SHARPSTEIN, J., and PATERSON, J., concurred.

MCFARLAND, J., concurring.-I concur in the judg ment, but I dissent from that part of the opinion of the court which holds that the defendant was properly asked, upon cross-examination, to prove the handwriting of a letter to which he had made no reference in his examination in chief. The letter was not a matter "about which he was examined in chief," within the meaning of section 1323 of the Penal Code. question are fully stated in my dissenting opinion in People v. Meyer, 75 Cal. 383. think that no material injury by the error.

My views upon that

But in the case at bar I was done the defendant

[No. 12215. In Bank.-December 31, 1888.]

JUDSON WHEELER ET AL., RESPONDENTS, v. GEORGE WEST ET AL., APPELLANTS.

PLEADING ANSWER-AMendment-CHANGE OF NATURE OF ACTIONMOTION TO STRIKE OUT.-An amendment changing the nature of the action cannot be objected to by way of answer setting up such change as a defense, and such answer may be stricken out as irrelevant. A defendant cannot answer a complaint by allegation that it has been improperly filed. The question must be raised, if opportunity is offered, by objection to the filing of the amendment, or by motion to strike the amended pleading from the files.

ID. ANSWER OF ONE DEFENDANT FOR ANOTHER-MOTION TO STRIKE OUT.-One defendant cannot answer for another who does not join in the answer; and an allegation in the answer of one defendant that a co-defendant is working the mine in controversy as an employee may be stricken out as surplusage. ID.-CONTRACT FOR MINING--INJUNCTION-COUNTERCLAIM OF DAMAGES -MOTION TO STRIKE OUT.-In an action in which a preliminary injunction against the working of a mine has been granted, and the answer pleads a verbal contract authorizing the defendants to work the mine, an allegation that the defendants have been prevented by the injunction from working the mine, and have been damaged there by in a sum specified, may be stricken out on motion. Such matter is only proper to be alleged in an action upon the injunction bond. ID.-VERBAL LICENSE TO MINE-REVOCATION-LANDLORD AND TENANT ―INJUNCTION-DEFENSE.-A verbal license to mine for an indefinite time may be revoked at the will of the licensors. Such a license does not create the relation of landlord and tenant; and constitutes no defense to an action by the licensor to enjoin the licensee from working the mine. ID.-DEMURRER-INSUFFICIENCY OF ANSWER.-An answer setting up no sufficient defense to the action, and containing denials of conclusions of law and immaterial denials, is bad on demurrer.

APPEAL from a judgment of the Superior Court of Placer County.

The facts are stated in the opinion of the court.

Hale & Craig, and John M. Fulweiler, for Appellants.

F. P. Tuttle, for Respondents.

WORKS, J.-Action to enjoin the defendants from catering upon and digging up gold-bearing gravel and