thing.be possible) a judge or other officer, or conferring any jurisdiction upon it.

The warrant having been issued by a competent tribunal having jurisdiction of the subject-matter, and being valid on its face, the petitioner is remanded.

DIVORCE

ID.

December 28, 1882.

THOMAS H. SMITH v. LU WHEAT SMITH.

CRUELTY.—The only fact of alleged cruelty expressly found is, that defendant deserted her husband and children, and went to Germany, for the purpose of perfecting herself in the art of painting, and was abroad about three months.

Held: This act did not, of itself, constitute such cruelty as entitled the plaintiff to a divorce.

-

ID.- FINDING. The finding "that the repeated acts of cruelty, as established by the evidence, upon the part of said defendant towards her said husband and children during the last several years, have inflicted upon the plaintiff grievous mental suffering," is but a conclusion of law, and does not find any fact in issue in the case.

APPEAL from a judgment for the plaintiff in the Superior Court of Los Angeles County. HINES, J.

Thom & Stephens and F. H. Howard, for Appellant.

The finding," that for several years past the defendant has been guilty of repeated acts of extreme cruelty to plaintiff and their children," is not of a fact, but a conclusion of law. (Wells v. McPike, 21 Cal. 219; Frisch v. Caler, id. 71; Lightner v. Menzel, 35 id. 452; People v. Board of Supervisors, 27 id. 674; Polhemus v. Carpenter, 42 id. 375.) The findings must state the facts expressly and specially, not generally. The true test is, would they be good as a special verdict? (Breeze v. Doyle, 19 id. 105; Phoenix Water Co. v. Fletcher, 23 id. 488; Garfield v. K. F. & T. M. Co., 17 id. 510.) In ac tion for divorce based on cruelty, specific facts must be alleged, and the general allegation of cruelty is insufficient. (Harrison v. Harrison, 7 Ired. 484; Lewis v. Lewis, 5 Mo. 278; Hill v. Hill, 10 Ala. 527; Wright v. Wright, 3 Tex. 168; Wilson v. Wilson, 2 Dev. & Bat. 377; Brown v. Brown, 2

R. I. 381; Fellows v. Fellows, 8 N. H. 160; Ward v. Ward, 1 Tenn. Ch. 262; Horne v. Horne, id. 259; Smith v. Smith, 43 N. H. 234.)

Brunson & Wells and George S. Hupp, for Respondent.

As to the sufficiency of findings the test is, would they be sufficient if presented by a jury as a special verdict? (Breeze v. Doyle, 19 Cal. 101.) The Court should find the ultimate facts, not state the evidence. (Jones v. Clark, 42 id. 180; Coveny v. Hale, 49 id. 556; Mathews v. Kinsell, 41 id. 514; Hiln v. Peck, 30 id. 286.) "Extreme cruelty" is a term defined by Section 94 Civil Code, and is as follows: "Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage." The acts of defendant produced this effect. Those acts constitute the ultimate fact expressed in the term "extreme cruelty." Extreme cruelty is a fact which by no assertion or sophistry can be tortured into a conclusion of law. It is torture itself. Extreme cruelty is grievous mental suffering. It is a state of being, and not a conclusion of law. It is an ultimate condition of mind or body produced by successive acts, and not a legal and logical conclusion drawn from a major and a minor premise.

The COURT:

Plaintiff sued defendant for a divorce on the ground of extreme cruelty, alleging in his complaint various acts claimed to constitute cruelty, all of which are denied in the defendant's answer. A decree of divorce was entered in the Court below, and one of the errors assigned on this appeal is that the findings are insufficient to support the judgment. The following are the findings on the question of extreme cruelty:

"5. That the conduct of the defendant toward the plaintiff and her treatment of her children during the last several years, has, upon repeated occasions, been extremely cruel, and that in the month of June, 1880, without the consent or knowledge of the plaintiff, she deserted her husband and children, and went to Dusseldorf, in Germany, for the purpose, as she now claims, of perfecting herself in the art of painting, and remained absent from her said husband and children until the seventeenth day

of September thence next ensuing, upon which day she returned to Los Angeles City.

"6. That the repeated acts of cruelty, as established by the evidence, upon the part of said defendant toward her said husband and children during the last several years, have inflicted upon the plaintiff grievous mental suffering."

It will be observed that the only fact of alleged cruelty expressly found is that the defendant deserted her husband and children and went to Dusseldorf, in Germany, for the purpose of perfecting herself in the art of painting, and was abroad from June until September, 1880. This act did not of itself constitute such cruelty as entitled the plaintiff to a divorce. (1 Bish. on Marriage and Divorce, § 738.) The sixth finding is but a conclusion of law, and does not find any fact in issue in the (Polhemus v. Carpenter, 42 Cal. 386.) Judgment reversed and cause remanded.

case.

MURDER — JUSTIFICATION

THREATS.

Threats made by the deceased against a defendant charged with homicide are admissible for the purpose of illustrating or determining the question as to who was the assailant in the fatal encounter, and are also admissible when they have been communicated to the defendant, for the purpose of determining whether the threats, in connection with the other facts and circumstances of the case, were sufficient to excite reasonable fears in the mind of the defendant. The previous threats alone, however, unless coupled at the time with an apparent design then and there to carry them into effect, will not justify a deadly assault by the other party. There must be such a demonstration of an immediate intention to execute the threat as to induce a reasonable bellef that the party threatened will lose his life or suffer serious bodily Injury unless he immediately defends himself against the attack of his adversary.

ID. ID. ID. - On a trial for murder the facts of the homicide were thus stated by one witness, whose testimony was substantially corroborated by the others: "Tamkin (the defendant) and I were walking down the street, when McClellan (the deceased) hailed Tamkin from behind; we turned around and McClellan stood there, facing us; he said to Tamkin, I suppose you are as well heeled as you were last night;' Tamkin replied, I am not heeled;' McClellan then said, Go and heel yourself, for I am axed;' Tamkin said, Where shall I go to get fixed? McClellan said, 'Go where you d d please, it makes no difference to me; what did you

do to me last night? Tamkin said, I really don't know;' McClellan raised his hat and showed a scar, and said, 'That is what you did, you d-d son of a — - Tamkin replied, 'I am very sorry for it;' McClellan said, 'Yes, I guess you are; I can lick you any place in the world, you d-d son of a - go and heel yourself; I don't want to take any advantage of you;' he turned and walked away, I should judge, fifteen feet from Tamkin, when Tamkin drew à pistol from his right-hand pocket and said, 'Yes, I am heeled, you d-d son of a -; what do you want?' and fired his pistol." Other shots were fired by both parties; but the evidence shows that it was the first shot that inflicted the mortal wound.

Held: There is no principle of the law that will justify a homicide committed under such circumstances.

ID. ID. The Court instructed the jury: "If the killing was intentional it was unlawful, and there was no justification, unless the killing was in necessary self-defense, as defined in these instructions."

Held: The Court elsewhere correctly charged the jury upon the law of selfdefense, and, taking the charge as a whole, the law upon this branch of the case was correctly given, conceding (which is not conceded) that the evidence tended to make out a case of self-defense or justifiable homicide. ID. ID. THREATS.- The Court instructed the jury: "If the question as to who commenced or brought on the conflict in which the deceased lost his life is in doubt, threats made by the deceased against the defendant are admitted in evidence solely to enable the jury to determine as to who was the aggressor in the fatal encounter."

Held: The objection as to the word "solely" in the foregoing instruction, admitting that the instruction in a proper case should not contain such a limitation, the evidence having failed to show a case of self-defense, no Injury could have resulted to the defendant from the instruction as given.

66

ID. ID. INSULTING LANGUAGE.- The Court refused to permit the defendant to ask a witness the question, if such language as was used by the deceased to the defendant the night before the homicide was not considered fighting language at Truckee?" Held: The objection was properly sustained.

APPEAL from a judgment of conviction, and from an order denying a new trial in the Superior Court of Nevada County. CALDWELL, J.

Dibble & Kitts and C. W. Cross, for Appellant.

A. L. Hart, Attorney General, for Respondent.

MORRISON, C. J.:

The defendant was prosecuted by information for the crime of murder, and was convicted of manslaughter. The facts disclosed by the evidence in the case clearly establish the killing, and the only defense relied upon is that of justifica

tion. A difficulty occurred between the defendant and the deceased the night before the homicide, in the course of which the deceased received a severe blow on the head from a pistol in the hands of the defendant, and from that time down to a few seconds before the shooting the deceased, at short intervals, uttered threats against the life of the defendant, at the same time using violent language and opprobrious epithets respecting him.

We have no doubt of the correctness of the position taken by the learned counsel for the defense, that threats are admissible for the purpose of illustrating or determining the question as to who was the assailant in the fatal encounter, and that they are also admissible when they have been communicated to the defendant, for the purpose of determining whether the threats, in connection with the other facts and circumstances of the case, were sufficient to excite reasonable fears in the mind of the defendant. "A person whose life has been threatened by another whom he knows or has reason to believe has armed himself with a deadly weapon for the avowed purpose of taking his life or inflicting a great personal injury upon him, may reasonably infer, when a hostile meeting occurs, that his adversary intends to carry his threats into execution. The previous threats alone, however, unless coupled at the time with an apparent design then and there to carry them into effect, will not justify a deadly assault by the other party. There must be such a demonstration of an immediate intention to execute the threat as to induce a reasonable belief that the party threatened will lose his life or suffer serious bodily injury unless he immediately defends himself against the attack of his adversary." (People v. Scoggins, 37 Cal. 683; see also People v. Travis, 56 id. 251; Stokes v. The People, 53 N. Y. 174.)

We will now examine the evidence for the purpose of determining how far the principles above stated apply to the present case. That the deceased threatened to kill the defendant, that he armed himself with the avowed purpose of carrying such threats into execution, and that all these matters were fully communicated to the defendant, clearly appears from the evidence. But the next inquiry is, whether the conduct of the deceased was such, at the time of the