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idea of cooling time or premeditation. It | 117, 26 rac. 15, People v. Sansome, 84 Cal. was not claimed or pretended that defend- 419, 24 Pac. 143, and People v. Thomas, 110 ant could show that he was acting under the Cal. 42, 42 Pac. 456, cited by appellant, all Influence of passion aroused by any recent present instances where the defendant's privinformation of his wife's infidelity. His own ilege to have the fact of prior conviction withtestimony showed that he had been aware held from the jury was violated without any for some 18 months that she "was running act on his part waiving such right. with every Tom, Dick, and Harry” for such 3. The court instructed the jury that they purposes, and yet had continued to live with could convict defendant of the offense charged, her. Moreover, the evidence sought was in or of the lesser offense of assault with a dead. substantial effect all placed before the jury, ly weapon, but omitted telling them that inand would seem to have produced the only cluded in the charge was also the offense of effect for which it is contended such evi- simple assault, and no request for such indence was admissible, since the verdict was struction was made. It is urged that such for a grade of offense lower than that char- omission was virtually telling the jury that ged, and of which malice is not an essential they could not convict of simple assault, and ingredient. Pen. Code, g 2,15; People v. Uri- that this was error. It is doubtful if there as, 12 Cal. 325.

was any evidence in the case to which such an 2. The information charged a prior convic- | instruction would have been pertinent. It is tion of a felony, and, defendant having at his true that the defendant denied using a knife arraignment confessed the same, no reference or a rock, and testified that the instrument thereto was made by the clerk in reading the used was a "stick," the dimensions of which information and stating the plea to the jury. were not given; but he admitted that he hit The defendant, however, took the witness the woman on the head, and that the blow stand in his own behalf, and gave his version knocked her down; and he did not pretend to of the circumstances of the assault. In cross- deny the fact shown by the prosecution that examination the prosecution was permitted, she was rendered unconscious thereby. It against defendant's objection, to ask him if might well be assumed, in the absence of any. he had not previously been convicted of a thing showing the contrary, that a stick or felony; and it is urged that the effect of this club which would administer such a blow was was to defeat the purpose of section 1093 of a deadly weapon, and, if it was such, the omitthe Penal Code, which in prescribing the con- ted matter was not pertinent. But, however duct of the trial provides that, when the de- that may be, if defendant deemed such infendant has confessed a prior conviction struction pertinent or material, he should have therein, the clerk, in reading the indictment requested it. The failure to give it, in the or information, "shall omit therefrom all that absence of such request, has been repeatedly relates to such previous conviction.” The ob- beld not error. People v. Franklin, 70 Cal. vious purpose of this section was to give the 641, 11 Pac. 797; People v. Scott, 93 Cal. 516, defendant the benefit of withholding from the 29 Pac. 123; People.v. Guidice, 73 Cal. 226, 13 jury a knowledge of such prior conviction in all Pac. 44. We discover no error in the giving instances other than where, by the conduct of or refusing of instructions. The judgment his own case, the production of such fact is and order are affirmed. rendered essential to a proper presentation of the case of the people. It was not designed We concur: GAROUTTE, J.; HARRI. thereby to change or affect the ordinary rules | SON, J. of evidence for the elucidation of truth, to which a defendant, like any other witness,

(117 Cal. 1) subjects himself upon taking the witness stand. Under the rule established in this

BARNES v. GLIDE et al. (Sac. 236.) 1 state, the defendant's character for truth, hon- (Supreme Court of California. May 8, 1897.) esty, and integrity is in issue when he of

MANDAMUS-LIMITATIONS_RUNNING OF STATUTE. fers himself as a witness, and he thereupon

1. Code Civ. Proc. pt. 2, § 343, providing that becomes, as held in People v. Hickman, 113

"an action for relief, not herein before provided Cal. 80, 86, 45 Pac. 175, 176, “subject to the for, must be commenced within four years after same rules for testing his credibility before the cause of action shall have accrued," applies the jury by impeachment or otherwise as any

to a mandamus proceeding, even if section 337.

338, or 339 does not apply thereto, under section other witness." One of the authorized meth- 363 of the title, “Of the Time of Commencing ods of impeachment prescribed by the Code is Actions," providing that the word "action," as “that it may be shown by the examination of

used in such title, is to be construed, wherever

necessary, as including a special proceeding of a the witness or the record of the judgment

civil nature, and section 1109 of the title re that he has been convicted of a felony." Code lating to writs of mandate, etc., providing that. Civ. Proc. $ 20.1. Section 1093 did not pro

except as otherwise provided, the provisions of tect defendant from the operation of this rule.

part 2 (section 307 to section 1053) are appli

cable to proceedings mentioned in said title. He must be deemed to have waived the priv- 2. Limitations begin to run against a mandallege given by that section upon becoming a mus proceeding to compel the proper officers to witness. See People v. Chin Mook Sow, 51

levy a tax to pay warrants issued by a swamp

land district at the time a cause of action on the Cal. 597; People v. Meyer, 75 Cal. 383, 17 Pac.

warrants accrues, and not at the time demand is $31. The cases of People v. Wheatley, 88 Cal. made on the officers to levy the tax.

Rehearing denied.

Department 2. Appeal from superior court, the treasury for 14 days, and was paid out Yolo county; W. H. Grant, Judge.

upon another warrant; that prior to the 1st Petition by Charles Barnes for a writ of day of November, 1895, the said Hawley & mandate to swamp-land district No. 307, and Co. assigned said warrant to plaintiff, who is J. C. Glide and others, trustees of such dis- now the owner and holder thereof; that on trict, to compel defendants to levy a tax to the 5th day of November, 1895, the plaintiff pay certain warrants issued by said district, demanded in writing of defendants that they and held by plaintiff. From a judgment in provide for the payment of said warrant; favor of defendants, plaintiff appeals. Af- that the defendants failed and neglected to firmed.

pay said warrant, or to provide for the pay

ment thereof, or to comply with the demand Albert M. Johnson and Wm. Gwynn, for

aforesaid, and no part thereof has ever been appellant. Alvin J. Bruner, Devlin & Dev

paid, but the whole thereof “is due, owing, lin, and McKune & George, for respondents.

and unpaid from the said swamp-land district John T. Harrington, amicus curiæ.

No. 307 unto this plaintiff.” The prayer is

that the defendants be required “to proceed MCFARLAND, J. The plaintiff filed a peti- to have an assessment levied upon the land tion or complaint in the superior court, in in said district sufficient to pay, and for the which he asked for a writ of mandate to be purpose of paying, each and every warrant directed to the defendants, swamp-land dis- hereinbefore described, and all interest due trict No. 307, and J. C. Glide, Francis T. thereon, and to collect all taxes thereon, and Dwyer, and Joseph L. Monica, the present to pay all taxes and moneys so collected into trustees of said district, commanding them the treasury of the county of Yolo," etc. "to proceed to have an assessment levied up- There is also an averment, "upon information on the lands in said district sufficient to pay, and belief,” that the defendants have monand for the purpose of paying," certain war- eys in their hands belonging to said defendrants described in the complaint. The defend- ants, and a prayer that they pay the same inants filed a demurrer to the complaint. The to the treasury of said Yolo county; but as demurrer was both general and special, and no point is made in the briefs as to this averit was sustained by the court below, and ment, and as it is evidently considered by the judgment rendered for defendants. From this parties as unimportant, it is not necessary to judgment the plaintiff appeals.

consider it. The defendants, in their demur The complaint contains quite a number of rer, set up the statute of limitations, and counts; but they are all alike, except that a particularly sections 337, 338, 339, and 343 different warrant is described in each count. of the Code of Civil Procedure. They also The first count is a sample of them all. In pleaded by the demurrer that the complaint that count it is averred that swamp-land dis- did not state facts sufficient to constitute a trict No. 307 was duly organized in Septem- cause of action, and these two grounds of ber, 1877, and has ever since been an existing demurrer are the only ones discussed by councorporation; that the other defendants, Glide, sel. Dwyer, and Monica, are now, and for more Counsel for respondents strenuously conthan six months, last past have been, the tend that the thing which plaintiff seeks to duly-elected and acting trustees of said dis- have defendants compelled to do is not a duty trict; that on the 10th day of September, "which the law specially enjoins as a duty 1877, the said district, through its then board resulting from the office, trust, or station”; of trustees, issued to H. M. Hawley & Co. that the law does not specially enjoin the deits certain warrant, numbered 23, upon the fendants to have an assessment levied upon treasurer of Yolo county, in which county the the land in said district; and particularly district is situated, directing said treasurer to that it is not their special duty to have such pay to said Hawley & Co., or order, "from an assessment levied for the purpose of paythe swamp-land fund in the treasury of said ing the warrants, or either of them, mentioncounty to the credit of said district No. 307, ed in the complaint. This and many other the sum of $372.96''; that the said warrant points are pressed by respondents under that was presented to the board of supervisors part of their demurrer which asserts that of said county, and was by them approved, the complaint does not state facts sufficient and was thereafter presented to the treasurer to constitute a cause of action; but we do of said county, and was by him on the 12th not consider it necessary to inquire particuday of November, 1887, marked, "Not paid larly into these points, because, in our opinfor want of funds," and registered; that since ion, the proceeding is barred by the statute the issuance of said warrant there never has of limitation. A proceeding in mandamus been in the treasury of said county, to the between two private parties to enforce a credit of said swamp-land district, or in the money obligation, where there is no statufunds of said district, sufficient money with tory provision giving it a different character, which to pay said warrant, or any interest is generally considered as a mere action at thereof, and that there never has, during any law, in which case all ordinary rules of pracof said time, been any money whatever in tice, including the statute of limitations, apsaid treasury to the credit of said district, ex- ply. In Com. v. Dennison, 24 How. 97, the (ept only the sum of $380, which remained in supreme court of the United States say: "It is equally well settled that a mandamus, in the cause of action shall have accrued." The modern practice, is nothing more than an ac- reason and philosophy upon which the stattion at law between the parties, and is not ute of limitations is based apply here with now regarded as a prerogative writ. It un- full force. The warrant set up in the first doubtedly came into use by virtue of the pre-count of the complaint was issued, presented, rogative power of the English crown, and and payment thereon was refused, in No. was subject to regulations and rules which vember, 1877; and this present suit was not have long since been disused. But the right commenced until November, 1895, which was to the writ, and the power to issue it, have 18 years thereafter. The date of the latest ceased to depend upon any prerogative pow- warrant set up in the complaint is 1881,er, and it is now regarded as an ordinary more than 14 years before the commenceprocess, in cases to which it has application. ment of the action. The present board of It was so held by this court in the cases of trustees, who are made defendants, do not Kendall v. U. S., 12 Pet. 615; Kendall v. appear to have occupied that position for a Stokes, 3 How. 100." In New York, before longer period than 6 months prior to the comthe adoption of the Code, and when there mencement of the suit. The warrants sued seemed to be no provision of the statute of on were issued, if at all, by other trustees, limitations expressly applicable to proceed- who were in office from 15 to 18 years beings in mandamus, the court held, in People fore this proceeding was instituted. They v. Supervisors, 12 Barb. 446, that a proceed- may have been issued illegally; the act of ising in mandamus should, by analogy, be suing them may have been ultra vires; they commenced within “the time given by the may not have been issued for any labor done statute to obtain a remedy for injuries sub- in the construction of the works of the disstantially of a similar character in the ordi: trict; they may have been issued without nary way, if that could be pursued”; and in consideration and fraudulently; they may be People v. French, 12 Abb. N. C. 156, the court | forgeries. And it is quite evident that the alluded to the former case of People v. Su present defendants, after such a lapse of pervisors as founding the doctrine of limita- time, would be in no condition to make any tion upon analogy, but said that “whether | of the defenses above indicated, when witthe proceeding then under review was to be nesses who knew of the facts at the time considered as an action under section 3333 may be dead, or may have allowed the recolof the New York Code, or a special proceed- j lection of them to vanish from their memo. ing under section 3334 of that Code, the re- ries, And the evident purpose of the statute sult would be the same, because by section of limitations is to prevent such a condition 414 of the Code the rules of limitation were of affairs, and to preclude parties from dis- . made applicable to special proceedings as turbing that repose which is intended to be well as civil actions.” Our Code has sub- final after the lapse of certain periods of stantially the same provisions as section 414 | time designated in the statute itself. The of the New York Code. Section 1109 of the position cannot be successfully maintained Code of Civil Procedure, which is a part of that no action could be commenced until a the title under which writs of mandate, cer- demand had been made by plaintiff upon the tiorari, and prohibition are provided for, defendants to act. Whether such demand be reads as follows: “Except as otherwise pro- necessary in a case like the present, it is not vided in this title, the provisions of part 2 necessary to determine, for the demand it[section 307 to section 1059] of this Code are self was an act within the power of the applicable to and constitute the rules of prac- plaintiff. tice in the proceedings mentioned in this In Prescott v. Gonser, 34 Iowa, 179, the title." And part 2, from said section 307 to court say: "That the action of mandamus said section 1059, includes the provisions of cannot be maintained until there has been a the Code upon the subject of the limitations refusal to perform the official duty sought to of actions. Moreover, section 363 of the be enforced, is true; but to hold that a plainCode of Civil Procedure, which is the closing tiff who has a right to demand performance section of the title “Of the Time of Com- at any time may delay such demand indefimencing Actions," reads as follows: "The nitely would enable him to defeat the object word 'action, as used in this title, is to be and purpose of the statute. It is certainly construed, wherever it is necessary so to do not the policy of the law to permit a party as including a special proceeding of a civil against whom the statute runs to defeat its nature." Therefore it is quite clear that not operation by neglecting to do an act which only under the general authorities, but un- devolves upon him, in order to perfect his remder the provisions of our Code, a proceeding edy against another. If this were so, a party like the one at bar, in mandamus, is subject would have it in his own power to defeat the to the rules which govern the limitation of purpose of the statute in all cases of this charactions; and if the present proceeding is not acter. He could neglect to claim that to subject to section 337, section 338, or section which he is entitled for even fifty years un. 339, it is certainly subject to the provisions affected by the statute of limitations, thereby of section 343, which declares that “an action rendering it a dead letter. In such a confor relief, not hereinbefore provided for, struction of the statute we cannot concur." must be commenced within four years after See, also, to the same effect, Baker v. John

son Co., 33 Iowa, 151. If the facts stated in proceeds of the sales of agricultural public lands the complaint in the case at bar constitute a

lying within said state, which shall be sold by cause of action, they constitute a cause of

the United States subsequent to the admission

of said state into the Union, etc., shall be paid action which accrued, and for which an ac

to the state for the purpose of making such intertion might have been instituted, from 14 to nal improvements as the legislature may direct, 18 years before the present complaint was

or within the meaning of the same term as used

in Rev. St. U. S. 1878, § 2378. filed. The statute of limitations is intended to embrace all causes of action not specially Advisory opinion in response to communiexcepted from its operation, and there is no

cation and interrogatories by the governor. exception applicable to the present proceeding,

The vpinion is in response to the following Bates v. Gregory, 89 Cal. 387, 26 Pac, 891, communication and interrogatories from the was an application for a writ of mandate to governor, to which was attached senate bill compel the trustees of the city of Sacramento No. 30, section 3 of which reads as follows: to do certain acts. The defendants therein

"Sec. 3. That for the purpose of constructing set up the statute of limitations, and this court a cottage for the female patients of said said: "A municipal corporation has the legal asylum, there is hereby appropriated out of right to avail itself of the defense of the stat- the internal improvement fund the sum of ute of limitations as fully as any other cred- twenty-five thousand dollars ($25,000) whicb itor. It is a privilege personal to the debtor,

shall be the total amount to be expended in and whenever, in any legal proceeding, it is

the construction of a cottage for the female invoked by the debtor, the court is compelled

patients by the commissioners of the insane to recognize it as a proper defense. This de- asylum." fense is pleaded in the present proceeding,

"To the Honorable the Supreme Court of the and, as we have before shown, is sustained

State of Colorado: by the facts, and must therefore be held sufficient." Appellant relies greatly on Freebill v.

"Whereas, section 3 of article 6 of the con

stitution of the state of Colorado, as amendChamberlain, 65 Cal. 603, 4 Pac. 616, but that case is not pertinent to the case at bar. That

ed, provides that the supreme court shall case was simply mandamus to the treasurer

give its opinion upon important questions upof the city of Sacramento to compel him to

on solemn occasions, when required by the pay the interest on certain bonds. Those

governor; and whereas, a certain senate bill bonds had been issued by the city under the

No. 30 has been passed by both houses of act of April 24, 1858 (St. 1838, p. 280), which

the Eleventh general assembly, a copy of has frequently been held by this court to

which is hereto attached, and has been precorstitute an express contract between the

sented to me in due course for my approval city and the bondholders, by which the latter

or disapproval as governor; and whereas, upwere prohibited from suing the city, and were

on reading and examining said bill, it apto rely exclusively upon a certain special fund,

pears to me that a certain item sought to be distinct from the general fund and from all

appropriated by section three thereof out of other funds of said city. The only remedy

the 'internal improvement fund' may be in which the bondholders had was mandamus

violation of the terms and conditions of the against the city treasurer to compel him to

grant of the United States government, as pay the interest on the bonds when there was

set forth in that portion of the enabling act money in the fund to which they could alone

creating said fund, the same being section look under their special contract; and all that

193 on page 93 of Mills' Annotated Statutes; the court decided in Freehill v. Chamberlain

and whereas, it is considered by me that the was that no cause of action in mandamus

foregoing question is inportant and the occaagainst said treasurer had accrued until there

sion solemn: Now, therefore, I, Alva Adwaz money in said fund, and that consequent

ams, governor of Colorado, do hereby rely the statute of limitations did not commence

spectfully require you, the supreme court of to run while there was no money in sa id fund

the state of Colorado, to give your opinion with which the treasurer could pay said in

upon the following questions: (1) Is section terest. It was not a proceeding which might 3 of said act obnoxious to the terms of the have been commenced 15 years before it was

granting act aforesaid? (2) Is it lawful for instituted. The judgment is affirmed.

the general assembly of the state of Colo

rado to appropriate any portion of the said We concur: HENSHAW, J.; TEMPLE, J.

'internal improvement fund for the erection of public buildings, such as asylums, state

houses, universities, and colleges, or any oth(24 Colo. 247)

er public institution of a like character? In re INTERNAL IMPROVEMENT FUND. "Very respectfully, Alva Adams, (Supreme Court of Colorado. April 27, 1897.)

“Governor of Colorado. STATES-INTERVAL IMPROVEMENTS-WHAT

"Done at Denver, Colorado, this 10th day CoxstitCTE.

of April, A. D. 1897." Public buildings, such as asylums, statehouses, etc., are not “internal improvements,"

James W. McCreery, T. M. Robinson, Byron within the Colorado enabling act (1 Mills' Ann.

L. Carr, Atty. Gen., and Calvin E. Reed, Asst. SL § 193), providing that 5 per centum of the Atty. Gen., amici curiæ.

19

PER CURIAM. The questions submitted 72 sections for the use and support of a state call for a definition of the words "internal university; section 11 donates certain salt improvements," as used in section 12 of the springs, together with 6 sections of land ad enabling act, being section 193, 1 Mills' Ann. joining, to be used and disposed of on such St., and which reads: "That five per centum terms, conditions, and regulations as the leg of the proceeds of the sales of agricultural islature shall direct; section 12, 5 per ceni. public lands lying within said state, which of the proceeds of sales of agricultural public shall be sold by the United States subsequent lands for internal improvements. By these to the admission of said state into the Union, provisions several separate and distinct do after deducting all the expenses incident to nations are made for specified purposes, and the same, shall be paid to the said state for the proceeds 'derived therefrom constitute the purpose of making such internal improve- trust funds, to be applied thereto. For the ments within said state as the legislature purpose of preserving and administering thereof may direct,"-and also the meaning these trusts, section 10 of article 9 of our to be given to the same term as used in sec- state constitution provides that “the general tion 2378, Rev. St. U. S. 1878. In other assembly shall, at the earliest practicable pe words, does the phrase as therein used in- riod, provide by law that the several grants clude "public buildings, such as asylums, of land made by congress to the state shall be statehouses, universities, and colleges, or any judiciously located and carefully preserved other public institution of a like character," and held in trust subject to disposal, for the so that the proceeds derived from the sources use and benefit of the respective objects for mentioned in these acts may be applied to which said grants of land were made." It is their construction? As we said in Re Inter- therefore apparent that neither congress in nal Improvements, 18 Colo. 317, 32 Pac. 611, | making the grants, nor the framers of the “the enabling act does not specify what kind constitution in providing for their preservaof improvements shall be considered internal tion and administration, intended that either improvements; hence we must consider the of these funds should be diverted to any other sense in which these words are used in purpose than that for which it is provided. American legislation." Therefore, if they and, therefore, that the proceeds derived unhave by common legislative usage and judi- der section 12 should not be applied to the cial construction acquired a fixed historical | erection of any buildings of the class thus meaning, such meaning must control, rather specifically provided for. Our conclusion is than the etymological definition of the words that the appropriation provided in section 3 themselves. That the various state institu- of the act submitted is not warranted unler tions referred to are internal improvements the terms of section 12 of the enabling act, in the general signification of that phrase and we also feel constrained to answer the will not be disputed; but, nevertheless, it has second question in the negative. been uniformly held that they do not fall within the category of "internal improve. ments" contemplated by that term as used

(23 Colo. 494) in legislative and constitutional enactments.

CATLIN LAND & CANAL CO et al. . The cases in which this distinction has been

BURKE. made arose under constitutional provisions (Supreme Court of Colorado. April 5, 1997.) absolutely prohibiting states from engaging

APPEAL-AFFIRMAXCE. in any "works of internal improvement”; The judgment must be affirmed where Do and, while recognizing every other species of

error appears in the record proper, and the er improvements of a public nature as being

rors assigned depend on the evidence, and the

bill of exceptions containing the evidence has within the meaning of the phrase "internal been stricken from the files. improvement" as therein used, they except

Appeal from district court, Bent county. those which are built for and used by the

Action between the Catlin Land & Canal state in its sovereign capacity, "such as a

Company and others and W. C. Burke, receipstate capitol, state university, penitentiaries,

er of the La Junta & Lamar Land Company. reformatories, asylums, quarantine buildings,

From a judgment for the receiver, the Catlin and the like,” for education, the prevention of crime, charity, and the preservation of the

Land & Canal Company appeals. Affirmed. public health are all recognized functions of Kilgore & Hess, for appellant. Charles E. state government. Rippe v. Becker, 56 Minn. Gast and Henry A. Dubbs, for appellee. 100, 57 N. W. 331; Leavenworth Co. v. Miller, 7 Kan. 479. That the buildings named PER CURIAM. The assignments of error are not such internal improvements as are in this cause are based upon a bill of ercontemplated in section 12 is evident, also, ceptions which was stricken from the files, froin other provisions of the enabling act, upon motion of appellee. See Canal Co. r. whereby donations of public lands are spe- Burke, 22 Colo. 419, 45 Pac. 387. The ques cifically made for public buildings, -among tion as to whether there is error in the decree them section 8, which donates 50 sections for depends upon the evidence, which is not be a capitol building; section 9, 50 sections for

fore us. In the record proper no error apthe purpose of erecting a suitable building pears, and the judgment of the district court for a penitentiary or state prison; section 10, must therefore be affirmed. Affirmed.

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