Counsel, in his brief, contends that it was error in the court to admit the testimony of witnesses Gilbert and Mansfield as to the angle defined by the course of the bullet which killed the deceased, and, further, that the court erred in admitting the testimony of witnesses Mansfield and Littlejohn concerning the firing of gunshots into woolen fabrics, as the same had no bearing as to the manner in which the deceased met his death. In order to understand the relevancy of this testimony, it may be necessary to refer to the circumstances relating to the homicide. It appears that the defendant and the deceased were stopping at the house occupied by the deceased, near the Holy Cross Cemetery, in the northern part of San Mateo county, and it is claimed by the defendant that their relations up to the day of the homicide were friendly; that they both were in the habit of drinking quite heavily, and frequently joked and bantered each other, indulging in slang and vulgar language, but at the same time not in an unfriendly spirit. According to the testimony of the defendant, they got into a quarrel about some trifling matter on the night of the homicide, and he testified that the deceased knocked him down and beat him. He says: "I was pretty stupid,-half insensible, -and he quit, and was not holding me any more; and, as soon as I recovered myself a little, I reached for my hat, which was in front of me. I was pretty well under the table then. I had crawled there for safety. When I reached my hat I got farther away, and I crawled under the table, and I got up on the other side of the table, and was getting around, and went around on my hands and knees part of the way on the other side of the table; and when I got up he was standing where I described that sideboard, and he was still talking in a threatening manner and said, "That is not half that you will get, you son of a bitch,' and so on like that; and when I got around to the end of the table by the desk, going for the door, he rushed towards me again from the end of the table where the little lounge was, and where the sideboard was, and I saw him running for me again, and I grabbed for the rifle,-it was near the window on my right, and I was about at the door at that time,--and I struck him with the rifle. I think I knocked him back a little, and I struck him again. I was not able to strike hard, because this arm was nearly dead,-the left arm,-but I know I struck him a couple of times with the rifle. I did not knock him down, and he was in a stooping position, reaching for it from the lounge, as if he was trying to reach to come after me, and he grabbed the rifle, and I pulled away back to the door. The rifle went off. I slammed the rifle on the floor, and ran off up to the McMahon House." The killing occurred in the kitchen, and there was no one present at the time, and we only have the defendant's story as to the manner in which it occurred. The testimony complained of

was for the purpose of showing by circumstantial evidence that the account of the tragedy as given by the defendant was not correct. For this purpose, the witness Gilbert, who was the county surveyor of San Mateo county, prepared a diagram of the rooms in the house in question, showing the position of the different articles of furniture therein at the time, which diagram was used at the trial. He also took measurements as to the height from the floor of the bullet holes and marks made through the walls of the building and on the furniture, and in that connection gave the angles of the course of the bullet. It not being feasible to produce the building, with its rooms, before the jury on the trial, the next best thing was correct diagrams and accurate measurements for the purpose of illustrating the testimony. The witness Mansfield was the sheriff of the county, and he went to the premises with the Constable Neville the morning after the killing. He made an examination of the dining room and kitchen and room occupied by the defendant, Fitzgerald. He says: "I entered the dining room, and went into the small room known as the 'kitchen.' In the kitchen of the house I found the body of John Lennon, lying with his head to the northwest corner, and his feet projecting out towards the door leading from the kitchen to the dining room. There were no powder burns or marks upon him at that time." He says further: "As a result of the examination, I found a hole through the sofa, back of the sofa through the partition into the kitchen, struck the edge of the table, and glanced off and passed off through a rear partition here (referring to said diagram in evidence). It had made an indentation in the outer wall." He proceeds then to give the location of the different pieces of furniture found in the dining room and kitchen at the time. Mansfield, it appears, was in the Civil War, and testified that he was well acquainted with the use of firearms: and he and the witness Littlejohn experimented concerning the firing of gunshot into woolen fabrics, similar to the clothing worn by the deceased, as to the effect of powder marks on the same, with both the use of smokeless powder and black powder, and it appeared as the result that at the distance of 1 foot 18 inches, and even 2 feet, the shots left stains or powder marks. This was to impeach the testimony of defendant that the deceased was killed in the manner stated, by pulling the gun towards him. The correctness of the diagram and the measurements does not seem to have been questioned, and they were used and referred to by the various witnesses, including the defendant.

It is claimed in the brief for defendant that the court erred in admitting the evidence of Mrs. Carroll, wherein she testified that she saw a pistol in the possession of the defendant some time prior to the homicide, and also heard him make threats against the

deceased. The defendant on cross-examination testified in reference to the breaking of a certain bull's-eye lantern the night before the homicide, which he had purchased, and which was broken by being knocked off the table by the deceased; and in this connection George Malley, a witness for the prosecution, testified that he was present at the time, and on that occasion heard the defendant make threats against the deceased. der the circumstances, we think there was no error in admitting the testimony in question.

Un

It is claimed that the court erred in giving the following instruction: "The court charges you that if any witness examined before you, or whose testimony taken elsewhere has been read to you, has willfully sworn falsely as to any material matter, it is your duty to distrust the entire evidence of such witness." This instruction is substantially according to the Code, which is "that a witness false in one part of his testimony is to be distrusted in others." Code Civ. Proc. § 2061, subd. 3.

It is also claimed that the court erred in refusing to give the following instruction: "The jury are further instructed that this doubt exists and goes with the defendant at every stage of the case, and applies to every element of the charge essential to its establishment, as a proposition of law and as a matter of fact." This forms a portion of the tenth instruction asked by the defendant. The court, however, gave instructions covering fully the question of reasonable doubt,for instance, the following: "The court instructs the jury that upon the trial of a criminal case, if a reasonable doubt of any facts necessary to convict the accused is raised in the minds of the jury by the evidence itself, upon any hypothesis reasonably consistent with the evidence, that doubt is decisive in favor of the prisoner's acquittal." Again: "The court instructs the jury that under the law no jury should convict a citizen of a crime upon mere suspicion, however strong, or simply because there is a preponderance of all the evidence in the case against him, or simply because there is strong reason to suspect that he is guilty; but, before the jury can lawfully convict, they must be convinced of the defendant's guilt beyond a reasonable doubt." Again: "The jury are further instructed that the presumption of innocence is not a mere form, to be disregarded by the jury at pleasure, but it is an essential, substantial part of the law of the land, and binding on the jury in this case, as in all criminal cases; and it is the duty of the jury to give the defendant in this case the full benefit of this presumption, and to acquit the defendant, unless the evidence in the case convinces them of his guilt as charged, beyond all redsonable doubt." And this line of instruction is repeated in several of the instructions given by the court, and, if the portion of the instruction refused was

well expressed and contained sound law, it is fully covered in others of like import; and no injury could, therefore, result to the defendant for failure to give the one in question.

In the brief it is further claimed that the court erred in refusing to give the following instruction: "The court instructs that previous threats, if proven beyond a reasonable doubt to have been made by the defendant, must be considered with reference to the relations existing between the defendant and the deceased, and, if it is shown by the evidence that a reconciliation has taken place between the defendant and the deceased prior to the homicide, such threats are not to be considered as evidence of malice on the part of the defendant." But the court did give the following instruction asked by the defendant, which seems to cover the ground fully: "If the defendant was assaulted and placed under such circumstances that he had good reason to believe that it was necessary to defend himself from such attack to prevent the infliction of great bodily injury, the fact of any previous threat, or even the existence of any previous malice, if any is shown, toward the deceased, could not take away from the defendant the right of self-defense. * * * It is solely the province of the jury to determine whether the defendant in fact did not make threats against the deceased, and the weight to be given to evidence of alleged previous threats depends upon their character, the manner and the occasion of their utterance, nearness of time, and the particular circumstances surrounding their alleged making.”

Of the 21 instructions given at the request of the defendant, and 49 by the court of its own motion, the cases already noted are the only ones to which any objection is made. This, of itself, aside from an inspection of the record, shows quite clearly that the court below scrupulously guarded the defendant in all of his constitutional rights to a fair and impartial trial.

Judgment and order affirmed.

We concur: GAROUTTE, J.; HARRISON, J.; MCFARLAND, J.

(139 Cal. 78)

STONE v. BANCROFT. (S. F. 2,398.) (Supreme Court of California. Dec. 18, 1902.)

MASTER AND SERVANT-ACTION FOR SALARY -REMEDIES PREVENTING WORK OTHER EMPLOYMENT-TIME TO SUE-ACCRUED SAL

ARY-DEFENSES-PLEADING.

1. Where, in an action for salary due under a contract of employment, there was evidence that, though defendant had prevented plaintiff from working during the period for which salary was demanded, he had never discharged plaintiff, an objection that plaintiff's remedy was for breach of contract, and not for salary due, could not be sustained.

2. Where, during the term of a contract of employment, defendant prevented plaintiff from working under the contract, the fact that

plaintiff devoted a small portion of the period to other work, which did not interfere with his efforts on defendant's behalf under the contract, did not constitute a breach of contract by plaintiff, so as to preclude his recovery of salary accrued.

3. Where plaintiff was employed to devote 10 years to the publication and sale of defendant's historical works at a monthly salary of $350, and he was prevented by defendant from working under the contract before its completion, plaintiff was entitled to recover salary for each month as it accrued.

4. Where defendant employed plaintiff to devote 10 years of his time, beginning at a certain date, to the publication and sale of defendant's publications at a certain salary per month, plaintiff's right to recover salary thereunder was not affected by Civ. Code, § 1980, declaring that a contract to render personal services other than a contract of apprenticeship cannot be enforced "as against the employé" beyond the term of two years from the commencement of service thereunder.

5. In an action by an employé for services, Civ. Code, § 1980, providing that contracts of service as against the employé shall be limited to two years, cannot be relied on as a defense unless pleaded.

Commissioners' decision. Department 1. Appeal from superior court, Contra Costa county: John Hunt, Judge.

Action by N. J. Stone against H. H. Bancroft. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Edward J. McCutchen (Page, McCutchen & Eells and Page, McCutchen. Harding & Knight, of counsel), for appellant. Campbell & Metson, for respondent.

Reddy,

GRAY, C. This action was brought to recover a salary of $350 per month for seven months from September 1, 1893, to April 1, 1894, amounting in the aggregate to $2.450. The plaintiff obtained a verdict and judgment for the full amount claimed. The defendant appeals from the judgment and from an order denying him a new trial.

The action is based on a written agreement made between the parties to the suit on August 20, 1886, in which plaintiff, Stone, agreed to devote 10 years, beginning with that date, to the publication and sale of the historical works of defendant, Bancroft, at a monthly salary of $350, and defendant agreed to employ him on those terms. Suit was maintained for a former period of service under this same contract, and the judg ment in plaintiff's favor affirmed, in Stone v. Bancroft, 112 Cal. 652, 44 Pac. 1069. Reference is here had to that case for a fuller statement of the contract here in suit. It is settled by that case that the contract is one for personal services, and not a partnership agreement.

1. It is contended by appellant that in this suit the plaintiff has mistaken his remedy; that the defendant discharged plaintiff from his service; and that, consequently, if plaintiff has any cause of action at all, it is one for breach of the contract, and not one for

services under the contract. But appellant fails to call our attention to any declaration or other act of defendant which amounted to an unequivocal discharge of the plaintiff from further employment. To be sure, it appears that plaintiff was prevented from working at all during the period covered by the present suit by the defendant, but it is one thing to prevent a party from laboring and quite a different thing to discharge him from all further employment. In the former instance the contract need not be treated as broken, but the party, though he has performed no labor under it, may sue on the contract, and recover the agreed compensation. In the latter instance there is an unequivocal breach of the contract to employ for a specified time by the employer, and the suit should be as for a breach of the agreement to employ. All of which is clearly laid down and illustrated in Stone v. Bancroft, supra. The same principle is stated in Dingley v. Oler, 117 U. S. 490, 6 Sup. Ct. 850, 29 L. Ed. 984. The plaintiff testified that he was not discharged, and stated what was said and done to prevent him from working, and on his evidence the jury based their verdict in his favor, and thus it was impliedly found that he was not discharged. and we think the evidence warranted the finding. If the defendant desired to discharge the plaintiff, he should have told him that he was discharged. Instead of doing this, he seems to have adopted a course by which, if he was sued for a breach of the contract, he might plausibly say, "You have mistaken your remedy. I did not discharge you;" and if, on the other hand, the suit should be on the contract, he might say, "You should have sued as for a breach of the contract, for I discharged you, and thus broke my agreement." Where it is admitted that the plaintiff is entitled to recover in some form of action, this court will not be overnice in its distinctions as to what form should be pursued. On the circumstances presented, we decline to interfere with the judgment on any theory of mistake as to remedy. The law touching this point is clearly laid down in the former case of Stone v. Bancroft, supra, and need not be again repeated. The evidence showing that there was no discharge is fully as strong here as it was in that case, and there it was conceded by appellant that there was no discharge, but it was contended that Stone had withdrawn from the contract, and abandoned the employment.

2. The evidence tended to show that plaintiff, during a small portion of the period covered by the suit, assisted another in the publication and sale of a medical book entitled "Femina," and it is contended that this was a violation of plaintiff's contract "to devote his whole time" to the historical works of Bancroft. It appears that Stone was at all times ready and willing to fully perform his contract with Bancroft, but was prevented

from so doing. He was left, then, either to remain idle or work at something else. This work did not "interfere with his efforts on behalf of the said History Company." Bancroft was in no way injured by Stone working at something else when he was not permitted to work under the contract, and cannot be heard to complain thereat. What plaintiff did in connection with the "Femina" publication did not, therefore, constitute a substantial breach of his contract with appellant, and the jury were warranted in their conclusion to that effect. Hermann v. Littlefield, 109 Cal. 430, 42 Pac. 443. This same question, on practically the same evidence, was passed on adversely to appellant's contention in the former case of Stone v. Bancroft, supra.

3. Appellant's next contention is that by the terms of the contract plaintiff could recover nothing until the expiration of the 10years service contemplated by said contract. There is no merit in this contention. This was a contract of hiring for the period of 10 years, with compensation fixed at $350 per month, and that amount was due and owing at the conclusion of each month's service. There is nothing in the contract to indicate an intention as to the times of payment, otherwise than as above stated.

4. Appellant's last contention is based on section 1980 of the Civil Code, which provides as follows: "A contract to render personal service, other than a contract of apprenticeship, as provided in the chapter on Master and Servant, cannot be enforced as against the employé beyond the term of two years from the commencement of service under it; but if the employé voluntarily continues his service under it beyond that time, the contract may be referred to as affording a presumptive measure of the compensation." There is nothing in this contention, because: (1) The statute was not pleaded; (2) it would not have been a bar or defense to this action if it had been pleaded.

The judgment and order should be affirmed.

CONTRA COSTA COUNTY v. SOTO et al. (S. F. 2,302.)

(Supreme Court of California. Dec. 16, 1902.)

COUNTIES ACTIONS - DISTRICT ATTORNEYPOWER TO BRING-ORDER OF SUPERVISORS -NECESSITY-CONTRACTS-VALIDITY.

1. The county government act (St. 1897, p. 463, § 25, subd. 16) gives to the board of supervisors power "to direct and control the prose cution and defense of all suits to which the County is a party.' Section 8 declares that if the supervisors shall, without authority of law,

Α

order any money paid as a salary, fees, or for other purposes, and such money shall have been actually paid, the district attorney of such county can institute suit in the name of such county to recover such money, and no order of the supervisors therefor shall be necessary. county, being entitled to certain money out of the state treasury under an act of the legislature, agreed with one of the defendants to allow him 25 per cent. on all money collected under the act, as compensation for his services in preparing evidence, etc. Held that, the said per cent. having been retained by defendants out of the money collected, the district attorney could not sue them for its recovery without first obtaining an order from the board of supervisors.

2. A contract whereby a county, which had become entitled to a certain sum of money out of the state treasury, agreed with one of the defendants (himself not a county officer) to allow him 25 per cent. for services in preparing evidence, etc., was not void, though the defendant employed certain county officers to do a part of the work for him.

Commissioners' decision. Department 1. Appeal from superior court, Contra Costa county; A. J. Buckles, Judge.

Action by the county of Contra Costa against A. J. Soto, F. L. Glass, and Geo. R. Armstrong. Judgment for defendants, and plaintiff appeals. Affirmed.

Tirey L. Ford, Atty. Gen., C. Y. Brown, Dist. Atty., and Eli R. Chase, for appellant. W. S. Tinning and M. R. Jones, for respondents.

COOPER, C. At the close of plaintiff's evidence the court granted defendants' motion for a nonsuit, and judgment was accordingly entered. Plaintiff brings this appeal from the judgment, and from an order denying its motion for a new trial. The judgment was entered December 16, 1897, and the notice of appeal therefrom served and filed March 17, 1900. Therefore the appeal from the judg ment cannot be considered, because not taken within the statutory time. The appeal from the order is accompanied by a statement containing the evidence and proceedings. The amended complaint alleges, in substance, that under an act of the legislature entitled "An act to appropriate money for the support of aged persons in indigent circumstances," approved March 18, 1883, there became and was due the plaintiff from the state of California in November, 1894, the sum of $27,941.08; that afterwards the defendant Soto received the said sum, and paid into the treasury of plaintiff the sum of $20,955.80, and no more, and has ever since retained the balance, $6,985.28, and the same is due and unpaid to plaintiff; that prior to receiving the said money the defendants “unlawfully, fraudulently, corruptly, and knowingly conspired together to cheat and defraud the plaintiff" out of said balance, and. in pursuance of said conspiracy, defendants divided said sum among themselves; and that defendants have since neglected and refused to pay the same to the plaintiff. Judgment is prayed for said sum of $6,985.28, with 20 per cent. added thereto as damages and for costs. The complaint is

signed by C. Y. Brown, the district attorney of plaintiff, as plaintiff's attorney. There is no allegation or claim that the action is brought by order or direction of the board of supervisors of the county. Defendants severally demurred to the complaint upon the general ground that it fails to state facts sufficient to constitute a cause of action, and upon the special ground that it does not appear therefrom that the action is brought in pursuance of any order or authority of the board of supervisors of plaintiff. The demurrers were overruled, and defendants answered.

The allegations of the answers and the proof on the part of plaintiff show, substantially, that the said sum of money was received by defendants, and the $6,985.28 retained by them and divided in certain proportions; that it was obtained from the state, under the act herein quoted, as moneys due the county; that before obtaining the money the plaintiff, through its board of supervisors, made a written contract with defendant Armstrong whereby it agreed to allow said Armstrong 25 per cent. of all amounts collected by him from the state under said act, as compensation for his services to be performed in preparing evidence and presenting the same to the proper authorities for the said amount so due plaintiff by the state; that said 25 per cent. is the amount so retained by defendants, and the amount so agreed to be paid to Armstrong; that the work in preparing the evidence in support of plaintiff's claim and prosecuting the same was in fact done by defendants Soto and Glass, under an understanding with defendant Armstrong that they were to do the work and receive compensation therefor; that the defendant Soto was, at the time of doing said work, and has been at all times since, the county auditor of plaintiff, and defendant Glass was and has been the county clerk of plaintiff; that after the said claim of plaintiff was presented, and the money obtained, the defendant Armstrong received only $250 thereof, and the balance of the $6,985.28, after deducting the $250 so paid Armstrong, was divided equally between defendants Soto and Glass; that said sum has never, in fact, been paid to plaintiff, but has been kept and retained under the terms of the contract so made with Armstrong. At the close of plaintiff's evidence the defendants moved for a nonsuit upon the grounds (1) that no authority has been shown for the commencement of the action by the district attorney, and that no authority or order of the board of supervisors directing the money to be paid over has been shown; and (2) upon the ground the evidence fails to show any cause of action against defendants, or either of them.

As to the first ground of the motion, it is the general rule that all actions brought by or prosecuted in behalf of a county must be brought by authority of the board of super

visors. County Government Act 1897, p. 457, § 25, subds. 1, 16: Ventura Co. v. Clay, 119 Cal. 214, 51 Pac. 189. The counsel for plaintiff, when the motion was made, did not claim any authority from the board of supervisors for the commencement of the action or any ratification by the board as to the same, but relied upon section 8 of the county government act of 1897 as authority for bringing the suit. Said section empowers, and makes it the imperative duty of, the district attorney, in certain cases therein named, to institute suit in the name of the county, "and no order of the board of supervisors shall be necessary in order to maintain such suit." It is claimed that the provision authorized this action to be brought by the district attorney of his own volition by virtue of the language: "Whenever any board of supervisors shall, without authority of law, order any money paid as salary, fees, or for other purposes, and such money shall have been actually paid," etc. It is evident that the above language means that the board, without authority of law, must have ordered the money paid, and that it must have been actually paid before the action can be maintained by the district attorney. In this case the board did not order the money paid which it is sought to recovThe agreement made with Armstrong was made for the purpose of getting money into the county treasury, and not for the purpose of paying it out. If we concede that the contract was void and beyond the power of the board to make, still it was not an order for the payment of money. It was at least an attempt to authorize the collection of a legal claim due to the county from the state. If the contract is conceded to be wholly void, the money was collected by defendants for the use and benefit of the county.

er.

The 25 per cent. kept by defendants, if the property of the plaintiff, could have been recovered by the county through the board of supervisors, and by the authority of the board. The complaint, although attempting to make a case under section 8, alleges facts which show that it simply states a cause of action for money had and received to plaintiff's use. It alleges that Soto "had and received into his possession from the treasurer of the said state of California the said sum of $27,941.08; the san.e being then and there the money and property of the plaintiff." Then, after alleging the payment of $20,955.80 to plaintiff, it states that defendants "neglect and refuse to pay the said sum of $6,985.28 into the treasury of the plaintiff." The fact that the board of supervisors, after having made the contract, would not be likely to authorize an action to recover the money they had agreed to pay, does not change the result. The board has charge of the management and disbursement of the public revenues of the county. The county acts through its board of supervisors. The board