ple v. Hughes, 29 Cal. 258, the defendant was charged with arson, committed to defraud an insurance company. In the indictment the insurance company was named the "Hartford Insurance Company." The name as proved on the trial was the "Hartford Fire Insurance Company." The court said: "It is sufficient to say that, under our practice, this is no ground for the arrest of judg ment." Page 262. This remark was made independently of the section of the practice act which also justified the conclusion of the court. In People v. Phillips, 70 Cal. 61, 11 Pac. Rep. 493, the information alleged the forgery of a promissory note described as payable "to H. C. Philips, or order." The note given in evidence did not contain the word "to." Held, the variance was immaterial. See, also, People v. Tonielli, 81 Cal. 275, 22 Pac. Rep. 678. As the omission of the words "city auditor" was not essential either to the validity of the instrument or its identification, we must hold, both upon principle and authority, the error under consideration was not prejudicial.

Other rulings upon evidence are assigned for error, most of which are mentioned only by number, and are not discussed. We have, however, examined the whole record, and find no error which would justify a reversal. The exceptions to the instructions to the jury given and refused have been sufficiently covered in the foregoing opinion. We advise that the judgment and order appealed from should be affirmed.

We concur: SEARLS, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

(98 Cal. 676)

RAMISH v. KIRSCHBRAUN et al. (No. 19,165.)

(Supreme Court of California. July 14, 1893.) BREACH OF CONTRACT-DELAY IN DELIVERYMEASURE OF DAMAGES.

In an action for delay in delivering eggs agreed to be delivered as soon as they should arrive by freight, the measure of damages is the difference between their value at the place of delivery at the time when they were delivered and when they should have been delivered.

Department 1. Appeal from superior court, Los Angeles county; W. H. Clark, Judge.

Action by A. Ramish against Kirschbraun & Sons for delay in delivery of a car load of eggs. Judgment for plaintiff. Defendants appeal. Reversed.

Gould & Stanford, for appellants. Del Valle & Munday, for respondent.

PER CURIAM.

The facts of this case

are fully stated in the opinion of the court found in 90 Cal. 581, 27 Pac. Rep. 433, where the judgment and order of the trial court were reversed, and the cause remanded for a new trial. A new trial was had, judgment again went for plaintiff, and the case is now before us for the second time. Plaintiff, in Los Angeles, purchased from defendants, in Omaha, a car load of eggs, to be delivered in Los Angeles. The eggs arrived in Los Angeles July 8tn, but owing, as it is claimed, to the negligence of the defendants, plaintiff was unable to secure possession of them until July 14th. In the mean time the price of eggs dropped, and this action is brought to recover damages upon a failure to deliver on the 8th of July. Upon the question as to the measure of damages, the trial court instructed the jury as follows: "If your verdict be for the plaintiff, you should then, of course, estimate the amount of damages, and in estimating the amount of damages the rule should be the difference between what the eggs cost plaintiff by the terms of the contract and the value of the eggs to him at the time and place when they ought to have been delivered by the terms of the contract. The value to him at that time and place was the market value at that time and place." The foregoing instruction does not state the true rule of damages in a case of this character. The cost price of the eggs is an immaterial element in the case. If the foregoing rule be the correct one, then the value of the eggs at the time they were actually received by plaintiff would be an immaterial element, and evidence addressed to that inquiry not within the issue. But the contrary is the fact, and a determination as to the value upon the 14th of July, the day when the eggs were actually received, is absolutely necessary in order that plaintiff's damage may be properly estimated. It is entirely apparent that the eggs may have been of a greater value on July 14th, when they were actually received than they were upon July 8th, when they should have been received. Upon such assumption of facts, plaintiff would not have suffered any damage whatever, but, on the contrary, would have been greatly benefited by the delay in delivery; yet, under the instructions of the court, heretofore quoted, he might have been entitled to the amount of damages awarded by the jury. In addition to the reasons already suggested, this court said in the previous decision of the case, (90 Cal 581, 27 Pac. Rep. 433:) "The evidence should have been contined to the inquiry of what was the market value of the eggs between July 8th and July 14th." The law of the case must be deemed as settled to that effect. For the foregoing reasons let the judgment and order be reversed, and the cause remanded.

an

1. Under Pol. Code, § 1576, providing that each city or incorporated town, unless subdivided by the legislative authority thereof, shall form a school district, by the incorporation of a portion of a school district as a city or town, all that portion of the district within the exterior boundaries of the city or town is withdrawn from the district.

2. Where a portion of a school district is incorporated as a city or town, the fact that the trustees of the district continue to maintain, as before, for the benefit of the children of their district, a school within the territory Included in the city or town, does not entitle such district to a portion of the school fund of the county, in the absence of any school in the portion of the district not included in such newly-incorporated city or town.

Commissioners' decision. In bank.

Application by the Bay View School district, of Santa Cruz county, for a writ of mandate to compel John W. Linscott, county superintendent of public schools, to apportion to plaintiff a part of the county school funds. Writ denied.

Charles B. Younger, for petitioner. Spalsbury & Burke, for respondent.

TEMPLE, C. August, 1865, there were in Santa Cruz county two adjacent school districts, one known as the "Santa Cruz School District," and the other as the "Bay View School District." Since that time, both have maintained their autonomy, electing trustees at the proper times, and have kept up schools within the original boundaries of their respective districts. The Bay View district, the plaintiff here, in 1868, purchased a lot for its schoolhouse, and has since expended $5,000 in building a schoolhouse upon it. In this house its school has been since maintained, where there has been an average attendance of 100 pupils. At every apportionment of school moneys by the superintendent of said county, up to December 15, 1891, its share has been apportioned to plaintiff, and has been expended by it by orders drawn upon the treasury in the usual mode. the last-named date the defendant, as superintendent of schools, refused to make any apportionment to plaintiff, and has since refused to recognize plaintiff, or its rights to the public moneys, on the grounds (1) that said Bay View school district has no legal existence; (2) that the persons claiming to act as trustees of said alleged school district are not trustees thereof; and (3) that no public school has been maintained within the exterior boundaries of said alleged Bay View school district, as defined and fixed by the order creating said district, except the public school hereinbefore referred to, which school, since March, 1866, has been maintained in a schoolhouse situate within the

At

exterior boundaries of the town (now city) of Santa Cruz.

The contention is that the portion of Bay View school district within the exterior boundaries of the city of Santa Cruz has ceased to be a portion of such school district, and therefore no school has been maintained within the district. The question to be determined, therefore, is whether, by the incorporation of the town or city of Santa Cruz, all that portion of the school district within the exterior boundaries of the city has been withdrawn from the district.

It was said by this court in Hughes v. Ewing, 93 Cal. 414, 28 Pac. Rep. 1067: "The power to change the boundaries of the district, as well as to define them in the first instance, is of legislative origin, and whether exercised immediately, by the legislature, or mediately, by a board of supervisors,-the local legislature,-is, whenever exercised, a legislative act. It is well settled that the legislature has the power to make such changes, and that in the exercise of this power it way make such provision respecting the property and obligations of the corporation as it may deem equitable or proper, and that its action in this respect is conclusive." The town of Santa Cruz was incorporated by special act of the legislature March 31, 1866, and the exterior boundaries defined so as to include a large portion of Bay View school district, with the lot upon which the trustees of the school district subsequently erected their schoolhouse, and where they have since maintained their school. March 11, 1876, the city of Santa Cruz was incorporated, with the same boundaries as the town of Santa Cruz. At the time of the incorporation of the city, section 1576 of the Political Code read as follows: "Each county, city or incorporated town, unless subdivided by the legislative authority thereof, forms a school district." The legislative authority of Santa Cruz has never subdivided the city into school districts. In 1878 the above section was amended so as to read: "Each county, city, or incorporated town, unless subdivided by the legislative authority thereof, forms a school district; provided the board of supervisors may include more teritory than that now included within the boundaries of any incorporated town." March 20, 1891, this section was amended as follows: "Every county, city or incorporated town, unless subdivided by the legislative authority thereof, forms a school district; provided, that whenever a city or town shall be incorporated the board of supervisors may upon petition annex thereto for school purposes only the remainder of the district or districts from which said city or town was organized, or any part thereof; and provided further, that whenever any territory shall be annexed to a city or an incorporated town for school purposes, the board of education or of school trustees of said city or incorporated town

shall have full control for school purposes only of the teritory or property so annexed.” The board of supervisors of the county of Santa Cruz has not annexed any territory to the city of Santa Cruz for school purposes. Had it done so, the authority to divide such territory with the territory of the city into school districts would have been in the legislative authority of the city or school trustees. In view of these statutes, there can be no doubt but that the city of Santa Cruz constitutes a school district. Certain acts of the city, of the school district, and of the school superintendent are cited, as showing a recognition of the plaintiff as a school district with its original boundaries, and as an estoppel upon defendant. But an act of the legislature, within legislative power, fixing the boundaries of the political subdivisions of the state, cannot be repealed by the officers of such subdivisions, not even by acts of estoppel in pais. After the incorporation of the city the board of supervisors ceased to have any power over the school districts within the city. It must then be taken for granted that the portion of Bay View school district which was included within the exterior boundaries of the city has ceased to constitute a part of that district. The school was therefore not maintained within the district.

A school was, however, maintained by the trustees of the district for the benefit of the children of the district, and there is no complaint that they have not been fully ac commodated. or their educational wants fully satisfied, so far as such school could do so. Is this such compliance with the law as will entitle plaintiff to the mandate? It is important to remember that the money has been apportioned and paid out. There

is actually no money in the treasury to be apportioned. Perhaps, if insisted upon, this would be sufficient to defeat the application. To issue the mandate now would be of no avail, nor would it compel the respondent to refund the amount on the ground that he has illegally disbursed it. If, in doing so, he has followed the law, he cannot be made to do this no matter how great the hardship upon plaintiff. Sections 1543-1859, Pol. Code, do not expressly provide that such school shall be within the district, but such is clearly the implication. The purpose of establishing school districts is that schools may be brought conveniently near the pupils. 'This intent could be defeated if the trustees could maintain school out of the district. Section 5, art. 9, of the constitution, provides that: "The legislature shall provide a system of common schools by which a free school shall be kept up and supported in each district. The provisions made by the legislature will be presumed to be intended to effectuate this, as well as other purposes, and the statutes indicate this. Section 1858, Pol. Code, gives the trustee power to manage school property within the dis

trict. Section 1581 requires every new dis trict to open a school therein within four months. See, also, section 1662. If a district may, under the law, maintain a school outside of the district, other unpleasant consequences might follow, which it is unnecessary to specify. It is enough that so the law is written.

It is suggested that the Santa Cruz district also antedates the incorporation of the city, and, according to the agreed case, all of it is not included within the city of Santa Cruz. It does not appear that the corpora tion now known as the "Santa Cruz School District" is the school district created by the statutes above cited, and whose boundaries are coincident with the city boundaries. On the contrary, it appears from the agreed case that such is not the fact. Santa Cruz school district may be in the same condition as Bay View school district, and may not be entitled to any of the school moneys, for the same reason. This may be so, but Santa Cruz school district is not a party to this case. It is not bound by the agreed case here, and no question is raised, or can be, in regard to its rights. It would not help the case of plaintiff to show that money has been improperly apportioned to Santa Cruz school district. I think the order should be denied.

1. It is not necessary that an indictment for murder state the means with which crime was committed.

2. Under Pen. Code, § 187, defining murder as the unlawful killing of a human being with malice aforethought, it is unnecessary to allege that the killing was deliberate and premeditated.

3. Defendant had a quarrel in a saloon with a woman who had come in with deceased. Deceased interfered, and, while deceased held defendant down on the floor, the woman struck defendant with a hammer, cutting through his ear. Held, that it was error to add to an instruction justifying the killing, if it was done under a reasonable fear by defendant of loss of life or great bodily harm at the hands of deceased and the woman jointly, a condition that deceased and the woman had a preconceived design, and had agreed together, prior to the infliction of the wounds causing deceased's death, to jointly assault defendant.

4. While threats made by defendant between a quarrel and reconciliation in good faith cannot be considered, in the absence of subsequent threats, it is proper to add to an instruction that if defendant had not, in good faith, forgiven deceased, the threats could be considered.

5. Though there had been no reconciliation, the killing might be justifiable, if defendant was assaulted under such circumstances

that he had reasonable grounds to believe, and did believe, that it was necessary to preserve his own life, or prevent great bodily injury. Commissioners' decision. In bank. Appeal from superior court, Nevada county; John Caldwell, Judge.

William Hyndman was convicted of murder, and appeals. Reversed.

G. L. Waters, for appellant. W. H. H. Hart, Atty. Gen., and Wm. H. Layson, First Dep., for the People.

con

HAYNES, C. The defendant was victed of murder in the second degree, and appeals from the judgment, and from an order denying his motion for a new trial. The body of the information is as follows: "William Hyndman is accused by the district attorney for the county of Nevada, state of California, by this information, of the crime of murder, (a felony,) committed as follows: The said William Hyndman, on, to wit, the 8th day of July, 1892, at and in the county of Nevada, and state of California, and prior to the filing of this information, willfully, unlawfully, feloniously, and of his malice aforethought, did kill and murder one William Searle, contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of California." The defendant demurred to this information and the demurrer was overruled, and defendant also objected to the introduction of any evidence upon the same grounds. Briefly stated, the points urged by appellant are (1) that the information does not allege the means used, nor state facts sufficient to apprise the defendant of the nature of the evidence the people' will offer in that regard, or such facts as would enable him to prepare his defense; (2) that the information does not allege that the killing was "deliberate and premeditated."

At common law it was indispensable to a good indictment that the means used to procure death should be stated in all cases where such means were known, and, if unknown, the absence of the allegation must be excused by the statement that the means used were unknown. Under legislation adopted in England in 1851, and afterwards in Canada, an indictment in the form of this information is declared to be good, and this legislation has been incorporated into the statutes of several of the states. While there is no statutory provision in this state expressly declaring such form of indictment or information to be sufficient, it has several times been held that such averments are unnecessary. People v. Alviso, 55 Cal. 230; People v. Hong Ah Duck, 61 Cal. 388. In People v. King, 27 Cal. 510, and People v. Cronin, 34 Cal. 192, the question as to changes effected in criminal pleadings by the Code was discussed. In the latter case it was said: "While it may be well to state

the means by which death was caused, we do not consider such a course indispensable." No case is reported in this state where such averments are discouraged, though held unnecessary. To prevent misconception it may be added that in none of the cases so holding was the homicide committed in the perpetration, or attempt to perpetrate, arson or other felonies mentioned in that connection in section 189 of the Penal Code. On the authority of the cases above cited, the first objection made to the information cannot be sustained.

As to the second objection, Pen. Code, § 187, defines murder as follows: "Murder is the unlawful killing of a human being with malice aforethought." In People v. De La Cour Soto, 63 Cal. 166, it was held that murder, thus defined, includes both degrees, and that it is sufficient to charge the offense committed in the language of the statute defining it. See, also, People v. Martin, 47 Cal. 101.

Other points made by appellant require a statement of the circumstances under which the homicide occurred. The defendant and deceased were working together in a mine a month or two prior to the homicide. The superintendent met defendant in the mine, and the latter, in an excited manner, put his head down, and said Searle (the deceased) had hit him with a drill or hammer. Searle called defendant a liar, and the two "squared off" to fight. The superintendent separated them, and discharged them both, but soon after took Searle back, and put him to work. Defendant was not re-employed. On the evening of the homicide, Searle and the defendant met in the store of one Kohler, who also kept a bar in the same room. The old difficulty was talked over, and they "made up friends," shook hands and drank together, and shortly afterwards another drink was taken, and again they shook hands. Searle made some purchases of some provisions, which were placed in a basket, and he left the store. He was then living with a woman named Lou Kane, who was not his wife, and who was reputed to be a woman of the town. Shortly after Searle left the store, he returned with this woman, and his basket, and took a seat upon a bench. Lou Kane made some purchases, and, while standing at the bar counter, defendant asked her to treat, which she did. According to her testimony, defendant said to her he used to know her at Pioche, to which she replied that she never was there, and that defendant called her a liar, and she then "hauled off, and slapped him in the face;" that the defendant commenced slapping her, whereupon Searle came, and shoved them apart. Other testimony tended to show that it was the woman who gave the "lie," and that defendant seized her by the arms after she had slapped him in the face. When Searle pushed the defendant and the woman apart,

the men grappled each other, and after a short struggle they fell to the floor, the defendant underneath. While in this position the woman struck the defendant at least twice with a hammer, cutting entirely through his ear, so that it had to be stitched up to keep it together. Mr. Kohler testified that defendant called him twice, saying, "Oh, Kohler, Kohler!" that he ran round, and pulled Searle off, "but he was dead then, or as good as dead; he never spoke another word." The fatal wound was inflicted with a pocketknife; one being in the thigh, partly severing the femoral artery, and another penetrating the heart. As to the stage of the struggle at which these wounds were inflicted,-whether before or after the defendant was struck with the hammer,-the evidence is conflicting. The defendant testified positively that he did not take out or use the knife until he was struck with the hammer, and that he believed that it was necessary to use it to preserve his own life, or to prevent great bodily harm. Lou Kane, on the other hand, testified that she did not strike defendant with the hammer until after Searle cried out that he was cut. There was also other evidence upon this point, not necessary to be noticed in this connection. Under this state of the case, the defendant requested the court to instruct the jury that if the woman joined in the assault upon the defendant with a hammer, or other instrument likely to produce death, or to do great bodily harm, "and the defendant had reason to fear, and did fear, that his life was in imminent danger, or that he was in danger of receiving great bodily harm, at the hands of said Kane and William Searle, the deceased, jointly, and that defendant acted under the influence of such fears alone, and to save his own life, or to prevent his receiving great bodily harm, gave the mortal cuts to the deceased, he was justified, and the jury should acquit." This instruction was refused, and the court, of its own motion, gave the following: "If the jury find from the evidence that the deceased, William Searle, at the time of the homicide charged, made an assault upon the person of the defendant, and violently threw him to the floor, and continued his assault in a violent manner, and the jury find further from the evidence that the deceased, Searle, and the witness Mrs. Kane had a preconceived design, and had agreed together, prior to the inflicting of the wounds that caused the death of the deceased, to jointly assault the defendant, and inflict upon him some great bodily injury, and you further find from the evidence that prior to the infliction of such wounds the said Mrs. Kane, in pursuance of such agreement, joined in the assault upon the defendant with a hammer, or some other instrument or thing in her hands likely to produce death, or to do the defendant some great bodily injury, and did strike the de

fendant on the head with such hammer, instrument, or thing, and the jury find from the evidence that such assault endangered the life of the defendant, or that he was in danger of great bodily harm at the hands of said Kane and deceased jointly, and you further find from the evidence that the defendant had reason for and did fear that his life was in imminent danger, or that he was in danger of receiving great bodily harm at the hands of said Kane and Searle, the deceased, jointly, and that the defendant acted under the influence of such fears alone, and to save his own life, or to prevent his receiving great bodily harm, gave the mortal cuts to the deceased, he was justified, and the jury should acquit. lf, however, you believe from the evidence that there was not any preconceived design or agreements between said deceased and said Mrs. Kane to inflict at the time of said homicide, jointly, upon the person of the defendant, a serious bodily injury, and that the assault or injury, if any, were inflicted by the said Kane voluntarily, and without any design or request by the deceased, and if, in such case, at the time of the infliction of such wounds, the defendant had no sufficient reason to apprehend a design on the part of the deceased to take his life, or inflict upon him great bodily injury, then the defendant was not justifiable."

The court erred in refusing to give the instruction asked for, and in giving the instruction above quoted. It certainly could make no difference to the defendant whether the deceased and Mrs. Kane had a preconceived design, and had agreed together to assault the defendant. If he had reason to fear, and did fear, that his life was in danger, or that he was about to receive great bodily injury, he was not obliged to ascertain whether there was in fact such preconceived design, at the risk of converting what would be a justifiable homicide, if such preconceived design and agreement existed, into murder, if it did not exist. The deceased, by being upon defendant, effectually prevented the defendant from protecting himself against the woman. They were in fact co-operating in the assault, and in the infliction of the injuries, upon the defendant. The assault was first made by the woman. The deceased, whether there had been any prior agreement or not, voluntarily joined in the assault. It may be that he had no intention to inflict any great bodily injury upon the defendant, or to put defendant's life in danger, but he was not justified in assaulting him, or joining in the assault made by the woman; but in either case the deceased and the woman, whether there was a preconceived purpose or not, became mutually responsible, each for the acts of the other, unless some dissent or remonstrance or disapproval was in some manner expressed, either by word or act. Of course, we do not intend to pass upon facts which are alone to be found by the