settlement can only be had in a court of equity, by a proceeding against the executors of the deceased guardian and other necessary parties: Lathrop v. Bampton, 31 Cal. 17; Chaquet v. Ortet, 60 id. 600; Theller v. Such, 57 id. 447; Peck v. Braman, 2 Blackf. 141. But the executors had no authority to institute such a proceeding for settlement in the probate court; and the probate court had no authority to exercise jurisdiction over it: Wetzler v. Fitch, 52 Cal. 639; Bush v. Lindsey, 44 Cal. 121.

Judgment and order reversed and cause remanded.
Ross, J., and MCKINSTRY, J., concurred.

No. 8,351.

PARKER V. CITY AND COUNTY OF SAN FRANCISCO.

In Bank. Filed May 10, 1884.

ACCEPTANCE OF STREETS-SIDEWalks-Roadway.-Judgment affirmed on authority of Bonnet v. City and County of San Francisco, ante, page 832.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The facts in the case are similar to those in Bonnet v. City and County of San Francisco, ante.

William Craig, for the appellant.

C. H. Parker, for the respondent.

THE COURT. On the authority of Bonnet v. City and County of San Francisco, No. 8,350, ante, page 832, judgment this day pronounced, the judgment and order are affirmed.

No. 10,926.

PEOPLE V. KEEFER.

Department One. Filed May 12, 1884.

ACCESSORY AFTER THE FACT-CONCEALMENT OF DEAD BODY.-If a defendant has done no act which would make him responsible for a murder, the fact that he aided in concealing the dead body would render him liable only as an accessory after the fact. For such offense he could not be found guilty under an indictment for murder.

INSTRUCTIONS TESTIMONY OF DEFENDANT.-However incredible the testimony of a defendant in a criminal prosecution may be, he is entitled to an instruction based upon the hypothesis that his testimony is true.

TO CONSTITUTE ROBBERY OR LARCENY THE GOODS MUST HAVE BEEN TAKEN animo furandi. CONSPIRACY TO COMMIT MISDEMEANOR MURDER.---One who simply encourages another to commit a misdemeanor upon the body of a third person, which did not and could not cause death, or any serious injury, is not liable for the murder of such third person by his co-conspirator, when such killing was neither aided, advised nor enc uraged by him, nor involved in nor incidental to any act by him aided, advised or encouraged.

ONCE IN JEOPARDY-NEW TRIAL-MURDER.-A defendant having been once tried upon an indictment for murder, and found guilty of murder of the second degree, who afterwards, on his own motion, has the verdict set aside and a new trial granted him for errors in the admission of evidence, may on such new trial be convicted of murder of the first degree..

APPEAL from a judgment of the superior court for Butte county, entered upon a verdict convicting the defendant of murder, and from an order denying him a new trial. The opinion states the facts.

F. C. Lusk, for the appellant.

Attorney General,for the respondent.

MCKINSTRY, J. Counsel for defendant asked the court to charge the jury:

"If you believe from the evidence that the defendant, James Keefer, was not present when the Chinaman, Lee Yuen, was killed by Chapman, and did not aid and abet in the killing, and that defendant, at the time or prior to the killing had not conspired with Chapman to commit the act, and that he had not advised and encouraged Chapman therein, and that the killing was not done in pursuance of any conspiracy between this defendant and Chapman to rob said Chinaman, and that this defendant only assisted in throwing the dead body of the Chinaman into the creek, then you are instructed that, under the indictment, you must find the defendant not guilty."

It is to be regretted that the foregoing instruction was not given to the jury. Of course, if defendant had done no act which made him responsible for the murder, the mere fact that he aided in concealing the dead body would render him liable only as an accessory after the fact an offense of which he could not be found guilty under an indictment for murder. However incredible the testimony of defendant, he was undoubtedly entitled to an instruction based upon the hypothesis that his testimony was entirely true.

Assuming the testimony of defendant to be true, there was evidence tending to show that no robbery was committed or attempted. In robbery, as in larceny, it must appear that the goods were taken animo furandi; and there was evidence tending to prove that his property was not taken from deceased lucri causa, or with intent to deprive him of it permanently. So also there was evidence tending to prove that defendant was not personally present at the killing, and that the killing was not done in pursuance of any agreement or understanding to which defendant was a party, but that it was done by Chapman without the knowledge, assent or connivance of the defendant.

The testimony of defendant was to the effect that he did not advise or encourage Chapman to follow and tie the deceased. But even if we could be supposed to be justified in deciding the fact; in holding that his conduct conclusively proved-notwithstanding his testimony to the contrary-that he did encourage Chapman in his purpose to follow and tie the deceased, such encouragement would not, of itself, make him accessory to the killing. An accessory before the fact to a robbery (or any other of the felonies mentioned in section 198 of the penal code), although not present when the felony is perpetrated or attempted, is guilty of a murder committed

in the perpetration or attempt to perpetrate the felony: People v. Majors, April 1, 1884. This is by reason of the statute, and because the law super-adds the intent to kill to the original felonious intent: People v. Doyell, 48 Cal. 94. One who has only advised or encouraged a misdemeavor, however, is not necessarily responsible for a murder committed by his co-conspirator, not in furtherance, but independent of the common design: 1 Wharton Cr. Law, section 229 and note.

In the case at bar, if defendant simply encouraged the tying of the deceased-a misdemeanor which did not and probably could not cause death or any serious injury-as the killing by Chapman was neither necessarily nor probably involved in the battery or false imprisonment, nor incidental to it, but was an independent and malicious act with which deefendant had no connection, the jury were not authorized to find defendant guilty of the murder or of manslaughter. If the deceased had been strangled by the cords with which he had been carelessly or recklessly bound by Chapman, or had died in consequence of exposure to the elements while tied, defendant might have been held liable. But, if the testimony of defendant was true-and as we have said he was entitled to an instruction based upon the assumption that the facts were as he stated them to be-the killing of deceased was an independant act of Chapman, neither aided, advised nor encouraged by him, and not involved in nor incidental to any act by him aided, advised or encouraged. The court erred in refusing the instruction.

Notwithstanding defendant's objection, the court permitted the district attorney to ask a witness, the surgeon who had examined the wounds of deceased, "In regard to that cut on the neck—if the Chinaman was struggling, could such a cut have been made?" Conceding, as claimed, it was error to allow the question, the error could not have injured defendant. As stated by counsel for appellant, the contention of the prosecution was that Chapman inflicted the fatal wound while the deceased was perfectly still, and of the defense that it was while Chapman and the deceased were struggling. The answer of the witness to the question was: "It is a wound that might have been made in a scuffle."

The transcript contains no copy of the minutes of defendant's pleas: Penal Code, 1207. It contains, however, a stipulation signed by counsel which refers to a plea of former acquittal. The stipulation also recites that defendant had been tried upon the same indictment in April, 1883, and convicted of murder of the second degree; that on his motion the verdict, guilty of murder in the second degree, was vacated and a new trial granted, because of error at the trial in admitting certain evidence. At the second trial, counsel for defendant requested the court below to charge the jury: "Defendant having been previously tried on this indictment and found guilty of murder of the second degree, he cannot now be convicted of murder in the first degree."

It is urged by appellant that the refusal of the court to give the foregoing instruction was error which would require the reversal of the judgment and order appealed from.

At the second trial defendant was found guilty of murder of the second degree. It is obvious, therefore, that the mere refusal of an instruction that he could not be convicted of murder of the first degree did not prejudice him. Inasmuch, however, as there must be a retrial of this action, it is proper to add that the conviction of murder of the second degree would not have been a bar to a conviction of murder of the first degree. The indictment charges the crime of murder, and the defendant was not acquitted of murder by the first verdict.

In dividing the crime of murder into two degrees the legislature recognized the fact that some murders, comprehended within the same general definition, are of a less cruel and aggravated character than others, and deserving of less punishment. It did not attempt to define the crime of murder anew, but only to draw certain lines of distinction by reference to which the jury might determine, in a particular case whether the crime deserved the extreme penalty of the law or a less severe punishment: People v. Haun, 44 Cal. 98; People v. Doyell, supra.

After the act of 1856, which divided the crime into murder of the first and second degrees, murder remained, and it still remains, the unlawful killing of a human being with malice aforethought: Penal Code, 187, 188. The malice may be expressed or implied; the express intent to kill or to commit one of the named felonies, may be affirmatively established, or the killing being proved, the malice may be implied, but in either case the crime is murder. The fact that a severer penalty is to be imposed in one case than the other, does not change the effect of a previous conviction, and the defendant who, on his own motion, secures a new trial, subjects himself to a retrial on the charge of murder, whether the first verdict was guilty of murder of the first or of the second degree. At the second trial he may, if the evidence justify such verdict, be found guilty of murder of the first degree.

Judgment and order reversed and cause remanded for a new trial.

Ross, J., concurring. As there was testimony tending to show that defendant was not personally present at the killing, and that the killing was not done in pursuance of any agreement or undertaking to which defendant was a party, I agree that the court below erred in refusing to give the instruction first set out in the opinion of Mr. Justice McKinstry, and therefore concur in the judgment. I also agree with what is said in the opinion upon the last point discussed.

MCKEE, J., concurred.

8,453.

MOFFATT v. Cook.

Department Two. Filed May 13, 1884.

THE TIME FOR PREPARING AND FILING A BILL OF EXCEPTIONS MAY BE EXTENDED by the court thirty days in addition to the ten days allowed by section 659 of the code of civil procedure.

MOTION to dismiss an appeal from the superior court for the city and county of San Francisco. The opinion states the facts.

Mastick, Belcher & Mastick, for the appellant.

John C. Burch, for the respondent.

THE COURT (Thornton, Sharpstein and Myrick, J. J., concurring.) Motion to dismiss appeal of defendant from an order denying his motion for a new trial.

The court did not exceed the power given to it by section 1,054, C. C. P., in extending the time of defendant to prepare and serve the bill of exceptions filed in his case, thirty days in addition to the ten days for preparing and serving such bill allowed by section 650 of same code: See also section 650 C. C. P.

Motion denied.

No. 9,274.

MORGAN v. MENZIES ET AL.

In Bank. Filed May 14, 1884.

DEMAND, WHEN MUST BE MADE AND AVERRED. Where a demand is necessary to fix the liability of sureties on an undertaking, it is parcel of the contract, and must be made before the commencement of an action for the breach of the undertaking, and in the action itself it must be averred and proved. It cannot be made after the commencement of the action, except as the basis of a new action.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendants. The facts are stated in the former opinion, reported in 60 Cal. 341.

W. H. Sharp, for the appellant.

Burnett and Haft, for the respondents.

MCKEE, J. On a former appeal in this case we held that no recovery could be had in the action out of which the case arises, because there was no averment and no proof that the claim of the plaintiff had been presented to the board of supervisors of the city and county of San Francisco, as required by the statute of 1863-4, pp. 152-3, and payment demanded; and because the undertaking itself, upon which the action was founded, was in contravention of law and void; therefore, the judgment appealed from was reversed and the cause remanded: 60 Cal. 341.

When the remittitur went down and was filed in the lower court, the plaintiff amended his complaint, and, subsequently, filed a sup plemental complaint containing the averments, that he had presented