Commissioners' decision. Department 2. Appeal from superior court, Modoc county; C. L. Claflin, Judge.

J. G. Crowl was convicted of assault with intent to rape, and appeals. Affirmed.

Goodwin & Stewart and W. N. Goodwin, for appellant. E. E. Copeland, D. W. Jenks, and Atty. Gen. Hart, for the People.

SEARLS, C. J. G. Crowl, the appellant, was indicted for the crime of an assault with intent to commit rape upon one Ida Trybschenck, a female child under 10 years of age, and upon trial was convicted as charged. The appeal is from the judgment, and the cause comes up on the judgment roll, without any bill of exceptions. At the trial the court, at the request of the prosecution, among other instructions to the jury, gave the following: "No. 3. A presumption is a deduction which the law expressly directs to be made from particular facts; and, unless this presumption is controverted by other facts, the jury is bound to find according to such presumption. Among such presumptions are the following: (1) That an unlawful act was done with an unlawful intent. *** No. 4. An intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots nor lunatics, nor affected with insanity. No. 5. The jurors are the sole judges of all questions of fact, and of the credibility of witnesses. But you are not at liberty to disbelieve the evidence as jurors, if you believe it as men. You are not to throw aside any considerations connected with the testimony, which would be brought to bear in your judgment as men, simply because you are now jurors. While you are to be prudent and cautious, and to give the defendant the benefit of every reasonable doubt, you are not to hesitate in the performance of your duty by reason of any peculiar method of considering testimony or evidence, which you may think belongs to you as jurymen, but which would not belong to you as men. If you are entirely satisfied from the evidence of the guilt of the defendant, your verdict should be 'Guilty.' * * No. 7. If the evidence entirely satisfies you of the guilt of the defendant, you can have no choice, but must find him guilty. Following the pathway of the evidence, you can turn neither to the right nor to the left, but must accept the conclusions to which the facts lead; and you should remember that it is not the juror, but the law, that inflicts the punishment.

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No. 9. If the facts entirely satisfy you of the defendant's guilt, you must convict him. In such case no consideration of pity or mercy can influence you. With the consequences which may attend conviction you have nothing to do. They rest upon others." Appellant argues that these instructions do

not correctly enunciate the law as applicable to the case.

Instruction No. 3 is taken almost bodily from sections 1959, 1961, and subdivision 2 of section 1963 of the Code of Civil Procedure, and was alike law and applicable to the case in hand. The instruction did not relate to deductions of fact which are to be drawn by the jury, but to presumptions of law which come within the province of the court. The instruction is not inimical to the doctrine of People v. Walden, 51 Cal. 589; Stone v. Mining Co., 52 Cal. 318; and Scott v. Wood, 81 Cal. 405, 22 Pao. 871.

The fourth instruction, as to intention, was correct, and did not, as appellant argues, assume any fact. It embodied a legal principle applicable to all persons charged with crime.

The fifth, seventh, and ninth instructions related mainly to the duties of jurors in the consideration of criminal cases. Unless there is an apparent necessity therefor, it would seem better in all cases for the prosecution to rely upon the good sense of jurors to do their duty under such circumstances, subject to such explanations as to the scope of their responsibilities as may properly come within its sphere in the argument of the cause. The tendency to ask too many instructions, on the part of the prosecution, is everywhere apparent. We cannot say the instructions now under consideration are positively erroneous, but, at the same time, think it would have been better to have omitted them.

The tenth instruction, which we have not set out, is an exact copy of the instruction given in People v. Cronin, 34 Cal. 195, in relation to the effect to be given to the testimony of a defendant when a witness in his own behalf, and found on pages 195 and 196 of that case. The objection to this instruction has been often made, and as often overruled. It matters not what our views would be on the subject, were the question here for the first time. Repeated adjudications have placed it beyond the realm of discussion. The judgment appealed from should be affirmed.

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

PER CURIAM. For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

(100 Cal. 372)

THELIN v. STEWART et al. (No. 19,234.) (Supreme Court of California. Nov. 29, 1893.) PLEADING-COMPLAINT-MISJOINDER OF CAUSES OF ACTION-APPEAL-OBJECTIONS WAIVED. 1. Code Civil Proc. § 427, authorizes plaintiff to "unite several causes of action in the same complaint where they all arise out of * (6) injuries to person; (7) injuries to property," and provides that "the causes of action so united must all belong to only one of these classes." Held, that plaintiff cannot join in the same complaint a cause of action for forcing the noxious fumes of chemicals into plaintiff's shop, to the injury of his health, and

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tive or heir of the deceased is a new one in this state, but the statute of New York bearing upon this matter is similar to the provision of our Code of Civil Procedure, and the decisions of the courts of that state furnish us ample light in the form of precedent. The Code of Civil Procedure of New York (section S36) provides that the privilege is present unless "expressly waived by the patient." The California provision contains the words, "without the consent of his patient." It will thus be seen that the provisions are, in effect, the same. The courts of New York, under this clause of the statute, have uniformly held that the patient alone can waive the privilege, and when such patient is dead the matter is forever closed. Westover v. Insurance Co., 99 N. Y. 56, 1 N. E. 104; Renihan v. Dennin, 103 N. Y. 573, 9 N. E. 320; Loder v. Whelpley, 111 N. Y. 239, 18 N. E. 874. The decisions of the appellate courts of Michigan, Missouri, and Indiana support respondent's position in this regard. Morris v. Morris, 119 Ind. 341, 21 N. E. 918; Groll v. Tower, 85 Mo. 249; Thompson v. Ish, 99 Mo. 160, 12 S. W. 510; Fraser v. Jennison, 42 Mich. 206, 3 N. W. 882. But the statutes of those states regarding privileged communications vary quite materially from those of New York and California, and, as is said in Thompson v. Ish, supra: "The difference in the statutes may well cause the difference in the rule laid down in New York and Missouri.”

Under the facts of this case we are not called upon to even apply the strict rule laid down by the New York authorities. The contest here arises upon the probate of a will as between the surviving widow, a devisee thereunder, and the heir, a child of the deceased by a former marriage. As yet there is no personal representative in the case, as no executor or administrator has been appointed. The cases cited from various states, with the exception of Thompson v. Ish, only go to the extent of the right of the personal representative to waive the privilege. In this case we have no personal representative, and the contest arises between the devisee and the heir. All of the courts concede the privilege does not lapse with death, hence it is coupled with the evidence when offered at the trial. Who has the power to waive it? Can the heir waive it, as against the objection of the devisee? That is the thing done in this case, and we think the action of the court cannot be sustained. It cannot be said that the heir is representing the deceased, for the heir is attempting to overthrow the will, and offers this evidence of the attending physician, over which the privilege rests, for the very purpose of attacking the mental soundness of the patient. Such is not the representative of the deceased referred to in the various decisions of the courts. This provision of law rests upon a sound public policy. Its object and purpose is to enable the patient

to make a full statement of his physical infirmities to his physician, with the knowledge that the law recognizes the communications as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure. To him the considerations are even more weighty that the privilege remain inviolate after he has gone to his grave, for his good name is left behind deprived of his protecting care. His rights are not buried in the grave, and heirs and devisees quarreling among themselves over a division of his patrimony in justice to his memory should not be allowed to waive the privilege.

The attending physician, Dr. McLean, while upon the witness stand, was also asked a hypothetical question as to his opinion, as an expert, of the patient's mental soundness, based upon a state of facts describing the deceased's physical condition, as testified to by the doctor himself. The question asked was purely hypothetical, and we think the objection thereto was properly overruled. The fact that the condition of the patient, as described in the question, was personally known to the witness, is immaterial. He was questioned as an expert upon matters presented to him in the abstract, and his opinion in either case would necessarily be the same, for the state of facts was the

same.

As evidence tending to prove undue influence upon the part of the devisee, Mrs. Flint, in the execution of the will, the contestant, under objection, proved that, in the summer of 1882, Mrs. Flint, then Miss Annie Gorsig, accompanied the deceased upon a camping excursion, and at that time was introduced as Mrs. Flint. The purpose and tendency of this evidence was to establish illicit relations between these parties, and, viewed in that light, it must have prejudiced appellant's cause in the minds of the jury. The will was executed nine years after this event, and, standing alone as an isolated circumstance, disconnected with any chain of subsequent events passing down to the time of its execution tending to show an exercise of undue influence by appellant upon the testator's mind, we think the evidence objectionable, as entirely too remote to reach the only object for which it could be admissible, to wit, as tending to show undue influence. At that time the testator was not divorced from his first wife. He was not married to his present wife until six years later, and the will was not executed until three years subsequent to this marriage. The only effect the testimony could have had was to besmirch the character of appellant, and her character was not an issue in the case. While a court is allowed a liberal discretion in admitting evidence as to the relations existing between the deceased and the party charged to have exercised the undue influence, yet an isolated circumstance, such as is depicted by this evidence,

wholly fails in enlightening the jury upon the question. The testimony of McDonald and Paine, as to appellant being in the company of the testator, upon two other occasions, we think immaterial. It is scarcely sufficient even to justify an inference of unlawful relations between the parties. The ule is well settled that a woman living in illicit relations with a testator at the time he executes his will is not allowed to exercise her influence in the execution thereof to the extent that a wife is entitled. But here the evidence offered is isolated circumstances, entirely disconnected, as far as the record discloses, with events surrounding the latter years of the testator's life; and, beyond all this, the woman was his lawful wife at the time of the execution of the will, and had been such for three years prior thereto. Conceding indiscretions to have been committed by these parties at this time, such evidence wholly failed to show any undue influence at a time many years after, for in the interim the parties were married, and she had been a lawful wife for years. The foregoing views are fully supported in Webber v. Sullivan, 58 Iowa, 260, 12 N. W. 319; Batchelder v. Batchelder, 139 Mass. 1, 29 N. E. 61; Pierce v. Pierce, 38 Mich. 418.

Contestant closed his case without offering any evidence as to the value of testator's estate. Evidence bearing on the question was then offered by the surviving widow, but under objection was ruled out. The ruling was erroneous. It is well settled that the amount and condition of the testator's estate is always an element to be taken into consideration in determining the mental capacity of the testator, and the influences which actuated his mind in disposing of his property. If it is good evidence for the contestants of a will, for the purpose of showing that the devises and bequests to his beneficiaries are unreasonable and unjust, as compared to the value of his estate and his relationship to the parties, thus indicating mental incapacity or undue influence, it is equally good evidence in favor of the supporters of the will for the purpose of showing a fair and reasonable allotment of his property to the parties entitled to his bounty, as indicating mental soundness, and a mind cntirely free from all improper influences.

The tenth paragraph of testator's will reads: "I give, devise, and bequeath to Arthur Joshua * * *. The witness Mason testified that when the will was signed he I called the testator's attention to this omission, and the deceased then said to let it go; that if he made a codicil he would then put something in the codicil for him. As bearing upon this matter, the court gave the following instruction: "Again, if you find from the evidence in this case that testator, William C. Flint, on said 5th day of January, 1891, when he signed said proposed will, omitted from the provisions thereof bequests which he desired to make, the court instructs v.34P.no.11-55

you that said proposed will was incomplete, and not the complete will of said testator, William C. Flint, and not his will." The instruction is erroneous; but, inasmuch as no issue was presented to the jury embodying the matter embraced within the instruction, the error would seem to be harmless.

Mrs. Lizzie Haggard was the nurse of the deceased at the time he executed his will, and she kept a record of the events transpiring at his sick bed while she was present. Upon cross-examination, contestant, under objection, offered this record in evidence. Its admission should not have been allowed. There was no question involved as to the right of the witness to refresh her recollection from the record, but it was offered as an independent piece of evidence in the case. It is difficult to see the purpose of the offer, for the witness was upon the stand, ready to testify as to all competent and material matters occurring at the times she was engaged in the sick room. A contest arising upon the probate of a will is a civil action, within the meaning of subdivision 4 of section 1881 of the Code of Civil Procedure. Neither can we give the stipulation entered into by the respective attorneys the scope and force contended for it by respondent's counsel. The order denying a new trial is reversed, and the cause remanded.

1. When, on petition to sell land of deceased for the payment of debts, notice is given to persons interested as provided by Code Civil Proc. 1539, and thereafter an order refusing such sale is reversed on appeal, and the proceeding remanded for a new trial, the notice required by said section need not be again given; but the court, in the exercise of a sound discretion, may dispose of the petition on such notice as may be provided by its general rules, or as it may deem reasonable, provided the parties interested are not deprived of a hearing.

2. An order settling an executor's account, allowing a claim included therein, of a third person, for services rendered the estate, and adjudging that there is no money in the executor's hands to pay such claim, is conclusive on devisees not under disability, who do not appeal, and they cannot attack it on an application for the sale of land to pay such claim.

3. On an application for the sale of decedent's land to pay a claim for services to the estate, an agreement between the devisees made prior to the performance of such services, and fixing a certain sum as then due the administratrix on the settlement of account, is inadmissible.

4. On a petition for the sale of decedent's land to pay a debt due petitioner, a claim that the debt had been paid by petitioner's use and occupation of a portion of the estate is a counterclaim, which must be pleaded.