ted to the jury, and upon them plaintiff's counsel asked the court to hear proofs upon which to prepare additional findings; but the request was denied, and upon the special verdict alone the court refused to revoke the probate of the will, and gave judgment accordingly. The refusal to take testimony, and to make findings upon the other questions at issue, was erroneous. Besides, the judgment and order denying the motion for a new trial are erroneous, because the special verdict does not support the judgment, and the evidence does not sustain the verdict.

The first finding by the jury is immaterial; the second and third are findings of law. It is admitted that the fifth finding is not sustained by the evidence; and the record shows that the court erred in its rulings, as to the only evidence upon which the fourth finding is based; and that the finding itself is not sustained by the evidence. It appears by the record that on June 20, 1879, Nicholas Jelletich made his will. At that time he was a widower, about 43 years of age. By the will he devised all his property, except a sum of money, to his then only son, John Jelletich, a boy 14 years old. Soon after making his will he left Amador county, where he resided, and went to Austria. There he married, and in October, 1878, returned to Amador county with his wife, Catterina Jelletich, who afterwards bore him two children. It does not appear that at the time of the marriage, or at any time thereafter, he made any provision for his wife by a marriage contract, and the will of June, 1878, contained no mention of her name, nor any provision for her or her children. He and his wife with the two children resided in Amador county until October 20. 1881. On that night his dwelling was burned, and he, his wife, and the two children perished in the fire.

The petitioner claims and the jury found that in that calamity the wife survived her husband. As a surviving wife, for whom no provision had been made by her husband in his life-time, and of whom no mention was made in his will to show that he did not intend to make any provision for her, the will, made before her marriage with him, was revoked by operation of law, (section 1299, Civil Code;) and the court should have instructed the jury to that effect. It is the policy of the law that wife and children must be provided for. Therefore the Civil Code declares that where an unmarried person has made a will and afterwards marries, the marriage, whether followed by the birth of issue or not, operates in case of the survival of wife or children, if any, as a revocation of the will, unless some specific provision has been made by the will itself or by a marriage contract, for the surviving wife, or by some settlement or provision for any surviving children of the marriage. Sections 1298, 1299, supra. The law presumes that the subsequent marriage of a testator has wrought such a change in his condition in life as to cause him to destroy or cancel a previous will; and does not admit of evidence to the contrary unless provision has been made according to law for wife

and children who have survived him. Id. The presumption of revocation, however, depends upon the question of survivorship. Survival of the children is not claimed; but the paramount question at issue was the survival of the wife. If the wife survived, under the conditions referred to, the will was revoked by law, and, as to her, the husband died intestate. If the husband survived, his will was valid and probatable. To prove survivorship of the wife, the petitioner gave in evidence the order of the probate court granting him letters of administration of the estate of Catterina Jelletich, deceased. That order was as follows: "* It is ordered that letters of administration of the estate of the said Catterina Gelletich, known under the name of Catterina Jelletich, deceased, the surviving wife of Nicholas Jelletich, deceased, be issued to the said petitioner, W. Boon Sanders, the public administrator of said Amador county, upon his taking the oath according to law. Dated October 30, 1882.'

In rebuttal the defendant offered to introduce evidence upon the question at issue, but, without requiring him to state what his evidence was, the petitioner objected to the introduction of any evidence upon the question, and the court sustained the objection. There was, therefore, no other evidence before the jury of the survival of the wife than the order of the probate court. And the ruling of the court in excluding any other evidence is sought to be maintained on the ground that the recital in the order, that the deceased Catterina was "the surviving wife of Nicholas Jelletich, deceased," is conclusive, and estops the defendant from denying the fact. But the order only adjudged the right of the petitioner to letters of administration upon the estate of Catterina Jelletich, deceased. That adjudication, being made by a court that had jurisdiction of the estate, real or personal, of which the decedent died seized, would be, undoubtedly, in any controversy thereafter involving the question of administration, at least, prima facie evidence of the essential facts upon which it was made,namely, the domicile and estate, death and intestacy of the decedent. But it would not be evidence that the decedent survived any other person to whom she may have borne in her life-time some domestic relation, because that was not a fact essential to the jurisdiction of the court, nor a question at issue in the proceedings for letters of administration. In that proceeding the question was not raised, tried, or determined. It was raised for the first time in this proceeding,a proceeding entirely different from the one in which the order was made; and the question was provable, not by an order made in a proceeding in which it was not raised, but by evidence aliunde. Garwood v. Garwood, 29 Cal. 515; Ferrea v. Chabot, 11 Pac. Co. L. J. 514. As this order was the only evidence before the jury, upon which, by the rulings of the court, their verdiet was founded, there was no evidence to sustain the finding. And it is against law. For "when two persons perish in the same calamity, and it is not shown. who died first, and there are no particular circumstances from which

it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age, and sex, according to certain rules, one of which is: If both be over fifteen, and under sixty, and the sexes be different, the male is presumed to have survived." par. 40, § 1963, Code Civil Proc.

Order reversed, and cause remanded for a new trial.

We concur: MOKINSTRY, J.; Ross, J.

Sub. 4,

PEOPLE. MAJORS.

Filed February 12, 1884.

An appeal will not lie from a judgment upon a plea of former judgment of conviction, nor from an order denying a motion for a new trial.

Two men being murdered in furtherance of a conspiracy, each conspirator was guilty of the murder of each of the victims, and conviction of the killing of one is no bar to a prosecution for the killing of the other, even though both men were killed at the same time and place.

Department 1.

The Attorney General, for respondent.

J. B. Lamor, for appellant.

Ross, J. To an information filed August 27, 1883, charging the defendant with the murder of one Archibald McIntyre, in Santa Clara county, on the eleventh day of March, 1883, defendant, without a plea of not guilty, pleaded a former judgment of conviction of the same offense. Upon the plea so interposed a trial was had, and a verdict rendered for the people. Defendant then moved in arrest of judgment, and also made a motion for a new trial, both of which motions were denied by the court, and thereupon judgment was given against him on the plea. He appeals from the judgment, from the order denying his motion in arrest of judgment, and also from the order refusing him a new trial.

It is clear that there is no authority for the appeal from the judgment, nor for that from the order denying the motion in arrest of judgment. Sections 1237 and 1259 of the Penal Code read:

"Sec. 1237. An appeal may be taken by the defendant: (1) From a final judgment of conviction; (2) from an order denying a motion for a new trial; (3) from an order made after judgment, affecting the substantial rights of the party.

"Sec. 1259. Upon an appeal taken by the defendant from a judg

ment, the court may interview any intermediate order or ruling involving the merits, or which may have affected the judgment."

Such orders and rulings made prior to the judgment, and involving the merits, or which may have affected the judgment, from which an appeal is not in terms given, can only be reviewed on appeal from the final judgment of conviction. People v. Clarke, 42 Cal. 622. Section 1237 does not give an appeal from an order denying a motion in arrest of judgment. The appeal from the order is therefore without authority, and must be dismissed. So, too, with respect to the appeal from the judgment upon the plea of former conviction. It is obvious that such a judgment is not "a final judgment of conviction." It only determines that the defendant has not been previously convicted of the offense of which he now stands charged, leaving the question of his conviction or acquittal open, to be determined after a trial.

66

The appeal from the order denying defendant's motion for a new trial of the issue raised by his plea of former conviction, remains to be considered. On the trial of that issue it was made to appear in evidence that the defendant was a defendant to an information filed in the same court on the thirty-ninth of March, 1883, charging Joseph Jewell, John Showers, and Lloyd L. Majors with the murder of one William P. Renowden, in the county of Santa Clara, on the eleventh of March, 1883; that under that information defendant was duly convicted and adjudged guilty of murder in the first degree, and sentenced to life imprisonment in the state prison; that the facts established by the evidence given on that trial, and upon which defendant was convicted, were: "That said Lloyd L. Majors counseled and advised one Joseph Jewell to rob one William P. Renowden, living near Lexington, in the said county of Santa Clara, on the eleventh day of March, 1883; that on said day said Jewell repaired to said Renowden's home, taking with him one John Showers; that said Jewell and Showers unexpectedly found at the house of said Renowden one Archibald McIntyre, who was then residing with said Renowden; that, in the attempt to carry out the design of robbery, both said Renowden and said McIntyre were then and there, at the same point of time, to-wit, about 6:30 o'clock P. M. of the eleventh day of March, 1883, killed by said Jewell and Showers; that said Majors was not present; neither did he personally participate in the said act of killing said Renowden and McIntyre, or either of them, except counseling and advising said Jewell to commit said robbery as aforesaid;" and it was further made to appear in evidence in the court below, that the facts above recited "are to be adduced and proven in support of the information now pending, to which the said Lloyd L. Majors has pleaded a former conviction, should the same be put in issue by a plea of not guilty."

The proposition of appellant's counsel is that as Renowden and McIntyre were killed at the same place, and at the same point of time,

by Jewell and Showers in the attempt to rob Renowden, the killing "was, on the part of Jewell and Showers, one physical act,-one mental effort," and therefore a conviction for the murder of Renowden bars a prosecution for the murder of McIntyre. For the purposes of this case we need only say that we do not find counsel's premise supported by the facts disclosed by the record. Because Renowden and McIntyre were killed by Jewell and Showers at the same place, and at the same point of time, it by no means follows that their death was caused by "one physical act, one mental effort." As is well said by the district attorney, Showers may have brained one with a shot-gun, in the house, while Jewell shot the other with a pistol through the heart, in the yard. Both were murdered in the execution of a conspiracy entered into for the purpose of robbing one of them. The act of each conspirator in furtherance of that design was the act of each and every of the others. Each was guilty of the murder of each of the murdered men, and, of course, subject to prosecution therefor. We think this very clear.

3

Appeal from the judgment and from the order denying the motion in arrest of the judgment, dismissed, and order denying the defendant's motion for a new trial affirmed.

Where the action involves the title of the land described in the pleadings, and the court decides that the plaintiff has no cause of action against the defendant, the defendant is entitled to his costs and disbursements in the action.

Department 1.

Cross & Simmonds, for appellant.

W. D. Long and J. M. Walling, for respondent.

MCKEE, J. This was an action to determine the title of the plaintiffs to certain parcels of land described in the complaint, and to enjoin the defendant from trespassing upon the same, and from asserting any title thereto. The court found that the plaintiffs were owners of only a portion of the land, and that they were not entitled to any relief. Upon this finding a temporary injunction, which had been issued in the case, was dissolved, and judgment was entered in favor of defendant "for costs and disbursements incurred on account of'