It is vigorously insisted that the following portion of the given instruction defining murder of the first degree does not involve a correct statement of the law on that subject, and that the defendant was thereby greatly prejudiced: "It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer; and if such is the case, the killing is murder of the first degree", etc. This instruction, as thus phrased, was criticised by the supreme court in the case of the People v. Maughs, 149 Cal. 253, for the reason that there was an omission to insert therein, immediately following the words, "preceded by", the words, "and the result of", so that the instruction would have read, "It is only necessary that the act of killing be preceded by and. the result of a concurrence of the will", etc. But the court in that case does not say that the instruction as given here amounts to such error as to require a reversal, and it is our opinion that it is not. We readily recognize the soundness of the logic at the bottom of the criticism of the instruction in the Maughs case, and must as readily concede that the inclusion of the omitted words referred to would render the description of the crime of murder of the first degree clearer and more easily understood by jurors; yet, in view of the evidence in this case that the defendant, just prior to the shooting, was seen walking back and forth from a point on Third street to the corner of Third and I, near which Lee Tong was shot and killed, and that two men were engaged in the shooting and that, immediately upon the cessation thereof, they fled with unusual celerity in different directions from the spot at which the homicide took place, thus strongly tending to show that the shooting and the killing, by whomsoever done, was deliberate, premeditated and wilful, and no element of self-defense appearing from the proven circumstances, we think the jurors must have understood from the instruction that, if the defendant had deliberately and premeditatedly formed the will to slay the deceased, and did thereupon slay him, such slaying must have been the result of the will or intention so formed, and that, under such circumstances only could they find him guilty of murder of the first degree. It may be remarked that the judgment of reversal in the Maughs case, supra, was expressly put upon the ground that the instruction to the effect that it is the duty of a person taking life in self-defense, when attacked, to "employ all reasonable means within his power, consistent with his safety, to avoid the danger and avert the necessity for the killing", was prejudicially erroneous.

Other errors are claimed with reference to instructions given and refused, but they are not of sufficient importance to demand special notice here.

We have extended this opinion to a much greater length than we had intended; but the briefs of the appellant are voluminous and exhaustively argue from appellant's standpoint every question upon which a reversal of this cause was thought to be justified, and we felt that under such circumstances all the main propositions should be to some extent specially reviewed.

We have examined the record with care, and as a result are convinced that the defendant was fairly tried, the court's charge, as a

whole, full, clear and correct, and that the verdict is warranted by the evidence.

For the reasons herein given, the judgment and order appealed from are affirmed.

We concur:

CHIPMAN, P. J.
BURNETT, J.

HART, J.

Civil No. 674. Second Appellate District. July 21, 1909. F. E. PROUD, Plaintiff and Respondent, v. THOMAS STRAIN, Defendant and Appellant:

ACTION FOR GOODS SOLD AND DELIVERED-CONTRACT OF SALE-SUBSTITUTED ORAL AGREEMENT FOR WRITTEN COMMISSION CONTRACTPLEADING AMENDMENT ALLEGING ABROGATION-EVIDENCE-PROOF OF ABROGATION UNNECESSARY.-Where, in an action for goods soid and delivered, the plaintiff sues on an oral contract of absolute sale, and the defendant sets up the defense of a written contract for the delivery of the goods for sale on commission, and the court, upon objection, as a condition precedent to the admission in evidence of the terms of the oral contract, requres an amendment to the com plaint alleging the abandonment of the written contract, a finding of such abandonment is unnecessary to sustain a general verdict in plaintiff's behalf.

ID.—ID.—ID.—ID.—ID.-PROOF OF NEW CONTRACT-WAIVER OF OLD CONTRACT. Such new oral obligation created by the absolute sale abrogated the commission contract, and evidence of the creation of the new contract is evidence of the waiver of all rights under the latter.

ID.-ID.-ID.-ID.-ID.-ACTS AS PROOF OF ABANDONMENT.-The intention to abandon an old agreement and substitute a new one may be implied from the act of the parties, in the absence of any express statements of such an intention.

ID.-VERDICTS AGAINST WEIGHT OF EVIDENCE-ACTION OF TRIAL COURT--APPEAL.-The action of the trial court in the application of the rule, that the trial judge should set aside a verdict, if satisfied that it is against the weight of the evidence, is conclusive on appeal. Appeal from the Superior Court of Orange County-Z. B. West, Judge.

For Appellant-G. E. Harpham.

For Respondent-E. J. Marks, H. C. Head, R. Y. Williams.

Action for goods soid and delivered. Judgment for plaintiff, and defendant appeals from the order of the trial court denying his motion for a new trial.

From the bill of exceptions in the record it appears that plaintiff went to trial on a complaint which alleged the sale and delivery by plaintiff to defendant, at the latter's request, between March 22 and May 11, 1906, of a certain quantity of cabbage at an agreed price, the payment of a part of said price and the non-payment of a balance of $667.09; the same matter was stated as a second cause of action for the same sum upon a quantum valebat count. The complaint also alleged seven other causes of action, doubly stated in the same manner, based upon sales of cabbage made to defendant by seven different persons who had assigned their respective claims

therefor to plaintiff. All of said sales took place between March 19 and June 27, 1906. The aggregate of unpaid balances in the several causes of action being stated at $2141.41, for which a judgment was asked. Defendant answered, denying that any sales of cabbage had been made to him by plaintiff or any of his assignors, and alleged that all the cabbage mentioned in the several causes of action was received by him under and by virtue of several and distinct agreements in writing made by defendant with the plaintiff and each of his said assignors, each of winch writings was in substance as follows: "I agree to sell my cabbage for the season of 1906 through Thomas Strain, he to receive 10% (ten per cent.) and cost of crating and loading as compensation for marketing same." These writings were each set out in full in the answer, showing the signature of plaintiff and his assignors thereto, and the dates thereof, respectively, range from February 13, 1906, to March, 1906.

When plaintiff attempted to introduce evidence of the terms of the sale of the cabbage to defendant, at the trial, the defendant objected on the ground that the answer would be incompetent if it attempted to vary the terms of the written agreement set out in the answer, and on the further ground that it was not the best evidence, because the written contract set up in the answer was the best evidence of this. Plaintiff then offered to prove a sale of the cabbage, as alleged in his complaint, to Thomas Strain entirely separate and distinct from the agreement set out in defendant's answer. Whereupon, defendant objected to the introduction of any evidence as to the terms of any agreement to sell, or sale, other than the written agreements set out in defendant's said answer, and the court sustained this objection and required plaintiff to amend his complaint by alleging the abandonment or setting aside of the contract set out in defendant's answer before he could offer any evidence as to any other sales. This allegation was inserted under the ruling of the court, and it is contended by appellant that there is no evidence to support the special finding in plaintiff's favor en this issue, or the finding in plaintiff's favor on this element of his case, implied by the general verdict for plaintiff.

Plaintiff's cause of action did not rest upon the writing, or the cancellation of the writing, which the court required hun to allege was set aside and abandoned, but upon a sale of the cabbage to defendant. The contract sued on by plaintiff was not an alteration of the writing pleaded in defendant's answer, but an entirely new and distinct contract. The pleadings as originally framed raised the issue, whether the contract pleaded by plaintiff or that pleaded by defendant should determine the rights of the parties. It was not necessary that there should be an express destruction, cancellation or setting aside of the first contract in order that plaintiff might state a cause of action under the new. We do not regard the allegation thus thrust into the plaintiff's pleading, or a tinding thereon in his favor, as necessary to sustain the verdict in his behalf. Taking the complaint, however, as amended by order of the court, the allegation that a new obligation has been substituted for the

old finds support in the evidence. The new oral obligation created by the absolute sale of the cabbage to the defendant abrogated the commission contract, and evidence of the creation of the new contract is evidence of the waiver of all rights under the commission contract by defendant. He could not while making an absolute purchase of the cabbage say that the old contract was still in force as to the very cabbage which he was buying. To such a new agreement, substituted for an existing written agreement, section 1698 of the Civil Code has no application. (Pearsall v. Henry, 153 Cal. 314, p. 325.)

Appellant's three points made, to wit: that there was no evidence to sustain a finding that the commission contract was set aside, that there was no evidence of any sales made by plaintiff and his assignors to defendant, and, that there was no evidence to show that other agreements of sale were substituted for the commission agreements, are all included in the one question, "Was there a sale of the cabbage to defendant?" The evidence as to the waiver of all rights of defendant under the commission contracts (if he acquired any rights thereby) need not be in the nature of an express agreement. While the instructions given by the court at the request of the defendant, and the requirement of the court that the plaintiff amend his complaint so as to allege formally that the commission agreement was set aside and abandoned by the agreement of the parties, gives some color to appellant's contention that the trial court intended by its instruction to require the proof of a formal agreement to abrogate or abandon, yet we do not think this is the necessary construction of the language of the instruction. There is nothing in the instruction inconsistent with the construction placed thereon by the jury by their special finding, to wit: that the intention to abandon the old agreement and substitute a new one might be implied from the acts of the parties, even in the absence of any express statements of such an intention by the parties. Under this view, there is abundant evidence to sustain a finding that there was a sale of the cabbage to defendant as distinguished from a delivery to him to be sold on commission, and from this the inference might well be drawn that the commission agreement was abandoned.

Plaintiff and each and every of his assignors testified that he sold the cabbage to the defendant. While the testimony may be in the form of a conclusion, the form of it was not objected to when given. Each of the parties to the respective writings testified, in substance, that nothing was ever done under the original agreement. Again, none of the written statements of account made by defendant to the parties delivering the cabbage, which were rendered before this action was brought, showed any charge either for commission, crating, or loading, while on the day following the service of the summons regular account sales on a commission basis, with deductions for commissions, crating and loading, were forwarded to those to whom the ordinary statement of account, such as might have been made in case of a straight sale, had been previously rendered. That defendant explained why the first statements were so made

out, and expressly denied that he had purchased any of the cabbage or accepted it in any manner, except under the writings pleaded in his answer, does not affect the question as this court must consider it. His testimony only raised a conflict in the evidence and the jury decided this in favor of plaintiff.

The rule invoked by appellant, that the trial judge should set aside the verdict if satisfied that it is against the weight of the evidence, is one that can be urged only in the trial court. The conclusion of the trial judge on the application of that rule is final. There is no review here for an abuse of discretion in that respect. This court will not inquire into the question of fact for the purpose of ascertaining where the preponderance of evidence lies. No prejudicial error being presented by appellant, the order is affirmed.

We concur:

ALLEN, P. J.

SHAW, J.

TAGGART, J.

Crim. No. 115. Second Appellate District. July 14, 1333. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. W. F. CORD, Defendant and Appellant. CRIMINAL LAW-MURDER-EVIDENCE-DYING DECLARATIONS-BELIEF OF IMPENDING DEATH NOT SHOWN.-Dying declarations in reference to the commission of the crime of murder, leading to the death of the declarant, are not admissible against a defendant charged with such crime, in the absence of any circumstances, acts or conduct of the deceased, which indicates his physical condition or the state of his mind as to what the immediate resuit of the injury would be, except that contained in the declaration, which shows that whatever was said by the deceased, other than statements suggested by the district attorney, related to his expectation and hope of ultimate recovery and not to his immediate death.

ID. DYING DECLARATIONS-EVIDENCE-RULE OF ADMISSIBILITY.— To render a dying declaration admissible, the evidence inust establish as a fact the existence of the physical condition which, according to the statute, the declarant must believe to exist.

ID.—ID.—ID.—BELIEF OF IMPENDING DEATH--QUESTION OF LAW AND OF FACT-DUAL FUNCTION.-The question as to whether or not a statement made by a dying person is made under a sense of impending death is, first for the court to determine as a question of law, as one of the primary facts affecting its admissibility, and when admitted, it is for the jury to determine the weight and credit to be accorded to it.

INFORMATION OBTAINABLE

ID. EVIDENCE- BAD REPUTATION FROM THREE PERSONS- -ORDER STRIKING OUT ERRONEOUS.-Where a character witness shows his qualification, it is error to strike out his testimony because he obtained the information of reputation by talking with only three persons in the community.

ID.—ID.—ID.—DANGEROUS TEMPER-PROOF INADMISSIBLE.--In proving general reputation, it is not error to refuse proof of a dangerous temper when angry.

ID. CAUSE OF DEATH-EVIDENCE-HEMORRHAGE SUBSEQUENT TO SHOOTING PROOF OF CAUSE OF IMMATERIAL.-Where in a prosecution for murder by shooting, it is shown that the deceased died from a hemorrhage about three weeks after the shooting, the fact that such