33 Iowa, 526. The cases relied upon for ap-, fully assaulted by the said E. C. Kirk, and pellant are not in point. In State v. An- that from the character of said assault and drews, 84 Iowa, 88, 50 N. W. 549, there was no allegation that the killing was done deliberately, premeditatedly, and with malice aforethought, and the same defect appears in the indictment in State v. Linhoff, 121 Iowa, 632, 97 N. W. 77. Here both the assault and the killing are alleged to have been done with the intent to kill and murder.

2. The state was permitted, over defendant's objections, to introduce what were said to be the dying declarations of Kirk. It is said that no proper foundation was laid for this testimony. It sufficiently appears that, when these declarations were made, deceased was in articulo mortis. He then believed that he had been mortally wounded, had been told by his physician that he could not recover, and was in fact in extremis, under the rule announced in State v. Murdy, 81 Iowa, 603, 47 N. W. 867, State v. Kuhn, 117 Iowa, 216, 90 N. W. 733, State v. Dennis, 119 Iowa, 688, 94 N. W. 235, and other like cases.

3. Complaint is made of the court's refusal to permit defendant to testify as to why he thought the bullet which he shot ranged upward. As he afterward testified to this matter without objection, no prejudice resulted from the ruling on a previous question, even if it were erroneous.

the weapon used he had reason, as an ordinarily prudent and courageous man, to believe, and did in good faith and honestly believe, that he was in danger of being killed, or suffering great bodily injury, and that the parties were so situated that he could not have retreated, or that he could not reasonably have expected to have preserved his life or protect himself from injury by retreating, then and in that case he was justified in using such force and such means to protect his life and person as may in good faith then have appeared necessary to him as an ordinarily prudent and courageous man, under all the circumstances then surrounding him, even to the taking of life. And if you shall find that he did not use greater force, or more hazardous means to protect his life and person than really appeared to him necessary as an ordinarily prudent and courageous man under the circumstances in which he was then placed, including the nature and manner of the assault, then and in that case the killing was not unlawful, and you should return a verdict of not guilty. But if you find that he did use greater force, or more hazardous means than appeared necessary to protect himself from great bodily harm, an ordinarily prudent and courageous man under the circumstances in which he was then placed, including the nature and manner of the assault, you cannot acquit him on the ground of self-defense. And, in determining whether or not the defendant in doing what he did acted in self-defense, you will remember that the burden of proof is upon the state to prove, beyond a reasonable doubt, that in doing what he did he was not acting in self-defense. If after considering all the evidence introduced in this case a reasonable doubt arises in your minds as to whether or not the defendant in doing what he did was acting in self-defense, then the state has not proved the defendant guilty beyond a reasonable doubt. 'A great bodily injury,' as used in these instructions, means a more serious bodily injury than results from an ordinary battery."

as

4. The ninth instruction given by the trial court is complained of. It reads as follows: "In determining whether or not the shot was fired without legal excuse or justification, you are instructed that the defendant admits the killing of E. C. Kirk. And his claim is that in what he did he was acting in self-defense. You are instructed, in relation to this claim of the defendant, that where one is assaulted by another person in such a manner as to induce the person assaulted to reasonably believe that he is at the time in actual danger of losing his life, or of suffering great bodily harm, he is justified in defending himself, although the danger be not real, but only apparent, and he may use such force and means to defend himself as may in good faith appear necessary to him as an ordinarily prudent and courageous man, under all the circumstances at the time sur- The chief complaint made of this is that it rounding him. And he is not bound to draw imposed upon defendant the duty of retreat. nice calculations from appearances. All that This is said to be error for two reasons: is required of him is that he shall act from First, because one assaulted is not bound to reasonable and honest convictions as to his retreat, but may repel force with force; and, danger, although mistaken as to the extent second, because one in his own habitation is of said danger. But before one is justified not bound to retreat under any circumstanin taking life in self-defense, it must be, or ces. State v. Goering, 106 Iowa, 636, 77 N. it must reasonably appear to be, the only W. 327, State v. Evenson, 122 Iowa, 88, 97 means of saving one's own life, or of pre- N. W. 979, 64 L. R. A. 77, Young v. State, venting great bodily injury. If it is evident 74 Neb. 346, 104 N. W. 867, 2 L. R. A. (N. S.) to the assaulted that the danger which ap- 66, are relied upon. None of these cases are pears to be imminent can be avoided in any in point. In the Evenson Case defendant other way, as by retreating from the conflict, was accused of an assault with intent to inthe taking of the life of the assailant is not flict a great bodily injury, and in the Goering excusable. And if you shall find from the Case the defendant was charged with a evidence in this case that just before the de- simple assault, and in each of these cases it

the character thereof does not involve life or great bodily injury, the person assaulted is not bound to retreat. That these cases are not applicable to the one at bar sufficiently appears from the following quotation, taken from State v. Evenson, supra: "We do not overlook the many cases wherein it is held that one may not, under the plea of self-defense, justify the taking of human life, if it reasonably appears that the same could have been avoided by making use of an avenue of escape open to him. But the principle thus declared upon has no application to a case where, as in the case at bar, one is wrongfully assaulted, and repels force by the use of like force. In the one case the law regards the liberty of the citizen to come and go as he pleases without molestation, save at the hands of the law, as the thing paramount. In the other case the law regards the temporary deprivation of the exercise of personal liberty on the part of one citizen as of less importance than is the life of another citizen, and this even though the latter is for the moment engaged in making an unlawful assault upon the former. Hence the injunction that a person assaulted must retreat, if he can do so in reasonable safety, before resorting to the extreme measure of taking the life of his assailant."

appears to be, the only means of saving one's own life, or preventing some great bodily injury. If the danger which appears to be imminent can be avoided in any other way, as by retiring from the conflict, the taking of the life of the assailant is not excusable.' The instructions of the court upon this branch of the case are assailed as erroneous. We will not set them out. They are in accord with the rule above announced, and with many other cases determined by this court." In State v. Bennett, supra, we said: "In the earlier cases in this court it was held that there was no duty to retreat where one was assailed with a deadly weapon. See Tweedy v. State, 5 Iowa, 433. While in the later adjudications it has been held that such duty exists under ordinary circumstances. See State v. Jones, 89 Iowa, 182, 56 N. W. 427, and cases cited therein. But none of the latter cases decide the exact point involved here, which is, briefly, whether a person, while on his own premises, must retreat from a felonious assault. It is the universal rule that the dwelling house is the castle, and that no retreat is necessary therein, and we see no sound reason for holding that a greater obligation exists when the accused is on his own premises, where he has a right to be, and which constitutes a part of his residence and home."

The rule applicable to this case is announced in State v. Bennett, 128 Iowa, 713, 105 N. W. 324, State v. Rutledge, 135 Iowa, 581, 113 N. W. 461, State v. Jones, 89 Iowa, 182, 56 N. W. 427, State v. Warner, 100 Iowa, 260, 69 N. W. 546, and other like cases. From the Jones Case, supra, we quote the following: "The specific objection to this instruction goes to that part of it which, under the facts recited, required the defendant to retreat or retire from the conflict, unless it appeared to him, as a reasonably prudent man, that he could not retreat without danger to his life, or danger of great bodily injury. It may be conceded that in the earlier adjudications of this court there is language employed which may be said to lay down the doctrine that one who is assailed with a deadly weapon is not required to flee from his adversary, but may strike and kill in his own defense. See Tweedy v. State, 5 Iowa, 433. But in the latter utterances of this court, and it may be said to be the general rule elsewhere, that the killing of an assailant is excusable on the ground of self-defense only when it is, or reasonably appears to be, the only means of saving one's own life, or preventing great bodily injury. If theer than a degree of homicide. State v. Peridanger which appears to be imminent can be avoided in any other way, as by retiring from the conflict, the taking of the life of the assailant is not excusable." In the Warner Case we said: "We have stated the rule applicable to the law of self-defense. In the late case of State v. Jones, 89 Iowa, 183, 56 N. W. 428, it is said: "That the killing of an assailant is excusable on the ground of 6. Lastly, it is argued that the testimony

It does not appear that defendant was on his own premises when he claims to have been assaulted by the deceased. The most that can be said is that he had a room in the house of the deceased which he called his own, and that he made his home there. The alleged assault was not made upon him while he was in his room, but in the dining room or parlor of the house belonging to the deceased. This was not defendant's castle. It belonged to and was occupied by the deceased, and defendant was not, under the circumstances, permitted to stand his ground in order to defend his premises. In other words, the duty of retreat applied to him just the same as if he were upon the street, or in any other place where the rights of the disputants were equal. Generally speaking, the duty of retreat applies in this jurisdiction, and the rule was correctly stated by the trial court in its instruction which is now challenged.

5. As the deceased died within a few days after he was shot, the trial court did not err in refusing to submit to the jury the question of defendant's guilt of some offense low

go, 80 Iowa, 37, 45 N. W. 399; State v. Mahan, 68 Iowa, 304, 20 N. W. 449, 27 N. W. 249; State v. Walker, 133 Iowa, 489, 110 N. W. 925. Under the testimony defendant was guilty of manslaughter, if guilty of any offense, and there was no error in not submitting the various degrees of crime lower than that offense.

lien upon the land for certain local assessments entirely disconnected with the tax proceedings under which the plaintiff claimed title. A new trial was granted upon the ground that the court erred in not determining the plaintiff's right to a lien upon the real estate for the amount of the taxes paid by him. The defendant Clifford appealed from this order upon the ground that the court had no authority to adjudicate the question with reference to the lien claimed by the defendant.

in self-defense. We are not disposed to take | Clifford. The court further found that the this view of the case. That question was defendant the city of St. Paul had a valid primarily for a jury. From the testimony it appears that the deceased was very drunk, and that while he may have assaulted, or attempted to assault, defendant with a knife, the way for escape was open and easy. Other persons were present to aid the defendant, and they had succeeded, down to the time of the shooting, in keeping deceased away from the defendant. Defendant had armed himself with a gun before having any trouble with the deceased. He knew that deceased was much intoxicated, and a jury may very well have found that he could easily have avoided the assault, which he claims deceased was threatening to make with a knife. We cannot say, as a matter of law, that defendant was acting in self-defense. That was a fair question for the jury under the record before us.

1. Section 969, Rev. Laws 1905, provides that "when in any action or proceeding in court any tax judgment or tax sale shall be adjudged void for any cause occurring after the levy of the tax embraced in such judgment or sale, except in cases where such taxes have been paid, or the land is

No prejudicial error appears, and the judg-exempt from taxation, the court shall ment must be, and it is, affirmed.

FOSTER v. CLIFFORD et al. (Supreme Court of Minnesota. Feb. 4, 1910.) 1. TAXATION (§ 814*)-TAX TITLE QUIETING TITLE-LIEN FOR TAXES.

When, in an action to quiet title brought by the holder of the tax certificate, the tax title is found defective because of the insufficiency of the notice of expiration of period for redemption, it is the duty of the court, under section 969, Rev. Laws 1905, to determine the amount and validity of the plaintiff's lien for taxes paid by him.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 1613; Dec. Dig. § 814.*]

2. LIEN FOR TAXES PAID.

Whether such lien is lost when the right to perfect title under the tax certificate is barred by chapter 271, Laws 1905, quære.

(Syllabus by the Court.)

Appeal from District Court, Ramsey County; Kelly, Judge.

Action by William C. Foster against Charles Clifford and others. Findings for defendant Clifford. From an order granting a new trial, he appeals. Affirmed.

*

adjudge a lien against such land for the amount of such taxes and shall also adjudge that the land so subject to such lien be sold as in the case of the sale of land on execution. Section 972, Rev. Laws 1905, provides for the bringing of such an that this action was not brought under secaction as the present. The appellant claims tion 972, but was brought under section 4424, Rev. Laws 1905, authorizing the ordinary action to quiet title. Inasmuch as the pleadings admit that the land in controversy is vacant and unoccupied, the action is authorized by each section, and the plaintiff is entitled to any rights which he may have in this form of action, without attempting to determine under which section it is brought.

2. So far as the record discloses the taxes which the plaintiff claims to be a lien upon the real estate were regularly levied, and all of the proceedings up to the notice of redemption were likewise regular. The result is that the plaintiff's claim is squarely within the provisions of section 969, already quoted from, and when it appeared that the notice of expiration was insufficient it became

R. A. Walsh, for appellant. Wm. G. the duty of the court to determine the White, for respondent.

amount and validity of the lien claimed by the plaintiff for the payments made by him under the tax proceedings. This court has uniformly held that the statute regulating the proceedings which transfer the title of the landowner must be strictly construed; therefore the notice of expiration of the pe

O'BRIEN, J. At a tax sale held May 11, 1903, the plaintiff purchased the property described in the complaint. Notice of expiration of time to redeem was served November 9, 1906. The plaintiff brought this action to quiet title, alleging the real estate │riod of redemption must strictly conform to to be vacant and unoccupied. The notice the statute, for as has been said by this of expiration was insufficient under the de- court, that is the last act in the proceedings cision of this court in Lawton v. Barker, 105 whereby the title is transferred. Kipp v. Minn. 102, 117 N. W. 249. No evidence was Johnson, 73 Minn. 34, 75 N. W. 736; Lawintroduced to show title in the defendant, ton v. Barker, supra; Shine v. Olson (filed and the district court made findings that Jan. 28, 1910) 124 N. W. 452. But, as this the plaintiff had no title, and directed judg-case now is, the only relief sought by the ment for costs in favor of the defendant holder of the tax certificate is to enforce a

lien upon the land for the taxes properly | ber cap, 12x16, and 14 feet long, fastened to levied. The statute giving such lien must each piling with a 4-inch drift bolt 26 inches be liberally construed. London & N. W. Am. long. The bents were 16 feet distant from M. Co. v. Gibson, 77 Minn. 394, 80 N. W. each other. As this trestle was originally 205, 777. The new trial was properly grant-constructed, braces were nailed across each ed in order that the validity and amount of the lien claimed by the plaintiff should be adjudicated.

3. Under the provisions of chapter 271, Laws 1905, the time for giving notice of period of redemption has expired. The record before us does not show definitely when this action was commenced, nor has there been presented for our consideration the question whether or not the right to a lien was lost when the time to give notice and perfect title under the tax certificate had passed. We, therefore, express no opinion upon that question. Order affirmed.

side of each bent. About two years thereafter appellants entered into a contract with the railway company to take off the caps from the bents for a certain distance, drive in two additional piles, making six in each bent, and put on a new and longer cap, for the purpose of making the trestle sufficiently strong for the passage of trains without filling in. To accomplish this work appellants constructed a track along one side of the trestle on which they placed a truck with a pile driver and engine. Respondent's intestate, Mauritz Johnson, was employed as hoisting engineer.

The method of removing the caps was as follows: The pile driver was located near the outside piling, which brought the lead of the driver within about a foot of the end of the cap, the head or top extending some 30 JOHNSON v. OAKES et al. feet above. A cable was adjusted by pulleys (Supreme Court of Minnesota. Feb. 4, 1910.) at the head of the lead, and operated around MASTER AND SERVANT (§ 278*) — INJURY TO a drum at the engine. The cable was fasSERVANT EVIDENCE. tened to the cap, a distance of 3 or 4 feet from the derrick, and, when all was ready, signal was given to the engineer to start the engine, the drum revolved, and the cap was lifted from the piling, the bolt in the pile next to the driver drawing out first, then the second, third, and fourth in succession. Four or five of these caps had been removed in this manner, and the men had moved to the next bent, attached the cable, and gave the signal to the engineer. The cap lifted, and the bolts pulled loose from the first three piles. The

Respondent's intestate was killed by the falling of a pile occasioned by the removal of a cap which held it, together with three other piles, constituting a bent in a railroad trestle. Considering the height and character of the piles and the manner in which they were braced, and although due inspection would not have disclosed that the pile which fell had not been driven into the ground, and although the particular manner in which the accident happened could not reasonably have been anticipated, the evidence was sufficient to justify the jury in finding that an unsafe method had been adopted for removing the caps from the bents.

[Ed. Note. For other cases, see Master and fourth pile had not been driven into the Servant, Dec. Dig. § 278.*]

(Syllabus by the Court.)

Appeal from District Court, Ramsey County; George L. Bunn, Judge.

Action by Josephine H. Johnson against George W. Oakes and others. Verdict for plaintiff. From an order denying a new trial, defendants appeal. Affirmed.

Morton Barrows and Bracelin & Cronin, for appellants. John D. O'Brien and T, P. MeNamara, for respondent.

ground, but rested on a mud-sill about a foot below the surface, and, when it was released from the other piles, bounced against the lead, which loosened the bolt, and it fell

against the engine, striking and killing the engineer. Respondent recovered a verdict, and appellants' position here is that the evidence shows conclusively that they were not at fault.

At the time appellants entered into the contract to perform this work they had no knowledge that the pile in question had not been driven into the ground, the same as the others in the structure. The bent involved reached about 40 feet above the ground, and the pile that fell was to all appearances sound and firm enough to permit the removal of the cap. Ordinary observation or inspection would not have disclosed the true condition of the pile, and it will be assumed that appellants were not negligent by the mere omission to inspect this particular pile, and in failing to discover whether or not it was driven into the ground. Negligence is based upon the adoption by appellants of the unsafe method of removing the caps, and that they

LEWIS, J. The Northern Pacific Railway Company had constructed a trestle several miles long across low and swampy land in the northern part of the state, with the intention of subsequently filling it in with gravel. The piles were white and Norway pine, and were driven in rows of four, called "bents," the two center piles being perpendicular, so that one would come under each rail when the track was laid, and the two outside piles were inclined at a slight angle and served as props to the others. Across the top of each bent was placed a heavy oak tim

O'BRIEN, J., took no part.

are liable for the result which followed, even | p. 13; Christianson v. C., St. P., M. & O. Ry. though they could not reasonably have antici- Co., 67 Minn. 97, 69 N. W. 640; Baker v. G. pated the fact that some particular pile was N. Ry. Co., 83 Minn. 184, 86 N. W. 82. not driven sufficiently into the ground and Affirmed. would fall upon the removal of the cap. This was the theory adopted by the trial court in submitting the case to the jury. Appellants insist that this principle of law has no application to the facts in this case, for the reason that the system pursued in removing the caps was perfectly safe as to those piles which were driven into the ground, and that they cannot be held liable for not knowing a condition which they would not have discovered in the exercise of ordinary care.

When the men were engaged in removing the cap from the bent immediately preceding the one in question, the fourth pile broke off near the ground, not being strong enough to resist the power exerted in getting off the cap, and it fell, but occasioned no injury. This incident is relied on somewhat by respondent as indicating the danger surrounding the work; but, as we view the case, it is not important. Let it be assumed that, so far as a general inspection would disclose, all the piles were driven into the ground, and that the one in question was apparently strong enough to withstand the pressure applied, if it had been driven into the ground, yet here was a condition attended with a certain amount of appreciable danger, although it was not apparent in what particular manner it might occur. There were many rows of heavy piling standing 40 feet above the ground, those in each row fastened together by the caps only. The soil was of a more or less unstable character. Although the contractors had no personal knowledge that any particular one of these piles was not securely driven into the ground, the braces had been removed, and no provision whatever was taken to guard against the falling of those large and heavy logs from some such cause as breakage or instability when the caps were pulled off. There was an easier and safer way of removing the caps without exposing the men to the danger met with on this occasion. The bolts could have been withdrawn and the caps taken off without applying the severe strain required in the method used. The system adopted was particularly dangerous with respect to the piling farthest from the cable. The strain was undoubtedly very great, for the reason that there was no direct pull immediately over the pile. The pull was at an angle, and if anything should prove wrong in the stability of the pile an accident was likely to follow. The evidence warrants the conclusion that the plan was attended with danger, and the case is controlled by the principle that, "negligence being established, the person guilty of it is liable for its consequences, whether they be such as he could or ought to have foreseen." Barrows on Negligence,

Ex parte GAUTHIER. GAUTHIER v. WALTER et al. (Supreme Court of Minnesota. Feb. 4, 1910.) 1. HABEAS CORPUS (§ 113*)-TRIAL DE NOvo. Upon an appeal in habeas corpus proceedings, the hearing in this court is, pursuant to section 4602, Rev. Laws 1905, a trial de novo of

the issues involved.

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 114; Dec. Dig. § 113.*] 2. HABEAS CORPUS (§ 99*)-CUSTODY OF MI

NOR.

When the controversy is as to the custody of a minor, the best interests of the child are the controlling consideration.

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99;* Parent and Child, Cent. Dig. §§ 4-32.]

3. HABEAS CORPUS (§ 85*)-CUSTODY OF MINOR-EVIDENCE.

Evidence considered, and found to require a direction that the minor remain with his present custodians until further order.

[Ed. Note. For other cases, see Habeas Cor pus, Dec. Dig. § 85.*]

(Syllabus by the Court.)

Appeal from District Court, Ramsey County; Geo. L. Bunn, Judge.

Application of Hermandos Gauthier for a writ of habeas corpus to Adelbert Walter and others to recover custody of a minor. Order granting custody to relator, and defendants appeal. Reversed.

F. A. Pike, for appellants. O. J. Cook, for respondent.

O'BRIEN, J. This is an appeal by the Walters, respondents in the court below, from an order of the district court in habeas corpus proceedings awarding the custody of Archie Gauthier, a minor, to the relator, Hermandos Gauthier.

The minor, whose custody is the contention in this case, is now a little more than 15 years of age and is the son of the relator by his former wife, Rose. It appears that shortly after the birth of this child the relator and his wife separated. The child was for a while in an infants' home at Eau Claire, Wis., afterwards with some relatives, and finally, when about two years old, the child was by his mother brought to this state and taken charge of by the Walters, with whom he has since continued to reside. About 1901 the relator obtained a divorce from his wife, Rose, in the proper Wisconsin court, the decree awarding the custody of the child, Archie, to his father. About 1902 the relator