(211 P.)

"The general principle which underlies all this class of cases is that the acts of dominion must be adapted to the particular land, its condition, locality, and appropriate use."

of that portion of said premises occupied by | 431; Brumagim v. Bradshaw, 39 Cal. 24, 46. his dwelling house, outhouses, and corral, In the case last cited the court says: the evidence in the case sufficiently shows that shortly before the purchase by the defendant of the Ivett properties from the estate, the president and manager of the defendant corporation, during a visit of inspection to and over said properties, saw the The controlling factors in the instant case buildings and improvements of the plaintiff are: That the plaintiff was actually residupon that portion thereof involved in this ing upon the land, and was actually using case, and hence had actual knowledge that it for the purposes to which it was adapted, the plaintiff was residing upon and occupy- viz. that of pasturage, and that he was maining at least that portion thereof upon which taining his exclusive possession thereof by such buildings and improvements actually keeping the stock of all others off the land. stood at the time of such inspection. The We are of the opinion that these facts, as appellant, however, contends that, since the shown in the evidence, sufficiently prove such plaintif was not in possession of any por- actual and exclusive occupancy of the entire tion of the premises under color of title, tract of 40 acres of the land as to amount his possession of the portion thereof occu- to possessio pedis, and, as such, sufficient to pied by his said improvement did not suffice impart notice to the purchaser of the plainto impart notice of his claim of ownership tiff's rights and equities therein. of the entire tract of 40 acres, which he early case of Sunol v. Hepburn, 1 Cal. 254, now seeks to have conveyed to him. We are much relied on by the appellant herein, does of the opinion, however, that it is not necesnot militate against this view. That was a sary to discuss the question as to whether possessory action, wherein the plaintiff rethe plaintiff herein does or does not hold un-lied for his recovery upon the fact that he der color of title, in view of our conclusion had cattle on the land, which roamed and hereinafter expressed as to the nature and extent of the plaintiff's actual possession of the entire tract.

The very

grazed at will over a much larger area; the plaintiff making no effort whatever to keep his cattle on the land, or to keep the cattle of others off it. The court properly held these facts insufficient foundation for a possessory action. In the case of Bullock v. Rouse, 81 Cal. 590, 22 Pac. 919, the court made use of the following language:

"One who uses the land for the pasturage of stock may have actual possession thereof without any enclosure, if he employs herders to keep his own stock on the land and other stock off."

We think the appellant unduly emphasizes the phrase "to keep his own stock on the land" in the foregoing extract from that case, since there was no showing therein that the party claiming possession had, either through herders or other means, prevented the escape of his own stock or the intrusion of other stock upon the land, nor that he had any dwelling or other improvements thereon other than a dilapidated fence, forming only a partial improvement. That case is, therefore, not to be taken as controlling authority in the instant case, wherein it was

In the present case the evidence goes much farther than that of merely proving that the plaintiff was in actual possession of the limited area occupied by his dwelling, outhouse and corral, since it sufficiently appears that from the time in the year 1888, when the oral agreement for the purchase of said 40 acres of land was made between the plaintiff and John L. Ivett, the plaintiff took and held possession of the whole of said 40 acres of land, and he then proceeded and has ever since continued to put said land and the whole thereof to the ordinary and usual uses to which said land was adapted, viz., to that of grazing or pasturage purposes, that of pasturing his own cattle and horses upon said land, and that of keeping all other stock off said land. It is true that there is also some evidence that, when the feed ran short upon his own land, he permitted his stock to go on the adjoining lands of Ivett, by an agreement with the latter that he might do so; but we do not regard this latter circum-clearly proven that the plaintiff, by watchfulstance as entitled to much significance, and certainly not as a controlling factor in determining the sufficiency of the plaintiff's possession of the land, since in reason, as well as upon authority, a possessor of land using the same for pasturage could neither be expected nor required to continuously keep his stock upon his land after its feed was gone, in order to avail himself of his rights of possession dependent upon his use of the premises for pasturage. Coryell v. Cain, 16 Cal. 573; Webber v. Clarke, 74 Cal. 11, 15 Pac.

ness and herding, kept the stock of all other persons off the land in question, and where, in addition thereto, plaintiff and his family was in the actual occupancy of the portion of the premises covered by his dwelling, outhouses, and corral, and that the defendant had actual knowledge of this latter fact at or shortly before the time of its purchase of the Ivett properties at administrator's sale. We think this evidence is sufficient to justify the finding of the trial court to the effect that the plaintiff was in the actual

possession of the whole of said 40-acre tract 14. Sales 353 (4)
at the time of the defendant's purchase, and
that, this being so, it must be held to have
been charged with notice sufficient to put it
upon inquiry as to the plaintiff's rights or
equities in the premises. It cannot, there-
fore, be held to have been a bona fide pur-
chaser for value and without notice of the
premises affected by this appeal.
The judgment is affirmed.

SHAW, C. J. The appeal is from a judgment in favor of the plaintiff upon the plead

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ings.

(211 P.)

The complaint was in three counts. it has limited its denial to a simple statement The first count alleged that on September that it did not do all three of the things, 10, 1919, defendant made, executed, and de- leaving an admission that it did any two of livered to plaintiff its contract for goods, at them. It amounts to an admission that it exethe prices therein named, amounting to $6,- cuted the contract, which is all that is nec190.88; that goods of that value were sold essary to make it liable thereon. Kuhland | and delivered to defendant at plaintiff's mill | v. Sedgwick, 17 Cal. 123; Castro v. Wetmore, in New Jersey, and were accepted by defend- 16 Cal. 380; Blankman v. Vallejo, 15 Cal. ant. The second count alleges that on October 18, 1919, the defendant made, executed, and delivered its contract for goods to the plaintiff at prices therein named, amounting to $426; that goods of that value were sold and delivered to plaintiff at plaintiff's mill in New Jersey, which were accepted by the defendant. The third count alleges that on April 25, 1920, the defendant made, executed, and delivered to plaintiff its contract for goods at prices therein named, amounting to $4,580.36; that goods of that value were sold and delivered to defendant from plaintiff's mill in New Jersey, and were accepted by defendant. In paragraph 18 of the third cause of action plaintiff alleges that by several transactions set forth therein the sum of $4,605.56 was paid by defendant on said three contracts, leaving $6,443.89 due thereon, and plaintiff alleges that the latter sum has not been paid, nor any part thereof.

644; Wise v. Rose, 110 Cal. 163, and More v. Del Valle, 28 Cal. 172. It denies that goods of the value of $6,190.88 were "sold or delivered to defendant" "at plaintiff's mill in New Jersey." But the defendant would be responsible for them if they were sold or delivered at any other place. The allegation that they were sold and delivered at that place was unnecessary and immaterial, if they were sold or delivered to the defendant at another place. The same form of denial is used as to the other counts, and they are likewise insufficient. Again, each denial of the execution of the contracts is coupled with the words "at prices therein named," and this is equivalent to a mere denial that the footings were correct, or in the last count where the denial is that the goods "at the prices therein named amounts to the total sum of $4,580.36 or any other sum, or at all," is a denial that the prices therein named footed up any sum whatever, which would be true if the contract did not set forth any prices. As the complaint was framed, it asserts that goods of that value were delivered to and accepted by the defendant, and this is sufficient to charge the defendant, even if the contract did not name the price.

[5, 6] As to the first count, the only denial of nonpayment is in these words: "Denies that the said sum of $6,190.88 has not been paid."

The answer denied that on September 10, 1919, or at any other time, or at all, defendant made, executed, and delivered to plaintiff its contract for goods, at prices therein named amounting to $6,190.88, or any other sum, or that goods of that value, or any other sum, were sold or delivered to defendant at plaintiff's mill in New Jersey, or were accepted by him; denied that on October 18, 1919, or at any other time, or at all, defendant made, executed, and delivered its contract for goods at prices therein named, amounting to $426, or that goods of that value, or any other This is an admission that the sum of $6,sum, were sold and delivered to defendant | 190.87 is unpaid, and as the law disregards from plaintiff's mill in New Jersey; and denies that said goods were accepted by defendant; denies that on April 25, 1920, the defendant made, executed and delivered to plaintiff its certain contract, or any contract, for goods at prices therein named amounting to $4,580.36, or any other sum, or at all, or that said goods of that value, or of any other sum, The allegation of nonpayment of this item were sold and delivered to defendant from makes paragraph 18 a part thereof. Paraplaintiff's mill in New Jersey, or were ac- graph 18 alleges that the sum of $6,443.89, cepted by defendant. Defendant further de- comprising the balance due on the three nies that said sum of $6,190.88, or that said counts of the complaint, has not been paid, sum of $4,580.36, has not been paid, or that nor any part thereof. This is an admission, said sum of $426, or any part thereof, has therefore, that the sum of $6,443.88 is unnot been paid, excepting as set forth in para-paid on all the counts, and this is one cent graph 18 of the third cause of action.

[1-4] The answers are not sufficient. They deny that defendant "made, executed, and delivered" the several contracts. Defendant may have "executed and delivered" them, or it may have "made and executed" them, and the denial would be true, and yet the defendant would be liable. By connecting the words together with the conjunction "and"

trifles it is not sufficient to raise an issue. As to the second count, the denial is as follows:

"Denies that said sum of $426 has not been paid or any part thereof, excepting as set forth in paragraph 18 of the third cause of action herein."

less than plaintiff asks. The same rule regarding trifles applies.

[7-9] As to the third count, defendant "denied that the said sum of $4,580.36 or any part thereof, has not been paid." This is a good denial of the allegation of nonpayment. But the admissions of the other essential allegations of the complaint established the proposition that the defendant owed this sum

of money to plaintiff for the goods sold to T. Marui was convicted of murder in the him. When that is established the rule of first degree, with sentence of death, and he law is that it then devolves upon the defend-appeals. Affirmed.

U. S. Webb, Atty. Gen., for the People.

ant to prove the payment thereof. Melone C. F. Lacey, of Salinas, J. Sherman Woolf, v. Ruffino, 129 Cal. 518, 62 Pac. 93, 79 Am. of Monterey, and K. Osado, of Sacramento, St. Rep. 127. Consequently the plaintiff for appellant. might have rested its case upon the pleadings, and awaited the introduction of proof of payment of this count. or part hereof, by the defendant. If it was technically erroneous to grant the motion, we think it was cured by what took place immediately thereafter, and was entered in the judgment. It appears therefrom that immediately after granting the motion the following occurred: "It was then stipulated and agreed between counsel for both parties that since the complaint was filed there had been paid plaintiff certain sums which reduced the amount claimed in said complaint, including interest to the sum .of $4,675."

And thereupon judgment was rendered against the defendant for $4,675 only. Evidently this allowed for payments made before the answer was filed. It also comes within the scope of section 41⁄2 of article 6 of the Constitution. And, we may add, that this is evident from the argument in plaintiff's brief in regard to the affirmative de

fense. It sets up that the Long Beach Paper & Paint Company made the contract set forth in the third count of the complaint; that said contract gave defendant the option to give "trade acceptances" for the amount, if agreeable to both parties; that defendant gave trade acceptances accordingly, but it is entirely silent on the question whether plaintiff ever accepted them. The trade acceptances offered were payable in six installments from March to August, 1921, and from the argument it is plain that they were not accepted. There is therefore no merit in this denial. The judgment is afirmed.

We concur: SHURTLEFF, J.; LENNON, J.; SLOANE, J.; WASTE, J.; WILBUR, J.; LAWLOR, J.

PEOPLE v. MARUI. (Cr. 2431.) (Supreme Court of California. Dec. 7, 1922.) 1. Homicide 253 (1)—Evidence held to sustain conviction of murder in first degree. Evidence held to sustain conviction of murder in the first degree. 2. Homicide

232-Evidence held to prove deliberation and premeditation.

In prosecution for murder in the first degree, evidence held to prove deliberation and premeditation.

In Bank.

LAWLOR, J. An information was filed against appellant, T. Marui, in the superior court of the county of Monterey, charging him with the crime of murder. He pleaded not guilty to the charge, and upon the trial the jury rendered a verdict of murder in the first degree, calling for the death penalty. In due course a motion for a new trial was interposed in his behalf and denied, whereupon judgment of death was pronounced upon him. He has appealed from the order denying his motion for a new trial and from the judgment of conviction. We have made a careful examination of the record with the view of determining whether there is any reason why the judgment of death should not be affirmed.

It appears from the record that at about 2:30 p. m. on October 28, 1921, in the city of Monterey, appellant shot Tsunematsu Shintani and his wife. The wife apparently was instantly killed, and the husband lingered for about two hours, when he died from the effect of the bullet wounds. Hemorrhage of the liver and kidneys was given as the cause of his death. This prosecution is alone for the killing of the husband.

The principals to the tragedy and many of the witnesses are Japanese. The testimony of the Japanese witnesses was taken through the medium of Japanese interpreters, and, because of this, some difficulty has been experienced in following the testimony, as it is not always clear whether the interpreter simply repeated the declarations of the witnesses or gave his own understanding of what the witnesses meant to convey. We think, however, the evidence we shall touch upon is correctly stated, is fairly reflective of the record as a whole, and is sufficient for the purposes of the appeal.

The tragedy occurred at the home of the Shintanis, which, for the preceding ten months, had been on Foam street in the city of Monterey. Appellant had been a lodger in the Shintani household for some three years, but three or four weeks before the fatal meeting changed his abode and took lodgings in the residence of Mrs. Merrill at No. 525 Lake street, in the same city. Appellant was 43 years of age, and Shintani two years his senior. The slain couple had four children.

Two of the principal witnesses were Mrs. Mitzi Natsuda and Mrs. Max Kozeni, the former residing on the opposite side of Foam

Appeal from Superior Court, Monterey street from the Shintani home, and the latter County: J. A. Bardin, Judge. in the adjoining house nearer Pacific Grove,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

PEOPLE v. MARUI

(211 P.)

9

They were friends of Shintani and his wife, tani to apologize to writing on the form of a and acquaintances of appellant. letter to a form of apology which will not happen again, something like that. He is very much dissatisfied.

Apparently the killing was the result of an incident which had occurred about three

weeks before. It appears that Mrs. Shintani requested appellant to purchase for her, at Goldstein's store, a pair of corduroy pants for one of her boys. The article was secured and appellant reported that it cost $2.25, whereupon Mrs. Shintani said to appellant she thought he paid too much and asked him if he had the bill. It seems that some time

before she bought a similar article for another of her boys at the same store at a less figure. Appellant appeared to regard the incident in the light of an insult, that his honor and integrity had been questioned, and thereafter that thought evidently possessed him, finally culminating in the sacrifice of the two lives. The evidence indicates that he was far more impressed with the incident than were the Shintanis, for while he seemed to be obsessed by it, making it the subject of every conversation when they met, referring to it on all occasions and expressing concern as to its effect on his standing in the Japanese community, they apparently tried to convince him his character had not been impugned; in short, their position seems to have been that the price was spoken of only because of Mrs. Shintani's purchase on the previous occasion. It might have been inferred that appellant changed his abode on account of the trouble.

he purchased the goods for them, and they have "Q. An apology for what? A. Well, that is, to trust what he done for it, and as they are asking the price and they say it is kind of insulting, and therefore Marui asking to Mr. and Mrs. Shintani for apologies.

"Q. For an apology in writing? A. In writing.

"Q. What did Mr. or Mrs. Shintani say, if apology in writing? A. Mr. and Mrs. Shintani anything, when the defendant asked for an say to Marui if it is very much a necessity to do so well they might well do it, and a few conversations between them, and then Marui pulled out a pistol. *

"Q. Did you hear the word "thief" or "robber" used by anybody? A. Well, Marui said to the Shintanis, he says: 'You think I am a thief?" But Mrs. Shintani told Marui 'I don't Marui said so. think any minute you are a thief.' That is

*

that bill; it isn't meaning to doubt you or any"Q. What did she say? A. Sorry asking for thing like that so apologize you know Mrs. Shintani is once in a while.

"Q. She said that several times, didn't she? A. Once or twice."

force the issue for Mrs. Natsuda had been Evidently appellant had come prepared to present but 10 or 15 minutes when he arose and drew a pistol from his right-hand coat pocket. Neither of the Shintanis was armed. When Mrs. Natsuda observed appellant's movement she ran from the kitchen on to the

According to the evidence, during the forenoon of the day of the shooting, appellant back porch, calling to Mrs. Kozeni for help. called on Mrs. Natsuda. He remained for a while, but no allusion was made to the sub-sound of two shots in quick succession. She As she reached the porch she heard the ject which in the light of the sequel must left Mrs. Kozeni, who had appeared in rehave been uppermost in his mind. Shortly before 2:30 Mrs. Natsuda called at the home walk in front of the house. About four minsponse to her cries, and proceeded to the sideof the Shintanis and found them together utes later appellant came up from behind with appellant in the kitchen. Two of the from the other side of Foam street and said four children were playing on the floor. Ap to her: "If you spread any of this news, I pellant was dwelling on the "insult" which will kill you also." He continued on his way he insisted the Shintanis had offered him. down the street toward old Monterey and Apparently they were disinclined to pursue disappeared from view. She then re-entered the matter with him, for Mrs. Shintani oc- the house by the front door. cupied herself reading the Japanese newspaper, and at intervals the husband paid Shintani house. She made her way from her Mrs. Kozeni was the first to reach the some attention to the children. Mrs. Natsu-yard into the kitchen, where she found Mrs. da took no especial interest in the conversa-Shintani lying on the floor dead. She saw tion between the parties. We quote from her Mr. Shintani lying on the floor of the storetestimony:

"Q. Did you hear any conversation between those three after you seated yourself in the kitchen? A. Talking about those pants.

"Q. What pants? What did you hear about pants? A. Talking about those pants or trousers and regarding about the price. Mr. and Mrs. Shintani asked Marui about the bill, where is it?

"Q. What else was said? A. Then when asking about this bill Marui is very much dissatisfied about it, and Marui demanded Shintani for a written excuse and not insulting him like that again. • Marui asked Mr. and Mrs. Shin

room, his face turned upward. He was wounded in the body and head. Appellant was standing in the storeroom reloading his pistol. He said to her: "If you don't leave, I will shoot you." She immediately started for the door, holding her hands above her head as she took her departure. Mr. Shintani had asked her to get a doctor. She summoned Dr. H. S. Hoyt, and on his arrival the wounded man was removed to a hospital where, as already stated, he died in about two hours.

It was shown that appellant, about Sep