Statement of Facts. ATTORNEY'S CERTIFICATE.-The attorney's certificate should not only show that the judgment is erroneous, but in what particular. WHEN FINDING IS AN ERROR OF LAW.-If the allegations of a complaint are fully proved and there is no conflict of evidence, it is an error of law to find the contrary. INTENDMENTS ARE IN FAVOR OF THE JUDGMENT.-Every intendment is in favor of the regularity and correctness of a judgment of a Court having jurisdiction. IDEM EVIDENCE PRESUMED.--The law will presume there was evidence to support a finding unless the contrary affirmatively appears. APPEAL from Marion County. This was an action for the recovery, as alleged in the complaint, of the agreed price of a number of horses, mares and colts, and of an undivided interest in a band of mares and colts sold by appellant to Huntington. While the action was pending in the lower Court, Huntington died, and Earhart, the administrator of his estate, was made defendant therein. The answer denies that any sale was made except of an undivided one-third interest in a band of mares and colts to Huntington and one Morgan Reeves. It alleges that the purchase price at such sale was $333.33, and no more; that it was agreed that Huntington should pay $166.16, and no more, and that he made such payment; and it denies that he ever promised to pay any other sum. A replication was filed denying the allegations of the answer, including that of payment. The cause was tried without a jury, and the Court found that the evidence did not support the allegations of the complaint; that if any contract was made, it was between appellant, as administrator of the estate of Logan, and Huntington and Reeves. The cause was ordered dismissed. A statement containing the evidence of certain witnesses accompanied the appeal. The assignment of errors was as follows: Error (1) in not finding that the preponderance of evidence was in favor of the plaintiff; (2) in finding that the evidence did not support the complaint; (3) in finding that if any contract was made, it was with Huntington and Reeves-the preponder Opinion of the Court-Upton, J. ance of evidence being to the contrary; (4) in finding that the proof did not agree with the allegations of the complaint; (5) in ordering the cause to be dismissed at plaintiff's costs; (6) in not finding a verdict and entering a judgment for plaintiff. Bonham & Lawson, for Appellant. Williams & Willis, for Respondent. By the Court, UPTON, J.: The cause was first before the Court on a motion to dismiss the appeal, on the ground that there is no error assigned which is reviewable by this Court. On that motion the following opinion was expressed: The first and third assignments simply assert that the Court erred in determining the preponderance of evidence. This is not an error of law. If there is no evidence tending to support a finding, and it so appears by the record, that may be a matter to be reviewed, but a finding of fact is not open to review simply on a question as to the preponderance of evidence. (Civ. Code, 2 533; Borst v. Spelman, 4 Comst. 284; Western v. Genesee M. Ins. Co., 2 Kern. 258; Dain v. Wyckoff, 18 N. Y. 46.) The statute in regard to what shall be reviewed in actions at law is no innovation upon the practice at common law. The rule is similar to that; the common law applies on writs of error and on reviewing the verdict of a jury. If there is no evidence to support the verdict it will be set aside; but if the questions turn wholly upon the preponderance of testimony and there is no other error complained of, the verdict will not be disturbed. Even when there may be ground for setting aside a finding or verdict, an appellate Court will proceed with caution where no motion was made in the .Court below for a new trial. The fifth and sixth assignments point to no particular ruling or action of the Court. It is not sufficient to declare that a judgment is erroneous, but the statute (Civ. Code, Points decided. 527) requires that the certificates of the attorney should show that it is erroneous, "and in what particular." The second and fourth specifications are sufficiently definite, and the cause cannot be dismissed for want of assignment of errors. We are not now inquiring whether the errors exist, but whether they have been assigned. If the allegations of the complaint are fully proved and there is no conflict of evidence, it is an error of law to find the contrary, and the second assignment is sufficient to raise the question. The same is true of the fourth assignment. If the proof did agree with the allegations of the complaint and the Court held the contrary, it was error, and is well assigned. For the above reasons the motion to dismiss the appeal was overruled, and the cause is now submitted on its merits. The appellant claims that by the admissions of the pleadings the plaintiff is entitled to a judgment for $166.16, unless the defendant has proved that he paid that amount; and he claims that there was no evidence tending to show such payment. There is a fault in this position. It disregards the rule that every intendment is in favor of the regularity and correctness of a judgment of a Court having jurisdiction. The record brings before us some of the evidence adduced on the trial, but there is nothing in the record to show whether or not all the evidence is before us. The law will presume there was evidence to support a finding unless the contrary affirmatively appears. (White v. Abernethy, 3 Cal. 426; Nelson v. Lemmon, 10 Cal. 49.) THE STATE OF OREGON, RESPONDENT, v. GEORGE FORM OF INDICTMENT.-The form of indictment referred to, §71 of the Crim- WHAT BILL OF EXCEPTIONS SHOULD SHOW.-A bill of exceptions should show that the same point presented in the appellate Court was raised in the Court below. EVIDENCE OF THREATS. -In a trial for murder where the defense is justifia Opinion of the Court-Upton, J. ble homicide, it is competent to prove the language and conduct of deceased towards defendant some days prior to the killing; the testimony showing that defendant was in fear of deceased at such time, and tending to show that he was in imminent peril of an attack from deceased at the time of the killing. APPEAL from Union County. The indictment charged the defendant "with the crime of murder, committed as follows: The said George Dodson, in the county aforesaid, on the 24th day of February, 1870, purposely and maliciously killed William Cochran by shooting him, the said William Cochran, with a pistol." The defendant demurred on the ground that the facts stated do not constitute a crime; particularly specifying that the words "purposely and maliciously" state a conclusion and not facts; that the word "shooting" is not qualified by the words "purposely and maliciously," and that the words used in describing the offense are not equivalent to the words in the statute which define the offense. The demurier was overruled, and the defendant, having excepted to the ruling, entered a plea of not guilty. Other grounds of error relied upon by the defendant are stated in the opinion of the Court. The defendant was convicted of murder in the second degree. A motion for a new trial having been overruled and judgment pronounced, he appeals to this Court. Bonham & Lawson, for Appellant. W. B. Laswell, District Attorney, and J. W. Baldwin, for Respondent. By the Court, UPTON, J.: The first point presented in this case is the sufficiency of the indictment. It literally conforms to the precedent published with the Code. Sec. 71 of the Criminal Code declares, in regard to "stating the acts constituting the crime," that the manner "as set forth in the appendix to this Code is sufficient." It is urged that the appendix is no part of the statute, and had no existence prior to the passage of the VOL. IV.-5 Opinion of the Court-Upton, J. statute; that this provision of 71 should be disregarded ; that the shooting, or firing the pistol, being one of the facts necessary to constitute the offense, and the principal act, should be charged in a direct manner; and that the shooting should be charged to have been done purposely and maliciously. Many reasons against so indefinite a mode of pleading are pressed upon our attention. We do not think the practice can now be questioned on the ground of public policy, but think the doctrine stare decisis should prevail. Whatever consideration these objections might have deserved if they had been presented before the Act received judicial construction, the subject is not in the same position now. Inasmuch as the body of the Act and the appendix seem to have been considered by the Legislature as component parts of the same statute and were published together as such; and as the appendix has been for several years invariably treated by the Courts as a part of the statute; and the use of this form not being deemed subject to constitutional objection; either the departure from the prescribed mode, if there be any in the enactment, should be deemed an informality only, and not a substantial deviation from the requirements of the Constitution, or such forms as have grown into general use should be held to be sufficiently established by the practice of the Courts until the Legislature direct a change. The indictment charged shooting with "a pistol;" the defendant objected to proof of shooting with a revolver. The objection was properly overruled. (Roscoe Cr. Ev., 649.) It is shown by the bill of exceptions that the defendant had proved that about ten days before the homicide, the deceased had threatened to kill the defendant, and that the threats had been communicated to the defendant; that the deceased was a man of great physical strength, who "usually went armed," and "was a desperado," and was "at the time of the shooting alleged in the indictment advancing on the defendant with the threat that he would beat the defendant to death;" and that on the said occasion, |