INTERPRETATION of testimony of witnesses: new trial.

preted from the Chinese into the English language. While the testimony displays to some extent the phraseology used by Chinese in the use of the English language, there is nothing to indicate that the testimony of the witnesses. was not fairly presented to the jury, and we reaffirm the ruling made by this court on this subject in the case of Hicks v. Territory, 6 N. M. 603.

MURDER: cause

cal operation.

The fourth alleged error, that the verdict is against the law and the evidence, and not warranted by the evidence, is urged here mainly upon the of death: surgi- theory that the surgical operation of trepanning, and not the blows given by the defendant on the head of the deceased, was the probable and proximate cause of the death. This appears, from all of the authorities to which our attention has been called, to be a question of fact for the jury, under proper instructions. The instructions in this regard, as we have indicated, were even more favorable to the accused than asked; the court telling them that "the prosecution must show, not that such injury was probably the cause of the death, but that it was the efficient and immediate cause of death, and the evidence must establish this fact beyond a reasonable doubt." We think the court might have omitted the word "immediate," in its instructions, and yet have been fully within the principle deduced from the greater weight of authority on this subject. Thus it was held in Com. v. McPike, 3 Cush. 181, "that although the event proved such surgical operation to be ineffectual in giving relief, and it was the immediate cause of the death of the party, yet the defendant is responsible for her death if he had previously given her a mortal blow, in the attempt to save her from the effects of which a surgical operation, apparently necessary, was resorted to." The true test, we think, is that when a surgical operation, apparently necessary, is resorted to

for the purpose of saving one from the probably fatal effect of a wound, it must clearly appear that maltreatment of the wound, and not the wound itself, was the sole cause of the death. It is to be observed that in State v. Morphy, 11 Am. Rep. 122, the Iowa supreme court went further even than this. Any less stringent rule than the one stated, it seems to us, would be in conflict with the authorities, and as aiding criminals to escape merely because of efforts rendered necessary by the defendant's wrongful act to save the victim from its consequences. Rosc. Crim. Ev. [8 Am. Ed.] 757; Russ. Crimes [5 Am. Ed.] 504, 505.

This cause was submitted to the jury fairly, and we find no error in the record. For these reasons it is ordered that the judgment of the court appealed from be, and is hereby, affirmed.

SMITH, C. J., and FREEMAN and LAUGHLIN, JJ.,

concur.

[No. 547. September 3, 1894.]

CHARLES M. CONKLIN, PLAINTIFF IN ERROR, V. WILLIAM P. CUNNINGHAM, DEFENDANT IN ERROR.

PUBLIC OFFICE-Removal of SHERIFF BY Governor, and APPOINTMENT TO FILL VACANCY-MANDAMUS BY APPOINTEE TO COMPEL DELIVERY OF BOOKS, ETC., OF SHERIFF'S OFFICE-ANSWER-ESTOPPEL.-In a proceeding by mandamus, by one claiming to be sheriff and ex officio collector of Santa Fe county, under an appointment by the governor, to fill a vacancy created by the removal of the defendant from said office by the governor, pursuant to authority vested in him under section 27, chapter 25, of the Session Laws of 1891, to compel the defendant to turn over to the petitioner all books, papers, property, and prisoners pertaining to said office, where it appeared from respondent's answer that he had obtained an order from the district court of said county, in the nature of quo warranto, upon the petitioner, to determine the title to said office, it was an admission, by the

respondent, that he had been deprived of the possession of said office by the order of the governor, and that the possession was in the petitioner, by that appointment, at the time of the institution of the proceeding by quo warranto; and respondent was precluded thereby from denying said possession, and endeavoring to determine said title in such mandamus proceeding.

ID. PRIMA FACIE TITLE-WITHHOLDING PROPERTY OF OFFICE FROM DE FACTO OFFICER BY FORMER OCCUPANT-REMEDY.-Mandamus is the proper remedy against the former occupant of an office by a de facto officer having a prima facie right to obtain possession of the property of the office; and a pretended retention of the office by such former occupant will not justify him in withholding such property, to compel such officer possessing the prima facie title to resort to a proceeding in the nature of quo warranto.

ID.-MANDAMUS-ISSUES OF LAW-PLEADINGS. The legal title to the office not being involved in the proceeding by mandamus, issues of law upon which the title to office depends can not be determined in such proceeding. The return of respondent to the alternative writ must be limited to the denial of the statements of alleged facts contained therein, and traverses in pleadings can not properly create other issues than those of fact. Nor can conclusions of law resulting from such statements in the alternative writ be controverted by respondent in his answer. Compiled Laws, 1884, sec. 2000.

ID.-POWER OF GOVERNOR TO REMOVE SHERIFF, AND APPOINT HIS SUCCESSOR-MANDAMUS-PRESUMPTION.-In such proceeding, the conclusive presumption is that the governor acted within the limits of the authority vested in him by section 27, chapter 25, Session Laws, 1891. That he was authorized by this section of the statute, under which he acted, to remove for causes therein specified, and to fill the vacancy by appointment, and issue his commission to the appointee, and that the respondent ceased to be sheriff, and the petitioner became, prima facie, such officer, by the executive order, are equally conclusive presumptions of law in such proceeding, and can not be controverted, except in a proceeding in the nature of quo warranto to contest the legal title to the office.

ID.-APPOINTMENT OF SHERIFF BY GOVERNOR, TAKES EFFECT WHEN— LEGAL EFFECT OF APPOINTMENT.-An appointment to the office of sheriff by the governor is complete on the delivery of the commission, and gives the appointee prima facie title thereto.

ID. REMOVAL OF SHERIFF BY GOVERNOR-NOTICE OF DEFAULT.-A prior notice of default is not necessary to the removal by the governor of the sheriff for a shortage in his accounts, under section 27 of the statute. That section is mandatory, and directs summary action by the executive; and such action is not judicial, and does not require due process of law.

ID.-MANDAMUS-PREVIOUS DEMAND FOR BOOKS, ETC.-In such proceeding where it appeared conclusively from the conduct of the respondent that a demand for the books, and other property of the office, would have been met with a refusal, no previous demand was neces sary.

ERROR, from a judgment granting the petitioner a peremptory writ of mandamus, to the First Judicial District Court, Santa Fe County. Affirmed; FReeman, J., dissenting. Also order entered in injunction case number 553, referred to in the opinion of the court, affirming the judgment of the court below dissolving the injunction, it having been stipulated between the counsel in that case that it should be determined by the conclusions of the court in the mandamus proceeding.

The facts are stated in the opinion of the court.

EDWARD L. BARTLETT, T. B. CATRON, and CHARLES A. SPIESS for plaintiff in error.

The statute authorizes the removal of the collector when he shall fail to pay over all school moneys collected by him within thirty days after the tenth day of each month. This is a condition precedent to his removal, and must be determined at a nearing of which the collector must be given notice. Foster v. Kansas, 112 U. S. 206; Kennard v. Louisiana, 92 U. S. 480; Hurtado v. California, 110 U. S. 535; State v. Corneall, 10 Ark. 162.

Waiving the proposition that mandamus could not have been resorted to to oust plaintiff in error from the possession of his office, the court erred in refusing to pass upon the issues of fact raised by the pleadings, and it was clearly error for the court to overrule plaintiff in error's motion for a jury to try the issues of fact. People v. Board of Education, 127 Ill. 613; State v. Burnsville, 97 Ind. 416; Burnsville v. State, 119 Id.

382; People v. Board of Police, 107 N. Y. 235; Frey v. Michie, 68 Mich. 323; Thompson v. United States, 103 U. S. 480; Cooms v. McCandler, 129 Pa. St. 492; Savannah v. State, 4 Ga. 26; Noble Co. Com'rs v. Hunt, 33 Ohio St. 169.

H. L. WARREN for defendant in error.

A denial of fact must be direct, and not by a negative pregnant, or argumentative, and must not amount to denial of matter of law. 1 Danl. Ch. Pl. & Pr., sec. 726; 1 Chitty, Plead., p. 260; High's Ex. Legal Rem., 466-470, 472, and 474, 476-478.

Different offenses alleged must be consistent with each other. High, Ex. Legal Rem., sec. 560.

Mandamus is the proper remedy in this case. 14 Am. and Eng. Encyclopedia of Law (Mandamus), pp. 107-147; 44 Iowa, 340; In re Delgado, 140 U. S. 59; High's Ex. Legal Rem., sec. 73, et seq., and cases cited in note.

The courts will indulge the presumption that the governor has acted rightly until the contrary is shown. High, sec. 464; Commonwealth v. Frazier, 4 Mon. 513.

The court not having jurisdiction in mandamus to try and determine the ultimate title to the office, there only remains to determine upon the pleadings who is the actual incumbent of the office, and as such prima facie entitled, upon the facts appearing, to the insignia, public books, and property pertaining to the office, leaving the other party to his remedy by quo warranto. Delehanty v. Warner, 75 Ill. 186; State v. Johnson, 30 Fla. 434; Wennor v. Smith, 9 Pac. Rep. (Utah) 297; Plowman v. Thornton, 52 Ala. 559; Bright's Lead. Cas. on Elections, 286; State v. Howard Co., 41 Mo. 247; Mechem, secs. 478-995; cases cited under sec. 73, High's Ex. Legal Rem.