at said time and place so designated and show cause, if any they had, why such decree should not be made. The time designated in the notice was December 10, 1906, and the notice was posted in three of the most public places in the county at least ten days before the time so set for hearing.

The next information given by the record is as to the filing of a petition for partial distribution to herself by the appellant on the 18th day of March, 1909, in which it is alleged that she is the assignee of one Dennis Kearney, and that said Dennis Kearney was the sole surviving heir-at-law of said M. Theodore Kearney, deceased. The court thereupon, on the filing of such petition by appellant, made an order, fixing the 26th day of March, 1909, as the time for hearing appellant's petition for partial distribution, which order directed notice of the time and place to be personally served upon the Mercantile Trust Company, the executor of the will of deceased. On the 19th day of March, 1909, the court made the decree of partial distribution herein appealed from, by which it distributed the greater portion of the said estate to the Regents of the University of California in accordance with the will. This decree recites and finds that no one appeared or opposed the petition for such distribution; that the deceased left no legal heirs surviving him; that the Regents of the University of California, a corporation, is the sole devisee. The record not only fails to show that any objection of any kind was made by the appellant to the petition of the Regents of the University, but it does not show that notice of the petition filed by appellant was personally served upon the executor of the will of deceased or upon the Regents of the University, or that they or either of them had any notice of it at the time the petition of the Regents of the University came on for hearing. [2] It is shown that the notice of appellant's petition for partial distribution was personally served on the executor on the 19th day of March, 1909, but such fact is perfectly consistent with the fact that such service was made after the decree complained of had been made and signed. In fact it is perfectly consistent with the record here that the petition of appellant had been withdrawn at the time of the decree to the Regents of the University so made. There is nothing to show what the evidence was on the hearing of the petition, or that appellant had any interest in the estate, or that her assignor was an heir-at-law of the deceased. It is claimed that notice of the application for partial distribution was not given personally to the executor. It is sufficient that the decree recites that the executor appeared at the hearing by its attorney. We must presume that it was personally served, and whether it was or not the appearance by its attorney is conclusive as to the executor having received notice. (Estate of Johnson, 45 Cal. 257; Ahila vs. Padila, 14 Cal. 103.)

It is next claimed that the petition of appellant being on file at the time the petition of the Regents of the University came on for hearing, it was the duty of the court to take judicial notice of such petition, and to continue the hearing so that both petitions could be heard at the same time. [3] We are cited to no authority supporting such proposition, and we do not know of any, nor in

our opinion was it the duty of the trial judge to act as attorney for the appellant or for either of the parties. The appellant had notice of the application made by the Regents of the University, and had not appeared or filed any answer or objections to such petition. We must therefore affirm the decree, and it is so ordered. COOPER, P. J.

We concur:

KERRIGAN, J.
HALL, J.

Crim. No. 188. First Appellate District. March 30, 1910. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. ISABELLA MARTIN, Defendant and Appellant.

[1] CRIMINAL LAW-RIGHT OF SELF-DEFENSE-EXTENT OF.-The right of self-defense and forcible resistance against an aggressor exists only in the presence of imminent danger or when an offense is about to be committed.

[2] ID. PERSONS CAPABLE OF COMMITTING CRIMES COMMISSION UNDER THREAT OR MENACE-CONSTRUCTION OF CODE-IMMEDIATE DANGER. Under subdivision 8 of section 26 of the Penal Code the fear of danger to life for refusal to commit a crime sufficient to excuse criminal responsibility must be immediate and imminent and not future and remote.

[3] ID.-ID.-ID.-ID.-ID.-MINORITY OF PERPETRATOR IMMATERIAL. -The fact that the person committing the crime is a minor does not change the rule.

[4] ID. EXPLOSION OF DYNAMITE NEAR INHABITED DWELLINGCOMMISSION OF CRIME UNDER ALLEGED COERCION-EVIDENCE-PROOF OF REASONABLENESS AND EXISTENCE OF FEAR INADMISSIBLE-REMOTE DANGER. Where in a prosecution under section 601 of the Penal Code for exploding dynamite near an inhabited dwelling it appears that the crime was not committed by the defendant in person, but by another under alleged threats and menaces endangering life for refusal, the admission in evidence of the commission of other crimes at the instigation of the defendant, for the purpose of tending to show the existence and reasonableness of such fear is improper, where the charged crime was committed only under a fear that at some future time and at some remote place the defendant would kill the perpetrator.

[5] ID.-ID.-ID.—ID.—ID.-ID.-SUBSEQUENT INTRODUCTION BY DEFENDANT OF ALLEGED CONFESSION OF PERPETRATOR TO SOME OF CRIMES -ERROR NOT CURED.--Such error is not cured by the subsequent introduction in evidence by the defendant of an alleged confession of the perpetrator that he committed some of such other crimes and implicated the defendant therein.

[6] ID.-ID.-ID.-ID.-PROOF OF POSSESSION OF VARIOUS POISONS UPON ARREST INADMISSIBLE.-Evidence tending to show the possession by the defendant at her arrest (ten months after the crime) of various poisons, none of which had any connection with the alleged dynamiting, is inadmissible.

[7] ID.-ID.-ID.-ID.-PROOF OF OBSCENE WRITINGS INADMISSIBLE. -Evidence of obscene letters and writings of defendant in no way relating to the alleged dynamiting are likewise inadmissible.

[8] ID.-ID.-ID.-ID.-PROOF OF CONNECTION WITH OTHER CRIMES INADMISSIBLE.-Evidence of brutal treatment of the perpetrator of the crime by the defendant and of her guilty connection with other felonies and misdemeanors is likewise inadmissible.

[9] ID.-EVIDENCE-IRRELEVANT TESTIMONY-NEW TRIAL.-When irrelevant testimony has been admitted and is of such a character

as necessarily to be prejudicial to the defendant a new trial must be granted.

Appeal from the Superior Court of Alameda County-Wm. S. Wells, Judge.

For Appellant-A. L. Frick, Burton J. Wyman.

For Respondent-Attorney-General Webb.

The defendant was charged, under section 601 of the Penal Code, with having, on the 19th day of March, 1907, at the county of Alameda, deposited and exploded dynamite at and near the house of Frank B. Ogden. Upon her trial she was found guilty, as charged, by the verdict of the jury, and before judgment moved for a new trial. Her motion was denied, and judgment pronounced of imprisonment for the term of her natural life. From the judgment and order she in due time appealed to this court. The record upon appeal consists of the judgment roll and a full transcript of the reporter's notes of all the proceedings before the trial court, and is contained in five volumes consisting of 2770 pages of printed matter. The labor of this court, however, has been greatly lessened by the very systematic and lawyer-like manner in which counsel upon both sides have briefed the case.

No attack is made by appellant upon the sufficiency of the evidence to support the verdict, nor upon the correctness of the instructions to the jury. Appellant relies for a reversal solely upon the rulings of the court in admitting evidence and in refusing to strike out evidence that had been admitted over defendant's objections.

The crime with which defendant was charged was not committed by her in person, but was in fact committed by John B. Martin & her instigation and, as it is claimed, by reason of her coercion. John B. Martin was at the time of the commission of the crime sixteen years of age, and though he had been reared by defendant from babyhood, he was not her child. He was the principal witness for the prosecution, and testified in detail to all the circumstances of the commission of the crime, from which it appears that defendant had for a considerable time before the commission of the crime contemplated the deed, and with the aid of the witness had made careful preparation therefor. Her motive grew out of the result of some litigation which she had had in a department of the superior court of Alameda county presided over by the Hon. Frank B. Ogden, although the action was not finally tried before Judge Ogden. The witness and defendant discussed the contemplated crime, months before its commission, at Weaverville in Trinity county, where defendant had a home and certain mining properties. Early in January, 1907, they came to Oakland, Alameda county, where defendant owned a home and other property. Under the house belonging to defendant, and in which she and the witness took up their residence, was stored a quantity of dynamite. This was by the witness taken from under the house by the direction of defendant, and placed upon a shelf to dry. Subsequently a portion of it, about twelve sticks, was made into a bomb, by the witness and defendant, for the purpose of dynamiting the residence of Judge Ogden. A long

fuse was furnished by defendant and carefully prepared for subsequent use. A bicycle was rented by defendant to enable the witness to quickly escape from the scene of the intended crime. Careful preparations were made to enable an abili to be proved for the witness in case they were suspected or charged with the crime, and on the night of the 19th day of March, 1907, the witness, at the direction of defendant, took the bomb and fuse to the residence of Judge Ogden, about a mile distant from the residence of defendant, in which she remained, and after observing that the residence of Judge Ogden was then occupied by members of his family (wife, four children and a maid) placed the bomb upon the front porch of the house, carefully adjusted the fuse, lighted the same, mounted his wheel and rode away to his home, where the defendant awaited his coming. The explosion occurred before the witness reached his home; and though badly injuring the dwelling of Judge Ogden, did no harm to the unsuspecting members of the household sheltered therein, other than such as may have arisen from fright and nervous shock at the dastardly crime attempted against their home and possibly lives.

During the progress of the trial the prosecution was permitted to prove, not only by the witness John B. Martin but by other witnesses as well, brutal and cruel treatment of John B. Martin by the defendant. Also the prosecution was allowed to introduce evidence by the witness John B. Martin of numerous thefts committed by him at the instigation of and for the benefit of defendant; also that the defendant, prior to the Ogden dynamiting, planned and caused the witness to carry out or attempt six different felonies, to wit, three cases of arson in 1901, and three attempts to dynamite the residence of Wm. J. Dingee in 1904. Also evidence was allowed over the objection of defendant that after the Ogden affair defendant purchased cyanide of potassium (a deadly poison) and planned to have the witness place the same in a reservoir at Weaverville used to supply drinking water; and also in 1908 planned to have the witness dynamite the residence of Judge George Samuels at Oakland. (The point that this occurred subsequent to the Ogden affair was waived.)

All this evidence, and some other of similar import, was admitted over objections of defendant, and retained over her several motions to strike out, upon the theory that it tended to prove that the witness John M. Martin was not an accomplice of the defendant in the crime for which she was on trial, and therefore his testimony as a matter of law would support a conviction without corroboration. This theory is in turn predicated upon the theory that, although the witness with his own hands dynamited the Ogden residence when over a mile distant from the person of defendant, he was guilty of no crime in so doing because, as it is claimed by respondent, he committed the act under threats or menaces of defendant, sufficient to show that he had reasonable cause to believe and did believe that his life would be endangered unless he committed the deed. It is contended that the evidence objected to was admissible as tending to show the reasonableness of such belief and the existence thereof. The entire superstructure of respondent's contention

is based upon the construction placed by respondent upon section 26 of the Penal Code, which, so far as applicable to the matter under discussion, is as follows: "All persons are capable of committing crimes except those belonging to the following classes: . Eighth. Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused."

The vital point of difference between appellant and respondent as to the effect of this section of the code is this: that appellant insists that the danger to the life of the person claiming the protection of the statute must be, or reasonably appear to be, imminent and immediately impending, while respondent claims that such danger is sufficient to excuse from criminal responsibility for any crime however heinous, not punishable with death, if committed under threats causing a reasonable belief on the part of the person threatened that a refusal would endanger his life either immediately or at some time in the future.

To make this clear it is now necessary to state the testimony given by the witness John B. Martin as to the threats and the fear under which it is claimed he committed the crime for which defendant was convicted. We quote from the transcript:

"Q. Why did you take this bomb prepared by you and Mrs. Martin, and place it on Judge Ogden's premises?

Q.

A.

What did she say, what threats did she make?

She said if I didn't place the bomb in Judge Ogden's porch she would have me arrested for burning the house, take me up to Trinity county, hit me over the head with a sledge hammer, put a stick of powder under me and blow me up, and come into town and say it was an accident, and they would believe it.

Q. I will ask you what was your feeling towards Mrs. Martin on the 19th day of March, 1907, Mrs. Martin this defendant?

A. I was afraid of her. I was afraid that she would kill me if I didn't carry out such deeds as she told me to.”

It further appeared from his testimony that this threat was made several weeks before the crime was committed, and before the bomb was made. On cross-examination the witness, in response to the question, "Then you want to be understood now, do you, that the fear which you had of what she would do if you did not explode the Ogden bomb was, not that she would kill you or attempt to kill you in Oakland, but she would get you up in Weaverville and kill you there. That is correct, is it?" answered, "It is."

In other words, it was made perfectly clear and certain that the witness did not act under any fear of immediate or imminent danger of his life, but only under a fear that at some future time and at a place hundreds of miles away from the scene of the contemplated crime his life would be in danger from the defendant. Unless such a fear, a fear of a future and remote danger to life, will exempt a person from responsibility for any crime (not punishable with