if we measure the power of the court by the statute of this state, and was so ruled in Crittenden's Case, 7 Pac. C. L. J. 483. The court's having jurisdiction determines this case.

In my opinion the applicant for the writ should be remanded and the writ discharged. THORNTON, J.

I concur in the judgment. I think no one would be to the trouble of communicating his views in writing to a grand jury on a matter which it had, or was likely to have, before it, unless he expected thereby to influence its action; and I think the policy of the law is to keep juries as free as possible from outside influence. How that can be done, if every one who feels so inclined shall be at liberty to communicate his views in writing to a jury on any matter which it may have before it, is to me inconceivable. I think that every act of the kind constitutes an unlawful interference with the proceedings of a court. SHARPSTEIN, J.

The charge that the jury must be satisfied of the guilt of the prisoner "beyond a reasonable doubt," is applicable to all criminal cases, as well where the evidence is direct as where it is circumstantial. In the latter case it is proper for the judge to further instruct the jury, so as to aid them in reaching a conclusion on the circumstances proved.

If any part of a single instruction ought not to be given, the action of the trial court in rejecting the whole will always be affirmed.

In Bank.

Atty. Gen. Marshall, for respondent.

W. S. Harris and S. M. Franklin, for appellants.

BY THE COURT. Defendant was found guilty of grand larceny on circumstantial evidence. Counsel for defendant requested the court to charge the jury as follows: "The following principle of law is of universal application in all cases based on circumstantial evidence. It is not sufficient that the circumstances proved coincide with, account for, and therefore render probable, the hypothesis sought to be established, but the hypothesis contended for by the prosecution must be established to an absolute moral certainty, to the entire exclusion of any rational probability of any other hypothesis being true, or the jury

must find the defendant not guilty." The offered instruction was by the court rejected as "superfluous-included in other instructions." An instruction with reference to circumstantial evidence would not have been "superfluous." The charge, given in different forms, that the jury must be satisfied of defendant's guilt "beyond a reasonable doubt," is a legal proposition applicable to all criminal cases, as well where the evidence is direct as where it is circumstantial, and the court might very properly have instructed the jury further in such manner as would have assisted them in reaching a correct conclusion upon the circumstances proved.

The rule as laid down by Greenleaf is: "Where a criminal charge is to be proved by circumstantial evidence, the proof ought to be not only consistent with the prisoner's guilt, but inconsistent with every other rational conclusion." 1 Greenl. Ev. § 34. The rule was adopted and approved in People v. Schuler, 28 Cal. 490, and followed in People v. Strong, 30 Cal. 154; and in People v. Anthony, 56 Cal. 400, this court held an instruction not objectionable which read: "It is not sufficient that the circumstances proved coincide with, account for, and therefore render probable the hypothesis sought to be established by the prosecution, but they must exclude to a moral certainty every other hypothesis but the single one of guilt," etc.

But, when it is urged here that the court below erred in rejecting an instruction requested, we are justified in reversing the judgment only when it appears that it was the duty of the court to give the instruction exactly as requested. It has been repeatedly held that if any part of a single instruction ought not to have been given, the action of the trial court in rejecting the whole will be affirmed; and this result must follow when any part of a single instruction is so worded as that it may have a tendency to mislead the jury, as well as when a part directly declares that to be law which is not law. A philologist may be able to say that the word "absolute," in the instruction requested and rejected, adds no force to the words "moral certainty." But the word suggests a degree of certainty greater than that moral certainty which can be reached upon such evidence as is securable in courts of justice. If the learned judge of the court below had stricken out the word "absolute" we certainly could not have held that it was error on his part. It follows that it was not error to decline to give the instruction as it was presented.

Judgment and order affirmed.

(64 Cal. 443)

HALL

v.

RICE, Adm'r, etc., and others.

Filed January 17, 1884.

The dismissal "without prejudice," by the probate court, of a petition praying that an administrator be compelled to convey certain land, gives the superior court jurisdiction, and it is not for the superior court to inquire what reasons the probate court gave for dismissing the petition. Otherwise, the party demanding a conveyance would be without remedy, since he cannot appeal from the order of the probate court.

The insertion of the name of Thomas Heptum in a bond for a deed signed by Thomas Hepburn is immaterial.

Department 1.

J. Lambert, for respondent.

W. B. Treadwell, for appellants.

BY THE COURT. 1. We think the insertion of the name "Thomas Heptum" in the bond for a deed signed by Thomas Hepburn is immaterial.

2. The superior court had jurisdiction of this action, which is, in effect, a suit in equity for specific performance of a contract for the sale and purchase of lands. Const. art. 6, § 5. Whether the legislature did or did not have power to enact sections 1595-1607 of the Code of Civil Procedure, the plaintiff herein alleged, and the court below found, that the plaintiff's petition, presented as provided in section 1592, was by the probate court "dismissed without prejudice," and this action was brought within six months after such dismissal. The probate court had jurisdiction, if the provisions of the Code are valid, to dismiss the plaintiff's petition "without prejudice," etc. The fact of such dismissal of a petition praying that the administrator be compelled to convey the same land described in the complaint herein, gave the superior court jurisdiction, even if it be admitted its jurisdiction depended upon any previous action of the probate court. must be presumed the dismissal was on the ground of the dubiety of the right. The jurisdiction of the superior court cannot depend upon the correctness of the action of the probate court in holding that the right of the petitioner was doubtful. If so, the superior court can never assume jurisdiction of such an action. It is not for the superior court to inquire what reason the probate court gave for dismissing the petition. Ought the superior court to have held that the "facts and circumstances" were not examined by the probate court, and could not have been, because the order of dismissal followed upon an order sustaining a demurrer to the petition, and therefore that the order of

It

the probate court is void, and the petition is still pending in that court? It was not intended that the superior court should go behind the order of the probate court dismissing the petition without prejudice. Otherwise, the party demanding a conveyance is without remedy, since he cannot appeal from the order of the probate court. Code Civil Proc. § 963.

3. There was evidence to sustain the finding that the bond was delivered during the life-time of Hepburn.

4. We think the court did not err in allowing the formal amendment to the complaint. The bill of exceptions recites that "no evidence" was given whether the sum mentioned was a fair, just, and adequate consideration for the land. But this must, of course, mean evidence other than the contract itself. The agreement by one not claimed to be otherwise than mentally competent to protect his own interests, is evidence from which the court would be justified in concluding that the consideration was fair and adequate, nothing being proved to create suspicion that it was insufficient. Judgment and order affirmed.

(2 Cal. Unrep. 239)

JONES and others

v.

MEYER.

Filed January 17, 1884.

The evidence herein sustains the finding objected to, and substantially responds to the issue.

Department 1.

Becknell & White, for respondent.

Smith, Brown & Hutton, for appellants.

MCKINSTRY, J. Appellant contends that finding 1, that defendant "refused to allow plaintiffs to reject 100 sheep from the band of sheep numbering about 2,000 that he offered to deliver to plaintiffs," does not respond to the issue, which was: Did defendant offer to deliver 2,000 sheep, permitting plaintiffs to reject 100 of them? But the court found that he offered to deliver a band of sheep, and he refused to allow plaintiffs to reject 100 of these so offered. And there was evidence to sustain the finding. The witness Collom testified: "The defendant had a band of sheep there that he alleged to be two thousand

in number, which he offered to deliver to us, but refused to allow us to reject one hundred of the number," etc.

Judgment and order affirmed.

In the absence of an averment that the defendants, other than the trustee, are asserting some claim by reason of having joined in the trust conveyance, the complaint contains no cause of action against them. The averment that they are tenants at will of the trustee does not of itself make them proper or necessary defendants.

Department 1.

John Reynolds, in propria persona, for appellant.

J. H. McKerne and Freeman & Bates, for respondent.

BY THE COURT. The greatest scope of relief to which plaintiff would be entitled, as against the surviving trustee, would include a conveyance to plaintiff of the legal estate in the lands (the subject of the trust) which his assignors had when the trust was created. Assuming the fact to be, as alleged in the complaint, that the assignors of plaintiff were owners in fee of all the lands when the deed of trust was executed, and that the assignors of defendants had no right, title, or interest therein, a fact which is admitted by the demurrer,—the complaint contains no statement of a cause of action against the defendants other than Lynch, in the absence of an averment that they are asserting some claim by reason of having joined in the execution of the trust conveyance. The plaintiff omits to allege such assertion of claim, but avers that the defendants, in possession of portions of the same, as he is advised and believes, are tenants at will of Lynch, the trustee. If the matter pleaded, as last stated, be sufficiently averred, it does not, of itself, make the defendants in possession proper or necessary parties. Their tenancy at will may, of course, be terminated by plaintiff when a conveyance is obtained from the trustee. It is not pretended that they claim anything except as tenants at will of the trustee.

Judgment affirmed.