J. B. Townsend, for appellants Greene and Jackson. P. T. Colby and V. A. Gregg, for plaintiffs. MCKINSTRY, J., delivered the opinion of the Court: The appeal is by defendants Greene and Jackson from a judgment adjudging and decreeing that defendant, C. C. Webb, is the sole owner in fee of all the lands described in the complaint, and that neither the plaintiffs, nor any of the other defendants has any estate, right, title or interest in the lands, or any portion of them. Respondent asks that the cause be stricken from our calendar, because, as he claims, no appeal has properly been taken. The judgment roll shows that Samuel L. Cutter, Esq., appeared as attorney for defendants, Greene and Jackson, in the Court below. The notice of appeal is subscribed by James B. Townsend Esq., as attorney for the said defendants, while the record fails to show any formal substitution of Towsend for Cutter, or any notice of such substitution. When an attorney is changed, and written notice thereof is not served upon an adverse party, the latter must (may) continue to recognize the former attorney. (C. C. P., 285.) The requirement that notice be served upon the adverse party is for the protection of such adverse party, and may be waived by him or his attorney. Here the attorneys for plaintiffs acknowledged "due service" of the notice of appeal, and the attorneys for defendant Webb signed the acceptance of service following: "We have received, this eleventh day of March, 1880, a duplicate of the within notice." We construe this to be a waiver of any objection to the notice. If the attorneys for Webb intended to rely upon the want of notice of substitution, they should have returned the notice or refused to acknowledge the service of it. The case is different from Prescott vs. Salthouse (53 Cal. 221), cited by respondent. We think the motion to strike the cause from the calendar should be denied. As stated by appellant in his first point: "The appeal being from the judgment only, must be determined upon the judgment roll alone, a certified copy of which, with the notice and undertaking on appeal, constitute the record herein." Section 670 of the Code of Civil Procedure provides: "Immediately after entering the judgment, the Clerk must attach together and file the following papers, which constitute the judgment roll: "1. In case the complaint be not answered by any defendant, the summons, with the affidavit or proof of service, and the complaint, with a memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment. "2. In all other cases, the pleadings, a copy of the verdict of the jury, or finding of the Court or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment; if there are two or more defendants in the action, and any one of them has allowed judgment to pass against him by default, the summons, with proof of its service upon such defendant, must also be added to the other papers mentioned in this subdivision." With the section of the Code before us we shall proceed to consider the points made by counsel for appellant. 1. Whatever might have been our opinion were the matter res integra, it is settled in this Court that a judgment like that appealed from may be entered in an action for partition. (Hancock vs. Lopez, 53 Cal. 362.) 2. It is urged that the finding that defendant Webb is the sole owner is a finding against the record, and the judgment based upon it erroneous, inasmuch as the answer of said defendant, filed December 3, 1877, admits that he is a tenant in common with plaintiffs and defendant Charles A. Liver more. The transcript however shows an amended answer (filed February 11, 1878), alleging the exclusive ownership of Webb. 3. But appellant claims that the answer of February 11, 1878, is a nullity because it contradicts the answer previously filed, and was filed without any withdrawal of the previous answer, without leave of the Court, and without service on the other parties. The contradiction certainly does not make the second answer a nullity. In favor of the regularity of the proceedings in the Court below, we must presume that the second answer was served on the other parties and filed with the permission of the Court. As suggested by appellant, we are confined to the judgment roll and the Code does not require that the order of the Court granting leave, or proof of service shall be entered on the roll. 4. The same objections are urged to the second amended answer of defendant Webb, and to the "supplemental answer" of the same defendant, filed February 3, 1879, with the additional objection that they were filed "after trial had been had, and findings and interlocutory decree filed." The last statement is correct. The record (as amended after suggestion of diminution) shows, however, that the interlocutory decree had been reversed by the Supreme Court, and the cause returned to the District Court, before the second amended or supplemental answer was filed. Motion to strike from calendar denied and judgment affirmed. We concur: Ross, J., McKee, J. DEPARTMENT No. 1. [Filed December 27, 1880.] No. 10,560. THE PEOPLE, RESPONDENT, VS. GEORGE W. CARLTON, APPELLANT. CRIMINAL LAW-HOMICIDE-DECLARATIONS BY DECEASED WHEN NOT part of RES GESTE. Where on a trial for homicide, in which defendant claimed to have acted in self-defense, the prosecution called the wife of deceased as a witness; and she was allowed to testify against objection, to a conversation shortly before the killing, between herself, deceased and a third person, in which deceased in referring to abusive language applied to him by defendant, said that he intended to give defendant a chance to prove it in the Courts: Held, that the declarations of deceased were not, under the circumstances, a part of the res gesta, any more than the declarations of the other participants in the conversation; and that the admission of the testimony, being calculated to injure defendant, was error. HOMICIDE PREVIOUS DECLARATIONS OF DECEASED OF PEACEABLE INTENTIONS. If, on a trial for homicide, threats by the deceased are introduced on the part of the defendant, the prosecution may rebut the evidence of them; but the prosecution cannot in the first instance introduce declarations of deceased to the effect that he did not intend to assault defendant. Appeal from the Superior Court of San Benito County. N. C. Briggs, B. B. McCroskey and Moore, Laine & Johnson, for appellant. A. L. Hart, Attorney-General, for respondent. Ross, J., delivered the opinion of the Court: The defendant was indicted for manslaughter and was convicted of that crime. Several errors are assigned by him on this appeal, but it will not be necessary for us to consider but one. The fact that defendant killed the deceased is not disputed, but it is claimed on his behalf that in so doing he acted in self-defense. On the trial it had been shown in proof that on the morning of the day of the homicide there had appeared in a newspaper published by the defendant, an article extremely abusive of the deceased, and as tending to show that the deceased was not the aggressor in the affray culminating in his death, the wife of the deceased was permitted to testify, against the objections of the defendant, that her husband breakfasted at home on the morning of the day of the homicide, and that the following conversation then and there occurred, to wit: Mr. Poole, the gentleman that was boarding there, came and told him (deceased) of the article-told him that Mr. Carlton had published an article calling him a horse thief, and I merely remarked to my husband that it was nothing-it was about the horse that was sold awhile ago; for him to publish the right statement-for him to take no notice of Mr. Carlton's remarks. He said, no; I will give him a chance to prove it in the Courts. He went and spoke to Mr. Poole, and after breakfast started out. I said to my husband I would not have anything to do with it. He said, no; I want to give Mr. Carlton a chance to prove it, and after he started out of the door he had his pistol in one pocket-he said, I have a good mind to leave this in the house, but I said not loaded; I don't want to stay in the house with a loaded pistol; and he put it in his pocket and came back and got his hat and cigars and went out." The questions by which this testimony was elicited were objected to by the defendant on the ground that they were immaterial, irrelevant and inadmissible under the issues. The objections were overruled and an exception taken. It is claimed on the part of the people that the declarations testified to by the witness constituted a part of the res gesta and was therefore admissible. People vs. Arnold, 15 Cal. 476, is relied upon in support of the position. In that case it was held that where a rencounter occurs between two persons, one of whom is killed, and the circumstances are equivocal as to which one of the two commenced the affray, the fact that one of the parties had previously procured a weapon for the purpose of using it against the other-although the fact is not communicated to the latter-is a circumstance tending to show that the purpose was fulfilled; and that the declaration made by the party procuring the weapon as to what he meant to do with it, was a part of the res gesta, and illustrative of the transaction. That is to say, illustrative of the act of procuring the pistol. "It shows, in other words," said the Court, "the purpose for which the weapon was procured;" and being a part of that transaction, it was, with the act it tended to illustrate, admissible for the purpose of showing, as far as might be, who was in fact the first assailant. But in the Arnold case if it had not been proven that the deceased in fact borrowed the pistol, his hostile declarations would not have been admissible as a part of the res gesta; for there would have been no act shown with which it was connected, calling for or admitting of explantion. (1 Wharton on Law of Ev., Sec. 266; People vs. Carkhuff, 24 Cal. 640; Commonwealth vs. Harwood, 4 Gray, 40.) Nevertheless the threat would have been admissible as an independent circumstance, to be considered by the jury in connection with the other facts and circumstances of the case, in determining the question which of the parties did in fact commence the affray. The same doctrine in respect to threats not communicated is adopted in People vs. Scoggins, 37 Cal. 676, and in People vs. Alvitre, January session, 1880. Where such threats are introduced on the part of the defendant, the prosecution is of course entitled to rebut the evidence of them; but it does not follow that it can in the first instance introduce declarations of the deceased to the effect that he did not intend to assault the defendant or otherwise commit a breach of the peace. (1 Greenleaf on Ev., Sec. 156; People vs. Carkhuff, supra.) In the case before us the declarations of the deceased were to the effect that he intended to give the defendant an opportunity to prove his charges in Court. The testimony of the witness admitted in evidence consisted not only of these declarations of the deceased, but of declarations of Poole and the witness as well. This testimony was not a part of the res gestæ, and was not admissible under the authorities to which reference has been made, nor upon any theory or principle of the law with which we are acquainted. From it injury might readily have resulted to the defendant, for it might have been and probably was argued therefrom that deceased intended to resort to the Courts rather than to force for redress, and therefore did not commence the rencounter in which he lost his life. Judgment and order reversed, and cause remanded for a new trial. We concur: McKinstry, J., Thornton, J. |