Civil Code. It simply provides that no action shall be brought to charge the defendant upon any special promise to answer for the debt of another unless the promise be in writing subscribed by the defendant. (Pennsylvania Statute of Frauds and Perjuries, sec. 1, Brightley's Purdon's Digest, 831.)

The case, however, recognizes an exception to the general rule within which the case now before the court also comes. Speaking of cases that are exceptions to the general rule, the court said: "Arnold v. Stedman, 45 Pa. St. 186, was a case within one of the recognized exceptions. There the promisor's property was liable for the debt of another, independent of the express promise, and the defendant undertook to pay the debt of the property." (The italics are ours.)

In Arnold v. Stedman, 45 Pa. St. 186, Arnold, by a written contract, agreed to sell one Barrett two lots of land on deferred payments, and on failure to make the payments Barrett was "to give possession of said property to said Arnold." Barrett took possession, and whilst he was in possession Stedman built a barn on the lots for Barrett and filed a mechanic's claim of lien for two hundred dollars. Barrett not having made his payments to Arnold, the latter brought suit in ejectment, and during the pendency thereof promised Stedman that if he would not proceed further in the action to enforce his lien, he (Arnold) would pay Stedman's claim, and to this Stedman agreed. Arnold having recovered the lots, Stedman brought suit against Arnold on his promise, and the court held that the promise was not within the statute of frauds. The court said: "Here, then, was a lien or claim upon property in which Arnold had an interest, and it was a benefit to him that no proceedings should take place on the mechanic's lien held by Stedman while his ejectment was in progress. The consideration, therefore, as regarded Arnold, of his promise, was the benefit or advantage to himself arising from Stedman's relinquishing proceedings upon his mechanic's lien. The consideration did not proceed from or to the debtor, but was an entirely new and fresh one between Arnold and Stedman, and was a new, original, and binding contract, Arnold's object being, not to answer for the debt of Barrett, but to subserve a purpose of his own."

So in the case before us the cargo of coal, which was the property of defendant, was in the possession of plaintiff, and liable to him for the freight. Defendant's promise to pay the freight in consideration of the delivery of the coal cannot properly be said to be a promise to pay the debt of the consignor, but was a new binding contract between plaintiff and defendant.

Clay v. Walton, 9 Cal. 329, also cited by defendant, was decided at a time when our statute of frauds did not contain the exception contained in section 2794 of the Civil Code (Hittell's General Laws, sec. 3156), and was not a case where plaintiff delivered to defendant property of defendant upon which plaintiff had a lien, and which lien defendant promised to pay, and is therefore not in point.

Judgment and order denying motion for a new trial are affirmed.

Cooper, J., and Harrison, P. J., concurred

[Crim. No. 7. First Appellate District.-September 15, 1905.]

THE PEOPLE, Respondent, v. EDWARD RICHARDS, Appellant.

CRIMINAL

LAW-MURDER-EVIDENCE-DEGRADING

QUESTIONS-HARMLESS CROSS-EXAMINATION.-Where a witness for the defendant charged with murder had testified on his examination in chief that he was in the habit of sitting around the saloon where the homicide occurred a great deal of the time, and that he had been arrested on a charge of vagrancy as being an idle and dissolute person, the case will not be reversed because of harmless error in permitting the prosecution on cross-examination to ask questions in regard to the same matters that did not tend more strongly to discredit or degrade the witness than the facts he had already testified to on direct examination.

ID. TESTIMONY AT CORONER'S INQUEST ANSWER TO QUESTION-CON TENTION WITHOUT MERIT.-Where such witness was cross-examined on an answer given by him at the coroner's inquest, and upon objection that the whole answer should be read, the court informed the district attorney that he could use as much of it as he desired, a contention that error was committed is without merit where the

district attorney read the whole answer and asked questions thereupon.

ID.-COMPROMISE VERDICT FOR

MANSLAUGHTER-INADMISSIBLE

AFFI

DAVITS OF JURORS.-The affidavits of jurors are not admissible to impeach their verdict, except when there is a resort to chance, and it was not error to strike out affidavits of jurors that they had voted "Not guilty'' and had agreed upon a verdict of manslaughter as matter of compromise with other jurors who had voted for different degrees of murder. ID.-INSTRUCTION-DUTY OF JURORS.-It was not error to instruct the jury that "it is the duty of every juror to reason with his fellowjurors to the end that he may join in a lawful verdict." The instruction only states that which each juror is presumed to have known. The law requires that the jury retire for deliberation, which means careful consideration of the reasons for and against a choice or measure.

ID SELF-DEFENSE-INSTRUCTIONS-BURDEN

OF PROOF REASONABLE

DOUBT.-When the defendant admitted the killing and claimed selfdefense, it was proper for the court to read as part of its charge section 1105 of the Penal Code, that "the commission of the homicide by the defendant being proved, the burden of proving circumstances in mitigation or that justify or excuse it devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that defendant was justifiable or excusable," the court having also instructed the jury that the law does not require the defendant to establish his defense, even by a preponderance of evidence, but that if the evidence was such as to create in the minds of the jurors a reasonable doubt as to the guilt of the defendant, they should acquit him. ID. CHALLENGE TO PANEL-POWER OF SUPERIOR JUDGES-CONSTITUTIONALITY OF CODE PROVISION.-A ground of challenge to the panel that section 204 of the Code of Civil Procedure in so far as it empowers superior judges to draw jurors in counties having over one hundred thousand inhabitants, and requiring the supervisors to draw them in other counties, is unconstitutional is not tenable. That section is constitutional and valid.

LD. CONSTITUTIONAL LAW.-In cases of reasonable doubt the courts will not hold an act void because unconstitutional, and practice and acquiescence in the machinery provided for by the section in question as to the selection of juries, for so many years, sanctioned by the courts, furnish an almost irresistible reason for not overturning it. ID.-UNTENABLE GROUNDS FOR Challenge.—The work delegated to the secretary of the judges, and the qualifications of jurors on the list, are not grounds for challenge to the panel. ID.-DIRECTORY STATUTE-PANEL DRAWN FROM LIST OF PREVIOUS YEAR-ERROR NOT SHOWN.-The provisions of the code as to the selection of jurors in January of each year are directory and are to receive a liberal construction, where the code provides that after a list of jurors has been made and returned they shall serve

for the "ensuing year," or until a new list shall be provided. No error appears in a panel drawn from the list of the previous year, in the absence of any showing that a new list for the current year had been certified and filed with the clerk.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. William P. Lawlor, Judge.

The facts are stated in the opinion of the court.

Milton Shepardson, and R. Clark, for Appellant.

H. V. Morehouse, and forty-nine other attorneys, Amici Curiae, for Appellant as to unconstitutionality of section 204 of the Code of Civil Procedure.

U. S. Webb, Attorney-General, and C. N. Post, Assistant Attorney-General, for Respondent.

COOPER, J.-The defendant was charged with the crime of murder and convicted of manslaughter. He made a motion for a new trial, which was denied, and this appeal is from the judgment and the order denying said motion.

1. It is contended that it was error for the court to permit the prosecution to ask the witness Selvaggo several questions in cross-examination tending to show that he spent most of his time in lounging and loafing in and around saloons and dance-halls.

The witness had testified on direct examination that he was in the habit of sitting around the saloon where the homicide occurred a great deal of the time; that he had been arrested upon a charge of vagrancy, as being an idle and dissolute person roaming around the streets. The cross-examination did not bring out any facts that would more strongly tend to discredit the witness than the facts he had already testified to on direct examination. It is always the safer and more dignified course for the prosecution to refrain from asking questions in cross-examination that are insulting or that tend merely to degrade the witness. But a case will not be reversed because of error in allowing such questions where it is apparent that no injury was done. In this case the witness had, in direct examination, testified to substantially the

same matters that were brought out in cross-examination, and therefore he suffered no injury by the cross-examination.

2. The court did not err in striking out the affidavits of certain jurors, made for the purpose of impeaching the verdict to which they had assented.

The affidavits tended to show that, after the jurors had been deliberating for more than four hours, some voting for murder in the first degree, some for murder in the second degree, some for manslaughter, and some for acquittal,-as the hour was getting late, and to prevent being kept out all night, it was agreed as a compromise that the jurors who had been voting for murder would vote for manslaughter, in consideration that those who had been voting for not guilty would also vote for manslaughter. The affidavit of one juror states: "That in order that another trial of said cause be not had, and to save the defendant from being convicted of murder, and purely as a compromise verdict upon said charge, the twelve jurors being unable to agree upon a verdict, affiant, and others upon said jury who believed in the innocence of the defendant upon the charge of murder, agreed to vote and did vote to convict the defendant of the crime of manslaughter."

are.

The verdict was evidently a compromise, as many verdicts The jurors held different views, but finally, by mutual concessions, reached a mean between two extremes. The jurors who had voted "Not guilty," in order to save another trial and to prevent defendant from being convicted of murder, agreed to the verdict of manslaughter. The jurors who believed the defendant guilty of murder, in the language of one of the affidavits, "seeing after several ballots were taken that it was hopeless to further vote for the conviction of defendant of murder in the second degree in said cause, voted for the conviction of defendant upon the charge of manslaughter."

If a verdict could be set aside because arrived at after discussion and by way of compromise, few verdicts would stand. A juror who would not deliberate and listen to the views of his fellow-jurors would be a dangerous man to have upon a jury. While every juror should act conscientiously, and not sign or agree to a verdict that he does not approve of, yet discussion and listening to the views of others may convince