Volume 192 — California Reports

<p>APPLICATION for a Writ of Mandate to require the State Controller to issue his warrants as part payment for the purchase price of certain levees constructed by a reclamation district. Writ granted.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Board or Osteopathic Examiners—Proper Initiative Legislation.—The initiative law of 1922 providing for the formation of the Board of Osteopathic Examiners, and the method for the function of said self -sustaining board- through a system of fees and collections, and further providing that the moneys to be thus derived should be deposited in the state treasury in a special fund, to be drawn upon for the salaries, costs, and expenses of said board, was within the proper sphere of initiative legislation.</p> <p>[2] Id.—Budget Amendment—Construction.—The initiative act of 1922 providing for the formation of the Board of Osteopathic Examiners, etc., was not abrogated, either expressly or by necessary implication, by the adoption of the “budget amendment” to the constitution.</p> <p>[3] Id. — Special Fund op Board — Method Creating and Drawing upon.—Under the initiative law of 1922 providing for the formation of a Board of Osteopathic Examiners, the fees and collections of said board should be deposited in a special fund in the state treasury and the claims of said board for salaries and expenses should be drawn upon and paid out of said fund; and under section 433 of the Political Code it is the duty of the state controller to examine and settle the accounts of said board and to certify the same and the amount thereof to the state treasurer, to be by him credited to said special fund, and it is also the duty of the controller on demand of said board to draw his warrants upon said fund for salaries of said board.</p>

<p>[1] ■Criminal Law—Sentence—Commutation —■ Construction. — Where a prisoner, under a fourteen-year sentence in the state prison, was sentenced as a penalty for an escape to an additional four-year term to follow the first, with forfeiture of credits, and the Governor commuted the two sentences to a single term of ten years, including time served, amounting to eight years, five months, and fourteen days, it was the intent of the Governor that petitioner should serve one year, seven months, and sixteen days, subject to the right of the prison board to parole him during that period.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Landlord and Tenant—Farming Lease—Possession—Construction.-—Under a lease providing that the tenant should pay to the landlord as rental one-fourth of the crops and proceeds derived from farming the land and giving the landlord the right to enter upon the leased premises at any time to make examination of the same and crops and, should he deem it necessary for the protection of his interest in the land or the crops or the rent, to take immediate possession of the leased premises, the landlord’s right to possession accrued to him at his pleasure upon his becoming dissatisfied with the tenant’s methods, and this was certainly true where there was a reasonable basis for such dissatisfaction.</p> <p>[2] Id.—Action to Recover Possession-—Notice—Demand—Waiver —Evidence.—In an action brought by the landlord under such a lease upon becoming dissatisfied with the tenant’s methods, to secure possession of the leased premises, the landlord should have given notice and demanded possession in order to mature his cause of action for possession, but inasmuch as the defendant contested the landlord’s right of possession, the failure to make a demand or give notice was waived.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law—Murder — Viewing Place of Crime — Discretion.—Under section 1119 of the Penal Code the trial court has a broad discretion in permitting the jury to view the place where an offense is charged to have been committed, and the fact that physical conditions upon or about the premises may have been to any degree altered is a matter to be considered by the court in exercising its discretion, the conclusion on which will not be disturbed on appeal in the absence of a clear showing of abuse.</p> <p>[2] Id.—Taking Evidence Out of Court—Irregularities—Manner. There is no special sacredness in the atmosphere of a courthouse or the walls or furnishings of a courtroom which requires that sessions of the court shall be held there and not elsewhere, if otherwise the forms of law governing the trial of causes be observed, and the defendant in a prosecution for murder is precluded from objecting to any alleged informalities in the procedure of the trial court during its viewing of the premises, where he and his counsel entirely acquiesced therein and the counsel actively participated in the taking of testimony and receiving evidence by the jury during the inspection of the scene of the homicide.</p> <p>[3] Id.—Eight to Take Evidence at Scene of Crime.—A jury in viewing premises and having pointed out to them the places which, according to the testimony in the ease, the parties occupied therein at the moment of the crime, are receiving evidence, but this is proper if the forms of law are otherwise observed.</p> <p>[4] Id.—Shower of Scene of Crime—Oath.—Where a shower of the premises appointed by the court in a prosecution for murder was sworn as a witness earlier in the case, he was under oath as such witness in whatever statements he made to the jury in the course of his duties as such shower.</p> <p>[5] Id.—Failure to Swear Bailiff—Irregularity.—Failure to swear the bailiff in such ease is at most an irregularity, which should be objected to at the time.</p> <p>[6] Id.-—Appeal.—The fact that the bailiff or other officer placed in charge of a jury has not been sworn to the faithful performance of his duty in that particular capacity will not be ground for a</p> <p>The right to view by jury, notes 18 Ann. Cas. 730; 42 L. R. A. 368. reversal in the absence of a showing that the unsworn officer has not faithfully performed his duties in that capacity.</p> <p>[7] Id.:—Misconduct—Statement on Irrelevant Matter by Judge. What the court may have incidentally stated concerning a matter upon which he was not required at the time to make a ruling in a trial for murder might possibly be misconduct, but could not be taken advantage of as an error of law.</p> <p>[8] Id.-—Cross-examination—Contradictory Statements—Explanation.—Where a comparison of alleged contradictory statements made by a defendant’s witness in such a ease shows that the witness’ explanation, made at the time of the second statement on cross-examination, was all the explanation the situation required, since his latter statement clarified but did not contradict the former statement, defendant was in no way prejudiced by the fact that a fuller explanation was not given at the time the statement was made or called for later in the witness’ examination.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Flint & MacKay, William A. Bowen, Flint, MacKay & Bowen, U. S. Webb, Attorney-General, John W. Maltman, Deputy Attorney-General, James M. Oliver, Phelps & Winston, Gibson, Dunn & Crutcher and Norman S. Sterry for Appellant.</p>

<p>[1] Criminal Law—Uttering Draft Without Sufficient Funds or Credit — Violation of Section 476a, Penal Code — Pleas of Former Acquittal and Once in Jeopardy—Absence of Evidence —Waiver.—A defendant in a prosecution for a violation of section 476a of the Penal Code in making, drawing, uttering, and delivering a bank draft without funds or credit to meet it upon presentation, claiming his discharge under special pleas of former acquittal and once in jeopardy, waives such pleas where he does not offer any evidence in support thereof.</p> <p>[2] Id.—Special Pleas—Evidence—Waiver.—It is just as necessary to support special pleas by proof as it is to interpose the pleas, and the failure to do either is to be deemed a waiver of the defense.</p> <p>[3] Id.—Former Acquittal—Once in Jeopardy—When Question of Fact and of Law.—The pleas of former acquittal and once in jeopardy present a question of fact which the jury alone has power to pass upon, unless the defendant fails to support such pleas with proof, when it becomes a question of law upon which the court must pass.</p> <p>[4] Id. — Informations — Records — Judicial Notice — Evidence.— Where both informations are identical except that in one an individual is alleged to have not had sufficient funds in nor sufficient credit nor any credit at all with a bank to meet a draft, and in the other it is alleged that neither said individual nor a company had sufficient funds or any credit to meet such draft, and both trials have been held in the same court, in such circumstances the court does not take judicial notice' of what is contained in its flies, the records, or the evidence, but proof must be offered by the defendant to sustain the pleas of former acquittal and once in jeopardy; but even if both informations were before the court for the purpose of determining the sufficiency of the first information, this did not relieve the defendant from the necessity of making full proof before the jury in support of the special pleas.</p> <p>[5] Id.—Time of Trial—Dismissal—Waiver.—An application for dismissal of a criminal prosecution on the ground that the defendant is not tried within sixty days after the filing of the information must be made, in the first instance, in the court where the prosecution is pending, and if the application is not made therein before the trial is begun, the right is waived^</p> <p>[6] Id. — Time for Arraignment — Waiver — Appeal. — There is no statutory or other requirement fixing the time within which the arraignment of a defendant shall take place, and where it does not appear that it was claimed in the trial court that the defendant was not seasonably arraigned, the contention on appeal that the defendant was not so arraigned cannot be sustained.</p> <p>[7] lb.—Defendant Held to Answer—Time for Filing Information—Dismissal—Waiver.—The proper procedure where relief is sought under the first subdivision of section 1382 of the Renal Code is to first apply to the court below for an order of dismissal; and if this be not done the right will be deemed to have been waived.</p> <p>[8] Id.—Statute of Limitations.—An information filed some three years and nine days after the commission of the offense charged is not barred by the statute of limitations where evidence was received tending to support the allegations contained in the information of defendant’s absence from the state for a period of one month and twenty-three days.</p> <p>[9] Id. — Alleged Misconduct of District Attorney — Evidence.— In a prosecution for a violation of section 476a of the Penal Code for making, drawing, uttering, and delivering a bank draft without funds or credit to meet it upon presentation, there was no misconduct on the part of the district attorney in engaging, in casual conversation with one of the jurors in the corridor outside of the courtroom, during a recess, and while he was in plain view of the bystanders, where the district attorney denied that he had mentioned the case or the panel of the jurors to the juror, and the court afforded the defendant the fullest opportunity to support Ms contention of misconduct and admitted all the testimony offered by the defendant bearing on the incident, which testimony showed that there was no foundation for the asserted misconduct.</p> <p>[10] Id.—Rulings on Evidence—Correctness op—Misconduct.—In such a prosecution, after an examination of the record with reference to assigned rulings by the trial court on the evidence, no substantial error is found in any of them; neither is any merit found in the contention that the trial judge expressed an opinion as to a proposition of fact.</p> <p>[11] Id.—Alibi—Instructions.—In such a prosecution, the defendant cannot justly complain that his proposed instructions on the subject of alibi were not given, where the indorsements of the trial court thereon that they were substantially given elsewhere were fully justified by the instructions which the court gave of its own motion, and after an examination of the charge and the proposed instructions, no error is perceived in the action of the trial court in respect to either.</p> <p>[12] Id. — Burden op Proof — Instructions. — In such prosecution, while an instruction proposed by defendant covering the rule of burden of proof should have been given, it cannot be held his rights were in any way prejudiced by the omission, where the given instructions had the effect of conveying to the jury the idea that the prosecution must establish defendant’s guilt beyond a reasonable doubt, and that if the presumption of innocence was not overcome by that degree of proof the jury was in effect told that the burden of proof rested with the prosecution.</p> <p>[13] Id.—Amendment op Section 476a, Penal Code, in 1919—Ap-plicability of to Prosecution.—In such a prosecution, where the defendant’s individual signature on the draft in question followed the name of a company, and the information proceeded against him as an individual for having issued the draft without funds in or credit with the bank, and the evidence showed that the defendant was the company, the prosecution did not fall within that part of section 476a of the Penal Code which was amended in 1919 and after the offense was committed, making it a crime for a person “for himself or as the agent or representative of another or as an officer of a corporation” to draw such a draft.</p> <p>[14] Id.—Verdict—Evidence.—In such prosecution, the evidence was sufficient to justify the verdict of guilty.</p>

<p>[1] Workmen’s Compensation Act—Killing by Fellow-employee— Motive eor—Evidence.—Where an employer directed her chauffeur to accompany her downstairs in her residence to repel suspected burglars and upon reaching a downstairs room a Chinese cook, also in the employ of said employer, stepped from behind a curtain in said room and shot and killed the chauffeur and immediately thereafter went to his room and committed suicide, the killing of the chauffeur being from motives of a private revenge or for some other reason pertaining to him individually, the death of the chauffeur did not arise out of his employment and was not compensable under the Workmen’s Compensation Act.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Phelps & Winston, Frederick J. Winston, Jerome H. Kamm, U. S. Webb, Attorney-General, John W. Maltman, Deputy Attorney-General, James M. Oliver, Flint & McKay, Gibson, Dunn & Crutcher and Norman S. Sterry for Appellant.</p>