25 Cal. App.

Volume 25 — California Appellate Reports

161 opinions

25 Cal. App. 1People v. Svendsen (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 9People v. De Martini (1914)
Criminal Law—Pandering—Information Charging Crime in Language of Statute.—An information for pandering is sufficient if it charges the offense in the language of the statute, and states the place where it was committed. Id.—Particular House of Prostitution—Necessity of Alleging.— It is unnecessary for the information to show the particular house of prostitution of which the woman was induced to become an inmate. Id.—Commission of Crime in Two Counties—Variance Between Information and Evidence.—If the information alleges the commission of the crime in one county, while the evidence shows that the crime was committed, partly in that county and partly in another, there is no fatal variance. Id.—Character of House—Proof by Reputation.—In a prosecution for pandering the character of the house involved may be proved by reputation, under the general rule that the character of a house of prostitution may be established by evidence of its reputation aa such. Id.—Amendment of Section 315 of Penal Code—Effect on Admissibility of Evidence of Reputation of House.—The amendment of 1905 to section 315 of the Penal Code, to the effect that in all prosecutions for keeping houses of prostitution “common repute may be received of the character of the house” and the “purpose for which it is kept and used,” does not exclude such evidence in other cases.
25 Cal. App. 12Koskela v. Albion Lumber Co. (1914)
APPEAL from a judgment of the Superior Court of Mendocino County and from orders refusing to vacate the judgment and refusing a new trial. J. Q. White, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 30Dorris v. Alturas School District (1914)
The facts are stated in thé opinion of the court.
25 Cal. App. 34People v. Pedde (1914)
Criminal Law—Assault With Deadly Weapon by Persons Escaping from Officer—Sufficiency of Evidence to Support Verdict.— In this prosecution of two Indians for assaulting with a rifle, with intent to kill, a fish and game warden while they were making their escape from him after he had arrested them for fishing in violation of a county ordinance, the evidence is sufficient to support a verdict of guilty. Id.—Intention of Accused—Question for Jury.—It was for the jury to decide, in view of all the circumstances, whether the Indians intended to escape from lawful arrest, even though it might become necessary to kill one or both of the arresting officers. Id.—Conspiracy to Commit Crime—Presumption That Parties Understand Consequences.—Where men confederate together to commit crimes of a nature or under such circumstances as will, when tested by human experience, probably result in taking human life, if such necessity should arise to thwart them in the execution of their unlawful plans, it must be presumed that they all undertand the consequences which might be reasonably expected to flow from carrying into effect their unlawful combination, and to have assented to the taking of human life if necessary to accomplish the object of the conspiracy.
25 Cal. App. 44People v. Laugenour (1914)
Dedication of Land for Highway—What Constitutes—Platting of Land and Recording op Map.—The survey, platting, marking, and mapping of lands, delineating a strip through them for purposes of a highway, and the filing of the map with the county recorder, constitutes an offer of dedication of the roadway delineated on the map as a public highway. Id.—Dedication by Vendee—Ratification by Vendor.—The fact that the platting and the recording of the map were done by the person who held a contract for the purchase of the lands, instead of by the owners thereof, is not material, if the owners thereafter make conveyances by reference to the map and the highway outlined thereon. Id.—Offer and Acceptance of Dedication—Manner of Manifestation.—The offer of the owner of land to dedicate a highway, and the acceptance of the offer by the public, may be manifested in many different ways. Id.—Consummation of Dedication—When Accomplished—If a binding offer to dedicate land for a highway has been made by the owners, .and before revocation thereof an acceptance by the public is manifested, either by a formal act of the authorities, or by habitual user by the public a sufficient length of time clearly to show that the way has been thus recognized, used, and accepted as a public Mghway, the dedication is fully consummated. Id.—Constructive Dedication—Sale of Lots With Reference to Map.—Where the owner of land has platted it, laid out streets or roadways, and has sold the land by reference to such plat, or where he has a map or plat made, and, selling the smaller subdivisions, has described them as bounded by a road laid out through the larger tract, a constructive dedication arises. Ib.—Common-law Dedication—Estoppel Against Owner.—Independently of statute, the use of a street by the public for a reasonable length of time, where the intention of the owner to dedicate is clearly shown, is sufficient, without any specific action by the municipal authorities, either by resolution or by repairs or improvements. A commonrlaw dedication operates against the dedicator by estoppel, and this estoppel may be invoked by or on behalf of the public at large as well as by the municipal authorities of the city. Id.-—Implied or Constructive Dedication—Facts and Circumstances Showing.—Where the owners of a tract of land caused it to be surveyed and subdivided into smaller tracts with a roadway running through the larger tract upon which the smaller subdivisions abut, recorded the map, made sales of many of such smaller tracts according to the plat, and the purchasers thereafter, for at least twenty years, continuously use the roadway without objection, a dedication is thereby established, notwithstanding no express acceptance was attempted by the county authorities until about eighteen years after the recordation of the map, and the county never worked the road or otherwise recognized it as a public highway, and at the time of tne filing of the map both ends of the roadway were inclosed, and a portion of the roadway was cultivated and used for pasturage by purchasers of the tracts. Id.—Width op Highway—Whether Traveled Way is Conclusive Thereof.—-Where there is a finding or indisputable evidence that a roadway dedicated to the use of the public is, as so dedicated, of a certain width, the fact that the main travel has customarily been confined to narrower limits than the width of the road as marked out and dedicated is not conclusive of the width of the road.
25 Cal. App. 56Fitzsimmons v. Wilks (1914)
Elections—Intention op Voter—Ascertainment prom Ballot Alone. As a general rule the intent of a voter must, in the first instance, be ascertained from the ballot itself, and such intent cannot, by proof of extrinsic circumstances, be shown to be other than that plainly and unequivocally expressed upon the face of the ballot. Id.—Extrinsic Circumstances—Admissibility to Show Intent op Voter.—But this rule is subject to the exception that where the. intent of the voter is doubtful, the ballot must be construed as any other paper writing, and therefore evidence of facts and circumstances of public notoriety concerning the candidates and connected with the election may be resorted to for the purpose of ascertaining the voter’s intention. Id.—Ballots Bearing Only Surname op Candidate—Whether May be Counted—Facts and Circumstances.—Ballots east at a special election to fill the office of justice of the peace, upon which the voters, in writing in the name of a candidate, merely wrote Ms surname, are properly counted, if it appears that he was the only avowed, known, and active candidate by that name for the office, and that the only other persons of that name residing in the township were his wife and two sons, who all endeavored to accomplish his election.
25 Cal. App. 60People v. Strickler (1914)
The facts are stated in the opinion of the court. U. S. Webb, Attorney-General, and J. Charles Jones, Deputy Attorney-General, for Appellant.
25 Cal. App. 68Seals v. Davis (1914)
APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 73Collom v. Roos Bros. (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Bobert M. Clarke, Judge presiding. The facts are stated in the opinion of the court.
25 Cal. App. 80Union Lumber Co. v. J. W. Schouten & Co. (1914)
Action fob Goods Sold and Delivered—Pleading—Amendment op Complaint so as to Add Another Count.'—Where a complaint merely states an action for goods sold and delivered, an amendment thereof setting forth two causes of action, the first being identical with that pleaded in the original complaint, and the second alleging an account stated, that there was an error therein subsequently discovered amounting to the sum claimed to be due under the first cause of action, and praying for equitable relief and judgment for such sum, does not state a new and independent cause of action, since both causes of action have the same identical purpose. Id.—Amendment op Complaint—What Constitutes New Cause op Action—Test.—A new count, offered under leave to amend, must be consistent with the former count or counts, that is, it must be of the like kind of action, and such as might have been originally joined with the others. It must be for the same cause of action, that is, the subject matter of the new count must be the same as the old; it must not be for an additional claim or demand, but only a variation of the form of demanding the same thing. •Id.—Statute op Limitations—Amendment op Complaint.—Since both complaints in such case are for the recovery of the price of the same lot of goods, the action itself, irrespective of the theory on which the right to recover is based, must be regarded, so far as concerns the statute of limitations, as having been commenced when the original complaint was filed. Id.—Account Stated—Omission of Item—Estoppel.—If in such ease the omission to include the amount sought to be recovered in the claim originally presented was due to an oversight and mistake, which was either mutual or suspected by the defendant, the account stated did not work an estoppel, and the court is warranted in surcharging the account. An account stated does not bar a recovery for items not within the contemplation of the parties when the settlement was made. Id.—Definition of Account Stated—Conclusiveness upon Pasties—Opening and Ee-examination.—An account stated is an agreed balance of accounts; an account which has been examined and accepted by the parties. It does not, however, operate as an estoppel, and it may be impeached for fraud or mistake. If there has been any mistake, omission, accident, fraud, or undue advantage, by which the account is in truth vitiated, and the balance is incorrectly fixed, a court of equity will not suffer it to be conclusive upon the parties, but will allow it to be opened and re-examined.
25 Cal. App. 84Johnston v. Tejunga Rock Co. (1914)
Brokers—Sale op Bock—Action to Becover Commission—Estoppel Against Dependant Apter Full Performance.—In an action by brokers against a corporation to recover their commission for making a sale of crushed rock for the corporation, the corporation is estopped, after the transaction has been completely consummated, to defend on the grounds that the brokers were not authorized in writing to make the sale and that the road supervisors who purchased the rock for their county had no authority to represent the county.
25 Cal. App. 92Matter of Application of Mascolo (1914)
Fish and Game Law—Division oe State into Districts—Title oe Act.—The act of June 16, 1913 (Stats. 1913, p. 988), entitled “An act to amend an act entitled ‘An act to divide the state of California into six fish and game districts,’ approved March 21, 1911, by adding a new section thereto,” is unconstitutional, for instead of merely adding a new section, the act purports not only to divide the state into seven fish and game districts, but in fact otherwise materially changes and amends every section of the original act of 1911 (Stats. 1911, p. 425). Id.—Void Amendatory Statute—Eeeect on Original Act.—Such act being void, it is inoperative for any purpose and effects no change whatsoever in the original act of 1911, whereby Los Angeles County was designated as being in the sixth fish and game district. Id.—Section 636% of Penal Code—Uniformity of Operation— Special or Local Law.—Section 636% of the Penal Code, enacted in 1913 pursuant to section 25% of article IV of the constitution authorizing the legislature to create fish and game districts and enact such laws for the protection of fish and game therein as it may deem appropriate to the respective districts, which section provides that “every person .who at any time shall cast, extend, set, draw, use, or continue or assist in casting, extending, setting, drawing, using, or continuing any paranzella, or trawl net for catching fish shell-fish, shrimp, or crabs in the waters of fish and game district six or in the waters of Monterey Bay, shall be guilty of a misdemeanor,” is not in contravention of section 11 of article I of the constitution requiring that “all laws of a general nature shall have a uniform operation”; nor of subdivision 2, section 25 of article IV, which prohibits the passage of local or special laws “for the punishment of crimes or misdemeanors.” Id.—Title of Act More Comprehensive Than Act Itself.—Nor does such act contravene section 24 of article IV of the constitution, which provides that “every act shall embrace but one subject, which subject shall be expressed in its title.” While the title prohibits the use of lompara, paranzella, trawl or drag nets, the inhibition in the body of the act is directed to paranzella and trawl nets only; but the fact that the title is broader than the act itself does not render the act obnoxious to the section of the constitution in question. Id.—Statute Void in Part—Whether Invalid in Toto.—Although a statute may be invalid or unconstitutional in part, the part that is valid will be sustained if it can be separated from that part which is void. Id.—Special Law for Punishment of Crime—Section 636% of Penal Code.—Such section 636% of the Penal Code is not invalid because of subdivision 2, section 25 of article TV of the constitution prohibiting the legislature from passing local or special laws for the punishment of crimes and misdemeanors, since that provision of the constitution is qualified and limited by section 25% of article IV, subsequently adopted. Id.—Interpretation op Constitution—Repu&nant Provisions.—A construction which raises a conflict between parts of a constitution is inadmissible, when by any reasonable interpretation they may be made to harmonize, and in case of irreconcilable repugnancy the provision last in order of time should prevail.
25 Cal. App. 97Lummer v. Unruh (1914)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. C. A. Raker, Judge presiding. The facts are stated in the opinion of the court.
25 Cal. App. 108Baucom v. Baucom (1914)
Divorce—Sufficiency of Evidence to Support Findings in Favor of Defendant.—In this action for a divorce the testimony of the defendant alone, if believed by the court, was sufficient to support the finding that she had not been guilty of the extreme cruelty charged against her. On the other hand, her testimony, with the corroborating testimony of other witnesses, was, if believed by the trial court, sufficient to support the finding that the plaintiff had been guilty of extreme cruelty toward her. The latter finding alone is in turn sufficient to sustain the judgment in favor of the defendant upon her cross-complaint. Id.—Conflicting Testimony—Review on Appeal.—The decision of the trial court in such case, resting upon conflicting evidence, will not be disturbed on appeal. Id.—Evidence—Weight and Credibility—Number of Witnesses.— The rule that when the evidence in a civil case is contradictory, the decision must be made according to the 'preponderance of evidence, contemplates that the court will be controlled by the weight of the evidence, as indicated by the apparent credibility of the witnesses, rather than by their mere numerical preponderance. Witnesses are not counted, but their testimony is weighed.
25 Cal. App. 110MacKey v. Mott (1914)
Municipal Corporations—Pensioned Police Officer—Eight of Surviving Adult Children to Benefits.—Under subdivision 2 of section 96 of the charter of the city of Oakland, providing that upon the death of a service-pensioned police officer from “causes other than those specified in subdivision 1 of the section after ten years of service, then his widow, and if there be none, then his children, and if there be no widow or children, then his mother, if dependent upon him for support, shall be entitled to the sum of one thousand dollars,” the adult children of such a decedent are not entitled to receive the amount named out of the police relief and pension fund. They are not “children” within the meaning of the charter provision. Id.—Purpose of Police Pension Act—Persons Entitled to Its Benefits.—The term “children,” as contained in such charter provision was not intended to be used in the larger sense of sons and daughters. It was not contemplated by the framers of the charter that provision should be made for grown sons and daughters; the purpose of the whole act was to provide for aged and infirm officers and certain necessitous relatives and minor children. Id.—Children—Meaning of Term—Whether Includes Adults.—The meaning of the word “children” in its primary significance is generally understood to have reference to minor sons and daughters of a person, and in eases where the word has received a larger and more extended construction, it has been based upon the intention of the law-making power to so extend it. In such eases the construction of the term depends upon the context and surrounding circumstances. The word when used as expressive of relationship includes sons and daughters of whatever age, but when used in reference to age is confined to minors. Id.—Interpretation of Statutes—Purpose of Legislation.—To arrive at the legislative intent in the interpretation of statutes, the original purpose and object of the legislation must be considered.
25 Cal. App. 117Gratz v. Schuler (1914)
APPEAL from a judgment of the Superior Court' of the City and County of San Francisco and from an order refusing a new trial. Frank J. Murasky, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 124Dresser v. Allen (1914)
Action to Quiet Title—Proceedings to Put in Possession—Matters Determinable.—In proceedings to put in possession a defendant who has recovered judgment in an action to quiet title, the court cannot determine any proprietary rights of a person in possession of the property who was not a party to the action. Id.—Person in Possession Who is not Party to Action—Presumption and Burden of Proof as to Bights—If such person came into possession at any time after the commencement of the action, it is presumed that he came in under the plaintiff, and upon the issue pertaining to his right to remain in possession the burden is upon him to show affirmatively that his possession is rightful and under a title that has not been determined in the action, and that such possession was not taken by collusion with the plaintiff. Id. — Abandonment or Relinquishment — Whether Effectual to Transfer Property.—Abandonment of property cannot be made in favor of a particular individual, nor as a means of transfer from one person to another. Relinquishment by one to another is not abandonment. Id.—Writ of Possession—Occupant not Party to Original Action— Whether may Resist.—The enforcement of a judgment recovered in an action to quiet title cannot be resisted by a person not a party to the action, who asserts the right to retain the premises under a claim of possession adverse to the person against whom the judgment was awarded, when it appears that such claim is founded upon the mere declaration of the latter of an abandonment of the premises to the former and recognition of his claim without any actual removal from the premises. Id.—Alias Writ oe Possession—When Lies.—In such a case the prevailing party is entitled to an alias writ of possession for the possession of the property.
25 Cal. App. 130Hogan Lumber Co. v. City of Oakland (1914)
Fixtures—Temporary Wharf Used to Facilitate Construction of Quay Wall.—A wharf built upon piles driven into the ground on the land side of a quay wall along a city water front and used to pass materials over and facilitate the construction of the quay and intended to he removed when the quay is finished, is not a fixture, but personal property, and upon the insolvency of the contractor and his abandonment of the work the materials in the wharf do not become the property of the city under sections 1196 and 1200 of the Code of Civil Procedure. Id.—Test for Determining Whether or not Structure is Fixture.— Whether a structure is a fixture or not depends upon the nature or character of the act by which it was erected, and the purpose for which it was intended to he used. Id.—Materials as Property of Owner of Structure—Sections 1196 and 1200 of the Code of Civil Procedure.—Sections 1196 and 1200 (since repealed) of the Code of Civil Procedure apply, and make materials furnished the property of the owner of the structure when they are to become part of the structure, but where they are not to he used in and incorporated into the structure to be built, they cannot be said to belong to the owner.
25 Cal. App. 133Morgrage v. National Bank of California (1914)
MOTION by respondent to recall Remittitur. The facts are stated in the opinion of the court.
25 Cal. App. 134Einertsen v. United Railroads of San Francisco (1914)
Negligence—Street Railways—Operation of Car Near Truck— Injury to Passenger on Steps.—In this action against a street railway company by a passenger to recover for personal injuries sustained while riding on' the steps of a ear by coming in contact with a truck standing in close proximity to the track, the trial court was warranted in finding that the ear was operated at an unsafe and dangerous speed, considering that the truck occupied a position so near the car as to be dangerous to occupants of certain parts thereof. Id.—Passenger Riding on Steps of Street Car—Inability to Get Inside Because of Crowd on Steps.—The evidence is sufficient to sustain the findings of the trial court that the defendant railroad company negligently permitted the platform and steps of the car where the plaintiff was standing to remain in a congested condition, so that he could not obtain access to the interior of the ear and thereby escape being injured, and that the injuries sustained by him were not directly or proximately caused by his own negligence or by any want of care on his part, but were the result of the carelessness and neglect of the employees of the defendant. Id.—Questions of Fact for Trial Court.—The questions as to whether or not the plaintiff exercised care to avoid the injuries, and whether the defendant was negligent in permitting the ear steps to become congested, were questions of fact for the trial court.
25 Cal. App. 139Spencer v. Barnes (1914)
Partnership—What Constitutes—Co-operation in Sale of Mining Properties—Single Venture.—Where two persons enter into an oral agreement to obtain an option on certain mining properties and sell them at a profit which is to be divided between them, their agreement constitutes a partnership although the object thereof is a single venture only. Id.—Action for Accounting—Necessity for Decree Dissolving Partnership.—In an action between the parties to such an agreement for an accounting of the profits arising from sales, it is not necessary that the complaint should pray for, or that the court should decree a dissolution of the partnership, if it sufficiently appears from the pleadings that the purpose of the partnership has been fully accomplished prior to the suit. Id.—Profits Illegally Made—Eight of Innocent Partner to Accounting.—If it appears in such action that the defendant has illegally obtained profits in the prosecution of the venture, the plaintiff may invoke the rule that an innocent member of a partnership, created for conducting a lawful business, is entitled to share in a profit which his partner has realized by misconduct in carrying on the business.
25 Cal. App. 149Ballagh v. Superior Court (1914)
APPLICATION for a Writ of Review to annul an order adjudging petitioner guilty of contempt. The facts are stated in the opinion of the court. Davis, Kemp & Post, E. L. Foster, Charles A. Barnhart, L. R. Godward, and Geo. E. Whitaker, for Petitioner.
25 Cal. App. 151Anderson v. Nawa (1914)
Action—Motion to Dismiss for Delay in Serving Summons—Special Appearance.—The mere making and presentation of a motion to dismiss an action upon the ground of unreasonable delay in the service of summons is not a general appearance of the defendant which subjects him to the jurisdiction of the court for all of the purposes of the action. Id.—Enforcement of Liability of Stockholders of Bank—Action by Bank Commissioner — Dismissal for Delay in Serving Summons.—It is not an abuse of discretion to dismiss an action, brought by the bank commissioner against the stockholders of an insolvent banking corporation on behalf of its creditors, for a delay of two years and ten months in serving summons on the moving defendant, where it appears that the summons could have been served at all times without any difficulty, although it is made to appear in opposition to the motion that during all of such period the plaintiff was actively engaged in an investigation of the bank’s assets, which, if successful, would thereby reduce the defendant’s liability as stockholder. Id.—Inability to Serve Some of Defendants No Excuse for not Serving Others.—The difficulty of locating some of the defendants in such an action is not a sufficient excuse for delay in the service of process upon a defendant whose whereabouts is known. The liability of such defendant as a stockholder is primary and independent, and in no sense and to no extent dependent or contingent upon the liability of the remaining defendants, and the court in its discretion might render a several judgment against him without regard to the liability of the remaining defendants, and regardless of whether or not any or all of them have been served with process. Id.—Absence op Injury to Dependant no Excuse por Delay in Serving Summons.—The fact that the delay in the service of summons did not operate to deprive the defendant of any defense which he may have had to the action will not suffice to excuse such delay. Id.—Merits op Case—Whether Considered on Motion to Dismiss Action por Delay in Serving Summons.—The dismissal of an action because of unreasonable delay in the service of summons may be made without regard to the merits or demerits of the cause of action; the motion is granted as to a meritorious cause of action as well as to one without merit, because in either case there has been a failure upon the part of the plaintiff to use the diligence which the law requires to make an end of litigation. Id.—Delay in Service op Summons—Rule That Daches cannot be Imputed to State.—The state bank commissioner, in his action to enforce the liability of stockholders of an insolvent bank on behalf of its creditors, is not invested with the sovereignty of the state, and cannot, on motion by a defendant to dismiss the action for delay in serving summons, invoke the rule that laches cannot be imputed to the state.
25 Cal. App. 158People v. Panagoit (1914)
Criminal Law—Presentation of False Claim to Insurance Company—Sufficiency of Indictment.—An indictment charging a violation of section 549 of the Penal Code, which makes it a crime to present a false claim of loss to a fire insurance company, is not demurrable because of failure to allege that the presentation of the claim was made to a regularly constituted court of justice. Id.—Person to Whom Claim Presented—Gist of Offense.—The statute is not confined to claims arising in courts of justice, but includes the presentation to any person who might be cheated or defrauded thereby. The intent to defraud is the gist of the offense; and the design of the legislature was to provide a punishment for the presentation of false fire claims with the intent to defraud, irrespective of the person to whom such claim might be presented. Id.—Indictment—Failure to Show County Wherein Claim was Presented.-—The validity,of the indictment for such offense cannot be questioned because the testimony taken before the grand jury fails to show that the presentation of the claim was made in the county wherein the indictment was found. Id.—Sufficiency of Evidence Before Grand Jury—Inquiry into by Court.—Courts cannot, in the absence of a statute permitting it, inquire into the sufficiency of the evidence upon which the grand jury acted, in order to invalidate an indictment returned by it. Id.—Evidence—Voluntary Statements Made by Defendant to Attorneys of Insurance Company.—In a prosecution for presenting a false claim of loss to a fire insurance company, voluntary statements in regard to his claim, made by the defendant in the office of the attorneys for the insurance company before his arrest and at a time when he understood his inquisitors had no authority to question him, are admissible in evidence. Id.—Protection of Witness Against Incriminating Testimony— Interpretation of Section 1324 of the Penal Code.—Section 1324 of the Penal Code is in the nature of remedial legislation, and its purpose is to extend protection to witnesses in proceedings other than in the course of criminal prosecutions or other actions, in order that the inquiry for which the tribunals were created may not be impeded or their investigations frustrated through the fear of witnesses that their testimony may incriminate themselves; but it can have no application to an inquiry which is not based or held upon legal authority. Id.—Proof of Corporate Character of Insurance Company—Effect of General Reputation.—In a prosecution for presenting a false claim of loss to a fire insurance company, testimony as to the general reputation of the company for doing an insurance business is sufficient to show that it is a corporation. Id.—Instruction as to Presentation of Claim—Statement of Evidence.-—An instruction to the jury that a presentation of a claim was made is not erroneous, where the defendant has admitted such fact. Id.—Unfamiliarity With Preparation of Claims for Loss—Evidence to Rebut.—Evidence tending to show that on other occasions and under different names the defendant suffered losses from fire and prepared proofs of loss, is admissible to rebut his contention that he was unfamiliar with the preparation of such claims. Id.—Evidence op Other Crimes—When Admissible.—While ordinarily evidence of another offense is not admissible in a criminal prosecution, yet, whenever the case is such that the proof offered in support of the charge tends also to prove the commission of another offense, such proof is admissible; and the fact that it may tend to prejudice the defendant in the minds of the jurors is no ground for its exclusion. Id.—Argument op District Attorney—Reference to Arson—Nonpre judicial Error.—Remarks of the district attorney in his argument to the jury, indicating that the defendant has committed arson, do not justify a reversal of the judgment of conviction, if the evidence establishes his guilt. Id.—Misconduct op Counsel—Necessity op Timely Objection and Exception.—It is the duty of counsel for the defendant, when the district attorney indulges in improper remarks during his argument, to call the attention of the court thereto then and there, so that the court may advise the jury to disregard them; it is too late to raise the question for the first time on appeal.
25 Cal. App. 166Jordan v. Kingsbury (1914)
State Land—Resurvey of Thirty-sixth Section so as to Change Original Boundaries.—Where on an official resurvey of the thirty-sixth section of a township the boundaries are changed so as to include land not embraced by the lines of the section as originally surveyed, the land thus included becomes a part of the school lands of the state and open to purchase under its laws. Id.—Boundaries Between State and Federal Lands—Confusion in as Ground for Refusal of Mandamus.—A writ of mandate to compel the surveyor-general to approve an application to purchase such land will not be denied on the ground that the granting of the writ will create confusion between the state and federal governments as to the boundaries of their respective lands. Id.—Application to Purchase—Acts of Surveyor-general Ministerial—Mandamus.—The power of the surveyor-general, upon an application to purchase state lands, is neither judicial nor unlimited, under section 3498 of the Political Code, but merely ministerial, and he is subject to the compulsion'of a writ of mandate.
25 Cal. App. 169Hanson v. Sherman (1914)
Corporations—Action to Enforce Stockholders’ Liabitliy—Sufficiency of Complaint.—In an action to enforce the liability of a stockholder in a corporation, an allegation in the complaint that at the time the indebtedness was incurred “there were subscribed, issued and outstanding nine thousand five hundred and eighty-eight shares, and no more, of the capital stock” of the corporation, constitutes a sufficient statement, in the absence of a special demurrer, of the total amount of the capital stock that was subscribed for at the time the obligation in suit was incurred. Id.—Special Demurrer—Effect of Overruling With Consent of Defendant.—The overruling, with the express consent of the defendant, of a special demurrer to such complaint, is tantamount to a withdrawal of the demurrer, in so far as it was grounded upon the ambiguities and uncertainties of the complaint. Id.—Evidence as to Whether Defendant Is Stockholder—Conclusion of Witness.—Where, on the issue in such case whether the defendant was a stockholder, the vice-president of the corporation is asked to state under what circumstances the stock in question was issued to the defendant, his answer that the stock “was issued by the corporation to Mr. E., trustee, for Mr. P., as a bonus for a loan of $25,000, which he had made to the M. Company,” is properly stricken out as not responsive and as the conclusion of the witness. Id.—Circumstances Controlling Issuance of Stock—Admissibility in Evidence.—Upon the issue of whether or not the defendant was a stockholder in the corporation, evidence of the circumstances covering and controlling the issuance of the stock to him is competent, relevant, and material, provided it is accompanied with or followed by other evidence showing or tending to show that the circumstances of the transaction had been communicated to the defendant. Id.—Mailing List of Names of Stockholders—Admissibility to Show Who are Stockholders.—A list of names written upon the fly-leaf of the corporation’s stock journal, as the persons to whom notices of stockholders’ meetings were sent, is not admissible to show that the defendant was a stockholder, where the same is not followed by any evidence showing that notices had been sent to him. Id.—Entry in Corporation Books as Evidence of Who are Stockholders.—The entry of the defendant’s name in such list did not constitute an entry of his name in the books of the corporation as a stockholder, within the meaning of section 322 of the Civil Code, so as to be prima facie evidence that he was the owner of stock in the corporation. Id.—Assertion That Person is Stockholder—Whether Evidence of Such Pact.—An assertion that the defendant was a stockholder in the corporation, made to him at a meeting of stockholders and creditors, is not evidence against him that he was a stockholder, unless the truth of the charge was admitted by him, either by his express answer, or his acquiescense indicated by his silence, or by acts and conduct which could be fairly construed as an assent. Id.—Ultra Vires Issue of Stock as Pledge—Whether Constitutes Pledgee a Stockholder.—The ultra vires issuance of stock by a corporation as a pledge for the repayment of a loan does not have the effect of transforming the person receiving the same from a pledgee to a stockholder liable for the corporate debts. Id.—Witness—Conclusion Concerning Effect of Transaction.—A witness may not testify as to his conclusions concerning the effect of a transaction, even where the facts themselves are disclosed,
25 Cal. App. 177McNutt v. Pabst (1914)
APPEAL from an order of the Superior Court of Los Angeles County refusing a new trial. Franklin J. Cole, Judge presiding. The facts are stated in the opinion of the court.
25 Cal. App. 183Ayers v. Kingsbury (1914)
State Land—Application to Purchase—Purpose and Effect of Deposit and Receipt Therefor.—The deposit required by statute from an applicant for the purchase of state land is intended to be nothing more than a mere conditional deposit, and the receipt to be given therefor does not become a part of the purchase price, and cannot be accepted as such, before the application to purchase has been approved. Id.—Proceedings to Purchase Land—Status of Purchaser During Pendency—When Rights Become Irrevocable.—Pending the preliminary proceedings prescribed for the purchase of public lands, the state recognizes no absolute right in the applicant, and does not enter into a contract of purchase and sale with him until the payment of the first installment of the purchase price; that is to say, not until the applicant receives a certificate of approval under section 3498 of the Political Code, and has taken it to the county treasurer and made the first payment of twenty per cent of the purchase price, does the state recognize any irrevocable right in the applicant. When this has been done, then the state closes a contract of purchase and sale, and evidences it by the issuance of a certificate of purchase, showing the class of lands purchased, etc. Id.—Withdrawal of Land From Sale—Effect on Pending Application to Purchase.—The withdrawal of public lands from sale prior to approval of the applications to purchase, and the payment in whole or in part of the purchase price, finally and effectually ends all preliminary proceedings instituted for the purchase of the lands. Id.—Compliance by Purchaser With Preliminary Requirements— Extent of Resulting Rights.'—The mere compliance of applicants to purchase state lands with the requirements of the law relating to the making and filing of applications therefor, secures to them nothing more than the privilege of becoming the exclusive purchasers of the lands applied for in the event that the state does not withdraw them from sale before the contract of purchase is completed by the approval of the application and the payment of the first installment of the purchase price. Id.—Withdrawal of School Land—Mandamus to Compel Surveyor-general to Act on Pending Applications to Purchase.—Mandamus does not lie to compel the surveyor-general to file applications to purchase from the state as school lands certain sixteenth and thirty-sixth sections, although at the time the applications were presented the lands were open for sale, if subsequently to such presentation and prior to the expiration of the time for the approval of the applications by the surveyor-general, the state by legislative enactment withdrew the lands from sale and expressly prohibited the surveyor-general from receiving or filing any applications to purchase them.
25 Cal. App. 192Hooper v. Kingsbury (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 193Oakland Barge & Lighter Co. v. Foster (1914)
Negligence—Loss of Leased Barge—Sufficiency of Evidence to Support Findings Exonerating Lessee.—In this action by the lessor of a barge against the lessee to recover for its loss, the evidence is sufficient to support the findings that, at the time of the loss, the barge was being operated in a careful and proper manner by the defendant, that everything that human skill and agency could do to prevent the loss was being done by him, that the loss was entirely without his fault, and that it was occasioned by causes beyond human control. Id.—Lease of Barge—Degree of Care Exacted of Lessee.—Such case presents a loss of property while in use under a compensated bailment, and therefore the defendant could be held liable for the loss only in the event that he failed to employ ordinary care and prudence in the use of the property. Id.—Loss During Unusual Storm—Burden of Proof as to Negligence.—If the defendant contends that the barge was lost as a result of a sudden, unusual, and extraordinary storm, the burden is upon him to establish such fact; and when he has done this, the burden shifts to the plaintiff to the extent of affirmatively showing that, notwithstanding the storm, the barge would not have been lost but for the defendant’s negligence or his want of skill or care in operating it. Id.—Conflicting Evidence—Conclusiveness of Decision of Trial Court.—If there is a substantial conflict in the evidence on this issue, the decision of the trial court based thereon will not be disturbed on appeal. Id.—Loss of Barge in Storm—Evidence of Effect of Storm on Other Vessels.—On. the issue whether the barge was lost through the negligence of the defendant or as the result of a storm, evidence of the effect of the storm upon other vessels similarly situated is relevant and material. Id.—Expert Evidence—Hypothetical Questions—Necessary Basis. On such issue an objection that the facts stated in the hypothetical questions put to an expert witness are not sufficient in themselves to enable him to form and express an opinion as to the causes which produced the loss of the barge, goes to the weight of the evidence sought to be elicited by the questions rather than to the admissibility of such evidence, and is properly overruled. Id.—Hypothetical Questions—Upon What Must be Founded.— Hypothetical questions must always be founded upon admitted facts or other evidence in the case. Id.—Motion to Strike Out Evidence—Absence of Previous Objection.—A motion to strike out evidence, if not preceded by any objection, will be overruled. Id.—Unreliability of Tow-boats Operated by Gasoline—Striking Out of Expert Testimony Regarding—Harmless Error.—The striking out in such action of expert testimony as to the general unreliability of tow-boats operated by gasoline engines is harmless error, if no claim is made that the failure of such engines to work, while being used to tow the barge during the storm, contributed to the loss of the barge.
25 Cal. App. 199Bragg v. Martenstein (1914)
Gift to be Consummated in Case of Death—Package of Stock and Bonds—Indorsement on Wrapper.—An understanding between a man and Ms daughter that each of them shall prepare papers disposing of their respective properties, which are to be placed in their respective packages, and that, in ease it becomes apparent to either that the other is about to die, the former shall put the contents of the package or envelopes of the one about to die into the possession of the parties to whom their inelosures are respectively addressed, is not changed, nor is the agency to make delivery of the package or envelopes of the daughter containing indorsed stock and bonds revoked, by the written indorsement by her on the brown paper wrapper, “In ease of my death to be opened only by Robert Bragg, Sr., or Rebecca Bragg Martenstein,” who are her father and sister and who are designated as executors in her contemporaneous will disposing of the rest of her estate, there being no direction in any of the writings as to the delivery of the inelosures upon the opening of the package. Ib.—Interpretation of Word “Only” on Wrapper of Package.—The word “only,” contained in such indorsement, is a limitation upon the persons who might open the package, and not upon the time when it is to be opened. Id. — Contemporaneous Writings — Interpretation Together.—The writing upon the outside of the wrapper and the writings upon and within its inelosures, if made contemporaneously and as parts of the same transaction by the decedent, are to be construed together; but no part of such writings is to receive an interpretation which will render them unlawful, inoperative, indefinite, unreasonable, and incapable of being carried into effect. Id.—Circumstances Under Which Writings Were Made—Recourse to in Determining Their Meaning.—It is the duty of a court, when such documents come before it, to place such an interpretation upon the obscure direction of the writing upon the outside of the wrapper as will not only give a reasonable effect to what the writer intended by it, but in so doing, will also render effectual and valid the intent and purpose of the writer as expressed in its inclosures; and in order to do this, it is the province of the court to have recourse to the circumstances under which these several contemporaneous writings were made, as disclosed by the undisputed evidence in the ease. Id.—Interpretation op Contract—When Question op Law.—When a writing requires explanation, and the circumstances surrounding its creation, as disclosed by the evidence, are undisputed, it becomes a question of law for the court, not a question of fact for the jury, to determine what the proper construction of the writing should be. Id.—Intention op Deceased—Evidence Establishing—Direction op Verdict.—In this action by the executor of the will of the daughter to recover damages for the alleged conversion of the stocks, the undisputed facts as disclosed by the plaintiff himself, the father, show that it was the life-long purpose and intent of his daughter that her four sisters should be invested with the ownership of the respective shares of stock and bonds which were inclosed in the envelopes respectively indorsed and directed to them, and that this should be done by the delivery of such envelopes to the persons to whom they were directed when it became apparent to her father that she was about to die, that he was to act as her agent in the execution of such purpose, and that no intent on the part of the daughter to change this plan or revoke this agency was ever manifested by her to him during her life; and the' court, with all these facts before it, properly instructed the jury to return a verdict for the defendant. Id.—Costs op Administration op Estate—Payment Out op Dividends prom Stocks.—An understanding between the daughter and her father that the dividends and income from the stocks and bonds which he had put into the possession of her sisters was to be applied to the costs of administering her estate, is not a condition in any way affecting the validity of the gifts themselves, but at the most an obligation cast upon the respective donees to apply these revenues to the indicated purpose.
25 Cal. App. 206Allen v. Los Molinos Land Co. (1914)
Damages—Breach op Contract to Supply Water por Irrigation-Loss op- Crop—Suppiciency op Evidence to Support Bindings.— In this action to recover damages for breach of contract by the vendor of land to furnish the vendee water for irrigation, resulting in the loss of the latter’s potato crop, the findings as to the preparation of the land for planting, as to the time when it was ready to receive water, as to the arrest of the growth of the potatoes by reason of the lack of water, and that when water finally was furnished it was too late to save the crop, are supported by the evidence. Id.—Measure of Damages—Value of Crop Less Cost of Growing and Marketing.—The correct measure of damages in such case is the market value of the potatoes at the selling place, less the expenses incurred in growing and marketing the crop; under the rule of section 3300 of the Civil Code that where an action is for the breach of an obligation arising from contract, the measure of damages “is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the the ordinary course of things would be likely to result therefrom.” Id.—Findings as to Damages—Interpretation—Whether Support Judgment.—A finding by the court in such case that the cost of producing and marketing the crop “would have been the sum of $129.00, and that the net damage accruing to the plaintiff, to wit, the value of the crop that would have been produced less the said sum of $129.00 was as great as $700.00,” is not a finding that the value of the crop was seven hundred dollars, but that its value was a sum equal to at least seven hundred dollars, after deducting $129.00, and it supports the judgment for seven hundred dollars. Id.—Evidence to Show That Furnishing of Water was Inducement to Contract.—It is not error to admit testimony in such action that the agreement that water was to be furnished for irrigation was an inducement to purchase the land. Id.—Amendment of Pleading During Trial—Discretion of Trial Court—Review on Appeal.—The allowance or disallowance of an amendment in the midst of a trial is within the discretion of the trial court, and its ruling will not be disturbed on appeal unless such discretion has been abused. Id.—Amendment of Answer so as to Show Ability to Furnish Water—When Properly Refused.—It is not an abuse of discretion in such an action for the court to refuse to permit the defendant, during the trial, to amend its answer by alleging that it could have put its ditches into condition to furnish the plaintiff with water if demand therefor had been made, where the complaint alleges that the defendant had not completed the canals and was not in a condition to deliver water and the answer does not deny the allegation. Id.—Notice to Corporation of Averments of Complaint Where Its Officer Verifies Answer.-—If the answer was verified by the superintendent of the defendant corporation, it is charged with notice of the averments of the complaint and cannot claim surprise at the trial when a case is made in accordance with the pleading. Id.—New Trial—Mental Condition of Attorney as Ground.—A trial court does not err in denying the defendant a new trial on the ground that its attorney was afflicted with brain trouble at the time he prepared its answer, where it appears that, although the attorney died shortly afterward suffering from such malady, he exhibited his usual mental vigor in attending to other legal matters at the time of his alleged mental impairment.
25 Cal. App. 216Weller v. Brown (1914)
APPEAL from a judgment of the Superior Court of Mendocino County and from orders refusing judgment on findings and retaxing costs. J. Q. White, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 222Taber v. Piedmont Heights Building Co. (1914)
APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. Wm. S. Wells, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 231Britt v. East Side Hardware Co. (1914)
Intervention—Order Disallowing—Appeal—Bill of Exceptions— Authentication of Record.—While an order disallowing an intervention amounts in legal effect to a final judgment as to the proposed intervener, yet where an appeal is taken from such order, the record thereon must be- authenticated by a bill of exceptions containing all the papers and documents used in that particular proceeding and upon which the trial court acted in making the order. Id.—Judgment-roll—Certification of Record.—It can hardly be said that there is, within the contemplation of section 670 of the Code of Civil Procedure, a judgment-roll in a proceeding on a motion for leave to intervene in an action, where the motion -has been denied, and hence the certificate of the clerk of the trial court that "the foregoing is a true copy of the transcript of the judgment-roll in the above entitled cause,” is not an authentication of the record on the motion. Id.—Authentication of Record—Method Prescribed by Rule of Supreme Court.—The only proper method for authenticating a record on an appealable order is by a bill of exceptions, as required by rule XXIX of the supreme court. Id.—Absence of Pleadings of Original Parties from Record—Presumption.—Where the record on appeal from an order disallowing the application of a stockholder to intervene in an action brought against his corporation does not show the pleadings of the original parties, the appellate court will assume that no legal ground or reason was presented for the intervention sought. Id.—Position of Appellate Court—Affirmance of Order.—In the absence from the bill of exceptions of the pleadings of the original parties, it is impossible for the appellate court to determine whether the proposed intervention appertains to the same transaction or the alleged cause of action upon which the action is founded, or whether the appellant is interested in the subject matter of the litigation and entitled to intervene, or whether he has presented any different or further facts than those set up in the defendant’s answer, and the order will be affirmed.
25 Cal. App. 236People v. Petros (1914)
Criminal Law—Order Granting New Trial—Appeal—Opinion of Trial Court as Part of Record.—Upon an appeal from an order granting a new trial in a criminal prosecution the opinion of the trial court, rendered at the time of the granting of the motion, which sets forth the reasons impelling the conclusion of the court that the verdict was not justified or sustained by the evidence, is no part of the record and cannot be considered in determining the propriety of the order. Id.—Pandering—Attempt to Commit—Conflict in Evidence.—In this prosecution for pandering there appears a conflict in the evidence upon the vital question whether the defendant committed any overt act in furtherance of what seems to have been a well-established intention in him to commit the crime charged, and hence the appellate court is required to affirm the order of the trial court granting a new trial on the ground of the insufficiency of the evidence to sustain the verdict of conviction. Id.—New Trial—Conflicting Evidence—Discretion of Trial Court. The granting or denying of a new trial on the ground that the evidence is insufficient to justify the verdict, where there is a substantial conflict in the evidence, rests so fully in the discretion of the trial court that its action is conclusive upon an appellate court, unless it appears that there has been an abuse of discretion. The action of the trial court, in such a case, is so far a matter within its discretion that its decision, if there is any appreciable conflict in the evidence, is not open to review. Id.—Motion for New Trial—Authority of Trial Court—Probative Value of Testimony.—While a trial court will not be allowed to trespass upon the functions of the jury, it is nevertheless invested with a supervisory control over a trial before a jury and is legally authorized to grant a new trial where it entertains a well-founded opinion, or one which appears to be sufficiently well-founded to preclude a reviewing court from declaring it not to be, that the result reached by the jury is not justified by the evidence. And, in determining this question upon a motion for a new trial, the trial court may pass upon the probative value of the testimony submitted in proof of the charge against the accused. Id.—Pandering—Attempt to Commit—What Constitutes.—Where a man represents to a woman that he will procure her a position if she will accompany him to a certain city, and thereupon he takes her to a hotel in such city, where they occupy apartments as husband and wife, and in a few days he turns her over to a prostitute to be put in a house of prostitution, he is guilty of an attempt to commit pandering, notwithstanding he does not personally procure for her a room or house in which to carry on prostitution, and the prostitute, to whom he intrusts her, intends to and does deliver her from him and places her in charge of the authorities for her protection. Id.—When Attempt at Crime is Completed—Intervention of Cir- • CUMSTANCES PREVENTING CONSUMMATION OF OFFENSE.—Under the language of the statute defining pandering, where it is made to appear that the inducement, persuasion, or encouragement, practiced by the accused, has reached the point that its effect would be to cause the female to become an inmate of a house of prostitution but for the intervention of circumstances apart from and independent of his will, the crime of an attempt to commit pandering is accomplished. Id.—Attempt to Commit Crime—What Constitutes.—An attempt to commit a crime consists of an intent to commit it, and a direct ineffectual act done toward its commission. To constitute the crime of an attempt to commit a crime, the acts of the defendant must go so far that they will result in the accomplishment of the crime unless frustrated by extraneous circumstances.
25 Cal. App. 247Watterson v. Owens River Canal Co. (1914)
APPEAL from a judgment of the Superior Court of Inyo County and from an order refusing a new trial. Wm. D. Dehy, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 255Altpeter v. Postal Telegraph-Cable Co. (1914)
Appeal—Appealable Order or Judgment—Whether Appeal Lies from Order Refusing to Vacate.—Generally the party aggrieved by a judgment or an order must take his appeal from the judgment or order itself, if an appeal therefrom is authorized by statute, and not from a subsequent order refusing to set it aside. Id.—Relief in Equity from Judgment After Expiration of Time to Appeal.—The aggrieved party to a judgment ordinarily must appeal to equity in the form of an independent suit for that purpose, where, the time within which he might have appealed therefrom having passed, he desires to set it aside for reasons extrinsic or collateral to the questions examined and determined in the action. Id.—Exceptions to Rules—Section 473 op the Code op Civil Procedure.—But there are exceptions to these rules, and the legislature has seen fit to make provision for the application of some of these exceptions in section 473 of the Code of Civil Procedure. Id.-—Failure to Serve Summons—Right op Dependant to Vacate Judgment and File Answer.—The provision of such section permitting the defendant to answer where personal service of summons has not been had, necessarily presupposes the right in the party to the action upon whom personal service of summons has not been had to have the judgment set' aside preliminarily to the filing of the answer. Id.—Service op Summons on Wrong Corporation—Right op Corporation not Served to Have Judgment Vacated on Motion.—Under the provision of section 473 of the Code of Civil Procedure that “when from any cause the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action,” a defendant corporation which was not served with summons, service having been made instead upon a foreign corporation by the same name, and hence which did not defend or appear, may, six months after it might have appealed from the judgment, move to set it aside. Id.—Section 473 op the Code op Civil Procedure—Cumulative Remedy.—Such provision of the Code of Civil Procedure does not contemplate a new or an independent suit in equity to set aside the judgment in order to enable the defendant to answer to the merits; it is intended as a distinct remedy from and cumulative to that which may be had in a court of equity to annul a judgment, the time for appealing from which has passed. Id.—Constructive Service—Whether Code Provision Confined to Cases op.—The application of such code provision is not confined to cases where constructive service has been had and a default judgment thereupon entered.
25 Cal. App. 268Columbia Crude Oil Co. v. Deyo (1914)
Appeal—Order Denting Motion to Recall Execution—Insufficiency of Record—Dismissal.—An appeal from an order denying a motion to recall and quash an execution, and from an order denying an application for an injunction restraining the sheriff from further proceedings under the execution, will be dismissed, if in lieu of a bill of exceptions settled by the court and exhibiting the alleged errors of the court in the proceedings, the appellant has incorporated in a typewritten copy thereof certain affidavits, telegrams, and letters, certified by the clerk to be true copies of such original documents on file in his office, and it does not appear that these documents were presented to the court or considered upon the hearing of the motions, or, assuming they were so offered and received, that other evidence was not offered and considered. Id.—Absence of Bill of Exceptions—Authentication of Transcript. When a bill of exceptions is not adopted as a means for presenting the record on an appeal from such orders, the party appealing must, in having the record authenticated, comply with the provisions of section 953a of the Code of Civil Procedure, under which he must request a transcript of the evidence offered or received, to be settled and signed by the judge, after noticie as therein provided.
25 Cal. App. 269Parkin v. Grayson-Owen Co. (1914)
APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. Wm. S. Wells, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 282Northern Light Mining Co. v. Blue Goose Mining Co. (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Geo. A. Sturtevant, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 295Salo v. Smith (1914)
The facts are stated' in the opinion of the court.
25 Cal. App. 303California Canneries Co. v. Canton Insurance Office (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Jamies M. Troutt, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 314People v. Parrish (1914)
APPEAL from a judgment of the Superior Court of Butte County and from an order refusing a new trial. H. D. Gregory, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 323Kaiser v. Hancock (1914)
APPLICATION for a Writ of Mandate to be directed against the Judge of the Superior Court of Calaveras County. The facts are stated in the opinion of the court.
25 Cal. App. 329People v. Osaki (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 331Lincoln v. Sibeck (1914)
MOTION to dismiss appeals from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. L. T. Price, Judge presiding. The facts are stated in the opinion of the court.
25 Cal. App. 332People v. Gilmore (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 334People v. Isenberg (1914)
Criminal Law—Attempt to Commit Larceny—Substitution op Bogus por Genuine Bing.—Where two men enter a jewelry store, ask to be shown some diamond rings, and while a sale is being negotiated the salesman discovers an imitation diamond ring has been put in the tray in place of a genuine one, and upon his demand that the ring be returned the would be purchasers run away, and afterward the good ring is found upon or under the rubber mat on the show ease and a bogus ring is found on each of their persons, the evidence is sufficient to support a conviction of an attempt to commit larceny. Id.—Confession—Admissibility When Made to Police Officer.—If one of the men, after his arrest, makes a statement as to the commission of the offense to police officers in response to their interrogations, there being no coercion, improper importunities, or inducements, the confession is admissible against him.
25 Cal. App. 337People v. Perry (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 342People v. Hail (1914)
Criminal Law—Homicide—Sufficiency of Evidence to Sustain Conviction.—In this prosecution for homicide, although thé evidence is technically sufficient to uphold the conviction of manslaughter, there exists grave doubt of the guilt of the accused of any crime. Id.—Argument of District Attorney—When Improper and Ground for Reversal.—Where there is a manifest paucity of evidence tending to establish the guilt of the accused, as is here the case, it is reversible error for the district attorney to state in his argument that the jurors, if they acquit the defendant, will be afraid to go upon the streets and meet their fellow-men. Id.—Duty of District Attorney—Majesty of Law—Keeping Within Record.—A public prosecutor represents all the people, of whom every person accused of violating public law is none the less one because he is so accused. He represents the majesty of the law, which stands for the protection of every citizen against the taking of his life, his liberty, or his property without its due process—the law which condemns rather than commands the conviction of a person of a public offense upon insufficient evidence or by unfair means. That official should always do his sworn duty, of course, but he should always do it fairly and justly and not permit the great power with which he is clothed to be converted into an instrument of persecution. He should, as indeed any lawyer should, in his address to a jury, remain strictly within the record, and not attempt to evolve any theory or to import into the case any features not fairly and reasonably justified by the proofs. Id.—Misconduct of District Attorney—Review on Appeal.—Alleged misconduct of a district attorney may be reviewed on an appeal from the judgment, notwithstanding the absence of any ruling of the trial court in reference thereto, if objection is made by the defendant and the trial court refuses to take any heed thereof, and exception is reserved and presented by a proper record on appeal.
25 Cal. App. 363Johnson v. Works (1914)
New Trial—Settlement of Statement—Mandamus to Compel.— Mandamus lies to compel a trial judge to= settle a statement of the case on a motion for a new trial, although no transcript is furnished him of so much of the evidence as is necessary to explain the specifications attached to the plaintiff's motion, where the proposed statement conflicts with the proposed amendments of the defendant. Id.—Duty of Judge to Act—Sufficiency of Statement.—It is the duty of the judge, in some form and to the best of his ability to remember what occurred at the trial, to settle the statement; but if the petitioner has not furnished a transcript of the testimony, and a long timo has elapsed since the trial, he cannot complain if the statement as approved is in more general terms with respect to the evidence contained therein than it would be if the exact terms of the testimony were embodied in a transcript.
25 Cal. App. 366Midway Five Oil Co. v. Citizens National Bank (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 369People v. West (1914)
Criminal Law—Homicide Committed by Inmate of Insane Asylum —Submission of Question of Insanity to Jury.—Where inmates of an insane asylum, who have not been cured or discharged, commit a homicide iu attempting to escape, the court must, on motion made before their trial for murder,' submit the question of their present insanity to a jury as provided by section 1368 of the Penal Code. Id.—Insanity—Competency of Accused to Make Defense.—The question thus presented to the court is different from that involved in the consideration of whether the defendants are responsible for the alleged homicide. As to their responsibility for the crime charged, the inquiry must be whether they knew the difference between right and wrong and could distinguish the quality and consequence of their act, but here the question is whether they are mentally competent to make a rational defense. Id.—Insanity of Accused—Discretion of Court in Submitting Question to Jury.—There is no discretion left in the court, in the matter of submitting the question of the sanity of a defendant to a jury, when a doubt arises as to Ms sanity; and ordinarily if there are statements under oath of a credible person or persons that he is insane, such doubt is or should be raised and the question must be submitted to a jury. The only contingency is, Does doubt arise? Id.—Jury to Try Insanity—When must be Impaneled.—If information comes, from a proper source and through proper channels, that the defendant is insane, or if, through observation and personal inspection, the information is disclosed to the court, a jury must be impaneled to pass upon Ms mental condition. Id.—Responsibility for Crime—Ability to Make Defense.—A person may be sane enough to he responsible for a crime and yet incapable of making Ms defense, and, on the other hand, he may have mental capacity to be placed on trial and yet be insane within the contemplation of the law as to responsibility for a criminal act.
25 Cal. App. 373People v. Akens (1914)
APPEAL from a judgment of the Superior Court of Butte County and from an order refusing a new trial. H. D. Gregory, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 376New York Life Insurance v. Daley (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 380Harris v. Bucher (1914)
Architect—Action for Services—Compliance With Statute Regulating Practice of Architecture.—In an action brought by one practicing architecture to recover for services rendered, it is not necessary to allege and prove compliance by him with the act (Stats. 1901, p. 641) regulating the practice of architecture and thereby show that he is not guilty of a misdemeanor, but noneompliance with the statute is a matter of defense to be pleaded and proved by the defendant.
25 Cal. App. 383Brunson v. Santa Monica (1914)
25 Cal. App. 383Brunson v. City of Santa Monica (1914)
Appeal—Order Sustaining Demurrer not Appealable—Dismissal oe Appeal.—No appeal lies from an order sustaining a demurrer without leave to amend, and if such appeal is attempted, it will be dismissed. Id.—Order Sustaining Demurrer—How Beviewable.—The only method of review in such case is through an appeal from the final judgment, if unfavorable, thereafter entered in the action itself.
25 Cal. App. 384Nourse v. City of Los Angeles (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 388People v. Ford (1914)
Criminal Law—Homicide—Change of Venue—Essentials of Affidavit.—The affidavit in support of an application for a change of venue in a homicide case, on the ground of local prejudice and bias of the judge, should not stop with stating conclusions; it must state facts, and the facts stated must be sufficient to convince a reasonable mind that the opinion of the affiant is well founded. Id.—Affidavit for Change of Venue—When Insufficient.—An affidavit in a homicide case which merely alleges that friendly relations existed between the judge and the deceased, that the latter was a popular public officer, that the mind of the public is inflamed against the defendant, and that the person in relation to whose property and affairs the homicide occurred is a wealthy and widely known landowner, without setting forth more facts showing bias and prejudice calculated to interfere with a fair trial, is insufficient to sustain an application for a change of venue. Id.—Homicide—Indictment in Language of Statute—Proof of Conspiracy.—Where an indictment charges several persons with murder in the language of the statute, evidence is admissible to show a conspiracy between them, it appearing that the homicide was committed while, they were engaged in the commission of an unlawful act. Probf of the conspiracy is not made to establish another and distinct crime—that is, conspiracy as such—but to show the circumstances under which the homicide was committed and that the acts were unlawful in the commission of which the killing resulted. Id.—Conspiracy Resulting in Homicide—Principals and Accessories. Where one person unites with one or more other persons in an enterprise to commit an unlawful act, whether a felony or misdemeanor, with the intention to withstand all opposition by force, and is present aiding and abetting the deed, and murder is committed by some one of the party in pursuance of the original design, or the unlawful act results in death, he is guilty as the principal or immediate offender. Id.—Responsibility of Conspirators—Act not Originally Intended. In such case each conspirator is responsible criminally for the acts of the others, done in furtherance of the common design, although such acts were not intended as part of the original plan. Id.—Resisting Arrest by Striking Labor Leader—Inciting Others to Assist—Homicide by Conspirators.—If it is shown in a prosecution for homicide that the defendant, as the leader of a large number of striking hop pickers, unlawfully resisted arrest, and, by inciting those under his leadership to assist him in such unlawful act, a homicide resulted, through the act of one or more of them, the jury may properly be instructed that where several persons conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates, committed in furtherance of any prosecution of the common design for which they combine. Id.—Lawfulness of Strike—Refusal to Instruct Jury Regarding. In such prosecution the court properly refuses to instruct the jury on the lawfulness of striking, picketing, and boycotting, when the evidence does not show that the conspirators were engaged in such acts when the homicide occurred, although the officers who were killed might not have been present had it not been for a strike. Id.-—Felonies or Misdemeanors—No Distinction Between Conspiracies to Commit.—The law makes no distinction between conspiracies to commit misdemeanors and conspiracies to commit felonies, and a homicide perpetrated in furtherance of a conspiracy to commit a breach of the peace, or to resist an officer in the discharge of his official duty, is murder as well as a homicide committed in furtherance of a conspiracy to commit a felony. Ib.—Homicide—Implied Malice—Absence of Consideration of Provocation.—Any unlawful killing of a human being, with malice aforethought, express or implied, is murder. Malice is implied when no considerable provocation appears. Id.—Guilt of Accused as Principal—Sufficiency of Evidence to Support Verdict.—In this prosecution of the leader of striking laborers for murder in resisting arrest, the jury is justified from the evidence in finding him guilty as a principal although he did not himself fire the fatal shot. Id.—Evidence—Distinction Between Confessions and Admissions.— A distinction exists, in legal contemplation, between admissions and confessions; a confession in criminal law is the voluntary declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation he had in the same. It is restricted to acknowledgment of guilt. Id.—Admissibility of Admission—Tendency to Establish Guilt— Preliminary Proof.—An admission of a fact, not in itself involving criminal intent, is not to be rejected as evidence, without preliminary proof, merely because it may, when considered with other, facts, tend to establish guilt. Id.—Declarations of Accused—Effect of Duress.-—Declarations of a person accused of crime, which are not confessions of guilt, cannot be objected to as obtained under duress. Id.—Confessions—Caution in Admitting—Weight as Evidence.— While confessions are to be received with caution, yet when the admission is deliberately made and precisely identified, the evidence it affords is of the most satisfactory nature. Id.—Confession—Corroboration—Proofs of Corpus Delicti.—Where the corpus delicti is otherwise satisfactorily proved, a defendant may be convicted on his uncorroborated confession; proof of the corpus delicti may be considered as a circumstance sufficiently corroborating a confession. Id.—Doctrine of Reasonable Doubt—Instruction to Jury.—A suggestion to the jury, in giving an approved instruction upon the doctrine of reasonable doubt, that the term “reasonable doubt” is “probably pretty well understood but not easily defined,” is unnecessary but harmless. Id.—Instruction on Reasonable Doubt—Harmless Omission.—The omission to state, at the end of an instruction on the question of reasonable doubt, that the jury may not convict unless the evidence convinces them beyond a reasonable doubt, is not prejudicial error if this admonition occurs frequently in other instructions. Id.—Witness False in Part—Instructions.—-An instruction to the jury that “you have a right to disregard entirely the testimony of any witness whom you believe to have willfully testified falsely,” is properly refused, as failing to use the necessary qualifying words “in a material matter,” especially if the court elsewhere instructs the jury that “a witness willfully false in one part of his testimony is to be distrusted in others.”
25 Cal. App. 422Giuffre v. Lauricella (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. W. M. Conley, Judge presiding. The facts are stated in the opinion of the court.
25 Cal. App. 433Cassidy v. Norton (1914)
CERTIORARI to review orders of the Superior Court of San Joaquin County. C. W. Norton, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 437Breeze v. International Banking Corp. (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Seawell, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 451Hops v. Poe (1914)
APPLICATION for Writ of Mandate to be directed to the County Clerk of Calaveras County. The facts are stated in the opinion of the court.
25 Cal. App. 456People v. Hoge (1914)
Criminal Law—Confession bt Prisoner—Threats Made or Inducements Held Out bt Officers of Law.—A confession extorted by threats or resulting from inducements held out by the officers of the law to a prisoner in their custody is not admissible in evidence; and when a confesssion is offered in a criminal case, it is incumbent on the prosecution to lay the foundation for its introduction by preliminary proof showing prima facie that it was freely and voluntarily made. Id.—Confession to Officers—Admissibility When Voluntarily Made.—But the mere fact that a person accused of crime is under arrest and in the custody of officers, and makes a confession in answer to questions, will not warrant the rejection of the confession if it fairly and clearly appears that the statements therein are of a voluntary nature.
25 Cal. App. 459People v. Vukojevich (1914)
Appeal—Order Denying New Trial—Presumption as to Correctness.—On an appeal in a homicide case from an order refusing a new trial it will be presumed that the ruling was correct where neither the grounds upon which the motion was based nor the affidavits of newly-discovered evidence are incorporated in the record. Id.—Affirmative Showing of Error—Duty of Appellant to Make.— It devolves upon an appellant to show the existence of error. In the absence of such showing the appellate court, in accordance with the rule that all intendments are in favor of the regularity of the proceedings, will indulge the presumption that the ruling of the trial court complained of was correct. Id.—Conflict of Evidence—Province of Appellate Court.—Appellate courts cannot and will not, where a substantial conflict of evidence exists, determine the credit which should be accorded witnesses, or attempt to weigh their testimony. Homicide—Sufficiency of Evidence to Support Conviction.—In this prosecution for murder the evidence is sufficient to support the verdict of guilty, though no witness testified to actually seeing the defendant inflict the fatal wound. Ib.—Dying Declaration—Sense of Impending Death.-—In such prosecution a declaration of the deceased to the effect that the defendant had killed him, made within one or two minutes before his death from the wound inflicted upon him, is admissible in evidence as having been made “under a sense of impending death.” Id.—Proof That Declaration Was Made Hnder Sense of Impending Death.—To constitute proof that a declaration was made under sense of impending death, it is not necessary that the deceased should have expressed in words the belief that he was about to die; it is enough if it satisfactorily appears in any mode that the declaration was made under that sanction. Id.—Opinion or Conclusion—Whether Declaration Constitutes.—A statement made by a wounded' man immediately preceding dissolution, that the defendant killed him, is not the expression of an opinion or conclusion. Id.—Misconduct of Court Toward Witness—Whether Prejudicial. For a trial judge in a homicide case to tell a witness to “shut up,” and to use no “more profane language or you will get in jail,” is not reversible error. Id.—Courtesy of Court Toward Witness—Review on Appeal.—The degree of courtesy to be exercised by the trial court toward a witness is not a subject for judicial review, unless it clearly appears that the defendant’s rights were prejudiced thereby. Id.—Instructions—Refusal to Give—Review on Appeal.—Alleged error in refusing to give certain instructions to the jury cannot be considered on appeal, in the absence of anything in the record showing that the defendant requested the court to give any instructions.
25 Cal. App. 464People v. Polich (1914)
Criminal Law—Judgment—Delay in Rendering—Review on Appeal. A judgment in a criminal ease will not be reversed on appeal because it was not rendered or pronounced until seven days after the rendition of the verdict, in the absence of a motion or demand for a new trial on the ground of such delay.
25 Cal. App. 466People v. Gibbs (1914)
Criminal Law—Police and Justices’ Courts—Jurisdiction Over Misdemeanors.—The police and justices’ courts have exclusive jurisdiction over all misdemeanors punishable by a fine not to exceed five hundred dollars or by imprisonment not to exceed six months; and, unless expressly provided to the contrary, every offense declared to be a misdemeanor is punishable by a fine not to exceed five hundred dollars or by imprisonment not to exceed six months. Id.-—Public Nuisance—Information Charging—Jurisdiction to Try. Where a defendant is informed against under section 373a of the Penal Code, for maintaining a public nuisance, the offense falls within the category of misdemeanors which are triable only in the police or justices’ courts. Id.-—Sections 373a and 377 of Penal Code Not to be Read Together. The information in such case cannot be sustained as within the jurisdiction of the superior court, on the theory that it charges an indictable misdemeanor, by reading and construing section 373a of the Penal Code with section 377, the latter dealing with the violations of health laws relating to the registration of deaths and the disposition of human remains. Id.—Section 3491 of Civil Code—Effect to Confer Jurisdiction on Superior Court.—The fact that section 3491 of the Civil Code provides among other things that a public nuisance may be remedied either by an indictment or an information does not avail to confer upon the superior court jurisdiction to hear and determine an offense charged under section 373a of the Penal Code.
25 Cal. App. 469Puterbaugh v. McCray (1914)
Assignment—Right to Money on Account oe Sale oe Realty—Oral Transfer.—The right to money collected on account of the sale of real estate is subject to assignment, and the assignment may be expressed orally as well as in writing. Id.—Equitable Assignment—Request to Pay Money.—The request of a husband to his debtor to pay the money to his wife constitutes an equitable assignment to her of the debt. In.—Express Words—Whether Necessary to Equitable Assignment.—To constitute an equitable assignment no express words are necessary, i'f from the entire transaction it clearly appears that the intention of the parties is to pass title. Id.—Action by Equitable Assignee—Necessity oe Alleging Assignment.—Where one who is entitled to money on account of the sale of real estate makes an equitable assignment thereof to his wife before the person whom he has authorized to collect the money receives it, such person, when he thereafter obtains the money with notice of the assignment, holds it for the use of the assignee, and in her action against him for money had and received she need not allege the facts concerning the assignment. In.—Party in Interest—Equitable Assignee.—Where such equitable assignment is shown, the real party in interest, who should prosecute an action to recover the money, is the assignee.
25 Cal. App. 472People v. Moran (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. .William P. Lawlor, Judge. ]The facts are stated in the opinion of the court.
25 Cal. App. 474International Textbook Co. v. Holmes (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 476McEvers v. Boyle (1914)
APPLICATION for a Writ of Mandamus directed to the Auditor of the City and County of San Francisco. The facts are stated in the opinion of the court.
25 Cal. App. 484Davidson v. Graham (1914)
Judgment—Mandamus to Compel Entry of Default—Demurrer to Petition—Admission.—On demurrer to a petition for mandamus to compel a clerk of the superior court to enter the default of the defendant the allegations of the petition must be taken as true. Id.—Default of Defendant—Saving by Filing of Demurrer.—A demurrer filed by the defendant in an action on a bond is an appearance and an “answer” within the meaning of the provision of section 585 of the Code of Civil Procedure, that “if no answer has been filed with the clerk of the court, within the time specified in the summons or such other time as may have been granted, the clerk, upon application of the plaintiff, must enter the default of the defendant.” Id.—Demurrer—Necessity of Disposing of Before Entry of Judgment.—It is irregular to enter a judgment against a defendant in whose behalf a demurrer has been filed, without disposing of the demurrer, and a judgment so entered will be reversed on appeal. Id.—Entry of Default—Mandamus to Compel—When Does not Lie.—Where a stipulation is on file “that no default shall be taken against the defendant, he waiving his demurrer,” and there is a doubt as to the right of the plaintiff to take a default and as to the duty of the clerk to enter it, the entry will not be compelled by mandamus. Id.—Clerk Will not be Compelled to Perform Acts in Conflict with Court Orders.—If the plaintiff has been refused an order by the trial court putting the defendant in default, an appellate court will hesitate to command the clerk to enter a default. The rule that a court will not compel parties to perform acts which will subject them to punishment or put them in conflict with the order or writ of another court, applies where a clerk is asked to perform an act that will put them in conflict with a valid order made by the same court in the same action and upon the same matter. Id.—Trial on Merits—Policy op Law to Permit.—It is the policy of the law that every case should be tried upon its merits, and where it is sought to prevent this upon a showing which presents no circumstances of hardship to the party asking the relief, and the case is one where the right to the relief is doubtful, the parties should be remitted to a trial upon the merits.
25 Cal. App. 490Reynolds v. Jackson (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and .from an order refusing a new trial. Frank J. Murasky, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 499Cain v. French (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 502Hatfield v. Peoples Water Co. (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 506Silveria v. Alexander (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 510Milliken v. Meyers (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 516Conner v. Plank (1914)
Contracts—Necessity of Deducing Terms to Writing.—When it is a part of the understanding between parties in negotiating the terms of an agreement that it is to be reduced to writing and signed by them, the assent to its terms must be evidenced in the manner agreed upon or it does not become a binding or completed contract. Id.—Omission to Deduce Agreement to Writing—When Does not Invalidate.—But where a contract is of such a nature that the law does not require it to be in writing, and its terms are in the first instance definitely agreed upon and completed, then the mere fact that immediately thereafter the parties agree to evidence the contract by a written instrument does not interfere with the force and effect of the oral agreement. Id.—Contest of Will—Agreement not to Wage—Failure to Put in Writing.—In this action involving an oral contract not to contest a will there is no evidence that the agreement arrived at from the oral negotiations of the parties was not to constitute a contract unless completed in writing, although the next day after the agreement was reached the attorneys of the parties started to put it in writing, whereupon one of the parties repudiated the compromise and the preparation of the writing was thereupon suspended.
25 Cal. App. 519Davies v. Stark (1914)
Appeal—Order Refusing New Trial—Record not Showing Grounds of Motion.-—-An order denying a motion for a new trial will be affirmed on appeal if the record does not disclose the grounds upon which the motion was made. Id.—Regularity of Proceedings—Presumption on Appeal.—On appeal every presumption is in favor of the regularity of the judgment and the proceedings upon which it is based, and to justify a reversal it devolves upon the appellant to affirmatively show error. Id.—Forcible Entry and Detainer—Gist of Action—Sufficiency of Complaint.—An allegation of forcible entry alone, unaccompanied by an allegation showing that defendant detains possession of the premises so forcibly entered, will not warrant an action under the provisions of chapter IV, title III of the Code of Civil Procedure, for forcible entry and detainer. The real gist of the action is the detention of the premises.
25 Cal. App. 522Fogg v. McAdam (1914)
Brokers—Exchange oe Lands—Withdrawal oe Written Authorization—Services Rendered Under Oral Bequest.—Where a broker’s written authorization to negotiate an exchange of city property for a certain ranch is withdrawn, and he is orally requested to secure an exchange of a part of the ranch upon different terms, his subsequent rendition of services will not entitle him to commissions. When the written authorization was withdrawn the relations between the broker and his principal were as though the writing had never been executed; hence there was no written authority to modify, and the alleged oral contract was therefore an original agreement governed by the provisions of section 1624 of the Civil Code, which requires such contracts, in order to enable the broker to recover, to be in writing. Id.—Contract to Exchange Lands—Oral Modification.—Where a broker’s contract is for the exchange of specific property, not a general authorization to sell, there can be no oral modification of the agreement. Id.—Action for Commissions—Necessity of Allegation as to Title of Property.—A complaint in an action by a real estate broker to recover his commissions for negotiating an agreement to exchange lands is insufficient, under the rule that pleadings are to be construed most strongly against the pleader, if it does not allege that the property to be conveyed to his principal was free from encumbrance and that such fact was evidenced by a certificate of title, when the contract (never consummated) contemplates such a title and certificate.
25 Cal. App. 525Slater v. Selover (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 528Stoff v. Erken (1914)
Divorce—Agreement Adjusting Property Eights—Validity When Executed During Trial.—An agreement by the parties to an action for divorce, made during the trial, that the case be submitted on the evidence then in, and that the husband abandon to the wife real estate standing in her name but claimed by him to be community property, upon her executing to him a mortgage on the property, is valid, and the mortgage becomes a proper subject of foreclosure upon default in payment. Id.—Consideration for Contract—Withdrawal of Defense to Divorce.—The rule that where an agreement between husband and wife is founded upon a consideration to withdraw or abandon a defense to a suit for divorce, or to do anything to facilitate procuring the same, it is illegal and void, is not applicable to such easel
25 Cal. App. 531Cates v. Consolidated Realty Co. (1914)
Corporations—Dividends on Attached Stock—To Whom Belong.— All dividends accruing from attached stock are impounded with the stock itself, and pass with it to the execution purchaser. Id.—Bight to Dividends—When Stands Separate from Stock.—But the right of the execution purchaser to the dividends remains separate from the stock. Id.—Assignment of Stock—Bight to Dividends.—Hence a mere assignment of the stock by the execution purchaser does not pass any interest in past dividends or any right of action thereon.
25 Cal. App. 533Manss v. Superior Court (1914)
APPLICATION for a Writ of Prohibition to be directed against the Superior Court of Mendocino County. The facts are stated in the opinion of the court.
25 Cal. App. 536Sacramento Orphanage & Children's Home v. Chambers (1914)
APPLICATION for a Writ of Mandate to be directed to the State Controller. ' The facts are stated in the opinion of the court. White, Miller, Needham & Harber, Edward P. Moran, and W. H. Barrows, for Petitioner.
25 Cal. App. 546Credit Clearance Bureau v. George A. Hochbann Contracting Co. (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. William P. Lawlor, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 548Westover v. Bridgford (1914)
APPEAL from an order of the Superior Court of the City and County of San Francisco granting a change of venue. J. M. Seawell, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 551Matter of Application of Shoemaker (1914)
APPLICATION for a Writ of Habeas Corpus. The facts are stated in the opinion of the court.
25 Cal. App. 572Sheller v. Livingston (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 575Toplitz v. Standard Co. (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. John J. Van Nostrand, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 577Buckley v. County of Marin (1914)
New Trial—General Order Granting—Insufficiency of Evidence— Discretion of Court—Review by Appellate Court.—When an order granting a new trial is general it is the well-settled rule that such order will not be reversed unless it appears that the order itself was an abuse of discretion. The granting or denying of a new trial on the ground that the evidence is insufficient to justify the verdict, where there is a substantial conflict in the evidence, rests so fully in the discretion of the trial court that its action is conclusive upon the appellate court, unless it appears that there has been an abuse of such discretion, and it is immaterial whether the evidence is insufficient to sustain all or only a portion of the issues on which the judgment depends. Contracts—Construction of Bridge for County—Performance—■ What Constitutes.—Under a contract for the construction of a ¡bridge for a county, in order for the contractor to recover, either on the contract or on quantum, meruit for the reasonable value of the work and material, he must show a substantial performance and that he attempted in good faith to perform the contract. Id.—New Trial—Order Granting—Special Verdict—Motion for Judgment on—When Discretion not Abused.—Where the jury, in an action to recover for such work, found, from conflicting evidence, upon special issues, that the contractor did not “honestly” nor “in good faith endeavor to comply with the terms and conditions of said contract,” and did not “complete said work substantially in accordance with the. terms and conditions of said contract,” but that the reasonable value of the services performed and material furnished were three thousand dollars, for which sum it rendered a general verdict in favor of the plaintiff, it was not an abuse of discretion for the trial court to grant plaintiff’s motion for a new trial, and to deny defendant’s motion for judgment in its favor on the special findings. Id.—Order Denying Motion for Judgment on Special Findings— ¡Rule in Reviewing.—In such a case, in denying defendant’s motion for judgment in its favor on the first special finding, the court ■had the power to exercise its own judgment as to the sufficiency of the evidence to support such finding, and there being a substantial conflict in the evidence addressed to the issues by that finding determined, the rule applicable to the motion for a new trial is equally applicable to defendant’s motion, and unless the appellate court can say that the trial court abused its discretion its action is conclusive on appeal.
25 Cal. App. 583People v. Horn (1914)
APPEAL from a judgment of the Superior Court of Humboldt County and from an order refusing a new trial. George D. Murray, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 594McRae v. Pine (1914)
APPLICATION for a Writ of Mandate, originally brought in the District Court of Appeal of the second appellate district, to compel the board of supervisors of San Bernardino County to issue to the petitioner a license to carry on the business of a retail liquor establishment in the town of Daggett in said County. The facts are stated in the opinion of the court.
25 Cal. App. 600Hambright & Walsh Co. v. Provident Pledge Corp. (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 604Hillger v. Yenrick (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 607Miller v. Superior Court (1914)
Primary Election Law—Contest to Nominations,—Time for Piling —When Commences.—The five days’ time provided by the primary election law of 1913 (Stats. 1913, p. 1379) for filing of contests to nominations of candidates for offiee does not begin to run until the board of supervisors has declared the result of the canvass of the returns, and contests filed on the fifth day after the supervisors have declared the result of the canvass of the returns are filed within due time. Id.—Affidavit of Contestant—Basis of Contest.—The affidavit of the candidate, provided for by section 28 of said act, is the basis of the contest in which the ballots may be recounted before the superior court. Id.—Canvass of Returns—Delay of Supervisors—Rights of Candidates.—The portion of the primary election law relating to the canvass of returns contemplates prompt action in order that the names of the persons nominated may be known in due time, so that they may be placed upon the ballot for the November election, and careful compliance with the provisions of the law as to the time within which the several acts shall be done is necessary; but this does not compel a construction of the statute, which, in some instances of neglect or misconduct, would make it impossible to ascertain the candidates between whom the choice must be made at the final election. If, by reason of neglect or misconduct, it should appear, after the expiration of the time named in the statute, that the board of supervisors would not declare the result of the canvass, any elector within the county or district might institute appropriate proceedings to compel action by these officers. Id.—Contest to Nominations—Voters not on Register—Absence of Original Affidavits of Registration—Court Powerless to Receive Evidence op.—The refusal of the election officers in a primary election to receive the votes of electors whose names did not appear upon the register, and whose original affidavits or duplicates thereof were not at the time in the office of the county clerk, where they were required by law to be, which voters, the affidavit of contest alleges, registered in accordance with law, and would •have voted for the contestants, if permitted to cast their ballots, is not a proper ground of contest, and the superior court in a contest to nominations is without right or jurisdiction to receive offered evidence of such facts. Contest Special Proceeding—Judgment Non appealable—Illegal Grounds op Contest—When Prohibition Lies.—Ordinarily the acceptance of such testimony and' the use of it by the court in determining the contest would be merely an appealable error, committed by the court in the exercise of its jurisdiction and not in excess of such jurisdiction; but since the contest provided for in section 28 of the primary election law of 1913 is a special proceeding, concerning which it is provided that “such a decision or judgment of the court shall be final in every respect and no appeal can be taken therefrom,” it follows that there would be no adequate remedy at law if the superior court, assuming jurisdiction of an alleged contest, should attempt to hear and determine said contest upon allegations which do not legally constitute a ground of contest, and a judgment based upon such alleged fact would be in- excess of the jurisdiction of the court and constitutes a proper subject for a writ of prohibition.
25 Cal. App. 613Eureka Mill & Lumber Co. v. Andres (1914)
Foreclosure of Mechanics’ Liens—'Claim of Abrogation of Original Contract bt Executed Oral Contract—Failure of Evidence to Show.—In this action to foreclose certain mechanics’ liens upon the real property of the defendant, it is held that the contention of plaintiffs that the original contract between the parties was abrogated by an executed parol agreement, providing for the erection of a different building, the cost of which, it was claimed, exceeded the sum of one thousand dollars and that, no memorandum of the latter contract being recorded or ever filed, judgment should have been directed to foreclose the liens upon the property for their full amount; and the further contention that the findings are contrary to the evidence, and inconsistent with, and repugnant to, each other, cannot be sustained.
25 Cal. App. 616Poetker v. Lowry (1914)
APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Curtis D. Wilbur, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 620Herington v. Alta Planing Mill Co. (1914)
Agency—Actual Authority—Definition of.—Actual authority is such as a principal intentionally confers upon the agent, or intentionally, or by want of ordinary care, allows the agent to believe himself to possess. Id.—Breach of Contract—Action for Damages—Ostensible Authority•—Party Must Have Belied Upon.—In order that a person dealing with an agent may recover damages for a breach of contract, resting solely upon authority of an ostensible nature, it must have happened that such person^ by reason of his reliance upon the ostensible authority, incurred a liability or parted- with value. Id.—Authority Conferred by Want of Care.—Actual authority, which is conferred through the negligence, or want of ordinary care, on the part of the principal, is only such as the principal allows the agent to believe himself to possess. Whatever strangers may understand to be the limit of actual authority is an immaterial matter, for the implied authority of an agent, upon which third persons are authorized to rely, is the ostensible authority, or that authority, arising by want of ordinary care of the principal, which causes or allows a third person to believe the agent to possess. Id.—Proposal for Building Supplies—Lack of Authority.—A solicitor of a corporation, engaged in the business of furnishing building accessories, has no authority, either actual or ostensible, to alter a typewritten estimate of the cost, for which the corporation would furnish certain building materials, where it is shown, upon the face of the offer, that it was prepared in the office of the corporation, and that it bore the signature of a person specially employed as an estimator or calculator, other than the solicitor, and that the person upon whose request the offer was furnished did not act upon it until after it was altered.
25 Cal. App. 624Borgfeldt v. Curry (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. E. P. Mogan, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 628People v. Taggart (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 629People v. Mandal (1914)
Criminal Law—Pimping—Lack op Error.—On this appeal it is held-that the defendant was properly charged with the offense of “pimping,” and that the evidence was sufficient, and that no prejudicial error was committed.
25 Cal. App. 630People v. Dabner (1914)
Criminal Law—Lewd Act on the Body of a Child—Sufficiency of Indictment—Section 288, Penal Code.—An indictment which charges that the defendant, on a certain date, and at a certain place, “did then and there willfully, unlawfully and feloniously commit a lewd and lascivious act upon and with the body, and certain parts thereof, of one Crystal Davidson, a female child under the age of fourteen years, to wit, of the age of eight years, by the said Anton Dabner then and there inserting and placing his hands up under the clothes and through and inside of the drawers of said Crystal Davidson, with intent then and there of arousing, appealing to and gratifying the lust, passion and sexual desires of him, the said Anton Dabner,” sufficiently charges the crime defined by section 288 of the Penal Code. Id.—Construction of Statute.—Section 288 of the Penal Code provides for the punishment of any lewd or lascivious act willfully and lewdly committed upon or with the body, or any member thereof, of a child with the intent of arousing or gratifying the lust or sexual desires of either the perpetrator or his victim, and it is not necessary to charge that the accused touched the naked body, or some part of the body, in fondling or manipulating the person of the child.
25 Cal. App. 633People v. Galli (1914)
25 Cal. App. 633People v. Galli (1914)
Criminal Law—Sale or Alcoholic Liquors in “No-License” Territory—Judgment Affirmed.—On this appeal from a judgment - of conviction upon an information charging defendant with selling alcoholic liquors in “no-lieense” territory, there being no appearance by the defendant after the filing of the transcript of the phonographic report of the trial, the judgment is ordered affirmed.
25 Cal. App. 634Colusa & Hamilton Railroad v. Glenn (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 638Adams v. Gerig (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 641Asbestos Manufacturing & Supply Co. v. American Bonding Co. (1914)
John E. Richards, Judge presiding at trial. J. E. Crothers, Judge refusing new trial. The facts are stated in the opinion of the court. Lilienthal, McKinstry & Raymond, for American Bonding Company of Baltimore, Appellant.
25 Cal. App. 645People v. Drennan (1914)
Criminal Law—Bape—Crime Against Female Under Age of Consent—Verdict Justified.—In this prosecution for rape, alleged to have been committed upon a female under the age of eighteen years, it is held that, from a careful examination of the testimony, the instructions and the rulings of the court on questions involving the admissibility and nonadmissibility of certain testimony, it appears that the defendant was in all respects given a fair and legal trial and that the verdict was justified. Id.—Lack of Consent of Prosecutrix—Conviction of Assault with Intent to Commit Bape—Sufficiency of Evidence.—In such a case, where, although the prosecutrix was but a little over eight years of age, she protested against the conduct of the defendant which formed the basis of the charge in the information, from such testimony the jury were justified in finding that the defendant’s acts were against the consent of the prosecutrix, and such finding, together with a finding that the defendant actually attempted to have sexual intercourse with the child, if, indeed, he did not succeed in doing so, is a sufiieient predicate of the conclusion reached by the jury that the crime committed by the accused was that of an assault with intent to commit rape.
25 Cal. App. 647People v. Creitser (1914)
APPEAL.from a judgment of the Superior Court of Del Norte County and from an order refusing a new trial, and all orders made after judgment. John L. Childs, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 651Matter of Petition of Kelly (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 660People v. Eddards (1914)
Criminal Law—Obtaining Money by False Pretenses—Sale oe Mica Mine—Sufficiency of Information.—In a prosecution for obtaining money under false pretenses the information states facts sufficient to constitute a public offense where it alleges that the defendant together with another person, “devising and intending by unlawful ways and means and by false and fraudulent pretenses and representations to obtain and get into their custody and possession the personal property of Frank M. Ferguson, with intent to cheat and defraud said Frank M. Ferguson of the same, did then and there willfully, unlawfully, knowingly, designedly, falsely, fraudulently, and feloniously, pretend and represent to said Frank M. Ferguson that they, the said E. J. E'ddards and George Gilbert, had sold to the Standard Oil Company, a corporation, a mica mine for a large sum of money, and that said large sum of money was then and there in the hands of and in the possession of one Asa Y. Mendenhall, and that a portion of said large sum of money, to wit, the sum of $15,000, in lawful money of the United States, in the hands and in the possession of said Asa Y. Mendenhall, was to be paid by said Asa Y. Mendenhall to one J. S. Lord; that said $15,000 in lawful money of the United States was the share and interest of said J7 S. Lord received from the sale of said mica mine to the Standard Oil Company, a corporation; that adjoining said mica mine there were other lands containing mica, and that they, the said E. J. E'ddards and George Gilbert, had then and there a contract with said Asa V. Mendenhall whereby the said Asa Y. Mendenhall would, for a consideration of ten per cent of the sale price, induce the Standard Oil Company, a corporation, to purchase from them, the said E. J. Eddards and George Gilbert, ten mica claims for the sum of $550,000 in lawful money of the United States when they, the said E. J. Eddards and George Gilbert, would locate and properly stake off said ten mica claims and obtain deeds on the said mica claims,” it being further alleged that each of said representations was false and fraudulent and known to be so by the defendant, and were made to induce the defrauded party to pay to defendant and his associate the sum of two hundred dollars, and that the defrauded party believed said representations to be true and acted thereupon. Id.—Sufficiency of Information—Means of Fraud—When Objections Waived by Failure to Demur.—In such a case the information is sufficient both in the respect that it follows the language of the statute, and also in that it sets forth with particularity the details and successive steps of the fraud; and an objection to it on the ground that there is no reference as to the means by which the alleged fraud was consummated is one which is aimed at mere uncertainty, which should have been taken advantage of by a special demurrer, and in the absence of such demurrer, the objection, if otherwise tenable, was waived. Id.—Insufficiency of Single Representation—When Reversal not Warranted by.—In such a case, while one of the several representations averred to have been made by the defendant might, if standing alone, be regarded as insufficient to base a prosecution upon, this fact is not sufficient to warrant a reversal of the ease, where the other representations are sufficient. Id.—Instructions—Refusal of Instruction not Error When Covered by Others.—In such a ease there is no error in refusing an instruction preferred by the defense, however correct in point of law, where it is sufficiently covered by other instructions given by the court. Id.—Evidence—Admissibility op Conversations op Dependant With Third Party—Telegram prom Dependant to Associate.—In such a ease there was no error in permitting the party, who, it was charged, the defendant represented held the purchase money for the mica mine, to testify in respect to conversations between himself and the defendant regarding dealings between them closely allied to the transaction with the complaining witness; such' conversations being admissible, first, as part and proof of the very dealings between the defendant and the alleged victim, set forth in the information; and, second, as evidence of a similar transaction with the alleged holder of the purchase money tending to shed light upon the motive of the defendant in making his representations to the ' complaining witness; nor was the admission in evidence of a telegram for money sent by the codefendant, with appellant, to the wife of another party, who was one of the associates of appellant in the mica enterprise. Id.—-Sufficiency op Evidence.—In such a case, where the evidence is conflicting upon practically every important issue of fact involved in the trial, the appellate court, under the well established rule, is prohibited from considering the sufficiency of the evidence to sustain the verdict.
25 Cal. App. 666Montgomery v. Dorn (1914)
Contracts—Agreement to Pay Note op Third Party—Execution by Agent—Pleading and Findings—When No Variance Between.— Where a written agreement is executed by an agent in his own name for his undisclosed principal, in which he promises, in consideration of the transfer to him of certain corporation stock, to pay certain claims of third parties, among them the promissory note in suit, in an action on the agreement there is no variance between an allegation of the complaint that both the agent and the principal expressly agreed in writing, for a valuable consideration moving to each of them, to pay said promissory note, and a finding that the principal alone made such promise, it appearing from the evidence, and the court finding, that the agent was in fact acting for his undisclosed principal. Id.—Pleading—Parties—Principal and Agent—Joinder.—The general rule is that, where a contract is made by an agent within the scope of his employment, both the agent and the undisclosed principal, when discovered, are liable on the contract and may be joined as defendants. Id.—Pleading—Agency Need not be Alleged.—It is not necessary in such a case to aver the fact of agency, it being sufficient to charge the act as that of the principal, without disclosing the fact of the agency; and where the proof is that such acts were done or knowledge obtained by the principal’s authorized agent there is no variance. Id Evidence—Admissibility of Note and Contract.—In such a case evidence offered by the plaintiff as to the execution and delivery of the note, as to the pledging of shares of corporation stock, and as to the contract for the sale of certain of said shares, is admissible, although the appellant’s name did not appear on the note or in the contract, where the testimony later connected the appellant with the transaction. Id.—Evidence—Receipt op Benefits—Admissibility op Testimony op Agent.—In such a ease it was competent to show who received the benefits of the transaction, and also to show by the agent for whom he was acting. Id.—Evidence-—-Agent Competent to Testify to Agency.—While the statements or admissions of one not as a witness, that in a certain transaction he acted as agent for another, are not competent to prove the fact of agency, yet if he is called as a witness, his testimony not only that he acted as agent of the party, but as to the fact of agency, where it rests in parol, is as competent as that of any other witness. Id.—Connection of Appellant With Transaction—Liability of Appellant.—In such a case the contention that the liability rested upon a certain company, instead of upon appellant, cannot be sustained, where the agent testified that to the best of his knowledge, appellant was a member of said company and that he represented the company in the negotiations, that appellant was the only person disclosed as principal, that he received the benefits and profits of the contract and that the agent was acting for appellant throughout the transaction and that the latter became the owner of the stock “in pursuance of the contract,” and where it further appeared that appellant was a witness in his own behalf and neither in his answer, nor in his testimony claimed that said company was a party to the transaction, and the testimony of two other witnesses showed that the transaction was for appellant’s individual benefit. Id.—Validity of Contract.—In such a ease, inasmuch as the agreement was one not required to be in writing, it was not essential that the agent’s authority to act should be in writing, and section 2309 of the Civil Code has no application. Id.—Authority of Agent.—In such a case the claim that the agent’s authority being “expressed in general terms” he had no authority “to act in his own name,” under section 2322 of the Civil Code, cannot be maintained, where the evidence shows that the principal did not desire to buy the stock in his own name and requested the agent to execute the contract in the latter’s name. Id.—Promissory Note—Nonpayment—Evidence.—The production of a promissory note showing no indorsement of payment is prima facie evidence of nonpayment. Id.—Contract to Pay Claims of Third Party—Bight of Third Party to Enforce.—In such a ease where the appellant agreed, in consideration of the transfer of certain corporation stock to him, to pay certain claims of third parties, among them the promissory note in suit, his promise is one made for the benefit of said third parties, which may be enforced by the latter.
25 Cal. App. 675Wade v. City and County Bank (1914)
Mechanics’ Liens-—Deposit op Check With Bank to Pay—Trust por Claimant's not Created.-—Where an owner of property delivered her cheek to a bank in which she was a depositor, which check was afterwards certified by the bank, with instructions to pay it to a certain building company with which she had made a contract to construct a building upon her property, upon the production of satisfactory releases of liens and notices to withhold, executed by various parties who performed labor upon and furnished material for the construction of the building, and about three years after the deposit of the check, the construction company served notice upon the bank that it no longer had any interest in the check, whereupon the bank applied the amount of money represented by the check upon an, indebtedness of the depositor to it under its banker’s lien, under the circumstances, no trust in the funds was created in favor of the lien claimants, and the bank was justified in applying the amount of the check upon the indebtedness of its depositor. Id.—No Equitable Assignment or Estoppel—Lack op Privity.—In such a case the transaction neither creates a trust in favor of the lien claimants, or an equitable assignment; nor is there anything that could in any manner be construed as creating an estoppel in their favor, where the record does not show that they knew anything of it. The entire transaction was simply a means adopted by the owner of the building of setting aside money with which to pay her contractor.
25 Cal. App. 678Klamath Lumber Co. v. Co-Operative Land & Trust Co. (1914)
Sale of Potato Crates—Delivery to Third Party—Liability of Defendant—Sufficiency of Evidence.—In this action to recover the purchase price of certain sweet potato crates alleged to have been sold to defendant, but which were delivered to one of the defendant’s customers, who was present at the time the goods were ordered, it is held that the evidence is sufficient to support the finding of the trial court that the crates were sold to defendant, that it promised to pay for them, and upon such promise plaintiff relied in delivering the property. I'd.—Evidence—Absence of Witness—Admissibility of Explanation. In such a case it was proper to show on the trial that the party to whom the crates were delivered was in Oregon in explanation of the fact that he was not called as a witness. Id.—Error Without Prejudice—Conclusion of Witness.—In such a case, where a witness was asked “and as president of the corporation, as the manager of the plaintiff in this action, Mr. Routt, did you have any agreement with the defendant in this action in the year 1909?” while technically speaking, the question was probably objectionable, the answer was entirely without prejudice, where from the facts testified to by the witness, the conclusion necessarily followed that the agreement was with the defendant, and said testimony made it obvious that such was the opinion of the witness. Id.—Instructions—Statement of Notice of Case—Sale and Delivery.—An instruction given in such a case at the request of plaintiff that, “plaintiff brings this action to obtain a judgment against defendant for the sum of $600.00 alleged to be due plaintiff from defendant for the sale of 4,000 sweet potato crates for which plaintiff alleges defendant promised to pay; that defendant promised to pay it at the rate of fifteen cents per crate, no part of which sum plaintiff alleges has ever been paid,” is not objectionable as it is proper for the court to state the nature of the action, and no sensible man would fail to understand that the term “sale” implied a “delivery” of the property, especially where there is no controversy as to the delivery of the crates, the only question being as to whom they were sold. Id.—Original Obligation and Principal Debtor—Section 2794, Civil Code.—An instruction as to an original obligation and the principal debtor substantially in the language of section 2794 of the Civil Code in such a case is unobjectionable. Id.—Instructions—Theory of Case.—It is well settled that either party has the right to have an instruction given to the jury based upon his theory of the case, if there is any evidence to support it. Id.-—Instructions—Original Promise.—In such a case, where the important issue in the ease was whether the defendant was liable on an original promise or only on a conditional one, and the jury was fully instructed, at the request of the defendant, as to the distinction between a guaranty and an original promise, there was no error iu an instruction that “if you are satisfied from all the evidence adduced in this case that the promise of defendant, if any was made, was an original promise to pay for the crates and not a conditional one, I charge you that it is your duty to find that fact in favor of plaintiff in this action.” Such an instruction could hardly be understood as meaning otherwise than to find that the promise of defendant was “an original promise to pay for the crates,” if the jury were satisfied from the evidence that an original promise was made by the defendant. Id.—Instruction—Furnishing Crates to Third Party—Conditional Promise.—Where there was no dispute in such a case that the crates were “furnished” to the third party, and it was the contention of defendant throughout the trial not only that this was the fact, but that the third party alone was liable for the purchase price, the reference to such fact could not be prejudicial to the defendant in the following instruction: “The fact that the crates in question were furnished to Gutman by the plaintiff is not of itself absolutely sufficient to show conclusively that the promise of defendant, if any were made, was a conditional one.”
25 Cal. App. 685Stern v. City Council of Berkeley (1914)
Municipal Corporations—School Law—Compensation of School Director—Charter of Berkeley—Constitutionality of Section 19, Article Y.—Section 19 of article Y of the charter of the city of Berkeley, which provides that “each school director shall receive $5.00 for each regular meeting of the board of education which he shall attend, provided that he shall not receive more than $15.00 in any month,” is not invalid under subdivision 2 of section 8% of article XI of the constitution, as it existed prior to the amendment of October 1911, notwithstanding that such subdivision of the constitution, prior to such amendment, contained no express provision authorizing municipal corporations to provide in their charters for the payment of school director’s salaries. Id.-—City Charters—Construction.—The provisions of city charters must be upheld- unless they are clearly shown to have been at the time of their enactment repugnant to and inconsistent with the then fundamental law. Ib.—Nature of City Charters—Laws of State.—A city charter framed and adopted pursuant to constitutional provisions is not a law passed by a municipality, but is a law of the state, having the same force and effect as a law directly enacted By the legislature. Id.—Constitutional Limitations — Powers of Legislature.—Charters.—Our constitution is not a grant of power but rather a limitation upon the powers of the legislature; and it is competent for the legislature to exercise all powers not forbidden by the constitution of the state or delegated to the general government or prohibited by the constitution of the United States. Accordingly, it has been held that unless prohibited by some provision of the constitution, expressed or necessarily implied from its terms, a municipal charter adopted, as provided in article XI of the constitution, may contain any provision not in conflict with or covered by the general laws of the state. Id.—General School Laws—Conflicting Charter Provisions Controlled by.—The acts passed by the legislature, in accordance with general provisions of the constitution, providing a general system of laws concerning the creation and conduct of common schools in this state, are controlling and conclusive over conflicting charter provisions; but the charter of a city or of a city and county may provide for matters not enumerated in the general laws and not in conflict therewith. The power of charters to so provide extends to all cases where the purpose of the provision is in furtherance of the purpose of the general laws of the state. Id.—Compensation of School Directors—Charter Provision Regulating—Not Conflicting with General Laws.—There is no general law with respect to the compensation to be paid to school directors or trustees; and the general laws relating to and regulating the state school system nowhere limit or deny the right of a municipality or of the legislative power acting through a freeholder’s charter to make provision for the payment of salaries to school trustees or directors; and the provision" of section 19 of article "V 0f the charter of the city of Berkeley, providing for compensation of school directors, is valid, being obviously in furtherance of the school system adopted by the state and does not conflict with the general laws relating to and regulating the same. Id.—School Director a Municipal Officer—Compensation a Municipal Affair.—A school director of the city of Berkeley is a munieipal officer, irrespective of whether or not the duties of the office are exacted by the charter or imposed by the general law of the state, and therefore the compensation to be paid him by the city out of the city treasury for services rendered the city in maintaining its school system as an integral part of the state school system is purely a municipal affair which is exclusively controlled by charter provisions. Id.—Charter Providing Compensation oe School Director not Special Legislation.—The provision of the charter of the city of Berkeley providing for compensation of school directors is not a. special law under subdivision 28 of section 25 of article IV of the constitution. Id.—Municipal Charter-—General Legislation.—Where a municipal charter as a whole is germane to the purpose of its creation, and its various sections are subordinate to and in harmony with the fundamental and statutory law of the state and affect all persons and things alike in the particulars provided- for, the objection that such charter, or any provision thereof, is special legislation, cannot be successfully maintained. ■
25 Cal. App. 691State Savings & Commercial Bank v. Winchester (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. James M. Seawell, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 696Tyson v. Reinecke (1914)
Contract of Guaranty—Guaranty of Payment of Account at Due Date—Change of Time of Payment—When Guarantor not Exonerated.'—Where a contract provided, in consideration of past and future deliveries of lumber and other materials, for a guaranty of payment for the same at “due date,” and at the time the guaranty was executed the sales were upon a credit of sixty days, but there was no usage of trade or contract between the parties under which the debtor was entitled to a credit upon all sales at sixty days, and there is nothing to show that the creditor knew that the guarantor was aware of the length of credit that was being extended, the creditor was authorized to extend the credit for any reasonable length of time, and the guarantor was not exonerated from his contract of guaranty by the creditor accepting a series of notes thirty days after date of the sale payable in each case more than sixty days thereafter, where the term of credit was not unreasonable and did not materially change the contract of guaranty. Id.-—Due DatB'—Commercial Meaning of.—While there seems to be no judicial interpretation of the term “due date,” in commercial transactions, generally speaking, it means that an account will be paid at the time fixed or agreed upon for payment. Id.—Payment of Account—When Notes not Accepted as—Conflicting Evidence—Findings Conclusive.—It is held in this action that, as the evidence is conflicting upon the question as to whether certain promissory notes were given in payment of the account in question, the finding of the trial court to the effect that they were not given as such payment, cannot be disturbed on appeal. Attachment—Amount Stated in Writ Greater Than in Affidavit— Amendment of Writ—Section 558 Code Civil Procedure.—Although a writ of attachment is issued for a greater amount than that stated in the affidavit for the writ, where the trial court, under the terms of section 558 of the Code of Civil Procedure, as amended in 1909, permitted an amendment of the writ which made it and the affidavit agree in amount, which amendment the court was authorized to make, an order denying a motion to dissolve the at- ' tachment upon that ground cannot be disturbed on appeal. Id.—Guaranty—Contract for Direct Payment of Money.—A contract of guaranty is a contract for the “direct payment of money,” within the meaning of the sections of the code providing for attachment, and the payment being “direct,” it is immaterial whether the obligation is principal or collateral.
25 Cal. App. 702Ford v. Weed Lumber Co. (1914)
Nonsuit—General Order Granting—Discussion of Court not Considered.-—Where a trial court by its order grants a motion for a nonsuit in general terms it may not be contended on appeal that its order in granting the same is to be limited by the discussion in which the court indulged in the course of granting the order; and if it appears that the motion should -have been granted upon either or both of the grounds upon which the same was made, the action of the trial court should be sustained on appeal. Action for Damages—Personal Injuries—-Contributory Negligence—Knowledge of Danger—Assumption of Risk—Non-suit.-—In an action for damages for personal injuries sustained by the driver of a team while returning with a string of empty cars over defendant’s tramway leading from its lumber yard to the tracks’ of a railway company, alleged to be due to the derailment of two cars from the defective condition of the track, the court properly sustained a motion for nonsuit upon the ground of plaintiff’s own negligence, and also upon the ground that the condition of the track was one of the risks that plaintiff assumed, where it appears that plaintiff, from the time of the commencement of Ms employment to the moment of the accident, was perfectly familiar with the unsafe and insecure condition of the track and that the unsafe condition frequently recurred at the particular point where the accident happened, but notwithstanding this knowledge, continued in his employment, as plaintiff thereby assumed the risk which arose from the dangerous condition of the track. Id.—Repair of Track by Defendant—Knowledge of Plaintiff—Assumption of Risk—-Contributory Negligence.—In such a case plaintiff was not relieved from Ms assumption of the risk of Ms employment by the fact that he called attention to the particular defect in the track a few days before Ms injury, which the defendant undertook to repair, where plaintiff saw the repairs made and knew precisely their extent, and that they were but temporary and insufficient, and that the track at the particular point of the injury would, within a few days at most, become out of order, notwithstanding its present repair, and it further appearing that the place . on the track where the derailment occurred was clearly within plaintiff’s line of vision while he was hauling the cars along and over that portion of the track. His act in driving over the place where the accident occurred, without employing Ms faculties of vision, to see whether or not the track was in proper condition was in itself an act of negligence on Ms part contributing to his injury and sufficient to prevent a recovery.
25 Cal. App. 706Parry v. American Motors California Co. (1914)
25 Cal. App. 711Hatfield v. Peoples Water Co. (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 714Arens v. United Railroads of San Francisco (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Frank J. Murasky, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 717Waltz v. Silveria (1914)
APPEALS from a judgment of nonsuit of the Superior Court of Alameda County and from an order denying plaintiff’s motion for a new trial on his first cause of action and an order granting plaintiff’s motion for a new trial on defendant’s cross-complaint. John Ellsworth, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 723People v. Simons (1914)
Criminal Law—Weight op Evidence—Remoteness—Admissibility.— Remoteness may affect the weight of evidence, but it does not ordinarily affect its admissibility. Id.—Evidence—Motive—Identity.—In a prosecution for a crime motive may be shown where there is any doubt about the identity of the perpetrator of the offense, and may be shown generally, although not necessary in every case. Id.—Assault With Intent to Murder—Motive—Admissibility op Evidence.—In this prosecution for an assault with intent to commit murder it is held that if there was a likelihood that the complaining witness was in any way an obstacle to the sexual gratification of the defendant, that fact might be a motive for the assault upon the complaining witness, and the evidence upon that subject was properly admitted for that purpose and also for the purpose of clearing up any doubt there might have been as to the identification of the person guilty of the assault. Id.—Alleged Misconduct op District Attorney—Cross-examination op Dependant.—It is held in this action that there was no misconduct on the part of the district attorney sufficient to warrant particular mention, and that the cross-examination of the defendant was legitimate and within the rule.
25 Cal. App. 724People v. Ah Fong (1914)
Criminal Law—Medical Law—Act of 1913—Constitutionality of— Sufficiency of Title.—The title of the act approved- June 2, 1913, (Stats. 1913, p. 722), for the regulation of the practice of medicine and surgery, etc., indicates with sufficient detail its entire subject matter, and there is not in the body of the statute anything which is in conflict with its title or not included within the scope thereof, and said- act is constitutional. Id.—Prosecution Under Medical Act—Sufficiency of Evidence.—It is held in this prosecution for a violation of said act that the verdict is sustained by the evidence.
25 Cal. App. 726People v. Lux (1914)
Criminal Law—Murder—Evidence—Possession of Pistol—Cross-examination of Defendant—When Proper.—In this prosecution for murder where the direct examination of the defendant unequivocally referred to the pistol with which it is alleged she committed the crime charged against her, and to her possession of it, prior to' her going to a moving picture show, there was no error in allowing the people to cross-examine her as to what she did with the pistol prior to the shooting and where she carried it on her person, it appearing that the whole cross-examination on this point was germane to the direct examination.
25 Cal. App. 727People v. McAlpine (1914)
APPEAL from a judgment of the Superior Court of Alameda County and from an order refusing a new trial. F. B. Ogden, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 729People v. Zerman (1914)
Criminal Law—Sufficiency of Evidence.—In this prosecution it is held that the evidence was sufficient to support the verdict and judgment.
25 Cal. App. 729People v. Amadio (1914)
Criminal Law—Evidence—Contradictions and Inconsistencies— When Inherent Improbability not Shown—Conflicting evidence.-—Contradictions and inconsistencies in the testimony of a witness alone will not constitute inherent improbability, and where such contradictions and inconsistencies appear either in the evidence offered on behalf of the people or in the evidence adduced upon the whole case the result is only a conflict in the evidence, which does not constitute a ground for a reversal on appeal. Id.—Alleged Misconduct of District Attorney—Impeachment of Witness—Calling Attention to Testimony in Former Trial.— It is held in this prosecution that there was no prejudice or misconduct on the part of the district attorney which would justify reversal of the judgment, and that the district attorney was within his rights in attempting to impeach the defendant by calling his attention upon the second trial to Ms testimony given upon a prior trial. Id.—Date of Crime—Variance Between Information and Proof— When Immaterial.—The district attorney has the right to elect as to the particular transaction upon which he shall offer evidence, and where he so elects, upon the suggestion of the counsel for the defendant, to rest upon a particular transaction as the foundation of his case, in which election the counsel for the defendant acquiesces, no particular harm could come to the defendant by reason of his selecting a date different from that alleged in the information. Id.—When Time Prior to Filing Information and Within Statute Sufficient—Variance—Injury must be Shown.—It is the general rule that if the act is shown to have been committed prior to the filing of the information and within the period of the statute of limitations, no complaint can be made on appeal upon the ground of variance; and even if a variance has occurred it is incumbent upon the appellant, in view of the election made, to show that he has suffered by that variance or was taken by surprise, and that injury resulted to him therefrom.
25 Cal. App. 732Hartfield v. Alderete (1914)
Appeal—Alternative Method—Notice of Entry of Judgment— Failure to Serve—When Appeal in Time.—It is the service of the notice of entry of judgment which starts the sixty-day period running within which an appeal must be taken under the alternative method, and not the fact that the opposing party may have had actual notice of the entry of judgment; and where such notice is not given an appeal taken within six months after the entry of judgment is within time. Id.—Notice of Entry of Judgment—Written Notice—Section 953a Code Civil Procedure.—The notice of entry of judgment contemplated by section 953a of the Code of Civil Procedure, while not so stated, must nevertheless, under section 1610 of the Code of Civil Procedure, be a written notice. Id.—Waiver of Notice—Becord must Show—Stay-bond not Evidence of Waiver of Notice.—While a party entitled to such a written notice may waive the same, evidence of such waiver must appear from the record; and the fact that the appellant on an appeal under the alternative method has filed a stay-bond cannot be considered as evidence of a waiver of the written notice of the entry of judgment required by section 941b of the Code of Civil Procedure. Id.—Alternative Method—Failure to Give Written Notice of Entry of Judgment—Notice of Appeal and Bequest for Transcript—When Within Time—Dismissal.—In such a case, where no written notice of entry of judgment was given, an appeal will not be dismissed on the ground that the notice of intention to appeal and request for a transcript provided for by section 953a of the Code of Civil Procedure had not been given and made within ten days after the opposing party had actual notice of the entry of judgment.
25 Cal. App. 735People v. West (1914)
Criminal Law—Rape—Sufficiency of Evidence.—In this prosecution for rape it is held that upon the whole case the evidence does not appear to be inherently incredible and improbable and that it is sufficient to support the verdict.
25 Cal. App. 736People v. Vaughn (1914)
Criminal Law—Pleading—Sufficiency, of Information.—In a prosecution for attempt to commit grand larceny by trick and device the information is sufficient where it follows the language of the statute. Id.—Alleged Misconduct of District Attorney—When not Considered on Appeal—Failure to Bequest Admonition to Jury.— In such a ease the district attorney is entitled in his argument to the jury to make any deduction from the evidence and to draw any inference from the testimony that in his judgment is logical, even though his comment upon the conduct and character of the defendant may he harsh; and it is the general rule that even though misconduct of the district attorney be conceded, in the absence of a request to the court to admonish the jury to pay no heed to it, complaint of the same will not he heard in the appellate court. Id.—Attempt to Commit Grand Larceny by Trick and Device— Sufficiency of Evidence.—Where, in such a case, if the transaction involved in the information and established in evidence at the trial had been completed to the extent of the defendant obtaining money from the complaining witness and retaining it for her own use, she would have been guilty of the crime of grand larceny by trick and device, the fact that she was prevented from the commission of the crime by any circumstances whatever does not alter the situation; and if upon the completion of the transaction she would have been guilty of the crime of grand larceny by trick and device, the evidence is sufficient to sustain the finding of the jury implied from their verdict that she was guilty of an attempt to commit grand larceny by the same means. Id.—Inferences from Evidence—Intent—Province of Jury.-—In such a case, while the inference might he drawn from the evidence that it was the intent of the defendant to get the money of the complaining witness under the pretense that she had some secret influence and would use it and the money to procure a dismissal of the criminal prosecution then pending against the son of the complaining witness, but on the other hand, it might be fairly inferred from all the evidence that her intent was to keep the money for herself rather than to resort to any such course, the question was one for the jury to determine and not for the appellate court; and there being evidence to sustain the theory of the people upon which the case was tried and defendant convicted, the verdict must stand as far as the appellate court is concerned. Id.—Pronouncement of Judgment—Postponement at Defendant’s Bequest—Finding of Trial Court Thereon Conclusive.—In such a case, the contention of the defendant that a new trial should have been had because the sentence of the trial court was postponed beyond the statutory time is answered by the minutes of the trial court, which were corrected at the request of the defendant, upon the hearing of which motion evidence was taken and the court after hearing conflicting evidence ordered the minutes to be corrected to show that the postponement of the pronouncement of judgment was had at the request of defendant. Id.—Evidence—Intent—Exhibition of Note to Women’s Club.— There was no error in such a case in excluding testimony preferred for the purpose of showing that the defendant exhibited the promissory note obtained from the complaining witness to the president of a certain women’s club before any trouble concerning the transaction arose, for the purpose of rebutting the inference resulting from other testimony in the case that the defendant obtained the note for her own benefit, defendant’s contention being that the note was obtained for the benefit of the club, and to be used for legitimate purposes, but there being nothing in the proferred testimony to indicate that it was the purpose and intent of the defendant to transfer the note to the president of the club, in consideration of the influence of the club to be exercised on behalf of the son of the complaining witness; especially where the testimony of the defendant herself seems to negative such an intent. Such evidence is immaterial and irrelevant and to a certain extent self serving.
25 Cal. App. 740People v. Trent (1914)
Criminal Law—Grand Larceny—Evidence—Depositions—Foundation for—Discretion of Court.—In a prosecution for grand larceny the question as to whether due diligence was shown in an effort to procure the prosecuting witness, as a foundation for admission in evidence of his deposition taken upon the preliminary examination, is largely addressed to the discretion of the trial court; and where the people relied for such showing upon returns of the sheriffs of quite a number of counties of the state, including the county which ■was the last known, place of residence of the desired witness, in which these officials each certified that after due search and diligent inquiry, they had been unable to find the witness, and it was further shown that a diligent search had been made for the witness in the county where the crime occurred and where the witness had been staying and had directed his letters sent, it cannot be said on appeal ■that the trial court abused its discretion in admitting the deposition in evidence. Id.—Failure to Present Certificate of Official Reporter—Insufficient Objection to Evidence.—In such a case there was no error in overruling the general objection to the deposition “that the proper foundation had not been laid” without directing the attention of the court or opposing counsel to the specific defect that the certificate of ■the official reporter of the magistrate upon the preliminary examination who took and transcribed such deposition was not presented or admitted in evidence; where the record further discloses that this general objection was made during the course of a discussion as to the sufficiency of the preliminary showing as to due diligence in seeking to locate the missing witness and did not refer directly to the defect in the omission to produce the reporter’s certificate; especially where it appears that the certificate was in court at the time and could easily have been produced and offered if the specific objection had been made.
25 Cal. App. 743Hayes v. Butler (1914)
Pleading—Filing op Answer Apter Demurrer Overruled—Discretion op Court—Imposition op Terms—Validity op—Sections 472 and 473 Code Civil Procedure.—Under the provisions of sections 472 and 473 of the Code of Civil Procedure no question exists as to the power of the court, in the exercise of its discretion, to impose terms as a condition of answering after the expiration of the time given by law therefor; in the absence of an order granting leave so to do, defendants have no legal right to answer, and an order permitting an answer to be filed within a certain time after overruling of demurrer upon terms of payment of ten dollars to plaintiff or his attorneys by the defendants is valid. Id.—Construction op Section 129 Code Civil Procedure—Sections 472 and 473 Code Civil Procedure not Eepealed by.—The inhibition contained in section 129 of the Code of Civil Procedure is against the making of rules imposing a charge for the filing of a pleading allowed by law. An answer, after the expiration of the time fixed therefor, can only be filed by virtue of an order of court made in the exercise of the discretion vested in it by the provisions of sections 472 and 473 of the Code of Civil Procedure; hence, it is not a pleading the filing of which is allowed by law and therefor does not fall within the provisions of section 129, under which the court is empowered to make rules not inconsistent with the laws of this state. Sections 472 and 473 provide that the court may, in the exercise of its discretion and upon such terms as may be just, permit certain things to be done which under the law the party has no right as of course to do, and these sections are consistent with and are-not repealed by section 129. Id.—Rules of Court—Discretion cannot be Taken Away by.—Courts cannot make an arbitrary rule applicable alike to all cases, whereby terms are imposed as a precedent condition of filing an answer after demurrer overruled and time allowed therefor by law has expired. To do so would be to divest themselves of the exercise of that discretion in each particular case which the law, in express terms, enjoins upon them. Id.—Order Permitting Answer upon Terms to be Considered in Its Entirety—Failure to Meet Terms—Denial op Right.—Since the right of a defendant to answer, after the expiration of the time fixed therefor, is by virtue of an order made, such order must be construed in its entirety, and without compliance with the terms thereof it must be construed as an order of denial of the right to answer unless the condition imposed therein be complied with.
25 Cal. App. 746People v. Allison (1914)
APPEAL from a judgment of the Superior Court of San Luis Obispo County and from an order refusing a new trial. E. P. Unangst, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 749Colburn v. Parrett (1914)
MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. Charles Wellborn, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 751People v. Warner (1914)
Criminal Law—Burglary—Sufficiency of Information—Description of Building.—In a prosecution for burglary, where the information alleged that the defendants “did willfully, unlawfully, feloniously and burglariously enter that certain building in the town of Guerneville, in said county, in which the United States post-office was then and there located and which building was then and there owned by Mrs. R. S. Drake, with felonious intent then and there to commit larceny,” it sufficiently described the building to inform the defendant of the particular building which he was charged with having burglariously entered and to render available a plea of once in jeopardy and former conviction or acquittal in case a second prosecution for the same offense should be inaugurated against him. Id.—Circumstantial Evidence—Sufficiency of.—In this prosecution for burglary it it held that while the evidence upon which the defendant was convicted was purely circumstantial, it was sufficient to support a verdict of conviction. Id.-—Evidence—Possession of Smooth Coin-—Identification of— Comparison With Other Coin—When Refusal to Allow not Prejudicial.—In such a case, where one of the strongest circumstances against the defendant was his possession at the time of his arrest, which occurred within a few hours after the burglary, of a smooth twenty-five cent piece, which was identified by a witness as the one which was in the rifled safe on the night of the burglary, it was not prejudicial error to refuse to permit the counsel for the defendant to show the witness another smooth twenty-five cent piece and ask him to point out the distinguishing difference, if any, between the two, as the solution of such question was one for the determination of the jury. Id.—Presence of Defendant Near Scene of Crime in Company With Another.—In such a case, where the theory of the prosecution was that the crime was committed jointly by the defendant and another, it was not error to permit a witness to testify that he saw the defendant in company with the other person, w„o was jointly charged with him, near the scene of the crime shortly before its commission. Id.—Finding of Postage Stamps Near Scene of Crime—Error Without Prejudice.—In such a case, where it appeared that a large quantity of postage stamps, as well as money, were taken from the rifled safe, it was error to permit testimony that a witness found two five-cent postage stamps in the early morning after the •burglary on a railroad track a short distance from the town where the burglary occurred, where it was not shown that the defendant had any connection with the stamps; but such error was not prejudicial, where the other circumstances of the case, unaided by the circumstances of the finding of the stamps, were sufficient to generate in the minds of reasonable men the conviction that the defendant was, beyond a reasonable doubt, guilty of the crime charged. Id.—Identification of Defendant—Conclusion of Arresting Officer—When Refusal to Strike Out not Prejudicial.—In such a ease, where the arresting officer testified that, upon going into the baggage ear where the defendants were arrested, he opened) the door thereof slightly and peeped through and into the passenger coach “and located the two gentlemen that I was looking for,” there was no error in refusing to strike out, on motion of the defendant, the words “I was looking for,” on the ground that it was equivalent to telling the jury that the defendants had committed the burglary, as the statement could not have been so understood by the jury, where the testimony of the officer showed that he had no such knowledge of the two men or their connection with the crime as would induce the jury to attach any significance to any statement by him which might be so construed as to involve a declaration or any expression of opinion by the witness that they were guilty of the charge. Id.—Possession of “Skeleton Key”—Failure to Move to Strike Out.—In such a case, where the counsel for defendant, on cross-examination of the arresting officer, asked if he found any burglar’s tools of any kind in possession of the accused, and the district attorney on re-direct examination asked, “You said you did not find any burglar's tools. Did you find a burglar key? A. We found a skeleton key,” to which counsel for. the defendant interposed: “We object to that as leading. Did he find a key?” and the witness answered “Yes, a skeleton key,” and after the question had been answered counsel for defendant objected to the testimony on the ground that it was incompetent, irrelevant, and immaterial, these objections having been made after the question was answered, there was nothing before the court on which to predicate a ruling, and the remaining remedy was a motion to strike the testimony from the record; but where that was not done there is no warrant for a review by the appellate court of the error in admitting the testimony, if error ft was.
25 Cal. App. 764People v. Malone (1914)
Criminal Law — Burglary — Sufficiency of Information — Sufficiency of Evidence to Support Verdict.—In this prosecution for burglary it is held upon the authority of the case of People v. Warner, ante, p. 751, in which the defendant was jointly charged with the appellant in this ease, that the information was sufficient and that the evidence was amply sufficient to support the verdict. Id.—Evidence—Possession of Stolen Property by Defendant’s Companion—Admissibility of.—Where the evidence shows that the defendant and his companion, when seen at all, were in the company of each other from the time when they were first observed in the immediate neighborhood of the burglary up to and including the time at which they were apprehended by the arresting officer, and all the circumstances of the case independent of the possession by defendant’s companion of a smooth two-bit piece, identified as the same piece of coin that was in the rifled safe at the time of the burglary, indicated the guilt of the defendant no less than that of his companion, the fact of the finding of a part of the stolen property from {he safe on defendant’s companion, within a few hours after the property was taken, constituted a relevant and material circumstance against the defendant, to be accorded, however, such weight in the proof of guilt as the jury might conceive it to be entitled to after comparing and considering it with all the other circumstances in the ease. Id.—Giving of Assumed Name—Possession of Money by Defendant and Companion—Possession of Smooth Coin by Defendant’s Companion.—There was no error in admitting evidence that defendant’s companion, when arrested, gave an assumed name to the officer, that the defendant had in his possession a certain amount of money, that upon defendant’s companion was found a smooth quarter of a dollar, identified by a witness as having been in the rifled safe at the time of the burglary, and also admitting in evidence the moneys taken from both the defendant and his companion, as all those circumstances were relevant and competent against the defendant, their weight or evidentiary valhe being a matter for the jury to determine. Id.—Identification of Defendant—Failure of Residents to Identify —Cross-examination.—Where it appeared that the arresting officer after the arrest and prior to the trial took the defendant and his companion to the town where the burglary occurred to ascertain whether any of the residents of that place would be able to identify them' as persons whose presence at or near said town they had observed shortly anterior to the time at which the crime was committed, it was not error for the court to sustain an objection to a question of counsel for defendant on cross-examination to show that at one place to which they were taken they could not be identified, where the uncontradicted testimony of several witnesses showed that the men were in the immediate neighborhood only a few hours before the crime was committed. Id.—Evidence—Suspicion of Sheriff of Person Other Than Defendants had Committed Crime—Inadmissibility of.—It was not error for the court to refuse to allow the defendant to- show that the sheriff of the county, upon learning of the burglary, entertained a suspicion that a person known to him, other than the defendants, was the author of the crime, where there was nothing in the direct examination of the sheriff to justify such inquiry on cross-examination. Id.—Instructions—Burden of Proof—Reasonable Doubt—Presumption of Innocence.—There was no error in refusing the following instruction: “The court instructs you that when all the evidence in the case is before the jury, the burden of proof remains where it started, with the prosecution,” where the court instructed the jury, among other statements of law pertinent to the ease that “the state must prove by competent evidence every essential element oí; the crime charged, to the satisfaction of each and every juror, beyond a reasonable doubt,” and further that “the law presumes every man to be innocent until his guilt is established beyond! a reasonable doubt,” and that “this presumption attaches at every stage of the case, and to every fact essential to a conviction.” Id.—Reasonable Doubt—Incorrect Form.—There was no error in rejecting an instruction proffered by the defendant which merely contained in effect a statement of the rule as to reasonable doubt, where the rule was fully and clearly amplified by the court in its general charge; especially where the rejected instruction was not in proper form, inasmuch as it would have told the jury that defendant’s companion was the only person on trial for the alleged offense, which was not true. Id.—Theory of Innocence—Duty to Acquit—Circumstantial Evidence.—There was no error in such a ease in refusing an instruction proffered by defendant that “in considering the evidence, if you can reasonably account for any fact in this ease upon a theory or hypothesis which will admit of the defendant’s innocence, and if you have a reasonable doubt of his guilt, you should acquit him,” where the court declared the principle substantially in the following instruction: “When circumstantial evidence is relied upon to obtain a conviction, it is not only necessary that the circumstances all concur to show that the defendant committed the crime, but that all are consistent with any other rational theory.” Id —Instructions—Properly Refused When Covered by Others.— There is no error in refusing instructions proffered by the defendant where they have been fully covered by other instructions given by the court.
25 Cal. App. 771Minaker v. Sunset Building & Real Estate Co. (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. Franklin J. Cole, Judge presiding. The facts are stated in the opinion of the court.
25 Cal. App. 775Westergreen v. Beer (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 779People v. Pryal (1914)
Criminal Law—Libel—Letter Charging Forgery—Admission op Untruth—Evidence op Good Motives and Justifiable Ends— When Properly Excluded—Conclusive Presumption of Malicious and Guilty Intent—Section 1962 Code Civil Procedure. In a prosecution for libel, based upon a letter written by the defendant containing a charge of forgery against an attorney, where the defendant upon the trial not only made no effort to prove the truth of the assertion, but expressly admitted the charge of forgery was untrue, the trial court properly excluded from evidence documents including certain letters which passed between himself and the attorney while the latter was acting for defendant in certain litigation, which letters and documents defendant contended were admissible as tending to show his intention in uttering the libel, and as proving it was published with good motives and justifiable ends, as the defendant, in uttering the libel, engaged in the deliberate commission of an unlawful act for the purpose of injuring another, from which, under section 1962 of the Code of Civil Procedure, a malicious and guilty intent is conclusively presumed. Id.—Statutory Construction—Sections op Code to be Construed Together.—It is a well known rule of construction that the various sections of the code are to be read together and harmonized if reasonably possible. Id.—Construction op Sections 250 and 251 Penal Code, and Section 1962 Code Civil Procedure—Admitted False Publication—Innocent Motive—Presumption op Malice—Evidence.—When sections 250 and 251 of the Penal Code are read together in the light of section 1962 of the Code of Civil Procedure, it is quite plain that proof of an innocent motive or intent in publishing a willful defamation, admittedly false, will not he permitted in the face of the conclusive presumption of malice which the latter section of the code creates, unless such proof shows such publication to he in the nature of a privileged communication. Td.—Evidence—Difficulty Between Attorney and Client.—In such a case, where the preferred evidence tended to show that difficulties had arisen between the defendant and the attorney, over the latter’s conduct during certain legal proceedings, resulting in an effort on the part of the defendant to discharge his counsel, such evidence, instead of showing that the motive for publishing the willful defamation was an innocent one, would rather tend to strengthen the presumption that the publication was inspired by ill will and was malicious. Id.—Libel—Bight op Jury to Determine Law and Fact—Construction op Article I, Section 9 op the Constitution and Section 251 Penal Code—Power op Court to Bulb on Admissibility op Evidence not Taken Away.—The provisions of article I, section 9 of the state constitution and of section 251 of the Penal Code that in the trial of a case of criminal libel “the jury shall have the right to determine the law and the fact” does not take away from the court the right to rule upon the admissibility of evidence during the trial. Id.—Instructions—Alleged Misconduct op District Attorney and Jury.—In this "prosecution for criminal libel it is held that there was no error in the instructions given by the court to the jury and that there was no misconduct on the part of either the district attorney or the jury.
25 Cal. App. 784Sam Aftergut Co. v. Mulvihill (1914)
Contracts—Agreement to Sell Milk—Failure op Party to Sign Contract—Bight to Becover on Quantum Meruit—Erroneous Nonsuit.—Where parties orally agreed for the sale and purchase by them of a certain quantity of milk per day at a fixed price for a period of six months, and it was agreed that the contract should be reduced to writing and signed by the parties, but one of the parties never signed the contract, but delivered milk to the other for a certain period, in quantities specified in the contract, when for some reason undisclosed by the record, he refused to make further deliveries, the vendor was entitled to recover on quantum, meruit the reasonable value of the milk delivered, and it was error for the court to grant a nonsuit. Id.—Agreement to Beduce Contract to Writing and Sign—Failure to Do so—Contract Incomplete—Estoppel.—In such a case, where it was the express intention of the parties that the contract should be reduced to writing and signed by them but this stipulation was not performed; the contract cannot be regarded as binding on either of the parties, especially where the proposed contract contained reciprocal covenants; nor was the vendor in such a case es-topped from questioning the contract by reason of the fact that it was signed by the purchaser and left with brokers for the vendor’s signature, where the evidence does not show that the brokers were any more the agents of the vendor than of the purchaser, they merely having brought the parties together, drew up the contract, and arranged that the purchaser was to sign it, and, sometime when convenient, they were to have the vendor sign it also.
25 Cal. App. 787Foote v. San Francisco Produce Co. (1914)
The facts are stated in the opinion of the court.
25 Cal. App. 790Lowenberg v. L. Jacobson's Sons (1914)
APPEAL from an order of the Superior Court of Alameda County refusing to dissolve an attachment. William H. Waste, Judge. The facts are stated in the opinion of the court.
25 Cal. App. 798Unruh v. Lummer (1914)
APPEALS from judgments of the Superior Court of Los Angeles County and from orders refusing a new trial in each of the above entitled actions. C. A. Raker, Judge presiding. The facts are similar to those stated in the opinion in Lummer v. Unruh, ante, p. 97.
25 Cal. App. 799Anderson v. Nawa (1914)
The facts are similar to those stated in the opinion in Anderson v.- Nawa, ante, p. 151.
25 Cal. App. 801Anderson v. Nawa (1914)
The facts are similar to those stated in the opinion in Anderson v. Nawa, ante, p. 151.
25 Cal. App. 802Anderson v. Nawa (1914)
The facts are similar to those stated in the opinion in Anderson v. Nawa, ante, p. 151.
25 Cal. App. 803Parker v. Kingsbury (1914)
State Lands—Application to Purchase—Withdrawal prom Sale.—■ Judgment affirmed on the authority of Ayers v. Kingsbury, ante, p. 183.
25 Cal. App. 803Parker v. Kingsbury (1914)
25 Cal. App. 804Bragg v. Cumming (1914)
. APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. John Hunt, Judge. The facts are similar to those stated in the opinion in' Bragg v. Martenstein, ante, p. 199.
25 Cal. App. 804Bragg v. Cumming (1914)
25 Cal. App. 805People v. Suhr (1914)
APPEAL from a judgment of the Superior Court of Yuba County and from an order refusing a new trial. Eugene P. McDaniel, Judge. The facts are similar to those stated in the opinion in People v. Ford, ante, p. 388.
25 Cal. App. 805People v. Suhr (1914)
25 Cal. App. 806Scott v. Boyle (1914)
APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. J. M. Seawell, Judge. The facts are similar to those stated in the opinion in McEvers v. Boyle, ante, p. 476.
25 Cal. App. 806Scott v. Boyle (1914)
25 Cal. App. 807Colusa & Hamilton Railroad v. Glenn (1914)
Condemnation of Land—Right of Wat.—Judgment vacated as the effect of the affirmance of the order granting a new trial in Colusa and Hamilton Bailroad Company v. Glenn, ante, p. 634.
25 Cal. App. 807Colusa and Hamilton Railroad Co. v. Glenn (1914)