Volume 49 — California Appellate Reports

<p>Meredith, Landis & Chester and White, Miller, Needham & Harber for Petitioners.</p> <p>Hugh B. Bradford, District Attorney, and J. R. Hughes, Assistant District Attorney, for Respondents.</p>

<p>Andrews, Toland & Andrews and Andrews, Toland, Gregg & Andrews for Appellant.</p> <p>Albert Lee Stephens, City Attorney, Charles S. Burnell, City Attorney, Jess E. Stephens, Assistant City Attorney, and Wm. P. Mealey, Assistant City Attorney, for Respondent.</p>

<p>[1] Criminal Law—Infamous Crime Against Nature—Boy of Ten Tears not an Accomplice.—A boy under the age of ten years who submits to the perpetration upon his person of the infamous crime against nature is not an accomplice whose testimony requires corroboration in a prosecution- for the commission of such offense.</p> <p>[2] lb.—Time of Commission of Offenses Charged—Instruction.— Where an information in separate counts charged the commission of different offenses on or before a designated date, an instruction that the prosecution was not required to allege or prove the' exact date of the commission of either offense, but it was sufficient if such commission was established beyond a reasonable doubt at any time within three years prior to the filing of the information, is not a sufficient ground for reversal where the jury was fully instructed in other portions of the charge with respect to their duty to be satisfied beyond a reasonable doubt as to the guilt of the defendant on each of the counts.</p> <p>[3] Id.—Commission of Similar Offense Against Third Person— Evidence—Reversible Error.—In a prosecution under such an information, the admission of evidence relating to the commission of another offense by the defendant similar to that charged in the first count but against a person other than the prosecuting witness was prejudicial error.</p> <p>1. Who is an accomplice, note, 138 Am. St. Rep. 272.</p>

<p>[1] Appeal—Judgment in Cbiminal Action—Diminution op Becord, Where, on an appeal from a judgment in a criminal action, the appellant in writing requested the trial court to make an order as provided in section 1247 of the Penal Code directing the phonographic reporter to transcribe all notes of the testimony of the proceedings on the trial, and 'no order was made, a transcription of the entire record should have been made, and where it is made to appear to the appellate court that certain matters have been omitted from the transcript, it will order a diminution of the record and a further transcription of the proceedings.</p>

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

APPEALS from orders of the Superior Court of the City and County of San Francisco vacating satisfactions of judgments. Geo. A. Sturtevant, Judge. The facts are stated in the opinion of the court.

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

<p>APPEAL from an order of the Superior Court of Orange County sustaining a demurrer to a complaint. Z. B. West, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Partnership—Business op Bean Threshing — Construction op Contract.-—A written agreement to engage in the business of threshing beans for hire which provided that certain equipment belonging to one of the parties and that to be purchased by another should be their respective contributions to the business, and another should receive wages only and after reimbursements for advances to pay operating expenses the profits should be equally divided between the contributing owners, constituted a partnership, notwithstanding an express declaration in the agreement that it was not the intention to form a partnership and that neither of the parties should be liable for the acts and obligations of the other.</p> <p>1. What constitutes a partnership, note, 115 Am. St. Hep; 400.</p>

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

<p>[1] Criminal Law—Burglary—Insanity — Evidence — Withdrawal of Plea of Guilty After Refusal of Probation.—Where in. a prosecution for burglary the defendant sought an acquittal upon the ground of insanity, evidence that the defendant had pleaded guilty with the expectation that he would be granted probation, but, it being refused, he withdrew the plea by consent of the court and entered the plea of not guilty, was admissible to rebut the theory that he was insane at the time of the commission of the alleged act.</p> <p>[2] Id.—Discharge from Employment—Shortages in Collections-' Cross-examination of Defendant.—Where in such a prosecution the defendant had testified to matters covering a long period of time that had a tendency to show a defective memory and impaired reasoning power, there was no error in permitting the witness to be cross-examined as to an incident occurring some four or five years prior to the commission of the offense charged relative to his discharge by a bank for shortages in collections, where it was apparent from the remarks of the court that the evidence was to be considered as only bearing upon the question of sanity.</p> <p>[3] Id.—Jury—Reading of Testimony—Construction of Code.-—Under section 1138 of the Penal Code, it is only where there is a disagreement among the jurors as to the testimony while deliberating on a verdict that the testimony must be read to them.</p> <p>[4] Id.—Misconduct of District Attorney—Remarks in Argument —Appeal.—A defendant cannot on appeal complain of remarks made by the district attorney in his argument to the jury, where no request was made to the trial court to instruct the jury to disregard them.</p> <p>[5] Id.—Insanity—Proof by Preponderance of Evidence—Instructions.—An instruction that a reasonable doubt as to the insanity of the defendant is not sufficient to justify an acquittal, but that the jury must be convinced that the defense is established by a preponderance of evidence, is not inconsistent with an instruction that the defense need not be proved beyond a reasonable doubt, but it is sufficient that it be proven by a preponderance of the evidence.</p>

<p>[i] Findings—Trial by Jury—Stipulation op Counsel.—Where an action for damages for fraudulent representations was tried before a jury upon the express stipulation of counsel that the jury should sit in an advisory capacity and that the form of the verdict might be general and, if supported by substantial evidence, form the basis of the court’s judgment, the necessity of findings was not thereby obviated, but the court was required to give its decision in writing as provided in section 633 of the Code of Civil Procedure.</p>

<p>APPLICATION for a Writ of Habeas Corpus to secure release from Juvenile Court.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Attorney’s Fees—Provision in Lease—Action to Recover Rent and POSSESSION—Allowance as “Costs.”—Attorney’s fees are not recoverable as “costs” in an action to recover unpaid rent and possession of real property under a provision of the lease upon which the action was founded providing that in the event the lessbrs shall commence an action against the lessee for the enforcement of any of the conditions of the lease and judgment shall he rendered in favor of the lessee, the lessors will pay to the lessee the cost and expense of the action, including a reasonable attorney’s fee.</p> <p>[2] Id.—Recovery on Contract.—Where the right to attorney’s fees is based upon contract and not upon statute, recovery must be had upon the contract, and such fees cannot he taxed as costs.</p> <p>[3] Id.—Special Damage—Pleading.—Attorney’s fees provided for in a contract are in the nature of special damage and must he specially averred in order to admit of their recovery.</p> <p>[4] Id.—Object of Provision.—The object of a provision for attorney’s fees in a contract is to reimburse a party for sums he pays, or becomes liable to pay, as attorney’s fees.</p>

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

<p>[1] Specific Performance—Execution of Lease—Action to Compel—Conflicting Evidence—Finding—Appeal.—In an action in specific performance to compel certain trustees to execute to plainly tiff a lease, according to the terms of an alleged verbal contract, claimed to be evidenced by a memorandum in writing, where the evidence on the question of the alleged promise to execute the lease is substantially conflicting, the finding of the trial court made thereon will not be disturbed on appeal.</p> <p>[2] Id. — Incompleted Investigations — Absence of Accepted Contracts—Correspondence as Evidence.—In this action in specific performance to compel the defendants to execute to plaintiff a lease of a certain ranch held by them as trustees, the correspondence on which the plaintiff relied to remove the transaction from the bar of the statute of frauds and to prove that one of the defendants promised to execute the lease prepared by plaintiff’s attorney, indicated that the negotiations for the lease were not to be considered closed until certain investigations should be made to the satisfaction of the defendants; consequently a concluded and accepted contract was not shown.</p>

<p>S. J. Higgins, City Attorney, Arthur F. H. Wright, Deputy City Attorney, and D. S. Hammack for Appellant.</p>

<p>PROCEEDING in Mandamus to compel the Superior Court of Merced County and E. N. Rector, Judge thereof, to order a stay of execution.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>[l] Oriminal Daw—Assault With Deadly Weapon—Self-defense —Evidence—Instructions.—In a prosecution for the crime of assault with a deadly weapon, instructions on the law of self-defense are properly refused where no showing of self-defense appears and there is nothing in the testimony or evidence in the ease which calls for instructions thereon.</p>

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

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

<p>APPLICATION for a Writ of Habeas Corpus to secure the release of a person confined in a state prison after conviction of the crime of robbery, together with a prior charge of burglar^.</p> <p>The facts are stated in the opinion of the court.</p>

<p>H. S. Utley, District Attorney, and Albert J. Lee, Assistant District Attorney, for Appellant.</p>

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

<p>[1] Pleading — Parties — Action Against Corporation — Substitution of Beal Defendant.-—-Where an individual conducting a business under the name of a corporation negligently injured the plaintiff, and an action for such injuries was brought against the corporation alone and the summons was served on such individual and the corporation appeared and answered the complaint, the court was authorized on motion and proof that the corporation had no legal existence at the time of .the injuries and . of plaintiff’s ignorance thereof to order that the real defendant be brought in and that the pleadings be amended accordingly.</p>

<p>[1] Gift—Rescission—Fraud.—A gift of personal property may be rescinded and set aside by a court of equity upon a sufficient showing that it was procured through or by means of the fraud of the donee.</p> <p>[2] Id.—Husband and Wife—Meretricious Relations—Rescission of Gift.-—A gift of personal property made by a wife to her husband may be set aside for fraud, and even where there have been no false representations or promises that the marital relations have been faithfully kept, property which has -been given by one to the other will be restored to the donor upon discovery by the latter that the donee has been before or after the gift guilty of meretricious relations with a third party.</p> <p>[3] Laches—Pleading—-Appeal.—Where an answer does not plead laches as a defense to the maintenance of an action and the question is not therefor reviewed by the trial court, it cannot be raised for the first time on appeal.</p>

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