Volume 63 — California Appellate Reports

PROCEEDING- in Certiorari to review an order of the Superior Court of Los Angeles County adjudging petitioners guilty of contempt. Ralph H. Clock, Judge. Order annulled. The facts are stated in the opinion of the court.

<p>[1] Boundaries—Title to Street—Appeal—Presumption—Evidence. Upon an appeal from a judgment in favor of the plaintiff in an action to recover damages for the destruction of trees growing in the street immediately in front of plaintiff’s property, it will be presumed, in the absence of anything in the record to the contrary, that plaintiff’s title extended to the center of the street.</p> <p>[2] Trees—Growth in Street—Destruction—Right of Owner to Maintain Action.—Where the person who owns land bounded by a public street owns to the center of such street he has a property right sufficient to permit him to maintain an action against any person, except the highway officials, who might wrongfully injure or destroy the trees growing in the street in front of his land,</p> <p>[3] Id.—Willful and Malicious Destruction—Pleading—Evidence —Treble Damages.—Plaintiff having filed her action under the provisions of section 733 of the Code of Civil Procedure and alleged that defendants willfully and maliciously cut and destroyed the trees growing in the street in front of her property, and the trial court having found, from sufficient evidence, that such allegation was true, it had the power to award plaintiff treble damages.</p> <p>3. Measure of damages for injury to or destruction of trees or shrubbery not valuable for their timber or wood, notes, 1 Ann. Cas. 786; 15 Ann. Cas. 916; 11 L. R, A. (ST. S.) 930; 28 L. R. A. (ID S.) 757; 37 L. R. A. (ID S.) 1115.</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>The facts are stated in the opinion of the court.</p>

<p>[1] Chose in Action—Unsatisfied Judgment.—Inherent in an unsatisfied judgment is the right to recover money or other personal property by a judicial proceeding,</p> <p>[2] Assignments — Judgment—'Rights of Assignee—Section 368, Code of Civil Procedure.—An assignee of an unsatisfied judg-' ment, under section 368 of the Code of Civil Procedure, providing that “in ease of an assignment of a thing in action, the action, by the assignee is without prejudice to any set-off or other defense existing at the time of or before notice of the assignment,” takes the assignment thereof subject to whatever rights the judgment debtor may have against the assignor at the time of the assignment.</p> <p>[3] Contribution — Subrogation—Payment After Assignment.—A judgment debtor cannot enforce contribution, or assert the right of subrogation, against the assignee of the judgment on account of payment by him, after the assignment, of a differoht judgment for the payment of the whole of which the assignor is in equity and good conscience chargeable.</p> <p>[4] Id.—When Right to Contribution Arises.—The right to contribution is inchoate from the date of the creation of the relation between the parties, but it is not complete so as to be enforceable until there has been an actual payment, in whole or in part, of the common obligation or until something is done equivalent to a discharge thereof.</p> <p>[5] Subrogation—When Right Arises.—The right of subrogation can arise only in favor of one who has, under some duty or compulsion, paid the debt of another; it arises where one having a liability in the premises pays the debt due by another under such circumstances that he is in equity entitled to the security or obligation held by the creditor whom he has paid.</p> <p>2. Effect of assignment of interest in judgment, note, Ann. Cas. 1912®, 525.</p> <p>[6] Id.—Payment.—The doctrine of subrogation requires that the person seeking its benefit must have paid a debt due to a third person before he can be substituted to that person's rights, and it is not the liability to pay but an actual payment to the creditor which raises the equitable right.</p> <p>[7] Set-off—Debtor and Creditor—Assignment—Payment—Equity. A debtor is entitled to set-off as against the assignee of the creditor the amount of a judgment obtained against the debtor, the creditor, and another prior to the assignment, which judgment in equity and good conscience should have been wholly paid by the creditor, but which the debtor was required to pay shortly after the assignment because of the insolvency of the creditor and said other; and it is of no moment that the debtor’s equitable right to such set-off had not been adjudicated prior to the assignment, where the facts forming the basis of such equitable right were in existence prior to that time.</p> <p>[8] Id.—When Right Exists.-—The right of set-off exists when the parties hold cross-demands under such circumstances that in equity they should be applied one against the other and only the balance be recovered.</p> <p>[9] Id.—Effect of Insolvency.—When the party against whom a set-off is asserted is insolvent the rights of the party claiming the set-off are of especial equitable cognizance.</p> <p>[10] Id.—Action to Establish—Estoppel—Representations—Finding.—In an action for a set-off against the assignee of a judgment against the plaintiff, an estoppel from asserting a right of set-off is not created by representations made by plaintiff to the assignee prior to the purchase of said judgment that if the latter would purchase the same, plaintiff would shortly thereafter pay the amount thereof, in the absence of a finding that said assignee relied upon such representations and that he purchased the judgment in reliance thereon, and that he would not have purchased the judgment but for such representations.</p> <p>[11] Id.—Estoppel—Pleading—Findings.—All essential elements of estoppel must be alleged and must be found upon, and from such facts estoppel must be clearly dedueible.</p> <p>[12] Subrogation—Assignment—Payment.—A debtor is not entitled to assert the right of subrogation as against the assignee of the creditor by reason of the payment by the debtor, after the assignment, of an outstanding judgment against the creditor alone.</p> <p>7. Set-off against judgment in the hands of assignee, notes, 23 I«. R. A. 335; L. R. A. 1917F, 1010.</p> <p>[13] Id. — Assignment — Consideration — Pleading — Absence of Prejudice.—A count in a complaint by a debtor seeking subrogation by reason of the payment by him, after the assignment of a judgment against said debtor, of an outstanding judgment against the creditor, and charging that said assignment was made without consideration and only for the purpose of security, states a cause of action; and error in sustaining a demurrer thereto was without prejudice where in finding upon the same allegations in another count it was declared that the assignment in question was made for a valuable consideration.</p> <p>[14] Attachment—'Claims for Damages in Tort.—Claims for damages in tort, being unliquidated, are not such debts or credits as are contemplated by the attachment laws to be subject to garnishment process; but after the claim has been reduced to a fixed sum by a final judgment, it is then subject to such process, and until then the claim maintains its character as an unliquidated claim.</p> <p>[15] Id.—Action in Tort—Judgment—Effect of Appeal upon.—. The effect of an appeal in an action for damages for tort is to deprive the judgment of its finality, and it operates to keep alive the case as one of tort as it existed before the judgment was rendered.</p> <p>14. Liability to garnishment of unliquidated claims, note, 59 L. E. A. 353.</p>

<p>MOTION to dismiss appeal from judgment of the Superior Court of the City and County of San Francisco. Franklin A. Griffin, Judge. Granted.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Vendor and Vendee—Rescission—Breach of Covenant to Perform Street Work—Materiality of Covenant—Question for Trial Judge.—In an action by a vendee for rescission of a contract for the purchase of two lots upon the ground that defendant breached its covenant to perform street work, the question of the importance and materiality of the covenant was one for the trial judge to determine.</p> <p>[2] Appeal — Weight of Testimony — Finding. — The testimony'of witnesses called at the trial should not be weighed or analyzed on appeal, and if any evidence is found in the record to sustain a finding it should not be disturbed.</p> <p>[3] Vendor and Vendee—Rescission—Breach of Covenant to Perform Street Work—Materiality of Covenant—Finding—Evidence.-—In this action by a vendee for rescission of a contract for the purchase of several lots upon the ground that defendant breached its covenant to perform street work, it cannot be said on appeal that there is not some evidence to support the finding that the covenant for street work was a material consideration of the contract; and this being so, the breach of the covenant was a sufficient ground for rescission.</p> <p>[4] Corporations—Ownership of Entire Stock by Individual—Disregard of Separate Entities—Equity.—When an individual conducts his business under a corporate name owning all the stock of the corporation except a few qualifying shares, the difference between the individual and corporate entities will be disregarded if necessary to work out equitable ends.</p> <p>[5] Vendor and Vendee — Rescission — Laches—Finding. — In an action by a vendee for rescission of a contract for the purchase of several lots upon the ground that defendant breached its covenant to perform street work, a finding that plaintiff was not guilty of laches cannot be overthrown, where the complaint does not show laches as a matter of law and it is found that all its allegations are true, and the defendant offered no evidence to prove the defense of laches, the burden of proving which rested upon it.</p> <p>1. False statement by vendor of intention to make improvement affecting property sold as fraud sufficient to avoid contract of sale or deed, note, Ann. Cas. 1914B, 862.</p> <p>Right of vendee to rescind contract for sale of land because of vendor’s breach of covenant to make improvements, notes, 21 Ii. R. A. (N. S.) 823; L. R. A. 1917B, 403.</p> <p>[6] Id.—Interest—Time.—In such action, the plaintiff was entitled to interest from the date of rescission and not from the time of payment of each installment of the purchase price of the lots.</p> <p>[7] Id.—Modification of Judgment — Correction by Trial Court— Appeal Costs—Disallowance of.—In such action, the claim of the defendant that because of the modification of the judgment in favor of plaintiff by striking therefrom all interest allowed prior to the date of rescission, it should have its costs on appeal cannot be sustained, since if the error had been called to the attention of the trial court it could have been corrected without an appeal.</p>

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

<p>[1] Vendor and Vendee—Fraudulent Representations—Damages— Readiness, Ability, and Willingness of Vendee to Perform— Pleading—Defect in Allegation Cured.—In an action by a vendee for damages for fraudulent representations concerning the land contracted to be purchased by him, any defect, relating to the readiness, ability, and willingness of the plaintiff to perform his engagements under the agreement, in an allegation in the complaint “That plaintiff has performed each and every covenant and condition required of him to be performed under said contract, except the payment of the balance of the purchase price; that the defendants have no property within the jurisdiction of this ' court subject to execution; that the property, the subject of this litigation, is included within a tract of land subject to a blanket mortgage of $20,000.00; that if plaintiff should pay the balance due under said contract his claims herein set out could not be satisfied,” was immaterial, where the amount due under the contract was shown by cross-complaint, and in rendering a judgment for damages after trial upon the merits the trial court gave defendants credit for the amount unpaid on the contract.</p> <p>[2] Id.—Untrtjth op Statement — Finding—Evidence.—In such action, the evidence was sufficient to support a finding that the defendants knew the untruth of the statement when they made it; that they owned and controlled a supply of water in a sufficient quantity and volume to irrigate properly, in, a good and sufficient manner, all of a certain tract of land and the lots therein; that they had made a careful investigation of water available and accessible to irrigate said tract of land and the lots therein, and that they had discovered, and owned and controlled, a supply of water of a stated flow situated in a named place, and that said supply of water in said place was available and accessible to irrigate said tract of land and all of the lots therein.</p> <p>[3] Id.—Discovert op Fraud—Evidence—Statute op Limitations.— In such action, the evidence fails to support the contention of defendants that the fraud practiced by them was discovered more than three years before the commencement of the action and that, therefore, the action was barred by the statute of limitations.</p>

<p>[1] Criminal Law—'Murder—Intent to Kill—Evidence—Inference. In. a. prosecution, for murder, it is not necessary that there should be express evidence of a deliberate purpose to kill; it may be inferred from such facts and circumstances in the ease as reasonably warrant an inference of its existence.</p> <p>[2] Id.—Verdict—Evidence—Appeal.—In a prosecution for murder, a verdict finding the defendant guilty of first degree murder cannot be disturbed on appeal where the evidence was conflicting, and was substantial to support the verdict.</p> <p>[3] Id. — Evidence — Sunstroke Suffered bt Defendant Prior to Homicide.—In a prosecution for murder, evidence that defendant suffered a sunstroke about a year and a half prior to the homicide was not admissible for the purpose for which it was received by the trial court, namely, to enable the jury to determine whether the death penalty or life imprisonment should be imposed in the event that defendant should be found guilty of murder in the first degree; nor was it admissible for the purpose for which it was offered, to wit, to show that by reason of the sunstroke a sudden quarrel would more readily excite in defendant a blinding passion than would be the case with the average man.</p> <p>[4] Id.—Reduction of Homicide to Manslaughter-—Character of Provocation.—The provocation which will stir in the heart of the slayer that heat of passion which reduces the homicide from murder to manslaughter must be such as would have a like effect upon the mind and emotions of the average man—the man of ordinary self-control.</p> <p>[5] Id.—Examination of Witnesses by Trial Judge — Power and Duty of Trial Court.-—The duty of a trial judge, particularly in criminal eases, is more than that of an umpire; and though his power to examine the witnesses should be exercised with discretion and in such a way as not to prejudice the rights of the prosecution or the accused, still he is not compelled to sit quietly by and see one wrongfully acquitted or unjustly punished when a few questions asked from the bench might elicit the truth. It is his primary duty to see that justice is done both to the accused and to the people.</p> <p>[6] Id.—Independent Examination of Defendant bt Judge—Absence of Prejudicial Error.—In a prosecution for murder, the action of the trial judge in conducting an independent examination of the defendant while he was a witness -in his own behalf was without prejudicial error to the defendant, where no question asked by the trial judge was shown to have been properly subject to any objection other than that it was being asked by the court instead of by counsel, and where it cannot be said on appeal after an examination of the record that the trial judge transgressed the proper limits of judicial discretion in essaying to elicit from the witness all of the truth respecting the matters as to which he had voluntarily testified in response to his counsel’s questioning.</p> <p>3. Weakness of mind as affecting responsibility for homicide, note, 10 Xi. B. A. (H. S.) 999.</p> <p>4. Condition of mind of slayer which reduces murder to manslaughter, notes, 134 Am. St. Bep. 726; 9 Ann. Cas. 929; 5-L. B. A. (N. S.) 81».</p> <p>5. Power of court to examine witnesses in criminal cases, notes, 6 Ann. Cas. 477; 5 L. B. A. (H. S.) 878; L. R. A. 1916A, 1192.</p> <p>[7] Id.—Failure to Instruct upon Pertinent Issue — Absence of Bequest for Instruction.—A defendant in a criminal case is in no position to complain of the court’s failure to instruct upon a point, even though it he pertinent to an issue, where the instruction was not requested.</p> <p>[8] Id. — Definition of Term “Legal Provocation” — Failure of Court to Give—Absence of Bequest.—In such prosecution, in the absence of a request therefor, the defendant cannot complain of the trial court’s failure to define affirmatively the term “legal provocation.”</p> <p>[9] Id.—“Cooling Time”—Bequested Instruction—Proper Befusal of.—In such prosecution, an instruction that “Cooling time, or that space of time which will be deemed sufficient for a man to cool after a conflict, may differ with different persons, according to the constitution of their nature. No uniform rule can be laid down as the length of time when a man shall have ‘cooling time.’ It is for the jury, under all th'e evidence, to decide as to the actual conditions of the mind of the actor,’’’ was properly refused.</p> <p>[10] Id.—Instruction Partly Erroneous—Bejection of Whole Justified.—If any part of a single instruction should not have been given the action of the trial court in rejecting the whole will bo affirmed.</p> <p>[11] Id.—Cooling Time—Bule.—“Cooling time” is not the time it would take an ideal man or the defendant, but the time it would take the average man or the ordinarily reasonable person, under like circumstances, to cool.</p> <p>[12] Id. — Conversation Between Jurywoman and Father of Deceased—Subject Matter not Disclosed—Judgment Undisturbed. In such prosecution, the fact that a jurywoman was seen talking to the father of the deceased in a highly excited manner and gesticulating violently does not call for a reversal of the judgment of conviction, in the absence of any showing as to the nature of the subject matter of the conversation.</p> <p>[13] New Trial — Continuance — Discretion.—In such prosecution, where the affidavit of the defendant’s wife, in support of his motion for a new trial upon the ground of newly discovered evidence, showed that following the preliminary hearing a witness for the prosecution, who testified at the hearing but who was absent from the state at the time of the trial, told her that just before her husband fired the fatal shot he (the witness) saw a revolver in decedent’s hand which had been drawn from its holster, and no motion for a continuance of the trial supported by such an affidavit was made, the defendant could not thus neglect to ask for a continuance of his trial, speculate upon obtaining a favorable verdict at the hands of the jury, and then complain because his motion for a new trial was not continued for a longer period than nine days to enable him to procure the affidavit of said witness.</p> <p>12. Communications between jurors and others as ground for new trial or reversal in criminal case, notes, 134 Am. St. Bep. 1033; 22 A. Ii. R. 254.</p> <p>13. Continuance to procure witness who is beyond jurisdiction, note, L. R. A. 1918B, 527.</p> <p>[14] Id.—Procurement of Affidavit — Reasonable Time—Absence of Showing.-—In such prosecution, if it be assumed that the continuance for nine days was not sufficient to afford defendant a reasonable time within which to procure the affidavit of the absent witness, still no prejudicial error is disclosed, .since defendant made no showing of any fact or facts from which the trial judge could fairly have inferred that the affidavit could have been procured within a reasonable time.</p> <p>[15] Id.—Argument—Misconduct.—A perfervid argument of counsel for the people is, alone, not sufficient to justify the granting of a new trial.</p>

<p>[1] Appeal—Cost Bill—Order Striking Out and Granting Leave to Bile New One and Vacating Judgment—Order Refusing to Vacate Order Striking Out, etc.—Appealability of Orders.— An order striking out a respondent’s memorandum of costs and granting respondent leave to file a new memorandum of costs and setting aside the judgment for costs entered upon the memorandum ordered stricken out is an appealable order, but an order refusing to vacate such appealable order is not appealable.</p> <p>[2] Costs—Order Striking Out Cost Bill, etc.—Appeal—Hearing of Motion—Presumption.—On an appeal from an order granting respondent’s motion to strike out his memorandum of costs and for leave to file a new memorandum of costs, it will be presumed that such order, was made only after a legal hearing of the motion upon which it was based; and this presumption is sufficient to sustain the order unless a satisfactory showing is made on appeal that the lower court granted the same without a legal hearing of respondent’s motion.</p> <p>[3] Id.—Motion—Hearing—Evidence.—On this appeal from an order granting respondent’s motion to strike out his memorandum of costs and for leave to file a new memorandum of costs, and vacating the judgment for costs entered upon the memorandum ordered stricken out, the evidence sufficiently shows that such order was made upon a legal hearing of respondent’s motion.</p> <p>[4] Id.—Terms—Demand on Appeal—Waiver.—A demand by appellant that respondent’s motion to strike out his first memorandum of costs and for leave to file a now one and to vacate the judgment entered on the first memorandum should have been granted only upon the imposition of such terms as might be just, comes too late when made for the first time on appeal.</p> <p>[5] Id.—Piling of Cost Bill on Appeal—Time.—The time within which a respondent may file a new memorandum' of costs on appeal under an order granting him leave to do so, which order does not attempt to extend' the time within which he may file the new cost bill, is thirty days after the remittitur is filed with the clerk of the superior court.</p> <p>[6] Id.—Order Granting Motion—Effective Date.—An order granting a respondent’s motion to strike out his cost bill and for leave to file a new one and to vacate the judgment entered upon the one stricken out, becomes effective the day of its date and not the day of its filing.</p> <p>[7] Id.—Failure to File Bill — Waiver. — A party entitled to costs on appeal waives all claim thereto if he fails to file his cost bill within time.</p> <p>[8] Id. — Default—Inadvertence and Mistake—Evidence.—On this appeal from an order granting respondent’s motion to strike out his memorandum of costs and for leave to file a new memorandum of costs, and vacating the judgment for costs entered upon the memorandum ordered stricken out, the facts set forth in the affidavit of respondent’s counsel in support of his motion presented a case of inadvertence and mistake, entitling respondent to relief under section 473 of the Code of Civil Procedure.</p>

<p>[1] Criminal Law—Libel—Malice—Evidence.—In a prosecution for libel under an information alleging in substance that the defendant, as the owner of a magazine, published therein a certain false and malicious libel concerning the members of the fourth degree of the Knights of Columbus, and of and concerning a named individual, a member of that organization, the evidence sufficiently established malice, where it was shown that defendant published the article knowing it to be untrue and without justifiable ends, and for the sole purpose of injuring the members of that society by discrediting their honesty, integrity, and reputation, and with a desire to expose them, and said individual as a member thereof, to public hatred, contempt, or ridicule, and that the so-called oath of the society published in the article was false, and that neither said individual nor any other member of the fourth or any other degree of the order ever took such an oath, the defendant making no attempt to refute such evidence or to prove that such an oath was taken.</p> <p>[2] Id.—Section 254, Penal Code—Construction.—Section 254 of the Penal Code, which provides in substance that no reporter, editor, or proprietor of any newspaper is liable to prosecution for a fair and true report of any judicial, legislative, or other public official proceedings except upon proof of malice in making such report, and that malice is not to be implied from the mere fact of publication, does not afford immunity to one who has willfully and maliciously distorted a statement found in a legislative publication by intentionally publishing fragmentary and incomplete parts thereof which do not indicate a fair summary of the whole proceedings.</p> <p>[3] Id.—Pleading — Innuendo — Sufficiency of Information. — In such prosecution the contention that no public offense is alleged against defendant because the information does not by direct allegation or by innuendo charge that defendant intended to have it understood that the members of the fourth degree ever administered or took the oath cannot be sustained where the information expressly alleged that the defendant did willfully and maliciously print and publish a certain false and malicious libel and defamation of and concerning the members of the fourth degree of the Knights of Columbus and of and concerning a named individual.</p> <p>2. Character of libel or slander for which prosecution will lie, note, 19 A. L. R. 1470.</p> <p>[4] Id. — Innuendo — Office of. — When the words in their plain natural meaning are actionable per se no innuendo is required; ■the office of the innuendo is to point out and to refer to matters already expressed; to explain the meaning of the publication when it is obscure, arid to designate the persons alleged to have been libeled when they are alluded to in covert and ambiguous terms.</p> <p>[5] Id.—Pleading — Libel Against Class — Naming of Individuals Unnecessaby.—In order to render one amenable to prosecution for publishing or circulating libelous matter it is not necessary that such matter name the individuals or any of them composing the class against whom the matter complained of is published.</p> <p>4. Innuendo in prosecution for- libel or slander, notes, 31 I». R. A. (3ST. S.) 140; 50 L. R. A. (N. S.) 1043.</p> <p>5. Right of one not specially named to maintain action for libel or slander based on charges made against a class or group of persons to which he belongs, notes, 8 Ann. Cas. 135; 14 Ann. Cas. 329; Ann. Cas. 1915C, 352; 23 L. R. A. (N. S.) 726; 25 L. R. A. (N. S.) 382; 42 L. R. A. (N, S.) 870.</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>APPEAL from a judgment of the Superior Court of Sacramento County and from an order denying a new trial. George H. Thompson, Judge Presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>[1] Criminal Law—Bobbery — Absent Witness — Diligence—-Bvi. dence.—In a prosecution for robbery, the uneontradicted and unqualified statement of a witness that another witness who had given testimony on the preliminary examination of the defendant was in Mexico and that he had received a letter from him justified the trial court in concluding that at the time of the trial the absent witness could ‘not with due diligence be found within this state so as to permit the reading at the trial of the testimony given by him on the preliminary examination.</p> <p>[2] Id. — Verdict — Evidence. — In such prosecution, the verdict of guilty was supported by the evidence.</p> <p>1. Admissibility of former testimony of absent witness, notes, Ann. Cas. 19130, 440, 464; Ann. Cas. 1917A, 658.</p> <p>[3] ID.—Juries and Jurors—Instruction.—In sueh prosecution, the refusal of a requested instruction to the effect that if any one of the jurors entertained a doubt as to the defendant’s guilt, he was entitled to maintain that doubt throughout .all the deliberations and that he “need not be influenced by importunities or otherwise, from other jurors during the deliberations of the jury-in this case, to change your vote,” was proper.</p>

<p>[1] Criminal Law—Wright Act—Possession of Intoxicating Liquor —First Offense—Jurisdiction.—Where a person is charged for the first time with the offense of having possession of intoxicating liquor in violation of the Wright Act, the jurisdiction to try such person for such offense is exclusively in the justices’ courts.</p> <p>[2] Id.—Misdemeanors—Consolidation—Jurisdiction.'—The superior court cannot acquire or be clothed with jurisdiction of ordinary or so-called low-grade misdemeanors by the mere act of consolidating them in the form of counts in an information or an indictment.</p> <p>[3] Id.—Unlawful Possession of Intoxicating Liquor—Consolidation of Counts in Information — Jurisdiction of Superior Court.—The mere consolidation in an information of two counts, each charging the defendant with the same offense, namely, having intoxicating liquor in his possession in violation of the Wright Act, the commission of one offense being shown to have occurred on a different date from the other, does not give the superior court jurisdiction to try the defendant.</p>

<p>[1] Eminent Domain — Acquisition of Water Eights—Value of Land—Proposed Scheme of Improvement—Inadmissibility of Testimony.—In an action by a public service canal company to acquire by condemnation the right to divert additional water as against certain riparian land, the introduction of testimony of a proposed elaborate scheme for the reclamation and irrigation of the land, including the details and estimated costs thereof and the cost of the annual maintenance of the same, was not proper for the purpose of showing the adaptability of the land, and the admission of such testimony was not justified by the character of the answers elicited on cross-examination of certain witnesses of the plaintiff, in which they expressed opinions against the feasibility of reclaiming the land in question and concerning which they had not been questioned on direct examination; nor did the stipulation of plaintiff, in which it guaranteed' to defendant a specified number of second-feet of water whenever it should have reclaimed the land and installed necessary machinery for the irrigation thereof render it admissible, for the cost and character of any such scheme could not throw any light upon the requirement of the condition in the stipulation.</p> <p>[2] Id.—Evidence—Extent of Riparian Rights.—In such action, the trial court properly refused to permit the plaintiff to show that the amount of water guaranteed by plaintiff to defendant in case the land in question was reclaimed was equal to the amount which the defendant was entitled to as a riparian owner and, for the purpose of establishing such fact, to show the extent of the riparian lands using and entitled to use the water of the river.</p>

<p>[1] Constitutional Law—Proceedings Before Justice of the Peace —Confinement Without Bail.—-Where a person was held in jail, without any charge being preferred against him, for seven days before a justice of the peace issued a warrant for his arrest based on an affidavit that he threatened to kill another, and on the following day, when taken before the magistrate, controverted the charge against him and demanded an immediate hearing, and the justice of the peace, being then engaged in the trial of a case and having other eases which would occupy practically all of his time until the fifth day thereafter, denied said person’s request for an immediate hearing, set the hearing for said fifth day, refused to admit him to bail, and committed him to the custody of the sheriff, and on the day set for hearing the justice of the peace, being again engaged in the trial of a case, continued the hearing for another three days without the consent of the accused, such proceedings, if upheld, would set at naught the constitutional provision that “all persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.”</p> <p>[2] Id.—Immediate Hearing—Eight of Accused.—Where a person informed against controverts the charge made against him and demands an immediate hearing, he is entitled to an immediate hearing instead of being thrown into jail, without bail, to await the convenience of the magistrate.</p>

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

<p>[1] Criminal Law—Motion in Arrest of Judgment—Order Denying—Non appealability of.—An appeal from an order denying a motion in arrest of judgment will be dismissed, as such order is not an appealable one.</p> <p>[2] Corporate Securities Act — Issuance of Instrument — Status of as “Security.”—An instrument issued by a corporation certifying in effect that the holder thereof, by virtue of a deed to a fractional part of the land in said instrument described, is entitled to a like fractional part of all the net income received from said described land, which the corporation, as trustee, is to manage, care for, rent, lease, and receive all income accruing from said land, and that the income is to be disbursed to the owners of fractional interests in said land in a designated manner, after first paying the necessary and proper expenses in the care of said land, including taxes and a trust collection and disbursement fee of five per cent of tlio gross income from said land, and containing provisions as to assignment, duration of the trust, and as to a change of trustee, is a security within subdivision (c) of section 6 of the Corporate Securities Act.</p> <p>2. Validity and construction of blue sky law, notes, Ann. Cas. 1916A, 706; Ann. Cas. 19170, 650; 15 A. L. R. 265; 24 A. L. R. 535; 27 A. L. R. 1176.</p> <p>[3] Id.—Profits—Relation of Parties.—Under such an instrument, the profits and earnings in which the holder thereof is entitled to share by reason of said instrument issued to her are the profits and earnings of the corporation; and in all essentials her relation to the corporation is similar to that of a stockholder to a corporation.</p> <p>[4] Id. — Sale and Issuance of Instrument Without Permit — Prosecution Under Act—Character of Instrument—Instructions.—In a prosecution under the Corporate Securities Act for the sale and issuance of such an instrument, without a permit from the commissioner of corporations to do so, the action of the trial court in charging the jury that the instrument in question was a “security” within the meaning of said act, and in refusing to give an abstract definition of the word “security” in the language of the statute, was proper.</p> <p>[5] Id.—Character of Instrument—Advice of Counsel—Good Faith —Exclusion of Evidence.—In such prosecution, one of the defendants—the president of the corporation—was not entitled to show that when he issued the instrument in question he was acting in good faith, relying upon the advice of counsel that the instrument was not a “security” within the meaning of the act, although section 14 of the act under which he was prosecuted declares that every person who “knowingly” issues or sells or aids in the issue or sale of any security without a permit from the corporation commissioner is guilty of the offense denounced by the statute.</p> <p>[6] . Id. — Words and Phrases — Meaning of “Knowingly” in Prohibitory Statute.—The term “knowingly” means "with knowledge,” and when used in a prohibitory statute is usually held to refer to a knowledge of the essential facts; and from such knowledge of the facts the law presumes a knowledge of the legal consequences arising from the performance of the prohibited act.</p> <p>[7] Id.—Forbidden Act—Intent—Mistake of Law.—When the intent is not made an affirmative element of the crime the law imputes that the act done knowingly was done with criminal intent; in other words, when the statute plainly forbids an act, and the forbidden act is done by the accused, the law implies conclusively the guilty intent, although the offender was honestly mistaken as to the meaning of the law he violates.</p> <p>[8] Id. — Commission of Error — Effect upon Verdict — Appeal.— When a defendant has been found guilty the appellate court, upon a review of the entire record, must determine whether in its judgment an error committed in the trial court has led to the verdict; if it appear, to the satisfaction of the court reviewing the judgment, that the result is just and that it would have been reached if the error had not been committed, a new trial is not to be ordered.</p> <p>[9] Id.—Preliminary Examination — Formal Plea — Absence of— Verdict Unaffected by.—In such prosecution, where the corporation was charged with a violation of the Corporate Securities Act by information for the first time, without having been given a preliminary examination and without having made a formal plea of not guilty, but it appeared and was defended by counsel at the trial, the verdict against it will not be set aside where such verdict was just, and the appellate court fails to see a different result could have been reached had the corporation been given a preliminary examination and a plea of “not guilty” been formally made by it in the superior court.</p>