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charge of all civil actions in which the county , broad enough to include those fees. Treator its officers are concerned as parties, and sec- ing many of his allegations as surplusage tion 10 gives the board of supervisors the juris

Held irrelevant to his real case, he now says that diction granted by the laws of the state. Held, that any right of action against the sheriff to the case includes and was intended to include compel him to pay into the county treasury fees all moneys collected by the sheriff in his collected by him during a certain time was a

official capacity. The petition states that the right of action in the county to be prosecuted by it as a party plaintiff, and that a taxpayer could

u respondent as sheriff, between the dates specnot maintain an action or proceeding without ified, “collected and received and appropriated showing that the county officers controlling mat- to his own use. the sum of $3.000 as fees ters of county litigation had refused to com- holongin

belonging to Los Angeles county for the permence or prosecute such action. [Ed. Note. For other cases, see Sheriffs and

formance of his services as sheriff of Los Constables Cent. Dis. S 98: Dec. Dig. 71.1 Angeles county during said time." This ap

pears to be sufficient, and the allegation is Appeal from Superior Court, Los Angeles

good as against a general demurrer.

[2] The law concerning the right of a taxCounty; Frank G. Finlayson, Judge. Mandamus by D. E. Keith against W. A. Pay

payer to maintain actions and proceedings to Hammel, Sheriff of Los Angeles County.

enforce public rights and protect public inJudgment for defendant, and petitioner ap

terests, has been a subject of discussion in

many decisions, but is also to some extent peals. Affirmed.

affected by statutory declaration. Section William H. Fuller, of Los Angeles, for

526a, Code of Civil Procedure, provides for appellant. Leon F. Moss, of Los Angeles, for the maintenance of a taxpayer's action respondent.

against public officers to obtain a judgment

restraining and preventing certain described CONREY, P. J. Mandamus. The petition. illegal expenditures, etc., of county or municier, a resident property owner and taxpayer

pal funds. It also says: in the county of Los Angeles, filed his peti- "This section does not affect any right of action in the superior court against the sheriff tion in favor of a county, city, town, or city and of Los Angeles county for a writ of manda- county, or any public officer." mus to compel the respondent to pay into the The charter of Los Angeles county, in seccounty treasury all fees collected by him as tion 21 thereof (Stats. 1913, p. 1490), declares such sheriff between the 2d day of June, that: 1913, and the 31st day of October, 1913, for "The county counsel *

shall have ex. the performance of official duties pertaining clusive charge and control of all civil actions to that office. A demurrer to the petition for and proceedings in which the county, or any ofwant of facts sufficient to constitute any

ficer thereof, is concerned or is a party.' ground for the relief demanded was sustain- Section 10 of the charter states that the ed, and judgment was entered in favor of board of supervisors shall have all the jurisrespondent. From that judgment the peti- diction and power "which are now or which tioner appeals.

may hereafter be granted by the Constitution Two principal objections among those re- and laws of the state of California, or by lied upon by the respondent will be consid- this charter." Under section 4041 of the Poered. These are: First, upon the merits, litical Code, subdivision 16, boards of superthat the facts alleged do not show that the visors are given jurisdiction and power to sheriff has received and retained any fees direct and control the prosecution and dewhich he is under obligation to pay over to fense of all suits to which the county is a the county. Second, respondent claims that party. The general effect of these provisions petitioner has not stated facts sufficient to of charter and statute seems to be, not only establish his right to maintain the action, that the conduct of actions in which the even though the demanded right exists in county is a party is committed to the charge favor of the county.

and control of public officers, but it further [1] The petition is so framed as to indi. appears to be the intention (in harmony with cate that the pleader was intending to en- long-established principles) that the county force the payment to the county of mileage shall be a party to actions and proceedings and other compensation claimed by the sher- wherein the county "is concerned." From iff under the charter of Los Angeles county the many decisions of the courts of this and and section 4290 of the Political Code. The other states dealing with this subject, we declaim of the sheriff that he was entitled to rive the principle that in the conduct of the retain such moneys for his own use was de- ordinary business of a county or city, where termined in his favor on appeal to this court the care and protection of the rights of the in Los Angeles County v. Hammel, 26 Cal. corporation have been committed to public App. 580, 147 Pac. 983. Appellant now con- officers, the primary right goes with the duty cedes the points which were involved in that belonging to those officers to control the ordiappeal, but he contends that since there are nary business of the corporation without the other fees provided by law which the sheriff interference of private citizens, even though of Los Angeles county must collect and pay they be taxpayers. The exceptions which into the county treasury (Pol. Code, $$ 4300b, have been permitted usually arise in those act in excess of his authority, or refuses to private citizens to maintain actions concerning perform an official duty, and there is no municipal affairs-which right is founded to a other officer or official body empowered to

great extent upon necessity, and the want of

any other proper party plaintiff. And the propact on behalf of the public or of the cor osition that it was a duty enjoined upon said poration, to enforce their rights in the mat trustees to bring such an action cannot be mainter, or where it appears that the officers em

tained." powered to act refuse to perform their duty Then, after further discussion and deciin that respect. Instances which illustrate sion that there was no cause of action stated, the subject may be given, such as Hyatt v. the opinion closes as follows: Allen, 54 Cal. 353, mandamus by a taxpayer "It cannot be rightfully said, • * that within an assessment district to compel coun

the trustees now in office are not exercising a

wise discretion by refusing, at the present time, ty assessor to assess property subject to as to commence unnecessary and hazardous litigasessment; Eby v. School Trustees, 87 Cal. 166, tion." 23 Pac. 240, mandamus to compel board of In the case at bar we are not called upon school trustees to comply with instructions to consider whether the officers of Los Anof electors as to location of schoolhouse site; geles county are exercising a wise discretion Frederick v. City of San Luis Obispo, 118 by refusing to commence an action against Cal. 391, 50 Pac. 661, mandamus to require the sheriff to recover fees unlawfully retainboard of trustees to call an election on ques- ed by him, since there is no intimation that tion of disincorporation of the city. All of they have refused or neglected anything in these cases had to do with extraordinary situa. that respect. The case to which we have tions, and not with the conduct of the ordi- referred (County of Los Angeles v. Hammel) nary business of the corporation. In Max. shows that the officers of the county were well v. Board of Supervisors, 53 Cal. 389, diligent in seeking to recover from this same petitioner was permitted to maintain a pro- sheriff another class of funds to which they ceeding for writ of review to the board of claimed that the county was legally entitled. supervisors to review its action in entering | If there is any further right of action against into a contract for printing. This related the sheriff, it is a right of action of the counto a matter within the ordinary scope of the ty which should be prosecuted by the county business of the corporation, but the recal- as a party plaintiff. In order to justify the citrant body was the controlling board of of- | petitioner in maintaining an action or proficers of the county, and the taxpayer's right ceeding, we think that it would be necessary in such a case is one arising out of the for him to show that the officers who control necessity of the situation and is recognized those matters of litigation in which the counfor that reason. The principle which should

|ty of Los Angeles is concerned have refused control is very fully stated in Dunn v. Long

to commence or prosecute proceedings for the Beach Land & Water Co., 114 Cal. 605, 46 protection of the county's interests in this Pac, 607, wherein a resident of and property I matter. In Burr v. Board of Superviso owner and taxpayer in the city of Long

Sacramento County, 96 Cal. 210, 31 Pac. 38, Beach sought to have canceled a certain judg. it was held that where by statute it is made ment affecting the title to a street and to the duty of the district attorney to institute quiet the title of the city to the street. It suit in the name of the county for the recovery was held, not only that the complaint did not of money paid out without authority of law, state facts sufficient to constitute a cause the statute affords a plain, speedy, and adeof action, but also that the facts were not quate remedy available to taxpayers by comsufficient to justify the plaintiff in bringing plaint to the district attorney, and that “to the action. The court said:

say the least,” the interest of a taxpayer “The rule is that the municipality, through its | does not entitle him to bring suit in his own governing body, has control of the property and general supervision over the ordinary business

name until the district attorney has refused of the corporation, and there would be utter to perform the duty so enjoined on him. confusion in such matters if every citizen and The judgment is aflirmed. taxpayer had the general right to control the judgment of such body or usurp the office.

We concur: JAMES, J.; SIIAW, J. Where the thing in question is within the discretion of such body to do or not to do, the general rule is that then neither by mandamus, quo warranto, or other judicial proceeding, can either the state or a private citizen question the action NOLTE v. NOLTE. (Civ. 1539.) or nonaction of such body; nor in such cases | (District Court of Appeal, Second District, Calcan a private citizen rightfully undertake to do that which he thinks such body ought to do. It

ifornia. Dec. 7, 1915.) is only where performance of the thing request- 1. APPEAL AND ERROR 713–CONSIDERAed is enjoined as a duty upon said governing! TION OF AFFIDAVIT-STATUTE. body that such performance can be compelled, Under Code Civ. Proc. $ 951, providing or that a private citizen can step into the place that on appeal from an order the appellant must of such body and himself perform it. If, there- furnish the court with a copy of the notice fore, in the case at bar it was not a duty enjoin- of appeal and of the papers used on the hearing ed upon the board of trustees of the city of Long below, where an affidavit came into the tranBeach to bring an action similar to this pres- script under certificate describing it as part ent action brought by appellant, then we need of the judgment roll, which it was not, nor a panot discuss the general subject of the right of per used in connection with the order from

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which the appeal was taken, the court could not by the judge. This decree was entered July take cognizance of its contents.

6, 1910. On the 12th day of November, 1912, [Ed. Note. For other cases, see Appeal and the court, upon its own motion, entered an Error, Cent. Dig. 88 2379, 2463, 2645, 2956, 2957; Dec. Dig. Om 713.)

order setting aside and vacating said final 2. APPEAL AND Error 935 – PRESUMP

decree "because it was entered within a week TIONS FAVORING COURT BELOW.

after the actual entry of interlocutory decree On appeal from an order vacating a final of divorce." It is from this last-mentioned decree from which no appeal was taken, it will order that the anneal is taken

order that the appeal is taken. be assumed that the trial court had before it facts sufficient to authorize the vacating order to

[1,2] We find in the transcript an affidavit the full extent that the order could legally be made by the plaintiff's attorney and sworn made under any circumstances.

to on July 1, 1910, which the appellant claims Ed. Note.-For other cases, see Appeal and contains a statement of the facts which led Error, Cent. Dig. 88 3783-3786; Dec. Dig. Om 935.)

the court to make its order for nunc pro tunc 3. JUDGMENT em 273 – ENTRY NUNC PRO

entry of the interlocutory decree. This affiTUNC.

davit comes into the transcript under a cerWhere a judgment has been rendered, and tificate describing it as part of the judgment its entry omitted, it may be subsequently enter-roll. As it is not part of the judgment roll, ed, and, if justice requires, may be made to take effect nunc pro tunc as of the date when

and does not appear to have been one of the it was actually made.

papers used in connection with the order [Ed. Note.-For other cases, see Judgment, from which the appeal is taken, we find no Cent. Dig. 88 525-541; Dec. Dig. 273.] legal ground for taking cognizance of the 4. DIVORCE 170_ENTRY OF FINAL DECREE contents of such affidavit. Code Civ. Proc. -STATUTES.

$ 951. But this defect is immaterial, since Civ. Code, § 131, provides that in divorce actions, if the court determines that divorce

facts sufficient to satisfy the court may have should be granted, an interlocutory judgment existed and may have been shown to the must be entered declaring that the party for

court; and, since no appeal appears to have whom the court decides is entitled to divorce, and from such interlocutory judgment an appeal

been taken from the judgment, it will be asmay be taken within six months after its entry sumed that the court had before it facts suffias if it were final. Section 132 provides that, cient to authorize such order to the full exwhen one year has expired after the entry, the tent that the order could legally be made uncourt may enter final judgment, but that, if any appeal is taken from the interlocutory judgment, der any circumstances. Therefore if, as or motion for new trial made, final judgment counsel claims, an interlocutory decree in shall not be entered until such motion or appeal

like form as the one that was entered in 1910 has been disposed of, and not then if the motion has been granted or judgment reversed. Held

had been signed on June 28, 1909, by the that, where a divorce case was submitted for judge who tried the case, and had been delivdecision June 28, 1909, and an interlocutory ered to the clerk for filing, and if without decree signed a year later, with an order "that filing or entry of such decree the same was the foregoing decree be entered nunc pro tunc as of June 28, 1909," which was done July 5,

lost by the clerk, these would be circumstanc1910, a final decree signed July 1, 1910, and es strongly appealing to the court in the exerentered July 6th, purporting to be based upon cise of its judgment favorably to the request the interlocutory decree, was properly vacated,

| of the plaintiff that the decree be entered as as entered within a week after actual entry of the interlocutory decree, while the statute pro

of the date of trial. hibits entry until expiration of a year.

[3] It is well established that, where a [Ed. Note.-For other cases, see Divorce, judgment has been rendered and its entry Cent. Dig. $8 552, 553; Dec. Dig. Om 170.] omitted, it may be subsequently entered, and, Appeal from Superior Court, Los Angeles

if justice requires, may be made to take effect County ; Charles Monroe, Judge.

nunc pro tunc as of the date when it was Action by A. Nolte against Barbara Nolte.

actually made. In re Skerrett, 80 Cal. 62, From an order vacating a final decree for

22 Pac, 85; Fox v. Hale, 108 Cal. 480, 41 Pac. plaintiff, he appeals. Order affirmed.

328; Marshall v. Taylor, 97 Cal. 426, 32 Pac.

515; and many other cases. H. H. Appel and E. J. Dennison, both of

[4] The order setting aside the final decree Los Angeles, for appellant. Charles W.

is not necessarily based upon lack of authorHoag, of Los Angeles, for respondent.

ity of the court to enter its interlocutory deCONREY, P. J. Appeal by the plaintiff from

cree nunc pro tunc as of the date when it was

rendered, but is based upon the ground that an order vacating a final decree of divorce.

the court has no power to enter a final decree On the 28th day of June, 1909, the case was

until the expiration of one year after the actried and submitted to the court for decision.

tual entry of the interlocutory decree. On June 28, 1910, an interlocutory decree was

When one year has expired after the entry signed, together with an order "that the fore

of such interlocutory judgment, the court on mogoing decree be entered nunc pro tunc as of tion of either party, or upon its own motion, June 28, 1909." This decree was entered may enter the final judgment granting the diJuly 5. 1910, as of June 28, 1909. On July 1, vorce, * * * but if any appeal is taken from 1910, a final decree of divorce, purporting to

the interlocutory judgment or motion for a new

trial made, final judgment shall not be entered be based upon such interlocutory decree en- until such motion or appeal has been finally dis. tered nunc pro tunc as aforesaid, was signed | posed of, nor then, if the motion has been grant

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ed or judgment reversed.. " Civ. Code,' The provisions of sections 131 and 132 of the $ 132.

Civil Code, “interpreted in the light of the pre

vious legislation and decisions and the purpose During the period of time covered by the to be accomplished by the law, are clearly to proceedings under review herein it was pro- be understood as a limitation on the power of vided in section 131 of the Civil Code that the court in the matter, and as intended to forfrom an interlocutory judgment in a divorce

bid the entry of a final judgment until after the

prescribed period. The law can only be made action "an appeal may be taken within six effectual for the accomplishment of its object by months after its entry, in the same manner holding that any final judgment purporting to and with like effect as if the judgment were grant the divorce is absolutely void if thus prefinal.” In Spencer v. Troutt, 133 Cal. 605, 65

maturely entered." . Pac. 1083, it was held that the time allowed

While in that case the court was not confor an appeal commences to run from the sidering the power to make a nunc pro tunc time of the actual entry of the judgment.

entry of a decree, or the limitations on the The court said:

effect of such entry, we are satisfied that the "It hardly requires argument or authority to

interpretation there placed upon the Code establish the proposition that a court cannot by provisions necessarily leads to the conclusion antedating an order, or the entry of it, cut off that a final decree of divorce cauld not be the right of a party to move for a new trial, to l entered until one year after the actual entry move to set the judgment aside, or to appeal. These rights, given by the Code of Civil Proce

of the interlocutory decree. The language of dure, cannot be lost to a party by such action, section 131 contemplates that a final decree whether the effect was designed or not. The shall not be entered until after expiration of test as to whether the period in which the par- | the time in which an appeal may be taken ty must act in order to get relief from an order or judgment against him must be whether he from the interlocutory decree, nor during the could have obtained the desired relief (on a pendency of such appeal if taken. As we proper showing) before the nunc pro tunc order have seen, the entry of the interlocutory dewas made."

cree nunc pro tunc as of an earlier date does In Baum y. Roper, 1 Cal. App. 435, 82 Pac. not affect the time prescribed within which 390, it was said that, while it is true that an an appeal may be taken. The result is that appeal will not lie from a judgment until it in this case, as in the Grannis case: has been entered, the judgment in ather re- “The judgment in question being wholly void spects gets its force and vitality from its ren- as a final judgment granting an immediate didition, and not from its entry; that the

the vorce, it was within the power of the superior

court at any time, on motion of either party, or rendition of the judgment is the judicial act of its own motion, to declare it null in so far as of the court, and its entry is the ministerialit purported to be of such effect." act of the clerk. So it was held in Los An- That we have correctly understood the ingeles County Bank v. Raynor, 61 Cal. 145, tended effect of the Supreme Court's decision that it was not necessary that the judgment in the Grannis Case, further appears from the should have been entered when the execution fact that on the same date, in Claudius v. was issued.

Melvin, 146 Cal. 257, 79 Pac. 897, tbe same "The enforcement of a judgment does not de- court said: pend upon its entry or docketing. These are

“We think the defendant is correct in the posimerely ministerial acts, the first of which is re

e tion that the year which must elapse before quired to be done for putting in motion the

final judgment can be given begins to run from right of appeal from the judgment itself, and

the time of the actual entry of the interlocutory of limiting the time within which the right may be exercised (Code Civ. Proc. 8 681), or in

judgment, and not from any theoretical nunc pro

tunc date of entry." which the judgment may be enforced (Code Civ. Proc. 8 685), and the other for the purpose of The order is affirmed. creating a lien by the judgment upon the real property of the debtor (Code Civ. Proc. 8 671)." We concur: JAMES, J.; SHAW, J. .

The effect of these decisions is that, while the power of a court over its records, in order to make them speak the truth, is fully

PEOPLE v. DYE. (Cr. 318.) recognized, and for that purpose errors or omissions in the entry of judgments may in (District Court

nts may in (District Court of Appeal, Third District, Cal

ifornia. Dec. 14, 1915. Rehearing Denied some instances be corrected by entering them

by Supreme Court Jan. 10, 1916.) as of the date when rendered, the full effect

1. EMBEZZLEMENT C4 - LARCENY Em 15 of the nunc pro tunc order is limited so as to

WHAT CONSTITUTES. prevent results not contemplated by the law.

"Embezzlement" occurs when the possession There seems to be no reason why such limi- of property has been acquired lawfully and bona tation should not apply to the established ly to the established | Gde, and is afterwards fraudulently appropriat

ed, the gist of the offense being the breach of time when the right to annul judgment of trust; while, if a bailee acquires property with divorce will accrue, in the same manner that intent to steal it at the time of the acquisition, it applies to the time when an appeal may be he is guilty of "larceny." taken, or to any other of the instances above [Ed. Note.-For other cases, see Embezzlenoted. We do not doubt that these were the ment, Cent. Dig. 8.1; Dec. Dig. wwwt; Larceny.

Cent. Dig. $$ 39-42; Dec. Dig. Cm15. considerations which led the Supreme Court

For other definitions, see Words and Phrases, to hold, in Grannis v. Superior Court, 146 Cal. First and Second Series, Embezzlement; Lar245, 79 Pac. $91, 106 Am. St. Rep. 23, that: ceny.]

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2. LARCENY ©ww15–POSSESSION-WHAT CON-, have been granted because of a fatal variance STITUTES.

| between the evidence and the charge in the Where one desiring to take a hot bath similar to a Turkish bath hung his clothing on a

information. To pass upon the merit of this nail or hook in the room where he undressed, I contention requires an examination of what and the proprietor of the bath did not at that occurred after Halstead went to defendant's time take charge of the clothing or the money

place of business. therein, no relation of bailor and bailee was created, so the proprietor's subsequent appropria

It appeared from the testimony of the prostion of the money constituted larceny.

ecuting witness, Halstead, that he came to [Ed. Note. For other cases, see Larceny, Sacramento from San Francisco on Sunday, Cent. Dig. $$ 39-42; Dec. Dig. Om 15.)

January 3, 1915, and stopped at the Western 3. LARCENY 15-POSSESSION-WHAT CON- | Hotel on his way to Nevada City, where he STITUTES,

resided and pursued the profession of mining In such case the fact that the bather trusted the proprietor did not render him a bailee,

engineer: and the proprietor's subsequent appropriation He "was suffering from a severe cold and a of the property was larceny.

congestion of the breast.” Monday morning, (Ed. Note.-For other cases, see Larceny, January 4th, he met a stranger at the hotel of Cent. Dig. 88 39–42; Dec. Dig. Om 15.]

whom he inquired whether "he knew if there

was a system of Turkish baths, a good system of 4. CRIMINAL LAW Cm 406_EVIDENCE-ADMIS

Turkish baths, in the city. He said, 'Yes.' He SIONS.

says, 'I know of something that is better than A statement by accused in the district at

the ordinary Turkish bath. He then spoke of torney's office concerning the charge that he the

the Hygenic Institute at 32712 K had robbed one who took a bath in his estab- 1 52716. And he said, 'I have a pamphlet in my

street, or lishment, consisting of a denial of the charge, is

pocket describing it,' and he handed it to me, admissible without showing that it was volun

and I was impressed with it, and I says, 'I tarily made.

believe I will go there now.' He says, 'It is Ed. Note.-For other cases, see Criminal

very near here, on the same street,' and I imLaw, Cent. Dig. 88 785, 894-917, 920-927; Dec. mediately went over; I went to this place, callDig. ww 406.)

ed at the office, and Dr. Dye was in." 5. CRIMINAL LAW Om518 EVIDENCE-CON

This was in the forenoon. Halstead deFESSIONS.

Where before accused made any statement scribed his condition and was examined by he was informed that he did not have to make defendant. "He took some instruments and any statement, any statement that he made

sounded me, and he says, 'Your chest is badly concerning the charge is admissible in evidence against him, notwithstanding a confession, to be

congested.'" Halstead told him he was anxadmissible, must not have been extracted by any ious to get to his home in Nevada City and sort of threats or violence nor obtained by wanted to know if he could get away that promises.

night, but was told by defendant: "I wouldn't [Ed. Note.--For other cases, see Criminal Law, Cent, Dig. 88 1157–1162; Dec. Dig. Om

dare let you out before to-morrow night; I 518.j

can get you away to-morrow night." Hal

stead asked what it would cost him and was Appeal from Superior Court, Sacramento

told that the fee would be $10, and if he County; Malcolm C. Glenn, Judge.

would put it up he would give him the treatG. B. Dye was convicted of grand larceny,

ment at once. Halstead testified: and he appeals. Affirmed.

"I had in my inside vest pocket $140 in bills. Ralph W. Smith, of Sacramento, for appel- I had a $5 gold piece in my left outside vest lant. U. S. Webb. Atty. Gen.. and J. Chas. | pocket, and I had some $5 or $6 in silver in

my pants pocket. One bill was a $100 bill, Jones, Deputy Atty. Gen., for the People.

United States currency bill, and two $20 bills.

I pulled out one $20 bill and handed it to him. CHIPMAN, P. J. Defendant was, jointly He says: 'I will have to go down and get this with one L, S. Purdy, charged with the crime

changed. I will be right up.' A few minutes

after he had gone, Mr. Purdy came into the of grand larceny, and upon his trial was con room, and he says: 'You are Mr. Halstead? victed, and by the judgment of the court sen I says, 'Yes.' 'Well, Mr. Halstead, we are going tenced to six years' imprisonment in the state to give you a treatment in the bake oven.' Dr. prison at Folsom. Defendant appealed from

Dye had spoken about what the process was be

fore. He says, 'Just come in this room and the judgment and from the order denying his undress,' and I did so, and, while undressing, motion for a new trial. The charge was that Dr. Dye came in. I took off everything, and defendant, on the

day of January,

either Dr. Dye or Dr. Purdy took my clothes

and hung them up. Mr. Jones: Hung them up 1915, did "willfully, unlawfully, and feloni

where? A. On a peg or a nail or a hook in the ously steal, take, and carry away certain per room where I undressed. Q. They were both sonal property, to wit, one $100 bill of cur- present at that time? A. They were both pres.

ent at that time; yes, sir. Q. Now, to go back rency, one $20 bill of currency, and three $10

a minute. When you took out your money and bills of currency. * * * being then and gave the $20 bill to Dr. Dve. from where did there of the personal property of one S. v. I you take that $20 bill? A. From my inside Halstead, and not the property of said de

tv of said de vest pocket. Q. Did you take any other money

out-any other bills-at that time? A. No. Q. fendant, contrary," etc.

Do you know of your own knowledge whether he It is earnestly contended that, if any crime saw the other bills in your pocket at that time? was committed, it was embezzlement, and not | A. Not up to the time that I had taken off my Jarceny: that defendant's motion that the clothes. I don't remember whether he looked

into my clothes to see what was in there. I court instruct the jury at the close of plain- told him what I had that I had- Q. (intertiff's evidence to acquit defendant should / rupting). You told Dr. Dye? A. Yes. Q.

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