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Was anything said at the time in regard to any, Halstead testified that he did not authorize money? A. Not to my knowledge." That the Purdy or Dye to take charge of his money : first he heard of any money was the following that he just took off his clothes with the Friday, when he met Dye in the office. asked him if he had this man's money, and, if he money in and left it there." He was not had it, he better pay it back; that he would told how long he would have to remain in the only get us in trouble. * * Q. What did he say? A. He said that he had that all fixed bath or when he was to be taken from there. up. He said everything was all right."

People v. Montarial, 120 Cal. 691, 53 Pac. He further testified that he saw Dye have 355. He testified that he had no reason to a $100 bill on Tuesday and asked him where distrust defendant, and that he trusted everyhe got it, and that Dye pointed in the direc- thing to him. Naturally he so felt, or, as tion of the treatment room.

he testified, he “would not have been there." Gertrude Walker, who kept the rooming We do not think that these expressions of house where defendant had his institute, tes confidence in defendant must necessarily be tified that defendant showed her a $100 bill construed as having clothed defendant with on Tuesday or Wednesday following the day the authority of a bailee in the sense Halstead came to the place. It is not necessa- that he could not be held guilty of larceny ry to state the evidence further as to defend for having feloniously taken and appropriant's having Halstead's money. He admit- ated his patient's money. ted it to Attorney Crowley, who was Hal- It is urged that the court erred in admitstead's attorney, but claimed that Halstead ting the statement of the defendant taken in loaned it to him, which the latter testified the district attorney's office by the chief depwas untrue. The question urged is that the uty, Mr. Jones, and his stenographer. On evidence failed to establish larceny.

January 11th, one week after Halstead went [1] The court correctly instructed the jury to these baths, defendant was arrested and as follows:

taken first to his own office, and then to the "Embezzlement is when the possession of the office of the chief of police, and thence to the property has been acquired lawfully and bona district attorney's office. When arrested he fide, and afterwards fraudulently appropriated. was told that: “It is relative to a fellow The gist of the offense of embezzlement is the breach of trust reposed in the agent, employé, or from Nevada. Probably you know about it.” bailee by his principal, employer, or bailor. The This occurred on the street where he was crime may be in general terms defined to be the arrested. Nothing further was said until fraudulent conversion of another's personal property by one to whom it has been intrusted. he was taken to his office. When a bailee of property obtains possession of "When he got up to the office he stated: “I it from the owner with the intention of stealing baven't any of this man's money. What are it, and carries out that intent, he is guilty of they trying to rib up on me now? Some more larceny; but, where the intent to steal did not ribbing?' He says: 'All I bad of this man's exist at the time of taking possession of the money was $20.' He says: 'I don't know anyproperty by the bailee, but was conceived after- thing about his money.' It was along those wards, it is embezzlement."

lines. Q. He said that voluntarily before you "In the case of grand larceny the taking must had said anything to him? A. Yes, sir. Q. be with a felonious intent, as heretofore stated, You did not tell him before that that any statebut in embezzlement the original taking is law- ment that he made would be used against him? ful, and the crime consists in the fraudulent ap- A. He was pacing, up and down in the room, propriation of property by a person to whom it and he seemed to be excited and very nervous, has been intrusted."

and he was talking at random, there in the room [2, 3] We are of the opinion that at the before us. Q. Well, you did not tell him or you time Halstead disrobed for his bath and his fore that-before making that statement?

did not advise him of any rights, did you, be

A. clothing was “hung up on pegs or hooks” in I hadn't asked him anything relative to it. Q. the dressing room adjoining the so-called Just volunteered this statement? A. Yes." bake oven the possession was not taken by Defendant moved that this testimony be defendant, nor in the sense of being intrust- stricken out because he was not advised of ed to him by Halstead did he become a his rights. The motion was denied. Defendbailee. In fact, the clothing seems not to ant was then taken to the district attorney's have been removed, except that the trousers office, where he made a statement which was were late in the week brought to Halstead, taken down by the court stenographer and and he found his coat and vest where they was offered and admitted in evidence. Dehad been placed when he entered the room fendant objected that "he was not advised of to take his bath. . Defendant was told at the his rights prior to the making of the statetime Halstead was undressing that his mon- ment,” or “that it would be used against him ey was in his clothing, and defendant's sub- on the trial, he was not properly informed." sequent conduct justified the jury in infer- The preliminary questions were as follows: ring that he formed the intent to take that

"By Mr. Jones: Mr. Dye, this is the district money and appropriate it to his own use--in attorney's office. A. Yes, sir. Q. This is Mr. short, to steal it-when he was helping to Carragher, the deputy district attorney. undress Halstead. But, if this intent was chief deputy district attorney. A. Yes, sir. Q.

Yes, sir. Q. And my name is Jones. I am formed the next day (and there was evi- This is Mr. Warren Doan, the shorthand reportdence that he had the money on Tuesday), the er, and you know the officer. A. Yes, sir; i felonious taking would constitute larceny, have had a sad experience with the officer. 'Q. for the reason that Halstead's property had A. Yes, sir. "Q. I do not want you to feel that

We brought you here to have a talk with you.

A.

any threats made against you or any promises jury, for the question of punishment was of made to you. A. Yes, sir. Q. There is a se- no concern to them, and, as the principal de rious charge made against you, and we want to hear your statement if you have any to make. fense was that there was a fatal variance A. Well, what was the charge? Q. The charge between the proofs and the charge, the state is that you took $150 or thereabouts from a man ment, unchallenged, might have had some inby the name of Halstead."

tiuence to defendant's prejudice. We must Then follows the statement. Defendant

assume, however, that the jury obeyed the stated the history of Halstead's coming to his direction of the court and did not consider place of business, his experiences while there, the statement. and his departure from the place. It is not

The judgment and order are affirmed. necessary to set out this statement. In the main it disputes Halstead's story; is a justi- HART, J. I concur in the judgment and fication for what was done in treating him; in all that is said by the Presiding Justice denies that Halstead had the money he claims concerning the effect of the evidence and the he had; and states that all the money he (de justification of the verdict of conviction unfendant) got was the $20 bill and a $1 bill. der the proofs. But I do not think it is necThe statement was in no sense a confession essary to invoke article 6, $ 412, of the Conof guilt, but was, in fact, an assertion of in- stitution to uphold the court's ruling in adnocence.

mitting in evidence the extrajudicial stateSection 1324, Penal Code, has no applica- ment of the defendant when in the office of tion. People v. Panagoit, 25 Cal. App. 158, the district attorney. The application of said 143 Pac. 70. So far as the record shows, de- section of the Constitution in a case presupfendant made no objection to giving his con- poses either error in the ruling as to which nection with the transaction. There was, in it is invoked or a doubt in the mind of the our opinion, no violation of his constitution reviewing court as to the correctness of the al rights in reading the statement to the

ruling. jury. In People v. O'Bryan, 165 Cal. 55, 130

[4] In the first place, the statement of the Pac. 1042, relied upon by defendant, O'Bryan defendant in the district attorney's office is was arrested on suspicion, and was held in not a confession. On the contrary, it incustody in the county jail. "He was taken volved an explicit and direct denial of guilt before the grand jury which was investi- of the crime charged or of any crime in congating the offense, and sworn to testify. He nection with the defendant's transaction with was not informed of his constitutional right the prosecuting witness. It was therefore to decline to be a witness against himself, unnecessary to show, preliminary to the adnor was he warned that his statements might mission of the statement, that it was volbe used against him.” In that case the court untarily made or not made under the induce said:

ment of hope or fear. Greenleaf on Evi“The Constitution protects a person from bedence, $ 213. ing compelled to be a witness against himself. If at the time he appears no accusation, formal

[5] In the second place, I am clearly of or informal, bas been made against him, he does the opinion that, had the defendant connot, in testifying, become a witness against fessed that he committed the crime of larcehimself. Or if, even though charged with crime, he voluntarily' gives evidence against himself, ny against the prosecuting witness under the his rights are not infringed by the use of such circumstances characterizing the making of evidence thereafter. These distinctions are well the statement which was allowed to go to illustrated by a series of New York cases”-cit- the jury over his objection, we would be reing the cases.

quired to hold that it was voluntarily made. In the case here defendant did not testify; Before being questioned as to his connection he made certain extrajudicial statements, with the alleged crime, the defendant was and, under the circumstances disclosed, we informed by the deputy district attorney that think they were voluntarily made. But, if he was then in the presence of the officers of there was error in admitting the statement, the law, including an officer who would probwe are satisfied from an examination of the ably have something to do with the presentaentire record that the result was just, and tion of the case against him at the trial. He would have been reached if the error had not been committed. Const. art. 6, § 442; Peo- that he was not compelled to make a state

was further sufficiently given to understand pie v. O'Bryan, supra. Error is assigned because of alleged mis- ment or "under any restraịnt or that there

are any threats made against you or any conduct of the deputy district attorney. In promises made to you." This warning, I addressing the jury he said:

think, was sufficient to apprise the defendant "Gentlemen of the jury, let me call your at- of his right not to make a statement if he so tention to one thing; the punishment for embezzlement is exactly the same as the punish- elected, and that he would be shown no favor ment for grand larceny. Mr. Smith: We object if he did make one. Of course, a confession, to that statement, if your honor please, and ask to be admissible as proof of guilt, must not that the jury be instructed not to consider it. The Court: Yes; the jury cannot consider that: have been “extracted by any sort of threats Gentlemen of the jury, you will not consider or violence, nor obtained by any direct or that statement of the district attorney." implied promises, however slight, nor by the

The district attorney overstepped the exercise of any improper influence." 3 Rusboundary of his privilege in addressing the sell on Crimes (6th Ed.) 478. But, as our

user.

Supreme Court declared in the case of the claim cannot commence to run until after title People v. Siemsen, 153 Cal. 387, 394, 95 Pac. of the United States to the land is divested, for 863:

an adverse possession cannot operate as against

the United States or the state. "Whether a confession is free and voluntary is a preliminary question addressed to the trial

[Ed. Note.---For other cases, see Easements, court and to be determined by it, and a consid- | Cent. Dig. $ 3; Dec. Dig. 2.] erable measure of discretion must be allowed 6. EASEMENTS 8-WAY BY PRESCRIPTIONthat court in determining it.”

-ADVERSE USER-NOTICE. See, also, People v. Miller, 135 Cal. 69, 67 A claim to a right of way by prescription Pac. 12; Hopt v. Utah, 110 U. S. 574, 4 Sup. cannot be supported where claimant's use of the Ct. 202, 28 L. Ed. 262; People v. Fox Burns, way has been allowed by the landowner as a

matter of accommodation only on account of 149 Pac. 605.

the nature of the country and the practices of Obviously there must be some showing that travel therein, and the claimant's conduct in the confession was freely and voluntarily the use of the way has not been such as to made and without any previous inducement put the landowner upon notice of an adverse or offer of leniency in punishment or by rea- (Ed. Note.-For other cases, see Easements, son of any intimidation or threat. People Cent. Dig. 88 23, 24, 27-33; Dec. Dig. Om8.] v. Miller, supra. And that there was such a showing in this case I am, as before suggest

Appeal from Superior Court, Los Angeles ed, thoroughly persuaded.

County; James W. Bartlett, Judge. As I understand the object of section 4162

Action by Pierre Agoure against Alonzo of article 6 of the Constitution, it is to be ap- Morrison to enjoin an interference with plied only where manifest error has been plaintiff's use of an alleged right of way and committed and a review of the whole record, to quiet his interest therein. After trial including the evidence, does not justify the and judgment in favor of plaintiff, John Laconclusion that a miscarriage of justice will pique was substituted as plaintiff because of be the inevitable result of such error, if the an assignment to him of Agoure's interest judgment should be affirmed.

in the action. From a judgment for the

plaintiff and an order denying a new trial, I concur: BURNETT, J.

defendant appeals. Reversed.

Kendrick & Ardis, of Los Angeles, for ap

pellant. Haas & Dunnigan, of Los Angeles, LAPIQUE V. MORRISON. (Civ. 1543.) for respondent. (District Court of Appeal, Second District, California. Dec. 8, 1915.)

JAMES, J. This action was commenced by 1. EASEMENTS 18-WAY BY NECESSITYWHEN ALLOWED.

Pierre Agoure, who claimed the right to the If a landowner has access to his property use of a right of way for road purposes across over a hill route, though it be rough and diffi- the land of defendant. By the allegations of cult for transportation, but not shown incapable the complaint facts are alleged which support of development to a practical grade and width by even a considerable expenditure of money both a cause of action to assert the right in and labor, he cannot support a claim to a right the plaintiff as of necessity to the use of of way by necessity over the lands of another the road, as well as the right by adverse on the ground that it is necessary to the reasonable use and enjoyment of his lands, for user; at least, such is the general complexion such right can only be claimed where the way of the allegations contained in the complaint. furnishes the only access to the claimant's prop-In the prayer it is demanded that defendant erty.

be enjoined from interfering with the plain[Ed. Note.--For other cases, see Easements, tiff's use of the alleged right of way, and Cent. Dig. $$ 50–55; Dec. Dig. 18.]

also that the interest of plaintiff therein be 2. EASEMENTS Ow7—Way by PRESCRIPTION- quieted as against the defendant. ADVERSE USER.

After If a way to which a right is claimed by trial was had and judgment in favor of prescription is plowed by the owner of the land the plaintiff, an order was made substiand obstructed by him for his farm purposes tuting the respondent herein as party plainduring the time of prescription the claim cannot be supported.

tiff, the order of the court in that behalf (Ed. Note.-For other cases, see Easements, reciting that it appeared that the estate, Cent. Dig. 88 16-19, 27, 33; Dec. Dig. Om7.1 right, title, and interest in the action had 3. EASEMENTS C36–WAY BY PRESCRIPTION been assigned by the plaintiff to the respond-BURDEN OF PROOF. The claimant of a right of way by prescrip; this order. We think the assignability of

ent. No point is made as to the regularity of tion must prove a five years' continuous and the cause of action in this particular case uninterrupted use and enjoyment of the way.

[Ed. Note.-For other cases, see_Easements. might well be questioned, but as the point is Cent. Dig. $$ 77, 78, 88–93; Dec. Dig. Om 36.] not raised we are not called upon to deter4. EASEMENTS 2-WAY BY PRESCRIPTION-mine that matter. However, we think that PARTIES--UNITED STATES.

the judgment and order denying the defendIf land over which a right of way by pre: ant a new trial, both of which were appealed scription is claimed is owned by the United States during part of the time of enjoyment of from, must be reversed. The evidence is the way, the time of prescription to support the not sufficient to support either.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[1] In the first place, the findings of the fendant was held by the government of the court are not such as to establish facts in United States up to the year 1903, when a support of the claim that the right of way patent was issued by which such title was existed in Agoure's favor as of necessity. divested. Since the year 1903, the evidence The only suggestion in that direction is the showed that this roadway had been plowed statement in the findings that the roadway over and grain had grown up at times in "is necessary to the reasonable enjoyment the tracks. There was testimony for the deand use of plaintiff's said lands." It is well fendant, which was uncontradicted, that hay. established that a right of way by necessity stacks had been placed across the roadway can only be claimed and held where it fur- subsequent to the year 1903. The period innishes the only way by which access may be cluded within that which will give title by had to the property of the claimant.

adverse possession cannot commence to run "The right of way from necessity must be in at any time as against the ownership of the fact what the term naturally imports, and can

United States or of the state. O'Connor v. not exist except in cases of strict necessity. It will not exist where a man can get to his prop- Fogle, 63 Cal. 11. So, under the facts diserty through his own land. That the way over closed by the record, no claim by adverse his own land is too steep or too narrow, or that user could have been raised prior to the year other and like difficulties exist, does not alter the case, and it is only where there is no way 1903, nor until five years bad elapsed after through his own land that a grantee can claim issuance of patent to the defendant's land. a right over that of his grantor. It must also During this latter period, we think the evi. appear that the grantee has no other way.” dence clearly shows that the use which Kripp v. Curtis, 71 Cal. 62, 11 Pac. 879.

Agoure made of the right of way was not The relation of grantor and grantee did continuous and uninterrupted; it was more not exist as between Agoure and this defend- in the nature of a user by permission. ant, but even though such had been their

[5] The country there was largely open and relation, the facts found by the court do not

uncultivated. establish the most material thing, to wit, stated, and persons generally having occasion

It was hilly land, as above that the plaintiff could not obtain access to to travel in that region adopted whatever his property except by use of the right of way route might appear to be the shortest, which claimed. Turning to the evidence, we find they were allowed to do as a matter of acthat the facts shown do not establish any commodation by the landowners. The desuch condition. It appears that for many fendant could hardly have been placed upon years prior to the year 1903, Agoure and other persons had driven across the land notice, under the circumstances, that Agoure! now owned by the defendant in order to reach expected, because of the permission accorded a certain tract composed of 15,000 acres held him, to base a claim to easement rights in by Agoure. All of this land was in a hilly the roadway, for his general conduct was not region, and it was more convenient for such as to indicate his determination so to Agoure to cross the land of defendant and do. If he had intended to insist upon such the former occupants thereof than it was to a claim, his acts, as they are generally de travel in a different direction. There was scribed by the testimony, and considering the direct testimony of a hill route leading out practice adopted by travelers in that sparsely from Agoure's land to the county road, wbich, settled country, do not sufficiently so indihowever, it was stated was so rough as to cate. On this point, see Clarke v. Clarke, make it difficult to transport any load there- 133 Cal. 670, 66 Pac. 10. across. But it was nowhere shown that by

The judgment and order are reversed. the expenditure of some money and laborperhaps a considerable amount of both-this

We concur: CONREY, P. J.; SHAW, J. hill route could not have been converted into a roadway of practicable grade and width. So it is very clear that no ground existed upon which Agoure or the plaintiff could COMMINS v. GUARANTY OIL CO. assert legal necessity for the right of way

(Civ. 1762.) as claimed.

(District Court of Appeal, Second District, Cal[2,3] It appears that the plaintiff relied

ifornia. Dec. 8, 1915. Rehearing Denied further, and the trial judge evidently sus- by Supreme Court Feb. 5, 1916.) tained his claim in that regard, upon the 1. APPEAL AND ERROR @ww123—"FINAL JUDGfact that he had made use of the road for MENT''-ESSENTIALS. a long period of years. The court found that A judgment of ponsuit for plaintiff's failthe right of way had been used for a period ure to prove a sufficient case, when entered in of more than five years prior to the com- judgment of dismissal to make it a "final judg

the court's minutes, need not be followed by a mencement of the action. Easement rights ment," within Code Civ. Proc. $ 939, providing may be so acquired, but where they are as- for appeals, for such a judgment of nonsuit in serted the party claiming them must prove Code Civ. Proc. § 581, subd, 5, providing for

itself constitutes a dismissal of the action, under an uninterrupted use of the right of way. dismissal of actions or entry of nonsuits, and [4] Title to the land now owned by the de- directing that

a dismissal when entered upon the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

court's minutes upon plaintiff's failure to prove In the case of Kimple v. Conway, 69 Cal. a sufficient case is effective for all purposes. 71, 10 Pac. 189, it was held that no appeal

[Ed. Note.- For other cases, see. Appeal and was allowed from an order granting a moError, Cent. Dig. & 875–881; Dec. Dig. Em tion for a nonsuit, nor from a judgment of 123.

For other definitions, see Words and Phrases, nonsuit. In that case, however, it was not First and Second Series, Final Judgment.] finally affirmed that a judgment of nonsuit 2. LANDLORD AND TENANT Cm 130_COVENANT might not, by being entered in the judgment OF QUIET POSSESSION-BREACH.

book, become a final judgment from which Where a lessee relies upon an agreement in the lease that the lessor will protect him against an appeal might be taken. However, at the any claims arising as to the ownership of the time that decision was rendered section 581 premises which the lessor holds under a contract did not contain the provision which was inof purchase, and no misrepresentations are serted in 1897 making an entry upon the shown to have been made by the lessor as to the nature of his title, the commencement of a suit minutes of the court of the orders or judyby the owner of the paramount title to quiet its ments sufficient for all purposes. It would title as against the contract of purchase because seem under the present state of the law that of default in payment of installments does not constitute an eviction of the lessee, that operates none of the orders or judgments provided as a breach of the covenant of quiet possession. to be made by section 581, Code of Civil Pro

[Ed. Note. For other cases, see Landlord and cedure, need be entered in the judgment book Tenant, Cent. Dig. 88 470-481; Dec. Dig. Om at all or appear in any record except that 130.]

containing the minutes of the court. This 3. MINES AND MINERALS 56 LEASE

conclusion is sustained by the decisions of FORM-DESIGNATION BY PARTIES.

An agreement between the holder of land Matthai v. Kennedy, 148 Cal. 699, 81 Pac. under a contract of purchase and a second par. 37, and Pacific Paving Co. v. Vizelich, 141 ty, providing that the second party shall take Cal. 4, 74 Pac. 352. We do not believe that possession of the land and develop oil thereon, a formal judgment of dismissal must follow rendering to the other a portion of the product in payment of its use, is a lease, irrespective of the order or judgment of nonsuit, for the its form or the designation given it by the judgment of nonsuit in itself constitutes a parties.

dismissal of the action. It seems clearly [Ed. Note.--For other cases, see Mines and to have been so considered in defining it in Minerals, Cent. Dig. $ 166; Dec. Dig. 56.)

section 581, Code of Civil Procedure, which

refers particularly to dismissals or the disAppeal from Superior Court, Los Angeles continuing of actions. County; Charles Wellborn, Judge.

[2] The motion for a judgment of nonsuit Action by Thomas Commins, trustee of the was properly granted, in our opinion, because Canadian Crude Oil Company, Limited, bank- the plaintiff's evidence did not establish his rupt, against the Guaranty Oil Company, right to the relief sought. Thomas Commins, for damages for breach of contract. From a the plaintiff, appears as the trustee of the judgment of nonsuit, plaintiff appeals. Af-Canadian Crude Oil Company, a bankrupt, firmed.

and hereinafter, for brevity's sake, we will Collier & Clark, of Los Angeles, for appel- refer to that corporation as the plaintiff. lant. Weaver, McCracken & McKee, of Los The evidence introduced on behalf of the Angeles, for respondent.

plaintiff showed that the defendant, in April,

1911, entered into an agreement with the JAMES, J. The plaintiff in this action, at plaintiff whereby the defendant let to the the conclusion of the testimony introduced in plaintiff, for a period of 20 years, 20 acres support of his main case, was nonsuited. of land in Kern county, Cal. Conditions of An appeal was taken from the order granting the agreement of lease provided that the the motion of nonsuit, the record of which plaintiff should develop oil on the land and order or judgment appeared only in the min- render unto the defendant a certain proporutes of the court.

tion of the gross amount of the product in (1) It is first claimed by the respondent that payment for such use. The plaintiff took the order granting the motion for a nonsuit, possession of the land, proceeded with the not being followed by a formal judgment of work of developing oil thereon, and condismissal, was not a final judgment in the tinued in that possession until November 1, sense that that term is used in section 939, 1911, when it abandoned the property. The Code of Civil Procedure, providing for ap- abandonment was made because of an allegpeals. Section 581, Code of Civil Procedure, ed eviction suffered at the hands of the ownprovides that:

er of paramount title. This suit was brought "An action may be dismissed, or a judgment to recover as damages all of the money exof nonsuit entered in the following cases: pended upon the property (amounting to defendant, when upon the trial the plaintiff fails more than $35,000), together with other sums to prove a sufficient case for the jury.

* claimed to have been laid out incidental to The dismissals mentioned in subdivisions the making of the contract engagement. The

and 5 of this section must be made by evidence showed that about the middle of orders of the court entered upon the minutes thereof, and are effective for all purposes when the year 1910 the defendant had contracted so entered.

with the Lucky Boy Oil Company to purchase

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