court that the indebtedness of Erskine and Curtis and of R. G. Erskine & Company was all paid to the bank and that the bank received from the proceeds of the sale of this property an excess over such indebtedness amounting to over ten thousand dollars, it is fair to assume that the bank still held that sum at the time of the trial, or that, in the absence of any reason for its failure to pay to plaintiff the amount due, any disposition which the bank made of the excess was illegal."

Thus the district court of appeal reached the conclusion that the bank had in its hands ten thousand dollars belonging to Erskine and Curtis after the payment of all indebtedness due to it by them. We mention this because it now seems to be conceded by both parties that the real situation with reference to the ten thousand dollars is this: That while it is true there was a surplus of ten thousand dollars received from the cotton crop raised upon plaintiff's land, over and above the indebtedness of Erskine and Curtis to the First National Bank, that this balance, with the exception of $1,499 paid to the plaintiff, was applied by the bank to the indebtedness owing by R. G. Erskine & Company and guaranteed by C. Curtis, and that it was the application of this amount that paid the nine thousand dollar indebtedness of R. G. Erskine & Company, guaranteed by Curtis. In other words, the bank, instead of having ten thousand dollars over and above all indebtedness due it, had only $1,499, which has already been applied to the plaintiff's claim. Viewed in the light of this admission, a critical analysis of finding 6, above quoted, reveals that the finding is not inconsistent with the facts as now admitted. That finding was evidently for the purpose of fixing the liability of the defendants Erskine and Curtis and not of the bank.

Before considering the other contentions of the parties, it is proper to say that the district court of appeal was no doubt misled as to the facts by the statements and admissions in the briefs of the parties, and, in view of the situation now developed, it is proper to call attention to some of the statements in those briefs. In appellant's opening brief, after reciting the advancement of the twenty-one thousand dollars and the nine thousand dollars, it is said: "These loans were made on the additional security of a

personal guaranty by C. Curtis, one of the tenants to whom appellant leased, and subsequently C. Curtis paid all of said notes and advances. Appellant's position at the trial was and now is that after Erskine & Curtis' debts had been paid there was a surplus of $10,434.58 out of which appellant was entitled to its rental or crop share, the value of which was $8,470.37; that of this amount $1,499 was paid and the respondent First National Bank of Los Angeles became and was indebted to appellant in the sum of $6,971.37" (italics ours). It was further stated by appellant that there was no dispute on the facts, most of the evidence having been by way of stipulation and there having been no rebuttal by the defendants at the trial. Upon this statement the court was hardly to be expected to note that nine thousand dollars of the $10,434.58 was applied to Curtis' pledge and that it was in this manner only that he paid "all of said notes and advances." impression gained from this statement is that C. Curtis, from his own resources, had paid the amount of the loan made to him and to his principal, and that there still remained the amount of $10,434.58 in the bank's possession. Respondent did not clear up this uncertainty in his reply brief, but, on the contrary, stated: "Respondents have only one issue with appellant in the statement of facts: There is no evidence nor finding of any partnership of Curtis and Erskine, nor of R. G. Erskine and Co." Thus, the respondent apparently conceded that the defendant had in its possession ten thousand dollars belonging to Erskine and Curtis, which the plaintiff was justly entitled to apply to the indebtedness due it from Curtis and Erskine.

The

The contentions of the parties in this court are therefore directed mainly to the question as to whether or not it was proper for the bank to apply the balance of the money received from the cotton grown on plaintiff's land to the indebtedness of R. G. Erskine & Company guaranteed by C. Curtis, when authorized so to do by C. Curtis. In short, the question raised here is as to the authority of Curtis to pledge the interest of Erskine, as copartner or cotenant, in the cotton grown upon plaintiff's land. [3] This question, which the appellant now seeks to have us determine, was not raised in the lower court and cannot be determined upon this appeal. The allegation of the plaintiff with

reference to the lease was merely by way of deraigning title to the cotton it claimed had been converted and showing that its claim for rent was unpaid. As already stated, it did not state a cause of action either for conversion or for rent against the defendant bank. A denial of these allegations by the defendant bank raised no material issue. The affirmative allegations of the answer were entirely unnecessary and offered no material issue. The apparent purpose of the respondent bank in the answer was to show good faith in that it had derived nothing from the sale of the cotton over the amount of its indebtedness. Later, a small excess of $1,499 was turned over to plaintiff. It is evident from the record in the trial court that the respondent bank never had its attention directed to the contention now made by the appellant. Its admission in its answer and by a stipulation and the finding based thereon prepared by the defendant clearly indicates that its attention was never directed in that court to the contention made here by appellant.

Not only was there no issue upon the question as to the application of the balance due Erskine and Curtis to the guaranty of Curtis on the R. G. Erskine & Company indebtedness, but the plaintiff objected to testimony along that line. The objection is as follows: "Here plaintiff objected to any testimony regarding any negotiations between Clifton Curtis and the First National Bank of Los Angeles and R. G. Erskine & Co., upon the ground that plaintiff is not concerned with any negotiations had between those parties and upon the ground that said negotiations are incompetent, irrelevant, and immaterial and not within the issues made by the complaint, and upon the further ground that the only subject in controversy is whether or not the Imperial Valley Land Company is entitled to one-fourth of defendant's share of the cotton crop grown upon their land, which objection was overruled by the court and to which ruling plaintiff now excepts" (italics ours). Although the objection was overruled, no evidence was offered with reference thereto other than the stipulation of facts literally conforming to the affirmative allegations of the answer subsequently quoted in the findings of fact by the court referred to above, and so far as the record shows, apart from the admissions of the parties in their briefs in this court, it is

a matter of doubt as to whether the balance of nine thousand dollars was paid upon the R. G. Erskine & Company's indebtedness. It cannot, therefore, be said that the right of Curtis to pledge the assets of his copartner or cotenant Erskine was either raised in the pleadings or by consent tried as an issue in the case. [4] That the findings, so far as they tend to support a judgment in favor of the plaintiff against the defendant, First National Bank of Los Angeles, are outside of the issues raised by the pleadings and those actually submitted to and tried by the court, and, therefore, should be disregarded.

[5] On appeal, presumptions are indulged in favor of judgments, and not against them, but, if we assume that the issue of title to the ninety-four bales of cotton was in fact submitted to and decided by the trial court, its decision was against plaintiff on that issue. The respondent bank has contended throughout the progress of the case in the trial court and on appeal that plaintiff had failed to show any title to the cotton and hence could not recover damages for its conversion. In view of our conclusions, it is unnecessary to consider the effect of the negotiability of the warehouse receipts.

Judgment affirmed.

Sloane, J., Lennon, J., Shurtleff, J., and Lawlor, J., concurred.

Rehearing denied.

All the Justices concurred.

[Crim. No. 2348. In Bank.-November 12, 1921.]

THE PEOPLE, Respondent, v. N. STEELIK, Appellant. [1] CRIMINAL LAW-SYNDICALISM ACT INCLUSION OF ACCOMPLICES— LACK OF UNCERTAINTY.-The Criminal Syndicalism Act (Stats. 1919, p. 281) is not void for uncertainty because it ex industria includes accomplices and defines with meticulous care numerous acts constituting an aiding and abetting of the principal crime, or because it punishes aiders and abettors where the crime advocated is not committed.

[2] ID.-INDICTMENT ·

-

CHARGE OF SEVERAL OFFENSES - EVIDENCEPROOF OF SPECIFIC OFFENSE-VALIDITY OF JUDGMENT.-An indict

ment for the crime of criminal syndicalism is sufficient to support the judgment of conviction, notwithstanding it charges in general terms acts and offenses not proven, where it specifically charges the offense proven, and no other offense or acts were proven or offered to be proven.

[3] ID.-MEMBERSHIP IN INDUSTRIAL WORKERS OF WORLD SUFFICIENCY OF INDICTMENT.-An indictment charging a defendant with being a member of an organization known and designated as the Industrial Workers of the World sufficiently charges an offense under subdivision 4 of section 2 of the Criminal Syndicalism Act of 1919.

[4] ID.-ACTS DENOUNCED BY STATUTE-CONSTITUTIONAL LAW.-The Criminal Syndicalism Act is not unconstitutional on the ground that it leaves to a court or jury the determination of whether or not the particular act or conduct of the defendant is adapted to the result denounced by the act, since the various acts mentioned in the statute are already denounced as wrongful under existing laws.

[5] ID.-GUARANTY OF FREE SPEECH- RIGHT NOT VIOLATED.-The Criminal Syndicalism Act does not violate the right of free speech guaranteed in the federal and state constitutions.

[6] ID.-RIGHT TO ATTACK CONSTITUTIONALITY OF ACT.-A defendant not charged with or convicted of a violation of the Criminal Syndicalism Act involving anything that he said or published is not in a position to attack the constitutionality of the act on the ground that it is violative of the right of free speech.

[7] ID. TREASON PROVISIONS OF CONSTITUTIONS-ACTS INIMICAL TO PUBLIC WELFARE-PUNISHMENT NOT PROHIBITED.-The definitions of treason contained in the federal and state constitutions are merely for the purpose of limiting the number of offenses which can be punishable as treason under the common law, and in nowise limits the power of the legislature to provide for the punishment of acts inimical to the public welfare which theretofore might have been punished as constructive treason.

[8] ID. MEMBERSHIP OF UNLAWFUL ORGANIZATION-EVIDENCE-CONDUCT OF MEMBERS PRIOR AND SUBSEQUENT TO ENACTMENT.-In a prosecution under the Criminal Syndicalism Act for being a member of an organization which in its nature is a criminal conspiracy to change industrial control and government by unlawful and criminal methods, evidence of the conduct of the members of the organization both before and after the passage of the act is admissible for the purpose of determining the character of the organization, where such organization after the passage of the act continued the publication of the same unlawful propaganda. [9] ID.-MISCONDUCT OF COUNSEL-APPEAL-TIMELY OBJECTION.-Misconduct of counsel in argument to the jury must be made at the time as a basis for complaint in the appellate court.