D'Echaux v. Gibson Cypress Lumber Co., 114 | the damaging of its equipment, still, discon- [2, 3] Anticipating that the judgment might not be sustained upon the theory that the appellant was, under the terms of the contract, an insurer against injury or loss occurring without fault on its part, the contention is made upon behalf of the respondent that the findings, as a whole, support the judgment, and therefore, in the absence of a record showing the entire evidence adduced upon the trial, the judgment must be affirmed. This contention is rested on the fact that, although the court found that "said steamboat became sunk through causes wholly without fault on the part of the defendant," it had previously and in a separate finding declared: "That during the term of said hiring and while said defendant was in the use, occupancy, possession, and control thereof, the said steamboat and its equipment were damaged and injured and became wrecked and sunk in the waters of the bay of San Francisco. * It is now insisted that, although the appellant be rightfully held not liable for sinking the steamer, nevertheless it may and should, under the finding last above quoted, be held liable for damaging and wrecking the vessel. This contention is answered, we think, by the fact that the finding immediately under consideration is drawn in the exact phraseology of the complaint, which admits of no interpretation save that the appellant was charged with simultaneously damaging, sinking, and wrecking the vessel, and not with the separate and unrelated acts of damaging, then wrecking, and then sinking it. In the absence of an affirmative showing in the record, the theory upon which a case was tried may be deduced from the issues framed by nected and standing alone from the finding The judgment and the order appealed from We concur: KERRIGAN, J.; In re MASH. RICH (28 Cal. App. 692) (Civ. 1684.) (District Court of Appeal, First District, ATTORNEY AND CLIENT 42-DISBARMENT Where an attorney from another state [Ed. Note.-For other cases, see Attorney and Petition for revocation of the order admit- Charles M. Bufford, all of San Francisco, for H. Fairall and Walter J. Thompson, both of the pleadings and the findings made by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes other jurisdictions. In this behalf the ac- theretofore taken and concluded against him in cusation of the bar association avers: "(a) That on or about January 21, 1891, said Samuel Lawrence Mash was admitted to the bar of the state of Iowa; that on or about January 16, 1896, Samuel Lawrence Mash was convicted by the District Court of the United States for the Southern District of Iowa of using the United States mails for the purpose of defrauding, and was sentenced by said court to serve eighteen months in the penitentiary at Ft. Madison, Iowa; that upon said Samuel Lawrence Mash's agreement to leave the state of Iowa permanently said sentence was suspended. "(b) That on or about the 15th day of May, the state of Illinois and said disbarment proceedpending in the state of Utah, and that he likeings theretofore taken against him and then wise fraudulently, especially, and purposely concealed from said District Court of Appeal for the First appellate district of the state of California his conviction of each and all of the crimes hereinabove alleged and each and every fact tending to show that he was not of good moral character, and did thereby and facts in the premises, as hereinabove set forth, by such fraudulent concealment of material obtain said order so admitting the said Samuel Lawrence Mash to practice as an attorney and counselor at law in all the courts of the state of California." To the accusation respondent interposed 1900, said Samuel Lawrence Mash was sentenced by the superior court of Milwaukee county, state of Wisconsin, to serve 90 days in jail upon conviction by said court of keeping a house a general demurrer upon the ground that it of ill fame; that said Samuel Lawrence Mash was charged with and convicted of said offense under the name of S. M. Marsh; but that said S. M. Marsh and Samuel Lawrence Mash are identically one and the same person. "(c) That on or about April 9, 1903, said Samuel Lawrence Mash was admitted to the bar of the state of Illinois; that on or about January 14, 1905, said Samuel Lawrence Mash was duly convicted and sentenced to serve a term in the penitentiary by the superior court of Cook county, state of Illinois, for the crime of harboring; that on June 16, 1906, the said Samuel Lawrence Mash was regularly and legally disbarred in the state of Illinois. * * did not state facts, etc., and upon the demurrer being disallowed he filed an answer, which, while admitting the truth of the allegations of the accusation concerning his several convictions and disbarments in other jurisdictions, and his failure to reveal the same to this court when applying for admission to the bar of this state, attempted to justify such failure by pleading with much detail not necessary to be narrated here that in each instance he had been falsely accused and unjustly convicted and disbarred. Ex"(d) That on or about the 1st day of July, cepting the allegation relating to his disbar1909, Samuel Lawrence Mash was admitted to the bar of the state of Utah under the name of ment in Utah, the answer of the respondent Lawrence Marsh; that said Lawrence Marsh makes no attempt to deny the allegations of and said Samuel Lawrence Mash are identically the accusation that, when making application one and the same person. That on or about to this court for admission to the bar of this the 9th day of May, 1911, proceedings were regularly and legally instituted in the Supreme state, he fraudulently, intentionally, and purCourt of the state of Utah for the disbarment posely concealed from this court the facts of of said Samuel Lawrence Mash under the name his previous convictions and disbarments, but. of Lawrence Marsh; that he appeared and an- while admitting by a failure to deny the swered, and was represented by counsel at the hearing of said disbarment proceedings; that specific allegations of the accusation concernon or about January 4, 1913, the said Samuel ing the disbarment proceedings instituted Lawrence Mash, under the name of Lawrence against him in the state of Utah, and the Marsh, was regularly and legally disbarred in the state of Utah; that the referee who had findings of the referee therein which ultiunder consideration said disbarment proceedings mately resulted in an order of disbarment, found that during the year 1911 said Samuel makes denial "that he was of immoral charLawrence Mash, under the name of Lawrence acter or that any disbarment proceedings Marsh, had kept a house of ill fame, and that he was morally unfit to be a member of the were 'pending' against him at the time he Utah bar; that said Samuel Lawrence Mash made his application for admission to this did not inform this court of the pendency of court." This denial is followed by averments said proceedings for disbarment in the state of Utah at the time he made application for admission to the bar of the state of California, either at the time of his admission thereto or prior thereto or at all; that the said Samuel Lawrence Mash, at the time of his application for admission to the bar of the state of California, and at the time of his admission thereto, fraudulently, intentionally, and purposely concealed from this court each and all of the facts set forth in the above specifications; that said Samuel Lawrence Mash so obtained said order permitting him to practice as an attorney and counselor at law in all the courts of California by the fraudulent concealment of each and every material fact herein before set forth, and that said Samuel Lawrence Mash, in so making application to said District Court of Appeal of the state of California for the First district for a license to practice law in the state of California, did fraudulently conceal and withWith these denials as a predicate and as a hold each and every fact hereinbefore set forth justification therefor, the answer of the rewhich occurred previous to said 13th day of spondent upon the Utah phase of the accusaJuly, 1913, and did specially, purposely, and tion is, in effect, an argumentative denial fraudulently conceal from said District Court of Appeal for the First appellate district of the that he fraudulently, intentionally, or purstate of California said disbarment proceedings posely concealed from this court the fact of the answer that: "When the said respondent left the state of Utah, all actions then pending against him had, so he had been informed by the court, been dismissed for want of sufficient evidence, and was so informed by Sonax Christiansen, respondent's attorney, and that no action would be taken against him by the Supreme Court of the state of Utah, or the bar association of the city and county of Salt Lake, and that on or about the 10th day of May he, said respondent, delivered to the clerk of the Supreme Court of the state of Utah his certificate of admission to the Supreme Court of the state of Utah with the understanding that all proceedings before the Supreme Court of the state of Utah in the disbarment of the said respondent would be dismissed. * * PEOPLE v. ANTUNEZ 963 of the pendency of disbarment proceedings having convinced himself that he was inagainst him in the state of Utah; that is to nocent of the charges previously preferred say, the answer of the respondent in this against him, he concluded that, even if the behalf amounts to no more than a mere argu- court had been informed thereof, it would mentative denial that disbarment proceed- have treated them as matters of little or no ings were pending against him in the state moment. of Utah at the time he made application to this court for admission to the bar of the state, and it does not purport to deny the material allegation of the accusation that he had in fact been disbarred in the state of Utah some six months before he came to California. It will thus be seen that all of the material allegations of fact upon which the accusation was based were either expressly admitted, or admitted by a failure to deny; and, this being so, the matter was by the court ordered submitted upon the motion of the representative of the bar association, without the taking of evidence. ciency of such a defense, we would practicalIf we were to concede the suffily oust ourselves of jurisdiction to pass on the moral character of an applicant to practice law. Regardless of whether the charges previously preferred against the respondent were well or ill founded, we hold that it was they had been preferred and prosecuted and his duty to reveal to this court the fact that had resulted in his conviction and disbarment. His failure to do so cannot be regarded as other than a willful deception which requires this court, if it is. to give effect to that provision of the law permitting only persons of good moral character to be licensed to pracmaintain the dignity and decency of its bar, tice law in the courts of the state, and to to revoke the license previously granted to him. sons stated, it is ordered that the license to Upon the admitted facts, and for the reapractice law in this state heretofore granted same is, hereby revoked and canceled, and to the respondent by this court be, and the that respondent's name be stricken from the roll of attorneys and counselors at law in this state. We concur: KERRIGAN, J.; RICH (28 Cal. App. 740, The material facts as pleaded in the accusation being admitted, the only question to be determined is whether or not they will suffice to sustain a revocation of respondent's license to practice law in this state upon the ground that it was procured through a fraud practiced upon this court. the failure of the respondent at the time he In our opinion, made application to be admitted as a practitioner of the law in this state, to reveal the fact of his several convictions of offenses against the law and his subsequent disbarments in other jurisdictions, constituted a fraud upon the court. Under the somewhat lax procedure provided in this state for the admission of applicants to practice law here upon the presentation of a license from a sister state, the good moral character PEOPLE v. ANTUNEZ. (Cr. 321.) of the applicant need be established only by (District Court of Appeal, Third District, the assurance of local sponsors, who, as a CRIMINAL LAW 1159 California. Nov. 4, 1915.) rule, are unacquainted with the applicant before his arrival in this state to take up mit rape cannot be disturbed on appeal, there CLUSIVENESS OF VERDICT. A conviction of assault with intent to com his residence here, and are rarely, if ever, being testimony which, if believed, warrants acquainted with his professional standing in the verdict, and it being impossible to say that the community from whence he comes. other means of ascertaining the applicant's inherently improbable as to leave the court no No prosecutrix's testimony was so obviously and good or bad character are provided; and recourse, without self-stultification, except to as a consequence we take it that there is cast upon the applicant the obligation to reveal to this court at the time of his application any circumstances connected with his past professional life which must necessarily in fluence the court's judgment in determining whether the applicant is or is not a person of good moral character. reverse. APPEAL CON. Law, Cent. Dig. §§ 3074-3083; Dec. Dig. County; J. A. Plummer, Judge. Juan Antunez was convicted and denied a new trial, and appeals. Affirmed. Reed M. Clark, of Stockton, and C. W. Gillespie, of San Francisco, for appellant. U. S. Webb, Atty. Gen., and J. Chas. Jones, Deputy Atty. Gen., for the People. The only defense that the respondent would make, if permitted, to the charges contained in the accusation, is, as foreshadowed by the allegations of his answer, that it was his opinion at the time he made his application that the criminal and disbarment proceedings prosecuted against him ed of the crime of assault with intent to CHIPMAN, P. J. Defendant was convict- · in other jurisdictions were neither bona commit rape upon the person of Mrs. Vic fide nor just, and that therefore the court toria Mirandi, a married woman, and was would have granted his application regard- sentenced to imprisonment for the term of less of such proceedings; in other words, seven years. He appeals from the judgment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and from the order denying his motion for a | only where the uncorroborated testimony of new trial. The sole proposition urged for a reversal is that the evidence was insufficient to justify the verdict. the complaining witness is so obviously and so inherently improbable as to leave the court no recourse, without self-stultification, except to reverse the judgment. But this obvious and inherent improbability must, however, very plainly appear before the reviewing court should assume the functions of the trial jury." If the jury had believed the testimony of defendant, an acquittal must have followed. They manifestly did not believe him, and did believe the prosecuting witness. Unless we can say that her testimony was "so obviously and inherently improbable as to leave the court no recourse, without self-stultification, Defendant testified to having had sexual intercourse with the prosecutrix on the day charged and on previous occasions, but that it was mutually agreeable. He denied having assaulted her with intent to commit rape or at all. There was testimony tending to impeach the character of the prosecutrix for truth, honesty, and integrity, and also her character for chastity. Her testimony was that she was sick and confined to her bed on the day of the alleged assault; that defend-except to reverse the judgment," we must ant came into her bedroom, and after remaining there a short time he proposed to get in bed with her; that she refused him, whereupon he struck her on the head and face with one of his shoes, which he had taken off his feet, and otherwise assaulted her; that she made an outcry and called to two children who were nearby-calling them by name and defendant left her room without accomplishing his purpose. One of these children, aged about nine years, was permitted to testify, and in some degree corroborated the testimony of the prosecutrix. The police officer who arrested defendant the same evening testified that he saw Mrs. Mirandi at that time. "Q. Will you describe to the jury her condition? A. Well, she was lying in bed, couldn't speak, her mouth was puffed up like that, and her eyes were swelled up, couldn't see. Tried to get a statement from her, and she couldn't talk at times; she couldn't tell at all any more than I asked what happened. Q. Don't tell me what she said. A. She just motioned like this (shows). Q. Just that way? A. Just made a motion like this." There was evidence that other persons came to the house during the day and a good deal of wine was drunk, and that the prosecuting witness drank with the others and became somewhat intoxicated. accept the verdict of the jury and the judg- The judgment and order are affirmed. (28 Cal. App. 736) PEOPLE v. WHITE. (Cr. 324.) (District Court of Appeal, Third District, California. Nov. 4, 1915.) CRIMINAL LAW 1106 APPEAL SCRIPT-FAILURE TO FILE. TRAN Where on appeal from a criminal conviction the transcript of the stenographer's notes was not filed within the time allowed by the court on appeal, and no application was filed for further extension of time, the judgment must be affirmed for want of a record upon which to examine the merits of the case. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2890-2892; Dec. Dig. 1106.] Appeal from Superior Court, Del Norte County; John L. Childs, Judge. George W. White was convicted of assault with intent to commit rape, and he appeals. The Supreme Court said, in People v. Em- Affirmed. erson, 130 Cal. 562, 563, 62 Pac. 1069: "If the evidence which bears against the defendant, considered by itself, and without regard to conflicting evidence, is sufficient to support the verdict, the question ceases to be one of law -of which alone this court has jurisdictionand becomes one of fact upon which the decision of the jury and the trial court is final and con clusive." Geo. W. Howe, of Crescent City, for ap pellant. U. S. Webb, Atty. Gen., and J. Chas Jones, Deputy Atty. Gen., for the People. CHIPMAN, P. J. Defendant was convicted of assault with intent to commit rape. A motion for a new trial was denied and judgment on the verdict was entered July 2, 1915, and the defendant was sentenced to The limitations placed upon the appellate court and the rules by which it must be gov-imprisonment at San Quentin for the period erned are stated in People v. Lewis, 18 Cal. App. 359, 364, 123 Pac. 232, 234: of 14 years. July 6, 1915, defendant served and filed his notice of appeal from the judg"We must assume, in the absence of something in the record upon which to base a conment and order denying his motion for a new trary opinion, that the jury reached a verdict trial. An order was made by the court to with full realization of their sworn duty, free have the notes of the trial transcribed by the from passion and prejudice. We must also assume that the learned trial judge was satisfied stenographic reporter and filed with the with the verdict or he would have granted the clerk, and on July 17, 1915, an order was motion for a new trial. Cases have occurred, made by this court extending the time 30 some are cited, where the appellate court has days within which to make such transcript, felt itself constrained, in the interest of justice, to override the conclusions of jury and giving 50 days from July 6, 1915, therefor. trial court, but such cases are rare, and occur. This time expired August 26th. No tran NICHOLSON v. LEATHAM script has been filed except the clerk's minutes on appeal, and no application has been made for extending the time within which to file transcript of the stenographer's notes at the trial. We have before us no record upon which to examine into the merits of the case.. Nothing remains for us to do but to affirm the judgment; and it is so ordered. We concur: HART, J; BURNETT, J. (28 Cal. App. 743) PEOPLE v. BOSE. (Cr. 322.). (District Court of Appeal, Third District, California. Nov. 4, 1915. Rehearing Denied by Supreme Court Jan. 3, 1916.) 1. CRIMINAL LAW 1159-APPEAL-VERDICT -EVIDENCE. In a prosecution for rape where the prosecutrix's testimony was sufficient to support the conviction the truthfulness of the witness was for the jury. [Ed. Note. For other cases, Law, Cent. Dig. §§ 3074-3083; Dec. Dig. see Criminal 1159.] 2. RAPE 46- PHOTOGRAPH ADMISSIBILITY. EVIDENCE 965 of the court in admitting evidence that prior [2] 2. Appellant complains of the action to the alleged commission of the offense charged in the information he had exhibited to the prosecutrix a photograph of a naked woman. The fact is that the only objection place was fixed. made to the question was that no time or That objection was met, however, by a subsequent question and answer. But the evidence was admissible under various decisions of the appellate courts of this state. People v. Scott, 24 Cal. App. 449, 141 Pac. 945; People v. Ah Leo, 151 Pac. 748. In the latter case it is said by the Sec ond District Court of Appeal : of the main charge and as tending to show the "The testimony is admitted as corroborative commit the crime of the particular nature indisposition of the accused and his proneness to volved." to the declared misconduct of the district [3] 3. The only other point made relates attorney while addressing the jury, in calling the defendant "the dirty old scoundrel." We cannot say that the expression was in very good form. It is better, of course, to avoid such manner of speech, but no preju It was not error in such prosecution to ad-dicial error was committed thereby. Besides, mit evidence that prior to the offense accused the jury were advised by the trial judge to had exhibited to prosecutrix a photograph of a naked woman, since such testimony was admissi- disregard the word "scoundrel." In People ble as corroborative of the main charge and as tending to show the disposition of the accused fendant was denounced by the district atv. Glaze, 139 Cal. 159, 72 Pac. 965, the deand his proneness to commit the crime charged.torney as "the foul fiend from hell." The [Ed. Note.-For other cases, see Rape, Cent. characterization was certainly as strong as Dig. 54; Dec. Dig. 46.] Supreme Court, with the proper charge as to in the case at bar, and the language of the the nature of the offense, may be applied here: 3. CRIMINAL LAW TORNEY-ARGUMENT. 730-PROSECUTING AT In the state's argument in such prosecu- Appeal from Superior Court, Sacramento Welsh & Henry and R. P. Talbot, all of BURNETT, J. The conviction was for the crime of lewd and lascivious conduct with a minor child, and the appeal is from the judgment and the order denying a motion for a new trial. guilty. If he was guilty, he certainly deserved "The evidence tended to show that he was trial for murder is not entitled as of right to be the denunciation complained of. A defendant on spoken of as if he were an innocent man in an show that the evidence proves him guilty." argument by the officer who is endeavoring to We discover no reason for reversing the cause, and the judgment and order are af firmed. We concur: CHIPMAN, P. J.; HART, J. (28 Cal. App. 597) NICHOLSON et al. v. LEATHAM et al. (District Court of Appeal, Second District, Cal(Civ. 1551.) ifornia. Oct. 20, 1915. Rehearing Denied 1. APPEAL AND ERROR 694 by Supreme Court Dec. 16, 1915.) QUESTIONS PRESENTED FOR REVIEW. Where the evidence was not preserved in the record, the granting of defendants' motion for nonsuit cannot be reviewed. RECORD - [1] 1. The prosecutrix testified positively Error, Cent. Dig. §§ 2910, 2915; Dec. Dig. Em JURISDICTION. tition for probate of a will shall show whether For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |