postponed until July 14th, on which day the said Michelson, by his said attorney, presented a certified copy of the proceedings in the superior court of Alameda county, and moved that the petition of said Teresa McGee be dismissed, on the ground that the court had no jurisdiction, letters having been already granted to him by the superior court of Alameda county. Further hearing was continued to July 23d, and before that day an alternative writ of prohibition herein was granted, and an order to show cause made. There is no doubt that at the time the said Teresa McGee presented her petition to the superior court of the city and county of San Francisco, and citation was served on Michelson and the others, that court had jurisdiction to hear and determine whether the minor was a resident of that city and county, and required a guardian, and whether the said Teresa was a proper person to be appointed. The question, then, is presented, could Michelson (instead of presenting the issue of residence and the other subjects involved to the superior court of the city and county of San Francisco) step over to Alameda county, obtain letters there, and thus oust the former court of jurisdiction to proceed? We think not. It is proper to presume that the superior court of Alameda county will, when its attention is brought to the fact that a petition was first filed in the city and county of San Francisco, revoke its order of appointment and recall its letters, to the end that there may be no conflict of jurisdiction. It is apparent there cannot be two guardianships in two different courts at the same time. Letters will be issued, if necessary, by the court of the county where it may be legally determined the child resides. Further than this it is not necessary to go at the present time, except to suggest if Mr. Michelson and his attorney, C. P. Goff, did, as is stated in some of the papers herein, resort to the court in Alameda county for letters instead of meeting the question in the court in San Francisco, as a trick, it was a hazardous proceeding; for, as to Mr. Michelson, by section 1209 of the Code of Civil Procedure, it is declared to be a contempt to practice "deceit or abuse of the process or proceedings of the court by a party to an action or special proceeding;" and as to Mr. Goff, by section 282 of the Code of Civil Procedure, he was forbidden to seek to mislead a judge by artifice. We do not intend to prejudge the proceedings taken by either one; we desire merely to call attention to the risk that may have been run. When Mr. Michelson filed his petition in Alameda county, he had already been served with citation to appear before the superior court of the city and county of San Francisco, which court then had, as to him, jurisdiction to hear and determine. The application for the writ is denied, and the order heretofore made is vacated. We concur: THORNTON, J.; MORRISON, C. J. (68 Cal. 11) BARTON v. BROWN. (No. 9,234.) Filed November 19, 1885. FRAUDULENT CONVEYANCES ACTUAL AND CONTINUED CHANGE OF FOSSESSION NECESSARY-EXEMPTION FROM EXECUTION. Sales of personal property are void as against the seller's creditors, unless followed by an actual and continued change of possession, even though the property was of the class exempt from execution in the hands of the seller; as the right of exemption is a personal privilege, and is waived if not claimed by the debtor. Department 1. Appeal from superior court, county of Humboldt. Ross, J. The plaintiff sued for the conversion of certain personal property by the defendant, alleged to have been at the time, and since, the property of the plaintiff. Plaintiff claims to have purchased the property from James N. Barton, but the evidence shows that the pretended sale was not followed by an actual or continued change of possession. The court below, however, held, as matter of law, that the property in question was exempt from execution in the hands of the vendor, James M. Barton, and therefore "the sale was valid between the parties and all creditors, whether followed by continued change of possession or not." In this the court was in error. The right of exemption is a personal privilege, which, if not claimed, is waived by the debtor. Besides, a part of the property in question would not have been exempt under the statute in the hands of the debtor. Judgment and order reversed and cause remanded for a new trial. We concur: (68 Cal. 18) MCKEE, J.; McKINSTRY, J. PEOPLE V. LARSEN. (No. 20,097.) Filed November 19, 1885. HOMICIDE-MURDER-PLEA OF ONCE IN JEOPARDY.. Where an information charged the commission of an offense on a day subsequent to the date of its filing, a conviction for murder thereunder would be a nullity, and a plea of once in jeopardy founded thereon would be bad, and could not be sustained. Department 2. Appeal from superior court, county of Sonoma. W. F. Russell and J. A. Barham, for appellant. E. C. Marshall, for respondent. THORNTON, J. The question presented herein as to the defense of once in jeopardy was passed on by this court in bank in People v. Clark, 7 Pac. Rep. 178. The decision in that case was adverse to the contention of defendant's counsel herein. It is true, the defendant in that case was accused of burglary and the defendant in this case of murder. But in our view the rule adopted in Clark's Case applies also to a case of murder. The information in this case was insufficient, because, as in Clark's Case, it charged an offense committed on a day subsequent to the date of its filing. A conviction upon such an information would have been a nullity, and the party accused would never have been in jeopardy. Judgment and order affirmed. We concur: (2 Cal. Unrep. 551) MORRISON, C. J.; MYRICK, J. CRAVEN V. NOLAN. (No. 8,859.) Filed November 19, 1885. NONSUIT EVIDENCE SUSTAINING ISSUES OF COMPLAINT. It is error to grant a nonsuit where the plaintiff gives evidence tending to sustain the issues presented in the complaint. Department 2. Appeal from superior court, county of Stanislaus. Wright & Hazen, for appellant. W. E. Turner, for respondent. BY THE COURT. There was evidence given on behalf of plaintiff tending to sustain the issues presented in the complaint; therefore the court erred in granting the motion for nonsuit. The evidence should have been submitted to the jury. Judgment reversed, and cause remanded for a new trial. (68 Cal. 27) TAYLOR v. SOLDATI. (No. 8,312.) Filed November 20, 1885. LANDLORD AND TENANT-WRITTEN LEASE-VERBAL AGREEMENT FOR ALTERATION OF, BINDING EFFECT OF. Where a lessor and lessee enter into a verbal agreement by which the terms of a written lease are altered, if such agreement is not acted upon by the lessee until after the lessor had conveyed his estate, it will not be binding upon the grantee of the lessor. Department 2. Appeal from superior court, county of Marin. MYRICK, J. Mrs. Velasco leased to Soldati a tract of land, with 60 cows, for the term of from July 11, 1876, to October 1, 1879. In the lease it was agreed that Soldati should not have the right to pasture any stock of any kind on the premises other than the 60 cows, except the necessary horses to use in the dairy business. January 6, 1879, Mrs. Velasco sold the leased property to plaintiff. From January 26 to October 1, 1879, Soldati pastured 25 cows and other animals on the land, other than the 60 cows leased. This action was brought to recover for the pasturage of the extra animals. The defendant was permitted to prove, against plaintiff's objection, that while Mrs. Velasco was the owner, she and defendant made a verbal agreement by which he might pasture the extra animals; and the court instructed the jury that such verbal agreement was binding on the plaintiff. This was error. "A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise." Section 1698, Civil Code. The agreement to pasture the extra animals without charge was made while Mrs. Velasco was owner, but was not acted upon until after she conveyed to plaintiff, therefore her verbal agreement would not bind him. The court also instructed the jury that if Mrs. Velasco and Soldati made an agreement by which the latter might pasture the extra cattle without charge, the defendant was entitled to a verdict. For the reasons above given, this was error. Judgment and order reversed, and cause remanded for a new trial. We concur: MORRISON, C. J.; THORNTON, J. (68 Cal. 33) MCDERMOTT v. SAN FRANCISCO & N. P. R. Co. (No. 8,656.) APPEAL CIRCUMSTANTIAL EVIDENCE OF NEGLIGENCE JURY AS JUDGES OF CONCLUSIVENESS OF VERDICT. Where, in an action for damages for negligence, the evidence thereof is circumstantial, the jury is the proper tribunal to determine the facts and the inferences therefrom tending to establish the negligence, and their verdict is conclusive, and will not be set aside unless, in the judgment of reasonable men, no such deduction as that expressed in the verdict could be properly drawn from the evidence. Department 2. Appeal from superior court, county of Marin. E. S. Lippitt and W. S. Woods, for appellant. Hepburn Wilkins, for respondent. THORNTON, J. This is an action brought to recover damages for a loss by fire, caused by the negligence of defendant. It is argued that the evidence is insufficient to sustain the verdict, which was in plaintiff's favor. The testimony was of that character which must have been submitted to the jury. The testimony given in this case to prove negligence was circumstantial, and it was the province of the jury to determine the facts, and all proper inferences from them, establishing the negligence alleged. Shafter v. Evans, 53 Cal. 32; Chidester v. Consolidated Ditch Co., 59 Cal. 201; New England Glass Co. v. Lovell, 7 Cush. 321. The above rule we consider settled law in this state. The verdict of the jury on such evidence should not be set aside, unless when, in the judgment of reasonable men, no such deduction as that expressed in the verdict could be properly drawn from the facts in evidence. The rule is so settled with us. See Chidester v. Consolidated Ditch Co., supra; Fernandes v. Sacramento C. Ry. Co., 52 Cal. 45; McKeever v. Market St. R. Co., 59 Cal. 300; Longenecker v. Pennsylvania R. Co., 105 Pa. St. 328; Beach, Neg. § 161, and cases there cited. We find nothing in this case which induces us to disturb the verdict on the ground of insufficiency of the evidence. There is no error in the record, and the judgment and order denying a new trial must be affirmed. PEOPLE v. SULLIVAN. (No. 20,091.) 1. HOMICIDE-MURDER-ADMISSIBILITY OF DECLARATIONS OF DECEASED. 2. EVIDENCE-WOUNDS-EXPERT TESTIMONY AS TO THE NATURE OF. A witness who testifies that he has had experience with wounds, and is able to tell from seeing them what they were made with, though not a professional expert, may testify as to whether, in his opinion, a wound was inflicted with a dull or sharp instrument. 3. CRIMINAL LAW-TRIAL-REFUSAL OF INSTRUCTIONS SUBSTANTIALLY GIVEN. It is not error to refuse to give an instruction if the same has already been given in other instructions. Department 2. Appeal from superior court, county of Fresno. Campbell & Hinds, for appellant. E. C. Marshall, Atty. Gen., for respondent. MORRISON, C. J. The defendant was convicted of the crime of murder in the second degree, and adjudged to suffer imprisonment therefor for the term of 25 years. On this appeal he makes the fol lowing points: (1) The court erred in admitting the declaration of deceased. (2) The court erred in admitting the testimony of H. J. White, who claimed to be an expert, as to whether the wound had been inflicted with a dull or sharp instrument. (3) The court erred in refusing to give an instruction asked by the defendant, upon the hypothesis that his testimony was true. 1. The following is the testimony objected to under the first alleged error. "Counsel for the people asked the following questions, upon which the court made the ruling that follows: Question. Did he (deceased) say anything about sending for a doctor while in that condition? Answer. Yes: I will tell you. Q. Just state what he said about sending for a doctor. Mr. Hinds, Counsel for Defendant. We object to it on the ground that it is incompetent and not admissible as a dying declaration, or as a part of the res gestæ. Mr. Harris, (for the People.) We want to show that the deceased asked them if they had sent for a doctor, and they said no, but they would; and be said it was no use,-they couldn't do him any good. We want to establish the foundation for introducing other declarations. Does the court admit the question? Court. Yes. Mr. Hinds. We take an exception. Mr. Harris. State what he said about sending for a doctor, first. A. He asked if we sent for a doctor. He was told no, but there would be a doctor there as soon as possible. Says he, I don't think it is necessary; I don't think a doctor will do me any good.' Q. Did he say anything else in that conversation? Counsel |