Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

and in the previous case of Meyer v. Kinzer, 12 Cal. 251, 73 Am. Dec. 538. Nor in the numerous decisions in this court in which deeds to the wife by direction of the husband have been held to inure to her use has the contrary ever been ruled. Nor, indeed, is it held in any of those cases that the rule would be otherwise, even in cases where the consideration is community property. In all of them, indeed, some circumstance, in addition to the mere conveyance to the wife by direction of the husband, appeared; as, e. g., declarations of the husband at the time of the deed, or the use in the deed of the expression "as her separate property," or similar expressions. But it cannot be inferred that, in the absence of the particular circumstances shown in these cases, the decisions would have been otherwise. Peck v. Brummagim, 31 Cal. 444, 89 Am. Dec. 195; Higgins v. Higgins, 46 Cal. 263; Swain v. Duane, 48 Cal. 358; Read v. Rahm, 65 Cal. 344, 4 Pac. 111; Jackson v. Torrence, 83 Cal. 529, 23 Pac. 695. Nor, if it could be so inferred, and the rule assumed that in such cases the presumption should be against the wife, would the case here be affected; for the consideration in this case was not community property, but the separate property of the husband, and with reference to such cases the rule, as we have seen, is different. The case is in principle precisely the same as though the consideration had been paid by the father of the wife, and the deed made to her by his direction. I advise that the judgment and order appealed from be reversed.

[blocks in formation]

CRIMINAL LAW-APPEAL-EVIDENCE-REVIEW

-RAPE-CONFESSION-INSTRUCTIONS

-SEPARATE OFFENSES.

1. In a criminal prosecution the supreme court is not authorized to set aside a conviction on the ground of insufficiency of evidence, unless there is a total absence of evidence on an essential point.

2. Where defendant, charged with rape, was induced by the brothers of the prosecutrix to go to the office of the city marshal, where he was confronted with the prosecutrix, who there made her statement in his presence, giving considerable details as to the alleged occurrences, and defendant was urged to make a statement, and threatened that the magistrate would be applied to for a warrant, but made no reply, and one of the brothers had said to defendant that if he would make a statement exonerating his sister he would be allowed to leave the city, statements made by the prosecutrix and by others were not admissible as a confession on the ground that defendant's silence implied an admission thereof, he being under restraint, though not arrested, at the

time, and he having been promised 'mmunity from punishment if he spoke, and threatened with prosecution if he defended himself and declared himself innocent.

3. Where, in a prosecution for rape, the prosecutrix testified that she had lived with defendant for four months, and on nearly every day during the time, and sometimes five or six times a day, they had sexual intercourse with each other, an instruction that, if the jury found that defendant had sexual intercourse with the prosecutrix at any time within three years before the finding of the indictment, she being under 16 years of age, they should find him guilty, was erroneous, as it did not limit the prosecution to any particular

act.

4. In a prosecution involving sexual intercourse by consent, the state should be compelled to elect at the commencement of the trial on which of several acts it intends to rely for a conviction; and, in the absence of such election, the first evidence which would tend in any degree to prove an offense should be deemed a selection, and, unless that precise offense is proven, defendant is entitled to acquittal.

Department 2. Appeal from superior court, Los Angeles county; B. N. Smith, Judge. Z. Williams was convicted of rape, and he appeals. Reversed.

J. G. Rossiter and J. W. McKinley, for appellant. Tirey L. Ford, Atty. Gen., and Henry A. Melvin, Dep. Atty. Gen., for the People.

TEMPLE, J. The defendant was convicted upon a charge of rape upon the person of a child aged 13. The appeal is from the judgment and from an order denying a new trial.

As I think the judgment must be reversed, many of the points made will not require consideration. Only those will be noticed, other than the one which necessitates a reversal, which may be necessary for the guidance of the court upon a retrial. The briefs contain a long discussion as to the sufficiency of the evidence. It is not claimed that there was not sufficient evidence if the prosecuting witness was worthy of credence. But her story is said to be improbable, and opposed to testimony more credible. We have so often called the attention of the profession to the fact that the appellate jurisdiction of this court does not extend to matters of fact that we are surprised that learned counsel should spend their time in the presentation of such questions. If there is a total absence of evidence upon some essential matter, and perhaps if the evidence is so slight as not to amount to satisfactory proof within the meaning of section 1835, Code Civ. Proc., a question of law is presented. The credibility of the witnesses is for the jury, or at least for the trial court, which may grant a new trial for insufficiency of the evidence, when we could not interfere. There was an abundance of evidence in the present case, and, if the jury believed the testimony for the prosecution, the verdict was right, so far as this point goes; and on the same condition the court properly re

I

fused to grant a new trial. But, even if the court ought to have granted a new trial on that ground, we cannot review its action. think the testimony of W. S. Lacey and of the brothers of the prosecutrix as to what occurred at the office of Mr. Lacey, who was city maral, was improperly admitted. The defendant was not then under arrest, but was induced to go with the two brothers to the office of the city marshal, and was there confronted with the prosecutrix. There considerable conversation was had. The child made her statement as to what had occurred, apparently giving considerable detail as to alleged occurrences. The defendant was urged to make a statement, and frequently threatened that the magistrate would be applied to for a warrant. The marshal testified that, after the prosecutrix made her statement, he asked the defendant what he had to say about it. "Don't think he made any reply to what she said at all. He just sat there, and kind of cowed right down." After this testimony he was permitted to recite what the prosecutrix had said. This was admissible, if at all, only upon the theory that the defendant admitted the truth of what was thus said in his presence. So considered, it was clearly a confession, or that is not a confession which simply admits all the facts charged, but stops short of a confession of guilt in the precise words, "I am guilty." The defendant was under restraint. The brothers Tomlinson had told him, as one of them testified, that if he would make a statement exonerating their sister he would be allowed to leave the city; and it appears the magistrate was called in, and, after he had heard the statement, advised him to leave town. What was meant by exonerating their sister, after she had stated what had been done to her, was probably that he should admit the truth of her statement, and perhaps admit that he had used force. Nothing inculpatory was said by the defendant at the time. It made against him only because he was silent. Under such circumstances his silence did not imply an admission; but, granting that it did, the admission was not voluntary. He was under restraint, and had a suggested promise that he could go free if he admitted his guilt, and a threat of prosecution if he defended himself and declared his innocence. The evidence should not have been admitted.

But one other matter requires notice at our hands. That arises from an instruction given by the court to the effect that, if the jury found that defendant had had sexual intercourse with the prosecutrix at any time within three years before the finding of the indictment, she being under 16 years of age, etc., they must find him guilty. The prosecutrix testified that she lived with the defendant for a period of four months, and on nearly every day during that time, and sometimes five or six times a day, they had sexual intercourse with each other. In addition

to this sweeping general assertion, many alleged acts were specifically described with circumstances of time, etc. Each of these acts was a separate offense, and the defendant could be tried for either, and separately for each of them. The jury were not even told that they must all agree that some specifically described act had been performed. A verdict of guilty could have been rendered under such an instruction, although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge as to any one of these separate offenses. Even worse than that was possible. As to every specific offense which there was an attempt to prove, and which could be met by proof, the defendant may have established his defense, and yet upon the general evidence of continuous crime, which, in the nature of things, he could only meet by his personal denial, he may have been convicted. And how could he defend when he was not informed as to what particular offense out of hundreds testified to by the prosecutrix he was to be tried? Such a trial upon a charge so indefinite as to circumstance of time or place, or any particular except by the general designation, would be a judicial farce, if it were not something a great deal worse. That it was wrong was held in the recent case of People v. Castro (Cr. No. 704) 65 Pac. 13. The trouble arises from the fact that upon a charge of crime involving sexual intercourse by consent other like offenses may be shown to prove that the parties are lewdly inclined, and that the barriers of modesty have been broken down with reference to each other; not primarily to prove habitual or continuous criminality or other offenses. In this case, as well as in any other, the prosecution must charge a specific offense; and the conviction, if one is had, must depend upon the proof of that offense alone. Other incidents are important only as tending to prove the one specific offense for the alleged commission of which defendant is on trial. But it is said time is not material further than it must appear that the crime was committed before the indictment was found, and within the period of limitations. The statement is not strictly accurate. The proof of an offense on a different date is a variance, but, in general, not a fatal variance. A defendant on trial upon a criminal indictment has a right to demand that the charge against him shall be stated in ordinary and concise language, that he may know upon what specific charge he is to be tried, so that he may prepare his defense. Practically, that is not done in these few anomalous cases where any number of separate offenses may be proven, although the defendant is being tried for the commission of only one. Two cases upon this point are cited, in each of which a rule is declared, but the rules differ. In People v. Flaherty, 162 N. Y. 541, 57 N. E. 76, it is said: "The indictment alleges acts constituting but one crime, and,

Action by the people, on the relation of one Richardson, against C. W. Cobb, to oust defendant from the office of justice of the peace. From a judgment in favor of plaintiff, defendant appeals. Reversed.

C. W. Cobb and E. M. Rea, for appellant. Tirey L. Ford, Atty. Gen., Howell C. Moore, and Owen D. Richardson, for the People.

while the mistake as to the date will not prevent the prosecution from proving the crime charged in the indictment, the indictment will be deemed to cover the offense attempted to be proved nearest in point of time to the date of the indictment." In State v. Hilberg (Utah) 61 Pac. 215, it was said, after noticing that the prosecution could have proved any one act committed: "When evidence was introduced tending directly to the proof of one act, and for the purpose of securing a conviction upon it, from that moment that particular act became the act charged." This rule is uncertain, and unfair to the defendant, because of the qualifying clause, "for the purpose of securing a conviction upon it." I think the prosecuting officer, when he commences the trial of a case of this class, where he is at liberty to prove one of several different offenses under the indictment, should at least as early as the commencement of the trial inform the defense upon proof of what specific offense he intends to rely; and, if he does not, the first evidence which would tend in any degree to prove an offense shall be deemed a selection, and, unless that precise offense is proven, the defendant is entitled to an acquittal. Even this would leave a defend-fendant and in favor of the relator. Judg

ant in such cases at a disadvantage, but he ought not to be tried under less favorable circumstances. The judgment and order are reversed, and a new trial ordered.

[blocks in formation]

UTE.

1. Code Civ. Proc. § 111, providing that, on a vacancy in the office of justice of the peace, an eligible person shall be appointed to hold the office for the remainder of the term, was not repealed by County Government Act 1897,

25, subd. 19, declaring that, in case of a vacancy in any elective county office, the appointee shall hold office for the unexpired term, or until the next general election.

2. Const. art. 4, § 24, provides that a bill shall contain but one subject, which shall be expressed in its title. Act 1897, entitled "County Government Act" (section 58), provides that city justices of the peace and all county officers shall be elected at the gubernatorial elections. Held, that the act of 1897 was not unconstitutional, in so far as it applied to city justices, because that subject was not expressed in the title, since city justices constitute part of the county government.

3. Act 1897. entitled "County Government Act" (section 58), providing that city justices of the peace shall be elected at a gubernatorial election, repealed Code Civ. Proc. § 110, limiting the term of office of city justices of the peace to two years.

Commissioners' decision. Department 2. Appeal from superior court, Santa Clara county; A. S. Rhodes, Judge.

1 Rehearing denied June

SMITH, C. The defendant was appointed by the board of supervisors city justice of the city of San Jose, on the death of the incumbent, November 12, 1900, and has since continued in occupation of the office. His predecessor had previously been appointed, on the death of the original incumbent, one Gass; and prior to the appointment of defendant, November 22, 1900, the board had ordered an election to fill the unexpired term to be held November 6th of the same year. At this election the relator was elected to the office, and qualified, but was not permitted to take possession. The suit was brought by the attorney general to oust the defendant from the office, and also to establish the title of the relator. The decision of the court below was against the de

ment was entered accordingly, and the defendant appeals.

It is contended by the appellant that the case is governed by the provisions of section 111 of the Code of Civil Procedure, and not, as held by the lower court, by the provisions of section 25, subd. 19, of the county government act of 1897 (St. 1897, pp. 452, 463), or, if otherwise, that under the latter act there was no vacancy to be filled at the general election of 1900. By the former statute it is expressly provided that, in case of vacancy in "the office of a justice of the peace," an eligible person shall be appointed by the board of supervisors, "to hold office for the remainder of the term"; and this provision has been held to apply to city justices, as well as others. People v. Sands, 102 Cal. 16, 36 Pac. 404. By the latter statute the appointment is "for the unexpired term, or until the next general election." It was held by the lower court that the Code provision was repealed by the provision of the latter act cited, that the term of office of the defendant expired at the next general election following his appointment, and consequently that the election of relator at that election was valid. But precisely the same point was involved in the case of People v. Col (Cal.) 64 Pac. 477, and has been ruled otherwise, and the question must now be regarded as settled. This is admitted by the attorney general, whose position now is that subdivision 19 of section 25 of the act cited has no application to city justices, whose terms, under the provisions of sections 110, 111, and 103 of the Code of Civil Procedure, are expressly limited to two years, and that section 58 of the county government act, providing for the election of "city justices

of the peace," along with county and township officers, at the gubernatorial elections, and thus lengthening their terms to four years, is, in so far as it applies to city justices, unconstitutional and void; the ground of the objection being that the subject legislated on (namely the tenure of office and election of city justices of the peace) is not expressed or referred to in the title. Const. art. 4, § 24. It seems, therefore, that both parties now agree that the Code provisions were not repealed by the county government act, and this may be assumed to be the law. Kahn v. Sutro, 114 Cal. 335, 46 Pac. 87. The case must therefore be governed by the provisions of section 111 of the Code of Civil Procedure; and the sole question to be considered is whether, so far as city justices are concerned, the provisions of section 58 of the county government act, in prolonging the term, are unconstitutional.

This question, we think, must be answered in the negative. It may be admitted that city justices of the peace do not come, or at least do not altogether come, within the category of county or township officers; but it is equally clear that they do not come altogether within that of city officers. They cannot, therefore, strictly speaking, be said to be either county officers or city officers, for that would imply that they were exclusively such; but, without much impropriety, they may be said to be either. People v. Sands, 102 Cal. 15, 36 Pac. 404. More accurately speaking, they, as well as county justices, form part of the judicial system of the state; and both come equally within the provisions of section 11, art. 6, of the constitution, which authorizes the legislature to "determine the number of justices of the peace to be elected in townships, incorporated cities and towns or cities and counties," and to fix "by law [their] powers, duties and responsibilities." Kahn v. Sutro, 114 Cal. 331, 46 Pac. 87, et seq. Under this provision the legislature has power to fix the terms of justices of the peace generally. Id.; People v. Sands, 102 Cal. 15, 36 Pac. 404; Rauer v. Williams, 118 Cal. 408, 50 Pac. 691; In re Mitchell, 120 Cal. 390, 52 Pac. 799. It does not follow, however, from the peculiar nature of their offices, that justices of the peace or other judicial officers do not constitute part of county or city governments. The administration of justice is an essential part of every government, whether local or general; and the subject of their ap pointment, terms of office, and duties is therefore entirely germane to an act to establish such governments. Otherwise, it would be necessary to regard all provisions as to justices of the peace, whether city or county, as beyond the scope of the title of the act. Nor is the case affected by the fact that the duties of city justices are to be performed in cities. Cities, though for certain purposes distinct political entities, still remain part of the counties in which they are

situated; and many of the functions of county officers-as, e. g., of sheriffs, recorders, assessors, etc.-are exercised within their limits. Pol. Code, § 3901 et seq.; Kahn v. Sutro, 114 Cal. 323, 46 Pac. 87, et seq. "An act should not be declared unconstitutional and void unless there is a clear repugnance between the act and the constitution." University v. Bernard, 57 Cal. 613. We do not perceive such repugnance in this case, and must therefore hold the provision of the act in question valid. It follows that its effect was to repeal section 110 of the Code of Civil Procedure, and to extend the term to four years, as provided in the act. The judgment should be reversed, and the cause remanded, with directions to enter judgment for the defendant.

We concur: COOPER, C.; HAYNES, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded, with directions to enter judgment for the defendant.

(133 Cal. 91)

FRAZIER v. MURPHY et al. (S. F. 2,280.) (Supreme Court of California. May 29, 1901.) EXECUTORS AND ADMINISTRATORS-CLAIMPRESENTATION - PARTNERSHIP -DENIAL ESTOPPEL-EVIDENCE-ADMISSIBILITY.

1. Code Civ. Proc. § 1502, provides that, if an action is pending against the decedent at the time of his death, plaintiff must present his claim against his estate to the executor for allowance or rejection, and that no recovery should be had unless proof be made of such presentation. Defendant died before trial, and his executors were made parties defendant. Held, that defendant's objection to the taking of evidence in support of the action on the ground that no claim had been presented to them should be sustained.

2. Plaintiff dealt with H. as H. & Co., and instituted a suit against H. & Co. H. answered, denying the existence of the partnership, and died before trial. H.'s executors were made parties defendant in the place of "H., sued as H. & Co.," and it was proved without objection that H. & Co. was only another name for H. Held, that the executors were not estopped from denying the partnership relation.

3. Code Civ. Proc. § 1880, subd. 3, provides that a party in whose behalf an action is prosecuted against an executor or administrator on a claim or demand against the estate of a deceased person cannot be a witness to any matter of fact occurring before the death of the deceased. Plaintiff instituted a suit against II. & Co., and H. answered, denying the existence of the partnership, and died before trial. His executors were made parties defendant, and proved without objection that H. & Co. was only another name for H. that the contention that the evidence of plaintiff as to what H. said and did prior to, during, and after plaintiff's engagement to work for H. & Co. was admissible for the purpose of showing that H. was estopped from denying the partnership relation because the claim sued on was against the partnership, and not against the estate, could not be sustained, since the action had been narrowed by the pleadings to one against H.'s executors.

Held,

Commissioners' decision. Department 2. Appeal from superior court, city and county

of San Francisco; William R. Daingerfield, Judge.

Action by F. O. Frazier against S. G. Murphy and another, as executors of the estate of Charles Hanson, deceased. From a judgment in favor of plaintiff, defendants appeal. Reversed.

William H. Jordan, for appellants. Isidore B. Deckweiler, Jos. F. Geary, and Dockweiler & Carter, for respondent.

CHIPMAN, C. Plaintiff brought the action by a verified complaint filed September 8, 1896, against Hanson & Co., an alleged co-partnership, for a balance due for labor performed for said co-partnership from June 1, 1890, until October 1, 1894, under a written contract alleged to have been entered into May 13, 1890, with said Hanson & Co. The cause was tried by a jury, and plaintiff had the verdict, and judgment followed. Defendants appeal from the judgment on bill of exceptions.

The third amended complaint was filed August 23, 1897, and an answer was filed October 27, 1897, denying the alleged copartnership and the alleged contract. The answer was verified by Charles Hanson. A separate defense was alleged, which need not be noticed. Charles Hanson died March 21, 1898. There appears in the transcript an amendment to the answer, marked "Filed in open court September 16, 1898," reciting: "Now comes Charles Hanson, and by leave of court amends his answer on file herein by striking out subdivision 1 of said answer, and in lieu thereof inserting the following: [Subdivision 1 was a denial that there ever existed such co-partnership.] Defendant alleges that the designation Hanson & Co. is the name under which Charles Hanson, during all the times mentioned in plaintiff's complaint, has transacted his business, and that said designation stands for, always has stood for, means, and always has meant, Charles Hanson, and no other person or persons; and the said Charles Hanson, responding to said designation and name, states that he is the person on whom a copy of the complaint and summons in this action was served, and that he makes answer thereto as and for the said Hanson & Co.; and he expressly denies that the said Hanson & Co., herein named as a defendant, is, or ever was, a co-partnership." Plaintiff's counsel filed in open court a written waiver of verification of the proposed amendment and waiver of notice of motion to file said amendment, adding: "But nothing herein contained shall be deemed or construed to be a consent upon the part of the plaintiff that said amendment may be allowed." No objection to this amendment, nor to the petition and order, next to be noticed, appears in the record, except as it may be inferred from the above, which we do not think can be construed to be an objection. On the same day-September 16th-defendants,, Samuel G. Murphy

and H. C. Cheseborough, executors of the last will of Charles Hanson, deceased, applied to the court to be substituted as defendants in the cause, alleging that Hanson died March 21, 1898, and also alleging their appointment as executors, and on the same day the court made an order that said executors "be, and they are hereby, substituted as defendants in the place and stead of Charles Hanson, sued as Hanson & Co." There is in the record no order allowing the amendment to the answer above stated. But, as it recites that it was filed by leave of court, and is found among the pleadings, and as the substitution of the executors, made by order of court the same day, appears to recognize the fact that the amendment was part of the pleadings, we must assume that it was treated as a pleading in the case, notwithstanding it was filed after Hanson's death. Defendants, Murphy and Cheseborough, asked and obtained leave of court to file a supplemental answer to the amended complaint, in which they allege the death of Hanson, and their appointment as executors. A demurrer to the proposed pleading was sustained. It is of no particular consequence that this supplemental answer cannot be considered, as it elsewhere appears that defendants were substituted on petition showing their appointment as executors and the death of Hanson, and these facts were proved at the trial without objection. In this condition of the pleadings the cause went to trial. To perfectly understand the question involved, it should, perhaps, be stated here that upon the coming in of the verdict, plaintiff, to make it conform to the pleadings, caused it to be put in the following form: "F. O. Frazier v. S. G. Murphy and H. C. Cheseborough, as executors of the last will and testament of Charles Hanson, deceased, substituted herein as parties defendants for and in place of Hanson & Co., defendants. We, the jury in the above-entitled cause, find a verdict in favor of plaintiff and against defendants," etc.; and the court entered judgment on the verdict against the executors, "payable in due course of administration."

1. Defendants objected to further proceedings, and to the taking of evidence in support of the action, on the ground that no claim had been presented to or filed with the executors for the indebtedness sued upon. The court overruled the objection, and defendants excepted. At the close of the trial, defendants objected to the verdict, and moved to set it aside on the ground that "it now appears to be a verdict entered against the executors of the estate of Charles Hanson, deceased, whereas the evidence shows there never has been any claim presented to those executors in the matter sued upon." The motion was denied, and defendants excepted. The complaint did not allege any presentation of the claim to the executors, and it was admitted at the trial that the claim sued upon had not been presented to them. Sec

« ΠροηγούμενηΣυνέχεια »