Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

question is not called for by anything the wit- man and his friends to make defendant suffer ness has testified to.

vicariously for the wrong of the real assail. In bank. Appeal from superior court, Santa ant, who had escaped and could not be appreClara county; W. G. Lorigan, Judge.

hended. In Dong was convicted of assault with a The evidence is exceedingly contradictory deadly weapon, and appeals. Reversed. and conflicting throughout, and there are

C. D. Wright and D. W. Burchard, for ap- many things calculated to cast discredit uppellant. Atty. Gen. Hart, for the People. on the case of the prosecution. But, while

the evidence is not, to our minds, by any VAN FLEET, J. Defendant, a Chinese, means satisfactory, we cannot say that it was was convicted of an assault with a deadly not sufficient to sustain the verdict. But we weapon upon a fellow countryman, and sen- think the court committed error in its ruling tenced to the state prison for the term of two on the cross-examination of the prosecuting years. He appeals from the judgment and witness, Ah Bong, which, under the circuman order denying him a new trial.

stances, was manifestly prejudicial to deIt is strongly urged that the evidence is fendant. The only evidence tending to show insufficient to sustain the verdict, but we motive for the alleged assault was that given do not think this contention can be sustain- by the witness Ah Bong, the party assaulted. ed. The evidence of the prosecution tended He testified in his direct examination by the to show that the alleged assault was commit- prosecution that the only cause of the assault ted between 11 and 12 o'clock at night, upon upon him, so far as he knew, was that he was a public street in a quarter of the city of San present on a previous occasion when the deJosé known as “Chinatown"; that defendant fendant, with several other Chinese, came to and an associate, one Ah Wei, lay in wait at the theater, and assaulted the white doora street corner, outside a restaurant, until keeper by beating him with revolvers; that he the prosecuting witness, one Ah Bong, came (Ah Bong) witnessed the affair and subseout, when defendant pointed out Bong to Ah quently gave the names of those engaged in Wei, and told the latter to shoot; that Ah it to the officers, which resulted in the arrest Wei immediately fired two shots at Ah Bong, of the assailants. That previous to this he one of which hit the latter in the back; that, and the defendant were on friendly terms and immediately following the shots by Ah Wei, had never had any difficulty. Upon cross-exseveral other shots were fired by a party or amination the witness was asked, “Was this parties from across the street. But by whom defendant, Un Dong, among the parties who the latter shots were fired, or whom they assaulted that doorkeeper?” to which he anwere fired at, was not disclosed. These facts, swered, “Yes, sir; he had something to do in substance, were testified to by a number with it, too." The defendant's counsel then of Chinese witnesses, several of whom posi- asked, “What did he do?" to which question tively identified defendant as one of the as- the district attorney objected. The objection sailants. On the part of defendant, a large was sustained, and defendant was not pernumber of Chinese witnesses, and some white mitted to cross-examine the witness upon the witnesses, gave testimony tending strongly subject. The record does not disclose the to show that defendant was not present at ground of the objection, but the question was the time of the assault, and did not partici. plainly in the line of proper cross-examinapate therein. One Wheeler, a peace officer or tion, and upon a: point of vital importance to watchman in Chinatown, testified that he the defendant. The witness having assigned was in a restaurant near the place of the the result of the affair at the theater as the shooting, and ran out on the sidewalk, where sole ground for the defendant's mulice tohe could see the parties before the second shot wards himself, and the only motive for the was fired; that he saw Ah Bong's assailants, subsequent assault upon him, it was very and recognized them, and that defendant was material for the defendant to rebut the statenot one of them, but that one Toi Soon did ments of the witness in this regard, and to the shooting. Another white witness, Jones, show, if he could, by the cross-examination who was the doorkeeper at the Chinese of the witness, that the latter was mistaken, theater, testified that he had seen defendant and that defendant had in truth no participaenter the theater earlier in the evening, and tion in that affair, as defendant himself claimthat defendant was still in the theater when ed was the fact. This he might have been the shooting occurred. Other witnesses, in- able to accomplish, if permitted to properly cluding some police officers, testified that the cross-examine the witness, or at least have prosecuting witness, immediately after the so shaken the statements of the latter as to shooting, accused another party than defend- have turned the scales of justice in his favor. ant of doing the shooting. There was also The defendant was examined as a witness evidence tending to show that the trouble in his own behalf. His examination in chief grew out of differences between members of was confined to a denial of any participation rival tongs or societies; that the arrest and in the assault upon the prosecuting witness, prosecution of defendant, who it appeared Ah Bong, or that he was present on the ocwas the grand master or headman of one of casion, and a statement that he was in the the rival tongs, was an afterthought prompt- theater at the time; and a further denial of ed by a desire on the part of the wounded having taken part in the assault upon the dooikceper of the theater. In cross-examina- fense. While it is a dangerous practice to tion he was asked these questions by the undertake to characterize the effect of the prosecution: “Q. Who lives in that house evidence, in the sense in waich the language with you, where you live? Defendant's At- of the court was here used, we are not pretorney: We object to that as irrelevant and pared to say, in view of the evidence in the Immaterial. (Objection overruled. Defend- case, that the charge was prejudicially erant excepts.) A. I had servants that attend roneous. For the errors above pointed out, to my household matters. Q. Some women the judgment and order are reversed. live in that house? (Objected to and sustained.) Prosecuting Attorney: I think the

We concur: BEATTY, C. J.; GAprosecution has a right to show what this man ROUTTE, J.; McFARLAND, J. is engaged in, or his occupation or business. The Court: Why don't you? Prosecuting At

(4 Cal. Unrep. 970) torney: Q. Isn't it a fact that you live in a

CHAPMAN V. PENNIE. (No. 15,520.) 1 house of prostitution ?” To this defendant objected, but the objection was overruled, and (Supreme Court of California. Feb. 5, 1895.) defendant answered: “No; it ain't a house DEFICIENCY JUDGMENT IN FORECLOSURE-ACTION of prostitutior. It is a house where they rent

AGAINST ADMINISTRATOR-DISCHARGE

IN BANKRUPTCY. rooms for boarding purposes." He was also

1. An action cannot be maintained against asked: "Are there any Chinese prostitutes an administrator for a deficiency judgment ou in that house?" and "Are there any Chinese foreclosure, where the decedent, the nortgagor, women in that house?" to which latter ques

was a nonresident at the time of commence

ment of the action to foreclose, remained away tions objections were sustained. This whole

from the state until after the sale thereunder, course of examination by the prosecution was and never appeared in the action. Improper, in the highest degree. The ques- 2. On the same day that a discharge in tions asked were not only in large part vio

bankruptcy was granted to B., the maker of a

note and mortgage, “from all debts and claims lative of the defendant's right to have his which are made provable against his estate," cross-examination confined to the subject- a stipulation was entered into between B. and matter of his testimony in chief (People v.

C., the owner of the note, whereby it was

agreed that the interest should be reduced. O'Brien, 66 Cal. 603, 6 Pac. 695; People v.

that the note should be extended, and that proHamblin, 68 Cal. 101, 8 Pac. 687), but the ceedings to enforce its payment should be disobvious purpose and undoubted effect of such missed. Held that, as it did not appear that course of examination were to degrade and

the agreement to pay the note was made after

the discharge, the parties did not intend to make injure defendant in the estimation of the jury.

a new contract on which the bankrupt could Its allowance was therefore erroneous, and be held, but only to extend the time and reduce clearly prejudicial. People v. Wells, 100 Cal.

the interest of the note and mortgage. 459, 34 Pac. 1078. Nor was the error cured or In bank. Appeal from superior court, city the prejudicial effect removed by the negative and county of San Francisco; Wm. T. Wal. answers to the questions allowed, or the sus- lace, Judge. taining of defendant's objection to others Action brought by E. W. Chapman against where, as here, the manifest purpose and James C. Pennie, administrator of the estate inevitable tendency of the questions were to of John Bensley, deceased, to compel him to injuriously affect the verdict. The error in pay a deficiency judgment on the mortgage such case lies in permitting an examination note of his decedent. Judgment rendered of that character. People v. Wells, supra.

for defendant. Plaintiff appeals. Affirmed. It was likewise error to allow the question,

T. M. Osmont, for appellant. Naphtaly, Aren't you connected with a gambling house Friedenreich & Ackerman, for respondent. with Yen Yick?” put by the prosecution, on cross-examination, to Chee Ying, a witness PER CURIAM. The deceased, John Bensfor defendant. It was not in response to any- ley, made his promissory note to the Nevada thing called out on his direct examination, Bank of San Francisco, November 24, 1873, and could have been intended but for one for the sum of $80,000, payable one year purpose,—that of discrediting the witness thereafter, at the rate of 144 per cent. per with the jury by a method wholly unsanc- month, and to secure the same executed to tioned in law. This character of examina- the Nevada Bank a mortgage upon certain tion appears to have been several times in

real estate in the city and county of Sap dulged in by the prosecution. We have had Francisco. January 19, 1881, the Nevada frequent occasions to animadvert upon simi- Bank commenced an action upon the prom. lar conduct in criminal cases, and it has been issory note against Bensley and others for uniformly held to be improper. Its repetition the foreclosure of the mortgage given as seis not only wholly inexcusable, but it is not curity for the payment therefor. Bensley in keeping with a proper appreciation by the was absent from the state, and service upon prosecuting officer of the functions of his him was had by the publication of summons. office.

Judgment was rendered in that action, Janu. It is contended that the court invaded the ary 5, 1882, for the foreclosure of the mort. province of the jury in charging thein that gage and the sale of the premises, and pro there was an “irreconcilable conflict" in the viding that in case of a deficiency in the evidence, as between the prosecution and de- proceeds of the sale the judgment for such

• Rehearing denied.

deficiency should be docketed against the de- cree is not available by reason of the fact fendant, Bensley. Under this judgment an that his discharge was based upon an agreeorder of sale was issued to the sheriff of the ment reserving the creditors' rights against city and county of San Francisco; and on him. The decree itself is, however, absolute the 10th of August, 1882, he returned the or- and without limitation. We cannot in this der of sale, from which it appeared that, action look into the agreement for the purafter applying the proceeds of the sale upon pose of determining whether the decree is in the judgment, there was a deficiency of $37, accordance with that agreement. If for any 721.51. Judgment for this deficiency was reason the decree is other than should have then docketed by the clerk against Bensley. been rendered, the parties affected thereby December 10, 1889, the Nevada Bank assign- should have applied for its correction to the ed the said promissory note to T. M. Os- court which pronounced it. Upon a collatmont, and on the 21st of May, 1890, Osmont eral attack we can only look at the language assigned the same to the plaintiff. The in which it is expressed. It is not impossiplaintiff has brought this action upon the ble that the agreement referred to, and aforesaid promissory note, setting forth in which was made in July, 1877, was vacated his complaint that the sum of $37,721.51. and annulled by the parties themselves prior with interest, is unpaid thereon, and alleg. to the entry of the decree of discharge. For ing that on the 26th of May, 1890, he pre- the purpose of sustaining the action of the sented his claim for the said deficiency to court we are to so hold, if necessary. the defendant, as the administrator of Bens- It is contended, however, that if it must ley's estate, for allowance, and that it was be held that Bensley was released from bis by him rejected. Judgment was rendered liability on this note by the discharge in for the defendant in the court below, and bankruptcy, yet he is liable for the debt unthe plaintiff has appealed directly therefrom der the agreement made March 20, 1878. upon the judgment roll alone, without any The agreement, as averred and found, is as statement or bill of exceptions.

follows: “That on the 20th day of March, In his brief herein counsel for appellant | 1878, the said John Bensley and the said states: “The sole question involved in the James Coffin, while the said Coffin was the case-assuming that such defense may be owner and holder of said promissory note, made without pleading-is whether an ac. entered into an agreement in writing by tion can be maintained against an adminis- which it is covenanted and agreed that the trator for a deficiency arising upon the sale interest of said promissory note should be of mortgaged premises pursuant to a decree reduced to eight (8) per cent. per annum, of foreclosure against the decedent in his and that said interest should be punctually lifetime, in a case where the decedent, the paid, and that the time of the payment of mortgagor, was a nonresident of this state said promissory note should be extended to at the time of the commencement of the ac- the 1st day of November, 1880, and that said tion to foreclose, remained absent from the note should be punctually paid; and, furstate until after the foreclosure and sale thermore, that said certain proceedings therethereunder, and until his death, and never tofore instituted by the said James Coffin to appeared in the action, no jurisdiction hav- enforce the payment of said promissory note ing been acquired except by publication of should be dismissed, which said proceedings summons." This precise question was de- were accordingly dismissed." It is plain, termined in accordance with the contention we think, that this stipulation was not unof appellant in Blumberg v. Birch, 99 Cal. derstood or intended by the parties to have 416, 34 Pac. 102, and in the more recent case the effect now claimed for it. The note was of Felton v. West, 102 Cal. 266, 36' Pac. 676, secured by a mortgage, and no one supposed both of which decisions were, however, ren- that as to the security the debt was dischardered after the appeal had been taken in the ged by the proceedings in bankruptcy. The present case. February 27, 1877, Bensley parties believed the debt preserved by the was adjudged a bankrupt by the district previous agreement. The motive of Benscourt of the United States for the district of ley doubtless was to procure time to pay off California, and on March 20, 1878, that court and discharge the mortgage, and the agree. rendered its judgment granting Bensley : ment could have had no other purpose than discharge in bankruptcy, by which it order- to afford Bensley this privilege. It does not ed that he be “forever discharged from all appear that it was made after the discharge. debts and claims which are made provable It bears the same date. As it was shown against his estate, and which existed on the that the debt had been discharged, it was in5th day of February, 1877, on which day the cumbent upon the plaintiff to show that the petition for adjudication was filed against bankrupt had agreed, after the discharge, to him, excepting such debts, if any, as are by pay the debt, and the action should have law exempted from the operation of a dis- been based on the new agreement. charge in bankruptcy." The note in the ties did not intend to make a new contract present action was provable against Bens- which should supersede the note and mortley's estate, and by the terms of the decree gage. It merely extended the time and rehe was discharged therefrom. Counsel for duced the interest stipulated in the note and appellant in his brief contends that this de- mortgage. The judgment is affirmed.

The par

(106 Cal. 62)

charged upon the ground that they were ROUNTREE v. I. X. L. LIME CO. (No. 15,- committed without reasonable or probable 745.)

cause. The specific charge is that they em(Supreme Court of California. Feb. 2, 1895.)

bezzled certain fruit which was received APPEAL-TRIFLING ERROR.

by them in the county of Contra Costa under An appeal from a judgment, upon a

a contract by which they agreed to incur trivial error in the computation of interest, is certain expenses for packing, shipping, etc., without merit.

and to sell the fruit in Eastern markets for Department 1. Appeal from superior court, account of the growers on commission. The Santa Cruz county; J. H. Logan, Judge. evidence in the deposition shows that they

Action by Rountree against I. X. L. Lime did with the fruit precisely what they con-
Company. There was judgment for plaintiff, tracted to do, but they failed to pay over to
and defendant appeals. Judgment atfirmed. the growers the whole amount of their share
Z. N. Goldsby, for appellant. L. F. Smith,

of the proceeds. It is clear from the evi. for respondent.

dence that there was no embezzlement of

the fruit. If any embezzlement has been PER CURIAM. The appeal in this case is

committed it was of the proceeds, and was without merit, and was evidently taken for

committed in San Francisco, and not in Condelay. It is brought here upon the judgment

tra Costa. The magistrate who issued this roll alone, without any exception to the suf

commitment (a justice of the peace of Conficiency of the evidence to sustain the find

tra Costa county) had no jurisdiction of the

only offense which the evidence has the ings of fact, and the judgment as entered follows the conclusions of law found by the

slightest tendency to establish. Prisoners court. In these conclusions of law the court

discharged. finds that the plaintiff "is entitled to judgment for the sum of $638.55, with interest

(105 Cal. 504) thereon from the 1st day of September, 1893,

PEOPLE v. COLLINS. (No. 21,129.) to this date (February 17, 1894), and now

(Supreme Court of California. Jan. 5, 1895.) amounting to $23.70, with costs of suit."

INFORMATION-NEGATIVING FEDERAL JURISDICTION Upon a proper computation the interest upon

-IMPANELING JURY-QUALIFICATION, the principal sum of the judgment would

IMPEACHING WITNESS. amount to $20.70 instead of $23.70, and the 1. Since the jurisdiction of a state over latter sum is manifestly a clerical error,

crimes committed within its territory is gen

eral, and that of the United States exceptional, which would have been corrected by the

depending on the fact of purchase of land with court below upon having its attention called the consent of the state legislature for forts, to the matter. To appeal from a judgment

arsenals, and other needful buildings, it is not upon a trivial error in the computation of in

necessary to negative, in an indictment or in

formation in the state courts, the jurisdiction terest, when the entire relief sought could

of the federal courts. have been obtained upon a mere application 2. The absence of a venireman, when his

name is called in a criminal case, does not neto the trial court, is essentially frivolous, and

cessitate a suspension of proceedings unt merits reproof. The superior court is di

attachment can be served, but the court may rected to make the proper correction in its fill the panel from the veniremen present. computation of interest, and thereupon the 3. An opinion as to the guilt of a defendjudgment will stand affirmed. The costs of

ant in a criminal case, based on newspaper

statements, does not disqualify one from actthis appeal are to be paid by the appellant, ing as a juror, where he testifies that the opinand the respondent is allowed the sum of $100 ion will not prevent him from acting impardamages as a part of the costs of the appeal.

tially.

4. A prejudice against the defense of insanity in criminal cases does not disqualify a juror, where no such defense is made or con

templated. (4 Cal.. Unrep. 969)

5. The fact that jurors summoned on a Ex parte COOK et al. (No. 21,197.) special venire fail to answer when called in the (Supreme Court of California. Feb. 4, 1895.) morning does not render it erroneous to put

their names in the box in the afternoon when JURISDICTION OF Justice.

they appear, though the names of those put A justice of the peace has no jurisdiction in the box in the morning are not exhausted. of the crime of embezzlement committed in 6. Where a juror on a murder trial testianother county.

fies that he has conscientious scruples against

the infliction of the death penalty, and a chalPetition by Joseph E. Cook and Thomas

lenge by the people on this ground is sustained, E. Langley for habeas corpus and release the court does not abuse its discretion in refrom commitment by a justice of the peace. fusing permission to the defendant's counsel Writ granted.

to further examine the juror.

7. In a murder trial, evidence is not ad. Myrick & Deering and Wm. S. Wells, for missible to contradict a witness who has testi

fied, on cross-examination, that he executed a petitioners. C. Y. Brown, for respondent.

bond for certain Chinamen under the internal

revenue law, but denied that he had been paid PER CURIAM. Habeas corpus. Petition for it. ers have been held to answer, after examina

8. Where the bill of exceptions does not

show that defendant was absent when the case tion before a committing magistrate, for the

was set for trial, it will be presumed that he crime of embezzlement, and ask to be dis- was present.

an

[ocr errors]

Commissioners' decision. In bank. Appeal from superior court, city and county of San Francisco; Edward A. Belcher, Judge.

Patrick J. Collins was convicted of murder in the first degree, and appeals. Affirmed.

G. E. Colwell and P. C. Harlan, for appellant. William S. Barnes, for the People.

HAYNES, C. Appellant was convicted of murder in the first degree. His motions for a new trial and in arrest of judgment, respectively, were denied, and he was duly sentenced to be hanged. He now appeals from the said judgment and the orders denying said motions.

The first qu presented goes to the sufficiency of the information. The information charges the defendant with a felony, “to wit, murder, committed as follows: The said Patrick J. Collins on the 9th day of October, A. D. eighteen hundred and ninety-three, at the said city and county of San Francisco, state of California, did then and there willfully," etc., kill and murder one Sarah Collins. It is argued on behalf of appellant that this information does not show that the offense was committed within the jurisdiction of the superior court of said city and county, because that court has not jurisdiction over all the territory embraced therein, but that the federal courts have exclusive jurisdiction of portions thereof, and that, therefore, the general allegation that the offense was committed “at the city and county of San Francisco" is not sufficient. This objection concedes the jurisdiction of the superior court over all places within the limits of the city and county, except as to such parts, if any, over which the United States has exclusive jurisdiction. This exception is created by the constitution of the United States, which provides: “Congress shall have power to exercise exclusive legislation over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, mag. azines, arsenals, dock yards and other needful buildings." Article 1, $ 8. Section 37 of our Political Code provides: "The state has the following rights over persons within its limits, to be exercised in the cases and in the manner provided by law: (1) To punish for crime." Both the general and state governments assume the jurisdiction of the state over all the territory within its borders, the cases provided for in the constitution of the United States being regarded as exceptions merely, the exceptions depending upon the fact of purchase with the consent of the legislature. The jurisdiction of the state being general, and that of the

v.39p.no.1-2

United States exceptional, it is not necessary to negative, in an indictment or information in the state courts, the jurisdiction of the federal courts. It is like an exception in an act creating or defining a pub. lic offense, in which case it is held that if the exception is not necessary to the description of the offense it need not be alleged or negatived, but is matter of defense simply. The mere ownership by the United States of land or property within the county does not show any federal jurisdiction over crimes committed upon it, as that fact does not oust the jurisdiction of the state; but the ownership must be acquired by purchase with the consent of the legislature, which is held to include the acquisition of property by eminent domain when that proceeding is authorized by the legislature. U. S. v. Cornell, 2 Mason, 60, Fed. Cas. No. 14,867; U. S. v. Jones, 109 U. S. 513, 3 Sup. Ct. 316. The federal jurisdiction, therefore, involves a question of fact, viz, a purchase by the United States, or the acquisition of property by a proceeding to condemn. it, and of such questions courts will not take judicial notice. It is a matter of common knowledge that the United States occupies buildings for customhouse, post office, and other purposes; but whether such buildings have been purchased by the United States, or whether they are occupied under leases from private owners, is a matter to be proved by the record of the conveyances. The information in question conforms to the statutory precedent given in section 951 of the Penal Code, in the particular under discussion, and as this court cannot, as matter of law, say that the federal courts have exclusive jurisdiction over any part of the city and county of San Francisco, the jurisdiction of the court is sufficiently alleged; and the objection here urged is not based on any evidence tending to show that the court did not, in fact, have jurisdiction. The exceptional character of the federal jurisdiction is further shown by the precedents used in the federal courts, which allege, not only that the place where the offense was committed was within the jurisdiction of such court, but that it was not within the jurisdiction of any state. What has been said points out the distinction between this case and the case of People v. Wong Wang, 92 Cal. 281, 28 Pac. 270. There the offense was a misdemeanor, over which, if committed in the city of Los Angeles, the police court had exclusive jurisdiction, and as such jurisdiction was given by law, and therefore must be judicially noticed, it did not appear upon the face of the information that the superior court had jurisdiction, since its jurisdiction depended upon a fact which did not appear, namely, that it was committed in that part of the county outside of the city. The motion in arrest of judgment in the case at bar was properly denied.

« ΠροηγούμενηΣυνέχεια »