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During the formation of the jury one of the veniremen failed to respond to his name when called by the clerk, whereupon defendant's attorney moved that an attachment issue for him, and that proceedings be stayed until he could be brought into court and examined touching his qualifications to serve as a juror; but, it appearing to the court that there was then present more than enough veniremen to fill the panel, the motion was denied. Like motions were made as to other jurors who failed to answer. This ruling was not erroneous. If the court were required to suspend proceedings until an attachment could be served and the juror's presence secured, the impanelment of a jury in a murder case would often prove almost interminable. The power of the court to excuse a qualified juror who is present is undoubted, and no reason is perceived why the court may not assume that the failure of the juror to answer is based upon a sufficient reason, and refuse to issue an attachment. Whether an attachment shall issue is within the discretion of the court. Section 238, Code Civ. Proc., provides that "any juror summoned, who willfully and without reasonable excuse fails to attend, may be attached and compelled to attend." In People v. Arceo, 32 Cal. 40, it was said: "But a qualified juror may be rejected, and still a jury of lawful men, against whom there is no objection, may be obtained. A party is entitled to a lawful jury, but no decision has been brought to our notice to the effect that under all circumstances he is, as a matter of absolute right, entitled to have the first juror called who has all the statutory qualifications." Unless the defendant has an "absolute right" under the law to have the first juror called present to be examined before he is required to proceed, it must appear that he has been prejudiced in order to make the error, if it is one, available, and no prejudice appears.

Defendant objected to the panel, "to lay the foundation for another motion," but what motion he intended to make, or what objection he made to the panel, does not appear. It was said by counsel that "in impaneling and drawing of special jurors the Code was not followed"; but in what respect is not stated, and does not appear. We have carefully gone over the proceeding relating to the securing of a jury, and find nothing to which the objection could properly apply.

Several objections were taken by the defendant to the disallowance of challenges for actual bias. The examination of these jurors disclosed the fact that, so far as any of them had formed an opinion as to the guilt of the defendant, such opinion was based upon newspaper statements, and that it would not prevent them from acting fairly and impartially as jurors. The rulings of the court upon these challenges were clearly

within the law as stated in People v. Wells, 100 Cal. 227, 34 Pac. 718. See Pen. Code, § 1076.

A juror, under examination touching his qualifications, said, in reply to a question, that he was a juror in the Goldenson Case. He was then asked: "You don't believe in the plea of insanity, do you? A. No, sir. Q. You don't believe in the plea of insanity in any case? A. Ordinarily not. No, sir." Counsel for defendant thereupon challenged the juror, and his challenge was denied. No defense based on insanity was made or contemplated. The challenge was properly denied.

Certain jurors summoned on a special. venire failed to answer when called in the morning. At 2 o'clock they were present, and their names were then put in the box, though the names of those put in the box in the morning were not exhausted. Defendant's objection thereto was properly overruled. They did not cease to be of the venire, because they did not appear in time to answer in the morning, nor could their names be properly placed in the box until they did appear.

The special venires ordered on December 27, 1893, and January 3, 1894, respectively, appear to have been in all respects regular. Besides, the challenge did not point out any supposed irregularity, nor is any ground of challenge shown in appellant's brief.

The juror Rudolph Jordan, on examination by the prosecution, testified that he had conscientious scruples against the infliction of the death penalty, and was challenged on behalf of the people upon that ground, and the challenge was allowed under subdivision 8, § 1074, Pen. Code. Counsel for defendant then asked permission to further examine the juror. The court did not abuse its discretion in refusing the request.

Counsel says in his brief that "placing names, once drawn and disposed of, in the box to be drawn again, is irregular and erroneous." We are not referred to any part of the record in which it appears that it was done, and we are unable to find any basis in the record for the point stated.

A witness for the prosecution, called in rebuttal, was asked upon cross-examination whether he executed a bond for certain Chinamen under the internal revenue laws, and whether he had not been paid for doing so. He answered that he had executed the bonds, but denied that he was paid for it. When the prosecution rested, counsel for defendant asked for time to get a witness by whom he stated he could prove that Kelly (the people's witness) was paid for going upon these bonds, and this for the purpose of discrediting Kelly as a witness. The evidence proposed was inadmissible.

It is said by counsel for defendant that the case should not have been set for trial during the absence of defendant. The minutes of the court show that on the day set

for the defendant to plead he entered his plea, and the case was set for December 9, 1893, and the minutes of December 9th show that the case was continued until the 27th. The bill of exceptions does not show that the defendant was not present, and it must therefore be presumed that he was.

Certain instructions asked by defendant were refused because already given in the instructions prepared by the court. Such refusal was proper. The instructions given were concise, clear, and in no respect subject to the remark of counsel that in effect the court charged "the jury with respect to matters of fact," in violation of the constitution.

It is not necessary to notice at length the remark of counsel as to the general effect of the rulings of the court being prejudicial to the defendant, while conceding that the several rulings, separately considered, were not prejudicially erroneous. If such rulings become so frequent as to possibly create a prejudice in the minds of the jury, the cause thereof is not chargeable to the court.

The jury were amply justified in finding the defense of an alibi not proven, and in finding the defendant guilty of murder in the first degree.

We find no error of which the appellant can complain. The trial seems to have been conducted with great care and fairness by the court below, and we have given the record such careful examination as the great gravity of the case demands. We advise that the judgment and order appealed from be affirmed.

We concur: TEMPLE, C.; SEARLS, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed.

(105 Cal. 459)

STEWART v. KYSER. (No. 15,521.)1 (Supreme Court of California. Jan. 5, 1895.) RESIDENCE OF VOTERS-INMATE OF VETERANS' HOME.

1. An inmate of the veterans' home, whose intention is to stay there as long as he lives, is a resident of the precinct in which the home is located, and qualihed to vote as such, though he became an inmate of the home solely be cause of his indigent circumstances.

2. Where a veteran becomes an inmate of the veterans' home with the intention of making it his permanent residence, the fact that he is supported at public expense does not prevent him from voting in the precinct where the home is located, though Const. art. 2, § 4, provides that for the purpose of voting no person shall be deemed to have gained or lost a residence while kept at any almshouse or other asylum at public expense. People v. Holden, 28 Cal. 137, followed.

Department 1. Appeal from superior court, Napa county; A. J. Buckles, Judge.

From a judgment for defendant, the contestant appeals. Affirmed.

F. E. Johnston and Henry Hogan (Garrett W. McEnerney, of counsel), for appellant. H. M. Barstow and T. B. Hutchinson, for respondent.

PER CURIAM. This is a proceeding by which the plaintiff contested the election of the defendant to the office of public administrator of the county of Napa, on the ground that a number of votes cast and counted for defendant, more than equal to the majority by which he had been declared elected, were illegal, solely because the persons who cast them were not residents of the precincts in which they voted. The court found that defendant had received 1,671 legal votes, and that the contestant had received only 1,656 votes, and thereupon adjudged that the defendant had been duly elected. The contestant, within 60 days after the entry of the judgment, appealed therefrom on the judgment roll, including a bill of exceptions as to matters of law and fact. The bill of exceptions shows that a number of the inmates of the veterans' home and inmates of the county infirmary and certain students of the Napa College voted at the election in the precincts of said county in which those institutions are respectively situated, and appellant contends that such inmates and students had not been residents of the county and of the precincts in which they respectively voted during the period of 30 days immedi ately prior to the election, and therefore that they were not qualified electors. Counsel for appellant have taken the testimony of their witness Killalee as a sample of that of some 16 other inmates of the veterans' home who were called and testified at the instance of plaintiff, and correctly represents it as follows: "Killalee came to the county and to the precinct and entered the home as an inmate on November 14, 1891. For some time prior to this date he was living on the charity of relatives and friends in the city and county of San Francisco, where he was elector. He made and subscribed the usual application, and obtained a permit to enter the home. He says that: "The reason I went there was because I was in indigent circumstances. Circumstances compelled me to go, and I would not have gone there had it not been for those circumstances. I had no desire to become a resident of the veterans' home or the precinct, other than as induced by my indigent circumstances. Since I have been there, I have been maintained and supported by the home. At the time I went there I did not have any fixed intention with respect to the length of time I should stay there. It was my intention to stop there as long as I lived. I have no other interests in the precinct except my relations with the home. I went there with the expectation of

an

Election contest by William Stewart against R. M. Kyser to determine the title to the office of public administrator of Napa county. | living and dying there,-making it my per

1 Rehearing denied.

I

manent home the balance of my life. I have no relatives or property interests in the Veterans' Home precinct. I have no other home. At the time I went here, it was my intention to make the home my permanent home. made it as a home to live and die,--as a refuge.'" And counsel for appellant further say: "There is no claim made that the witness was not a citizen of the United States, of lawful age, and having been in the state, county, and precinct a sufficient length of time to entitle him to vote; but the claim is that he was not a resident of the precinct and county in which he claimed his vote and voted, within the meaning of section 4 of article 2 of the constitution. The question presented is whether or not Killalee was a legal resident of the Veterans' Home precinct, and entitled to vote at the last general election." It being thus properly conceded that the witness had all the requisite qualifications of an elector of the Veterans' Home precinct, except the intention to abandon his former residence, and to adopt and make the veterans' home his place of residence, the controversy is still further reduced to the simple question of fact as to whether or not he went to the veterans' home and remained there with such intention. And upon this issue the uncontradicted testimony of the witness that such was his intention is abundantly sufficient to justify the finding of the court to that effect. The circumstances and motives by which he was induced to change his residence, so far as disclosed, are immaterial. The evidence upon the issue as to the qualifications of Killalee is, substantially, a fair sample of that applicable to each of the other inmates of the veterans' home, the infirmary, and the college, whose votes were adjudged by the court to have been legal. In other words, if Killalee was a qualified elector of the precinct in which he voted, the judgment is right.

It is contended for appellant, however, that Killalee could not have gained a residence for the purpose of voting at the veterans' home while there as a beneficiary at public expense, for the reason that the gaining of such residence is prohibited by the fourth section of the second article of the constitution of this state, which is as follows: "For the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this state or of the United States, or of the high seas; nor while a student at any seminary of learning; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison." As construed by our supreme court in the case of People v. Holden, 28 Cal. 137, this section does not have the effect claimed for it by counsel for appellant. In that case the qualification of soldiers to vote while employed in the service of the United States was questioned, and it was decided that their

presence in Mendocino county, while thus ‹ployed in the service of the United States, did not "preclude them from acquiring a residence in Mendocino, if disposed to do so." The court further said: "That it was their intention to acquire a domicile in Mendocino county sufficiently appears from the evidence. Such being the case, there is nothing in the constitutional provision in question (which is merely declaratory of the common law) which stands in the way of their doing so." Thus their residence for the purpose of voting in Mendocino county was made to depend upon proof of their intention to make that county their place of residence while they were there present in the service of the United States; there being no question that they had all other requisite qualifications of electors. Whatever may be said of some portions of the language used arguendo in the opinion of Chief Justice Sanderson in that case, the decision is clearly in point for the respondent in this case, and upon the authority of that decision the judgment of the trial court in this case is affirmed.

(105 Cal. 434)

TREWEEK v. HOWARD et al. (No. 15,215.) (Supreme Court of California. Jan. 5, 1895.) SURETIES-DEMAND - JOINDER OF CAUSES OF ACTION-DECREE OF DISTRIBUTION-LIABILITY ON EXECUTOR'S BOND.

1. Civ. Code, § 2844, which confers on a surety all the rights of a guarantor, does not render demand or notice necessary to fix the liability of surety, unless expressly required by the contract, since section 2807 provides that a guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal without demand or notice.

2. Where a complaint joins several causes of action, it is not necessary to repeat at length the allegations of the first count in the succeedings counts, but it is necessary to refer to such allegations specifically, and state that they are to be taken as part of the cause of action alleged in such succeeding counts.

3. A decree of distribution, rendered after final accounting by an executor, is, in the ab sence of fraud, binding on the executor and his sureties, though the latter are not parties to the proceeding.

4. The fact that an executor had, during the lifetime of the testator, and while acting as his agent, embezzled money of the testator, and that the sureties on his bond were ignorant thereof, as well as of his insolvency, does not relieve them from liability under a decree of distribution treating the amount so embezzled as money of the estate in the executor's hands, since Code Civ. Proc. § 1447, expressly renders an executor liable for a debt due to the testator as for so much money in his hands belonging to the estate.

Department 1. Appeal from superior court, city and county of San Francisco; J. P. Hoge, Judge.

Action by George Treweek against William H. Howard, H. J. Brittan, and Arthur W. Bowman on the bond of Howard, as executor of Nicholas Treweek, deceased. From a judgment for plaintiff, defendants appeal. Affirmed.

Henry P. Bowie, for appellant Wm. H. | demanded payment thereof from the execuHoward. James L. Crittenden, for appellant H. J. Brittan. C. Bartlett, Stanly & Hayes, and McEnerney & Bradley, for respondent.

tor, which he has neglected and refused to pay. That thereafter plaintiff informed the other defendants of such demand and refusal, and demanded from them, and each of them, payment, which they have neglected and refused to make, etc. The remaining three counts of the complaint are based on the demands of John Treweek, Jane Pender, and Elizabeth West, respectively, who were

PER CURIAM. This is an action to recover from the defendants the sum of $10,000 upon the official bond of defendant Bowman, executed by him as principal, and by the other defendants as sureties, for the faithful discharge of the duties of said Bow-legatees and distributees of like amounts unman as executor of the last will of Nicholas Treweek, deceased. The cause was tried by the court without the intervention of a jury, and written findings filed, upon which judgment was entered in favor of plaintiff for $10,260.60, interest and costs. The sureties, Howard and Brittan, appeal from the final judgment, and from an order denying their motion for a new trial. Defendant Bowman made default.

There were four counts in the second amended complaint. Defendants Howard and Brittan demurred to each of said several counts separately, upon various grounds, among which were, as to each and every of them, that they failed to state facts sufficient to constitute a cause of action, and, as to the second, third, and fourth counts, that said complaint failed to allege a demand by the plaintiff or his assignor upon the defendant Bowman, and the default of said Bowman prior to a demand upon the defendants Howard and Brittan, the sureties of said Bowman. The following synopsis of the complaint will serve to an understanding of the points made on demurrer. The first count thereof alleges in apt terms the death of the testator, Nicholas Treweek; the admission of his will to probate; the grant of letters testamentary to the defendant Bowman upon his taking the oath required by law and filing a bond with sufficient sureties in the sum of $34,000; the filing of the bond (which is set out in full in the complaint, and is in the ordinary form), with the defer dants Howard and Brittan as sureties thereon; the taking of the oath of office by Bowman, as required by law; issue of letters testamentary, etc., to said Bowman, which remain unrevoked, etc. That Bowman, as such executor, immediately after the issuance of such letters, received, and has in his possession as executor, more than $16,000 of money belonging to the estate. That on or about January 3, 1884, the executor presented and filed his final account, with a petition for the distribution of said estate, in which account he charged himself with $18,305.23, less expenses and commissions, leaving a balance of $15,000 subject to distribution. January 15, 1884, by an order and decree of the superior court, the final account was allowed and settled, and the executor adjudged to have in his hands and be chargeable as such for said $15,000, which, by said decree, was distributed, and the executor adjudged to pay to plaintiff $2,500. That thereafter plaintiff

der the will and decree of distribution, and who had assigned their claims to plaintiff before suit brought. In said last three counts the pleader, instead of stating at length the several proceedings had up to the decree of distribution, made use of the following language, repeating the same substantially in each count, viz.: "The plaintiff here repeats and alleges all the matters and things set forth and alleged in the subdivisions of this second amended complaint, numbered 1, 2, 3, 4, and prays that the same be taken and deemed a part of this cause of action, the same as though herein set out at length." The several counts then contain averments as to the decree of distribution to the legatees severally of $2,500 each, as in the first count, except as to the names of the several legatees; that defendant Bowman has not, nor have the other defendants, paid the same, or any part thereof; that demand of payment of said sum has been made from the defendants, and each of them, and that they still fail and refuse to pay. The several counts then aver an assignment of the demands by the several legatees and distributees to plaintiff.

The contention of appellants in support of the demurrer to the complaint is twofold: (1) That the complaint failed to allege a demand by plaintiff or his assigns upon Bowman, and the default of said Bowman prior to a demand upon or notice to the defendants, Howard and Brittan, who were merely sureties of said Bowman, and only liable in the event of his default. (2) That the second, third, and fourth counts of the complaint were each defective, in not stating the essential facts constituting the causes of action otherwise than by a mere reference to paragraphs 1, 2, 3, 4 of the first count.

As to the first point, it may be said that much of the difficulty and confusion involved in the proposition arises from grouping together guarantors and sureties, and attempting the difficult task of a general definition applicable to both. Baylies, in his work on Sureties and Guarantors, at section 1, says: "In fact, it is impossible to frame a definition of either term which will clearly distinguish the one contract from the other, and still be in harmony with the dicta in the many cases in which courts have attempted, by the application of some general rule to bring a contract which might equally well be classed with either," etc. The words "surety" and "guarantor" are often used as synonymous

terms, but they are not so in fact. Both are bound for another person. A surety is, however, usually bound with his principal by the same instrument, executed at the same time and on the same consideration. Our Civil Code (section 2831) defines a surety as follows: "A surety is one who, at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor." The same Code also provides (section 2814) that "a surety has all the rights of a guarantor, whether he becomes personally responsible or not." This cannot include the right to demand or notice, for the reason that under section 2807 "a guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal, and without demand or notice." Cases often occur in which it is difficult to determine whether a given contract is one of surety or of guaranty, and it is believed the object of the Code was to place the contract of guaranty on the same plane with that of surety by dispensing with the necessity of demand and notice in the former, as the courts, in a majority of instances, bave in the latter. Coburn V. Brooks, 78 Cal. 443, 21 Pac. 2, and Chafoin v. Rich, 77 Cal. 476, 19 Pac. 882, have settled the doctrine in this state that no demand or notice is necessary to fix the liability of a surety, except in cases where such demand and notice are expressly required by the language of the contract. It follows that, conceding that the complaint failed to properly aver demand and notice, it was immaterial, and hence that the first contention of appellants cannot be maintained.

By

2. It was unnecessary to repeat at length in each of the succeeding counts of the complaint the facts stated in the first count and leading up to the decree of distribution. the language used in each count, and the prayer that they be deemed and taken a part of the cause of action, they were made a part thereof (as is often done in the case of exhibits) as effectually as though restated in full. The practice has become quite prevalent, and where the reference to a preced

count is definite and certain, as in this case, there seems no serious objection to it. In the cases cited by appellant there was, with one exception, no reference to or adoption of the previous allegations, and hence the counts were held defective. In one of them (Haskell v. Haskell, 54 Cal. 262) it was said, after referring to the fact that marriage, residence, etc., were not alleged in the second count of the complaint: "Nor is there any reference in it to the allegations in the first count as to such marriage or residence;" and again: "Treating the allegations in the first count as to marriage and residence as mere matters of inducement, they should have been repeated or referred to in the subsequent count, and the omission

to either repeat or refer to them is fatal." In Pennie v. Hildreth, 81 Cal. 127, 22 Pac. 398, which is the exception referred to, there is language deprecating this method of pleading, but it was not necessary to the determination of the case, and may be regarded as obiter dicta. We think the rule enunciated by McFarland, J., in his dissenting opinion in the same case, and in the later case of Green v. Clifford, 94 Cal. 49, 29 Pac. 331, to be the correct one.

The other objections to the complaint are unimportant, and the demurrer was properly overruled.

It is further contended by appellants that the court erred in sustaining plaintiff's demurrer to the defendants' cross complaint, and in refusing to allow and in excluding any and all evidence to sustain defendants' fifth defense. These errors are assigned separately, but, as they involve the same question, and as the fifth defense set out in the answer and the cross complaint are substantially the same, we shall consider them together, as appellants have argued them. Briefly stated, the allegations of the fifth answer and cross complaint are: (1) Bowman, as executor, never received any moneys belonging to the estate of Nicholas Treweek. (2) That Bowman, as agent of Treweek during the lifetime of the latter, received, appropriated, and embezzled the moneys which he fraudulently returned in his inventory. (3) Said Bowman was insolvent from the time of such embezzlement up to suit brought. (4) The money pretended to be accounted for by Bowman and included in de cree of distribution was embezzled by him in 1878, while agent of testator, and he was insolvent, and by reason thereof never able to repay it. (5) Treweek died more than four years after the embezzlement. (6) Bowman induced the sureties to go upon his bond by false and fraudulent statements, whereby they were induced so to do; and to cover up his embezzlement, and to promote the interest of plaintiff and his assignors at the expense of defendants, and to deceive the court, and to have made and entered a fraudulent decree of distribution, filed a false account, stating he had $15,010 in his hands as executor, which he knew was false, whereby the court was imposed upon, and induced thereby to approve the same, and decree a distribution. (7) Defendants here knew nothing of these facts, or of any fraud of Bowman, or of his objects or purposes. (8) The plaintiff and his assignors knew all of the foregoing facts and of all the fraudulent acts of Bowman in 1885. (9) Plaintiff and his assignors, with intent to defraud the defendants, pretend and claim that said defendants are sureties on the bond, and liable to pay said $15,000, by virtue of the decree of distribution; and that the assignments to plaintiff were with a view to defraud defendants. (10) The time for modifying or setting aside the decree of dis

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