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During the formation of the jury one of within the law as stated in People v. Wells, the veniremen failed to respond to his name 100 Cal. 227, 34 Pac. 718. See Pen. Code, when called by the clerk, whereupon de- § 1076. fenda nt's attorney moved that an attach- A juror, under examination touching his ment issue for him, and that proceedings be qualifications, said, in reply to a question, stayed until he could be brought into court that he was a juror in the Goldenson Case. and examined touching his qualifications He was then asked: “You don't believe in to serve as a juror; but, it appearing to the the plea of insanity, do you? A. No, sir. court that there was then present more than Q. You don't believe in the plea of insanity enough veniremen to fill the panel, the mo- in any case? A. Ordinarily not. No, sir." tion was denied. Like motions were made Counsel for defendant thereupon challenged as to other jurors who failed to answer. the juror, and his challenge was denied. This ruling was not erroneous. If the court | No defense based on insanity was made or were required to suspend proceedings un- contemplated. The challenge was properly til an attachment could be served and the denied. juror's presence secured, the impanelment Certain jurors summoned on a special of a jury in a murder case would often venire failed to answer when called in the prove almost interminable. The power of morning. At 2 o'clock they were present, the court to excuse a qualified juror who is and their names were then put in the box, present is undoubted, and no reason is per- though the names of those put in the box ceived why the court may not assume that in the morning were not exhausted. Dethe failure of the juror to answer is based fendant's objection thereto was properly upon a sufficient reason, and refuse to issue overruled. They did not cease to be of the an attachment. Whether an attachment venire, because they did not appear in time shall issue is within the discretion of the to answer in the morning, nor could their court. Section 238, Code Civ. Proc., pro- names be properly placed in the box until vides that “any juror summoned, who will- they did appear. fully and without reasonable excuse fails to The special venires ordered on December attend, may be attached and compelled to 27, 1893, and January 3, 1894, respectively, attend.” In People v. Arceo, 32 Cal. 40, it appear to have been in all respects regular. was said: “But a qualified juror may be re

Besides, the challenge did not point out any jected, and still a jury of lawful men, supposed irregularity, nor is any ground of against whom there is no objection, may be chailenge shown in appellant's brief. obtained. A party is entitled to a lawful The juror Rudolph Jordan, on examinajury, but no decision has been brought to tion by the prosecution, testified that he had our notice to the effect that under all cir- conscientious scruples against the infliction cumstances he is, as a matter of absolute of the death penalty, and was challenged on right, entitled to have the first juror called behalf of the people upon that ground, and who has all the statutory qualifications." the challenge was allowed under subdivision Unless the defendant has an "absolute 8, § 1074, Pen. Code. Counsel for defendright" under the law to have the first juror ant then asked permission to further excalled present to be examined before he is amine the juror. The court did not abuse required to proceed, it must appear that he its discretion in refusing the request. has been prejudiced in order to make the Counsel says in his brief that “placing error, if it is one, available, and no preju- names, once drawn and disposed of, in the dice appears.

box to be drawn again, is irregular and erDefendant objected to the panel, “to lay roneous." We are not referred to any part the foundation for another motion," but of the record in which it appears that it was what motion he intended to make, or what done, and we are unable to find any basis objection he made to the panel, does not in appear. It was said by counsel that “in impaneling and drawing of special jurors rebuttal, was asked upon cross-examination the Code was not followed”; but in what whether he executed a bond for certain respect is not stated, and does not appear. China men under the internal revenue laws, We have carefully gone over the proceeding and whether he had not been paid for doing relating to the securing of a jury, and tind so. He answered that he had executed the nothing to which the objection could prop- bonds, but denied that he was paid for it. erly apply.

When the prosecution rested, counsel for Several objections were taken by the de. defendant asked for time to get a witness fendant to the disallowance of challenges for by whom he stated he could prove that actual bias. The examination of these ju. Kelly (the people's witness) was paid for rors disclosed the fact that, so far as any of going upon these bonds, and this for the them had formed an opinion as to the guilt purpose of discrediting Kelly as a witness. of the defendant, such opinion was based The evidence proposed was inadmissible. upon newspaper statements, and that it It is said by counsel for defendant that would not prevent them from acting fairly the case should not have been set for trial and impartially as jurors. The rulings of the during the absence of defendant. The min. court upon these challenges were clearly | utes of the court show that on the day set

9

"A witness for the prosecution, called in

for the defendant to plead he entered his From a judgment for defendant, the contestplea, and the case was set for December 9, ant appeals. Affirmed. 1893, and the minutes of December 9th show that the case was continued until the 27th.

F. E. Johnston and Henry Hogan (Garrett The bill of exceptions does not show that

W. McEnerney, of counsel), for appellant. the defendant was not present, and it must

H. M. Barstow and T. B. Hutchinson, for retherefore be presumed that he was.

spondent. Certain instructions asked by defendant were refused because already given in the PER CURIAM. This is a proceeding by instructions prepared by the court. Such which the plaintiff contested the election of refusal was proper. The instructions given the defendant to the office of public adminiswere concise, clear, and in no respect subject trator of the county of Napa, on the ground to the remark of counsel that in effect the that a number of votes cast and counted for court charged “the jury with respect to mat- defendant, more than equal to the majority ters of fact," in violation of the constitution. by which he had been declared elected, were

It is not necessary to notice at length the illegal, solely because the persons who cast remark of counsel as to the general ef- them were not residents of the precincts in fect of the rulings of the court being prej. which they voted. The court found that deudicial to the defendant, while conceding fendant had received 1,671 legal votes, and that the several rulings, separately consid- that the contestant had received only 1,656 ered, were not prejudicially erroneous. Ir votes, and thereupon adjudged that the desuch rulings become so frequent as to pos- fendant had been duly · elected. The consibly create a prejudice in the minds of the testant, within 60 days after the entry of the jury, the cause thereof is not chargeable to judgment, appealed therefrom on the judg. the court.

ment roll, including a bill of exceptions as The jury were amply justified in finding to matters of law and fact. The bill of exthe defense of an alibi not proven, and in ceptions shows that a number of the inmates finding the defendant guilty of murder in

of the veterans' home and inmates of the the first degree.

county infirmary and certain students of the We find no error of which the appellant Napa College voted at the election in the can complain. The trial seems to have been

precincts of said county in which those insticonducted with great care and fairness by

tutions are respectively situated, and appelthe court below, and we have given the rec

lant contends that such inmates and students ord such careful examination as the great had not been residents of the county and gravity of the case demands. We advise

of the precincts in which they respectively that the judgment and order appealed from

voted during the period of 30 days immedibe affirmed.

ately prior to the election, and therefore that

they were not qualified electors. Counsel for We concur: TEMPLE, C.; SEARLS, C.

appellant have taken the testimony of their

witness Killalee as a sample of that of some PER CURIAM. For the reasons given in

16 other inmates of the veterans' home who the foregoing opinion, the judgment and or

were called and testified at the instance der appealed from are affirmed.

of plaintiff, and correctly represents it as

follows: "Killalee came to the county and (105 Cal. 459)

to the precinct and entered the home as an STEWART V. KYSER. (No. 15,521.)'

inmate on November 14, 1891. For some

time prior to this date he was living on the Supreme Court of California. Jan. 5, 1895.)

charity of relatives and friends in the city RESIDENCE OF VOTERS-INMATE OP VETERANS' HOME.

and county of San Francisco, where he was 1. An inmate of the veterans' home, whose

elector. He made and subscribed the intention is to stay there as long as he lives, usual application, and obtained a permit to is a resident of the precinct in which the home enter the home. He says that: “The reason is located, and qualiħed to vote as such, though

I went there was because I was in indigent he became an inmate of the home solely because of his indigent circumstances.

circumstances. Circumstances compelled me 2. Where a veteran becomes an inmate of to go, and I would not have gone there had the veterans' bome with the intention of mak

it not been for those circumstances. I had ing it his permanent residence, the fact that he is supported at public expense does not pre

no desire to become a resident of the veterans' vent him from voting in the precinct where the home or the precinct, other than as induced bome is located, though Const. art. 2, § 4, by my indigent circumstances. Since I have provides that for the purpose of voting no per

been there, I have been maintained and supson shall be deemed to have gained or lost a residence while kept at any almshouse or other ported by the home. At the time I went asylum at public expense. People v. Holden, there I did not have any fixed intention with 28 Cal. 137, followed.

respect to the length of time I should stay Department 1. Appeal from superior court, there. It was my intention to stop there as Napa county; A. J. Buckles, Judge.

long as I lived. I have no other interests in Election contest by William Stewart against the precinct except my relations with the R. M. Kyser to determine the title to the of. home. I went there with the expectation of fice of public administrator of Napa county. I living and dying there,-making it my per· Rehearing denied.

an

manent home the balance of my life. I have presence in Mendocino county, while thus comno relatives or property interests in the Vet- ployed in the service of the United States, erans' Home precinct. I have no other home. did not "preclude them from acquiring a At the time I went here, it was my intention residence in Mendocino, if disposed to do so." to make the home my permanent home. I The court further said: “That it was their made it as a home to live and die,--as a ref- intention to acquire a domicile in Mendocino nge.'" And counsel for appellant further county sufficiently appears from the evidence. say: "There is no claim made that the wit- Such being the case, there is nothing in the ness was not a citizen of the United States, constitutional provision in question (which is of lawful age, and baving been in the state, merely declaratory of the common law) which county, and precinct a sufficient length of stands in the way of their doing so." Thus time to entitle him to vote; but the claim is their residence for the purpose of voting in that he was not a resident of the precinct and Mendocino county was made to depend upon county in which he claimed his vote and proof of their intention to make that county voted, within the meaning of section 4 of arti- their place of residence while they were there cle 2 of the constitution. The question pre- present in the service of the United States; sented is whether or not Killalee was a legal there being no question that they had all resident of the Veterans' Home precinct, and other requisite qualifications of electors. entitled to vote at the last general election." Whatever may be said of some portions of It being thus properly conceded that the wit- the language used arguendo in the opinion of ness had all the requisite qualifications of an Chief Justice Sanderson in that case, the deelector of the Veterans' Home precinct, ex- cision is clearly in point for the respondent cept the intention to abandon his former resi- in this case, and upon the authority of that dence, and to adopt and make the veterans' decision the judgment of the trial court in home his place of residence, the controversy this case is atlirmed. 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

(105 Cal. 434) intention. And upon this issue the uncon- TREWEEK V. HOWARD et al. (No. 15,tradicted testimony of the witness that such

215.) was his intention is abundantly sufficient to (Supreme Court of California. Jan. 5, 1895.) justify the finding of the court to that effect. SURETIES-DEMAND – JOINDER OF CAUSES OF AC The circumstances and motives by which he TION-DECREE OF DISTRIBUTION-LIABIL was induced to change his residence, so far

ITY ox EXECUTOR's Boxd. as disclosed, are immaterial. The evidence

1. Civ. Code, $ 2844, which confers on a

surety all the rights of a guarantor, does not upon the issue as to the qualifications of Kil- render demand or notice necessary to fix the lialalee is, substantially, a fair sample of that bility of surety, unless expressly required by applicable to each of the other inmates of the

the contract, since section 2807 provides that a veterans' home, the infirmary, and the col

guarantor of payment or performance is liable

to the guarantee immediately upon the default lege, whose votes were adjudged by the court of the principal without demand or notice. to have been legal. In other words, if Killa- 2. Where a complaint joins several causes lee was a qualified elector of the precinct in

of action, it is not necessary to repeat at length

the allegations of the first count in the sucwhich he voted, the judgment is right.

ceedings counts, but it is necessary to refer to It is contended for appellant, however, that such allegations specifically, and state that they Killalee could not have gained a residence

are to be taken as part of the cause of action for the purpose of voting at the veterans'

alleged in such succeeding counts.

3. A decree of distribution, rendered after home while there as a beneficiary at public final accounting by an executor, is, in the abexpense, for the reason that the gaining of sence of fraud, binding on the executor and his such residence is prohibited by the fourth

sureties, though the latter are not parties to the section of the second article of the constitu

proceeding.

4. The fact that an executor had, during tion of this state, which is as follows: "For the lifetime of the testator, and while acting as the purpose of voting no person shall be

his agent, embezzled money of the testator, and

that the sureties on his bond were ignorant deemed to have gained or lost a residence by

thereof, as well as of his insolvency, does not reason of his presence or absence while em- relieve them from liability under a decree of ployed in the service of the United States, distribution treating the amount so embezzled nor while engaged in the navigation of the

as money of the estate in the executor's hands,

since Code Civ. Proc. § 1447, expressly renders waters of this state or of the United States, an executor liable for a debt due to the testaor of the high seas; nor while a student at tor as for so much money in his hands belongany seminary of learning; nor while kept at

ing to the estate. any almshouse or other asylum at public Department 1. Appeal from superior court, expense; nor while contined in any public city and county of San Francisco; J. P. Hoge, prison." As construed by our supreme court Judge. in the case of People v. Holden, 28 Cal. 137, Action by George Treweek against William this section does not have the effect claimed H. Howard, H. J. Brittan, and Arthur W. for it by counsel for appellant. In that case Bowman on the bond of lIoward, as executhe qualification of soldiers to vote while em- tor of Nicholas Treweek, deceased. From a ployed in the service of the United States judgment for plaintiff, defendants appeal. was questioned, and it was decided that their | Afiirmed.

Henry P. Bowie, for appellant Wm. H. demanded payment thereof from the execuHoward. James L. Crittenden, for appellant tor, which he has neglected and refused to H. J. Brittan. C. Bartlett, Stanly & Hayes, pay. That thereafter plaintiff informed the and McEnerney & Bradley, for respondent. other defendants of such demand and re

fusal, and demanded from them, and each of PER CURIAM. This is an action to re- them, payment, which they have neglected cover from the defendants the sum of $10,- / and refused to make, etc. The remaining 000 upon the official bond of defendant Bow- three counts of the complaint are based on man, executed by him as principal, and by the demands of John Treweek, Jane Pender, the other defendants as sureties, for the and Elizabeth West, respectively, who were faithful discharge of the duties of said Bow- legatees and distributees of like amounts unman as executor of the last will of Nicholas der the will and decree of distribution, and Treweek, deceased. The cause was tried by who had assigned their claims to plaintiff bethe court without the intervention of a jury, fore suit brought. In said last three counts and written findings filed, upon which judg- the pleader, instead of stating at length the ment was entered in favor of plaintiff for several proceedings had up to the decree of $10,260.60, interest and costs. The sureties, distribution, made use of the following lanHoward and Brittan, appeal from the final guage, repeating the same substantially in judgment, and from an order denying their each count, viz.: "The plaintiff here repeats motion for a new trial. Defendant Bowman and alleges all the matters and things set made default.

forth and alleged in the subdivisions of this There were four counts in the second second amended complaint, numbered 1, 2, amended complaint. Defendants Howard | 3, 4, and prays that the same be taken and and Brittan demurred to each of said several deemed a part of this cause of action, the counts separately, upon various grounds, same as though herein set out at length." among which were, as to each and every of The several counts then contain averments them, that they failed to state facts sufficient as to the decree of distribution to the legato constitute a cause of action, and, as to tees severally of $2,500 each, as in the first the second, third, and fourth counts, that count, except as to the names of the several said complaint failed to allege a demand by legatees; that defendant Bowman has not, the plaintiff or his assignor upon the defend- nor have the other defendants, paid the same, ant Bowman, and the default of said Bow- or any part thereof; that demand of pay. man prior to a demand upon the defendants ment of said sum has been made from the Howard and Brittan, the sureties of said defendants, and each of them, and that they Bowinan. The following synopsis of the still fail and refuse to pay. The several complaint will serve to an understanding of counts then aver an assignment of the dethe points made on demurrer. The first mands by the several legatees and distribucount thereof alleges in apt terms the death tees to plaintiff. of the testator, Nicholas Treweek; the ad- The contention of appellants in support of mission of his will to probate; the grant of the demurrer to the complaint is twofold: (1) letters testamentary to the defendant Bow. That the complaint failed to allege a demand man upon his taking the oath required by by plaintiff or his assigns upon Bowman, and law and filing a bond with sufficient sureties the default of said Bowman prior to a dein the sum of $34,000; the filing of the bond mand upon or notice to the defendants, How(which is set out in full in the complaint, and ard and Brittan, who were merely sureties of is in the ordinary form), with the defer 1said Bowman, and only liable in the event ants Howard and Brittan as sureties thereon; of his default. (2) That the second, third, the taking of the oath of office by Bowman, and fourth counts of the complaint were each as required by law; issue of letters testa- defective, in not stating the essential facts mentary, etc., to said Bowman, which remain constituting the causes of action otherwise unrevoked, etc. That Bowman, as such ex- than by a mere reference to paragraphs 1, 2, ecutor, immediately after the issuance of 3, 4 of the first count. such letters, received, and has in his posses- As to the first point, it may be said that sion as executor, more than $16,000 of money much of the difficulty and confusion involved belonging to the estate. That on or about in the proposition arises from grouping toJanuary 3, 1884, the executor presented and gether guarantors and sureties, and attemptfiled his final account, with a petition for ing the difficult task of a general definition the distribution of said estate, in which ac- applicable to both. Baylies, in his work on count he charged himself with $18,305.23, less Sureties and Guarantors, at section 1, says: expenses and commissions, leaving a balance “In fact, it is impossible to frame a definition of $15,000 subject to distribution. January of either term which will clearly distinguish 15, 1881, by an order and decree of the su- the one contract from the other, and still be perior court, the final account was allowed in harmony with the dicta in the many cases and settled, and the executor adjudged to in which courts have attempted, by the applihave in his hands and be chargeable as such cation of some general rule to bring a confor said $15,000, which, by said decree, was tract which might equally well be classed distributed, and the executor adjudged to pay with either,” etc. The words "surety" and to plaintiff $2,500. That thereafter plaintiff guarantor" are often used as synonymous terms, but they are not so in fact. Both are to either repeat or refer to them is fatal." bound for another person.

A surety is, how- In Pennie v. Hildreth, 81 Cal. 127, 22 Pac. ever, usually bound with his principal by the 398, which is the exception referred to, there same instrument, executed at the same time is language deprecating this method of pleadand on the same consideration. Our Civil ing, but it was not necessary to the deCode (section 2831) detines a surety as fol- termination of the case, and may be regardlows: "A surety is one who, at the request of ed as obiter dicta. We think the rule enunanother, and for the purpose of securing to ciated by McFarland, J., in his dissenting him a benetit, becomes responsible for the opinion in the same case, and in the later performance by the latter of some act in fa- case of Green v. Clifford, 94 Cal. 49, 29 Pac. vor of a third person, or hypothecates prop-331, to be the correct one. erty as security therefor.” The same Code The other objections to the complaint are also provides (section 2814) that “a surety unimportant, and the demurrer was prophas all the rights of a guarantor, whether he erly overruled. becomes personally responsible or not." This It is further contended by appellants that cannot include the right to demand or notice, the court erred in sustaining plaintiff's defor the reason that under section 2807 "a murrer to the defendants' cross complaint, guarantor of payment or performance is lia and in refusing to allow and in excluding ble to the guarantee immediately upon the any and all evidence to sustain defendants' default of the principal, and without demand fifth defense. These errors are assigned sepor notice." Cases often occur in which it is arately, but, as they involve the same quesdifficult to determine whether a given con- tion, and as the fifth defense set out in the tract is one of surety or of guaranty, and it answer and the cross complaint are substanis believed the object of the Code was to tially the same, we shall consider them toplace the contract of guaranty on the same gether, as appellants have argued them. plane with that of surety by dispensing with Briefly stated, the allegations of the fifth the necessity of demand and notice in the answer and cross complaint are: (1) Bowformer, as the courts, in a majority of in- man, as executor, never received any moneys stances, bave in the latter. Coburn V. belonging to the estate of Nicholas Treweek, Brooks, 78 Cal. 443, 21 Pac. 2, and Chafoin (2) That Bowman, as agent of Treweek durv. Rich, 77 Cal. 476, 19 Pac. 882, have set- ing the lifetime of the latter, received, aptled the doctrine in this state that no de- propriated, and embezzled the moneys which mand or notice is necessary to fix the liability he fraudulently returned in his inventory. of a surety, except in cases where such de- (3) Said Bowman was insolvent from the mand and notice are expressly required by time of such embezzlement up to suit the language of the contract. It follows that, brought. (4) The money pretended to be acconceding that the complaint failed to prop- counted for by Bowman and included in deerly aver demand and notice, it was imma- cree of distribution was embezzled by him terial, and hence that the first contention of in 1878, while agent of testator, and he was appellants cannot be maintained.

insolvent, and by reason thereof never able 2. It was unnecessary to repeat at length to repay it. (5) Treweek died more than in each of the succeeding counts of the com- four years after the embezzlement. (6) Bowplaint the facts stated in the first count and man induced the sureties to go upon his leading up to the decree of distribution. By bond by false and fraudulent statements, the language used in each count, and the whereby they were induced so to do; and prayer that they be deemed and taken a part to cover up his embezzlement, and to proof the cause of action, they were made a mote the interest of plaintiff and his aspart thereof (as is often done in the case of signors at the expense of defendants, and to exhibits) as effectually as though restated deceive the court, and to have made and in full. The practice has become quite prev- entered a fraudulent decree of distribution, alent, and where the reference to a preced- filed a false account, stating he had $15,010 i1 count is definite and certain, as in this in his hands as executor, which he knew case, there seems no serious objection to was false, whereby the court was imposed it. In the cases cited by appellant there upon, and induced thereby to approve the was, with one exception, no reference to or same, and decree a distribution. (7) Deadoption of the previous allegations, and fendants here knew nothing of these facts, hence the counts were held defective. In or of any fraud of Bowman, or of his objects one of them (Haskell v. Haskell, 54 Cal. 262) or purposes. (8) The plaintiff and his asit was said, after referring to the fact that signors knew all of the foregoing facts and marriage, residence, etc., were not alleged in of all the fraudulent acts of Bowman in 1885. the second count of the complaint: "Nor (9) Plaintiff and his assignors, with intent is there any reference in it to the allegations to defraud the defendants, pretend and claim in the first count as to such marriage or resi- that said defendants are sureties on the dence;" and again: “Treating the allega- bond, and liable to pay said $15,000, by virtions in the first count as to marriage and tue of the decree of distribution; and that residence as mere matters of inducement, the assignments to plaintiff were with a view they should have been repeated or referred to defraud defendants. (10) The time for to in the subsequent count, and the omission modifying or setting aside the decree of dis

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