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was evidently prepared for the purpose of from such special charters, absolutely proaccomplishing the result sought to be accom- hibited the granting of such charters in the plished by the bill introduced into the ninth future, and at the same time, recognizing the general assembly but by a slightly different injustice of annulling those already granted, method. Much of the time of the courts has allowed these to remain until repealed or been taken up during the last two years in voluntarily surrendered, but required the the consideration of questions relating to the legislature to open the way by general law charter of the city of Denver and the annexa- for the incorporation of cities and towns tion thereto of contiguous towns incorporated theretofore incorporated by special acts. In under the general laws of the state; and the view of the hostility of the constitution to desire to avoid the effect of the rules estab- special charters, we are clearly of the opinion lished in those litigated cases is quite likely that cities and towns incorporated under a to induce parties in interest to prepare bills general law cannot be made subject to the in the hope that the force of such decisions special charter of the city of Denver by direct may be weakened, or perhaps destroyed, in legislation, although the legislature may proan ex parte proceeding, in answer to legisla- vide the means by which contiguous towns tive questions. The former bill was declared and cities may become annexed. In deterunconstitutional, for the reason that by its mining the constitutionality of an act, the terms certain cities and towns incorporated courts will look to its necessary operation, under general laws would have their cor- and, viewing the proposed legislation with porate existence destroyed as the result of an reference to its effect, it is apparent that the amendment to the special charter of the city immediate and inevitable result, if constituof Denver. The bill now submitted is claim- tional, will be to make the cities and towns ed to be general in character, for the reason contiguous to Denver subject to the special that, by its terms, it is made applicable to all charter of the city of Denver. This being towns and cities contiguous to any city of contrary to the letter and spirit of the consti100,000 or more inhabitants. The court will, tution, the proposed legislation, if enacted, however, take judicial notice of the official would be without force. census so far as it relates to the state, and by this we find that Denver is the only city in the state having a population of 100,000,

(106 Cal. 153) and that the next largest city has a popula

In re HOPE'S ESTATE. (No. 15,883.) tion of less than 25,000. It necessarily fol- (Supreme Court of California. Feb. 28, 1895.) lows, therefore, that the proposed act at EXECUTORS AND ADMINISTRATORS

PAYMENT OF present applies only to towns and cities con

INTEREST BEARING DEBTS-JURISDICTION

OF PROBATE COURT. tiguous to Denver, and to the city of Denver

Under Code Civ. Proc. 1513, providing with its special charter, while there is no

that an administrator may, at any time, on the probability that any other city will increase order of the court, pay all interest bearing debts in population sufficiently to come within its

of decedent, the court cannot, on the applicaterms for many years to come.

tion of a creditor, compel an advance payment, Sections 13 and 14 of article 14 of the state Department 2. Appeal from superior constitution are as follows:

court, city and county of San Francisco; "Séc. 13. The general assembly shall pro

Walter H. Levy, Judge. vide by general laws for the organization and Application by the holder of an interest classification of cities and towns. The num- bearing claim against the estate of John T. ber of such classes shall not exceed four, and Hope, deceased, to compel the administrathe powers of each class shall be defined by trix to pay the debt. From an order directgeneral laws, so that all municipal corpora

ing its payment, the administratrix appeals. tions of the same class shall possess the same

Reversed. powers and be subject to the same restric- J. D. Sullivan and Herbert Choynski, for tions.

appellant. Edward Myers, for respondent. “Sec. 14. The general assembly shall also make provision by general law whereby any HENSHAW, J. The court in probate city, town or village, incorporated by any directed the immediate payment of a claim special or local law, may elect to become against the estate of deceased, after a showsubject to and be governed by the general ing that the claim was upon a judgment law relating to such corporations."

rendered against him in his lifetime; that It is apparent from these two sections and it bore interest; that it had been allowed the inhibition against special laws--First, that and approved by the administratrix and the the legislature is prohibited from granting a judge about 15 months previously; that it special charter to any city or town; second, was a preferred claim; that notice to credit is required to provide by general law for itors had been duly published, and the the incorporation of cities and towns. The time for presentation of claims had expired; condemnation by the constitution of special and that there were funds in the hands of charters is too plain to admit of controversy. the administratrix ample for its payment, The framers of the instrument, and the peo- and properly applicable thereto. The adminple, having in view the many evils resulting istratrix appeals from the order.

The only question presented by the appeal

(106 Cal. 173) is, in the language of the appellant, has PEOPLE v. ROYCE. (No. 21,081.) the superior court, sitting in probate, ju

(Supreme Court of California. Feb. 28, 1895.) risdiction to make an order directing the

EMBEZZLEMENT-SUFFICIENCY OF EVIDENCE. administratrix of an estate to pay a claim

The fact that the treasurer of an assoagainst the estate under such circumstances, ciation deposits a check drawn in its favor in a no inventory having been made or filed, and bank, and has the amount credited to his perno account of her administration ever hav

sonal account, does not justify a conviction, in

the absence of evidence of a demand by the asing been filed by her or settled by the court?

sociation, or of inability to respond to a demand. The order is based upon section 1513 of the

In bank. Appeal from superior court, city Code of Civil Procedure, which provides: and county of San Francisco, J. M. Seawell, "If there be any debt of the decedent bear

Judge. ing interest, whether presented or not, the

C. E. K. Royce was convicted of embezzleexecutor or administrator may, by order of

ment, and appeals. Reversed. the court, pay the amount then accumulated and unpaid, or any part thereof, at any time

Reddy, Campbell & Metson, for appellant. when there are sufficient funds properly ap

Atty. Gen. Hart, for the People. plicable thereto, whether said claim be then

MCFARLAND, J. In the opinion delivered due or not; and interest shall thereupon

in department (37 Pac. 630), it is said that cease to accrue upon the amount so paid.

“the errors complained of are based upon rulThis section does not apply to existing debts,

ings upon questions of evidence, and upon unless the creditor consent to accept the

instructions to the jury"; and as to such amount.” We make no doubt but that this

errors and questions we are satisfied with section contemplates the payment of the that opinion. But a hearing in bank was principal as well as the interest of such a

ordered on account of a grave doubt whethdebt. It was added to the Code after the

er, under any proper view of the law, there passage of sections 1647, 1618, Code Civ.

was evidence sufficient to warrant a convicProc., and is a modification of the general

tion of the crime charged; and, from further rule as to the time of payment of the class

consideration of the case, we are satisfied of claims specified in it. The section, how

that there was not such evidence. ever, is designed, not for the benefit of cred

The facts shown by the evidence are these: itors, but for the benefit of the estate. It

On February 21, 1893, the appellant was affords no right to the owner of such a debt

treasurer of the Veterans' Home Association, to compel an advance payment of it. The

a corporation, and on that day received a order directing the administratrix to pay

certain draft for the benefit of said associashould be in its form not compulsory, but

tion for $10,350. On the same day he depermissive merely. Then she may pay or

posited said draft with the Crocker-Woolnot, as her discretion suggests, and as the

worth National Bank of San Francisco, and condition of the estate warrants. If she

the amount of the draft was credited to apdoes not pay, she cannot be compelled to do

pellant's personal account. The president so by the creditor, but will be liable to the

of the bank testified that he "did not hear estate for the interest accruing thereafter,

him (appellant] give any direction as to if she cannot show that her refusal was

whose credit it should be placed," and that based upon sound reasons. The especial

"we did not place it to the credit of the aspoint relied upon by appellant is that she

sociation because we have not had any such neglected to return any inventory or file

account on our books." Appellant informed any account of her administration; that be

the bookkeeper of the association that he cause of this neglect she cannot be com

had received this draft, and the amount of pelled to pay; and that the redress of the

it was entered by the bookkeeper on his ledg. claimant is to cause her removal, and the

er of the date of February 21st. On Feb. appointment of some one who will perform

ruary 24th the association received from apthe duties of the trust. Code Civ. Proc. & pellant $8,310.35 of this money; and the 1450. This contention does not commend

charge against appellant is the embezzlement itself, still less the attitude of the adminis

of the balance of said draft, amounting to tratrix in making it. She cannot be com

about $2,050. What became of this balance pelled to pay, not because she has been

does not appear.

Appellant may have had faithless to her trust, but because a com

it ready to be produced whenever called for. pulsory order is in excess of the jurisdiction

The by-laws of the association required the of the court. The order here directs the im

treasurer to deposit all funds over a certain mediate payment of the debt. It must be

amount "in such bank as the board (of diheld to have been designed as imperative

rectors] may direct"; but it does not apand mandatory. So construed, it was in ex

pear that the board ever made such direccess of the jurisdiction of the court, and is

tion, or named any bank in which the de therefore reversed.

posits should be made. The by-laws also

provide that all moneys in the hands of the We concur: TEMPLE, J.; McFARLAND, treasurer should be “turned over to his sucJ.

cessor in office”; but it does not appear

STRUCTIONS.

that appellant ever had a successor in office.

(106 Cal. 139) It is also provided in the by-laws that the

PEOPLE v. STANTON. (No. 21,105.) treasurer shall make reports of moneys received and expended “to the association at

(Supreme Court of California. Feb. 25, 1895.) its annual meeting," and, also, "at each THROWING VITRIOL-ELEMENTS OF CRIME-INquarterly meeting of the board of directors”; but there is no evidence of any such yearly 1. An assault is a necessary eiement of the or quarterly meeting between February,

offense of thr:wing vitriol upon another with in

tent to injure him. Pen, Code, $ 244. 1893, and the date of the indictment, which

2. On an information for willfully throwing was June 2, 1893, or that appellant failed vitriol upon another with intent to injure his to report said money, or made any report person, where every element was proved within which it was not mentioned. There is no

out contradiction except the intent, the court

properly refused to charge that defendant might evidence that any demand was ever made be convicted of a simple assault. upon appellant for said money by the association, or by any officer or agent thereof, or In bank. Appeal from superior court, city by any other person. The conviction rests, and county of San Francisco; William T. therefore, solely upon the fact that the mon

Wallace, Judge. ey was deposited with the bank on February Winnie Stanton was convicted of throw21st to the personal account of appellant, un- ing vitriol, and appeals. Affirmed. der the circumstances as above stated. This was evidently the theory upon

John L. Love and A. 0. Cotton, for appel

which the indictment was based, for it is alleged that the

lant. Atty. Gen. Hart, for the People. embezzlement was committed on the 24th of February,-just three days after said de- GAROUTTE, J. Appellant was convicted posit. It is true, as the court instructed of violating the provisions of section 244 of the jury, that the crime charged might have the Penal Code, which provide: “Every perbeen shown to have been committed at any son who willfully and maliciously places or time before the date of the indictment; but throws, or causes to be placed or thrown, the deposit of the money in the bank on upon the person of another, any vitriol, corFebruary 21st was the only fact proven upon rosive acid, or caustic chemical of any nawhich the conviction could have been based.

ture, with the intent to injure the flesh or And that fact is not sufficient to support the distigure the body of such person, is punishaverdict. It does not appear that he was ble by imprisonment in the state prison, not ever called upon to apply the money to any less than one nor more than fourteen years." need of the association, or to make any par- The evidence in the case proves conclusively ticular use of it, or to put it in any special that the appellant intentionally threw vitriol place. It is true that he drew one or two at and upon the prosecuting witness, Stemchecks on the Crocker-Woolworth Bank; but ber, and that such vitriol burnt both his it does not appear that he had not private clothes and his person. Upon the informafunds there, and the testimony of the presi- tion and evidence offered thereunder, appeldent of the bank leaves the impression that lant's counsel asked the court to instruct the he had been keeping an account with that jury that his client might be convicted of a bank. He may have had the money all the simple assault, or of an attempt to commit time ready to respond to any demand of the the offense charged, and this the court deassociation. In fact, there is no evidence

clined to do. The court based its refusal that he did not pay it over to the association. upon the ground that an assault was not a It is clear that he did not clandestinely keep crime included in the offense charged in the it; for he reported it to the bookkeeper. No information, and that an instruction upon doubt, embezzlement may be established, un- the question of attempt was not justified by der certain circumstances, without proof of the evidence. We are of the opinion that an a demand; as where other evidence clearly assault is a necessary element of the offense shows an appropriation by an employé of declared by section 244 of the Penal Code. his employer's funds with intent to do so

Wharton, in his work upon Criminal Law, fraudulently and feloniously. But there is in treating of assaults, at section 610 says: no such evidence in the case at bar. It is “There are cases of poisoning that clearly sometimes held in civil cases that the de

involve assaults, e. g. throwing vitriol at anposit by a trustee of trust funds to his per

other, injecting poison by force. Here there sonal account is sufficient cause for charging

can be no question." But, even conceding him with interest; but such fact alone is

appellant's contention in this regard to be not sufficient evidence to convict a man of a sound, that an assault was a necessary elefelony.

ment of the offense charged, still we do not For the reasons above given, we are of think the question of assault was one proper opinion that a new trial should have been to be submitted to the jury in the present given. The judgment and order are revers

The facts did not justify it. Every ed, and the cause remanded for a new trial. element of the offense charged is conclusive

ly shown by the evidence, without contradicWe concur: BEATTY, C. J.; GAROUTTE, tion, save the single element of intent. The J.; VAN FLEET, J.

appellant willfully and maliciously threw the

case.

vitriol upon the person of the prosecuting foregoing reasons the judgment and order witness. This cannot be gainsaid, and the are affirmed. only open question remaining is, what was her intent in doing the act? Upon such a

We concur: McFARLAND, J.; TEMPLE, state of facts the instruction was properly

J.; HARRISON, J.; VAN FLEET, J. denied. An "assault" is defined to be an unlawful

(106 Cal. 190) attempt, coupled with a present ability, to

GATUNER v. DENNISON et al. (No. inflict a violent injury upon the person of an

19,456.) other, and, consequently, if the evidence in

(Supreme Court of California. March 2, 1895.) this case proved an assault, it proved more,

ACTION FOR WAGES-EVIDENCE – INSTRUCTIONSand proved the offense charged in the in

REVIEW ON APPEAL. formation. The court rightly refused to in

1. A verdict, in an action for services renstruct the jury that they might convict the dered, based on contlicting and sutlicieut eridefendant of an “attempt” to commit the dence, will not be disturbed. offense charged in the information, for if

2. In an action for services rendered, the

refusal of an instruction that the title and sit. there was an attempt to commit the offense uation of a lot, the alleged balance due on which that attempt was carried out. The defend- is set up by defendant by way of counterclaim, ant did all that she contemplated doing, and

are not issues involved in the case, is not re

versible error, where all questions relating to her attempt was in no way frustrated. Up- | the lot arose incidentally upon contlicting proofs on a charge of robbery, if the property is relating to the wages agreed to be paid plaintiff actually taken by the criminal, the question

per month, and the jury were clearly instructed

as to the issues to be determined by them. of an attempt to commit robbery is foreign 3. On an issue as to the amount of wages to the issue upon trial, and not a proper sub- to be paid for services rendered, testimony of ject-matter to be submitted to the jury. It

a partner of defendant as to what was told him

by defendant as to the amount of wages paid also necessarily follows upon the same line

is inadmissible, under Code Civ. Proc. $ 1832. of reasoning that, if the question of “at- 4. A contention that plaintiff, suing for tempt” to commit the offense is not one to services rendered, was contined by his pleadbe submitted to the jury, likewise the ques

ings to proof of the amount due for services ren

dered between specified dates, is not available tion of "assault” is not a proper subject of where, so far as the record shows, plaintiff coninquiry for the jury, the only difference be- fined his proofs to such period. tween the two offenses being one of "pres- Commissioners' decision. Department 2. ent ability to inflict the injury,” and that Appeal from superior court, Los Angeles element of the case is not a material one in county; J. W. McKinley, Judge. the present discussion. If the evidence in Action by A. N. Gardner against G. L. the case was contradictory as to whether or Dennison and others for services renderad. not the vitriol was actually thrown upon Verdict and judgment for plaintiff. From the person of the prosecuting witness, then an order denying a new trial, defendants apthe instructions asked should have been peal. Affi :med. given, but we find no such contradiction in

E. C. Bower, for appellants. W. T. Wilthe record. Measured by the evidence, the

liams, for respondent. only open question in the case was one of intent, and the proper solution of that question BELCHER, C. The plaintiff brought this of fact could in no way cast any light upon action to recover the sum of $771, balance the duty of the court in giving or rejecting of account alleged to be due for work, lathe instructions asked. As supporting gen- bor, and services done and performed by erally the principles here discussed, see Peo- him for defendants between the 5th day of ple v. Madden, 76 Cal. 521, 18 Pac. 402; Peo- August, 1889, and the 5th day of August, ple v. Barry, 90 Cal. 41, 27 Pac. 62; People 1891, under an agreement by them to pay v. Wright, 93 Cal. 564, 29 Pac. 2 10; People v. him $50 per month for such labor and seryScott, 93 Cal. 516, 29 Pac. 123. The charge ices. The answer denied that defendants of the court, taken as a whole, is somewhat were indebted to the plaintiff in the sum argumentative, and to that extent is objec- named in the complaint, or in any sum whattionable. But, after a careful perusal of it, ever; denied that they ever agreed to pay we see nothing therein so prejudicial to appel- plaintiff $50 per month, or any sum greater lant's rights as to demand a reversal of the than $10 per month; and alleged that the judgment. A judge's charge to the jury plaintiff had been paid in full for all servshould be a plain statement of the law bear- ices rendered to, and all indebtedness held ing upon the facts of the case. It should be by him against, them, or either of them. so fair, impersonal, and well balanced that The answer further, by way of counterclaim, the jurors who are to be guided by it in their alleged that, prior to the commencement of deliberations in the jury room will be unable the action, plaintiff was indebted to defendto deduce therefrom the opinion of the judge ants, in the sum of $412.42, for balance of a as to the guilt or innocence of the accused. mutual and running account between them, “A judge cannot be too cautious in a criminal after allowing him the full amount of his trial in avoiding all interference with the wages, at $40 per month, and that said conclusions of the jury upon the facts.” amount was past due, and plaintiff had paid People v. Williams, 17 Cal. 147. For the no part thereof. The case was tried before

1 Rehearing denied.

a jury, and the verdict and judgment were correctly told the jury what the issues were in favor of the plaintiff, for the sum prayed which they were to consider and pass upon. for in his complaint. The defendants moved T. C. Naramore was a witness for defendfor a new trial on a statement of the case, ants, and testified that he was in partnerand after a hearing the court required the ship with Dennison in the business which plaintiff to remit from the judgment the sum plaintiff was employed to conduct, but that of $100, which was done. The court then de- he did not make the contract with plaintiff, nied the motion, and from that order the de- or know what it was, except what was told fendants appeal.

him, and that he settled his partnership acThe court instructed the jury, in effect, count with Dennison on March 2, 1888. The that the burden was upon the plaintiff to witness was then asked, “At what amount prove by a preponderance of the evidence of wages paid plaintiff per month did dethat the defendants were indebted to him, fendant account to you for?" and the quesbut that they were not bound to decide the tion was objected to and excluded. Defendcase in conformity with the testimony of the ants then offered to prove by the witness greater number of witnesses; that the ques- that, when defendant settled with him their tion was, taking all the testimony of all the partnership business, he charged up wages witnesses before them, which was entitled to as paid to plaintiff at $40 per month, and also the greater weight, and that they were to offered to introduce in evidence a statemeat decide in conformity with the most credible of the account showing that fact. This evievidence, and that which they believed enti- dence was also objected to and excluded. tled to the greatest weight, considering all | It is claimed that the court erred in each the facts and circumstances shown. The of these rulings, but we fail to see how any appellants contend that the jury disobeyed error can be predicated upon them. The the first part of this instruction, because effort was to prove matters to which the the decided preponderance of the evidence plaintiff was not a party, and which occurred as to the amount which was to be paid plain- without his knowledge or hearing. This betiff for wages was in their favor, and hence ing so, proof of them was not admissible as that the verdict was not only contrary to indirect evidence (Section 1832, Code Civ. the instructions of the court, but was not Proc.), or under any rule of law of which justified by the evidence. The order appeal- we are advised. ed from cannot, in our opinion, be disturbed The complaint alleged that the plaintiff's on this ground. It is true, there was a sharp demand was for services rendered between contlict in the evidence ils to the wages to August 5, 1889, and August 5, 1891; and it be paid; but that introduced by the plaintiff is urged that, under the pleadings, no verwas direct and positive, and was sutficient, dict could be found for the plaintiff', except if believed, as it must have been, to meet all for the balance due him for services renderthe requirements of the instructions, and to ed between those dates, and that before he justify and uphold the verdict.

could recover it was necessary for him to The plaintiff commenced working for de prove definitely the amount of dollars and fendants in May, 1887. At that time he cents the defendants owed him between agreed to purchase from G. L. Dennison a those dates. It may be admitted that the lot of land in a tract of 70 acres owned by rule above stated is correct, and still we fail Dennison, and to pay therefor $1,000, the to see how the appellants can gain any adlot to be selected by plaintiff when the tract vantage from it. So far as appears, the should be surveyed. He paid down $200 plaintiff complied with it, and introduced of the purchase money, and agreed that one- evidence sufficient to justify the verdict rehalf of his wages should be applied monthly covered. in further payment thereof, until the pay- No other points are made for a reversal. ment should be complete. The defendants

The record discloses no prejudicial error, requested the court to instruct the jury that and the order appealed from should be ať. "the question of the title to the lot, or what firmed. lot has been selected by the plaintiff, is not within the issues in this case, and it is not a

We concur: HAYNES, C.; VANCLIEF, C. question for you to consider.” The court re

PER CURIAM. fused to give the instruction, and the defend

For the reasons given in ants excepted, and now assign the ruling as

the foregoing opinion, the order appealed error. It is true, there was no issue as to

from is affirmed. the title or situation of the lot; but the refusal to give the instruction, if erroneous,

(106 Cal. 1) was, in our opinion, harmless. The questions as to the lot all arose incidentally in

SOBERANES v. SOBERANES. (No. 15,462.) the effort to show, on one side, that plaintiff (Supreme Court of California. Feb. 28, 1895.) was to be paid $50 per month, and, on the

For majority opinion, see 39 Pac. 39. other, that he was to be paid only $10 per month. The jury could not, therefore, so BEATTY, C. J. As I did not participate far as we can see, have been misled by the in the decision of this cause, I take occasion, refusal. Besides, the court very clearly and in passing upon the petition for a rehearing,

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