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reach, that the claim of appellants grew up did not in its entirety belong to the person and took the form of a suit against his suc

named in the indictment as owner is not such a

variance as to prevent a conviction. cessors. It is a claim which equity should

10. A sentence of imprisonment for 20 not now entertain.

years for robbing Chinamen, in their house Under the foregoing views, we need not and at night, of $175, will not be disturbed as discuss the many other points made by re

unusual. spondents in support of the judgment. Judg- Commissioners' decision. Ip bank. ment affirmed.

Appeal from superior court, Tulare county;

Wheaton A. Gray, Judge. We concur: GAROUTTE, J.; VAN R. P. Clark was convicted of robbery, and FLEET, J.

appeals. Affirmed.

Lamberson & Middlecoff and C. L. Russell, HARRISON and FITZGERALD, JJ. We

for appellant. The Attorney General, for the concur in the judgment, upon the grounds People. last presented in the opinion of Mr. Justice MCFARLAND.

HAYNES, C. Appellant was convicted of the crime of robbery, and was sentenced to

imprisonment in the state's prison for the (106 Cel. 32)

term of 20 years; and this appeal is from the PEOPLE v. CLARK. (No. 21,164.)1 judgment, and from an order denying de(Supreme Court of California. Jan. 29, 1895.) fendani's motion for a new trial, and also PROSECUTION FOR ROBBERY-Evidence-IDENTITY from an order made after judgment. This OF DEFENDANT-HARMLESS ERROR.

latter order will be first noticed. 1. The refusal of the court to certify. on Several instructions were requested to be the stenographer's transcript of certain oral instructions, that they were given, so as to make

given to the jury by the prosecution and them a part of the record, is not ground for re- the defendant, respectively, upon each of rersal, where such instructions are made a which the actien of the court, whether given, part of the record by bill of exceptions.

refused, or modified, was duly indorsed. In 2. Where the prosecuting witness at the time of the robbery identified defendant as a

addition, the court gave several oral instrucperson with whom he had had a conversation in tions of its own motion, and these were taken the presence of a third person, the substance of

down by the reporter, and afterwards written the conversation is admissible to enable such

out, but the fact that they were given was third person to ideatify defendant as the person with whom the conversation was had.

not certified thereon by the court, so as to 3. Where, in such a case, the prosecuting make then a part of the record. "People v. witness positively identified defendant as one of the active participants in the robbery, the

January, 77 Cal. 179, 19 Pac. 258; People v. fact that the witness was allowed to state de- Ah Lee Doon, 97 Cal. 171, 31 Pac. 933; Pen. fendant's name, as given him subsequently by Code, § 1176. Afterwards the defendant the person in whose presence the conversation

moved the court to certify these oral instrucwas had, is not ground for reversal. 4. Where, in

the question,

tions so as to make them part of the record, "Could you understand from the way defend- and the order denying this motion is the orants moved their revolvers and pointed their der above mentioned, from which an appeal hands that they wanted you to leave the room?"

is taken. The record does not disclose any the witness replied, "Yes, sir; they pointed their revolvers at us, and pointed towards the

ground for the refusal of the court to indorse door,"--any error in the form of the question upon such instructions the fact that they was immaterial, as the answer gave the facts

were given to the jury, nor can we conceive on which the witness' "understanding” was baser.

of any sufficient ground for such refusal. 5. The state may show why a person who But, conceding that defendant's motion in was present at a robbery had gone away, as that behalf should have been granted, it is otherwise he should have been called as a wit

not perceived that the defendant was preju6. On a prosecution for robbery, evidence diced, or lost any substantial right. It is that other white persons were aware that the said by counsel for appellant that if the mopersons robbed, who were Chinamen, owed a large amount for rent which was past due, is

tion had been granted, and these instrucinadmissible against defendant, such knowl

ticns thus made part of the record, an appeal edge not being brought home to him, though could have been taken upon the judgment defendant claimed that such fact was only roll without a statement or bill of exceptions. known to Chinamen, and that the whole story of the robbery was fabricated, as an excuse

It does not appear that he desired to appeal for the nonpayment of the rent.

upon the judgment roll or record without a 7. Error in admitting such evidence is not bill of exceptions. He had made a motion ground for reversal, where it appears that the state acknowledged that such information was

for a new trial, and more than three months not communicated to defendant, and the evi

before had given nouce of appeal from the dence, unless defendant's alibi was believed, order denying a new trial. In any event, clearly showed that he was guilty.

the instructions in question are now in the 8. When defendant, in accounting, as witness, for his time on the night of the rob

record by bill of exceptions, and are as availbery, stated that he went to a certain part of

able to the defendant as though his motion the town, he could be properly cross-examined, had been granted. as to what he and his companion were doing

The question put to the witness Ah Jip, there. 9. On a prosecution for robbery, the fact

as to what the defendant said to him some that the property alleged to have been stolen days before the robbery, was proper for the

Rehearing denied.

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purpose of identification. At the time of sent, as otherwise he should have been callthe robbery the witness identified one of the ed as a witness. Whether the question put robbers as a man with whom he had had a to Dung Chung was leading or not need not conversation at a certain place in presence be considered, as the answer was favorable of another, but he did not know the name to the defendant. of the man that he thus identified. Jau- The robbery was committed on the night chius, in whose presence the conversation of September 8, 1893, at a house occupied by was bad, was thus enabled to say that the 11 Chinamen, who were partners and tenants defendant was the person referred to by Ah cultivating land belonging to Joseph La Jip. The next morning after the robbery Marche, who lived about half a mile from the Ah Jip went to Jauchius to learn the name of house occupied by the Chinamen. On the the person he identified as one of the rob- morning of the 8th, Mr. Faust and another bers, and was permitted to state the conver- man called at the house of La Marche, and sation had with him, which was, in sub- Mrs. La Marche was called by the prosecustance, that Ah Jip asked the name of the tion, and stated that she had a conversation man he had talked with, and was told that it with Faust and bis companion in relation to was R. P. Clark. It is contended that this the garden cultivated by the Chinamen. She conversation, not in the presence of the de- was then asked to state the conversation, and fendant, was hearsay and inadmissible. Ap-to this the defendant objected. In a colloquy pellant cites a very large number of cases in between counsel for the people and the court, support of the general proposition that state. which is incorporated in the bill of excepments made by third persons after the com- tions, it appears the defense had been permitmission of the offense, and not in the pres- ted to show upon cross-examination that ence or hearing of the defendant, are inad- these China men owed rent at the time of the missible. These cases principally discuss the robbery amounting to $300 or $100, and that admissibility of declarations as part of the the suggestion had been made that the preres gestae. But here no statement or decla- tended robbery was a job put up with other ration touching the commission of the of- Chinamen so that they could represent to fense was made; and, if it be conceded that | La Marche that they had been robbed and it was immaterial how or from whom Ah could not pay the rent. The testimony of Jip obtained the name of the defendant, the the Chinamen who were robbed also showed error was harmless, and could not possibly that four men were concerned in the robjustify a reversal of the judgment. If Ab bery, three of whom came into the house, the Jip had detailed the circumstance of the com- fourth staying outside at some little distance, mission of the offense, and Jauchius had tes- and who was not distinctly seen. The detified to these statements, it is obvious that fendant, one of the three who came in, was a different question would be involved, and in not masked. The other two were masked, such case the authorities cited by appellant and as to them several of the Chinamen teswould apply. Or, had the statement been tified they could not tell whether they were used or designed to be used to fix the identity China men or negroes or white men. It was of defendant as the perpetrator of the crime, expressly stated by counsel for the prosecuthe injury of the ruling would have been tion that they had no testimony which would manifest. But it served no such purpose, bring the conversation of these men with Mrs. since Ah Jip positively identified the defend- La Marche to the defendant; that his object ant at the trial as one of the active partici- was to meet the argument that only the pants in the robbery.

China men knew there was rent due and unAh Kong, a China man who was present at paid, “and let it go to the jury as to who the time of the robbery, and who did not these other white men were"; that the court understand what was said on that occasion had ruled that the circumstance that these in English, was asked the following ques- Chinamen were owing a large sum of money tion: “Could you understand by the way for rent should be shown, and that he desired the men moved their revolvers and the way to show that white men also knew the fact. they pointed with their hands that they want- The objection of defendant was thereupon ed you to go out?". The objection was that overruled, and the witness said that, after it called for the understanding of the wit- informing them that Mr. La Marche had gone ness. The witness was permitted to answer, to Tulare with a load of wheat, they said and said: “Yes, sir; they pointed their re they came to see about making a bargain to volvers at us, and pointed towards the door.” rent the orchard; that she told them it was The witness not only gave his understanding, rented for three or four years; that they inbut the facts upon which it was based. The quired how many acres were in vegetables, question was not skillfully framed, but the to which she replied she did not know, that answer was unobjectionable.

they could tell better by going to see it. It is also contended that the court erred They then wanted to know how much rent in permitting Ah Leon to testify as to why was paid, and she told them $900 a year; Ah Wi went to San Francisco. Ah Wi was “that one payment had been made, but before present at the time of the robbery, and was anybody got that orchard the other payment not present at the trial. It was competent would have to be paid either by the Chinese to show where he was and why he was ab- or the one that bought them out;" and, after telling them where they could find her hus- not hesitate to say that the error was prejuband in Tulare, they asked when the last pay- dicial. But the counsel for the people not only ment became due, and she told them it would disclaimed in advance any effort to connect be due the 1st of October. They then left. the defendant with the offered testimony, but Mr. Faust and Mr. Lazenby, who was with Faust and Lazenby, whose credibility is not him at the time of the conversation with Mrs. attacked, both testified that they did not comLa Marche, above stated, were called by the municate anything they learned to the defenudefendant, and explained their visit to the ant, nor to any one, until after the robbery. house of Mr. La Marche by saying that That a robbery was committed at the time Lazenby desired to secure the land then occu- and place charged in the information is clear pied by the Chinamen for the purpose of culti- beyond question. Whether the defendant was vation, but, finding the rent to be bigb, con- one of the robbers was the real question in cluded to make no further effort to obtain it, controversy, and upon that point bis identifiand they both testitied that they did not men- cation was conclusively shown. If the evi. tion the visit, or anything in connection with dence objected to had been excluded, we do it, to the defendant or any one until after the not see how the jury could have entertained arrest of defendant. I think it immaterial a doubt of the fact of the robbery, or of the what others than the defendant had learned, identity of the defendant as one of the robor how they learned, that a payment of rent bers, unless they believed the testimony given was about to become due from the Chinamen, to prove an alibi; and that testimony they unless such knowledge was brought home to did not believe, else the defendant would the defendant prior to the robbery, and for have been acquitted. We think the judgment that reason the testimony should have been should not be reversed for the erroneous reexcluded; and the question now to be deter- ception of this evidence. mined is whether its admission was such an The objection to the question put to the error as requires a reversal of the judgment defendant upon cross-examination, viz., "What and a new trial. Section 1258 of the Penal were you and that man Keeler doing down Code is as follows: "After hearing the ap- there in Chinatown?" was properly overruled. peal, the court must give judgment without The defendant had offered himself as a witregard to technical errors or defects, or to ness in his own behalf, and in accounting for exceptions, which do not affect the substan- his whereabouts on the night the robbery was tial rights of the parties." In People v. committed, said that he had, after leaving a Brotherton, 47 Cal. 388, 404, it was said: certain other place, gone to Chinatown. The "That a technical error has intervened at the question was proper cross-examination, and trial is therefore not of itself enough to war- was material. rant a reversal. The prisoners must go fur- The question as to his talk with Mr. Murray ther, and affirmatively show in some way at the time of his arrest was proper, as it that their substantial rights have been in- related to the same matter; that is, as to juriously affected by the error complained of. where he had been the night of the robbery. The burden is upon them to do so." This The court erred in receiving in evidence the case was cited approvingly in People v. Nel- letter written by C. Lazenby, secretary of the son, 56 Cal., at page 82, and in People v. “Tulare White Labor Union," to Mr. La Barnhart, 59 Cal., at page 384. In the Broth- Marche, August 28, 1893, notifying him to diserton Case, supra, the defendant offered in charge all Chinese in his employ who had not evidence the testimony of one Howard taken a certificate of registration. Lazenby was upon a former trial, and it was excluded. called by defendant, and testified in chief that The record did not set out the testimony he was a member of said organization, and offered, nor state its substance, nor was its stated the purposes of the union. All this materiality shown, and the language used by was immaterial, but was received without the court must be read in the light of those objection. The letter was offered as part of facts. In People v. Nelson and People v. the cross-examination, but the objection that Barnhart, supra, the questions arose upon in- it was irrelevant and immaterial should have structions to the jury, and in the case last been sustained. The error, however, did not mentioned the error was favorable to the affect any substantial right of the defendant. defendant. Here, however, the evidence was These remarks apply also to the testimony admitted against the defendant's objection, of Mr. La Marche in rebuttal. The evidence and was heard by the jury, and is set out sought to be contradicted was immaterial. in the record. The defendant could not show The testimony of Bachelder in relation to that he was prejudiced otherwise than by the a conversation with the defendant just after record, and that is before the court. The his arrest, as to where the defendant was visit of Faust and Lazenby to the ranch was the night of the robbery, was competent to upon the same day the robbery occurred. If rebut the testimony of defendant upon the the facts thus learned had been communi- same point. The question put to the same cated to the defendant that day, the testi- witness by the defendant, upon cross-exammony would have tended to strengthen the ination, as to what La Marche told him the case against him; and, if it had been left night before the arrest, was properly excluddoubtful whether said facts were or were ed. The information charged the defendant not communicated to the defendant, we should with having robbed the Wing Hing Company

of $210. The evidence showed that sum was taken, but that only $175 belonged to the company. The court properly refused to instruct the jury that such variance entitled the defendant to an acquittal; nor did the court err in charging the jury that it was not necessary that the property alleged to have been taken was, in its entirety, the property of that company. I see no ground upon which it can be said that the verdict is against law, or not justified by the evidence, nor any upon which it can be held that the punishment imposed by the court is unusual. I advise that the judgment and orders appealed from be affirmed.

dence that, shortly after the trespass, plaintiff left her house, and went elsewhere to reside.

6. In such case it appeared that plaintiff's son had been arrested for some offense, and defendants claimed they went to her house to notify the son to leave the place. Held, that it was error not to permit defendants to show that plaintiff and one of her daughters had discussed the matter of the son's arrest, to show her state of mind at the time of the trespass and the cause of her fright.

7. It was error, in such case, to exclude eridence offered by defendants tending to show their motives in going to plaintiff's house and doing what they did.

8. In such case, it was error to admit evidence offered by plaintiff of statements made after the occurrence by one or more of defendants, in the absence of the others, tending to show their purpose or intention.

In bank. Appeal from superior court, San Diego county; George Puterbaugh, Judge.

Action by H. A. Lamb against H. A. Harbaugh and others. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed.

Haines & Ward, Wellborn, Stevens & Wellborn, and E. W. Britt, for appellants. J. L. Copeland and Works & Works, for respondent.

We concur: SEARLS, C.; BELCHER, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and orders appealed from are affirmed.

(105 Cal. 680) LAMB v. HARBAUGH et al. (No. 19,351.) (Supreme Court of California. Jan. 28, 1895.) MISJOINDER of CauseS OF ACTION TRESPASS —

MARRIED WOMAN ACTION FOR PERSONAL INJCRIES-JOINDER OF HUSBAND-TRIAL BY COURT .-STATEMENT OF LEGAL PROPOSITIONS.

1. Under Code Civ. Proc. $ 427, authorizing the joinder of several causes of action in the same complaint when they all arise out of “(5) injuries to character; (6) injuries to person; (7) injuries to property"; and providing "that the causes of action so united must all belong to one of these classes, and must affect all the parties to the action," a complaint is bad which alleges that defendants forcibly entered on plaintiff's premises near midnight, broke her gates, broke and entered her dwelling, and maltreated and intimidated her and her daughters, and that her property was thereby damaged; her health permanently impaired, and her character injured, all to her damage in a specified sum.

2. Even if it be considered a complaint for trespass on real property under such circumstances of aggravation as to entitle plaintiff to exemplary damages, it is bad for uncertainty, as not averring the actual damage to the property.

3. Code Civ. Proc. $ 370, provides that, when a married woman is a party, her husband must be joined with her, except when the action concerns her separate property, or she is living separate from her husband by reason of his descrtion or written agreement between them. Civ. Code, $$ 162, 164, declare the separate property of the wife to be "all property owned by her before her marriage, and that acquired afterwards by gift, bequest, devise, or descent"; and that “all other property acquired after marriage" by her is community property. Helil, that a married woman who is simply living separate from her husband, without such written agreement, and who has not been deserted by him, cannot alone sue for personal injuries received during coverture.

1. Where case is tried before the court without a jury, there is no statute authorizing the court to declare certain propositions to be the legal principles applicable to the facts of the case, and to render its decision in accordance therewith.

5. In an action by a married woman for trespass on her premises, though she alleged tl:at she was put in fear thereby for the lives of herself and children, it is error to admit evi

HARRISON, J. The complaint in this action is against 17 defendants, and is in the following language: "First. That on the 24th day of August, 1892, the plaintiff was, and had been for many years, a resident of the city of National City, in the county of San Diego, state of California. Second. That on the night of the 23 and 24th day of August, 1892, she was residing in said city, in her dwelling house, with her daughters, Cora E. Lamb and Grace Lamb, and her son, Charles Lamb, and was the owner and in the peaceable and quiet possession of said dwelling house and the lot upon which the same was situated. Third. That on the night aforesaid, soon after midnight, the defendants, forcibly, unlawfully, and without the consent of the plaintiff, entered upon her said premises, and forcibly and violently broke down her gates, and broke and entered her dwelling house, and unlawfully and with great noise threatened, maltreated, and intimidated herself and her said daughters. Fourth. That, by the said unlawful and violent acts of the defendants, the property of the plaintiff was damaged, she was intimidated and put in great fear for the lives and safety of herself and her said children, to such an extent that she was compelled to abandon her home and seek shelter elsewhere, and has been injured in her good name, and disgraced and humiliated, from which she has suffered great mental anguish and distress, and that her health has been seriously and permanently impaired by said wrongful and unlawful acts. Fifth. That, by reason of said wrongful acts, she has been damaged in the sum of fifty thousand dollars, wherefore the plaintiff demands judgment for fifty thousand dollars." To

this complaint the defendants demurred, up- that the complaint was for such a trespass, on the grounds, among others: (1) That there the demurrer for uncertainty should have is a misjoinder of causes of action in the been sustained, since there is no averment of said complaint, to wit, a cause of action for the actual damage done to her property. This injuries to property, with a cause of action damage was capable of definite statement, for injuries to the person of plaintiff, and a and the defendants were entitled to be incause of action for injuries to the person of formed of the amount claimed therefor, for her daughters, and a cause of action for in- the reason, as was said in Mallory v. Thomjuries to the character of the plaintiff; and as, 98 Cal. 615, 33 Pac. 737, that they might that the said several causes of action are be willing to concede the amount of this improperly united in the said complaint. (2) claim, and limit their defense to the claim for That the complaint is uncertain, in that it punitory damages. See, also, McCarty v. cannot be determined in what amount the Fremont, 23 Cal. 197; Grandona v. Lovdal, plaintiff was damaged by the injury to her 70 Cal. 161, 11 Pac. 623. Razzo v. Varni, property, or in what amount she was dam- 81 Cal. 281, 22 Pac. 848, does not hold a conaged by the injury to her person, or in what trary doctrine. All that was held in that amount she was damaged by the injury to case with reference to the demurrer was that her character, or in what amount she was the complaint was not "ambiguous" in faildamaged by the injury done to her daugh- ing to show the particular source of the damters. (3) That it is ambiguous in the par- ages sustained by the plaintiff. In Mallory ticulars above stated. The demurrer was V. Thomas, supra, it was held that when a overruled, and the defendants answered joint- plaintiff seeks to recover damages for a tresly. Upon the trial, judgment was rendered pass by which his property has been destroyin favor of the plaintiff, and against the ap- ed, and in addition thereto exemplary dampellants, in the sum of $4,200, from which, ages by reason of the character of the tresand from an order denying a new trial, an pass, and the complaint fails to set forth the appeal has been taken.

value of the property destroyed, a demurrer 1. The demurrer should have been sustained. thereto on the ground of uncertainty should The plaintiff alleges in her complaint that be sustained. We do not mean to hold that by the wrongful acts of the defendants her

a plaintiff may not, in an action for trespass, property was damaged, her character was allege such circumstances of aggravation as injured, and that her health has been per- will entitle him to punitory damages, but he manently impaired. Each of these acts con- must plead these circumstances in such a stituted a distinct cause of action, for which manner that there may be no ambiguity or she is entitled to recover damages; and in uncertainty in determining that they are set her complaint she avers that by reason of all forth solely for the purpose of establishing these acts she has been damaged in the sum such claim. If they are pleaded in such a of $30,000, for which she asks judgment manner as would be proper in an action against the defendants. Section 427, Code brought to recover damages other than those Civ. Proc., provides that "the plaintiff may for the trespass, his complaint will for that unite several causes of action in the same reason be subject to a demurrer for miscomplaint when they all arise out of

joinder of the causes of action. (5) injuries to character; (6) injuries to per- 2. The defendants pleaded, by way of son; (7) injuries to property. The causes of abatement, that the plaintiff is a married action so united must all belong to one only woman, and that her husband should have of these classes, and must affect all the par- been joined as a coplaintiff, in order to enties to the action, and not require different title her to a recovery for any personal inplaces of trial, and must be separately stat- / juries. Section 370, Code Civ. Proc., proed.” The complaint in the present case is in vides: “When a married woman is party, her manifest disregard of this section, and the husband must be joined with her, except: demurrer for misjoinder of causes of action (1) When the action concerns her separate should have been sustained. The complaint property, or her right or claim to the homecannot be sustained upon the ground that the stead property, she may sue alone. action is brought to recover damages merely (3) When she is living separate and apart for a trespass upon the real property of the from her husband by reason of his desertion plaintiff under circumstances of such aggra- of her, or by agreement in writing entered vation as entitle her to exemplary damages. into between them, she may sue or be sued It is not in terms limited to a recovery for alone.” The court finds "that at all times such trespass, but the fourth paragraph there- mentioned in plaintiff's complaint, and for of contains substantive averments of the oth- many years prior to the commencement of er grounds of damage above shown; and that this action, the plaintiff was, and is yet, a the complaint was not so considered by the married woman, and the wife of one David plaintiff is shown by the fact that at the Lamb, who is not joined with the plaintiff trial she offered proof of the injuries to her as a party to this action; but that the person, and of the effect produced thereby plaintiff and said David Lamb had been liv. upon her health, not merely at the time of the ing separate and apart from each other ac trespass, but continuing down to the day of the time of the commencement of this acthe trial. Moreover, if it should be conceded | tion, and for many years prior thereto;

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