from an order refusing to arrest the judg- | counsel for defendant objected, upon the ment. The indictment avers that the defende ground that they were incompetent, irreleant, on the 8th day of May, 1893, at the coun. vant, and immaterial, and inadmissible. Aftty of Santa Clara, state of California, was er much argument, it appeared that the al"an officer, manager, and servant of the bank leged defect consisted in the omission from of Santa Clara, a corporation duly created, the articles of the requirements of the sevorganized, and existing under and by virtue enth provision of section 290 of the Civil of the laws of the state of California." The Code, by failing to state the amount of the indictment then proceeds to charge in apt capital stock subscribed, and by whom. A and usual language that there came into the long argument seems to have occurred over hands of said defendant as such officer, etc., the question, during which the court below the sum of $8,384.17, which he then and expressed the opinion that the articles were there feloniously appropriated to his own use, insufficient to constitute a corporation de etc.

jure, but that, while defective, they might be The first specification of error by appellant introduced as one step in the proofs of the relates to the modification of an instruction existence of a corporation de facto. The obasked by defendant, and given with an addi- | jection was thereupon overruled, the articles tion made thereto by the court on its own mo- admitted in evidence, and proof was theretion. The instruction is as follows: “I in- after received tending to show that the bank struct you that, in order to sustain the charge acted and did business as a corporation, and herein, the prosecution must prove beyond a defendant acted as a director, manager, and reasonable doubt-that is, to a moral certain- agent thereof. The fact was that in 1875, ty—that the Bank of Santa Clara County was when the articles of incorporation of the at the time of the alleged offense a corpora- Bank of Santa Clara County were executed tion duly formed, organized, and existing and and filed, the statute did not require a statedoing business under the laws of the state of ment in such articles of the number of shares California, and doing business at Santa Clara, subscribed, or by whom. Amend. Codes in this state; and that on the 8th day of 1873–74, p. 199. Section 290 of the Civil Code May, 1893, and before that date, the defend- was again amended in 1876, so as to include ant was the manager or servant of said Bank the clause to which we have referred. Amend: of Santa Clara County, and as such man- Codes 1475–76, p. 70. Counsel and the ager or servant had during that time in his court overlooked the fact of these changes in possession or under his control the moneys the Code, and the cause was tried upon the belonging to said corporation mentioned in theory that the corporation was never legally the indictment.” The court gave this with organized. The error in this respect consistthe following modification, to wit: “But if ed in improperly sustaining the objection you find from the evidence that the persons made by counsel for defendant, and he should named in the certificate of incorporation give not be heard to complain. There being evi. en in evidence organized as a corporation, dence to sustain the instruction as modified, and entered upon the business named in the . it was proper to give it in any event. certificate, and that they and their successors It has repeatedly been held that proof that continued to conduct business as a banking a corporation was acting as such is sufficient. corporation, under the name of the Bank of People v. Frank, 28 Cal. 508; People v. Santa Clara County, until after the 8th day Hughes, 29 Cal. 258; People v. Schwartz, 32 of May, 1883, then I instruct you that, for Cal. 161; Gaslight Co. v. Dameron, 67 Cal. the purpose of this case, the Bank of Santa 663, 8 Pac. 595. It is also held in People v. Clara County was at the time of the alleged Schwartz, supra, that, if the indictment avers defense a corporation duly formed, organ- that the company is a corporation, proof of ized, existing, and doing business,"—to which the existence of the corporation de facto will modification of said defendant's requested in- support the averment. To hold that one who struction defendant then and there duly ex- has been an officer, agent, or servant of a cepted. It will be observed that the instruc- company acting as a corporation can, upon tion as asked by the defendant involved as an discovering that, by reason of some defect or essential element the necessity of a legally- i oversight in incorporating, the company has organized corporation; that it should be, in not become a corporation de jure, plunder its the language of the instruction, "a corpora- treasury, and go Scot-free, would be to oftion duly formed, organized, and existing, fer a premium for wrongdoing. "In reason, and doing business at Santa Clara, in this whenever a man claims to be a servant, state." The addition to the instruction in ef- while getting into his possession by force of fect informed the jury that a de facto cor- this claim, the property to be embezzled, he poration, if they found such to exist, was, for should be held to be such on his trial for the the purposes of the case, sufficient. It is embezzlement.

When a man has reproper to a correct understanding of the ques. | ceived a thing of another under the claim of tion to say that the prosecution offered in evi- | agency, he cannot turn round and tell the dence articles of incorporation of the Bank principal asking for the thing: 'Sir, I was of Santa Clara County, duly executed and not your agent in taking it, but a deceiver filed on the 28th day of May, 1875. To the and a scoundrel.' ” Bish. Cr. Law, $ 397; Introduction of such articles of incorporation | People v. Treadwell, 69 Cal. 226, 10 Pac. 502;

Ex parte Hedley, 31 Cal. 108. Our Civil tion "is subject to all the liability and penalCode (section 358) has embodied the rule in ties attaching to directors and officers duly the following words: “The due incorpora- elected by a corporation de jure," etc. The tion of any company claiming in good faith contention of appellant is that there can be to be a corporation under this act, and do- no de jure officer without a de jure office to ing business as such, or its right to exercise be filled, and that section 504 of the Penal corporate powers, shall not be inquired into, Code, which defines embezzlement, applies collaterally, in any private suit to which such only to de jure officers. The cases already de facto corporation may be a party; but cited, holding that in criminal cases proof such inquiry may be had at the suit of the that a corporation has acted as such is suffistate on information of the attorney-general.” cient, are deemed sufficient upon the first

Appellant objects to the fourteenth instruc- branch of the question. As to the question tion given by the court, as being in conflict of the necessity of proof that an officer is with the instruction hereinbefore set out and such de jure, it has been said there is no given in a modified form. This fourteenth conflict in the authorities as to whether a de instruction is too lengthy to be here set out facto officer is liable criminally for embezzlein full. In it the court gives the definition ment of funds in his hands. State v. Goss, of embezzlement, the nature of the charge 69 Me. 22; Fortenberry V. State, 56 Miss. against the defendant as specified in the in- 286; State v. Sellers, 7 Rich. Law, 368; State dictment, and then proceeds as follows: "It v. McEntire, 3 Ired). 171; Diggs v. State, 49 appears in the certificate of incorporation, Ala. 311; Rex v. Borrett, 6 Car. & P. 124. under which it is claimed the association | We have found no case holding that a de therein named commenced business as a facto officer may not be punished for embezbanking corporation, that it was not suffi- zlement equally with a de jure officer. cient to entitle the directors therein named, The fourth contention of appellant is foundor the stockholders, or their successors, right- ed upon an excerpt from the fourteenth infully to conduct a banking business; but if struction of the court; and the attempt to you find from the evidence that the direct- predicate an argument upon it, to support ors named in this defective certificate en- the theory that the court invaded the provtered upon the business named in the certifi- ince of the jury in passing upon the facts, cate, and that they and their successors con- falls to the ground when taken in connection tinued to conduct business as a banking cor- with the whole instruction. In the former poration under the name of the Bank of part of the same instruction the court has in. Santa Clara County, then it became and was formed the jury that, if they found the coma corporation de facto,—that is, a corporation pany had performed certain enumerated acts, in fact, though not so in right," etc. The in- then it became a corporation de facto, and struction then proceeds to say that any offi-| then proceeded to say that "if you find that cer or director who in fact has acted as such the defendant, during the latter years of the is subject to the liabilities and penalties of

existence of this de facto corporation as a like otticers of a de jure corporation, etc. The business association, acted as its manager, last instruction is not in conflict with the for- and in fact had control of its funds and manmer as modified by the court. The conflict, aged its business, and in the course of such if any, was in the former instruction as management there came under his control asked, and that portion added to by the

before the 8th day of May, 1893, sums of court. But this is apparent, not real. When money in excess of

then the admisthe proofs show such facts as the Code des- sions and statements made in the course of ignates as sufficient to constitute a corpora

his conduct of the business as manager may tion de facto, it is for all the purposes of an be considered." In the same instruction the action of this character to be treated as a jury was explicitly informed that they were corporation. It is for such purpose a corpo

the exclusive judges of the sufficiency of the ration duly formed; and the legality of its evidence to establish the facts which it tendorganization cannot be questioned. When, ed to prove, of the credibility of witnesses, therefore, the court instructed the jury, as it etc. When read together, the instruction is did in effect, that it devolved upon the prose- proper. cution to prove a corporation duly formed, The fifth point in favor of reversal is foundorganized, and existing under the laws of ed on that portion of the same instruction the state of California, but that, if the per- which reads as follows: “If from the evisons named in the certificate performed cer- dence you find that in a certain book kept by tain acts (naming such as are essential to the Bank of Santa Clara County entries constitute a corporation de facto), it was a showing the balance of cash on hand on May corporation duly formed, etc., it gave a cor- 6 and May 8, 1893, were made, under and rect exposition of the law as applicable to by the direction of the defendant, then I the case. The third point made by counsel charge you that such entries are evidence for appellant is based upon an instruction tending to show the cash on hand on said given by the court (No. 14) to the effect that dates." There was evidence tending to show if the Bank of Santa Clara County was a de that the cashbook referred to in the instrucfacto corporation, any director or officer who tion was kept in the bank; that it showed in fact acted as such officer of such corpora- the caslı receipts and disbursements were

kept by a bookkeeper under the direction of The several objections to the evidence need defendant; that, at the close of the day's not be mentioned in detail, as they involve business, defendant would count the cash on no error calling for a reversal. Most of them hand, and furnish a slip to the accountant, are founded upon objections to evidence bewho entered the amount reported and bal- cause secondary in character, and not the anced it. Defendant also pointed out the best evidence of the facts proven. In these book to an expert accountant soon after the cases the prosecution had offered proper recfailure of the bank as one of the books es- ord evidence, which, upon the objection of desential to a knowledge of the finances of the fendant, was ruled out by the court. The bank, etc. It was prima facie evidence of theory of defendant and of the court seems the balances of cash on hand at the several to have been that, as the bank was not ledates at which it was important to show gally organized, its records showing the elecsuch balance. Being admissible in evidence, tion of officers, adoption of by-laws, etc., the instruction predicated upon it was proper. were not admissible. It therefore became

The court further instructed the jury as necessary for the prosecution to show by follows: "If, from all the evidence, you find oral testimony who were in fact the acting that on the 8th day of May, 1893, the de- officers of the corporation, etc. The evifendant knew that he was insolvent, and, dence was sufficient to support the verdict, knowing his insolvency, he took large sums and the only other question calling for speof money from the vaults of the bank, and cial mention is that presented by the moexecuted therefor his unsecured promissory tion to set aside the indictment. note to the bank, I instruct you that such The bill of exceptions upon which this motaking of the money was a fraudulent appro- tion was founded shows that 125 persons priation, and falls within the definition of were duly selected by the board of superembezzlement." This instruction must be visors, pursuant to an order of the superior read in connection with another given at the court, to serve as grand jurors for the year request of defendant, in the following lan- 1893, and certified to the county clerk of guage: “I further instruct you that the mak- Santa Clara county. The names of the pering, execution, and delivery of a promissory sons so selected as grand jurors were denote, on the part of the defendant, in the posited in a box by the clerk, as by law prosum of $8,381.17, is not in itself a criminal vided. On the 14th day of November, 1893, act, and that before you can convict the de. the superior court made an order requiring fendant you must find from the evidence to that a grand jury of 30 persons be drawn your entire satisfaction, and beyond a rea

from the box, and summoned to be and apsonable doubt, that not only was the money pear on December 5, 1893. The jury was actually in the Bank of Santa Clara County, duly drawn, and appeared and answered to but that the defendant took the said moneys their names; whereupon 10 of the number, out of the said bank, and gave his note in offering satisfactory excuses, were excused the sum of $8,384.17 therefor, contrary to his by the court. The names of the remaining trust." There were two other instructions 20 persons were duly deposited in a box, given on the same subject, emphasizing the from which 19 names were drawn in the usunecessity of there being evidence, independ- al manner to serve as grand jurors. Thereent of the notes, of the taking by defendant upon the persons so selected and drawn were of the money from the bank, and appropriat- questioned by the district attorney touching ing the same contrary to his trust. When their qualifications as jurors, whereupon two thus read together, these instructions were of them, viz. Cyrus Berry and W. E. Spennot detrimental to the defendant. There are cer, gave testimony tending to show that authorities to the effect that where an officer they were not assessed upon the last assessin charge of the funds of a bank takes there- ment roll of the county for taxation. Therefrom such funds and deposits in place there- upon said Berry and Spencer were chalof securities known by him to be worthless, lenged by the district attorney, and disand appropriates to his own use the funds missed by the court as incompetent to serve, thus taken, he is guilty of embezzlement, by reason that their names were not upon and no good reason is perceived why such is such assessment roll. The sole remaining not the law. The pretense of giving in re

name in the box was then drawn, viz. that of turn for funds thus taken by an officer se- Simeon Holland, who was impaneled, mak(urities which are worthless, and known to ing, with those impaneled, 18 grand jurors. be so by him at the time, is but an evasion or The court then issued a special venire to attempt to evade the conclusion following the sheriff to summon 2 additional persons the wrongful act.

to complete the panel. They were duly sumNumerous other points are made by appel- moned, and 1 of them impaneled, thus comlant in relation to instructions given and re- pleting the panel of 19 grand jurors, by fused. Those given by the court, taken to- which grand jury the indictment herein was gether, contained a correct exposition of the found and presented. At the time the spe law, and those asked by defendant and not cial venire issued, there were 95 names in given were either embodied in the instruc- the grand jury box in possession of the countions as given, or were erroneous as pre- ty clerk. The bill of exceptions further sented.

shows that at the hearing of the motion to

中

set aside the indictment, the assessment roll competent, or the statute fixing the qualifi. of the county was produced, and the name cation of jurors becomes an idle deelaration. of W. E. Spencer, one of the jurors chal- We are of opinion that the language of seclenged and excused, was in fact upon said tion 242, supra, which provides that the 19 roll.

whose names are drawn “shall constitute the Two objections are made to the legality of grand jury," must be taken and construed as the grand jury as organized: (1) That, the meaning 19 persons possessing the qualificamembers having been regularly drawn, the tions of jurors, as defined in sections 198 court had no jurisdiction to discharge two and 199 of the same Code; and to this end of the number, and order others. (2) That a the court before which such jurors are imgrand jury drawn and impaneled in 1893 had paneled may, upon an examination which no authority to act and find an indictment shows the jurors, or any of them, lack the in January, 1894.

necessary statutory qualifications, discharge In support of the first objection, we are such incompetents. This view is strengthreferred to section 242 of the Code of Civil ened by the language of section 227, Code Procedure, which provides that “when, of Civ. Proc., which provides that “when there the persons summoned as grand jurors and are not competent jurors enough present to not excused, nineteen are present they shall form a panel the court may direct the sherconstitute the grand jury.” The same section iff

to summon a sufficient number provides that, if more than 19 are present

to complete the panel." The juror their names shall be placed in a box, and 19 W. E. Spencer, having upon examination de. drawn, who “shall constitute the grand ju- clared that he was not assessed for taxation ry." The argument is that as in the present upon the last assessment roll, was properly instance there were present and not excused discharged. The court was authorized to act over 19 persons, and as 19 were drawn, they upon the evidence before it, and the fact that constituted the grand jury, and that no it afterwards appeared that he was mistaken power existed in the court to thereafter ex- 'n his sworn statement did not have the effect cuse any of them. This construction of the of making the ruling erroneous. When all statute virtually has the effect of abrogat- the persons summoned were exhausted withing other provisions of the same Code provid- out procuring a jury of 19, it was discreing for the qualification of jurors. Section tionary with the court to either order other 198 is as follows: “A person is competent as names drawn from the grand jury box and a juror if he be: (1) A citizen of the United summoned, or to issue a venire to the sheriff States, of the age of twenty-one years, who to summon additional persons to complete shall have been a resident of the state one the panel. Code Civ. Proc., &$ 226, 242. The year, and of the county, or city and county, court adopted the second course, and caused ninety days before being selected and re- two persons to appear, one of whom was turned; (2) in possession of his natural facul- impaneled to complete the grand jury. In ties, and of ordinary intelligence and not this course there was no abuse of the discredecrepit; (3) possessed of sufficient knowl- tion confided to the court. edge of the English language; (4) assessed on 2. The fact that the grand jury was organthe last assessment-roll of the county on prop- ized in November, 1893, and found the indicterty belonging to him." The next section ment against defendant in January, 1894, provides as follows: "A person is not com- does not renderit invalid. The Code of petent to act as a juror: (1) Who does not Civil Procedure (sections 204 to 211, both possess the qualifications prescribed by the inclusive) provides for the selection of perpreceding section; or, (2) who has been con- sons to serve as grand and trial jurors. Secvicted of malfeasance in office, or any felo- tion 210 provides that “the persons whose ny or other high crime.” These sections names are so returned shall be known as provide the qualifications of all jurors, grand regular jurors, and shall serve for one year, and trial alike. Manifestly the supervisors and until other persons are selected and reupon whom the duty of selection devolves, turned." It does not appear from the recwho have no means of making a critical ex- ord, and is not probable, that in fact the juamination, and who must depend upon their rors for 1894 had been "selected and returngeneral knowledge, will select many incom- ed" at the date of the finding of the indictpetent persons as jurors. To illustrate: ment. If they had not been, it was clearly Frank Johnson, who was duly assessed for proper to continue the jury of 1893 until taxation, etc., was selected and regularly such event happened. Again, under the readrawn and summoned as a grand juror in soning in Re Gannon, 69 Cal. 541, 11 Pac. one of the counties of this state. Frank 240, the action of the grand jury may be Johnson proved to be a woman. Aliens, considered valid until discharged by the court nonresidents, persons under age, persons who or by operation of law, and it was said the do not understand the English language, the expiration of the year did not effect such deaf, and other incompetents are frequently, discharge by operation of law. There is nothby inadvertence, selected and drawn as grand ing in Bruner v. Superior Court, 92 Cal. 239, jurors. One of two things must follow in 28 Pac. 341, in conflict with the views herein such cases,-either the court, upon an exam- expressed. ination, has authority to discharge the in- What has been said of the motion to

quash or set aside the indictment applies 1. The motion to set aside the information equally to the motion in arrest of judgment. was properly overruled, and likewise the To dwell in detail upon each of the 33 points demurrer to the information. The defendant made by appellant in his brief would swell was charged with the vifense of assault with this already too long opinion beyond all intent to commit rape by means of force and reasonable limit. It must suffice to say that violence. At the trial the prosecutrix testia careful examination of each of them fails fied that she was but 12 years of age, and to convince us that the record discloses any that she gained such information from cererror calling for reversal. The serious er- tain entries made in the family Bible. A morors committed by the court below were in tion to strike out her testimony as to ner favor of the defendant, and need not be fur- age, upon the ground that it was hearsay, ther noticed. The judgment and orders ap- was denied, and this ruling of the court is pealed from should be affirmed.

relied upon as error. In this state the age

of consent is fixed by the statute at 14 years. We concur: HAYNES, C.; BELCHER, C. There was no testimony whatever offered

upon the part of the defendant that the witPER CURIAM. For the reasons given in ness was 14 years of age, and her oldest sisthe foregoing opinion, the judgment and or- ter testified positively that she was but 12. ders appealed from are affirmed.

Under these circumstances, we conclude the ruling of the court, if wrong, was harmless

error. (106 Cal. 289)

2. A witness, James Woolery, brother of PEOPLE V. JOHNSON. (No. 21,181.)

the prosecutrix, testified that after the al(Supreme Court of California. March 9, 1895.)

leged assault he went to the shoemaker shop

of one Pfend, found the defendant there, ASSAULT WITH INTENT TO COMMIT RAPE Evi. DENCE-HARMLESS ERROR – AGE OF CONSENT

returned with him to the home of the prose. CHARACTER OF PROSECUTRIX INSTRUCTIONS - cutrix, and then he related a certain converPROVINCE OF JURY.

sation that occurred at that time. Upon 1. On a trial for assault with intent to com

cross-examination he stated what he had mit rape, the prosecutrix testified that she was

said to the defendant at the shop of Pfend, under the age of consent, basing such testimony upon entries in the family Bible. Her testi- and, upon being asked by the defense what mony was corroborated by that of another wit- the defendant replied to his statement, the ness, and the defendant offered no proof that she was above such age. Hold, that the refusal to

court held the question objectionable. This strike out such testimony of prosecutrix was, if

ruling is assigned as error, but inasmuch as wrong, a harmless error.

Pfend subsequently took the stand in be2. The exclusion of a conversation between

half of the defendant, and was allowed withthe witness and defendant, which a person who

out objection to state what the defendant heard it is allowed to give as a witness for defendant, is not prejudicial to defendant.

said at that time, no injury to defendant 3. It is error to strike out on motion an an- could have possibly resulted from the ruling swer which is directly responsive to a question of the court. not objected to when asked. 4. When it is sought to weaken the testi

3. The officer who arrested the defendant, mony of a witness for defendant hy showing while testifying, stated that he had taken that he is interested in the result of the trial, de

quite an active part in the defense. This evifendant may show that such interest arose from

dence was adduced by the prosecution (as the witness' belief in defendant's innocence. 5. On a trial for assault with intent to com

stated by the district attorney at the time) mit rape on one under the age of consent, evi- for the purpose of showing the interest of the dence of the former unchastity of the prosecutrix witness in the case. In rebuttal the witness is inadmissible. 6. When the charges asked by the defend

was asked the cause or reason of his interant are unreasonably numerous, it is proper to est, and, without objection in answer to this refuse such as are not demanded by the general interrogatory, he stated that upon investiganature of the case.

tion he believed the defendant innocent. Up7. On a trial for assault with intent to commit rape, a charge to the jury that, "if you be

on motion this answer was stricken out. We lieve the prosecutrix, it is your duty to render a deem this ruling of the court both erroneous verdict accordingly, was reversible error, as it and injurious. The answer was directly retook from the jury the question of defendant's intent.

sponsive to the question, and the opposite

party should hardly be allowed to remain Department 1. Appeal from superior court,

silent when the question was asked, and then Amador county; John F. Davis, Judge.

be permitted to move to strike out the anPhineas Johnson was convicted of assault

swer when he finds it against him. But, aside with intent to commit rape, and appeals. Re

from this, we think the question and answer versed.

not objectionable. The prosecution having W. J. McGee, for appellant. Atty. Gen. proven that the witness had an interest in the Hart, for the People.

result of the litigation, for the purpose od

weakening the effect of his testimony, we see GAROUTTE, J. The defendant was con- no valid reason why opposing counsel had not victed of a felony, and now prosecutes this the right to show generally what that interappeal to secure a reversal of the judgment est was for the purpose of counteracting the and a new trial.

effect of the former evidence,