Ex parte Hedley, 31 Cal. 108. Our Civil Code (section 358) has embodied the rule in the following words; "The due incorporation of any company claiming in good faith to be a corporation under this act, and doing business as such, or its right to exercise corporate powers, shall not be inquired into, collaterally, in any private suit to which such de facto corporation may be a party; but such inquiry may be had at the suit of the state on information of the attorney-general."

Appellant objects to the fourteenth instruction given by the court, as being in conflict with the instruction herein before set out and given in a modified form. This fourteenth instruction is too lengthy to be here set out in full. In it the court gives the definition of embezzlement, the nature of the charge against the defendant as specified in the indictment, and then proceeds as follows: "It appears in the certificate of incorporation, under which it is claimed the association therein named commenced business as a banking corporation, that it was not sufficient to entitle the directors therein named, or the stockholders, or their successors, rightfully to conduct a banking business; but if you find from the evidence that the directors named in this defective certificate entered upon the business named in the certificate, and that they and their successors continued to conduct business as a banking corporation under the name of the Bank of Santa Clara County, then it became and was a corporation de facto,-that is, a corporation in fact, though not so in right," etc. The instruction then proceeds to say that any officer or director who in fact has acted as such is subject to the liabilities and penalties of like officers of a de jure corporation, etc. The last instruction is not in conflict with the former as modified by the court. The conflict, if any, was in the former instruction as asked, and that portion added to it by the court. But this is apparent, not real. When the proofs show such facts as the Code designates as sufficient to constitute a corporation de facto, it is for all the purposes of an action of this character to be treated as a corporation. It is for such purpose a corporation duly formed; and the legality of its organization cannot be questioned. When, therefore, the court instructed the jury, as it did in effect, that it devolved upon the prosecution to prove a corporation duly formed, organized, and existing under the laws of the state of California, but that, if the persons named in the certificate performed certain acts (naming such as are essential to constitute a corporation de facto), it was a corporation duly formed, etc., it gave a correct exposition of the law as applicable to the case. The third point made by counsel for appellant is based upon an instruction given by the court (No. 14) to the effect that if the Bank of Santa Clara County was a de facto corporation, any director or officer who in fact acted as such officer of such corpora

tion "is subject to all the liability and penalties attaching to directors and officers duly elected by a corporation de jure," etc. The contention of appellant is that there can be no de jure officer without a de jure office to be filled, and that section 504 of the Penal Code, which defines embezzlement, applies only to de jure officers. The cases already cited, holding that in criminal cases proof that a corporation has acted as such is sufficient, are deemed sufficient upon the first branch of the question. As to the question of the necessity of proof that an officer is such de jure, it has been said there is no conflict in the authorities as to whether a de facto officer is liable criminally for embezzlement of funds in his hands. State v. Goss, 69 Me. 22; Fortenberry v. State, 56 Miss. 286; State v. Sellers, 7 Rich. Law, 368; State v. McEntire, 3 Ired. 171; Diggs v. State, 49 Ala. 311; Rex v. Borrett, 6 Car. & P. 124. We have found no case holding that a de facto officer may not be punished for embezzlement equally with a de jure officer.

The fourth contention of appellant is founded upon an excerpt from the fourteenth instruction of the court; and the attempt to predicate an argument upon it, to support the theory that the court invaded the province of the jury in passing upon the facts, falls to the ground when taken in connection with the whole instruction. In the former part of the same instruction the court has informed the jury that, if they found the company had performed certain enumerated acts, then it became a corporation de facto, and then proceeded to say that "if you find that the defendant, during the latter years of the existence of this de facto corporation as a business association, acted as its manager, and in fact had control of its funds and managed its business, and in the course of such management there came under his control before the 8th day of May, 1893, sums of money in excess of * *, then the admis

sions and statements made in the course of his conduct of the business as manager may be considered." In the same instruction the jury was explicitly informed that they were the exclusive judges of the sufficiency of the evidence to establish the facts which it tended to prove, of the credibility of witnesses, etc. When read together, the instruction is proper.

The fifth point in favor of reversal is founded on that portion of the same instruction which reads as follows: "If from the evidence you find that in a certain book kept by the Bank of Santa Clara County entries showing the balance of cash on hand on May 6 and May 8, 1893, were made, under and by the direction of the defendant, then I charge you that such entries are evidence tending to show the cash on hand on said dates." There was evidence tending to show that the cashbook referred to in the instruction was kept in the bank; that it showed the cash receipts and disbursements were

kept by a bookkeeper under the direction of defendant; that, at the close of the day's business, defendant would count the cash on hand, and furnish a slip to the accountant, who entered the amount reported and balanced it. Defendant also pointed out the book to an expert accountant soon after the failure of the bank as one of the books essential to a knowledge of the finances of the bank, etc. It was prima facie evidence of the balances of cash on hand at the several dates at which it was important to show such balance. Being admissible in evidence, the instruction predicated upon it was proper. The court further instructed the jury as follows: "If, from all the evidence, you find that on the 8th day of May, 1893, the defendant knew that he was insolvent, and, knowing his insolvency, he took large sums of money from the vaults of the bank, and executed therefor his unsecured promissory note to the bank, I instruct you that such taking of the money was a fraudulent appropriation, and falls within the definition of embezzlement." This instruction must be read in connection with another given at the request of defendant, in the following language: "I further instruct you that the making, execution, and delivery of a promissory note, on the part of the defendant, in the sum of $8,384.17, is not in itself a criminal act, and that before you can convict the defendant you must find from the evidence to your entire satisfaction, and beyond a reasonable doubt, that not only was the money actually in the Bank of Santa Clara County, but that the defendant took the said moneys out of the said bank, and gave his note in the sum of $8,384.17 therefor, contrary to his trust." There were two other instructions given on the same subject, emphasizing the necessity of there being evidence, independent of the notes, of the taking by defendant of the money from the bank, and appropriating the same contrary to his trust. When thus read together, these instructions were not detrimental to the defendant. There are authorities to the effect that where an officer in charge of the funds of a bank takes therefrom such funds and deposits in place thereof securities known by him to be worthless, and appropriates to his own use the funds thus taken, he is guilty of embezzlement, and no good reason is perceived why such is not the law. The pretense of giving in return for funds thus taken by an officer securities which are worthless, and known to be so by him at the time, is but an evasion or attempt to evade the conclusion following the wrongful act.

Numerous other points are made by appellant in relation to instructions given and refused.

Those given by the court, taken together, contained a correct exposition of the law, and those asked by defendant and not given were either embodied in the instructions as given, or were erroneous as presented.

The several objections to the evidence need not be mentioned in detail, as they involve no error calling for a reversal. Most of them are founded upon objections to evidence because secondary in character, and not the best evidence of the facts proven. In these cases the prosecution had offered proper record evidence, which, upon the objection of defendant, was ruled out by the court. The theory of defendant and of the court seems to have been that, as the bank was not legally organized, its records showing the election of officers, adoption of by-laws, etc., were not admissible. It therefore became necessary for the prosecution to show by oral testimony who were in fact the acting officers of the corporation, etc. The evidence was sufficient to support the verdict, and the only other question calling for special mention is that presented by the motion to set aside the indictment.

The bill of exceptions upon which this motion was founded shows that 125 persons were duly selected by the board of supervisors, pursuant to an order of the superior court, to serve as grand jurors for the year 1893, and certified to the county clerk of Santa Clara county. The names of the persons so selected as grand jurors were deposited in a box by the clerk, as by law provided. On the 14th day of November, 1893, the superior court made an order requiring that a grand jury of 30 persons be drawn from the box, and summoned to be and appear on December 5, 1893. The jury was duly drawn, and appeared and answered to their names; whereupon 10 of the number, offering satisfactory excuses, were excused by the court. The names of the remaining 20 persons were duly deposited in a box, from which 19 names were drawn in the usual manner to serve as grand jurors. Thereupon the persons so selected and drawn were questioned by the district attorney touching their qualifications as jurors, whereupon two of them, viz. Cyrus Berry and W. E. Spencer, gave testimony tending to show that they were not assessed upon the last assessment roll of the county for taxation. Thereupon said Berry and Spencer were challenged by the district attorney, and dismissed by the court as incompetent to serve, by reason that their names were not upon such assessment roll. The sole remaining name in the box was then drawn, viz. that of Simeon Holland, who was impaneled, making, with those impaneled, 18 grand jurors. The court then issued a special venire to the sheriff to summon 2 additional persons to complete the panel. They were duly summoned, and 1 of them impaneled, thus completing the panel of 19 grand jurors, by which grand jury the indictment herein was found and presented. At the time the spe cial venire issued, there were 95 names in the grand jury box in possession of the county clerk. The bill of exceptions further shows that at the hearing of the motion to

set aside the indictment, the assessment roll of the county was produced, and the name of W. E. Spencer, one of the jurors challenged and excused, was in fact upon said roll.

Two objections are made to the legality of the grand jury as organized: (1) That, the members having been regularly drawn, the court had no jurisdiction to discharge two of the number, and order others. (2) That a grand jury drawn and impaneled in 1893 had no authority to act and find an indictment in January, 1894.

In support of the first objection, we are referred to section 242 of the Code of Civil Procedure, which provides that "when, of the persons summoned as grand jurors and not excused, nineteen are present they shall constitute the grand jury." The same section provides that, if more than 19 are present their names shall be placed in a box, and 19 drawn, who "shall constitute the grand jury." The argument is that as in the present instance there were present and not excused over 19 persons, and as 19 were drawn, they constituted the grand jury, and that no power existed in the court to thereafter excuse any of them. This construction of the statute virtually has the effect of abrogating other provisions of the same Code providing for the qualification of jurors. Section 198 is as follows: "A person is competent as a juror if he be: (1) A citizen of the United States, of the age of twenty-one years, who shall have been a resident of the state one year, and of the county, or city and county, ninety days before being selected and returned; (2) in possession of his natural faculties, and of ordinary intelligence and not decrepit; (3) possessed of sufficient knowledge of the English language; (4) assessed on the last assessment-roll of the county on property belonging to him." The next section provides as follows: "A person is not competent to act as a juror: (1) Who does not possess the qualifications prescribed by the preceding section; or, (2) who has been convicted of malfeasance in office, or any felony or other high crime." These sections provide the qualifications of all jurors, grand and trial alike. Manifestly the supervisors upon whom the duty of selection devolves, who have no means of making a critical examination, and who must depend upon their general knowledge, will select many incompetent persons as jurors. To illustrate: Frank Johnson, who was duly assessed for taxation, etc., was selected and regularly drawn and summoned as a grand juror in one of the counties of this state. Frank Johnson proved to be a woman. Aliens, nonresidents, persons under age, persons who do not understand the English language, the deaf, and other incompetents are frequently, by inadvertence, selected and drawn as grand jurors. One of two things must follow in such cases,-either the court, upon an examination, has authority to discharge the in

*

competent, or the statute fixing the qualification of jurors becomes an idle deelaration. We are of opinion that the language of section 242, supra, which provides that the 19 whose names are drawn "shall constitute the grand jury," must be taken and construed as meaning 19 persons possessing the qualifications of jurors, as defined in sections 198 and 199 of the same Code; and to this end the court before which such jurors are impaneled may, upon an examination which shows the jurors, or any of them, lack the necessary statutory qualifications, discharge such incompetents. This view is strengthened by the language of section 227, Code Civ. Proc., which provides that "when there are not competent jurors enough present to form a panel the court may direct the sheriff * to summon a sufficient number to complete the panel." The juror W. E. Spencer, having upon examination declared that he was not assessed for taxation upon the last assessment roll, was properly discharged. The court was authorized to act upon the evidence before it, and the fact that it afterwards appeared that he was mistaken 'n his sworn statement did not have the effect of making the ruling erroneous. When all the persons summoned were exhausted without procuring a jury of 19, it was discretionary with the court to either order other names drawn from the grand jury box and summoned, or to issue a venire to the sheriff to summon additional persons to complete the panel. Code Civ. Proc., §§ 226, 242. The court adopted the second course, and caused two persons to appear, one of whom was impaneled to complete the grand jury. In this course there was no abuse of the discretion confided to the court.

2. The fact that the grand jury was organized in November, 1893, and found the indictment against defendant in January, 1894, does not render it invalid. The Code of Civil Procedure (sections 204 to 211, both inclusive) provides for the selection of persons to serve as grand and trial jurors. Section 210 provides that "the persons whose names are so returned shall be known as regular jurors, and shall serve for one year, and until other persons are selected and returned." It does not appear from the record, and is not probable, that in fact the jurors for 1894 had been "selected and returned" at the date of the finding of the indictment. If they had not been, it was clearly proper to continue the jury of 1893 until such event happened. Again, under the reasoning in Re Gannon, 69 Cal. 541, 11 Pac. 240, the action of the grand jury may be considered valid until discharged by the court or by operation of law, and it was said the expiration of the year did not effect such discharge by operation of law. There is nothing in Bruner v. Superior Court, 92 Cal. 239, 28 Pac. 341, in conflict with the views herein expressed.

What has been said of the motion to

quash or set aside the indictment applies equally to the motion in arrest of judgment. To dwell in detail upon each of the 33 points made by appellant in his brief would swell this already too long opinion beyond all reasonable limit. It must suffice to say that a careful examination of each of them fails to convince us that the record discloses any error calling for reversal. The serious errors committed by the court below were in favor of the defendant, and need not be further noticed. The judgment and orders appealed from should be affirmed.

1. On a trial for assault with intent to commit rape, the prosecutrix testified that she was under the age of consent, basing such testimony upon entries in the family Bible. Her testimony was corroborated by that of another witness, and the defendant offered no proof that she was above such age. Held, that the refusal to strike out such testimony of prosecutrix was, if wrong, a harmless error.

2. The exclusion of a conversation between the witness and defendant, which a person who heard it is allowed to give as a witness for defendant, is not prejudicial to defendant.

3. It is error to strike out on motion an answer which is directly responsive to a question not objected to when asked.

4. When it is sought to weaken the testimony of a witness for defendant by showing that he is interested in the result of the trial, defendant may show that such interest arose from the witness' belief in defendant's innocence.

5. On a trial for assault with intent to commit rape on one under the age of consent, evidence of the former unchastity of the prosecutrix is inadmissible.

6. When the charges asked by the defendant are unreasonably numerous, it is proper to refuse such as are not demanded by the general nature of the case.

7. On a trial for assault with intent to commit rape, a charge to the jury that, "if you believe the prosecutrix, it is your duty to render a verdict accordingly," was reversible error, as it took from the jury the question of defendant's intent.

Department 1. Appeal from superior court, Amador county; John F. Davis, Judge.

Phineas Johnson was convicted of assault with intent to commit rape, and appeals. Reversed.

W. J. McGee, for appellant. Atty. Gen. Hart, for the People.

GAROUTTE, J. The defendant was convicted of a felony, and now prosecutes this appeal to secure a reversal of the judgment and a new trial.

1. The motion to set aside the information was properly overruled, and likewise the demurrer to the information. The defendant was charged with the offense of assault with intent to commit rape by means of force and violence. At the trial the prosecutrix testified that she was but 12 years of age, and that she gained such information from certain entries made in the family Bible. A motion to strike out her testimony as to ner age, upon the ground that it was hearsay, was denied, and this ruling of the court is relied upon as error. In this state the age of consent is fixed by the statute at 14 years. There was no testimony whatever offered upon the part of the defendant that the witness was 14 years of age, and her oldest sister testified positively that she was but 12. Under these circumstances, we conclude the ruling of the court, if wrong, was harmless

error.

2. A witness, James Woolery, brother of the prosecutrix, testified that after the alleged assault he went to the shoemaker shop of one Pfend, found the defendant there, returned with him to the home of the prosecutrix, and then he related a certain conversation that occurred at that time. Upon cross-examination he stated what he had said to the defendant at the shop of Pfend, and, upon being asked by the defense what the defendant replied to his statement, the court held the question objectionable. This ruling is assigned as error, but inasmuch as Pfend subsequently took the stand in behalf of the defendant, and was allowed without objection to state what the defendant said at that time, no injury to defendant could have possibly resulted from the ruling of the court.

3. The officer who arrested the defendant, while testifying, stated that he had taken quite an active part in the defense. This evidence was adduced by the prosecution (as stated by the district attorney at the time) for the purpose of showing the interest of the witness in the case. In rebuttal the witness was asked the cause or reason of his interest, and, without objection in answer to this interrogatory, he stated that upon investigation he believed the defendant innocent. Upon motion this answer was stricken out. We deem this ruling of the court both erroneous and injurious. The answer was directly responsive to the question, and the opposite party should hardly be allowed to remain silent when the question was asked, and then be permitted to move to strike out the answer when he finds it against him. But, aside from this, we think the question and answer not objectionable. The prosecution having proven that the witness had an interest in the result of the litigation, for the purpose of weakening the effect of his testimony, we see no valid reason why opposing counsel had not the right to show generally what that interest was for the purpose of counteracting the effect of the former evidence.