4. The defendant offered to prove the general reputation of the prosecutrix for unchastity, but the court denied the offer, and allowed evidence of specific acts of unchastity to be proven; relying for such ruling upon the authority of People v. Benson, 6 Cal. 221. While that case holds that specific acts of unchastity may be proven, it does not hold that general reputation for unchastity may not be proven, and, upon the authority of many text-writers and cases, we have no doubt but that the general reputation of a prosecutrix for unchastity is proper and legal evidence. But the present case is an exception to the general rule. The prosecuting witness is under the age of consent, and for this reason evidence either of general reputation or specific acts would seem to be immaterial. This class of evidence is admissible for the purpose of tending to show the nonprobability of resistance upon the part of the prosecutrix; for it is certainly more probable that a woman who has done these things voluntarily in the past would be much more likely to consent than one whose past reputation was without blemish, and whose personal conduct could not truthfully be assailed. In other words, this class of evidence goes to the question of consent only, and in a case like the present the question of consent is not involved. In speaking to this point, while reviewing certain cases, Judge Cowen says in People v. Abbot, 19 Wend. 192: "They seemed to suppose that the testimony was proposed to shake the general credibility of the witness, as if it went to truth and veracity. That is not so. It goes to her credibility in the particular matter, to a circumstance relevant to the case in hand, from which the jury are asked to say she did consent; and it may be proved by the prosecutrix, or, if she deny it, by others." See, also, O'Blenis v. State, 47 N. J. Law, 279; Lawson v. State, 17 Tex. App. 302. Sound reason declares that such of necessity must be the rule. If this class of evidence was admissible as going to the credibility of the testimony of the prosecutrix in its entirety, then it would be equally admissible as against the veracity of any female who might be called upon to give evidence in a case. Yet no such principle is recognized anywhere; and, as an additional reason supporting the principle here deciared, this class of evidence is always admitted against a prosecutrix charging the offense here charged, even though she gives no evidence at the trial of the case.

5. The defendant by his counsel prepared and asked the court to give to the jury 49 numbered and separate instructions. This was entirely too many. The case was not of the character demanding any such treatise upon criminal law. The court refused many of them, and was justified in such refusal. The charge as given to the jury fairly covered the law bearing upon the case, and we see nothing objectionable therein, with a single exception. The court gave to the jury

the following instruction: "While it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evidence is never sufficient to convict. If you believe the prosecutrix, it is your duty to render a verdict accordingly." The plain implication to be drawn by the jury from this instruction is that, if the jurors believe the evidence of the prosecutrix, it then becomes their duty to find the defendant guilty. If this interpretation be too strong, then certainly it may be said that some of the jurors at least probably so understood the language of the court; and, upon any view, it was misleading and prejudicial to defendant's rights. The prosecutrix testified in detail to the acts of defendant which it is claimed constituted the offense charged. All other evidence at the trial was merely corroborative of her statements. It is not claimed that the offense of rape was committed, and by this instruction the question of the intent with which the defendant did the acts testified to by the witness was absolutely taken from the jury. She testified to no intent of defendant. His intent was to be determined by his acts, and that intent was a question of fact with which it was the sole province of the jury to deal. As we have already said, the court instructed the jury in effect that, if they believed the evidence of the prosecutrix as to the acts and conduct of the defendant, they must find him guilty. Now, the defendant may have done all the things charged against him by the evidence of the prosecutrix, and still have been possessed of no intent to commit rape, and the jury should not have been foreclosed by the court from so finding, if they so believed. The question of the intent with which the assault was made being the material element in the case, the court had no right to put a state of facts to the jury which would bar them from finding the intent to be other than that charged by the information. "When a specific intent is an element of the offense, no presumption of law can ever arise that will decide this question of intent." People v. Landman, 103 Cal. 577, 37 Pac: 518 For the foregoing reasons the judgment and order are reversed, and the cause remanded for a new trial.

Quigley to quiet title to certain land. Plaintiff died, and J. K. Secord, his administrator, was substituted in his stead. From the judgment, defendant appeals. Affirmed.

Sullivan & Sullivan, for appellant. Jackson Hatch and W. A. Bowden, for respondent.

HENSHAW, J. Action to quiet title, commenced by Joseph Kelly and prosecuted by the administrator of his estate, substituted upon suggestion of his death. Defendant claims title by mesne conveyance from the wife of Kelly. In a former partition suit, in which Kelly and his wife were parties plaintiff, it was found by the interlocutory decree that "said Joseph Kelly and his wife, Catharine Kelly, are the owners of an undivided 26/3941 part of said Rancho Milpitas." By the final decree was awarded to "Joseph Kelly and his wife, Catharine Kelly, jointly," the lands in controversy. Defendant by cross complaint attacks these decrees, averring that Catharine Kelly was the owner of the land in fee at and during the time of the partition suit; that the final decree was mistakingly drawn; that the judge was deceived in signing it; and that both the interlocutory and final decrees "were frauds upon the rights of said Catharine." He asks for a reformation of the decree, and an adjudication in his favor as to the ownership of the land. The appeal is from the judgment alone, and was taken more than 60 days after its rendition. No question as to the sufficiency of the evidence can be considered. Code Civ. Proc. § 939, subd. 1. The court finds that the purchase price of the land was paid out of the community funds; that Catharine Kelly never owned the fee of the whole or any part of the lands, and never had any interest therein, except as a member of the community; that the interlocutory decree adjudged Joseph Kelly and Catharine Kelly to be the owners of an undivided 26/3941 of the Rancho Milpitas, but that by a mistake in the final decree the land in controversy was set apart to Joseph' and Catharine jointly; that no fraud was practiced or mistake made to the injury of Catharine's rights. The single proposition advanced upon the appeal is that the court had no power to reform the decree in partition. But appellant's cross complaint was a direct proceeding asking for its reformation. The court found, as appellant pleaded, that a mistake had been made, and relieved him from it. He cannot be heard to complain of this, nor of the fact that he was not awarded the full relief sought. Civ. Code, §§ 3515,1 3516,2 3521.3 Since the evidence is not before us, it must be held that it was properly

1 Civ. Code, § 3515, provides: "He who consents to an act is not wronged by it."

2 Civ. Code, § 3516, provides: "Acquiescence in error takes away the right of objecting to it." 3 Civ. Code, § 3521, provides: "He who takes the benefit must bear the burden."

refused. The judgment appealed from is affirmed.

We concur: TEMPLE, J.; MCFARLAND, J.

(106 Cal, 343)

In re WAX'S ESTATE. (No. 18,367.) (Supreme Court of California. March 11, 1895.) WILL CONTEST-MENTAL CAPACITY EVIDENCEATTORNEY AS WITNESS TO WILL-CONFIDENTIAL COMMUNICATIONS.

1. In a will contest based on testator's mental incapacity. a witness for contestants cannot state what disposition testator made of a deed to land conveyed to him, when no offer is made to show that he disposed of it otherwise than as deeds are usually disposed of by the holders thereof

2. Where the attorney who drew a will witnesses it, at testator's request, he is free, if the will is contested, to testify as to any fact concerning its execution which he learned by virtue of his professional relation.

3. The withdrawal of an objection to the admission of evidence deprives the party objecting of the right to subsequently move to strike it out.

4. On the contest of a will, a witness may testify that testator in their business relations acted like a rational man.

5. Under Code Civ. Proc. § 1870, providing that in a will contest an "intimate acquaintance' of testator may give his opinion as to his sanity, it is largely within the discretion of the trial court to decide when a witness is an intimate acquaintance.

Commissioners' decision. Department 1. Appeal from superior court, El Dorado county; N. D. Arnot, Judge.

Proceeding to contest the will of Joseph A. Wax, deceased. From a judgment admitting the will to probate, William Wax and others, contestants, appeal. Affirmed.

Johnson & Johnson and Chas. A. Swisler, for appellants. Irwin & Irwin and E. W. Witmer, for respondent.

BELCHER, C. Joseph A. Wax was a resident of and died in El Dorado county on February 4, 1893. His only surviving heirs were three sisters and one brother. He left a paper purporting to be his last will and testament, which was thereafter duly presented for probate to the superior court of that county. Two of the sisters and the brother appeared and filed written opposition to the probate of the alleged will, upon the ground that when it was executed the decedent was not of sound and disposing mind. The issue thus raised was tried before a jury, and the ver dict was against the contestants. Thereupon judgment was entered admitting the will to probate, and from that judgment and an order denying their motion for a new trial the contestants appeal. The only points made for a reversal are that the court erred in certain rulings upon the admission of evidence.

1. William Wax, one of the contestants, was called as a witness for them, and testified that the decedent was his brother, and that his manner was peculiar and strange; that

their mother made a deed to them jointly, prior to the making of the deed by her to decedent, and that decedent told him what became of the deed. He was then asked, "What did he say became of that deed?" The question was objected to as irrelevant and immaterial, and the objection sustained. An exception was reserved, and it is now urged that the ruling was erroneous. Counsel say: "Suppose the answer had been that deceased ate the deed in his soup, or cut it up as a salad, or burned it and used the ashes as snuff, or soaked it in vinegar and drank it as wine, or that he carried it around with him in his pocket as a charm, or kept it in his boot as a preventive to rheumatism, or that he had thrown it away or fed it to his cattle or his dogs; certainly such an answer would have tended to show that his mind was affected, and would have been proper evidence for the jury to consider in determining the issue presented to them." It does not appear when either of the deeds referred to was made, nor what land or property, if any, was transferred or attempted to be transferred thereby. Both deeds may have been made many years before the execution of the will in contest. Contestants made no offer to prove that the deed to decedent was treated or disposed of by him otherwise than as deeds usually are by the holders thereof. The suggestions of counsel, therefore, as to possible answers to the question objected to, are without weight, and deserve no consideration. Under the circumstances shown, the question was entirely irrelevant and immaterial, and the objection to it was properly sustained.

2. Charles F. Irwin and Fred Irwin were attorneys at law, practicing their profession as partners under the firm name of Irwin & Irwin, at Placerville, in El Dorado county. The proposed will was drawn in their office by Fred Irwin on January 18, 1893. After it was drawn the testator subscribed his name thereto, and declared to the two Irwins that the instrument was his will, and they, at his request and in his presence, and in the presence of each other, signed it as attesting witnesses. Fred Irwin was called as a witness for the proponents, and, after testifying to the preliminary facts, was asked: "Now, Mr. Irwin, you will please proceed and relate in narrative form all that occurred between you and Joseph Anton Wax on the 18th day of January, 1893." Counsel for contestants objected to the question upon the ground that it called for confidential communications between client and attorney, and the witness had no right to reveal them, and thereupon proceeded to question the witness further. At the conclusion of the questions the objection was renewed, when one of the attorneys for proponents stated that he wished to argue the question, and thereupon the attorney for contestants stated that rather than lose the time he would withdraw his objection. The witness then went on to testify at length v.39p.no.6-40

on direct and cross-examination, and at the conclusion of his evidence contestants moved to strike it out upon the ground that the witness was acting as attorney for Wax at the time, and the statements he made were within the provisions of subdivision 2 of section 881 of the Code of Civil Procedure. The motion was denied and an exception reserved. Charles F. Irwin was also a witness for proponents, and was asked, among other things, to state everything that occurred between him and the testator on the day the will was executed. The testimony was objected to as being a violation of a confidential communication made between client and counsel, and the objection was overruled and exception taken. It is urged that these rulings were erroneous and prejudicial to contestants.

As to the refusal to strike out the testimony of Fred Irwin, it is enough to say that when contestants withdrew their objection to the question propounded to him they effectually deprived themselves of the right to afterwards move to have his testimony stricken out. People v. Long, 43 Cal. 444; People v. Rolfe, 61 Cal. 540; People v. Samario, 84 Cal. 484, 24 Pac. 283. As to the other objections raised under this head, it must be held that, when the testator requested the Irwins to sign the will as attesting witnesses, he in effect consented that whenever the will should be offered for probate they might be called as witnesses and testify to any facts, within their knowledge, necessary to establish its validity. In New York, where the statute in regard to the right to examine an attorney as to communications made to him by his client is substantially the same as ours, the court of appeals held in Re Will of Coleman, 111 N. Y. 220, 19 N. E. 71, that, where the attorney is requested by the testator to sign the attesting clause of the will as witness thereto, this is an express waiver, within the meaning of the Code, of the pledge of secrecy imposed thereby, and authorizes the disclosure. The court said: "The act of the testator in requesting his attorneys to become witnesses to his will leaves no doubt as to his intention thereby to exempt them from the operation of the statute, and leave them free to perform the duties of the office assigned them, unrestrained by any objection which he had power to remove." In Wisconsin the statute provides that "an attorney or counselor shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment." In McMaster v. Scriven, 85 Wis. 162, 55 N. W. 149, the contest was in regard to the probate of the will of one Susan R. Pitt, deceased. The paper propounded as such last will was drawn by J. G. Wickhem, an attorney, and signed by him as one of the attesting witnesses. The court said: "The testatrix requested Mr. Wickhem to sign the will, which was the result of the communications between them, as a subscribing witness, and he signed it accordingly. This must be held to

be a waiver of objection to his competency, so as to leave the witness free to perform the duties of the position, and to testify to any matter in relation to the will and its execution of which he acquired knowledge by virtue of his professional relation, including the mental condition of the testatrix at the time." In Doherty v. O'Callaghan, 157 Mass. 90, 31 N. E. 726, the appeal was from a decree admitting to probate the will of one Patrick Grealy. Thomas J. Gargan, an attorney at law, was permitted to testify, against the objection and exception of appellants, in regard to what was said to him by Grealy when the latter came to see him for the purpose of having his will drawn. The appellants contended that the communications were privileged, and therefore inadmissible. The court, after reviewing the authorities, said: "Undoubtedly, while the testator lives the attorney drawing his will would not be allowed, without the consent of the testator, to testify to communications made to him concerning it, or to the contents of the will itself; but after his death, and when the will is presented for probate, we see no reason why, as a matter of public policy, the attorney should not be allowed to testify as to directions given to him by the testator, so that it may appear whether the instrument presented for probate is or is not the will of the alleged testator." And see, also, subdivision 10 of section 1870 of our Code of Civil Procedure, which provides: "The opinion of a subscribing witness to a writing, the validity of which is in dispute, respecting the mental sanity of the signer," may be given in evidence.

3. David S. Simon was called as a witness for proponents, and testified that he had resided in Placerville about 35 years, and was engaged in the business of selling dry goods, clothing, boots, and shoes, under the firm name of Simon & Son, and was so engaged in November, 1890; that he knew Joseph Wax "some,-had a slight acquaintance with him"; that some time in November Wax came to him and wanted to know if he could borrow $1,200, and said he wanted it for one year; that witness inquired about the property offered as security, and found the loan would be safe, and then told him he could have the money; that witness had a mortgage made out, which was executed, and then let him have the money; that witness closely observed Wax when the loan was being negotiated, and at the end of the year the money, with the interest thereon, was repaid by him in full. The witness was then asked: "How did he conduct the transaction of borrowing the money, paying the interest, etc.?" The contestants objected to the question, upon the ground that it was ir relevant and immaterial; that it called for the opinion of the witness, and not a statement of facts; and that the proper foundation had not been laid. The objection was verruled and an exception reserved, and thereupon the witness answered: "He acted

like any rational man would; like anybody else would." There was no error in this ruling. The question did not call for an opinion of the witness, but for a statement as to the conduct and appearance of Wax at the time he made the loan and paid it. The question was relevant and material, and was proper under the law as declared in People v. Lavelle, 71 Cal. 351, 12 Pac. 226, and in Holland v. Zollner, 102 Cal. 633, 36 Pac. 930, and 37 Pac. 231. The witness was further asked: "From your acquaintance with the man, from his manner of transacting business with you, what is your opinion of the soundness or unsoundness of his mind at these times?" The contestants objected to the question, upon the ground that it was irrelevant, incompetent, and immaterial, and that no foundation had been laid for it, in that it was not shown that the witness was intimately acquainted with the man. The objection was overruled and an exception reserved, and thereupon the witness answered: "As stated before, he acted like any rational man would. The time we done business with him, as far as my opinion goes, his mind was perfectly sound." Contestants moved to strike out the answer, on the ground that it came in under objection, and was irrelevant, incompetent, and immaterial, as the witness had no intimate acquaintance with the man. The motion was denied, and an exception taken.

It is earnestly urged that these rulings were erroneous, under subdivision 10 of section 1870 of the Code of Civil Procedure, which provides that "the opinion of an intimate acquaintance respecting the mental sanity of a person, the reason for the opinion being given," may be given in evidence. It is difficult to define definitely what constitutes "an intimate acquaintance" within the meaning of the statute, and hence it has been held by this court that the matter is left largely to the discretion of the trial court. People v. Pico, 62 Cal. 50; Estate of Carpenter, 94 Cal. 406, 29 Pac. 1101; Wheelock v. Godfrey, 100 Cal. 578, 35 Pac. 317. In the case first cited it is said: "The witnesses having shown themselves respectively to have been acquainted with the defendant, the determination of the question as to whether that acquaintance was of an intimate character was within the discretion of the court below, with the exercise of which, there being no abuse, this court will not interfere." And in the case last cited it is said: "From necessity, much must be left to the discretion of the trial court in determining whether or not a given witness is an 'intimate acquaintance' within the purview of the statute." Here, looking at all the evidence given by the witness, we cannot say that there was such a clear abuse of discretion by the court below, in overruling the objection to the question propounded and in refusing to strike out the answer thereto, as would justify a reversal of the order denying a new trial.

MCFARLAND, J. The petitioner is in the custody of the chief of police, under a conviction in the police court of the city of Los Angeles of the offense of practicing medicine without having procured a certificate from a board of examiners, contrary to the provisions of "An act to regulate the practice of medicine," approved April 3, 1876, and an act supplemental thereto, which went into effect April 1, 1878 (St. 1875-76, p. 792; St. 1877-78, p. 918); and he asks to be discharged from such custody on a writ of habeas corpus heretofore issued out of this court.

Many of the grounds upon which the discharge is asked cannot be considered on this writ. The only question before us necessary to be decided is whether or not the appellant was entitled to a jury trial. He demanded a trial by jury; but his demand was denied, and the police judge proceeded to try and convict him without a jury. It seems to be admitted by counsel for respondent that if petitioner was entitled to a jury trial, and had demanded it, then the judge, sitting without a jury, did not constitute a court having jurisdiction to try the case. The point that the refusal of a jury can be reviewed only on appeal is not made. The case of Taylor v. Reynolds, 92 Cal. 573, 28 Pac. 688, seems to be determinative of the case at bar in favor of petitioner. Indeed that case was not so strong in favor of the petitioner as the one at bar; for in that case the violation of a city ordinance was involved, while here the petitioner was charged with a criminal offense created by a state law. But it was held in the former case that the action was a general "criminal proceeding," and that therefore the petitioner was entitled to a jury trial; and in the opinion the following language used by Dillon in

his work on Municipal Corporations is quoted approvingly: "So here, when the act or omission sought to be punished by imprisonment under a municipal ordinance is in its nature not peculiarly an offense against the municipality, but rather against the public at large, and when it falls within the legal or common-law notion of a crime or misdemeanor, and especially when, being of such a nature, it is embraced in the criminal code of the state, then the constitutional guaranties intended to secure the liberty of the citizen and the right of a trial by jury cannot be evaded by the nature of the powers vested in the municipal corporation or the nature of the jurisdiction conferred upon the municipal courts." And the foregoing language applies with much greater force to a case like the one at bar, where the offense charged arises under a general state law, than to a case where the offense arises under a mere municipal ordinance. It is also an answer to the contention that the so-called "Whitney Act" (Deering's Pol. Code, pp. 716, 717) gives jurisdiction to the judges of police courts of cities "having thirty thousand and under one hundred thousand inhabitants," which included Los Angeles and Oakland, to try misdemeanors without a jury. The language of section 5 of said act relied on is as follows: "And in such of the cases enumerated in this section in which trial by jury is not secured by the constitution of the state, he may proceed in the first instance without a jury; but on appeal the defendant shall be entitled to trial by jury in the superior court." This language is at least quite uncertain and ambiguous. It is difficult to determine what cases are "enumerated in this section," or whether it is intended to give the accused absolutely a trial by jury in the superior court, if he chooses to appeal. If valid otherwise, it would be a grave question whether it is not invalid for want of uniform operation, in that under its provisions a person charged with violating a general law in any other part of the state would be entitled to a jury trial, while a person charged with the same offense in either of said two cities would be denied the right to such a trial. However, the words, "in which trial by jury is not secured by the constitution," leave the whole question open; and the legislature, under the authorities above cited, did not have the power to take away the constitutional right to a jury trial in a case like the one at bar. The petitioner was accused of an offense "against the public at large," and falling "within the legal or common-law notion of a crime or misdemeanor," and "embraced in the criminal code of the state," and was therefore entitled to the constitutional guaranty of the right to a trial by jury.

There are, no doubt, some cases which do not come within the constitutional guarantee that "the right of trial by jury shall be secured to all and remain inviolate." It has been held to refer generally to the right of trial