ment.

He was held

He was remanded by the court. under a statute which related to embezzlement by "any clerk, apprentice, servant, or agent." It was not disputed that the petitioner was the "agent" of Wells, Fargo, & Co., and there was no question as to averments in an indictment, for no indictment had been found. People v. Tomlinson, 66 Cal. 341, would seem to hold that the facts showing the character of the agency, where one is indicted under section 508 of the Penal Code, and is alleged to have been the agent, need not be alleged.

The cases cited from other states do not support the contention of appellant. Under a New York statute relating to "clerks and servants," it was charged in the indictment that the defendant received money "as the agent," and facts were not alleged showing that the defendant was either a clerk or servant. It was said by the Supreme Court of New York: "The term 'agent' is nomen generalissimum, and although it includes clerks and servants, it is by no means. restricted to such persons.' (People v. Allen, 5 Denio, 79.)

People v. Tyron, 4 Mich. 667, was decided upon a Michigan statute relating to embezzlement by attorneys of property and their clients. State v. Newton, 26 Ohio St. 265, holds that a county auditor is not an officer charged with the custody of money within the meaning of a statute of Ohio. In Guddy v. State, the court held that, to charge a bailee with embezzlement, the indictment must by direct averment charge that the embezzled property came into his possession or was under his care by virtue of his agency or of the bailment. (8 Tex. App. 127.) It was held that, under a statute of Minnesota, which defined embezzlements of goods intrusted to a defendant for delivery to be carried for hire, an indictment was insufficient which failed to aver those facts.

None of the cases cited seem to sustain the proposition that where the facts showing that a party charged is a "bailee" are fully stated, and all the other facts

necessary to constitute the offense are averred, an indictment is fatally defective, because he is not in terms alleged to be a "bailee." On principle, we can see no reason why it should be so held. If it be necessary to allege facts showing the character of the agency, it becomes a question of law rather than of fact, whether upon the averments the defendant was or was not a bailee. If not necessary to state the facts showing the character of the agency, yet it is not a matter of which the defendant can complain, if such facts are stated, and he thus be given fuller notice of the charge than would be given by simply designating him as "bailee."

Another ground in arrest of judgment was that "the court had no jurisdiction of the person of the defendant or of the offense charged." In support of this ground, the defendant introduced certain evidence.

We discover no reason why the proceedings before the magistrates should affect the validity of the information or deprive the Superior Court of jurisdiction. Moreover, a motion in arrest of judgment must be founded upon defects in the indictment or information appearing on the face thereof. (Pen. Code, secs. 1185, 1004.)

The judgment is reversed and set aside, with direction to the court below to render and enter an appropriate judg

ment.

MCKEE, J., MORRISON, C. J., MYRICK, J., SHARPSTEIN, J., and THORNTON, J., concurred.

[No. 9606. Department One.- December 9, 1886.]

HOWARD W. BROWN, Respondent, v. W. H. WELDON, APPELLANT.

ACTION ON

PLEADING

a

PROMISSORY NOTE ADMISSION OF EXECUTION AND GENUINENESS. The action was brought on promissory note, which was set forth in hæc verba in the complaint. The answer was unverified, and consisted of a general denial. On the trial the plaintiff offered no evidence of the execution of the note. Held, that the evidence was unnecessary, as the genuineness and due execution of the note were admitted, and that prima facie it was made when and where it bore date.

ID.

SUFFICIENCY OF COMPLAINT. The complaint although inartifically drawn, held, to state a cause of action, and not to be ambiguous or uncertain.

APPEAL from a judgment of the Superior Court of Alameda County, and from an order refusing a new trial.

The action was brought on a promissory note. The complaint was unverified, and alleged that the defendant was indebted to the plaintiff in the sum of $765 upon a promissory note, set forth in hæc verba, made by the defendant to Mrs. L. H. Brown, dated at Oakland on the 5th of January, 1878, and then and there delivered to her; that afterwards and before the note became due, Mrs. L. H. Brown, for a valuable consideration, sold and transferred it to the plaintiff, by an indorsement on its back, and delivered the same to him. The complaint further alleged that the plaintiff was the owner and holder of the note; that the same was long past due and owing to him; that there was due and owing on it the sum of $500, and interest thereon from date at one per cent per month, amounting to the full sum of $765, no part of either principal or interest having been paid. The defendant demurred to the complaint on the grounds: 1. That it did not state facts sufficient to constitute a cause of action; and 2. Because it was ambigious, unintelligible, and uncertain in not stating when or where

the note was made, or that the defendant ever promised to pay the same or any part thereof. The demurrer was

overruled, whereupon the defendant answered, denying generally the allegation of the complaint, and alleging want of consideration, and that the note was not made in California, and that the action was barred by the statute of limitations. The answer was unverified. The court found in favor of the plaintiff, and judgment was entered accordingly. On the trial the plaintiff rested his case without offering any evidence to prove the execution of the note. The defendant thereupon moved for a nonsuit, which was denied. The further facts are stated in the opinion of the court.

Gibson & Whitmore, for Appellant.

H. P. Brown, for Respondent.

MCKINSTRY, J.-The complaint is inartificially and loosely drawn. But we do not think it fails to state a cause of action. Nor is it subject to demurrer as ambiguous or uncertain. But it so far departs from established precedents, and so nearly approaches the line which separates pleading which may be tolerated though not approved from pleading radically defective, that we refuse to treat this appeal as frivolous.

Defendant's motion for a nonsuit was properly denied. The genuineness and due execution of the promissory note were admitted. (Code Civ. Proc., sec. 447.) Prima facie it was made when and where it bore date.

The findings are sufficient.

Judgment and order affirmed.

MYRICK, J., and THORNTON, J., concurred.

THE PEOPLE, RESPONDENT, v. J. D. D. McCOY, Ap

PELLANT.

CRIMINAL LAW

ID.

ID.

ID.

ID.

ARRAIGNMENT

DEFENDANT STANDING MUTE ENTRY OF PLEA BY COURT FORM OF ENTRY. The defendant was convicted of manslaughter. At the time of his arraignment, he was asked if he pleaded guilty or not guilty. To this question he personally made no answer, but his attorney said, "We plead not guilty." The clerk thereupon, the defendant still standing mute, made an entry in the minutes of the court that "the defendant pleads not guilty of the offense charged in the information, and by consent of all parties, the cause is set for trial on the 12th of October, 1885." Held, that under section 1024 of the Penal Code it was the duty of the court to have entered on the minutes a plea of not guilty, and that the defendant was not prejudiced by the form of the entry.

WITNESS FALSE IN PART INSTRUCTION NEED NOT BE REPEATED. - The refusal of the court to instruct the jury that a witness false in one part of his testimony is to be distrusted in all is not error, if the instruction has already been substantially given. MISCONDUCT OF JUROR READING NEWSPAPER NEW TRIAL. The reading by a juror, during the progress of the trial, of a newspaper containing any matter in connection with the subject-matter of the trial which would be at all likely to influence him in the performance of his duty, is sufficient misconduct to warrant a new trial.

MISCONDUCT MUST BE OBJECTED TO BEFORE DETERMINATION OF MOTION. - Where a party in the trial of a criminal case sees or knows of an act of misconduct by a juror, which he does not bring to the attention of the court, or object to at the time, or at any other time during the trial, or on the hearing of a motion for a new trial, it is too late to make the misconduct a basis of objection after the court has disposed of the motion and pronounced judg

ment.

RECORD MUST SHOW GROUNDS OF MOTION. In such a case, where the record fails to disclose the grounds upon which the motion for a new trial was heard and determined, the ruling of the court upon the motion cannot be reviewed on appeal.

APPEAL from a judgment of the Superior Court of Ventura County, and from an order refusing a new trial.

The facts are stated in the opinion of the court.

Hall & Hamer, L. F. Eastin, J. M. Brooks, and L. C. McKeeby, for Appellant.

Attorney-General Marshall, Orestes Orr, and Blackstock & Shepherd, for Respondent.