question is not called for by anything the witness has testified to.

In bank. Appeal from superior court, Santa Clara county; W. G. Lorigan, Judge.

Un Dong was convicted of assault with a deadly weapon, and appeals. Reversed.

C. D. Wright and D. W. Burchard, for appellant. Atty. Gen. Hart, for the People.

VAN FLEET, J. Defendant, a Chinese, was convicted of an assault with a deadly weapon upon a fellow countryman, and sentenced to the state prison for the term of two years. He appeals from the judgment and an order denying him a new trial.

It is strongly urged that the evidence is insufficient to sustain the verdict, but we do not think this contention can be sustained. The evidence of the prosecution tended to show that the alleged assault was committed between 11 and 12 o'clock at night, upon a public street in a quarter of the city of San José known as "Chinatown"; that defendant and an associate, one Ah Wei, lay in wait at a street corner, outside a restaurant, until the prosecuting witness, one Ah Bong, came out, when defendant pointed out Bong to Ah Wei, and told the latter to shoot; that Ah Wei immediately fired two shots at Ah Bong, one of which hit the latter in the back; that, immediately following the shots by Ah Wei, several other shots were fired by a party or parties from across the street. But by whom the latter shots were fired, or whom they were fired at, was not disclosed. These facts, in substance, were testified to by a number of Chinese witnesses, several of whom positively identified defendant as one of the assailants. On the part of defendant, a large number of Chinese witnesses, and some white witnesses, gave testimony tending strongly to show that defendant was not present at the time of the assault, and did not participate therein. One Wheeler, a peace officer or watchman in Chinatown, testified that he was in a restaurant near the place of the shooting, and ran out on the sidewalk, where he could see the parties before the second shot was fired; that he saw Ah Bong's assailants, and recognized them, and that defendant was not one of them, but that one Toi Soon did the shooting. Another white witness, Jones, who was the doorkeeper at the Chinese theater, testified that he had seen defendant enter the theater earlier in the evening, and that defendant was still in the theater when the shooting occurred. Other witnesses, including some police officers, testified that the prosecuting witness, immediately after the shooting, accused another party than defendant of doing the shooting. There was also evidence tending to show that the trouble grew out of differences between members of rival tongs or societies; that the arrest and prosecution of defendant, who it appeared was the grand master or headman of one of the rival tongs, was an afterthought prompted by a desire on the part of the wounded

man and his friends to make defendant suffer vicariously for the wrong of the real assailant, who had escaped and could not be apprehended.

The evidence is exceedingly contradictory and conflicting throughout, and there are many things calculated to cast discredit upon the case of the prosecution. But, while the evidence is not, to our minds, by any means satisfactory, we cannot say that it was not sufficient to sustain the verdict. But we think the court committed error in its ruling on the cross-examination of the prosecuting witness, Ah Bong, which, under the circumstances, was manifestly prejudicial to defendant. The only evidence tending to show motive for the alleged assault was that given by the witness Ah Bong, the party assaulted. He testified in his direct examination by the prosecution that the only cause of the assault upon him, so far as he knew, was that he was present on a previous occasion when the defendant, with several other Chinese, came to the theater, and assaulted the white doorkeeper by beating him with revolvers; that he (Ah Bong) witnessed the affair and subsequently gave the names of those engaged in it to the officers, which resulted in the arrest of the assailants. That previous to this he and the defendant were on friendly terms and had never had any difficulty. Upon cross-examination the witness was asked, "Was this defendant, Un Dong, among the parties who assaulted that doorkeeper?" to which he answered, "Yes, sir; he had something to do with it, too." The defendant's counsel then asked, "What did he do?" to which question the district attorney objected. The objection was sustained, and defendant was not permitted to cross-examine the witness upon the subject. The record does not disclose the ground of the objection, but the question was plainly in the line of proper cross-examination, and upon a point of vital importance to the defendant. The witness having assigned the result of the affair at the theater as the sole ground for the defendant's malice towards himself, and the only motive for the subsequent assault upon him, it was very material for the defendant to rebut the statements of the witness in this regard, and to show, if he could, by the cross-examination of the witness, that the latter was mistaken, and that defendant had in truth no participation in that affair, as defendant himself claimed was the fact. This he might have been able to accomplish, if permitted to properly cross-examine the witness, or at least have so shaken the statements of the latter as to have turned the scales of justice in his favor.

The defendant was examined as a witness in his own behalf. His examination in chief was confined to a denial of any participation in the assault upon the prosecuting witness, Ah Bong, or that he was present on the occasion, and a statement that he was in the theater at the time; and a further denial of having taken part in the assault upon the

doorkeeper of the theater. In cross-examination he was asked these questions by the prosecution: "Q. Who lives in that house with you, where you live? Defendant's Attorney: We object to that as irrelevant and Immaterial. (Objection overruled. Defendant excepts.) A. I had servants that attend to my household matters. Q. Some women live in that house? (Objected to and sustained.) Prosecuting Attorney: I think the prosecution has a right to show what this man is engaged in, or his occupation or business. The Court: Why don't you? Prosecuting Attorney: Q. Isn't it a fact that you live in a house of prostitution?" To this defendant objected, but the objection was overruled, and defendant answered: "No; it ain't a house of prostitution. It is a house where they rent rooms for boarding purposes." He was also asked: "Are there any Chinese prostitutes in that house?" and "Are there any Chinese women in that house?" to which latter questions objections were sustained. This whole course of examination by the prosecution was Improper, in the highest degree. The questions asked were not only in large part violative of the defendant's right to have his cross-examination confined to the subjectmatter of his testimony in chief (People v. O'Brien, 66 Cal. 603, 6 Pac. 695; People v. Hamblin, 68 Cal. 101, 8 Pac. 687), but the obvious purpose and undoubted effect of such course of examination were to degrade and injure defendant in the estimation of the jury. Its allowance was therefore erroneous, and clearly prejudicial. People v. Wells, 100 Cal. 459, 34 Pac. 1078. Nor was the error cured or the prejudicial effect removed by the negative answers to the questions allowed, or the sustaining of defendant's objection to others where, as here, the manifest purpose and inevitable tendency of the questions were to Injuriously affect the verdict. The error in such case lies in permitting an examination of that character. People v. Wells, supra. It was likewise error to allow the question, "Aren't you connected with a gambling house with Yen Yick?" put by the prosecution, on cross-examination, to Chee Ying, a witness for defendant. It was not in response to anything called out on his direct examination, and could have been intended but for one purpose, that of discrediting the witness with the jury by a method wholly unsanetioned in law. This character of examination appears to have been several times indulged in by the prosecution. We have had frequent occasions to animadvert upon similar conduct in criminal cases, and it has been uniformly held to be improper. Its repetition is not only wholly inexcusable, but it is not In keeping with a proper appreciation by the prosecuting officer of the functions of his office.

It is contended that the court invaded the province of the jury in charging them that there was an "irreconcilable conflict" in the evidence, as between the prosecution and de

fense. While it is a dangerous practice to undertake to characterize the effect of the evidence, in the sense in which the language of the court was here used, we are not prepared to say, in view of the evidence in the case, that the charge was prejudicially erroneous. For the errors above pointed out, the judgment and order are reversed.

We concur: BEATTY, C. J.; GAROUTTE, J.; MCFARLAND, J.

(4 Cal. Unrep. 970) CHAPMAN. PENNIE. (No. 15,520.) 1 (Supreme Court of California. Feb. 5, 1895.) DEFICIENCY JUDGMENT IN FORECLOSURE-ACTION

AGAINST ADMINISTRATOR-DISCHARGE
IN BANKRUPTCY.

1. An action cannot be maintained against an administrator for a deficiency judgment on foreclosure, where the decedent, the mortgagor, was a nonresident at the time of commencement of the action to foreclose, remained away from the state until after the sale thereunder, and never appeared in the action.

2. On the same day that a discharge in bankruptcy was granted to B., the maker of a note and mortgage, "from all debts and claims which are made provable against his estate," a stipulation was entered into between B. and C., the owner of the note, whereby it was agreed that the interest should be reduced. that the note should be extended, and that proceedings to enforce its payment should be dismissed. Held that, as it did not appear that the agreement to pay the note was made after the discharge, the parties did not intend to make a new contract on which the bankrupt could be held, but only to extend the time and reduce the interest of the note and mortgage.

In bank. Appeal from superior court, city and county of San Francisco; Wm. T. Wallace, Judge.

Action brought by E. W. Chapman against James C. Pennie, administrator of the estate of John Bensley, deceased, to compel him to pay a deficiency judgment on the mortgage note of his decedent. Judgment rendered for defendant. Plaintiff appeals. Affirmed. T. M. Osmont, for appellant. Naphtaly, Friedenreich & Ackerman, for respondent.

PER CURIAM. The deceased, John Bensley, made his promissory note to the Nevada Bank of San Francisco, November 24, 1875, for the sum of $80,000, payable one year thereafter, at the rate of 14 per cent. per month, and to secure the same executed to the Nevada Bank a mortgage upon certain real estate in the city and county of San Francisco. January 19, 1881, the Nevada Bank commenced an action upon the prom. issory note against Bensley and others for the foreclosure of the mortgage given as security for the payment therefor. Bensley was absent from the state, and service upon him was had by the publication of summons. Judgment was rendered in that action, January 5, 1882, for the foreclosure of the mortgage and the sale of the premises, and providing that in case of a deficiency in the proceeds of the sale the judgment for such

Rehearing denied.

deficiency should be docketed against the defendant, Bensley. Under this judgment an order of sale was issued to the sheriff of the city and county of San Francisco; and on the 10th of August, 1882, he returned the order of sale, from which it appeared that, after applying the proceeds of the sale upon the judgment, there was a deficiency of $37, 721.51. Judgment for this deficiency was then docketed by the clerk against Bensley. December 10, 1889, the Nevada Bank assigned the said promissory note to T. M. Osmont, and on the 21st of May, 1890, Osmont assigned the same to the plaintiff. The plaintiff has brought this action upon the aforesaid promissory note, setting forth in his complaint that the sum of $37,721.51. with interest, is unpaid thereon, and alleg. ing that on the 26th of May, 1890, he presented his claim for the said deficiency to the defendant, as the administrator of Bensley's estate, for allowance, and that it was by him rejected. Judgment was rendered for the defendant in the court below, and the plaintiff has appealed directly therefrom upon the judgment roll alone, without any statement or bill of exceptions.

In his brief herein counsel for appellant states: "The sole question involved in the case-assuming that such defense may be made without pleading-is whether an action can be maintained against an administrator for a deficiency arising upon the sale of mortgaged premises pursuant to a decree of foreclosure against the decedent in his lifetime, in a case where the decedent, the mortgagor, was a nonresident of this state at the time of the commencement of the action to foreclose, remained absent from the state until after the foreclosure and sale thereunder, and until his death, and never appeared in the action, no jurisdiction having been acquired except by publication of summons." This precise question was determined in accordance with the contention of appellant in Blumberg v. Birch, 99 Cal. 416, 34 Pac. 102, and in the more recent case of Felton v. West, 102 Cal. 266, 36 Pac. 676, both of which decisions were, however, rendered after the appeal had been taken in the present case. February 27, 1877, Bensley was adjudged a bankrupt by the district court of the United States for the district of California, and on March 20, 1878, that court rendered its judgment granting Bensley a discharge in bankruptcy, by which it ordered that he be "forever discharged from all debts and claims which are made provable against his estate, and which existed on the 5th day of February, 1877, on which day the petition for adjudication was filed against him, excepting such debts, if any, as are by law exempted from the operation of a discharge in bankruptcy." The note in the present action was provable against Bensley's estate, and by the terms of the decree he was discharged therefrom. Counsel for appellant in his brief contends that this de

cree is not available by reason of the fact that his discharge was based upon an agreement reserving the creditors' rights against him. The decree itself is, however, absolute and without limitation. We cannot in this action look into the agreement for the purpose of determining whether the decree is in accordance with that agreement. If for any reason the decree is other than should have been rendered, the parties affected thereby should have applied for its correction to the court which pronounced it. Upon a collateral attack we can only look at the language in which it is expressed. It is not impossible that the agreement referred to, and which was made in July, 1877, was vacated and annulled by the parties themselves prior to the entry of the decree of discharge. For the purpose of sustaining the action of the court we are to so hold, if necessary.

It is contended, however, that if it must be held that Bensley was released from his liability on this note by the discharge in bankruptcy, yet he is liable for the debt under the agreement made March 20, 1878. The agreement, as averred and found, is as follows: "That on the 20th day of March, 1878, the said John Bensley and the said James Coffin, while the said Coffin was the owner and holder of said promissory note, entered into an agreement in writing by which it is covenanted and agreed that the interest of said promissory note should be reduced to eight (8) per cent. per annum, and that said interest should be punctually paid, and that the time of the payment of said promissory note should be extended to the 1st day of November, 1880, and that said note should be punctually paid; and, furthermore, that said certain proceedings theretofore instituted by the said James Coffin to enforce the payment of said promissory note should be dismissed, which said proceedings were accordingly dismissed." It is plain, we think, that this stipulation was not understood or intended by the parties to have the effect now claimed for it. The note was secured by a mortgage, and no one supposed that as to the security the debt was discharged by the proceedings in bankruptcy. The parties believed the debt preserved by the previous agreement. The motive of Bensley doubtless was to procure time to pay off and discharge the mortgage, and the agreement could have had no other purpose than to afford Bensley this privilege. It does not appear that it was made after the discharge. It bears the same date. As it was shown that the debt had been discharged, it was incumbent upon the plaintiff to show that the bankrupt had agreed, after the discharge, to pay the debt, and the action should have been based on the new agreement. The parties did not intend to make a new contract which should supersede the note and mortgage. It merely extended the time and reduced the interest stipulated in the note and mortgage. The judgment is affirmed.

(106 Cal. 62)

ROUNTREE v. I. X. L. LIME CO. (No. 15,745.)

(Supreme Court of California. Feb. 2, 1895.) APPEAL-TRIFLING ERROR.

An appeal from a judgment, upon a trivial error in the computation of interest, is without merit.

Department 1. Appeal from superior court, Santa Cruz county; J. H. Logan, Judge. Action by Rountree against I. X. L. Lime Company. There was judgment for plaintiff, and defendant appeals. Judgment affirmed. Z. N. Goldsby, for appellant. L. F. Smith, for respondent.

PER CURIAM. The appeal in this case is without merit, and was evidently taken for delay. It is brought here upon the judgment roll alone, without any exception to the sufficiency of the evidence to sustain the findings of fact, and the judgment as entered follows the conclusions of law found by the court. In these conclusions of law the court finds that the plaintiff "is entitled to judgment for the sum of $638.55, with interest thereon from the 1st day of September, 1893, to this date (February 17, 1894), and now amounting to $23.70, with costs of suit." Upon a proper computation the interest upon the principal sum of the judgment would amount to $20.70 instead of $23.70, and the latter sum is manifestly a clerical error, which would have been corrected by the court below upon having its attention called to the matter. To appeal from a judgment upon a trivial error in the computation of interest, when the entire relief sought could have been obtained upon a mere application to the trial court, is essentially frivolous, and merits reproof. The superior court is directed to make the proper correction in its computation of interest, and thereupon the judgment will stand affirmed. The costs of this appeal are to be paid by the appellant, and the respondent is allowed the sum of $100 damages as a part of the costs of the appeal.

(4 Cal.. Unrep. 969)

Ex parte COOK et al. (No. 21,197.) (Supreme Court of California. Feb. 4, 1895.) JURISDICTION OF JUSTICE.

A justice of the peace has no jurisdiction of the crime of embezzlement committed in another county.

Petition by Joseph E. Cook and Thomas E. Langley for habeas corpus and release from commitment by a justice of the peace. Writ granted.

Myrick & Deering and Wm. S. Wells, for petitioners. C. Y. Brown, for respondent.

PER CURIAM. Habeas corpus. Petitioners have been held to answer, after examination before a committing magistrate, for the crime of embezzlement, and ask to be dis

charged upon the ground that they were committed without reasonable or probable cause. The specific charge is that they embezzled certain fruit which was received by them in the county of Contra Costa under a contract by which they agreed to incur certain expenses for packing, shipping, etc., and to sell the fruit in Eastern markets for account of the growers on commission. The evidence in the deposition shows that they did with the fruit precisely what they contracted to do, but they failed to pay over to the growers the whole amount of their share of the proceeds. It is clear from the evidence that there was no embezzlement of the fruit. If any embezzlement has been committed it was of the proceeds, and was committed in San Francisco, and not in Contra Costa. The magistrate who issued this commitment (a justice of the peace of Contra Costa county) had no jurisdiction of the only offense which the evidence has the Prisoners slightest tendency to establish. discharged.

(105 Cal. 504)

PEOPLE v. COLLINS. (No. 21,129.) (Supreme Court of California. Jan. 5, 1895.) INFORMATION-NEGATIVING FEDERAL JURISDICTION -IMPANELING JURY-QUALIFICATION IMPEACHING WITNESS.

1. Since the jurisdiction of a state over crimes committed within its territory is general, and that of the United States exceptional, depending on the fact of purchase of land with the consent of the state legislature for forts, arsenals, and other needful buildings, it is not necessary to negative, in an indictment or information in the state courts, the jurisdiction of the federal courts.

2. The absence of a venireman, when his name is called in a criminal case, does not necessitate a suspension of proceedings until an attachment can be served, but the court may fill the panel from the veniremen present.

3. An opinion as to the guilt of a defendant in a criminal case, based on newspaper statements, does not disqualify one from acting as a juror, where he testifies that the opinion will not prevent him from acting impartially.

4. A prejudice against the defense of insanity in criminal cases does not disqualify a juror, where no such defense is made or contemplated.

5. The fact that jurors summoned on a special venire fail to answer when called in the morning does not render it erroneous to put their names in the box in the afternoon when they appear, though the names of those put in the box in the morning are not exhausted.

6. Where a juror on a murder trial testifies that he has conscientious scruples against the infliction of the death penalty, and a challenge by the people on this ground is sustained, the court does not abuse its discretion in refusing permission to the defendant's counsel to further examine the juror.

7. In a murder trial, evidence is not admissible to contradict a witness who has testified, on cross-examination, that he executed a bond for certain Chinamen under the internal revenue law, but denied that he had been paid for it.

8. Where the bill of exceptions does not show that defendant was absent when the case was set for trial, it will be presumed that he was present.

Commissioners' decision. In bank. Appeal from superior court, city and county of San Francisco; Edward A. Belcher, Judge.

Af

Patrick J. Collins was convicted of murder in the first degree, and appeals. firmed.

G. E. Colwell and P. C. Harlan, for appellant. William S. Barnes, for the People.

HAYNES, C. Appellant was convicted of murder in the first degree. His motions for a new trial and in arrest of judgment, respectively, were denied, and he was duly sentenced to be hanged. He now appeals from the said judgment and the orders denying said motions.

The first question presented goes to the sufficiency of the information. The information charges the defendant with a felony, "to wit, murder, committed as follows: The said Patrick J. Collins on the 9th day of October, A. D. eighteen hundred and ninety-three, at the said city and county of San Francisco, state of California, did then and there willfully," etc., kill and murder one Sarah Collins. It is argued on behalf of appellant that this information does not show that the offense was committed within the jurisdiction of the superior court of said city and county, because that court has not jurisdiction over all the territory embraced therein, but that the federal courts have exclusive jurisdiction of portions thereof, and that, therefore, the general allegation that the offense was committed "at the city and county of San Francisco" is not sufficient. This objection concedes the jurisdiction of the superior court over all places within the limits of the city and county, except as to such parts, if any, over which the United States has exclusive jurisdiction. This exception is created by the constitution of the United States, which provides: "Congress shall have power to exercise exclusive legislation over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of congress. become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards and other needful buildings." Article 1, § 8. Section 37 of our Political Code provides: "The state has the following rights over persons within its limits, to be exercised in the cases and in the manner provided by law: (1) To punish for crime." Both the general and state governments assume the jurisdiction of the state over all the territory within its borders, the cases provided for in the constitution of the United States being regarded as exceptions merely, the exceptions depending upon the fact of purchase with the consent of the legislature. The jurisdiction of the state being general, and that of the v.39p.no.1-2

United States exceptional, it is not necessary to negative, in an indictment or information in the state courts, the jurisdiction of the federal courts. It is like an exception in an act creating or defining a public offense, in which case it is held that if the exception is not necessary to the description of the offense it need not be alleged or negatived, but is matter of defense simply. The mere ownership by the United States of land or property within the county does not show any federal jurisdiction over crimes committed upon it, as that fact does not oust the jurisdiction of the state; but the ownership must be acquired by purchase with the consent of the legislature, which is held to include the acquisition of property by eminent domain when that proceeding is authorized by the legislature. U. S. v. Cornell, 2 Mason, 60, Fed. Cas. No. 14,867; U. S. v. Jones, 109 U. S. 513, 3 Sup. Ct. 346. The federal jurisdiction, therefore, involves a question of fact, viz. a purchase by the United States, or the acquisition of property by a proceeding to condemn it, and of such questions courts will not take judicial notice. It is a matter of common knowledge that the United States occupies buildings for customhouse, post office, and other purposes; but whether such buildings have been purchased by the United States, or whether they are occupied under leases from private owners, is a matter to be proved by the record of the conveyances. The information in question conforms to the statutory precedent given in section 951 of the Penal Code, in the particular under discussion, and as this court cannot, as matter of law, say that the federal courts have exclusive jurisdiction over any part of the city and county of San Francisco, the jurisdiction of the court is sufficiently alleged; and the objection here urged is not based on any evidence tending to show that the court did not, in fact, have jurisdiction. The exceptional character of the federal jurisdiction is further shown by the precedents used in the federal courts, which allege, not only that the place where the offense was committed was within the jurisdiction of such court, but that it was not within the jurisdiction of any state. What has been said points out the distinction between this case and the case of People v. Wong Wang, 92 Cal. 281, 28 Pac. 270. There the offense was a misdemeanor, over which, if committed in the city of Los Angeles, the police court had exclusive jurisdiction, and as such jurisdiction was given by law, and therefore must be judicially noticed, it did not appear upon the face of the information that the superior court had jurisdiction, since its jurisdiction depended upon a fact which did not appear, namely, that it was committed in that part of the county outside of the city. The motion in arrest of judgment in the case at bar was properly denied.