OCR Interpretation


The record-union. (Sacramento, Calif.) 1891-1903, March 06, 1891, Image 5

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SUPREME COURT DECISIONS.
[Filed February 25, 1591.]
Appeal from Superior Court, San Fran
cis-o—D. J. Murphy, Jud™.
1- or appellant, Carroll Cook,
lor respondent, Attorney-General Geo.
A. Johnson.
DEPARTMENT TWO.
Tin. People, Respondent,) .
Harry Wheatley, I No' 20 '70G-
Appellant. J
The defendant was charged with the
Mima of burglary, arid with having suf
tued prior convictions of burglary and
petit larceny. The information was filed
in the Superior Court of the City and
County of San Francisco, on September
19, 1889, and on the same day the presid
iug Judge of tho Court assigned the case
ior trial to Hon. W. T. Wallace, Judge of
Department No. 0. The defendant was
arraigned in Department No. G on Sep
tember 27th, anel "pleaded not guilty of
the crime charged in the information."
The record then shows the following:
f'Title of court and cause.]
"October 3,1888, cause transferred to De
partment No. 12."
{"Title of court and cause.]
"Department No. 12 October 9, 1889.
Present: Hon. D. J. Murrjhy, Judge.
"The defendant, having heretofore been
arraigned and pleaded not guiltj-, came
into court, and having been called upon
and arraigned upon the prior convictions
herein, now pleads guilty thereto."
Subsequently, as the record states, the
cause came on regularly for trial in De
partment No. 12, the defendant and his
counsel being present in court, and tit
the conclusion of the trial a verdict waa
returned by the jury, finding the defend
ant guilty of burglary in the second di -
gree. He moved for a new trial and his
motion was denied. Judgment was then
entered that he be punished by imprison
ment in tlio State Prison forthe term of
sight years. From this judgment and
the order denying him a new trial he ap
. peals.
1. The first point mado for a reversal
rof tiie judgment is, that the case was not
■properly tried in Department No. 12. It
'is claimed that, inasmuch as the minutes
(Ofthe court show that the cause was as
signed to Judge Wallace for trial. Judge
'M urpliy had no authority to try it, in the
absence of a showing in tiie record of a
reassignment by tiie presiding Judge,
end of consent on the part of Judges Wal
lace and Murphy that it be reassigned.
But the minutes of the court do state that
the cause was transferred to Department
No. 12; and they do not state that any ob
jection was made by the defendant to the
transfer or the place of trial. Under these
circumstances it must be presumed,
nothing appearing to the contrary, thai
tiie transfer was properly made by the
{presiding Judge.
2. It is contended that when the defend
ant was arraigned in Department No. 0,
»nd pleaded "not guilty," his nlea put in
issue tiie prior convictions, antl that, hav
ing once pleaded, no other plea could be
made or have place in the record, until
the first plea was withdrawn or set aside.
And it is said that the first plea was not
withdrawn, and hence, as there was no
verdict as to the prior convictions, the
punishment imposed was greater than
i the law authorized.
r. There can bo no doubt at this time that
one may be charged in an indictment or
, information with some particular offense
and with having suffered previous con
victions of other offenses, and may lie ar
raigned thereon under Section !K->8 of the
Penal Code. Ho may plead simply not
guilty, aud thus put in issue every ma
terial allegation of the indictment or in
formation (Pen. Code, Section 1019); or he
may plead not guilty of the principal of
fense charged, and confess the previous
convictions. (People vs. Lewis, 04 Cal.
401; People vs. Brooks, 05 Cal. 295; ex
parte Young Ah 0!ow, 73 Cal. 433.) If ho
confesses the previous convictions, then
the clerk, in reading the indictment or
information to thejury, must omit there
from all that relates to such previous con
victions, and no testimony in regard to
them can be ofl'ered, or reference to them
be made during the trial. (Pen. Code,
Section 1093, subdivision 1; People vs.
Meyer, 73 Cal. 548; People vs. Sansome,
__4<'al. 449.)
And there can also be no question that,
x-hen one is charged with a prior convic
ioo and has pleaded simply not guilty,
■ie may be permitted afterwards, in the
discretion of the court, to withdraw his
#lea as to that charge and enter a plea of
.guilty thereof, lv People vs. Lewis,
supra, the defendant was indicted for
Eiand larceny and charged with a pre
vious conviction of a like offense. He
Was arraigned and pleaded not guilty of
the offense charged. On the trial he of
fered to plead guilty to the charge of pre
vious conviction, and the court denied tho
offer. Speaking of this ruling, this court,
by Mr. Justice "Thornton, Bald: "Having
then regularly pleaded, the court was not
bound afterwards on the trial to accept
the plea of guilty of the previous convic
tion. It may be in its discretion to do so
or not —not a discretion, however, to be
arbitrarily exorcised, but ono in accord
ance with iaw and its analogies. If the
court abused its discretion in so ruling, a
. reversal would follow, but we cannot sco
that it went beyoud what the law per
mitted."
Here the rec-Td shows that tho defend
ant, after pleading not guilty, camo again
spto court and pleaded guilty of the
piHor convictions. lie had a right to do
this, with the court's consent, and his
action, BO far as we can see, was volun
tary ; the object doubtless being to keep
from the jury on the trial all knowledge
of tho prior convictions, and thus secure
a better chance for an acquittal of the
main charge.
The case of People vs. King (C 4 Cal. &3S),
cited by appellant, cannot aid him. That
case waa decided upon the theory that,
Bineo the repeal of Sections 968 and 1025 of
the Penal Code, when a person is charged
with a criminal offense and a previous
conviction, his admission of the previous
conviction is not sufficient, but fie must
plead to both charges, and both must be
proved on tho trial and passed upon by
the fury. That theory baa not since been
accepted by the court, and in effect tne
cose lias been overruled. See cases above
cited.
S. Jt is said that the record shows
nl_.rm_.tively that tho court charged the
jnrv orally," and fails to show that tbe
d____nra was taken down by the phono
graphic reporter. This is assigned as
•error and urged as cause lor ■ reversal of
the judgment. But tho presumption is
that the reporter performed his duty and
took down the charge in shorthand, and
that ho must have done so very clear! y
appears from the fact tliat the fall charge
i.s brought here tn the transcript, cover
ing ten printed pages.
4. It is claimed that defendant's mo
tion tor new trial should have been
granted, because" the jury, after retiring
.to deliberate upon their verdict, separated
'without leave of the court. It appears
lrom the affidavits, read on the hearing of
the motion lor now trial, that When the
jury Left the jury-box and started for the
jury-room, eleven of them went into the
room, and one went into a water-closet
adjacent to tho court-room accompanied
by the bailiff. He was gone about live
'minutes, and while absent from the other
•jurors, held no conversation with any
• j>erson, and nothing was said about the
case in his hearing. During his absence
BO discussion upon the ease was had
:_n:ong the other jurors and no ballot was
taken. On his return he participated in
all the deliberations of the jury and in
'finding the verdict. Upon this showing
me see no error tn the refusal of the court
to grant the defendant's motion. (Peo
ple vs. Symonda. SS Cal. 349.) But it is
urged that the court could not consider
' the counter affidavits read and tiled on
behalf of the People, because the doputy
■ rlerk before whom they were sworn to,
riid not sign his principal's nanioto the
Jurat. It was not necessary for him to do
his. (Touchard vs. Crow. 20 Cal. 150;
• JMullcr vs. Bogga, 25 Cal. 170.)
5. It is contended that the court had
no right to pronounce judgment of
imnf'sonment for eight years, because
'•there is not a word said iv the judgment
nbo'it any prior convictions, nor does the
verdict say aught coneemiog the same."
But the judgment recites that, when the
defendant was called up to be sentenced
l-e wasdelv informed by the court of the
jiiforniation, charging trim "with the
Mmc of burglary and prior conviction
at burglary in the first degree; ot his _r
ftgnmsnt and plea ot not guilty as
charged in said information, and guilty
of said prior conviction; of his trial and
the verdict of the jury, on the 17th day of
October. 1889, 'guilty' of burglary in the
second degree. The defendant was then
asked if ho had any legal cause to show
why judgment should not be pronounced
against him." This was sufficient to
meet tho requirements of Sections 1200
and 1207 of the Penal Code; aud imprison
ment for the term of eight years was au
thorized. (Penal CodefSees. 401 and <503).
It is also objected that tho judgment is in
sufficient In form, because it orders and
adjudges that the defendant be tmnished
by iiup, isonmefi in the State Prison, etc.
In our opinion the judgment was suf
ficient in this regard, aud ihe;objection is
without merit.
0. The point is made that it was error
to proceed with the trial without the
reading of the information by tlio clerk.
But there is nothing ip the record to show
tii.it the information waa not read by the
clerk to the jury, and we must therefore
presume that it was.
7. It i.s earnestly contended' that a new
trial should have been granted the de
fendant on the ground that the verdict
was contrary to law and to the evidence.
It must be admitted that the evidence, as
brought up in the record, does not seem
to us to be very strong antl convincing;
and yet the jury, under proper instruc
tions, which were very full and clear
upon every point involved, found the
defendant guilty. And the learned Judge
ofthe court, who saw the witnesses and
heard them testify, denied defendant's
motion. Under the circumstances we do
not feel at liberty to say that tho evidence
was so insufficient as to justify a reversal
on this ground.
8. In one part of its charge the court
told the jury that under tho allegations of
the information, and under the proofs in
the case, they must be satisfied of two
things in order to warrant them in con
victing the defendant, viz., entry into the
building and intent to oommit larceny.
It is claimed that another fact, viz., the
ownership of the building as alleged was
equally necessary, and that the instruc
tion as given was therefore misleading.
But the court afterwards fully instructed
thejury on this point, telling them that,
of course, they must find tbe ownership
of the building to bo as set forth in the
information. This was certainly suf
ficient, and it take3 away appellant's last
ground of complaint.
It results, thai the judgment and order
appealed from should be' affirmed, and
we so advise. BSLCHEU, C.
We concur:
Fqots, C,
Van O-Ikk, C.
TIIK COURT.
For the reasons given in tho foregoing
opinion tiie judgment and order appealed
from are affirmed,
[Filed February26,lßM.]
Appeal from Superior Court of San
Diego County—W. L. Pierce. Judge.
For Appellant, Haines & Ward, A. G.
Wooster.
For Respondent, John M. Lucas.
DEPARTMENT ONE.
C. F. Hah man, Respondent, 1
VS I
EllenLWiluass?.?..!,, \ N9" 13 '9TI-
-. Appellants. J
This is an action to foreclose a lien for
work and materials used in painting a
house erected for the defendant, Ellen L.
William?-.
The complaint state:, that the defendants
are husband and wife, that Jhs. Williams
owned a lot of laud, and cm a day named
entered into a contract with certain build
ers to furnish all the materials and labor
and erect for her a dwelling-house on ihe
lot; that the contractors commenced the
construction of the house, and afterwards
made.a contract with thaplaintiff and one
Anderson, under and by which they were
to furnish the materials and perform the
labor of painting the house, and were to
be paid therefor tho suiu of §155; tliat
upon the making of this contract Mrs.
Williams promised and agreed with the
painters that she herself would pay and
guarantee payment ofthe sum of money
to become due them under their contract,
and. would also pay them any and ali
further sums-wliieh might become due
them for 'exti-a'"Work on the house;
that the painters -entered upon the per
formance of their contract and fully per
formed and complied with all the condi
tions of tho same, and at the request of
Mrs. Williams tarnished materials and
did extra work of the value of $20; that
tho full amount due uuder the contract
and for extra work, which Mrs. Williams
promised and agreed to pay was $181, of
which Sum £107 had .been paid, leaving
still due and unpaid the sum of 574; that
the house was finished, and in due time
the painters filed and had recorded a
claim of lien, which was duly verified
and stated all the facts required by stat
ute to be stated in such a case, anil that
subsequently Anderson duly assigned
and transferred to the plaintiff all his
claim and'demand under the lien and
against the said property and defendants.
The defendants, by their answer, de
nied that they or either of them promised
or agreed to pay Anderson and Hagman
for the work dono under their contract,
or to guarantiee pa3"ment thereof, or to
pay for any extra work, in any manner
whatever; denied tliat Anderson and
Hagmalt, or 'either of them, fully per
formed all the conditions of their con
tract, or of auy contract, mentioned in
the complaint, or complied with tho
same; and, ou information and belief,
denied that the instrument filed and re
corded by Anderson and Hagman, as a
claim of lien, "contains a statement of
their demand or any demand, with the
names of the person or persons by whom
they were employed or of any employ
ment, or to whom they furnished materi
als, or of any materials, with a statement
of the terms, time given, or conditions of
their contract, or of any contract."
The case was tried, and all the facts
were found by the court to be as alleged
in the complaint. Judgment was then
entered, foreclosing the lien and award
ing the plaintiff $50 as a reasonable at
torney's fee, and costs, as prayed for in
the complaint. The defendants moved
for a new trial upon a bill of exceptions,
which was duly settled and liled. The
motion was denied and they appealed
from the judgment and order.
It is objected for respondent tliat the
order denying the new trial cannot be
considered for the reason, that the record
contains no copy of the order. The ob
jection cannot be sustained. The record
shows that after the order was made a
second bill of exceptions was settled and
tiled, sotting out that tho motion was
made by the defendants, pursuant to
their notics of intention to move for a new
trial, on certain grounds stated, and that
both the plaintiff and defendants ap
peared by their attorneys; that the first
bill of exceptions and certain affidavits
were used on the heariug, and then, that
"the court, having heard the argument
of counsel, and being fully advised, dolh
order that said motion for new trial be,
and the same is hereby denied." And
the clerk certifies that the record con
tains correct and couipleto copies of the
records and documents on file in the case,
and, among others, of the last bill of ex
ceptions, '•including the order refusing a
new trial." This was sufficient to meet
tiie requirements of Section 952 of the
Code of Civil Procedure.
It is contended by appellants that the
judgment should be reversed because of
errors committed by the court in its rul
ings. The proceedings were as follows:
On the trial the plnintitf offered in evi
dence his claim of lien, and the defend
ants objected to the admission of the
paper, on the ground that it was "incom
petent, irrelevant and immaterial." The
court overruled the objection, and ad
mitted the paper in evidence, on the
ground, as stated, that the answer con
tained no denials ofthe allegations of the
complaint in regard to the claim of lien,
but admitted each ot them. The defend
ants excepted to this ruling, and there
upon counsel for plaintiff announced to
the court that the offer of the lien in evi
dence was withdrawn, and the court or
dered that it bo considered withdrawn.
No. other or further evidence, relating to
the notice and claim of lien alleged in the
aoU'plaint, was ottered by either party.
Subsequently the plaintiff introduced
evidence tending to show that the work
alleged in the complaint was done in a
good and workmanlike manner, consid
ering the quality and amount of material
calh d ior by the contract.
Vv'ben the defendants were making
their «.•«_.(. they offered evidence to show
that the work supd for was not performed
in a good and worhma.nlik emr.nner. To
SACRAMEyTtf *I>AILY _RECOBD-TT_OTO_NV ffferPAY, MARCH 6, lgfti;—SlX PAGES.
this offer the plaintiff objected, on the
ground of irrelevancy, incompetency and
immateriality, and the court sustained
the objection and excluded the evidence,
defendants reserving an exception. Tlie
defendants then, when they had nearly.
closed their testimony, asked leave to
amend their answer, by making specific
positive denials of each and every allega
tion ofthe complaint, relating to the con
tents ofthe alleged notice of lien, and by
adding averments that the material used
in painting the house was of inferior
quality and not such as Was called for in
the contract, and that the work was done
in a bad and unworkmanlike manner
anil inefficiently, and that by reason of
such inferior workmanship and material
the defendants wero damaged in the sum
of $100. The court denied the application
to amend, and the defendants duly ex
cepted.
1. The first ruling complained of was
evidently b?sed upon the theory tlmt the
denials iv the answer as to the ciaim of
lien were insufficient to raise any issue,
because tbey were made upon informa
tion and belief. In this we think the
learned Judge of the court below* la mis
taken. It is truo that, where facts are al
leged in a verified complaint which are
presumptively within the personal
knowledge of the defendant, he is not
permitted to deny them upon informa
tion aud belief, but must answer posi
tively. (Humphreys vs. McCall, 9 Cal.
02; Loveland vs. Garner, 74 Cal. 298.)
Here the allegations were .as to a written
instrument which had been recorded in
tho Recorder's otlice of the county, anil
they stated its contents substantially in
the language of the statute which pro
vides for the making and recording of
such an instrument. (Section 1187. (.'. C.
P.) But an i!is]>eetioii of the paper shows
at once that it was inartiiicially drawn,
and not in the language of tlio complaint.
A question then might well ari.se as to
whether or not it was sufficient to meet
tiie requirements of the statute and to
create a Men. And that such a question
did arise i:s shown by the fact tliat counsel
here earnestly insist, on*>ne side, that it
was wholly insufficient, and. on the other,
that it was Pally sufficient to effect the
purposes intended by it. Under these
circumstances we do not think it can bo
said that, because the defendants might
have seen and read the record, they must
be presumed to have such knowledge of
lac facts alleged In the Complaint as to re
quire positive denials, if they deemed
them untrue. Our conclusion "i.s that tiie
denials on information and belief wire
sufficient to raise an issue as to the
alleged claim of hen.
2. We also think tho court erred in ex
cluding the evidence offered by the de
fendants to show that the work sued for
was not performed in a good and work
manlike manner. The plaintiff had in
troduced evidence to prove that the work
was well done, and it seems clear that the
defendants had a right to disproVs that
fact, if they could. It is objected for re
spondent that this point cannot be con
sidered, because the ruling is not speci
fied in the bill of exceptions, as an error
upon which the parties would rely. Bat
specifications of the particular errors of
law on which the appellant will rely are
not necessary in a* bill of exceptions.
(Code Civ. Proc., See. 050; Shadburuo vs.
Daly, 70 Cal. 355).
3. It is to be regretted that a ease in
volving so-small a sum should be per
mitted to occupy so much of the time of
the courts ; and as, inconsequence of the
errors above spoken of, it must go ba -k
for a new trial, it is proper to state that
we have carefully examined the paper
introduced in evidence by the plaintiff as
his claim of lien, and are of the opinion
that it should be treated and held to be
sufficient to meet the requirements of tho
statute. A substantial compliance with
tha statute is ail that is necessary.
(Tredinnick vs. Milling Company, fcj
Cal. 7S; Malone vs. Big Flat Mining Com
pany, 70 Cal. 678; Jewell vs. McKay, B_s
Cal. 144.)
We advise that the judgment and order
be reversed and the cause remanded for a
new trial, with leave to the parties to
amend their pleadings if they shall be so
advised. Belcheh, C.
We concur:
Van* Clii.f, C,
Havnk, C.
....... THE COURT.
For tho reasons given in the foregoing
opinion, the judgment and order are re
versed and cause remanded, with leave
to the parties to amend their pleadings if
they shall be so advised.
[Filed February 27, 1891.]
Appeal front Superior Court, Siskiyou
County—Edwin Shearer. Judge.
For appellant, James F. Farraher.
For respondent, H. B. Gillis, H. B.
Warren.
IN BANK.
Wiioley, Appellant, )
vs. \ No. 14,079.
Cavakauoh, Respondent. J
Ejectment. Judgment for defendant.
Plaintilf appeals.
Both parties claim through one Whit
mire. In 1800 Whitmire, who then had
only a school laud certificate of purchase
upon which 20 pel-cent, of the price had
been paid, executed to ono Coats an in
strument which is considered below, and
Coats subsequently conveyed to the de
fendant. In 1878 the State'issued a patent
to Whitmire, who, in ISS4, made a deed
to the plaintiff.
The plaintiff's position is that, prior to
the issuanco ot the patent, Whitmire had
merely an interest which, while regarded
as the legal title as against third persons,
was not so regarded as against tho State;
that the legal title remained in the State
until the issuance of the patent in 1878; that
the instrument executed to Coats in 1800
wasnot a present conveyance, but only an
agreement for a deed,"and therefore did
not pass the alter acquired title or any
title; that after receiving the legal
title Whitmire did not convey it to the
defendant, but conveyed it to the plaintiff,
and that since the plaintiff has the legal
title he must prevail in ejectment.
From this it is obvious that it is neces
sary to consider the effect of the instru
ment executed by Whitmire to Coats.
The heading of this document in the
transcript is "Agreement for a deed."
But it does not appear that the instru
ment itself was so called. It seems to be
a mere characterization by the person
who made the record on appeal. But oven
if it were indorsed Upon the document
itselt, it is clearly not apart ofthe instru
ment, and consequently would not affect
its character.
The material portions of the instru
ment are as follows:
"This agreement made and entered into
this first day of November, 1860, by and
between T. 8. Whitmire, of Shasta Val
ley, in the County of Siskiyou, State of
California, the party of the first part, and
Siias D. Coats, of tho same place, the
party of the second part. Witnesseth:
i'hat the said party of the first part, for
and in consideration of the sum of one
dollar to him in hand paid by the said
party of the second part, hath and hereby
doth release, and forever quit-claim unto
the said party of tho second part, and to
his heirs and assigns and legal represent
atives, all that certain piece or parcel of
land" (describing it).
If there were nothing else in the in
strument we think it clear that it would
amount to a quit-claim deed. The opera
tive words of such a deed are ordinarily
"remise, release and quit-claim;" butthe
omission of the first word is not ma
terial. Tho words "release and forever
quit-claim" are sufficient. And it is set
tied that a quit-claim deed conveys what
ever title tiie grantor has. (Lawrence vs.
Ballon, 37 Cal. 518; Rego vs. Van Pelt, 65
Cal. 254).
The appellant contends, however, that
the etlect of the instrument as a convey
ance inprov-senti, is destroyed by the fol
lowing clause, viz:
"To have and to hold the same forever,
subject to the following covenants, con
ditions and agreements, to-wit: The said
Eartyofthe first part, for himself, his
eirs and legal representatives, agrees to
and with the said party of the second part,
his heirs and legal representatives, to pro
ceed and perfect his title to said granted
section which he has now commenced
under the school laws of California, as
fast as said laws shall or may require un
til his.title thus commenced shall become
perfect to an inheritance and unincumber
ed freehold therein, and upon the acqui
sition of said estate in said lands, the
party of the first part, for himself, his
heirs and legal representatives, covenants
and agrees to and with the said party ot
the second part, his heirs, assigns and
legal representatives, to make out, sign,
seal, execute, acknowledge and deliver to
the said party of the second pnrt, his heirs,
assigns and legal representatives, a good
and sufficient deed, conveying said estate
of inheritance free of incumbrance to so
much of said quarter section above de
scribed, to the said party of the second
part, his heirs, assigns aiid legal repre
sentatives, the same to become operative
upon the said party of the second part, or
his legal representatives, paying or caus
ing to be paid to the said party of the first
part, or his legal representatives, within
ten days thereafter, the sum of one hun
dred dollars."
This, we think, is a covenant of further
assurance, and does not impair the words
of conveyance lirst quoted. The instru
ment was. therefore, a quit-claim deed,
and operated as a present transfer of
whatever interest the grantor then had.
It is true that he did not then have the
legal title as against the State, and that he
did not make a deed to Coats or his
grantee, after obtaining the patent, as his
covenant bound him io do. But tf his
deed operated to pays the after ace, ni red
title no further assurance was necessary,
and we think it so operated. As a gen
eral rule, a quit-claim deed docs no;, have
this effect But it must be held to have
this effect in this case, upon the authority
ofStanway vs. Hubio (51 OaL 41), which
proceeds upon the ground that tho title
transferred by the patent relates back to
tho initiation of the proceedings to ac
quire the Government title, and conse
quently enures to the benefit of the per
son to whom the holder of the certificate
of purchase conveyed.
If the plaintiff has any equitable rights
he cannot maintain them upon a simple
complaint in ejectment.
We therefore advise that the judgment
be affirmed.
Hayne, C.
We concur:
Belchbb, C.
Foote, C.
THE COt-RT.
For the reasons given in the foregoing
opinion tiio judgment is affirmed.
(Filed February CS, 1591.)
Appeal from Superior Court, Los An
geles County—Lutaen Shaw. Judge.
For appellants, Stephen M. White.
For .respondents, C. F. Cronin, Baker
& Long, J. (.. Koepli, Will. 1). Goiud.
DEPAHTMEST ONE.
lIAVrTUOItN-I. I.T AL., 1
Respondents,
vs. I No. 13,868.
SIEQEL ET AL..
Appellant... j
This action was brought to recover
damages for trespass alleged to have been
committed by the defendants in "break
ing and entering upon the premises
held, used and possessed by the plaintiffs
under a lease, and "forcibly and unlaw
fully altering und changing the construc
tion" Of the premises' "by lowering a
portion of the ceiling" thereof, "and by
closing dp and obstructing the windows
and gratings thereof through which
plaintiff obtained light aud air for their
said premises."
It was ftirther alleged tliat these
acts of the defendants rendered the
premises "totally unfit and useless" for
the purposes of their business, which was
tnat of carrying on a barber-shop and
utth-room. That they were thereby com
pelled to vacate the premises, and did
vacate them under this compulsion on
the 3d day of September, 188__, (Fols. 7-3.\
Tiie lease no. expiring until tha ___t__ of
April, iflffiU
Ihe damages claimed were from the
loss cf the established trade and business
ofthe plaintiffs* from that occasioned by
haviug to abandon a portion of tbe per
manent improvements which they had
made on the leased promises; from that
resulting from theplH.Htiffs being com
pelled tv abandon arid iSse the benefit of
their leasehold interest; from that which
they suffered by being deprive,! of the
benefit of their agiabment with a party
who allowed them a hot water privilege
for the use of their b_fber-shop and bath
room, and by reason of expenses entailed
on them in their enforced removal from
the premises.
Tne plaintiffs obtained jndgment for
$500, a very much tags sum than they
claimed. From thst^ua l an order deny
ing a new trial this appeal is taken.
The evidence certainly tended to show
that the plaintiffs occupied aud used tho
premises as they claimed, and that tho
trespass was committed by the duly
authorized agent of the defendant Siegel.
The main argument of the defendant
seems to be on the alleged erroneous rul
ings of the court as to the measure of
damages recoverable in the action, in the
admission of evidence and in the instruc
tions upon the matter, which it gave, re
fused or modilied. , •
In this connection the "defendant urges
that no damages could be recovered by
tho plaintiffs for the loss of the hot water
privileges, which they derived from an
agreement with K. Durham, mentioned
in the eighth paragraph ofthe complaint.
It, as we think, the evidence fended to
show that the plaintiffs were Compelled
to abandon their place of business by the
trespass of the defendant, then they were
entitled to recover whatever "amount
will compensate for all the detriment
proximately caused thereby, whether it
could have been anticipated "or not." (C.
C, Sec. 3333.)
If tho evidence tended to show any
detriment suffered bythe plaintilfs in los
ing this hot water privilege, and the loss
thereof was proximately caused by the
trespass complained or, the plaintiffs were
entitled to be compensated therefor, and
it was for the jury, under all the evidence,
to say if they were entitled to any com
pensation, and if so, how much.
The evidence did show that the plain
tiffs had such a privilege, and that they
paid a certain amount of money therefor,
and that it was of beneficial use to them.
There is also evidence which tends to
show that the cause of their leaving the
premises was that the trespass com
plained of made their place of business
unfit for tho purposes for which they
had leased, occupied and possessed it.
The trespass caused them to abandon the
water privilege; the loss of tho water
privilege was one of the injuries result
ing from this abandonment. This injury,
then, was proximately caused by the tres
pass, and the plaintiffs were to be com
pensated therefor. We perceive no error
in the eighth instruction given nor in tho
evidence ofl'ered and admitted in sup
port of the demand.
It is further urged in behalf of the
appellants' contention that the instruc
tion given by the court is at variance
with section 3333 of the Civil Code,
and misleading in that it permits and di
rects the jury to take into consideration
anything however remote which might
appear to them to indicate "loss or harm."
(Appellants P. and A., p. 9.) The in
struction reads as follows:
"Ninth—Tho jury are instructed that if
they believe from the evidence that the
plaintiffs had a leasehold interest in the
premises in question, and that by reason
of the wrongful acts of tho defendant,
said leasehold interest was rendered
wholly or in part worthless to the plaint
iffs, or that they wero compelled to aban
don the same, then the plaintiffs are en
titled lo such an amount as will compen
sate them for all loss or harm suffered
thereby, taking into consideration the
length of time of said lease and the length
of time it had heeu enjoyed by the plaint
iffs, and the value of such advantages as
they may be satisfied by the evidence
wero a part of or directly grew out of
said leasehold interest, but not including
in this item anything for loss of hot wa
ter righjs or established trade and busi
ness."
Fairly considered this instruction an
nounces to the jury that tho damages re
coverable by the plaintiffs for any loss
suffered by them which rendered their
leasehold interest wholly or in part worth
less, occasioned by the wrongful acts of
the defendant, must be measured by the
whole duration of said lease under the
terms thereof, and the length of time it
had been epjoyed by them up to the time
of the reception of the injury, and bythe
value of such advantages as accrued to
them under the lease, which grew directly
out of their interest therein, but not to
include anything which resulted from
tho loss of hot water rights or established
trade or business, and that these damages
must be in such an amount as will com
pensate them for any such loss.
This did not, in our judgment, direct
the jury to give damages in their nature
remote or speculative, but was confined
to a verdict for such detriment only as
was proximately caused by the wrongful
acts ofthe defendant as affecting loss from
the injury done alone to the leasehold
interest held by the plaintiffs. And
although, perhaps, the instruction is not
so perspicuous and clear as it might have
been, we see nothing in it misleading or
conflicting with other instructions, which
last most clearly kept before the jury the
idea that they were to give no damages
except such as were the proximate result
of the injury done: and this will appear
by a glance at the other instructions
given.
It is further claimed that the court
erred in instructing the jury that in esti
mating the damages done the plaintiffs
they might consider the evidence con
cerning the expenses of the enforced re
moval of the plaintiffs from the premises
to another place of business, and that re
garding any damage which might result
lrom the deprival of the use of improve
ments abandoned by them.
The defendant contends that these ele
ments of damage were not recoverable.
j The argument in this connection appears
[ to be that the plaintifiseouldonly recover
I for the benefits which they might have
| had if the defendants had permitted them
j to remain at their former place of business
■ untrespassed upon.
But tho plaintiffs were not, according
to the tendency of their evidence, permit
ted to remain unmolested, bet wero driven
away by the wrongful acts of ihe defend
ants, hence the former were entitled to
recover whatever their loss might be, ol"
which the defendants' wrongful acts were
the efficient cause.
"The proximate cause is the efficient
cause, tho one that necessarily sets tho
other causes in operation." (Insurance
Co. vs. Boon, 5 Otto, 96 U. 8. P. 0.)
"That which is tho actual causo of tho
ioss,whether operating directly, or by put
ting intervening agendas, the operation
of which could not be reasonably avoided
in motion, by which the loss is produced,
is the cause to which such loss should be
attributed." (Brady vs. Northwestern In
surance Co., II Mich. 425.)
Here tho evidence on behalf of the
plaintifis tended to show that the trespass
ol the defendant aud his acts in accom
plishing it, resulted inthe plaintiffs hav
ing to leave their place of business, give
up their leasehold interest, goto expense
in moving their appurtenances, etc., lose
the privilege which they had of hot water
for baths and barber-shop,and in their
having to go to another place of business
teas favorable or profitable which en
tailed loss in their established trade and
business, and having to lose the uso cf
abandoned permanent improvements.
The cause which set all the rest m mo
tion was the trespass, the operation of tho
subsequent agencies of loss, were the re
sult ot this wrongful injury. Hence they
proximately resulted from that trespass,
lo the first cause, primarily, all the dam
age resulting are to be attributed, al
though each item of damage was produced
by some separate cause, following tiie
primary cause, and operating more im
mediately in producing the damages.
(Insurance Co. vs. Boon, supra, citing
Insurance Co. vs. Tweed, 7 Wall, 44.)
Damages which accrue subsequent to
ilie tort, but of which it is the primary
cause, are not separate causes of action
but "ure parts of the tort itself for whicii
the cause of action is given. (Wood vs
Currey, 57 CaL 210.)
N 0 error is perceived in the rulings of
the trial court as to the instructions just
mentioned, or as tothe evidence admitted
°n the points involved therein.
Further complaint is made because the
trial court allowed a question to be put to
one of the plaintiffs as follows: "What is
that leasehold worth to you?"
If erroneous, because it did not seek for
the market value of that interest, it was
harmless in view of the answer of the
witness, which plainly indicated that the
value of which he testified was tho market
value.
The appellant contends that the court
erred in allowing evidence to go to tho
jury as to the amount ol business done by
the plaintiffs before and after the alleged
trespass. Tiie complaint charged as one
ofthe elements of damage resulting from
tlio trespass, that the plaintiffs had los.
1 hereby their established trade and busi
ness.
With a view to show what that loss was
we think the evidence was admissible!
"The best considered cas»s agree that
where an established business is wrong
fully injured or destroyed, the owner of
the business can recover the damage, sus
tained thereby, and that npon this ques
tion evidence of the profits which he was
actually making is admissible." Lam
bert vs. Haskell, 80 Cal. til!..)
The point is made that the defendant
should have been allowed to demur to
the amended complaint, and to file an an
swer thereto. Tho ruling to which excep
tion is taken appears at folios 81, 2, 3.
While the trial was in progress tho
plaintiffs asked leave to amencT the fifth
paragraph of their complaint. Tho re
quest was granted. Tho amendment was
made and a copy of it served and
tiled. A recess was then taken bythe
court to allow the defendant to plead
thereto. Upon the reassembling of tbe
court tho defendant presented, liled and
read a demurrer, which went to other
matters besides the amendment tiled by
the plaintiffs. Previous to this tho de
fendant had demurred generally to the
complaint.^before amendment, which was
overruled ior want of "presentation;" we
suppose this was intended to read prose
cution.
The court refused to consider the de
murrer to the amended complaint except
as directed to the amendment allowed to
bo made, and as to that overruled the de
murrer. The defendant then asked leave
to file an answer to the whole complaint
as amended. This the court refused to
allow upon the ground that the only por
tion of the complaint which had been
amended was the filth paragraph thereof,
and that the defendant might file an an
swer to that. Maintaining his right
to answer the whole complaint and
reserving his exception, the defendant
answered the filth paragraph of the com
plaint.
It is true that "the amendment, to
gether with the original amended com
plaint, constituted anew complaint which
superseded all other pleadings in tho
case." (Thompson vs. Johnson, tt) Cal.
2!)5.) But no reason is shown why the
demurrer as filed should have beeii sus
tained on any of the grounds alleged
therein, nor do we perceive that the
amended complaint was obnoxious to
that demurrer. The defendant waa in no
worse condition by the refusal of tho
court to consider anything buUthe de
murrer a3 applicable to the amendment
made to tho complaint, than he* would
have been had the court considered and
overruled the demurrer as a whole.
As to the action of the court in refusing
to allow the filing of an amended answer
except to that portion of the complaint
which had not* been already answered, it
does not appear that the answer proposed
to be filed differed in any essential re
spect from the answer on file, except with
reference to that part answering the
amendment of the fifth paragraph of the
complaint, and that portion of the pro
posed answer was filed and considered.
In the action of the court, therefore, as to
tliese matters there appears no abuse of
discretion.
Perceiving no prejudicial error we ad
vise that the judgment and order be
affirmed. Foote, C.
We concur:
Van Clief. C.
Belcher, C.
TnE COURT.
For the reasons given in the foregoing
opinion the judgment and order- are
affirmed.
[Filed February 28,11891.]
DEPARTMENT TWO.
The People, Respondent, )
vs. I Xo. 20,775.
Wm. McGreoar, Appellant. J
The defendant was convicted of an at
tempt to commit burglary in the first de
gree, and appeals from the judgment and
an order denying a new trial. Several
points are relied on for a reversal of the
judgment.
1. It was not error for tlio court to
ask the defendant, upon his arraignment,
whether he had suffered the prior convic
tions charged against him in the informa
tion. (People vs. Wheatly, Xo. 20,706,
filed February 25, 1891, and cases there
cited.)
2. It does not appear that tho clerk read
to the jury that part of the indictment
which charged defendant with prior con
victions. As the defendant had confessed
the former convictions, the presumption
is that the clerk performed: his duty as
prescribed in Section 1093 of the Penal
Code, and omitted that part of the indict-
(fDhtmgcfc IPaU_. fov the \&eb gouae.
_ 1
We are showing the new styles in
LADIES' BLAZER JACKETS and
SHORT WRAPS for spring. We have j;
quite a variety of styles, but not all sizes in
each, this being an express shipment from
New York, reaching us some two weeks I
ahead of the freight shipment started at
1 same time. j
tC^.n_ l -_tH. l >. W!B itH: HU! _H,_n, W :- W -.„„ t , ,_,.„ „ , „-,„,.. , H^n^-"WI(IItTrT-liri_Wni_ilMiW|| I .|||| 11 .||||.||JH)l|.|. il|.|J|.||l|,U,||||lll. Vtf
isn't Tliis it fc to Look at It.
V
How little can Clothing be sold for—good
Clothing?
There's nothing but greed to prevent a busi
ness suit for $20 being extra good. Why
shouldn't it be? The puzzle is to do it for half
the money. That's our work this spring.
Our £10 Suits are full of style—this season's style. Take
this—All-wool Dark Mottled-gray Invisible Check
Cheviot Sack Suit, medium weight, made and trimmed
in the best manner; it's but £10. . *
Another—Light Gray Invisible Plaid All-wool Cheviot, sack
cut; same price, £10.
The J_s ones you would take for dress suits. Dark Silk
mixed Cassimere, sack or frock cut, trimmings of high
quality. Nobby enough for anybody
Another at $15—A blue gray pin-head check pattern. A
stylish business suit.
Do you want finer? Worsted Fabric, Silk Mixtures and
Siiky stripes. $i% and £20 buys them.
Our NEW SPRING STYLES and LOW PRICES
should interest you. We receive from first
hands—largest Eastern manufacturers of fine
custom clothing.
FROM- CLOTHING TO FIJIIING GOO!
Several large and handsome invoices of fine East
ern manufacture recently placed in stock.
White Dress Shirts, linen, pique or sateen fronts. Si 25.
French Flannel. $1 75, £2 50. Alpine Flannel, 50 cents,
etc. Silk and Wooi Flannel and All-silk.
43-You'll remember all Eastern Shirts are full In the slzo, and from
three to four inches longer than thoso manu&ctured on this coast.
C. H. GILMAN,
RED HOUSE, Sacramento, Cal.
ment which related thereto; and this pre
sumption is not overcome by anything in
the record, which merely states that "the
information charging the defendant with
the above crime, (not crimes) was read,
andp.ra (not pleas) of not guilty stated to
the jury." Xo objection was made at the
time; and it i.s quite clear that there is no
affirmative showing of error on this point.
3. The sentence—ten years—does not
exceed the maximum term of Imprison
ment, for the. record 'shows that the de
fendant had suffered former convictions.
4. Assuming that the record must show
a recital ofthe matters referred to in .Sec
tion 1200 of the Penal Code, and that the
section is not merely directory, still it
appears from the record in this case that
tho directions of said section were quite
fully complied with.
5. It does not appear that the oral charge
of the court was not taken down by the
reporter; and where the contrary does
not appear it will be presumed that the
law was obeyed.
6. The jury having first returned a ver
dict of "guilty as charged," tho court in
formed them that it would be necessarvto
find tho degree ofthe crime, and that if the
attempt was made in the night-time it
would be an attempt to commit burglary
in the first degree; and, in that connec
tion, the court told the jury that "the
testimony was, it was 3 or 4 o'clock in
the morning." It is contended that this
language last quoted was erroneous. It
is not necessary to determine whether
the uso of this language was the mere ex
ercise of tho constitutional power of a
Judge to "state tho testimony" or a viola
tion of the mandate that "Judges shall
not charge juries with respect to matters
of fact"—(State Const., Art. VI., Sec. 19> —
for the only evidence upon which defend
ant could have been convicted at all
showed, without conflict, that the attempt
was made in the night-time. Defendant,
therefore, could not havo been prejudiced
by the remark ofthe court.
7. Tho gravest point made by appellant
is the one based upon the alleged failure
to prove the vrnne. Of course, there must
be sufficient proof of tho venue in every
criminal case and experienced prosecuting
attorneys are generally careful to make
such proof at an early stage of the trial.
In the case at bar the prosecution seem to
have entirely overlooked the necessity of
asking any questions on that subject.
But notwithstanding that oversight, there
was, we think, sufficient evidence to war
rant tho jury in finding that the crime
charged was committed in the city and
county of San Francisco, there being no
evidence tending to show the contrary.
The information was entitled in the Su
perior Court of said city and county, and
charged that the crime was committed
"at the said city and county of San Fran
cisco, State of California," at a certain
house on "Grant avenue." The jurors
were citizens and residents of San Fran
cisco, and the court-house in which they
sat whilo defendant was being tried was
near the center of the city. The principal
witness for the prosecution testified that
on the night of the alleged crime
ho was a police officer "on reg
ular force;" that 'on said night
he was on duty "on Grant avenue,
from Market to Bush," and that territory
was bis "regular beat;" and that when he
first saw defendant that night ho was in
an alley called Stockton Place, "off Grant
avenue, between Post and Sutter." And
it was shown that the crime, if committed
at all, was committed on said Grant ave
nue at a certain houso adjacent to said
Stockton Place. Thus a half dozen
of the principal and best known
streets of tho city of San Francisco
were named, between, or upon,
which the crime was committed; and al
though, from a failure to ask them, the
witnesses did not testify directly that
these streots were in the prominent city
of San Francisco in which the court was
sitting, still we think that the evidence,
taken in connection with the surround
ing circumstances, was sufficient to jus
tify the jury in finding as jurors, what
thoy well knew as men, that the streets
named by the witnesses meant the well
known streets so named in San Fran
cisco.
In Brady vs. Page (59 Cal. 52), and Whit
ing vs. Quackenbush (54 Cal. 306), this
court scerns to have held that judicial no
tice would be taken of the streets of. San
Francisco; although there may be some
points of distinction between those cases
and the one at bar.
In People vs. Banning (4S Cal. 335), the
court says: "Another point made is that
tho venuo was not proved. Xo witness
testified in so many words that the kill
ing occurred in the city and county cf
San Francisco. But the whole testimony,
taken together, left no room for a reason
able doubt on this point. We think tho
venuo sufficiently proved." In that case
the killing was shown to have been done
on Clay street without any direct evi
dence that Clay street was in San Fran
cisco; but it may be claimed that Clay
street could have been located by refer
ence to other named streets which were
shown to be in the city.
In the State vs. Burns (48 Aio. 435) tho
witness spoke of the murder as taking
place on Mullunphy street, but it was not
expressly stated anywhere that Mullan
phy street was in tho count v or city of
St. Louis," and tho Supreme Court of
Missouri say: "If there was ovidenco to
reasonably satisfy thejury that the crime
was committed in the city, that was suf
ficient. • * * Tho question of venuo
or jurisdiction is always a question of
fact, and may be proved liko any other
fact. If the evidence raises a violent
presumption that tho offense for which
the person is indicted was committed iv
the county where he was tried, it is suf
ficient. (1 Wharton on Criminal Law,
Section 601.)"
In the Stato vs. Ruth (14 Mo. Appeal
Reports, 22(3), it was testified that tho
stolen property was taken from a board
ing-house, Xo. 1203 Washington avenue,
and that defendant was seen with it in a
shop on Christy avenue, and tho court
say: "It is true that no witness says, in
so many words, that the offense was com
mitted in the city of St. Louis. But this
is not necessary. It is enough if the
testimony was such as to satisfy tho trior
of the fact that tho place of tho offense
was that laid in the information." Arid
speaking of certain cases referred to tho
court continues as follows: "In neither
case could there be any doubt in the
minds of the triers of the fact, or of the
Judges of the appellate court, that the
streets spoken of by tlio witnesses wero
St. Louis streets. We will not take
judicial notice of all the streets ofthe city
iv which this court holds its sessions.
But we need have no difficulty in judi
cially recognizing the fact that Washing
ton avenue, Morgan street, and Christy
avenue, are old, established, and well
known streets of St. Louis—tho city in
which we sit as a court—and that this
knowledge prevails generally throughout
the city, and must have been possessed
by the trier of fact in the present case."
Bland vs. People (4 111. 3tt4i; Beavers
vs. State (58 Ind. 530), and Comm. vs.
Costley (118 Mass. 3), are all to the point
that inferential evidence is sufficient to
establish venue.
The foregoing cases are authorities
which fortify the conclusion on this point
which we have above stated. The ques
tion here 1> not a strict question of judi
cial knowledge. The question is whether,
under all the circumstances of the case,
there was,snfficicat evidence to warrant
thejury in concluding that the crime was
committed in San Francisco, and, as lie
lore said, we think that it was sufficient.
8. Wo do not think that tho evidence
was insufficient to sustain the verdict
upon the merits; nor do we think that
the court abused its discretion in refusing
to grant a new trial on the ground of
newly discovered evidence.
The judgment and order appealed from
are affirmed. McFarlanu, J.
We concur:
UeHave?., J.,
Shakpstei.., J.
[Filed Febrnarv 25, 1891.]
IN BANK.
San Diego Flume Company, )
vs. \ No. 13.SSS.
Chase. J
bt the court.
A rehearing of this causo is denied, but
so much of tho opinion and decision
heretofore filed as limits the respondent to
the use of two one and one-half inch
standard pipes is set aside. The contract
does not limit respondent to any particu
lar number of standard pipes in conduct
ing his irrigation.
Bi_ious attacks, with sour stomach,
headache, and a miserable feeling gener
ally, are cured by Hood's Sarsaparilla,
which tones the stomach and restores the
appetite. Take it now.
5

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