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8 MAYHE CASE pull Text of the Supreme Court Opinion A NEW TRIAL IS ORDERED THE VEXED QUESTION OF ELSIE SHIPTON'S AGE Wayne Slated at the Prospect of Being Able to Prove His Innocence If a man Is not altogether corrupt in Bind the ordeal of a trial on. the revolt ing charge of having debauched' a girl of tender years Is such as Is calculated to make him review his past. And this whether he be guilty or innocent of the charge preferred. There are not lacking indications that the supreme court of this state has, in deciding the appeal case of Clifton E. Mayne trenched somewhat upon the province of the clergy, and. has made a convert. At least if Mayne hasn't got what during revivals is termed "relig ion" he has at all events got a much heartier reverence and respect for the Bible than ever he hadibefore. And with cause. The opinion Just handed down by the court of last resort, while reversing the Judgment of the trial court and remand ing the case for a new trial, arrives at a (conclusion on a technicality such as un der ordinary circumstances it is difli- cult to suppose would have occasioned a reversal of the judgment. This technicality is the Bible episode during the trial of Mayne, when the prosecution sought to reinforce the tes timony of Mrs. Shipton regarding her daughter's age by putting in a Bible wherein Elsie's name and age were set forth. The age bore-unmistakable indi cations of erasure andi manipulation, but upon the mere fact of that Bible hav ing been introduced at all the supreme court has granted a new trial. The opinion, which is from Justice Harrison, concurred in by Justices Van Fleet and Chief Justice Beatty, holds that the appeal is dismissed, but the Judgment and order denying a new trial are reversed and. a new trial is ordered. REASONING AROUND IT The opinion reads as follows-: The defendant was convicted of rape in having sexual Intercourse with a female child under the age of 14 year*, and has appealed from the judgment of conviction, and from an order denying a new trial. There was sufficient evidence before the jury to authorize them to find the fact of sexual intercourse by the de fendant with the child, and. that she was at the time under 14 years of age, and their verdict thereon is not open to re view. The crime Is charged to have beer, committed March 30, 1895, and for the purpose of establishing the age of the girl at that date her mother testified that she was liorn June 14, 1881 The prosecution then offered in evidence a Bible im which was entered the record of the birth of a girl named Elsie Shipton (the name of the prosecuting witness) on the 14th of June, 1881, The court ad mitted the Bible in evidence against *he objection of the defendant. The mother testified that she-made this entry of Elsie's birth some time after the girl was born, she thought some time during that year. There were appear ances on the face of the entry that the date 1881 had been changed by being ■written over after it had originally been written, but it does not appear that any other date was originally in the entry, and the mother testified that she had not changed it. Whether there had been a material alteration in the entry was to be determined by the court when It was offered, and before It should be presented to the jury. In the absence of any showing to the con.trary, we must assume that the couit was satisfied that the change was immaterial. Like mat ters addressed to its discretion, its rul ing ln this respect Is not open to review, unless it is made to appear that the dis cretion was abused. It does not clearly appear that the- book lr» which the entry was made was a family Bible. There was no direct evidence of this fact, and,, although bhe mother testified that it came into her possession in. 1876, it was not shown from whom she received it, or ln what manner it came into her posses sion. Nor was it shown that the other persons whose births and. deaths were entered therein were members of her family, or that they had the same or similar names. We need not, however,' determine whether the character of the book was sufficiently shown (See Jones v. Jones, 45 MD. 160), since the court erred upon other grounds in permitting the entry to be read in evidence. 'THAT BIBLE ENTRY An entry In a family Bible is a written declaration of a fact made out of court, not under the sanction of an. oath, or with any opportunity to test its correct ness by means of cross-examination. It Is but a declaration by the person who made the entry, and is of the same char acter as any other declaration, whether written or oral. Being mai: in.a book where entries of the same nature are often made, it is entitled to greater weight by reasons of formality than would be a similar verbal declaration, but the principles upon which It Is re ceived in evidence are the same as gov ern verbal declarations of the same fact. It It hearsay evidence, subject to the same general rule by which that class of evidence is governed, that the fact sought to be established cannot be other wise shown. This rule was established by Chief Justice Marshall in Mima Queen V. Hepburn, 7 Cranch, 209, In the fol lowing terms: "Hearsay evidence is in competent to establish any specific fact, which fact Is In its nature susceptible of being: proved by witnesses who speak from their own knowledge." Such evi dence Is admitted in matters of pedigree, but, as Mr. Greenleaf says (Section 105): "The rule of admission Is restricted to the declarations of the deceased persons who were related by blood or marriage to the person." Taylor, in his treatise on Evidence, 9th Edition, says: "Where, however, the declarant Is himself alive and capable of being examined, his declarations will be rejected);" and) In, tbe American notes to this edition it is said: "A familiar foren of record Is the family Bible. Declarations ln such form of facts of pedigree, made by de ceased members of the family, are com petent evidence of the facts therein stated." (See, also, Depoyster v. Ga ganl, 84 Ky., 405; McCausland v. Flem mlng, 65 Pa., 36; Laggett v. Boyd. 3 Wend., 376; Greer.leaf v. Dubuque & S. C. R. R. Co., 80 lowa, 301; Campbell v. Wilson, 25 Tex., 252; Robinson v. Blake ly, 4. Rich. Law, 586; I Phillips on Ev., •pp. 248, 250.) These principles have been incorporated into the provisions relating to evidence In the statutes of this state. In Part IV. of the Code of Civil Procedure, after declaring the general principles governing the admis sibility of evidence, Section 1870, de clares: "In conformity with the pre ceding provisions, evidence may be given at a trial of the following facts: * * • j '4. The act or declaration, verbal or written, of a deceased person In respect to the relationship, birth, marriage or death of any person related) by blood or marriage to such deceased person. * * • " '13. Monuments and inscriptions in j public places as evidence of common (reputation, and entries in family Bibles, or other family books or charts, engrav- I ings on rings, family portraits and the j like, as evloience of the pedigree.' " j By the preceding sections, which con j trol the admission of evidence of the ! facts thus enumerated, and which mere ly declare the rules of evidence previous ,ly existing, the declaration or statement jof a third person is admissible only in ■ certain exceptional cases the provielon !in this section permitting evidence to jbe received of the written declaration of I a deceased person in the instances there ! mentioned, makes it evident that the I declaration of a living person Is not to jbe received. Neither does the section authorize the admission of a written declaration simply because it is made In a family Bible, unless it Is otherwise ■admissible as a written declaration; and such entry when, admissible is only to be received "as evidence of pedigree." Although the term "pedigree" includes the facts of birth, marriage and death, and the times when these events hap pened, and evidence of these facts is pertinent for the purpose of establish ing pedigree, the several facts, or either of them, do r.ot of themselves constitute marriage, and' in a case in which the ag? of an. individual' is the issue to be de termined, is not a case of pediigree. "A case Is not necessarily a case of pedigree because it may involve ques tions of birth, parentage, age or rela tionship. Where these questions are merely Incidental and the judgment will simply, establish a debt or a person's liability on a contract, or his proper set tlement as a pauper, and things of that nature, the case is not one of pedigree, although questions of marriage, legiti macy, death or birth are incidentally inquired, of." AUTHORITIES BT THE YARD Legett vs. Boyd (3 Wend, 376,), th* defense of Infancy was made to an action upon a promissory note, and. in. support of this defense the family Bible' of the parents was offered, in which th* entry of his birth hadi been made by the moth *r; and its exclusion was upheld upon the ground that the person by whom it was mad* was in court and could have been examined. Campbell vs. Wilson (23 Tex., 252,), was of thesame character, and the evid.en.ee was excluded because it was shown that the mother was within reach of the process of the court. Green leaf vs. Dubuque, etc., R. R. Co., (30 lowa, 301.), was an action to recover damages for negligence in causing the death of a person, and for the purpose of establishing his ag* as an element in determining the amount of damages The plaintiff was allowed, to show the date of his birth from an entry in the family Bible. This was held to be error on the ground that it was not shown that the person who made th* entry was : dead. In Robinson vs. Blakely (4 Rich 1 Law.. 586.), the family register of births and deaths was held admissible to show the age of the plaintiff for the purpose of determining whether the action was barred by the statute of limitations, upor the ground that the father, who made the entry, was still alive., the court say ing: "These entries stand on no higher footing than other declarations, and are entitled to no higher consideration, ex cept that if made at the time the fact occurred they are more' reliable." The admissibility In evidence of these facts is limited, in the section above referred to from Greenteaf to cases where they' arise incidentally and in relation: to pedigree. "Thus an entry by a deceased parent or other relative, madein a Bible, family missal, or any other book, or in any diocument of paper stating the fact and date of the birth, marriage- or death cf a child or other relative, is regarded as the declaration, of such parent or rel ative in a matter of pedigree." Taylor says: "Entries made by a parent or relation in Bible, prayer books, missals almanacs, or, indeed, ln any other book, or in any document or paper, stating the fact and date of the birth, marriage or death of a child or other relation, are also evidence in pedigree cases as beins a written declaration, of the deceased persons who respectively made them." ' Tbe entry In the- Bible in the present case, shown to have been made by Mrs Shipton. as she was present in court and. had. testified to the date of the chld's birth, it was not competent for the prosecution to in'roduce as a piece of substantive evidence in support of this Issue her written declaration, made sev eral years previously. It cannot be said that the error was harmless. The evi dence was not cumulative, but was of an entirely different character from any other evidence In- reference to the child's age, and the jury may well have given it a credilt by reason of its formality and apparent authenticity, which they would not grant to the living witness who testified/ respecting the age. THE SUMMING UP The motion for a new trial was denied and judgment sentencing the defendant to Imprisonment in the state's prison rendered and entered November 23, ISDS, and on the same day the present appeal was taken from this judgment and or der. September 21, 1896, the defendant made a motion to set aside the order de nying his motion for a new trial, and offered to readi affidavits ir> support of his motion. The court refused to enter tain the motion or to hear or consider the affidavits. From the order thus refusing to hear hisapplication the defendant has taken an appeal. The attorney general has moved to dismiss this appeal. This motion must be granted. By the appeal from the ord.er denying a new trial the subject matter of that order was re moved from the superior court, and while the appeal was pending that court had no jurisdiction to change the order. Besides, an order refusing to hear a motion to set aside a former order de nying a new trial is not appealable. The appeal from the order of Septem ber 21, 1896, Is dismissed. The judgment LOS ANGELES HERALD i TUESDAY MORNING. OCTOBER 12, 1897 and order denying a new trial are re versed and a new trial Is ordered. AS THE CASE STANDS Very naturally Mayne is pleased at the chance of making his Innocence ap pear. In the early stages of the case hie pertinacious and continuous reiteration of his innocence was accepted as the brazenness ot guilt; but that time has long gone by. And during his Incarcera tion in the county Jail an altogether new mass of evidence has been accumulat ing tending rather to corroborate his contention that there existed hidden depths to the case that have not yet been plumbed. As an attache of the supreme court yesterday said: "It will probably never be known what powerful Influ ences were brought to bear in San Francisco in the attempt to secure the final conviction of Mayne." What in terests are to be subserved by having Mayne barred in at San Quentln is a moot point, but the many and varied facts in the case would seem at least to indicate that other and ulterior ends were sought to be obtained by some per son or persons using the machinery of law and justice. THE CEMETERY ORDINANCE Privilege of a Private Graveyard no Longer Exists A rather important ruling was mads yesterday by Judge Allen in an opinion given in the case of the county of Los Angeles vs. Hollywood Cemetery asso ciation. A short time ago the board of super visors passed an ordinance prohibiting the establishing of any cemetery or graveyard tn the county without per mission. The defendant association is now locating a cemetery without hav ing obtained the permission of the su pervisors and the county sought by in junction to restrain the association from further proceeding with their plan. The defendant raised the following questions on demurrer: That this ordi nance is invalid in that it is in violation of the fourteenth amendment of the United States constitution, by virtue of the fact that it deprives the citizen of the use of his property without due process of law; second, that the subject matter of the ordinance is not a thing within the police or sanitary regulations conferred upon boards of supervisors of counties by article 2, section 2, of the constitution of California; third, that it arbitrarily places the right to a legit imate, useful and necessary use of pri vate property under the control of the board of supervisors; fourth, that it is unequal in its operations, permitting present owners of a cemetery already, dedicated to unrestrictedly use their property, while forbidding the same rights to others. "We are first led to inquire,"says Judgt Allen, "whether or not the establish ment of a cemetery for the purpose of interring therein dead human bodies is a business or vocation which may be well presumed to have an injurious tendency. Whatever may have been the accepted theories of the past, it is safe to say that the opinions at the present date of those best able to determine are well settled that the interment of animal matter in the soil is a menace to public health. The great weight of authority, in my opinion, indicates that the manner of the interment of dead bodies, the place of their interment and the estab llishment of cemeteries for such inter ment, are all matters within the power conferred upon the board 9 therein named by article 2, section 2, of the con stitution of this state. "Is Jhls ordinance, then, violative of the fourteenth amendment to the Con stitution of the United States. The constitutional protection, to properly necessarily includes the use of such property, but the use of properly must be held to be such a use as shall not in terfere with the vested rights, privi leges, health and welfare of the general public. The constitution does not at tempt, nor can it be construed to con fer upon a citizen the right to the use of his property in an unlawful manner, nor to the use of it In such a manner as would Interfere with the rights of his neighbors and those around him. "It Is urged, or. behalf of the defend ant in this case, that this ordinance Is unequal in its operations. I find noth ing in the ordinance, nor the record, which supports this theory. The ordi nance is general In Its terms. It in cludes the whole county, and all the lands therein, and the right of every citizen in the county owning land is, in my mind, equally affected by this ordi nance. It simply is an assertion of the right of the board to the police power which I think is reposed in that board. "It is my opinion that the complaint states a cause of action; that no cause is shown why an injunction should not issue; and it is ordered that th* demur rer be overruled, and that an injunction issue as prayed for in the complaint." THE WAGNER INSOLVENCY Pleading His Discharge No Protection in Case of Fraud In the case of Wur.ich et al. against Wagner, involving a sum of $13,770.50, Judge Clark yesterday rendered an opin ion, in which he passes upon an objec tion, raised by the defentiant. The defendant pleaded a discharge un der the insolvent act of 1880, and put In bis certificate of discharge. It was stip ulated that defendant was indebted to plaintiffs on September 28, 1892, for goods to the amount of $13,770.50; that on that day defendant filed his petition in voluntary insolvency, and was ad judged insolvent; that plaintiffs filed against the estate of the defendant, which claim was allowed, and two divi dends, aggregating $2409.83, were paid and received on account; that on March 6, 1893, an order of discharge was made under the provisions of the insolvent act. "As I understand the briefs of coun sel," says the court, "the plaintiff now offers evidence for the purpose of show ing that the debt in question was cre ated by fraud of the defendant. The defendant objects to the offer, and urges the discharge Is a complete defense. De fendant's counsel contend that to admit the testimony in question would be to permit a collateral attack upon the Judgment or order of the court dls YOUR 4 HEADACHE % May bs the result of *|» excessive coffee X drinking «L TRY POSTUM J charging the defendant as an Insolvent, which, it Is claimed* cannot be done. "Section 52 of the Insolvent act of 1880 provides (and the same provisions are four.*! in Section 55 of the act of 1895) that: 'No debt created by fraudi or em bezzlement of the debtor or by his de falcation as a public officer, or while acting In a fiduciary capacity, shall be discharged under this act, but the debt may be proved, and the dividend thereon shall be a payment on account of said debt, and no discharge granted un der this act shall release, discharge or affect any person liable for the same debt for or with the debtor, either as partner, joint contractor, lndorser, sure ty or otherwise.' It would seem appar ent, therefore, that if the purpose of the offer is to prove, and the testimony does, in fact, prove that the debt wos con ceived lo fraud, it is admissible, not as an attack upon, or attempt to set aside, the order of discharge, but as showing that the debt is one not affected thereby. And if the purpose is to prove, and the evidence does, in fact, tend, to prove, that the dlchargre was fraudulently obtained, and that the fact constituting the fraud was discovered subsequent to the dis charge, the same discharge ruling should be made." The objection.of defeodiant is overruled and an exception noted. THE SUPREME COURT New Material Looming Up at the Local Bar The Justices of the supreme court, ex cepting Justice Henshaw, who only ar rived in the city last night, sat In bank yesterday afternoon to pass upon, mo tions. When Mrs. Clara Foltz removed from Los Angeles to San Francisco several years ago the local bar was bereft of one who had, while in Southern California, occupied the unique position of being the only lady attorney. Mrs. Foltz has reversed the dictum of Horace Greeley to young men and has gone east Instead, and has estalished.' herself In New York. But now Los Angeles is to have another ladiy lawyer, for yesterday before the supreme court, on motion of Walter Rose and presentation of her certificate from the supreme court of Illinois, Miss Elizabeth L. Kinney was admitted to practice. Other practitioners were admitted as follows: Horatio J. Fargy. on motion of E. W. Fargy and presentation of certificate from the supreme court of Ohio. John G. Mott, on motion of Frank F. Flint and presentation of certificate from the supreme court of Indiana. Theron Leslie Lew is, on motion of W. H. Fuller and presentation of certiflcat-. from the supreme court of lowa. William R. Henderson, on motion of Shirley C. Ward and. presentation of certificate from the supreme court of Indiana. George F. Page, on motion of Shirley C. Ward and presentation of certificaU from the supreme court of Kansas. Charles M. Hansen, on motion of W J. Murphy and presentation of certifi cate from the supreme court of Illinois Today twenty-three applicants tot admission to practice will come before the court for examination, and tomor row the court, again sitting ln bank, will pass upon several criminal cases ol interest, including the Durrant case, the murder case of Chew Wing Gow. wherein so much perjury wascommitted in this city, and the Barthleman case. THE DIVORCE MILL A Local Marriage That Has Ended in Disaster A decree divorcing; Narclsse Guinl from Adolph F. Guiol was granted by Judge York yesterday on the default of defendant and on- the ground of failun. to provide. The couple were married in this city in ISB4, Mrs. Guiol being a daughter of Jean Sentous, the old-time wealthy resident. At the time the-young wife had property yielding a small in come of about $S5 per month, but the husband, in profligacy and dissipation, soon made it disappear. Now the er.d has come and, w.hile the wife has been permitted to resume' her maiden name of Narclsse Sentous, to her hasbeen con fided the custody of JuarJta Guiol, the 9-year-oldi daughter. Judge York also granted a decree to Alice Beard Hess, divorcing her from Benjamin L. Hess, on the ground of In temperance and failure to provide. The parties married at Lancaster, Perm., in 1877, and have been residing in Los An geles for nine years. The husband was in the employ of the Less Angeles Furni ture company at a salary of $125, and was given an excellent character as a salesman. But he tojr to heavy drink ing and was discharged. Then he ill treated and neglected his wife andi now he has lost her altogether. In the suit of Violet D. Robinson against William H. Robinson, Judge Clark yesterday continued the case for further hearing. The couple intermar ried in Los Angeles in September, 1883 and In September, 1895, the husband de serted his home. A decree was granted by Judge Clark, divorcing Joseph Chester from his wife, M. R. Chester, on the ground of deser tlon. The suit of Rachel M. S. Gardiner against Francis I. Gardiner was heard by Judge Allen mi department six. The plaintiff married one of the veterans at the Soldiers' home, and at his request came to Los Angeles and started a boarding house. The husband not only failed to assist in supporting his wife, but altogether abandoned her. In grant ing the decree Judge Allen held that the desertion had not been proved, for the reason that the wife had not. confessed ly, gone back to Santa Monica and sought to resume marital relations with her husband. On the other point, how ever, the divorce was granted, and the wife allowed to resume her maidenname of Rachel M. Sherer. Mrs. L. J. H. Hast ings, wife of "Dr." Hastings of electric fame, was a witness in the case. THE PHELAN FAILURE That Temporarily Stopped the Tunnel Work at San Bernardino E. F. Phelan was the contractor who undertook to do the tunneling' work or. the big water power development plant of the Southern. California Power com pany, at San Bernardino. He became insolvent and yesterday his creditors met in Department five to select an as signee. And they bad a gay old time'doing it. One party of creditors wanted Gregory Perkins, Jr., appointed and. the remain der wanted J. Holcomb. The attorneys representing the several parties inter ested, lined' up and talked* themselves* hoarse, while they quoted flgures enough to make one's head swim. Finally Judge- Shaw called a halt ar.d plainly intimated he did not Intend sitting on the bench for a month while the contending fac tions had a monkey and parrot time-over the appointment of an assignee. Tbe Royal naked the food pare, wholesome and delicious. POWDER Absolutely Pure "OVAL BAKING POWDER CO., NEW YORK. court took the matter in hand and, as the larger amount of the Insolvent's In debtedness was to creditors who favored. Mr. Perkins, that gentleman was de clared the assignee of the estate. The total indebtedness will range about $25,000. New Suits Filed Carrie M. Worthen vs. Rachel Stoy et al.—A suit to recover $1000 on a note, $150 attorney's fee, and decree of sale against lots 8 and 9, block 5, of the Brooklyn tract. Joseph S. Clapp V9.L. V. Csrr—A suit to recover $35 as rent, and-restitution ol' premises at 717 Wall street. Court Notes There have been 636 marriage licenses taken out since May Ist. The arguments of counsel In the case of A. E. Davis, charged with forgery, occupied all of the day yesterday. Dep uty District Attorney McComas will close for the prosecution this mornint' and the case will then be given to the jury. In the suit of T. J. Higgins et a!, against the city of San Diego et al., de fendants and respondents, and the San Diego Water company, appellant, he supreme court has reversed the Judg ment of the superior court and the cause has been remanded for further proceed ings in accordance with the previous opinion rendered and which has now been modified. Arguments were begun yesterday In the circuit couri In the case of Rand Mountain Gold Mining company vs. Sunlight Gold Mining company et a!., on a motion to appoint a receiver on an order to show cause. An Unnatural Mother Mrs. J. E. Robinson, the colored wo man arrested on complaint of her hus band for falling to care for her children, was arraigned in the police court yes terday, and had her trial set for today at 1:30. Latest styles wall paper at A. A. 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