that is, there is clear and positive evidence to that effect, and nothing whatever to the contrary. Looking at the testimony, under these conditions, we are unable to see how the evidence materially strengthened the case for the people. But, aside from this, if it had any effect looking to the establishment of a material fact in the case, it was competent and admissible. If it had no such effect, then it was immaterial, and certainly entirely harmless. No possible injury to the defendant can be imagined from its admission, conceding it to be immaterial, and the error committed would be mere abstract error.

4. The trial judge gave the jury the following instruction as to the law of the case: "The court instructs the jury that if you be lieve from the evidence beyond a reasonable doubt that the defendant committed the offense charged in the information, or aided, abetted, or assisted any other person or persons to commit the same, then you should find the defendant guilty." There is no evidence in the case to justify a jury in believing beyond a reasonable doubt that the defendant aided, abetted, and assisted in the commission of the forgery. Under the evidence disclosed by this record, he was either a principal or not guilty, and for that reason that portion of the instruction bearing upon the defendant as an accessory should not have been submitted to the jury. Again, conceding the instruction pertinent to the facts of the case, the disjunctive conjunction "or" should not have been used between the verbs "aid," "abet," and "assist." They should have been joined by the conjunction "and." By technical legal construction, a person may assist or aid in the commission of a crime, and still be possessed with no criminal intent, and therefore in no sense an accessory to the crime. While most probably the verb "abet" imports criminality, "aid" and "assist" do not. Yet it was said in People v. Bruggy, 93 Cal. 486, 29 Pac. 26: "The practical administration of justice should not be defeated by a too rigid adherence to a ciose and technical analysis of the ins.ructions of the court. Instructions are for the enlightenment of the jury as to the law of the case, and a jury never enters into such character of analysis in construing them." And we are satisfied that the instruction here under consideration did not mislead the jury to defendant's prejudice. To the ordinary mind, one who aids or assists in the commission of the crime of forgery is guilty; and this is true because to such a mind criminality is included as an element in the act of the party aiding or assisting. To the ordinary understanding, it would seem that as a person could not commit the crime of forgery without knowing it was a crime; neither could he aid or assist in its commission without being aware of the criminality of his acts.

5. The court also instructed the jury as follows: "Where weaker evidence is produced, when in the power of the party to produce

higher, it is presumed that the higher eridence would be adverse if it had been produced." This instruction embodies a very poor attempt to express the principle of law of presumptions declared in subdivision 6, § 1983, Code Civ. Proc. This subdivision of the section, properly quoted, is as follows: "That higher evidence would be adverse from infe rior being produced." It will be observed that the adjective "weaker" is not used in the subdivision, and we are hardly prepared to say that "weaker evidence" and "inferior evidence" cover the same ground. Under the evidence in this case we find no demand for the giving of the presumption of law attempted to be declared by the foregoing instruction, even if it be conceded to be a proper principle to be given in exceptional criminal cases. But, again applying the principle laid down in the Bruggy Case, we see no prejudicial error. The evidence called for no

such instruction. By the record it is nowhere disclosed that the defendant offered "weaker” evidence when it was in his power to produce "higher" evidence. Hence the jurors. as honest men of average intelligence, could not have been misled by the declaration of the court in this regard. There being no facts in the case for the application of the principle, we feel that no injury resulted to defendant from the charge.

6. The court gave the jury the following instruction: "Where the evidence is entirely circumstantial, yet it is not only consistent with the guilt of the defendant, but inconsistent with any other rational conclusion, the law makes it the duty of the jury to convict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credible eyewitnesses would have been." In view of the fact that the evidence in this case was not "entirely circumstantial," but very largely direct and positive, the facts of the case did not justify the giving of this instruction. Again, the distinetion attempted to be made in the degree of evidence necessary to convict in cases of circumstantial evidence, as compared to cases of positive and direct evidence, is not satisfactory to this court. While the general principle declared here has some support in the case of People v. Cronin, 34 Cal. 201, yet it has been looked upon with disfavor in the later case of People v. Eckman, 72 Cal. 582, 14 Pac. 359. The better practice would be to refrain entirely from declaring any such distinction in instructing the jury in criminal cases. Under the facts of this case, the error is not a substantial one.

7. By a diminution of the record very serious objections to certain other instructions have been overcome; and, as to the refusal of the court to give defendant's instruction No. 10, we are satisfied the subject-matter thereof is fairly covered by people's instruction No. 20. There are many other grounds relied upon for a reversal of the judgment and a new trial. We have examined them all with

FALLTRICK v. SULLIVAN. (Sac. 353.) (Supreme Court of California. Jan. 18, 1898.) SCHOOL TRUSTEES-ELECTIONS-QUALIFICATIONS OF VOTERS-CONTEST.

1. In a proceeding to contest an election of a school trustee, under the provisions of the Code of Civil Procedure entitled, "Of Contesting Certain Elections," the contest came on for trial on July 8th; and on the following day the court. on its own motion, continued the case until July 14th, without objection, after consultation with the attorneys of both parties. The trial was concluded on the 14th, without objection by either party. Code Civ. Proc. § 1118, requires the court, on a statement of contest filed, to "order a special session," to be held on a day named, not less than 10 days nor more than 20 days from such order, to determine such contest. Code Civ. Proc. § 1121, provides that the court must meet at the time and place designated, and may adjourn from day to day, and continue the trial, before its commencement, for any time, not exceeding 20 days, "for good cause shown by either party upon affidavit, at the costs of the party applying for such continuance." By Const, art. 6, § 5, and Code Civ. Proc. $$ 73, 74, the superior courts are always open, the intervals in which no business is transacted being regarded as recesses; and by "sessions" is meant the time during which the court is in fact engaged in business as a court. Held that, under the constitution and said statutes, the court did not lose jurisdiction of the cause by said adjournment.

2. Under Pol. Code, § 1083, as amended by St. 1893, p. 124, nroviding that the names of all voters shall be enrolled on the county register 15 days prior to the election; Pol. Code, § 1598, providing, that every qualified elector of the county who has resided in the district for 30 days next preceding an election may vote at an election for school trustees; and Pol. Code, § 1083, prescribing the qualification of voters "at any and all elections held within the county, city, town, or district within which such elector resides," the votes of persons for a school trustee, whose names were not enrolled on the register of the county, could not be counted.

Commissioners' decision. Department 2. Appeal from superior court, Sacramento county; A. P. Catlin, Judge.

Action by Edward Falltrick against P. Sullivan to contest an election for school trustee. Judgment was rendered for defendant, from which plaintiff appeals. Reversed.

Holl & Dunn, for appellant. C. T. Jones and C. P. Kearney, for respondent.

HAYNES, C. Plaintiff, an elector, contested the election of defendant to the office of trustee of American River school district, in the county of Sacramento, and sought to have it adjudged that B. Feraut was elected to said office. The defendant had judgment, and plaintiff appeals therefrom. The evidence is brought up by bill of exceptions.

This proceeding was brought under the provisions of the Code of Civil Procedure

entitled, "Of Contesting Certain Elections." The bill of exceptions shows that said contest came on regularly for trial on July 8, 1896, and the trial was proceeded with on that day and the day following, when the court, on its own motion, continued the further hearing of the case until July 14th; that no motion or affidavit for such continuance was made by either party; that it was made without objection, after consultation with the attorneys of both parties, and to a day agreeable to them, and was made because of another engagement of the court, and the trial was proceeded with and concluded on the 14th without objection or exception by either party; and it is now contended by respondent that the court lost jurisdiction of the cause by said adjournment. Section 1118, Code Civ. Proc., requires the court, upon the statement of contest being filed, to "order a special session" of the court to be held on a day named, not less than 10 nor more than 20 days from the date of such order, to hear and determine such contest. Section 1121, Code Civ. Proc., is as follows: "The court must meet at the time and place designated, to determine such contested election, and shall have all the powers necessary to the determination thereof. It may adjourn from day to day until such trial is ended, and may also continue the trial, before its commencement, for any time not exceeding twenty days, for good cause shown by either party upon affidavit, at the cost of the party applying for such continuance." In support of his contention, respondent cites Keller v. Chapman, 34 Cal. 640; Norwood v. Kenfield, Id. 332; English v. Dickey, 128 Ind. 174, 27 N. E. 495; and McCrary, Elect. § 421. In Keller v. Chapman, after the trial had progressed for two days the court, on contestant's motion, and against defendant's objection, adjourned further proceedings therein for seven days. The grounds upon which the continuance was granted do not appear. The court said: "The summary nature of the proceeding is inconsistent with the exercise of the general discretionary power of granting continuances possessed by courts in civil actions. The expression of the particular mode and time of continuance is conclusive of all nonenumerated modes and times. The continuance from the 6th of the month, when the case was on trial, to the 13th of the same month, against the objections of the respondent, and without an affidavit showing cause, was unauthorized, and operates as a discontinuance of the proceeding." The court was there dealing with the question of "the general discretionary power of the court to grant continuances" where no cause was shown by affidavit, and held that no such power existed, except as to the continuances provided for in the statute. Here the continuance was not made at the instance of either party, but was made by the court because of another engagement "of the court,"

and without objection from either party. It was not, as we must assume, another engagement of the Honorable A. P. Catlin, as an individual, but of the court; and we are bound to assume that it was imperative, and fully justified the continuance, if a continuance could be ordered, for any cause, otherwise than from day to day. The next case cited (Norwood v. Kenfield) involved a radically different question. Under the judicial system then prevailing, there were "terms" of court, and except during the terms there was no court, and the judge could perform no judicial act except those authorized by statute. In that case, after the order fixing the day for the special term, the judge, in vacation, and before the day fixed for the commencement of the special term, continued the trial to a later day, on which day the defendant appeared, and objected to the jurisdiction of the court upon the ground that the county judge had no authority at chambers to make the order continuing the case. This objection was overruled. The supreme court held that "there was no term in existence at which a trial could be had, and the whole proceeding was a nullity"; that the court did not meet at the time designated, and until the special term commenced there was no power to order the case adjourned to another day. The question as to the power of the court to adjourn the hearing after the trial commenced was not involved. In the case now before us no question arises as to "terms" of court, nor as to the constant existence of the court. By the provisions of the constitution the superior courts are always open, the intervals in which no business is transacted being regarded as recesses; and by "sessions" is meant the time during which the court is in fact engaged in business as a court. Const. art. 6, § 5; Code Civ. Proc. §§ 73, 74; and In re Gannon, 69 Cal. 544, 545, 11 Pac. 240. And accordingly section 1118, Code Civ. Proc., directs that "the superior court" (not the judge) "shall order a special session of such court to be held," etc. The "court," therefore, did not cease to exist, as such, by the continuance of the cause, leaving only the question as to whether the court lost jurisdiction of the case; in other words, whether the court, its existence as a court being unaffected, can, for sufficient cause, adjourn the hearing, after it is commenced, otherwise than from day to day. The statute contemplates a prompt and speedy determination of election contests; but it cannot be presumed that the legislature intended that under no circumstances, however essential to the administration of justice, and especially in a matter in which the public as well as the parties have an interest, could an adjournment be had otherwise than from day to day. Contingencies might be readily imagined where, without the fault of the court or of either party, an interruption of several days would be unavoidable. The

case of Lord v. Dunster, 79 Cal. 477, 486, 21 Pac. 865, is an illustration, though there the continuance was asked on December 31st to January 2d, which was in effect but one day, the first being a holiday. The purpose for which the continuance was asked, the showing made in support of it, the fact that the motion was made after the submission of the case, though before the decision was announced, and the spirit and scope of the decision, all tend strongly to support my conclusion in this case that the court did not lose jurisdiction. The facts in Lord v. Dunster, in my judgment, would have required the same judgment in this court if the time required to produce the witnesses had made a longer continuance necessary. In this case we are justified in assuming that the prior engagements of the court were at the least as imperative as the requirements of the statute under consideration, and that it was not intended that, where the inability of the court to proceed with the case makes a continuance for several days necessary, the court should lose jurisdiction. The statute declares that the court "shall have all the powers necessary to the determination thereof." Code Civ. Proc. § 1121. See, also, the concluding paragraph of Minor v. Kidder, 43 Cal. 237, 238.

ever.

Appellant contends that the judgment should be reversed because the evidence is insufficient to justify certain findings. The court found that 43 votes were cast and counted for the defendant, P. Sullivan, and that 42 votes were cast and counted for B. Feraut, and that no illegal votes were cast for Sullivan, and confirmed his election. Appellant contends that the evidence shows that Dominico Sorrocco, Raffelo Cassello, Julian Feraut, John Inderkum, and W. J. Donahue voted at said election for Sullivan, and that none of them were entitled to vote. That each of said five persons voted is not questioned, but respondent contends that there is a conflict in the evidence as to the person for whom they voted. We see no conflict, howInderkum identified his ballot, and it bore Sullivan's name, and was counted for him. The printed tickets all bore Sullivan's name, and were red or pink in color. Feraut's tickets were written on common white paper. The evidence is satisfactory and uncontradicted that none but white tickets were voted for Feraut, and that all red tickets were voted for Sullivan, and in addition some white ones; and there was positive testimony that each of the five voted a red ticket, and no witness testified to the contrary. Inderkum and Donahue were both examined as witnesses on the part of the defendant, but no effort was made to show that they did not vote for Sullivan. The ground upon which appellant claims they were not entitled to vote is that they were not enrolled on the great register of voters 15 days before the election. As to this fact, also, there is no controversy. Section 1083 of the Political

Code, as it stood before the amendment of 1893, simply required that the name of the voter "shall be enrolled on the great register of the county." This provision was amended in 1893 by adding the words, "fifteen days prior to an election." St. 1893, p. 124. Under the title, "Election for School Trustees," Pol. Code, § 1598, provides: "Every qualified elector of the county, who has resided in the district for thirty days next preceding an election, may vote thereat." Under these provisions it is clear that, if the five persons above named were not qualified electors of the county, they were not entitled to vote for school trustee, enrollment on the great register fifteen days before an election being essential. But it is claimed by respondent that section 1600, Pol. Code, modifies this requirement as to registration. That section prescribes the oath to be administered to a person whose right to vote for school trustees is challenged, and, as to registration, provides as follows: "And that your name is on the great register of this county."

And said section further pro

vides: "If he takes the oath prescribed in this section, his vote must be received, otherwise his vote must be rejected." This section, as it now stands, was enacted in 1880, and has not been amended to conform to section 1083 as amended in 1893, and which pre scribes the qualifications of voters "at any and all elections held within the county, city, town or district within which such elector resides"; and all the qualifications specified in that section, including that of enrollment on the great register 15 days before an election, are imported into section 1598, relating to the election of school trustees. But section 1600, prescribing the oath to be taken by a person whose vote is challenged, does not determine the legality of a vote cast by one who has taken the oath. It prescribes a summary mode of determining whether the vote shall be received, and does not determine its legality for any other purpose, else one who had willfully, and for a fraudulent purpose, sworn falsely, would thereby become in effect a legal voter, and no contest against one elected by such votes could possibly succeed. There is no provision of the statute giving the oath any other effect than that of determining the duty of the board to receive the vote. Though the challenger may know that the oath is false, and be able to prove it at the time, the vote must nevertheless be received, as otherwise the whole time of the board might be occupied with trials of challenges, and qualified voters be thereby deprived of all opportunity to vote.

Respondent calls attention to the fact that this election was held on June 5, 1896; that on May 29th, nine days before the election, the board of supervisors canceled the great register; that these five persons were registered between the 1st and 4th of June,--and argues that, if appellant's contention is sound, there were no qualified electors in the district at the time the election was held. There is

The

nothing in this contention. It is true, the county clerk testified that the great register was "canceled" on May 27th, but he evidently testified to a mere conclusion of law. statute makes no provision for canceling the old register before commencing a new one. Section 1094, Pol. Code (St. 1895, p. 228), provides, among other things, that, in those counties where registration is not required previous to each general election, a new and complete registration of the voters of such counties shall be made "when required by the board of supervisors. Such regis

tration shall commence one hundred and sixty days before a general election and continue for seventy-five days thence next ensuing, when said registration shall cease." School trustees are required to be elected annually on the first Friday in June, and it is obvious that the old register must remain for all purposes required by law before the completion of the new register, and the board of supervisors have no authority to declare it canceled before the registration is completed. It should be added that the five persons alleged to have voted illegally for respondent were not enrolled upon the great register alleged to have been canceled, and that Cassello's name was not in fact enrolled upon the register at any time; the clerk having subsequently refused to enter it, upon the ground that he was not qualified, though he gave him a certificate of registration at the time of his application to register. But the only certificate authorized by the statute is a "certified copy of the entries upon the great register relating to such party." Pol. Code, § 1107.

One ballot was cast upon which the name of P. Sullivan was printed, and the name "John Inderkum" was written in ink about an inch below the printed name, which was not erased. This ballot was counted for Sullivan by the election board, and also by the court. The evidence shows that this ballot was cast by Inderkum, and, as he was not entitled to vote, for want of timely registration, what construction the law would place upon such ballot need not be considered. The judgment should be reversed, and the cause remanded for further proceedings.

We concur: CHIPMAN, C.; BRITT, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded for further proceedings.

(119 Cal. 352) IRVINE v. PERRY et al. (S. F. 669.) (Supreme Court of California. Jan. 17, 1898.) For Modification of former judgment. former opinion, see 51 Pac. 544.

PER CURIAM. The judgment heretofore rendered herein is modified by adding thereto a direction to the superior court to fur

ther modify its judgment by directing that lot 10 named in the "sixth" parcel of land to be sold by the sheriff shall be sold for at least the sum of $890.74, instead of $814.02, and that this sum of $890.74 shall be applied to the payment of the amount due the plaintiff, leaving the amount received from the sales of other property after so applying said sum of $890.74 to the plaintiff's claim to be apportioned to the payment of the other mortgages.

(119 Cal. 534)

HOME FOR CARE OF THE INEBRIATE v. CITY AND COUNTY OF SAN FRANCISCO. (S. F. 513.)

(Supreme Court of California. Jan. 5, 1898.) DEDICATION-IDENTITY OF DESCRIPTIONS-APPEAL -ERROR-TITLE BY PRESCRIPTION.

1. The city of San Francisco duly dedicated by map a certain lot owned by it to the public use, as a "Home of Inebriates." Afterwards the legislature enacted St. 1869-70, p. 586, § 7, which confirmed the title in a corporation known as the "Home for the Care of the Inebriate," and vested the title of the city and county in such corporation forever. Held, that the latter corporation acquired no title to said lot under said dedication or under said statute.

2. Upon an appeal from a judgment, error must be affirmatively shown, in order to justify its reversal; otherwise all presumptions necessary therefor will be invoked in support of the judgment.

3. Title by prescription cannot be acquired to a lot which had theretofore been dedicated to public use.

Department 1. Appeal from superior court, city and county of San Francisco; J. C. B. Hebbard, Judge.

Action by the Home for the Care of the Inebriate (a corporation) against city and county of San Francisco to quiet title to a lot of land. Judgment was rendered for defendant, from which plaintiff appealed. Affirmed.

Sawyer & Burnett, for appellant. H. T. Creswell, for respondent.

HARRISON, J. The plaintiff claims to be the owner of a lot of land within the boundaries of the city and county of San Francisco, and brought this action against the defendant to quiet its title thereto. The defendant denied the plaintiff's right to the land, and alleged itself to be the owner of the land, and asked a judgment quieting its title thereto as against the plaintiff. Judgment was rendered in favor of the defendant, and the plaintiff has appealed.

The land in question is within that portion of the corporate limits of San Francisco which is embraced within the terms of the act of congress of March 8, 1866 (14 Stat. 4). By that act congress granted to the city its interest in the lands therein described, and confirmed the city's claim thereto, upon the trust that the portion thereof not previously granted to the city, and which includes the land in question, should be conveyed by the city to parties in bona fide, actual possession

thereof at the date of the act, as might be prescribed by the legislature of the state of California, "except such parcels thereof as may be reserved and set apart by ordinance of said city for public uses." After the pas sage of this act the board of supervisors of San Francisco adopted an ordinance for the purpose of carrying its provisions into effect, commonly called "Order No. 800," and this ordinance was ratified and confirmed by the legislature March 27, 1868 (St. 1867-68, p. 379). By this ordinance it was provided that the board of supervisors should adopt a plan for the subdivision of the land into blocks and lots, and should select and set apart for public uses such lots and portions of said land as it might deem necessary, and should cause a map to be prepared according to this plan, upon which "shall be designated the lots and portions of land set apart for publie uses, and the particular use for which each lot or portion of land shall have been set apart," and that upon the adoption of said map the portions of land designated thereon for any public purpose "shall be deemed absolutely dedicated as such." A map was thereupon prepared and adopted by the board of supervisors, upon which the lot of land described in the complaint herein was designated as having been set apart for "Home of Inebriates"; and on December 7, 1868, the committee on outside lands reported to the board of supervisors that this lot was reserved for the "Home of Inebriates," and on the same day the board of supervisors confirmed and adopted this report. By these proceedings the lot of land described in the complaint was reserved by the city and dedicated to public use. As the plaintiff is a private corporation, without any of the elements of a public agency, these proceedings did not, under the principles declared in California Academy of Sciences v. City and County of San Francisco, 107 Cal. 334, 40 Pac. 426, confer upon it any right in the land, or to its possession.

The plaintiff, however, disclaims any right by virtue of the proceedings under order No. 800, but contends that the title to the lot was vested in it by virtue of section 7 of an act of the legislature approved April 1, 1870 (St. 1869-70, p. 586). This section is as follows: "The title to the lot set apart by the board of supervisors of San Francisco or a committee of said board, to and for the corporation known as the 'Home for the Care of the Inebriate,' is hereby confirmed to said corporation; and the title of said city and county in and to said lot is vested in said corporation forever." The lot described in the complaint herein is not, however, described in the act of 1870, nor does it appear from the record herein that any lot was ever set apart to the plaintiff by the board of supervisors, and it is only by inference that it can be claimed that the lot of land set apart for "Home of Inebriates" was ever intended for the plaintiff. The superior court has found that the