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able the court to find the value. The defend- | to duties," etc. Section 4014 of the Political ant is liable only for the wholesale price or Code, as amended in 1907, provides for two value; that is, of the going price when sold justices of the peace in each township of the in similar lots by manufacturers to the trade. state; provided that in townships containing The judgment and order are reversed. cities in which city justices or recorders are

elected and in townships having a population We concur: SLOSS, J.; ANGELLOTTI, J. of less than 5,000 there shall be but one, and

provided further that in townships contain

ing a population of more than 100,000 and (5 Cal. App. 678)

less than 300,000 there shall be four justices SUMMERFIELD V. DOW. (Ciy. 397.)

of the peace. Subdivision 15 of section 4231, (Court of Appeal, Second District, California.

which relates to the compensation of jusJune 4, 1907. Rehearing Denied by Supreme Court Aug. 3, 1907.)

tices of the peace in counties of the second JUSTICES OF THE PEACE — COMPENSATION

class (Los Angeles), provides that justices STATUTES-VALIDITY.

of the peace shall receive as compensation Pol. Code, g 4014, as amended in 1907, "such fees as are now or may be hereafter provides for two justices of the peace in each

allowed by law; provided that no justice of township, except in townships containing cities in which city justices are elected, and in town the peace shall receive more than $1,500 per ships having a population of less than 5,000, annuin, which may be paid in monthly inthere shall be but one, and except in townships

stallments of not exceeding $125 per month containing a population of more than 100.000 and less than 300.000, there shall be four.

for all services rendered by him in criminal Section 4231. subd. 15, as amended by St. 1907. cases *

or proceedings to which the P. 424, c. 10, fixes the salary of justices of the people of the state of California are parties. peace by allowing them the fees allowed by law, except that no justice shall receive more than

And provided further, that in town$1,500 per annum for services rendered by ships having a population of more than one him in criminal cases, and except that in town hundred thousand and less than three hunships having a population of more than 100,000

dred thousand each justice of the peace shall and less than 300.000, each justice shall receive a salary of $3.000 per year, which shall be

receive a salary of three thousand dollars in lieu of all fees for the performance of any per year, payable in like manner and out of official act. Held, that section 4231, subd. 15,

the same fund, and at like times as county as amended, is not in conflict with Const. art. 11, $ 5. providing that the Legislature shall regu

officers are paid and such salary shall be in late the compensation of all officers in propor

lieu of all fees due or to become due such tion to duties, since the adjustment of com justice for performance of any official act. pensation between the different classes of jus

And all fees * * shall be and become tices is based on proper distinctions.

the property of the county in which such jusPetition for a writ of mandate by Joseph tice exercises his jurisdiction." Another proW. Summerfield against Herbert G. Dow,

viso requires the board of supervisors of the as auditor of Los Angeles county, to compel county to provide an office and necessary furrespondent to draw a warrant on the county | niture therefor and appoint a clerk for each treasurer to pay petitioner his salary. Writ

of said four justices' courts, and a salary of granted.

$100 per month is provided to be paid to C. L. Shinn, for petitioner. Anderson &

each of said clerks. Anderson, for respondent.

Los Angeles township is the only one in

Los Angeles county to which the provisions TAGGART, J. Petition for writ of man as to clerks, salary, offices, etc., can apply, clate. Petitioner is a justice of the peace

and it is contended: First, that the compenfor Los Angeles township, Los Angeles coun sation provided is not in proportion to the ty Respondent is the auditor of Los An duties that the respective justices of that geles county. On May 11, 1907, petitioner township may be required to perform; and, (lemanded of respondent that he draw a war second, that, when compared with the comrant upon the treasurer of Los Angeles coun pensation fixed for justices of the peace in ty for $250, payable to petitioner as his other townships of Los Angeles county, the salary for the month of April, 1907, under salary allowed is not in proportion to the tlie provisions of subdivision 15 of section duties of the office. 4231 of the Political Code, as amended While it is possible, we might even say March 18, 1907 (St. 1907, p. 424, c. 10). Re probable, judging from buman nature in the spondent refused to issue said warrant, and, average, that some of the justices of the as cause why the mandate of this court township in question will perform more of should not issue commanding him to do so, the duties of the office than others, we do ways the statute providing for such salary is not think this is a failure of uniformity of unconstitutional. The provision of the Con-operation which can be reached in this manstitution said to have been violated by the

This presents one of those evils of our Legislature in enacting the section mentioned governmental system which must find relief is the requirement of section 5 of article 11 at the ballot box. A statute which provides that "It [the Legislature] shall regulate the four officers to attend to all the business of a compensation of all such officers [county, specified kind within a certain district at towuship and municipal officers] in proportion equal salariés impliedly imposes a duty upon

these officers to equitably apportion the busi- , former case, and was subject to the same obness among them, whether there be any ex- | jection when considered independent of the press statutory regulations in this regard or provision relating to the justices of the peace not. Any inconvenience to the public from to whom were given a fixed salary for all the overzeal of one or more of the incumbents services in civil and criminal cases. The of the office of justice of the peace to do too section classifying townships and fixing the much (or too little) will have to be borne compensation of the justices of the peace until the opportunity arises to change the was considered as an indivisible act, and on personnel of the offices. That a more ex the theory that one part could not be percellent system was provided for San Fran mitted to stand without the other, the decisco by the Code of Civil Procedure (section cision in that case may be sustained. This 85 et seq.) does not imply that the latter is view of the opinion in that case is supported the only constitutional plan. The validity by the fact that no attempt is made to point of a law is not to be tested by its applica- | out the differences between the two cases, tion to extreme cases, or by assuming that and the decision in the Millard Case is rested public officers wat grossly and arbitrarily solely upon the rule of stare decisis. This is violate their duties. If every law were de- also further strengthened by the special conclared unconstitutional which by the applica- curring opinion of Justice Angellotti in the tion of such tests could be shown capable of latter case. These cases are easily distinworking injustice, we would have very few guishable from the case at bar. Subdivision law's left. Rode v. Siebe, 119 Cal. 520, 51 15 of section 4231 does not in express words Pac. 869, 39 L. R. A. 312.

classify the townships of Los Angeles county. The greater stress, however, is laid upon It fixes a uniform rule of compensation by the objection that there is not a due appor fees for all the justices of the peace in the tionment of duties and compensation between county, with a limitation of $1,500 per anthe justices outside of Los Angeles city and num in criminal cases, and, by a proviso, esthose inside. The path of judicial interpre- tablishes salaries for the four justices of the tation through the field of county and peace provided for one of the classes of towntownship legislation discloses many byways.ships created by the general law. Section Conflicting views are not wanting in the 4014, Pol. Code. Both the other classes various declarations of the law on the sub created by section 4014 receive the fees alject by the courts. But we are not called lowed by law, with the same limitations in upon to distinguish these cases, nor to at criminal cases. The Legislature in its distempt to reconcile them in reaching a con cretion has fixed a different mode of comclusion on this point. The two cases relied pensation in the two classes created by the upon by respondent to sustain his position legislation for the purpose of fixing compenthat the law is unconstitutional (Tucker v. sation, and there is nothing before this court Barnum, 144 Cal. 266, 77 Pac. 919, and Mil from which it can ascertain whether the lard v. Kern County, 147 Cal. 682, 82 Pac. compensation of one class will be less or more 329) hold that a classification of townships than the other. by population for the purpose of fixing the Conceding full force and effect to all that compensation of the officers thereof, accord- | has been said since Longan v. Solano Co.. ing to the method prescribed by the Constitu 65 Cal. 122, 3 Pac. 463, in regard to compention for classifying counties, is valid and sation being fixed in proportion to duties, proper. In Tulare County v. May, 118 Cal. rather than according to population, the same 308, 50 Pac. 427, it is held that different rules of interpretation of statutes are apmethods of fixing compensation of county plicable. The mode and measure of comofficers may be provided in different counties. pensation of public officers are both pecuIn Vail v. San Diego Co., 126 Cal. 35, 58 liarly matters of legislative discretion, and Pac. 392, the same doctrine is declared and an act of the Legislature in relation thereto rule applied where a county officer in one ought to be clearly shown to be unconstituclass of counties was compensated by salary tional before being so declared by the courts. and the same officer in all the other classes The validity of statutes should not be deterof counties in the state received fees and a mined upon mere possible contingencies. So per diem for services rendered. This rule is long as the classification seems based upon recognized and applied to township officers conditions which suggest the propriety of the in two different classes of counties in the different adjustments made between the later case of Johnson v. Gunn, 148 Cal. 745, classes, and the adjustments proceed upon in84 Pac. 665. In Tucker v. Barnum, the un trinsic differences, and are not based upon equal limitations upon the fees that might mere arbitrary distinctions, it should be upbe collected for the same services was de held. Vail v. San Diego, supra. clared to violate the rule that compensation While the population of a township may must be in proportion to duties, and also to not alone be sufficient to determine the duviolate the rule as to local and special laws ties required of an officer, density of populaaffecting the fees and salaries of officers. The tion has always been regarded as one of act before the court in Millard v. Kern Co. the prime considerations in ascertaining the was declared invalid on the authority of the amount of compensation to be paid a public

officer for discharging the duties of his office, and also in determining the system to be adopted in measuring such compensation. Salary is the method most generally adopted to compensate officers of large cities, and fees those of smaller cities and towns and nonurban communities. The adjustment between the classes in the act under consideration appears to proceed not only upon intrinsic differences existing between the townships of the respective classes, but is based upon well-recognized distinctions, which go directly to the duties required of such officers, and to the methods of compensation ordinarily and generally used. To sustain respondent's position here would be to hold any act unconstitutional which provided fees as the measure of compensation in one class of townships and salaries in another. We tind no authority to sustain such a position.

We are of the opinion that the Legislature did not violate its legislative discretion in enacting the portion of subdivision 15 of section 1231 of the Political Code, as amend. ed in 1907, which fixes the salary of the justices of the peace of Los Angeles township at $3,000 per annum for the personal discharge of their official duties. In arriving at this conclusion, however, we have not considered those provisions relating to salaries of clerks, office rent, supplies, etc., as affecting the compensation of the justices of the peace. These are matters which naturally suggest questions which have not been presented on this application. For instance, the question of whether or not it is competent to create special township officers for one class of townships in one county (that is, clerk of the justice's court), under a classification of such townships by population for the purpose of fixing compensation. Neither have we considered the proviso as to rent, furniture, supplies, etc., because we deem it unnecessary to the decision of the question raised on this application. The Legislature has made express provision for a salary of $3,000 for the justices of the peace in Los Angeles township, and petitioner is entitled to receive the salary of $250 per month as demanded.

The writ of mandate of this court is directed to issue commanding respondent to draw his warrant upon the county treasurer of Los Angeles county for the amount as prayed for

information charging that defendant unlawfully made an assault on, etc., a female under the age of 16 years, etc., with the intent to ravish, etc., was sufficient.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Rape, 88 37-41.) 2. SAJE-SUFFICIENCY OF EVIDEXCE.

In a prosecution for assault with intent to commit rape, evidence examined, and held sufficient to support a conviction.

[Ed. Yote.-For cases in point, see Cent. Dig. vol. 42, Rape, $$ 78–82.] 3. SAME-QUESTIONS FOR JURY.

In a prosecution for assault with intent to commit rape, the intention with which defendant made the assault was a question for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42, Rape, $ 87.] 4. CRIMINAL LAW-APPEAL-OBJECTIONS NOT RAISED BELOW.

Where no objection is made to testimony given without the witness being sworn, the objection cannot be made for the first time on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, 88 2610, 2613.] 5. SAME APPEAL – REVIEW-DISCRETION OF TRIAL COURT-WITNESSES—COMPETENCY.

The question as to the competency of a witness of tender years is one peculiarly within the discretion of the trial court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 3062.) 6. SANE-TRIAL-MISCONDUCT OF JUDGE.

Where, in a prosecution for assault with intent to commit rape, the attitude of defendant's counsel disconcerted prosecutrix, a timid child, the court properly adınonished counsel to keep without the railing where prosecutrix was being examined as a witness; it not appearing that counsel could not hear the answers of the witness.

[Ed. Note-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1522.]

Appeal from Superior Court, City and County of San Francisco; William P. Lawlor, Judge.

William H. Collins was convicted of assault with intent to commit rape, and appeals. Affirmed.

H. A. Krouse, for appellant. U. S. Webb, Atty. Gen., for the People.

We concur: ALLEX, P. J.; SHAW, J.

COOPER, P. J. The information charges the defendant with assault with intent to commit rape; the charging part being as follows: "Said William H. Collins unlawfully, violently and feloniously did make an assault upon one Katie Simonetti, a female under the age of sixteen years, to wit, of the age of six years, who was not then or there the wife of said William H. Collins, with the intent then and there feloniously and by force and violence to carnally know and ravish the said Katie Simonetti and accomplish with her an act of sexual intercourse against her will, without her consent and by force, contrary to the form,"

Defendant's counsel insists that the information is not sufficient because it does not allege that the assault was an attempt to commit a violent injury upon the person of the child so as to show an assault, as de

(5 Cal. App. 651)

PEOPLE V. COLLINS. (Cr. 88.) (Court of Appeal, First District, California.

June 1, 1907.) 1. RAPE-ASSAULT WITIL INTENT TO COMMIT

RAPE-INDICTMENT AND INFORMATION-SUFFICIENCY.

Under Pen. Code, $ 220, providing that every person who assaults another with intent to commit rape, etc., is punishable, etc., an

fined in section 240 of the Penal Code. two little girls up in his room at the time There was no demurrer to the information, alleged, and attemptel to explain it by say. and the point is for the first time raised in ing that he took them up to see his own this court. However, we are of the opinion little girl; but, as his own wife and little that the information is sufficient. It sub girl, were not there at the time, the explanastantially follows the language of the stat tion may very well have been such as not ute, which is: "Every person who assaults

to be believed by the jury. Defendant fur. another with intent to commit rape," etc. ther testified as to leaving his room on the l'en. Code, 220. It states the acts con erening of the Sth a little before 9 o'clock. stituting the offense in ordinary and concise and that he went with a Mr. Kaiser to Fifth language and in such manner as to enable

and Townsend streets, and stayed there una person of common understanding to know

til half-past twelve that night, and that at what is intended. In such case the informa

2 o'clock a. m. he went with Kaiser to fourth tion is sutiicient. The word “assault" ils

and Bluxome streets. lle does not appear used in the statute implies force by the as

to have gone to his room any more that sailant, and resistence by the one assaulted.

night. It has always been held in this state that,

It is argued that, as the child had not where a crime like this is charged to have

been torn or penetrated, defendant could not been committed upon a chill under 10 years

have actually tried to have sexual interof age, there can be no consent, as the law

course with her. What his intentions were resists for ler. People v. Veruegreen, 100

was a question particularly for the jury. (al. 213, 39 Pac. 607, 16 Am. St. Rep. 231;

The jury heard the evidence, and saw the People v. Vann, 129 Cal. 119, 61 Pac. 776. It

witnesses and the defendant when he was is not necessary for rourts to draw fire

testifying in his own behalf. The facts in nalytical distinctions between an attempt

this case are very similar to the facts in to commit an offense, and an assault with in

People v. Johnson, 131 Cal. 511, 63 Pac. 812, ient to comuit such offense. People v. Lee

and that case is direct authority for the view Kong, Cal. 600, 30 Pac. 800, 17 L. R. A.

we have taken in this case. It was there 620, 29 Am. St. Rep. 163; People v. Christian,

said: “The defendant assaulted the child. 101 Cal. 171, 33 Pac. 1043.

Being under 16 years of age, she was inWe have carefully examined the evidence,

capable of consenting, and therefore the and find it sutticient to support the verdict.

assault in law was without her consent. If Without going into minute detail, there is

he had in fact had sexual intercourse with evidence ten ling to show the following facts:

her, he would have been guilty of rape. As Iefendant roomed on the third floor of a

he did not have sexual intercourse with her, lodging house at 091 Fourth street in the

but did assault her, the question as to his city of San Francisco. About 9 o'clock, or a

intent was to be determined by all the cirlittle before, in the evening, he was seen go

cumstances and by the acts of defendant. ing upstairs to his room carrying two little

The fact that defendant unbuttoned his girls in his arms, of which the child upon

trousers, that he took out his private parts, whom the assault is alleged to have been

and that he wanted to have sexual intermade was one. He remained in the room for

course with the child, were sufficient to jussome 20 minutes, and came downstairs with

tify the jury in drawing the logical rational both children in his arms. The child upon

conclusion that defendant's object was to whom the assault is alleged to have been

have sexual intercourse with the child. made went home, and immediately com

Whether he desisted because he had satisplained to her mother that the defendant hild

fied his morbid depraved passions in the hurt her, showing the mother her private manner described in the evidence, or because parts. The mother examined her person, and he was afraid of an outcry from the child, found the parts red, but did not notice any or because of his impotence, are all matters blood or bruises of any kind. The child tos of conjecture. We do not think the crime tifice that difendant got down on his knees,

charged against this defendant, and of which and took up her clothes, and put something he was convicted, is of such a nature that we in her private parts which hurt her: that he should attempt to shield him upon imaginary took down lier "panties" and took his thing reasons, or upon a theory that might possiout of his pants; that she was scared, but did bly account for his acts as being done with not cry, becluse defendant held her mouth. the intent only to gratify an unnatural desire. The police officer to whom complaint was We must suppose that his acts were done made on the same evening visited the room with the purpose and desire that would orof defendant at 9:30, and again at 12:30, hut dinarily characterize the acts of an individolid not find defendant there. On the folloir ual of the male sex when such acts were ins evening, about half past 7, he met the done with one of the female sex. That a defendant and asked him about the matter. man should entice a little girl into his room, and defendant denied that he had the two undress her, and fondle her for the purpose little girls in his room on the evening of the of gratifying an unnatural desire, and not Sth, or that he was there bin self. Defend for the purpose of having sexual intercourse, ant in bis testimony admits that he had tbe | is possible, but not at all probable. The in

tion which take up page upon page of the transcript with no apparent merit.

Many other questions are raised in the brief, but are as devoid of merit as those we have discussed.

The judgment and order are affirmed.

We concur: HALL, J.; KERRIGAN, J.

tent of a person cannot be proven by direct and positive evidence. It is a question of fact to be proven like any other fact, by acts, conduct, and circumstances."

It is contended that the record does not show that Katie Simonetti was sworn, and further that her examination showed that she was of tender age, and incapable of receiving just impressions of the facts respecting which she was examined, or of relating them truly. The minutes of the trial do not show that she was sworn, but the bill of exceptions shows that she was examined as to her competency before being sworn, and that after such examination she "was duly sworn." Counsel, in the discharge of their duty, owe it to the court not to raise and discuss a point entirely devoid of merit, especially where the record does not sustain the statement. It is an elementary principle, supposed to be understood by every member of the bar, that if no objection were made to the testimony of a witness, and tlie testimony was given without the witness being sworn, the objection could not be made for the first time in this court. Here the record does not show that the witness was not sworn, nor that any objection was made to her evidence upon this ground, and the bill of exceptions shows that she was sworn.

Equally without merit is the contention that the court erred in allowing the child to testify. She was carefully examined by the judge, and her examination shows that she was capable of receiving just impressions of the facts, and knew and understood them sufficiently to give her version of them. The question as to the competency of a witness of tender years is one peculiarly within the discretion of the trial court. People v. Wilmot, 139 Cal. 103, 72 Pac. 838; People v. Craig, 111 Cal. 460, 44 Pac. 186; People v. Bradford, 1 Cal. App. 41, 81 Pac. 712.

It is claimed that "the most glaring and prejudicial error and deprivation of the right to a fair and impartial trial" occurred when the court requested the defendant's attorney not to step within the railing where the little girl was being examined as a witness, and to take his seat. From our information as contained in the record we are of opinion that the court properly admonished counsel. The child was timid, and both the counsel for the prosecution and the judge were endeavoring to get her to narrate in her own way what occurred. Defendant's counsel had interrupted time and time again with needless objections devoid of merit. Finally, when counsel arose and walked up inside the railing and near the child, the judge informed him that he had "the right to make any objection, but your activity inside the railing disconcerts the witness." It does not appear that counsel could not hear the answers of the witness. The court seems to have been very liberal with him, as he was allowed to ask questions in cross-examina

(5 Cal. App. 659) HOLMES et al. v. SALAMANCA GOLD MIN.

& MILL. CO. et al. (Civ. 344.) (Court of Appeal, Second District, California.

June 1, 1907.) 1. MINES AND MINERALS--RECOVERY OF UN

PATENTED MINING CLAIMS-PLEADINGS-ISSUES-EVIDENCE.

Where the complaint, in an action for the possession of unpatented mining claims, alleged plaintiff's ownership. possession, and right of possession at a specified date and his ouster by defendant, defendant, under a general denial, might show that the deeds under which plaintiff claimed title were bad. 2. DEEDS – EXECUTION EVIDENCE

SUFFICIENCY.

On the issue of the execution of a deed, evidence examined, and held to warrant a finding that the possession of the deed was wrongfully obtained by the grantee without the knowledge or acquiescence of the grantor, and title did not pass. [Ed. Note.-For cases in point, see Cent. Dig.

-, vol. 16, Deeds, $ 645.] 3. CORPORATIONS DEEDS REQUISITES DELIVERY.

The board of directors of a corporation authorized the execution of a conveyance by its secretary and president. The secretary retained possession of the deed, signed by the president and himself, until after the grantee therein brought suit for the possession of the premises described therein, when the officers acknowledged the same, and it was placed on record. It did not appear that an immediate delivery was intended, or that the grantee paid anything of value for the property. Held to justify a finding that the deed was not delivered to the grantee.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, 8 1784.] 4. MINES AND MINERALS-RECOVERY OF UN

PATENTED MINING CLAIMS-PLEADINGS-ISSUES—EVIDENCE-ADMISSIBILITY.

Where, in an action for the possession of unpatented mining claims, plaintiff claimed ownership through conveyances executed by the original locator, and defendant pleaded the gen. eral denial, evidence of a forfeiture of the rights of the original locator or his successors, under Rev. St. U. S. $ 2324 [U. S. Comp. St. 1901, p. 1427], because of the nonperformance of the annual assessment work and of defendant's entry on the premises and his relocation of the same, was admissible.

Appeal from Superior Court, San Diego County ; N. H. Conklin, Judge.

Action by W. H. Holmes and others against the Salamanca Gold Mining & Milling Company and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Powers & Holland, for appellants. Collier & Smith, Works, Lee & Works, Lawler, Allen & Van Dyke, and C. F. Smith, for respondents,

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