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to all the waters of the creek, and had not di court found that defendant had so divertperter or acquired any right to such waters oth

ed one miners' inch of said water through er than to a quantity sufficient to supply the pipe.

an iron pipe, and had acquired a right by prc2. SAME-DIVISION OF WATER.

scription to said one inch of water, and · Plaintiffs and defendant owned adjoining also found that defendant had not diverted land. A creek rose from a spring on defend

or acquired any right to the waters of said ant's land and flowed through the same and through about three-fourths of the length of

(reek other than the said one inch. Defenilplaintilis' land, when it was absorbed. Defend

ant contends that this finding, except as to ant had never diverted rore than one miners' said one inch, is unsupported by the evidence, inch of the water, and his land containel only and that the evidence shows that he had three acres and a fraction that was irrigable and adapted to cultivation by means of such wa

adversely diverted all of the water of said ter, while plaintiffs' land contained about 2.000 creek as claimed by him. This contention acres, 50 of which was adapted to cultivation of defendant as to the finding of his claiin and susceptible of irrigation from the creek.

to all the water by prescription substantially Held, that a decree vesting in defendant sufficient water to supply his pipe and dividing the

includes all of his case on appeal; for it balance of the flow so that defendant should will be found on examination that his other have the entire flow for one day out of every 21 points as to findings not being sustained by days, and that plaintiffs should have the bal

the evidence all point to and are based on ance, was a proper division.

the contention that the finding as to pre In Bank. Appeal from Superior Court,

scription is unwarranted. But, in our opinVentura County ; J. W. Taggart, Juilge.

ion, there was ample evidence to support the Action by Soledad Gutierrez and another,

finding that there was no adverse diversion as executors of the will of Benigno Gutierrez,

of the water of the creek other than the deceased, and another, against Ilenry Wege.

one inch divertel through the iron pipe. From a part of the judgment in favor of

There was, no doubt, some conflicting eviplaintiffs, defendant appeals. Affirmed.

dence on this point; but there was material See 79 Pac. 119.

testimony that notwithstanding the diverII. L. Poplin, for appellant. G. H. Gould sion through the pipe there was always water and W. R. Edwards, for respondents.

flowing down the stream onto plaintiffs'

land. MCFARLAND, J. This action was brought

Plaintiffs' land contains about 2,000 acres, to quiet title to the waters of a small stream and the court found that 50 acres of it was called "Casitas creek," and to have the pro adapted to cultivation and was susceptible portionate rights of the parties to said waters of irrigation from said (reek, and that only definitely deterinined. The court made find

3 acres and a fraction of defendant's land ings and rendered a judgment, and from a

was adapted to cultivation and irrigable from part of this judgment defendant appeals.

said creek; and it found that a fair proporNo errors of law are assigned, and the tionate division of the water of the creek, only grounds for a reversal are that cer

other than the said 1 inch, for irrigation, tain findings of fact are not supported by

would give to plaintiffs the entire flow of the evidence. Each of the parties is the the creek, other than the 1 inch, for 20 days owner of a tract of land riparian to said out of every 21 days; and to defendant, in creek; defendant's land lying immediately

addition to said 1 inch, the entire flow of above and adjoining the land of plaintiffs.

the creek for 1 day out of every 21 days; The creek rises in a spring on defendant's

and judgment was rendered in accordance land, and flows through his land onto the with this finding. Defendant excepts to this land of plaintiffs and runs through plain- finling as not supported by the evidence; tiff's' land about three-fourths of its length, but it is not specifically contended that this when it is all finally absorbed by the soil.

would not be a fair division, provided all the Defendant having claimed all the waters of

water other than the 1 inch is to be divided the spring and creek and threatened to di between the parties; and defendant, in arguvert the same unless plaintiffs pay him cer

ing this point, reverts to his contention that tain money, plaintiffs commenced this action

defendant is entitled to all the water by prefor an injunction against the infringement scription. We think that the evidence fairly of their riparian rights and for a decree warrants the division of the waier decreed settling the proportionate ownership of the by the judgment. The other points made by parties of the waters of the creek, and also defendant as to the title to the water of the prohibiting defendant from maintaining a

creek are covered by what has already been certain nuisance, namely, a manure pile, in

said. the creek. Defendant set up his right by pre As to the nuisance, we think that the eriscription to all the waters of the creek, dence amply warrants the findings of the claiming that for more than five years before court as to that matter and justifies the the commencement of the action he had judgment. continuously, notoriously, and adversely to The part of the judgment appealed from plaintiffs and all the world diverted all of is affirmed. the said water onto his own land and used it there, and prevented any of it from flowing We concur: SLOSS, J.; SHAW, J.; ANGEL down through the lands of plaintiffs. The

The 1 LOTTI, J.; LORIGAN, J.; HENSHAW, J.

(151 Cal. 340)

Ex parte COLLINS. (Cr. 1,374.) (Supreme Court of California. June 12, 1907.) HABEAS CORPUS-APPEAL AND ERROR-BAIL.

When, after a habeas corpus hearing, a prisoner has been remanded to the custody whence he came, there is ordinarily no proceeding to be stayed pending a review of that order, since he is not thereafter held by the order of remand, but by the warrant or other process upon which he was held when the writ of habeas corpus was issued, and the power to admit him to bail belongs exclusively to such officer, if any, as had the power to admit him to bail independent of habeas corpus proceeding, and he must make his application for bail in the usual manner as provided by law.

In Bank. Application by George D. Collins for a writ of habeas corpus. Petitioner haring been allowed a writ of error to the United States Supreme Court to review an order (90 Pac. 827) remanding him to custody, he requests that the writ operate as a supersedeas. Refused.

George D. Collins, in pro. per. Wm. Hoff Cook and Fliram T. Johnson, for respondent.

affecting the question of residence, and cannot be considered in determining the nature of the cause of action pleaded, which must be found from the complaint alone. 2. SAME__TRANSITORY ACTION.

An action to compel a depositary of stock in a mining corporation and the pleilgee to deliver the same to plaintiff was a transitory action, and not local as involving a controversy aver real property. 3. CORPORATIONS--VENUE-RIGHT TO CHANGE.

Under Const. art. 12, § 16, providing that a corporation may be sued in the county where the contract is made or to be performed, where the obligation or liability arises or breach occurs, or in the county where the principal place of business of the corporation is situated, subject to the power of the court to change the place of trial as in other cases, corporation defendants have no absolute right to a change of venue on account of residence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12. Corporations, s 1943.] 4. V'ENU'E-CHANGE-RIGIT OF DEFENDANT.

A defendant against whom no cause of action is stated is not entitled to a change of venue. 5. SAME---AFFIDAVIT OF MERITS.

An affidavit of merits in support of an application for a change of venue, alleging that the affiant had fully and fairly stated "the case," as distinguished from the "facts of the case," to his counsel, and had been advised that there was a gocd defense to the action on the merits, was sufficient.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Venue, $ 113.)

Appeal from Superior Court, Los Angeles; County, N. P. Conrey, Judge.

Action by E. C. Eddy against F. T. Houghton and others. From an order denying defendants' motion for a change of venue, they appeal. Reversed.

J. S. Larew and R. B. Stolder, for appellants. Chas. S. McKelvey, for respondent Ed. dy. Hugh T. Gordon, for respondent Tennessee-California Gold Mining Company.

BEATTY, C. J. Having allowed the prisoner a writ of error to enable him to secure a review of the record in this proceeding by the Supreme Court of the United States, and having been requested to order that the writ operate as a supersedeas, I desire to state my reason for specially limiting the operation of the order. In certain cases of recent origin in this state in which prisoners in custody under process of the superior court have been remanded after a hearing upon babeas corpus in another court, or before a different judge, upon the ground that the imprisonment was lawful, the judge making the order of remand has allowed a writ of error and ordered a supersedeas which he has construed as empowering him to admit the prisoner to bail. The order which I make in this case is not to be understood by any judge to whom an application for bail may be made as having such effect. When, after a hearing upon his petition for a writ of habeas corpus, a prisoner has been remanded to the custody from whence he came, there is ordinarily no proceeding to be stayed pending a review of that order. The prisoner is not thereafter held by virtue of the order of remand, but by virtue of the wårrant or other process upon which he was held at the time the writ of habeas corpus was issued, and the power to admit him to bail belongs exclusively to such officer, if any, as had the power to admit him to bail independent of the habeas corpus proceeding, and he must make his application for bail in the usual manner as provided by the laws of this state.

TAGGART, J. Appeal from an order denying motion for change of venue.

The action was begun in Los Angeles county and the application for change of place of trial was made by the defendants F, T. Houghton and Merced

Merced Security Savings Bank. It was based upon the grounds that the cause of action related to a controversy over real property situated in the county of Mariposa, and the real defendant and party in interest (Houghton) was a resident of Mariposa county. Two demands for a change appear in the record, one by the defendant Merced Security Savings Bank, and the other by the defendant Houghton, and the latter files an affidavit setting out that he is the only real party in interest as defendant in said action, and that all the other persons named as defendants are mere nominal parties. The defendant Tennessee-California Gold Mining Company, which joins the plaintiff in resisting the motion, files a verified answer, presenting its interest in the subject-matter of the action brought by plaintiff.

In determining the cause of action to be

!!; Cal. App. 85)

EDDY V. HOUGHTON et al. (Civ. 363.) (Court of Appeal, Second District, California.

July 8, 1907.) 1. VENUE-CHANGE-AFFIDAVITS-ANSWER.

On an application for a change of venue, the affidavit and answer are only available as

tried neither the affidavit nor the answer essential difference between these statements. can be looked to. The effect of the complaint Rathgeb v. Tiscornia, 66 Cal. 96, 4 Pac. 987. in this respect cannot be varied by either. The order appealed from is reversed. Only as affecting the question of residence will they be considered. Quint v. Dimond, We concur: ALLEN, P. J.; SIIAW, J. 135 Cal. 572, 67 Pac. 1031. The only cause of action attempted to be stated in favor

(5 Cal. App. 29) of plaintiff is one against the defendants

PEOPLE v. IIARBEN. (Cr. 44.) Jerced Security Savings Bank and Houghton, and is to compel the bank to deliver to

(Court of Appeal, Second District, California.

Feb. 18, 1907.) plaintiff certain shares of stock of the defendant corporation,

1. FALSE PRETENSES-FICTITIOUS BANK BILL Tennessee-California

-INFORMATION. Gold Mining Company, in which Houghton An information charging that defendant is interested. The relations of the parties passed a fictitious bill in writing on a bank not to the transactions involved in the action, as

in existence, with intent to cheat and defraud

the complaining witness, and alleging that dedisclosed by the complaint, are: The plain fendant had knowledge of the character of the tiff and defendant Guenther were pledgors bill and of the nonexistence of the bank named of the shares of stock-the bank the pledge

therein at the time he passed such bill, suffi

ciently charged the offense defined by Pen, Code, holder and the defendant Houghton the

§ 476, prohibiting the passage of a bank bill of pledgee. There is no real property involved à bank having no existence, with intent to de

fraud. in the said cause of action attempted to be

[Ed. Note.-For cases in point, see Cent. Dig. stated in favor of plaintiff. The extensive

vol. 23, False Pretenses, $$ 3+36.] allegations of probative facts anticipating

2. SAME-FICTITIOUS BILL-STATUTES. the bank's reason for refusing to deliver the

Defendant passed an alleged $20 bank bill stock constitute no part of the statement of to complainant in payment of room rent. The a cause of action which the court can consid

bill consisted of two bills pasted together; the

exposed sides being similar to each other. Both er on this motion.

bills were of the denomination of $20 and purNeither of the corporation defendants has ported to be issued by a New Jersey bank which an absolute right under the constitutional had had no existence since 1865. One of the

exposed faces bore the “No. 31,777" and the date provision (section 16, art. 12) to have the ac

1861. and the other showed the number blank, tion removed on account of its place of resi the date incomplete, the signature by the presidence. Trezevant v. Strong Co., 102 Cal. 19, dent, but a blank for the signature of the cash36 Pac. 395. The principal place of business

ier. Held that, though such bills were genuine

in so far as they were complete, they were nevof the Tennessee-California Gold Mining ertheless false and fictitious, within Pen. Code, $ Company is stated in the complaint to be at 476, prohibiting the passing of a fictitious bank Los Angeles, Cal., but the complaint states

bill of a bank not in existence, with intent to

cheat and defraud. no cause of action in favor of plaintiff to

[Ed. Note.-For cases in point, see Cent. Dig. which that corporation is a proper or nec vol. 23, False Pretenses, $ 4.] essary defendant. The defendant Guenther 3. CRIMINAL LAW–OTHER OFFENSES-SYSTEM. passed out of consideration by the stipula In a prosecution of defendant for passing a tion of the parties in open court. This leaves

fictitious bank bill at Long Beach on October

28, 1905, in payment for room rent, evidence was but the two moving defendants to be consid

also offered of a similar offense alleged to have ered. The bank is a resident of Merced been committed by him in San Pedro on the 3d county, but its demand for change is to Mari day of November_following. Defendant admitposa county, and may be considered as a

ted being in San Pedro on the day of the alleged

later offense, but tried to establish an alibi as consent to the granting of the motion of the

to the principal offense. Held, that evidence of defendant Houghton, whose demand on the the subsequent offense was admissible to identify ground of his place of residence is for a

defendant as the person who passed the ficti

tious bill at Long Beach, and to show that dechange to Mariposa county. The mining

fendant was operating a system of imposition company being neither a necessary nor proper and fraud. party to the determination of the cause of Ed. Note. For cases in point, see Cent. Dig. action therein stated in favor of plaintiff,

vol. 14, Criminal Law, $8 833, 834.) the defendant Houghton's motion should have

4. FALSE PRETENSES-STATUTES-AMENDMENT.

Pen. Code, $ 470, as amended by Acts 1905, been granted, if there was a sufficient show

relating to the offense of signing the name of a ing on the merits. McKenzie v. Barling, 101 fictitious person with intent to defraud, had no Cal. 459, 36 Pac. 8. We think there was.

application to section 476, prohibiting the passThe contention of respondent that the affi.

ing of a fictitious bank note of a bank not in

existence. davit of merits made by the moving party is insufficient cannot be sustained. The affi

Appeal from Superior Court, Los Angeles davit is substantially the same as the one

County; B. N. Smith, Judge. held good in McSherry v. Penn. Co., 97 Cai.

Steven Harben was convicted of passing 642, 32 Pac. 711, except that in the case

a fictitious bank bill with knowledge of its cited the affiant avers that he “las fully

character, and he appeals. Affirmed. and fairly stated the facts of the case" to E. L. Hutchinson, Henry II. Roser, and H. · his counsel, while in the case at bar the H. Appel, for appellant. I'. S. Webb, Atty. statement is that he “has fully and fairly Gen., and E. E. Selph, Deputy Atty. Gen., stated the case" to his counsel. There is no l for the People.

TAGGART, J. This is an appeal from a change the sum of $9.90 lawful money. The judgment of conviction, and from an order ruling of the trial court in admitting the denying defendant's motion for a new trial, latter bills to show guilty knowledge and inupon a charge of passing a fictitious bank tent is assigned as error. bill in violation of the provisions of section The record discloses no attack upon the in+76 of the Penal Code. The information formation, either by demurrer or motion in charges that the defendant on the 28th day arrest of judgment. The appeal presents of October, 1905, passed a certain fictitious three matters for consideration: Does the bank note of a bauk or corporation having no information state a public offense? Is the existence at the time, and charges the de evidence introduced sufficient to sustain a fendant with knowledge of the false and verdict of guilty? And did the court err in tictitious character of the bill and of the admitting in evidence the bills passed by denonexistence of the bank named in the bill fendant in San Pedro, and the testimony in at the time of the passing of the bill.

connection therewith introduced to show The note or bill is double; that is, it con that he did pass them and to show the charsists of two bills pasted together, the expos acter of the bills? ed sides being similar to each other, and the Every essential element of the offense reverse side of each bill being entirely con for which punishment is provided by seccealed from view. Both bills are of the de tion 176 of the Penal Code is set forth in nomination of $20, and purport to have been the information. It charges the defendant issued by the State Bank at New Brunswick, with passing a fictitious bill in writing state of New Jersey. One of the exposed of a bank not in existence, with the intent faces bears the "Xo. 31,777" and the late to cheat and defraud the complaining wit1861. The other shows the number blank ness, and alleges that defendant had knowl. (No. — - and the date (18 - ) incomplete. edge of the character of the bill and of the Both are signed “John B. Hin, Prest.," but nonexistence of the bank named in the bill the space preceding the word "Cash'r' is at the time he passed the latter. This is sufblank - Cash'r). The bank named in ficient. the bill closed its doors, or, as one witness Defendant contends that there is no eviputs it, "busted, about 1864 or 1863." It has dence to show that the bills are "fictitious," had no existence, either as a bank of issue but that, on the contrary, all the evidence in or otherwise, since 186.). The bills constitut this respect tends to show that they were ing the "bill" are worthless, and have had no "genuine" in so far as they were complete, value since the date last mentioned, except a and that the bank was in existence at the nominal one given them by curio dealers. time they bear date. Again, it is urged that, The absence of the name of the cashier indi the bill or bills not having been properly ex(ates that they were never regularly issued, ecuted and this appearing upon the face or and never became current bank notes, or pos faces thereof, it or they could not be the Sessed any value as such. These two bills, i means of committing ål fraud.

a Webster deso made into one, were on the 28th day of fines "fictitious"

fines "fictitious" as "feigned; imaginary; October, 1903, tendered by defendant to the not real; counterfeit; false; not genuine." complaining witness as $20 in lawful money, If it were the duty of the court to divorce in payment of the sum of $3, being in part these bills from the circumstances under payment for rent of a room in the lodging which they were passed by defendant, sepahouse kept by such witness at Long Beach. rate them from each other, and restore them She accepted the bill as such payment, and to the condition in which they probably were returned to defendant $17 in good money in when they left the bank whose name they change. Defendant immediately left, and bear, it might find them to have been gensaid witness did not see him again until 10 uine at that time; but as prepared by dedays later, when he was under arrest in San fendant, or some one else, with the evident Pedro.

purpose of concealing their real character, In addition to defendant's said conduct, and, as passed, they were "not genuine," but tending to show his knowledge of the char were "false," and instruments of fraud and acter of the bill in question, the prosecution deceit, and the jury were justified by the introduced in evidence two other bank notes evidence in so tinding. or bills, of the denomination of $10 each It is not material to the question that the (made into one in similar manner), purport bills were not complete and legally issued. ing to have been issued by the Merchants' As appears from language quoted by the Su& Planters' Bank of the State of Georgia, at preme Court with approval in People v. Savannah; also testimony to show the pass Munroe, 100 Cal. 607, 3.) Pac. 327, 24 L. R. A. ing of these bills by defendant as a $10 bank 33. 39 Ain. St. Rep. 323: "It is a matter of note, in payment for a loaf of bread worth perfect indifference whether it possesses or 10) (ents, at San Pedro, on the 3d day of No not the legal requisites of a bill of exchange, vember, 1.90.5, and that the bank named in or an order for the payment of money or the thiese bills passed out of existence about the cielivery of property. The question is whethtime of the close of the Civil War. The tes. er upon its face it will have the effect to detimony Show's that in connection with the fraud those who may act upon it as genuine latter bills defendant received in returu is į or the person in whose name it is forged. It

is not essential that the person in whose name it purports to be made should have the legal capacity to make it, nor that the person to whom it is directed should be bound to act upon it, if genuine, or have a remedy over.” The language here used was in relation to forged paper, which might injure either the person imposed upon by its passage, or the person whose name was forged. By the passing or utterance of a bank note of a nonexistent bank, no one would be injured except the person receiving it as a thing of value and 1 e to whom he might deliver it in the same manner. No question of the liability of the person whose signature is attached can arise. It becomes unimportant to know who signed it, or whether or not it was signed at all. As pasted together, the two bills were in effect a simulation of a current bank note, and intended to deceive. They accomplished this purpose with the complaining witness. Being false, fictitious, and "not genuine," the only test of whether or not the passage of this "bill” was a crime was the intent to defraud on the part of the defendant.

The practice of permitting the introduction of evidence to prove other or similar offenses to show knowledge, intent, design, or system in cases of conspiracy, counterfeiting and forgery, false pretenses or representations, receiving stolen goods, embezzlement, etc., has long been recognized by the criminal courts. Roscoe's Crim. Ev. (6th Ed.) p. 88; Wharton's Crim. Ev. (8th Ed.) 8 39 et seq.; People v. Gray, 66 Cal. 275, 5 Pac. 210, and cases cited. Some confusion exists in the cases as to the principle upon which such evidence has been admitted. A recent treatise on Evidence (Wigmore on Evidence), by a classification of the cases on the basis of the purposes which the evidence is intended to serve, has dispelled some of the fog which envelops the declarations of the courts on the subject. A distinction holding that facts admitted to show knowledge should contain an element of notice or warning, while those to establish intent need only to negative inadvertence or other innocent explanation of the act, appears at first sight purely academic; but in the consideration of apparently conflicting opinions, by ascertaining the viewpoint of the court expressing the opinion, it greatly aids in reducing the apparent inharmony among the cases.

The knowledge to be considered here is that which refers to the character of the bill charged by the information to have been fraudulently uttered. In order that the utterance of another fraudulent bill should be evidence of such knowledge on the part of the defendant, it must have been uttered prior to the time of the passing of the bill in question. The intent with which the bill was passed, as distinguished from the knowledge of the passer, however, opens a broader field. It includes the knowledge of the character of the bill and also the pur

pose with which the act was done. While the subsequent utterance could not establish notice at the prior date, it might, nevertheless, throw some light upon the intent and purpose which actuated the utterer at the time of the passing of the first bill. The same distinction may also be drawn between the facts constituting design and those establishing system. A design implies a preconceived plan or preparation, while system may be established by any facts showing a general intent coupled with similarity of method or arrangement. While a preconceived plan could not well be inferred from subsequent events, a general system might be deduced from a line of conduct preceding or following the principal event. A system being established, it would matter little whether the act complained of was the first or last individual manifestation of the general plan that could be shown. It cannot be denied that a repetition of utterances of false and fictitious notes tends to negative innocence in particular cases. Mr. Wigmore says the principle applicable to such evidence proceeds upon the doctrine of chances. As to remoteness of time of the utterances sought to be introduced and the similarity of the notes or bills uttered on the several occasions, the rulings exhibit views of all degrees of liberality and narrowness. Wigmore on Ev. § 310.

Conceding that the principle upon which this evidence is introduced is the doctrine of chances or probabilities, the number of the utterances, their remoteness in time, and the similarity of the instruments become matters affecting the weight, rather than the admissibility, of the evidence. In such cases, if the evidence has any application under the rule, whether or not it has sufficient weight to entitle it to be submitted to the jury is a question for the determination of the trial court. People v. Frank, 28 Cal. 507, 518. The sameness of the peculiar, if not unique, method of preparation of the two sets of bills, and the similarity of the manner of realizing upon them, warranted the court in permitting the jury to determine from the two transactions whether or not the defendant was operating by a system of imposition and fraud, and to draw therefrom such inference of intent and knowledge as the facts justified.

In the consideration of the case the fact that the record discloses that defendant sought to establish an alibi as to the principal offense, and to prove that he was not in Long Beach on the 28th of October, 1905, while he admitted being in San Pedro on the 3d day of November, has not been overlooked. Under such circumstances there is no doubt that the admission of the evidence as to the San Pedro transaction tended to establish the identity of the defendant as the man who passed the fictitious bill in Long Beach. Conceding, but not deciding, that it was not admissible for that purpose, it was

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