in the following: State v. Gilbert (Or.) decided May 14, 1883 (unreported); People v. Corbett, 28 Cal. 328; Hopt v. People of Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262; Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097. The rule that it cannot be held that a defendant was legally convicted, and thus be deprived of his liberty, by a mere inference from the record, and that every step essential to a trial according to law must affirmatively and clearly appear, is fully recognized and included in the doctrine announced in State v. Walton, supra; and as to whether defendant, by asking for a continuance and thereafter by submitting to trial without protest, waived the right to be called upon to plead to the facts charged against him, we think the same rule should apply as there announced. As stated in Hopt v. People of Utah, supra: "That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with or affected by the consent of the accused, much less by his mere failure when on trial and in custody to object to unauthorized methods."

Even had defendant intended to waive his rights in this respect, it must be remembered that this is a matter in which the public has an interest, and which cannot be left entirely to the wishes of the person on trial. Otherwise, a defendant might enter into a binding contract with the state through the district attorney to go to the penitentiary for a certain number of years in satisfaction of an offense. But it is too well settled to need citation of authorities that the public has such an interest in procuring a trial of the citizens of a state according to law as to preclude such proceedings. In Hill v. People, 16 Mich.

351, it was held that "it would approximate such a position to hold that he might be bound by a contract providing for a trial before a court or jury unknown to the Constitution or the laws, the result of which trial might be to place him in the same prison." In that case it was contended that the defendant by failure to challenge a juror who was not a citizen of the United States had waived his right to object to the proceedings after verdict; but it was there held that such waiver should not be recognized, and in discussing the question the Supreme Court of Michigan observe: "Let it once be settled that a defendant may thus waive this constitutional right, and no one can foresee the extent of the evils which might follow; but the whole judicial history of the past must admonish us that very serious evils should be apprehended, and that every step taken in that direction would tend to increase the danger. One act of neglect might be recog nized as a waiver in one case, and another in another, until the constitutional safeguards might be substantially frittered away. The only safe course is to meet the danger in limine, and prevent the first step in the wrong direction. It is the duty of courts to see that the constitutional rights of a defendant in a criminal case shall not be violated. however negligent he may be in raising the objection. It is in such cases emphatically that consent should not be allowed to give jurisdiction." The same reasoning there adopted is applicable to the points involved here.

For the reasons given in State v. Walton, supra, as well as those here added, the judgment of the court below should be reversed, and a new trial ordered.

(151 Cal. 675)

PEOPLE v. BRADBURY. (Cr. 1,377.) (Supreme Court of California. Aug. 14, 1907.) 1. INDICTMENT AND INFORMATION - CONVICTION OF LESSER OFFENSE-RAPE ASSAUlt.

Pen. Code, § 240, defines assault to be an unlawful attempt, coupled with a present ability to commit a violent injury on the person of another. Held that, where defendant, charged with assault with intent to commit rape, was shown to be sexually impotent, he might be convicted of assault on evidence that his acts were such as to create a well-founded fear on the part of prosecutrix that he intended to rape her.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 27. Indictment and Information, § 588.] 2. CRIMINAL LAW-INSTRUCTIONS-REQUESTED CHARGE.

criminal prosecution, a request to charge that, if the jury believed from the acts of witnesses for the prosecution, etc., that they, or any number of them, had pursued a common object of wrongfully prosecuting defendant for any wrongful purpose, and that such prosecution was instituted, not with the belief that the defendant was guilty of any crime, but in order that they might profit from making such charge, the jury should find defendant not guilty, was properly refused, as authorizing an acquittal if the jury believed that "some" of the witnesses were actuated by improper motives, though sufficient evidence was given by other witnesses to sustain a conviction.

3. SAME-MISCONDUCT OF ATTORNEY.

Where, after the district attorney had asked an improper question, by which he sought to get certain inadmissible facts before the jury, the court, on defendant's objection, severely reprimanded him and instructed the jury not to consider such matter, and the district attorney submitted to the court's ruling and refrained from pursuing the subject, there was no reversible error.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1693.]

In Bank. Appeal from Superior Court, Marin County; Thos. J. Lennon, Judge.

William B. Bradbury was convicted of assault, and he appeals. Affirmed.

James W. Keyes, for appellant. U. S. Webb, Atty. Gen., and Thos. P. Boyd, Dist. Atty., for the People.

MCFARLAND, J. This case was in the District Court of Appeal, First District, and an opinion was there delivered. prove and adopt all of the following part of that opinion:

We ap

"The defendant is charged in the information herein with an assault with intent to commit rape. Upon the trial thereon the jury found him guilty of an assault, and he was sentenced to pay a fine of $150. From this judgment he has appealed:

"(1) That upon the charge set forth in the information a conviction of an assault could be had is not disputed. See People v. Green, 1 Cal. App. 432, 82 Pac. 544. It is urged, however, that, as the jury found the defendant was not guilty of an attempt to commit rape, he could not be convicted of an assault, unless there was evidence of some violent injury to the prosecuting witness, and that the record fails to show that such evidence was given. An assault is defined (Pen. Code, 91 P.-32

§ 240) to be 'an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another.' The 'violent injury' here mentioned is not synonymous with 'bodily harm,' but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act. The term 'violence' as used here is synonymous with 'physical force,' and in relation to assaults the two terms are used interchangeably. State v. Wells, 31 Conn. 212; State v. Daly, 16 Or. 241, 18 Pac. 357; Am. & Eng. Enc. of Law, 'Violence.' Mr. Bishop says (2 Crim. Law, §§ 32-34): "The kind of physical force is immaterial; *** it may consist in the taking of indecent liberties with a woman, or laying hold of and kissing her against her will.' There was testimony before the jury to the effect that the defendant was sexually impotent, and the court instructed them that if such was the fact he would not be guilty of the offense charged in the information; but although, in view of this fact, the jury were authorized to find that there was an absence of any ability on his part to commit rape on the prosecuting witness, they were not precluded from finding that his acts were such as to create a well-founded fear upon her part that such was his intent, and if so he was guilty of an assault. If the information had charged him with merely an assault upon her, the evidence set forth in the record would be sufficient to sustain his conviction thereon.

"(2) The court did not err in refusing to give the following instruction asked on behalf of the defendant: 'If the jury believe, from the acts of the parties appearing as witnesses for the prosecution, and from all the facts and circumstances in the case, that they, or any number of them, have pursued a common object of wrongfully prosecuting the defendant with the purpose of obtaining money from him, or for any other wrongful purpose, and that such prosecution was instituted, not with the belief that the defendant was guilty of any crime, but with the purpose of wrongfully charging him with such crime, that they might profit from making such charge, the jury should find the defendant not guilty.' A fatal objection to this instruction is that it authorizes the jury to acquit the defendant, if they believe that some of the witnesses for the prosecution were actuated by illegal motives, notwithstanding ample evidence for his conviction might have been given by other witnesses."

The only other contention made by appellant for a reversal is founded upon the alleged misconduct of the district attorney. This alleged misconduct appears in the record as follows: One Quigley had testified as a witness for the prosecution, and defendant, when presenting his evidence, had called and examined as a witness one L. B. Hills, who testified to certain statements made to him

by Quigley which the latter had denied making. Thereupon on cross-examination the following occurred: "L. B. Hills: I have known Mr. Quigley about five or six months. He told me that a hired man had knocked Mr. Bradbury down. Mr. Boyd: Did he tell you why he knocked him down? A. No, sir. Q. Did he say he knocked him down for insulting his wife? Mr. Kierulff: It seems to me that that is irrelevant, incompetent, and immaterial, and an improper statement. Mr. Boyd: I have the right to the conversation that occurred. Mr. Hosmer: He said he did not, and I submit that that is misconduct on the part of the district attorney, and we assign it misconduct. The Court: I think it is gross misconduct. Mr. Boyd: I submit to your honor's ruling. The Court: After the witness has stated that he did not give his reason for it, you have no right to ask him the question and attempt to get before the jury something in that way that you could not do directly. It becomes my duty, gentlemen, in view of the conduct of the district attorney, to admonish you that you will pay no attention to anything suggested by that question or by that answer. It is absolutely not in this case. It is beyond your province, and the question should not have been asked, and you must disregard it entirely." No further attempt was made by the district attorney to repeat the question, or to ask any other similar questions. He immediately obeyed the ruling of the court. Conceding that it was wrong for the district attorney to ask the question, there is no precedent and no warrant for reversing the judgment merely for the asking of the one improper question, under the circumstances disclosed by the record. The cases where a judgment has been reversed by this court for the improper asking of questions have been in some important respects similar in character to the case of the People v. Wells, 100 Cal. 459, 34 Pac. 1078, where the district attorney persisted in asking a number of improper questions, and, although the court sustained objections to these questions, it did not comply with appellant's request that the district attorney be instructed not to ask any more such questions. In that case the court did not hold that the asking of the first improper question would have warranted a reversal, but says that it "would not be, perhaps, of itself sufficient ground for reversing the judgment." In the case at bar only one improper question was asked. The district attorney was severely reprimanded by the court for asking it, and he made no attempt to repeat the question or to ask a similar one, and the jury were expressly instructed to pay no attention to anything suggested by the question. Under these circumstances we do not think that the question could have been seriously prejudicial to the appellant, or that it affords just ground for a reversal. It comes within the ordinary rule that the sustaining of the objection to an improper

question is a sufficient disposition of the mat ter. It is only where a district attorney shows a clear and persistent attempt to influence a jury by wrongfully producing suspicions and hurtful suggestions through improper questions that his conduct in the premises becomes such misconduct as will warrant a reversal.

The judgment and order denying appellant's motion for a new trial are affirmed.

We concur: BEATTY. J.; SLOSS, J.; LORIGAN, J.; HENSHAW, J.; ANGELLOTTI, J.

SHAW, J. (concurring). I concur in the opinion of Justice MCFARLAND. I wish to add, however, that, even in cases where a district attorney does persistently attempt to influence a jury by improper questions caleulated to produce suspicions and hurtful suggestions, it is the duty of the counsel for the defendant to make timely objection to the court, and the duty of the court thereupon to instruct the jury that such suggestions must be disregarded and that such suspicions must be rejected, and that when such instructions are given it will not be presumed that the jury were influenced by the improper conduct objected to, unless the record shows extraordinary circumstances tending to show that such influence existed notwithstanding the caution of the court. I think that the language of the opinions in some of the previous decisions of this court goes too far in support of the theory that there is some sort of a presumption that the misconduct of a district attorney will prevail with the jury and influence them in the face of the positive instructions of the court that they must not consider the suggestions thus improperly made. The presumption should always be that a jury has obeyed the instructions of the court, and, unless the contrary is shown by the record, that presumption should prevail in the appellate courts.

(151 Cal. 526)

GARVEY V. LA SHELLS et al. (Sac. 1.465.) (Supreme Court of California. July 22, 1907.) 1. VENDOR AND PURCHASER-CONTRACT-PosSESSION-RIGHTS OF PURCHASER.

An assignee of the purchaser of certain mining claims in possession under a contract of sale, obligating the vendor to give a warranty deed of the property conveying a perfect title thereto, could not retain both the land and the price until a title should be offered, on the vendor's failure and inability to convey a perfect title but was required either to pay the price according to the contract and receive such title as the vendor is able to give, or rescind the contract. restore possession, and recover the amount paid, if any, with the value of improvements after deducting rental value of the premises.

2. SAME-PURCHASE OF OUTSTANDING TITLE A contract for the sale of certain mining claims obligated the vendor to deliver a warranty deed conveying a perfect title to the entire claims. Two months prior to the date fixed

for the payrıent of the price the purchaser's assignee in possession discovered an alleged outstanding title to an interest previously owned by the vendor's co-tenant which such purchaser's assignee purchased. Held, that the purchase of such outstanding title inured to the benefit of the vendor, and such assignee was not entitled thereunder to possession as a tenant in common without paying the contract price, but was only entitled to claim reimburse ment from the vendor for the amount paid for such outstanding title, with interest.

[Ed. Note.--For cases in point. see Cent. Dig. vol. 48. Vendor and Purchaser. § 391.]

3. TRIAL-ISSUES-FAILURE TO FIND.

Where the findings are sufficient as to all material issues, a judgment will not be reversed or new trial granted for failure to make findings on certain immaterial issues.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 46. Trial § 940.]

4. SAME CROSS-COMPLAINT-WAIVER OF OBJECTIONS.

Where the issues raised on the cross-complaint and answer and by the complaint and answer were tried together by consent, one of the defendants could not object that the issues raised on the cross-complaint and answer should have been tried before the issues raised by the complaint and answer.

[Ed. Note. For cases in point. see Cent. Dig. vol. 2. Appea and Error, § 1252.]

Department 1. Appeal from Superior Court, Siskiyou County; J. S. Beard. Judge.

Action by J. J. Garvey against W. S. La Shells and others. From a judgment in favor of plaintiff, and from an order denying defendant Klamath River Gold Mining Company a new trial, it appeals. Affirmed.

W. F. Aram and Coburn & Collier (Lewis A. Heilbron, of counsel), for appellant. R. S. Taylor and James F. Lodge, for respondent.

ANGELLOTTI, J. On September 25, 1903, plaintiff and Lucien Guilbert and P. J. Garvey, claiming to own the same, were in the exclusive possession of certain mining ground known as the "Garvey Bar Placer Mining Claim," which consisted of the ground embraced in two locations, one being designated the "Garvey Boys Mine" and the other the "Last Chance." They had been in such possession for five years, mining and operating the ground. On that day they entered into a written agreement with defendant La Shells whereby they agreed to sell to him said "Garvey Bar Placer Mining Claim," with all machinery thereon, for $12,000, payable on July 12, 1904. The vendors agreed that within 10 days from September 25, 1903, they would execute "a good and sufficient deed to said property, free and clear of all incumbrances and subject only to the title of the Central Pacific Railway Company in and to such portion of said mining claim as was situated in said section fifteen, and subject only to the paramount title of the government of the United States. in and to" the remainder of said claim, and place the same in the Siskiyou County Bank at Yreka, to be by the bank delivered to the vendee on

the payment of the $12,000 to the bank for the use of the vendors, provided such payment is made at any time prior to the close of banking hours on July 12, 1904. The vendee also agreed to pay $140 interest on the purchase price on November 12, 1903, and $105 interest on January 12, 1904. It was mutually agreed that if the vendee failed to pay such interest, or failed to pay the $12,000 by July 12, 1904, "this agreement is to be void and of no effect, and the deed which the parties of the first part have agreed to deposit in the Siskiyou County Bank is to be returned to them by said bank." Immediately upon the execution of this agreement. possession of the property was delivered by the vendors to La Shells, who accepted the same under the agreement. La Shells continued in exclusive possession, mining the property until April 25, 1904, when he transferred his interest in the agreement and the property described therein to the defendant corporation. the Klamath River Gold Mining Company. Ever since such transfer such corporation has been in exclusive possession, mining, working, and operating such claim. Within the time fixed by the agreement the three vendors deposited in escrow with the Siskiyou County Bank, for delivery to La Shells upon compliance by him with the provisions of the agreement as to payment, their grant, bargain, and sale deed purporting to convey the property to him. Neither La Shells nor the corporation ever paid, or, prior to answer in this action, offered to pay, any portion of the consideration agreed to be paid, and none of the interest has been paid, and on July 13, 1904, the vendors, because of such failure to pay the $12,000 or any part thereof, withdrew the deed deposited in escrow, and demanded of La Shells and the corporation the possession of said property. This demand not having been complied with, and payment having been refused, and plaintiff having succeeded to the interest of his covendors, this action was instituted for the recovery of the possession of the property, the amended complaint showing the facts before stated, and the court, upon sufficient evidence, finding the facts to be as so stated.

Defendant corporation, by its answer, alleged that it acquired La Shells' interest under the agreement on April 25, 1904, and that it has ever since been in the exclusive possession. It further alleged that one Michael Garvey was one of the original locators of both claims and continued to own an undivided interest therein to the day of his death, August 17, 1897, and that his estate continued to own such interest until April 30, 1904, on which day said defendant purchased such undivided interest from the estate. Basing its claim on such purchase, it claims to be the owner of such undivided interest and entitled to possession of the claims. Further alleging that the vendors had falsely represented themselves to be the exclusive owners of the property, subject only to the claims of the