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statements, refrain from stating that they would prove facts which they know cannot be established by competent evidence, or by evidence which they have reason to believe to be inadmissible to establish the facts claimed to exist. Courts frequently, to protect the rights of parties, refuse to allow offers of evidence to be made in the presence of the jury which the opposing party has reason to believe is inadmissible and may prejudice his case by being stated in the presence of the jury. Cases are sometimes reversed where counsel persist in seeking to obtain advantage by offering evidence in the presence of the jury which they know is incompetent or inadmissible. For somewhat the same reason, counsel should avoid taking undue advantage, in the opening statement to the jury, by accomplishing at that stage of the case what they know they will not be allowed to accomplish when they come to offer their evidence.

3. At the conclusion of the evidence the court made an order limiting the argument to an hour and three-quarters to each side, to which defendant objected, and the objection having been overruled, the defendant excepted. In support of the motion for a new trial Mr. Berry, one of defendant's attorneys, made affidavit, which is not contradicted, that five days were consumed in the trial of the case; that the testimony and proceedings occupy 350 pages of the transcript as compiled by the reporter; that the testimony of two witnesses taken at the preliminary examination of the defendant, and the testimony of one witness taken at a former trial of said cause, consisting of 100 pages, was admitted by stipulation; "that it was utterly impossible to submit a full and fair argument of the cause to the jury in that time; that by reason of the limitation, counsel for the defendant were prevented from presenting to the jury many material points, which would have been presented, but for the order of the court limiting the time for argument, and he believed the rights of defendant were prejudiced by the said order of the court." It appeared that Mr. Ostrander closed the argument for defendant, and was given five minutes' additional time, and, not having concluded his argument, he was offered 15 minutes of the district attorney's time, which he used and closed his argument.

The principal cases in this jurisdiction where the question is discussed are People v. Keenan, 13 Cal. 581, and People v. Green, 99 Cal. 564, 34 Pac. 231. The cases where the point has arisen are quite fully shown in note to Yeldell v. State, 100 Ala. 26, 14 South. 570, 46 Am. St. Rep. 23. It was said in People v. Green, supra: "That a defendant being tried on a charge of felony has a constitutional right to be fully heard in the defense by counsel, which it is not within the discretionary power of the court to deny or abridge, is not questioned. Yet it has been found impossible to formulate any abstract rule or definition by which the extent

of this right may be ascertained in all cases. It is also well settled that the court has a discretionary power to restrain what has been termed, perhaps, not quite appropriately, an abuse of this right by which is meant very little more than that counsel may be restricted to a discussion of matters relevant to the case, and restrained from wasting the time of the court by useless repetition. But it must always be a difficult as well as a delicate matter, in a case like this, for the court to determine in advance what limitation should be imposed upon counsel against their consent (Williams v. State, 60 Ga. 369, 27 Am. Rep. 412); and, as was said in the case of People v. Keenan, 13 Cal. 581: 'If it [the court] imposes a limitation of time upon counsel against their consent, this must be done at the risk of a new trial if it be shown by uncontradicted affidavit that the prisoner was deprived by the limitation of the opporunity of a full defense; for this is his constitutional right. without which he cannot be convicted." " In People v. Green the court gave a skeleton of the testimony and the issues of fact "to test the truth of the affidavits of counsel, to the effect that the time to which they were limited was insufficient." In that case the charge was robbery and the limitation put upon counsel for defendant was one hour, and the court held it to be an abuse of discretion. It is not possible to derive much benefit from a comparison of the facts in other cases with the one in question. The length of the trial and the quantity of testimony taken are not always or necessarily determinative of the question. Nor is it a safe guide for the judge to determine the limit by the time in which he might think he could adequately present the case fully for the defendant. The character of the testimony and the issues raised by it; its conflicting nature as well as the nature of the charge itself must be considered; as was said in People v. Keenan, supra: "It is difficult for a judge to determine what effect a given line of argument may have upon a jury, or some one of them, or what period may be necessary to enable counsel to present, in the aspect deemed by them important, the case of their client. The minds of men are so differently constituted that one advocate may require much more for the statement and elaboration of his views than another."

Where counsel are limited to a stated time deemed by them too short, they may find it necessary to omit points of importance in order to give more attention to others deemed of greater importance. of greater importance. Or the elaboration of essential points deemed important may be prevented in order to make all the points desired. Then, too, counsel, speaking under limitations of time which they feel to be wholly inadequate, are under constraints not conducive to their best efforts, and to the full protection of defendant's rights. The uncontradicted affidavit of counsel is that

within the time limited it was "utterly impossible to present a full and fair argument of the cause to the jury" and that counsel were thereby "prevented from presenting to the jury many material points which would have been presented but for the order of the court limiting the time for argument." We cannot very well skeletonize the testimony in support of counsel's affidavit without to some extent indicating our impression of the sufficiency or insufficiency of the evidence to justify the verdict, and this we must avoid, as the case must go back for a new trial. Suffice it to say that the peculiar circumstances surrounding the case, as well as the nature of the charge; the many contradictory statements of material facts by witnesses for the prosecution; the tender age of the child, and the importance of her testimony given under conditions justly raising the question for the jury whether it could safely be considered by them in certain material respects; the conflict in the testimony of witnesses at the preliminary examination, and at the first trial, and at the last or present trial, and the alleged self-impeachment of important witnesses for the prosecution; the testimony as to the alibi claimed by defendant; the conflict in the testimony as to whether Enriquez truthfully repeated what witness Pete Rodiquez said to him about compromising the case which went into evidence to show bias of the witness; that the medical experts did not agree as to the results of a miscroscopical examination to discover spermatozoa on the child's clothing; the fact that much of the testimony was given by witnesses who could not speak or understand the English language, and testified by an interpreter; these and other considerations which might be suggested lead us to the belief that counsel's affidavit is true, and being uncontradicted by the district attorney, or by the condition in which we find the record, we must conclude, under the authorities cited, that there was prejudicial error in making the order complained of.

4. It seems to us that in view of the theory of the prosecution and of certain facts attending the alleged assault, for example, that previously thereto her assailant gave the child freely of wine to drink, instruction numbered 19 given for the people, to which objection is taken, should be more specific. It was as follows: "In a charge of assault to rape a female under the age of consent, it is not necessary to show that the defendant intended to gratify his passion, at all events, or to use force, but it is enough that he intended to have intercourse, and took steps to that end. The uncorroborated testimony of the female upon whom the assault is made, if you believe her testimony to be true. is sufficient to establish the charge." The objection of defendant is directed to the italicized portions of the instruction. The first point made is that the intention alone is not sufficient; that there

must be in this, as in all crimes, a union of act and intent (Penal Code, § 20); and that there were in this case, as claimed by the people, several steps taken to the end sought which would not constitute an assault, or attempt to commit the crime, and yet the instruction might lead the jury to so consider them as justifying conviction. Attention is called to People v. Johnson, 131 Cal., at page 515, 63 Pac., at page 844, where similar language is used, but after the words "and took steps looking towards such intercourse," the following appears: "And laid hands upon her for that purpose, although he did not mean to use any force to complete his intent if it caused the child pain, and desisted from his attempt as soon as it hurt, he would yet be guilty of an assault with intent to commit the crime charged in the information." As the instruction reads something in itself short of touching the child might be understood by the jury as constituting an assault with intent to commit the crime charged. Force is not an element of an assault where the female is under the age of consent, but there must be contact of some sort with the child or taking hold of her in such a manner as to indicate the intent to have carnal knowledge of her. But this intent, of course, may be judged by the facts and circumstances.

The second point of objection brings the instruction dangerously near the cases of People v. Johnson, 106 Cal. 289, 294, 39 Pac. 622, and People v. Barker, 137 Cal. 557, 70 Pac. 617, where the instruction read: "If you believe the prosecutrix it is your duty to render a verdict accordingly," and new trials were granted for the error. The principle is well settled that the defendant may be convicted upon the uncorroborated testimony of the prosecutrix, or, as in this case, upon the uncorroborated testimony of the female upon whom the assault was committed; People v. Fleming, 94 Cal. 308, 29 Pac. 647; People v. Gardner, 98 Cal. 127, 32 Pac. 880, and other cases; but the rule should be so stated that the instruction would not be obnoxious to the objection that it is a charge with respect to matters of fact. People v. Johnson, supra; People v. Barker, supra.

5. The claim is made that the court abused its discretion in allowing the child Stephini to testify, after her examination on her voir dire. It was said in People v. Craig, 111 Cal. 460, 44 Pac. 186: "The burden is upon the person who objects to the child being a witness, to show that he is incapable, and the determination of the judge upon such objection and an examination of the child, is not a matter for review, any more than his ruling upon the capacity of an adult who may be offered as a witness." In People v. Daily, 125 Cal. 104, 67 Pac. 16, the court seems to have regarded the question as one of discretion, inferentially holding that if abused, the appellate court might review it. However this may be, the case would have

to be very clear before we should disagree with the trial judge as to the mental competency of a witness. His opportunity to pass upon the matter is much better with the witness before him than ours can be by reading the cold record. Although permitted to testify, the jury would, doubtless, take into consideration the immaturity of the child's mind in passing upon the weight of its testimony. We cannot say that in this instance the court erred in permitting the child to testify.

Other questions presented may not again arise, and we will therefore not notice them. The judgment and order are reversed, and the cause remanded for a new trial.

I concur in the judgment: BUCKLES, J.

I concur, but base my concurrence wholly on People v. Keenan, and People v. Green, supra, which I deem as binding on this court: MCLAUGHLIN, J.

(7 Cal. Unrep. 311)

E. P. VANDERCOOK CO. v. WILMANS CO. (Civ. 191.)

(Court of Appeal, First District, California. Sept. 21, 1906.)

1. BROKERS - ACTION FOR COMPENSATION SUFFICIENCY OF EVIDENCE.

In an action for compensation for the sale of real estate, evidence held sufficient to sustain findings that the plaintiff procured a purchaser who was ready, able, and willing to purchase, and thereby completed its services and earned its commission.

2. SAME RIGHT TO COMMISSIONS-NECESSITY FOR ACTUAL SALE.

Under a contract whereby the owner of land gave plaintiff exclusive authority to sell it and agreed to pay a commission on any amount for which the property should be sold, the plaintiff was entitled to his commission on procuring a purchaser able, ready, and willing to purchase though the sale was not actually completed.

fendant contends that the evidence does not support the findings of the court in this regard. The findings are conclusive upon us if there is substantial evidence to support them, even though the evidence may be coflicting or may preponderate in favor of defendant.

The defendant was, at the times mentioned in the pleadings and findings, a corporation. Its capital stock was divided into 300 shares, and was, at the time the contract was made. owned and held by J. M. Wilmans, F. W. Wilmans, Lillian W. Wilmans, Clara E. Wilmans, and Martha J. Wilmans. J. M. Wilmans was the secretary and managing agent, and owned two-thirds of the shares of the capital stock of the corporation. Its assets consisted of about 1,400 acres of land situate in Stanislaus county in this state. The managing agent of defendant, J. M. Wilmans, spoke of the defendant's property as his own land and as being mortgaged for $75,000, or, in his language: "I owed $75,000 on the whole property." There is evidence to the effect that on May 21, 1903, Merle, the agent of plaintiff, was in Stanislaus county with one Witcher, who was looking at lands with a view of purchasing, and Merle was showing Witcher different tracts of land. They saw the lands belonging to the defendant, and Witcher seemed to be pleased with them, and to desire to purchase them, or at least a part of the land owned by the defendant. Merle procured from defendant, through J. M. Wilmans, its agent, with admitted power to act, a contract in writing, authorizing the plaintiff, exclusively, to sell a tract of land described therein, containing 310 acres, at $100 per acre, and another lot containing 24 acres at $300 per

The contract contained the clause: "If said property is sold, or a purchaser is found by E. P. Vandercook Co., or through their agency, we agree to pay the said E. P. Vandercook Co. 22 per cent. commission

[Ed. Note.-For cases in point, see Cent. Dig. on any amount for which said property shall vol. 8, Brokers, $$ 75-81, 91-96.]

Appeal from Superior Court, Alameda County; Henry A. Melvin, Judge.

Action by the E. P. Vandercook Company against the Wilmans Company. From an order denying defendant's motion for a new trial, he appeals. Affirmed.

John S. Partridge, for appellant. Snook & Church, for respondent.

COOPER, J. This action was brought to recover $791.87 as commissions for the sale of real estate under a written contract. The case was tried before the court, findings filed, and judgment ordered and entered for plaintiff. Defendant has appealed from the order denying its motion for a new trial. The court found that, pursuant to the authorization contained in the contract, the plaintiff procured a purchaser for the lands therein described who was ready, able, and willing to purchase, and thereby completed its services and earned its commissions. The de

be sold." The contract was to continue for one month from date, May 21, 1903, and was continued by written extensions to July 20, 1903. It contained a clause that it should be irrevocable until withdrawn by written notice.

Merle testified that he showed the property to Witcher and "Witcher said he would take that particular piece of property described in the contract. He was to take 310 acres for $100 an acre and 24 acres at $300 an acre. *** Mr. Witcher said if everything was all right the abstract of title was correct, he would take that amount of land. He made no other objection than that the abstract of title should be correct. We had been at the ranch a couple of hours driving around the premises. This particular 300 acres was pointed out by Mr. Wilmans on the map and we drove down and saw the land. Mr. Witcher did not tell Mr. Wilmans at the ranch that he would take the land; he told him so at the hotel." Witcher testified that he was

ready at the time the contract was made; that the purchase looked all right to him.

Now, after the plaintiff had procured for the defendant a purchaser for the land described in the contract who was able, ready, and willing to take the land, there arose some question in the mind of Witcher as to whether or not the amount of land described in the contract would be sufficient for his purposes. Wilmans suggested that he would sell Witcher a half interest in the whole ranch. Merle testified that, while this proposition was pending, he went to Wilmans and asked him as to the plaintiff's commissions in case Witcher purchased half the ranch instead of that described in the contract, and that Wilmans replied: "I will stand by my agreement; will pay you your commission as I agreed on the purchase price, which was $31,000." Witcher testified that he heard this conversation, and that Wilmans said: "We will pay the commissions on the sum of $37,675 at the rate of 2% per cent., but that was in reference to the 312% acres in reference to the first deal." Wilmans testified in regard to this conversation with Merle: "Then he asked about the commission; I told him that if the trade went through, if he made any trade, that I would see that he got his commission of 2 per cent."

It therefore appears clear that the minds of the seller and purchaser were first brought together by the plaintiff on the sale of the lands described in the contract. It is admitted that Witcher was able to purchase. It is a significant fact that he gave Wilmans $2,400 while the contemplated sale under the contract was in progress. It is now claimed both by Wilmans and Witcher that this $2,400 was a loan and had nothing to do with the contract, but the claim that it was a loan seems to have been an afterthought. Witcher testified as to this payment: "This thing had been dragging along from May 23d to June 24th. Mr. Wilmans stated to me that he was in need of $2,400 to pay some money due in San Francisco. * * * I said to Mr. Wilmans, 'I have some idle money, I will lend you that $2.400: if I ever buy anything from you it can be applied to the price. If I don't, it is an ordinary loan to be returned to me when the note becomes due.'" The witness could not remember the length of time of the note, nor whether it was given by the corporation or Wilmans. Wilmans testified that he "owed some money in the bank, and I was anxious to pay it. I asked him if he would advance it and take may note for it, and if there was nothing went of this I had to pay him back." Wilmans did not remember whether he gave his personal note or the note of the corporation. No security was asked or given. The note was not produced in evidence. Before the sale of the lands described in the contract was completed the arrangement was changed at the suggestion of Wilmans, and Witcher agreed to buy the shares of capital stock of defendant corporation belonging to

the Wilmans. He took an option on them in August, 1903, bought half of them in September and the balance in October of the same year. Witcher testified: "I think the suggestion that I should buy the stock of the corporation came from Mr. Wilmans." Witcher was asked: "Q. Mr. Witcher, if you had not bought the stock of the corporation, would you have purchased any part of the ranch? A. Well, I probably would have in time, though I never did get around far enough to close up the deal." Wilmans testified on the same point: "I suggested that he take the 500 acres, and he said he would entertain it about the 1st day of August. I suggested to him along about the 1st of August that he take stock in the company." It is a significant fact that, although the parties had been brought together by the plaintiff, and Witcher had given the defendant $2,400, after the suggestion of the sale of the stock to the contemplated purchaser, the sale of the stock was not made until the contract with the plaintiff had expired. The sale of the stock of the corporation to Witcher was, as to the owners of the stock, the equivalent of the sale of the ranch. The sale is spoken of by Wilmans as a sale of the land. He testified: "Some of that land is not worth any $100 an acre. while there is a portion of the property would be worth $110, and some down at $80. So in fixing it all up, in adjusting the value. I put it on that basis, $91.50 for the 1.400 acres."

At the time the plaintiff was employed the Wilmans were the owners of all the stock of defendant and thus owned all that defendant owned. Defendant owned the ranch of 1,400 acres and nothing else. The Wilmans were, for the purposes of this case, the corporation, and they desired to sell the lands described in the contract and pay their debts. They did, in effect, sell the lands described in the contract, together with all the lands owned by the corporation. They sold to the purchaser found by plaintiff. The defendant promised to pay plaintiff the commissions when it made the contract, and it again promised when the contract was changed so as to include other lands. It has not paid the commission, and it is no defense that the sale was made by a different mode from that contemplated in the contract. The purchaser produced by plaintiff has, in fact. become the owner of the lands which defendant desired to sell. It is true that Witcher, who purchased the land by purchasing all the shares of stock of defendant, was not a party to the contract, but he knew of it when he purchased the stock. He heard Wilmans promise to pay the commissions. He will not be allowed in this way to defeat the claim of plaintiff against defendant.

When the sale of the capital stock was completed Witcher retained $30,000 out of the amount to be paid by him "as a guaranty that the company was not further obligated

than what the books showed." The company was under the obligation to plaintiff to pay the commissions due it, whether the books showed it or not. The transaction must be stripped of all its intricacies and viewed in the light of common sense. It was, in substance, a sale of the ranch of the Wilmans to Witcher. The corporation was only the instrument by which the title was held for the owners of the capital stock, and by its duly authorized agent it agreed to pay plaintiff for its services. The services have been performed and the defendant must pay for them. If the corporation had sold the ranch to Witcher and made its deed under its corporate seal, and he had paid the money to the corporation, the title would have passed. The title is now in the corporate name of defendant, but as Witcher holds all the shares of the capital stock of defendant he holds that which is equivalent to the title. We therefore conclude that the findings are supported by the evidence.

The contention of the appellant that the commissions were to be paid only out of the purchase money when an actual sale should be made is without merit. The agreement was to pay plaintiff "22 per cent. commission on any amount for which said property shall be sold." This does not make the commissions payable only out of a particular fund. When plaintiff procured a purchaser, able, ready, and willing to purchase, defendant could not by its own act, in suggesting and carrying through a different scheme, take the benefit of the plaintiff's services without compensation. Courts will not readily lend their assistance to aid parties in escaping their just liabilities through technicalities. The order is affirmed.

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A statement of facts in a criminal case filed and served after the expiration of 30 days after the rendition of the judgment and accrual of the right of appeal, will be stricken because not filed and served within the time limited by the statute, where the record fails to show that the time for filing was extended, or that any application was made therefor.

Appeal from Superior Court, Whitman County; S. J. Chadwick, Judge.

George H. Aschenbrenner was convicted of crime, and he appeals. Affirmed.

M. O. Reed and J. Hugh Sherfey, for appellant. R. H. Kipp, for the State.

PER CURIAM. The appellant was convicted of rape on the person of a female child under the age of consent, and appeals from the judgment pronounced upon him. The respondent moves to strike the state

ment of facts, because not filed and served within the time limited by statute. The record discloses that the statement was filed and served some 37 days after the judgment was pronounced, and the right of appeal accrued, and the record fails to show that the time for filing the statement was extended, or that any application to extend the time was made. In State v. Seaton, 26 Wash. 305, 66 Pac. 397, this court held that the provision of the statute fixing the time in which a notice of appeal must be given, and the time within which the statement of facts must be filed after taking an appeal, were mandatory provisions over which the appellate court had no control, and unless the record on appeal showed a compliance with them the court could not, without a usurpation of power, entertain the appeal. The principle announced applies to the case before us, and we are constrained to hold that the statement must be stricken. See, also, State v. Landes, 26 Wash. 326, 67 Pac. 72; Crowley v. McDonough, 30 Wash. 57, 70 Pac. 261; Humes v. Hillman, 39 Wash. 107, 80 Pac. 1104. The conclusion we have reached concerning the statement of facts requires an affirmance of the judgment, as none of the questions suggested in the assignment of errors can be reviewed without its aid. The judgment must be affirmed, and it is so ordered.

(45 Wash. 119)

MERTZ v. CONRAD. (Supreme Court of Washington. Dec. 20, 1906.) HUSBAND AND WIFE-COMMUNITY PROPERTY— COMMUNITY AND SEPARATE DEBTS.

Where, in an action against a husband and wife for goods sold, it appeared that at the request of the husband the goods were shipped in the wife's name, and bills rendered in her name to which she made no objection, and the testimony of plaintiff to the effect that he sold and delivered the property to both the husband and wife was not disputed, a judgment against the wife's separate estate as well as against the community was not erroneous, though the goods were purchased and used in a business conducted by the community.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 953-967.]

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by W. S. Conrad against Carrie M. Mertz and another. From a judgment in favor of plaintiff, defendant, Carrie M. Mertz, appeals. Affirmed.

Del Cary Smith, L. J. Birdseye, and George M. Ferris, for appellant. R. J. Danson, for respondent.

ROOT, J. Respondent brought this action against appellant and her husband for goods, wares, and merchandise alleged to have been sold and delivered to them both, and obtained judgment against each and the community which they constituted. From this judgment the wife appeals.

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