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reach said hotel and said mines of the Shasta Electric Golden Copper Company from any public road is by passing over the roadway hereinbefore described," but this is far from saying that another road to the mines and buildings cannot be constructed over said defendant's lands. Of course, it is very convenient to use a road already constructed in order to reach land along its route, but a way of necessity cannot exist unless there is "no other way." For aught that appears from this record, the defendants might easily construct a road on their own land which would enable wagons and teams to reach their hotel and mines. In the absence of evidence or findings to the contrary, the contention that appellants are entitled to use this road as a way from necessity cannot be sustained.

The order is affirmed.

We concur: CHIPMAN, P. J.; BUCKLES, J.

BULLY HILL COPPER MINING & SMELTING CO. v. BRUSON et al.

(Court of Appeal. Third District, California. July 28, 1906. Rehearing Denied by Supreme Court Sept. 26, 1906.)

Appeal from Superior Court, Shasta County; C. M. Head, Judge.

Action by Bully Hill Copper Mining & Smelting Company against W. C. Bruson and others. Judgment for plaintiff. Defendants appeal. Affirmed.

C. B. Sessions and Guy Shoup, for appellants. Reed & Dozier, for respondent.

MCLAUGHLIN, J. On the authority of Bully Hill Copper Mining & Smelting Company v. W. C. Bruson et al. (No. 276, this day decided in this court) 87 Pac. 237, the judgment is hereby affirmed.

We concur: BUCKLES, J.; CHIPMAN, J.

(4 Cal. App. 142)

PEOPLE v. CRANE. (Court of Appeal, First District, California. July 19, 1906.)

1. INFORMATION-DEMURRER.

Where, on demurrer to an information because the facts stated therein did not constitute a public offense, and because it did not state the particular circumstances of the offense, no suggestion was made that any circumstances connected with the offense other than those stated were "necessary to constitute a complete offense," as required by Pen. Code, § 952, the demurrer was properly overruled.

[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 490495.]

2. FORGERY INFORMATION-DESCRIPTION INSTRUMENTS.

Where an information for forgery of a check described it as containing the word "(Signed)" before the name of the drawer, and charged that the entire instrument so set out

was false and forged, the information should be construed as alleging that the word "(Signed)' was a portion of the original instrument, and hence the information did not show that the instrument set out therein was a mere copy, which could not have damaged the person receiving it. [Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Forgery, §§ 66-76.]

3. SAME-VARIANCE-MATERIALITY.

In a prosecution for forgery of a check, the instrument set out in the declaration contained the word "(Signed)" before the name of the drawer. The check offered in evidence was identical in form with that set out in the information, except that the word "(Signed)" was not written thereon. Held, that such word was immaterial to the instrument, and that the variance was therefore harmless.

[Ed. Note. For cases in point, see vol. 23, Cent. Dig. Forgery, § 93.]

4. SAME EVIDENCE.

In a prosecution for forgery of a check alleged to have been signed by H. as trustee of an estate, evidence as to whether H. had an account in the drawee bank during the month in which the check was drawn was admissible. 5. SAME MATERIALITY.

Evidence as to whether H., as trustee, haa drawn checks payable to defendant was immaterial.

6. CRIMINAL LAW-APPEAL-EVIDENCE-PREJUDICE.

In a prosecution for forgery of a check, evidence that the person who purported to be drawer of the forged check had at different times paid defendant his salary in checks was not prejudicial to defendant.

7. SAME-INSTRUCTIONS-DUTY OF JURY.

It was not error in a criminal case for the court to charge that the jury should accept the law as given to them by court.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1797, 1798.]

8. SAME-DEFINITION OF OFFENSE-READING

STATUTE.

In a prosecution for forgery, it was not error for the court, in instructing the jury on the law applicable to the case, to read to them Pen. Code, § 470, defining forgery.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1811, 1812.]

9. FORGERY - INSTRUCTIONS-UTTERING FORGED INSTRUMENT.

In a prosecution for forgery, an instruc tion that the uttering of a forged instrument by defendant as true and genuine with knowledge that it was a forgery and with intent to defraud would constitute forgery as fully as a forgery of the instrument itself, was proper.

[Ed. Note. For cases in point, see vol. 23, Cent. Dig. Forgery, §§ 51-53, 128.]

Appeal from Superior Court, Alameda County.

Arthur Crane was convicted of forgery, and he appeals. Affirmed.

W. Lair Hill, for appellant. U. S. Webb, Atty. Gen., for the People.

HARRISON, P. J. The information herein filed against the appellant charges him with having willfully and feloniously uttered and passed to Charles E. Noyes a certain false, forged, and counterfeit check as the true and genuine check of the purported maker thereof, knowing the same to be false, forged, and counterfeit, with the intent to defraud the said Noyes, "which said check is

in the words and figures as follows, to wit: 'Central Bank. Savings and Commercial. No. 90. Oakland, Cal.. June 3rd, 1905. Pay to Arthur Crane or bearer $18 eighteen dollars. [Signed] D. J. Hall, Trustee IIutchinson Estate,' and which was indorsed on the back thereof as follows: 'Arthur Crane.'" Upon the trial thereof the defendant was convicted of the crime of forgery, and has appealed from the judgment thereon and from an order denying a new trial.

1. The defendant demurred to the information on the ground that the facts stated therein do not constitute a public offense, and that it does not state the particular circumstances of the alleged offense charged. No suggestion is made that any circumstances connected with the offense other than those stated are "necessary to constitute a complete offense"; and, unless such is the fact, the information is not demurrable under the provisions of section 952 (2), Pen. Code.

It is urged, however, by the appellant that, as the information states that the instrument charged to have been uttered by him and passed to Noyes had the word "Signed" prefixed to the name of D. J. Hall, it appears upon its face that it was not the true and genuine check of Hall, but only a copy of the check purporting to have been made by him, and therefore that Noyes could not have been damaged or prejudiced by receiving it. It is without question a very unusual mode of drawing a check for the maker thereof to prefix his signature with the word "Signed"; but as it cannot be said that a check could not be drawn in this form, or that if so drawn such prefix would in any respect qualify the liability of the drawer, it cannot be assumed, as a matter of law, that the prefix did not purport to have been written by him before its delivery. Under the charge in the information that the entire instrument as set forth therein was false and forged, and that the defendant passed the same well knowing that it was false and forged, it must be held that the word "Signed" was included in the information as being a portion of the written instrument which the defendant is charged with having passed as the true and genuine check of Hall. The demurrer was therefore properly overruled.

2. At the trial the prosecution offered in evidence in support of the charge a check identical in form with that set forth in the information. except that the word "Signed" was not written thereon. The defendant obJected to its introduction upon the ground that it was not the same instrument which is charged in the information to have been uttered by him. The court overruled this objection, and allowed the check to be read to the jury, to which ruling the defendant excepted. There was no error in this ruling. The rule which in early days prevailed in

prosecutions for forgery, that the instrument set forth in the indictment must be an exact copy of that offered in support of the charge, has been in modern days relaxed to the extent that, unless the variance is such that the defendant may have been prejudiced in making his defense, or exposed to the danger of being again put in jeopardy for the same offense, it will be held to be immaterial. See People v. Phillips, 70 Cal. 61, 11 Pac. 493. The requirement that the instrument offered in evidence must conform to that laid in the indictment has reference to its identity and the manner in which it is described. If its identity is so apparent that a conviction or acquittal of the defendant would be a bar to any further prosecution for the same offense, the variance will be insufficient to justify its exclusion. The presence or absence of unimportant words which do not affect the sense of the instrument, or change its identity in any material respect, will not constitute a material variance.

In Wilson v. People, 5 Parker, Cr. R. (N. Y.) 178, upon a trial for the forgery of a promissory note, the note offered in evidence had upon its face the words "Countersigned and registered in the Bank Department," with the signature of the register, A. D. Ward, which were not upon the copy set forth in the indictment. The variance was held immaterial on the ground that those words formed no part of the note. In Alexander v. State, 28 Tex. App. 186, 12 S. W. 595, the instrument set forth in the indictment was as follows, viz.: "Mrs. A. C. Neal. Please send me my diploma by this young man (meaning T. S. Alexander). (Signed) W. W. Wolfe." The instrument offered in evidence did not contain the words included in the parentheses; but the court held that those words, inserted by way of inuendo, did not constitute a material variance. In Cross v. People, 47 Ill. 152, 95 Am. Dec. 474, the defendant was indicted for the forgery of a check purporting to have been made by C. II. Beckwith. The check offered in evidence was signed "C. H. Beckwith" with the word "Randolph" underneath. The variance was held to be immaterial upon the ground that the word Randolph did not explain itself, and might be a check word, or the name of the street in which Beckwith did business. In Trask v. People. 151 Ill. 523, 38 N. E. 248, the indictment for the forgery of a draft set forth a copy of the instrument purporting to have been drawn upon "C. C. Burt & Co., 115 Broadway." The instrument offered in evidence purported to have been drawn upon "C. C. Burt & Co., Broadway, New York." The court held the variance to be immaterial, upon the ground that those words were only a mere description of the drawee's residence, and not a part of the instrument. See, also, People v. Cummings, 57 Cal. 88: Paige v. People, 6 Parker, Cr. R. (N. Y.) 683; Lang

dale v. People, 100 Ill. 263'; Sutton v. Commonwealth, 97 Ky. 30S, 30 S. W. 681: Smith v. State, 29 Fla. 408. 10 South. 894. This subject was quite fully discussed in People v. Phillips, 70 Cal. 61, 11 Pac. 493, and in People v. Terrill, 132 Cal. 497, 64 Pac. 894, and many authorities are there cited in support of the proposition. In People v. Phillips, the court say: "We think the true rule is that, if the variance does not change the sense in any way, it is not material"; and again: "When in the indictment a word found in the instrument proved is omitted from the instrument as recited, or when a word is inserted in the instrument described which is not in the instrument proved, and the change in no manner or for any purpose alters the signification, the variance is unimportant." The identity of the check in question with that laid in the indictment is so apparent that the court was fully justified in receiving it in evidence. If the word "Signed" had been in fact written as a prefix to the name of Hall in the instrument which was passed by the defendant, it would not have changed the character of the instrument, or in any respect varied its legal import or the apparent obligation of the maker.

3. The several objections of the defendant to the evidence as it was offered, on the ground that the indictment stated no offense, require no further consideration. The objection to the question asked of the witness D. J. Hall, whether he had an account in the Central Bank of Oakland during the month of June, 1905, on the ground that it was "incompetent," was properly overruled. The question asked of the same witness, whether he, as trustee of the Hutchinson estate, had drawn a check payable to the defendant, was immaterial, and should have been sustained by the court; but it is very evident that the answer of the witness, that he had at different times paid him his salary in checks, could in no respect have been prejudicial to the defendant, especially in view of the testimony that the defendant, after his arrest. admitted that the check offered in evidence was forged by him.

4. It was not error to inform the jury that they were to accept the law as given to them by the court, or, in instructing them upon the law applicable to the case, to read to them the provisions of section 470, Pen. Code, defining forgery. It was proper that they should be instructed that the uttering of a forged instrument by the defendant as true and genuine, with the knowledge that it was a forgery and with the intent to defraud, would constitute the crime of forgery as fully as would a forgery itself of the instrument.

The judgment and order are affirmed.

We concur: COOPER, J.; HALL, J. 87 P.-16

(4 Cal. App. 43)

CITY OF LOS ANGELES v. GLASSELL et al. (Court of Appeal, Second District, California. June 30, 1906.)

1. MUNICIPAL CORPORATIONS ACTIONS TO RECOVER TAXES-PLEADING AND EVIDENCE. St. 1880, p. 136, c. 123, relating to actions by counties and cities for the collection of taxes, prescribing the form of complaint, etc., is constitutional, and where the complaint in an action by a city, whose charter provides that "the mode and manner of collecting such municipal taxes and enforcing such tax lien and the proceedings thereafter shall substantially be the same as the mode and manner at the time prescribed by the law for the collection of state and county taxes in said county," conforms to the requirements of such statute, it is sufficient, and under said provisions, also, the tax roll is made prima facie evidence of plaintiffs' right

to recover.

2. SAME.

In an action by a city against executors to recover taxes assessed and levied on personal property of the estate, which it is alleged defendants, as such executors, had in their possession and control in said city on the day when the same became assessable, it is not necessary to allege that the testator died in such city. 3. TAXATION - OVERVALUATION OF PROPERTY -REMEDY OF OWNER.

The remedy for an overvaluation of property in assessment is by appeal to the board of equalization, failing in which the owner is concluded, and cannot set up such overvaluation as a defense pro tanto to an action to recover the taxes.

[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1199.]

Appeal from Superior Court, Los Angeles County: D. K. Trask, Judge.

Action by the city of Los Angeles against Hugh Glassell and Andrew Glassell, executors. Judgment for plaintiff, and defendants appeal. Affirmed.

McNutt & Hannon, for appellants. W. B. Mathews and Hartley Shaw, for respondent.

WILBUR. Special Judge. This is an action brought by the city of Los Angeles, a municipal corporation, for the recovery of $1,335.18. taxes, with penalties, levied by said municipality upon the property of Andrew Glassell, deceased. The superior court gave judgment for the full amount claimed. and the defendants appeal from the judgment and from an order denying a motion for a new trial.

The complaint is very brief. After alleging the death of Andrew Glassell on January 28, 1901, in the city of Los Angeles, the appointment, on February 19, 1901, of the defendants as executors of his last will, and their qualification as such, it is further al leged: "That said Hugh Glassell and Andrew Glassell, as executors of the last will and testament of said Andrew Glassell, deceased, are indebted to the plaintiff in the sum of $1,335.18. with 10 per cent. penalty added thereto for nonpayment thereof, and interest thereon at the rate of 2 per cent. per month from December 1, 1901, which

said taxes were duly assessed and levied by said city of Los Angeles for the fiscal year 1901-02, upon personal property which then and there belonged to and was part of the estate of said Andrew Glassell, deceased, and which said defendants, as such executors, had in their possession and control in said city of Los Angeles at 12 o'clock, noon, on the first Monday in March, 1901. That said personal property so assessed consisted of solvent credits in the amount of $101,605, bonds in the amount of $5,000, and money in the amount of $210." The defendants deny the allegations of the complaint, and allege that they were nonresidents of the city of Los Angeles on the first Monday in March, 1901, admit the ownership of the bonds and money described in the complaint, but deny the ownership of the solvent credits. The finding of the court in regard to solvent credits was that the defendants as executors had in their possession and control in the city of Los Angeles, solvent credits amounting to the sum of $71,756, and no more, at 12 o'clock m., on the first Monday in March, 1901.

Three questions are raised upon the appeal: First, whether the complaint states a cause of action; second, whether the production of the assessment book in evidence was sufficient prima facie proof of all facts essential to recovery; and, third, whether or not a recovery should be had for the full amount of taxes when the solvent credits actually owned were of less value than the amount assessed.

First. It is contended by the appellants that the complaint fails to state a cause of action for the reason that all of the proceedings leading up to the levy of the tax are not alleged in detail, that it is not alleged in the complaint that the property taxed was within the city of Los Angeles, and that no authority is alleged on the part of the city council for the bringing of this action, as is required by the provisions of section 64 of the ordinance of the city regulating the levy and collection of taxes. The respondent claims, that the complaint is in the form prescribed by statute as the form of complaint in actions for the recovery of taxes. St. 1880, p. 136, c. 123. The constitutionality of this statute, however, is attacked by appellants upon the authority of People v. Central Pacific R. R. Co.. 83 Cal. 393. 23 Pac. 303, in which a similar statute was held unconstitutional. This case was overruled and discredited to such an extent by the Supreme Court in the later case of People v. Central Pacific R. R. Co., 105 Cal. 576, 38 Pac. 905, that it can hardly be considered as an authority upon the question involved in this case, particularly as the earlier decision was brought about in part by an effort to harmonize conflicting provisions in the Code of Civil Procedure and the Political Code, while the construction of the statute in

question, enacted subsequent to the Codes, and in form an independent statute, is not embarrassed by that consideration. The complaint at bar, however, in addition to the allegations required by the statutory form of complaint, contains a description of the property assessed, and an allegation that said taxes were "duly assessed and levied * * upon personal property which then and there belonged to and was part of the estate of Andrew Glassell, *** which said defendants, as such executors, had in their possession and control in said city of Los Angeles at 12 o'clock, noon, on the first Monday in March, 1901." In San Francisco v. Pennie, 93 Cal. 465, 29 Pac. 66, a similar complaint was held sufficient as against a general demurrer. On the authority of that case, it must be held that the complaint at bar sufficiently states a cause of action. It is claimed that, as the complaint fails to state that Andrew Glassell, deceased, died in the city of Los Angeles, it fails to show that the property was within the jurisdiction of the said city, as the personal property of a decedent is taxable at his place of death. But the complaint does show that the defendant's had the property taxed in their possession and control in the city of Los Angeles at 12 o'clock, noon, on the first Monday in March. This is the ultimate fact to prove which it may have been necessary to show in evidence that the said decedent died in said city.

The ordinance of the city of Los Angeles with reference to the levy and collection of taxes was introduced in evidence in the court below. Section 64 thereof provides for the collection by suit of taxes amounting to $300 or more. This section corresponds in its language to section 3899 of the Political Code, and was evidently intended as an adaptation of that section to the proper city officials. It has been held that the remedy given by the statute of 1880, above mentioned, is independent and distinct from the remedy provided by section 3899 of the Political Code. Los Angeles v. Ballerino, 99 Cal. 593, 32 Pac. 581, 34 Pac. 329. If, therefore, the above-mentioned statute of 1880 applies to actions brought by the city of Los Angeles, a similar determination must be reached. This statute by its terms applies only to counties and cities and counties. The charter of the city of Los Angeles, however, contains the following provision: "The mode and manner of collecting such municipal taxes and enforcing such tax lien, and the proceedings thereafter, shall substantially be the same as the mode and manner at the time prescribed by the law for the collection of state and county taxes in said county." This provision is sufficient to authorize the bringing of the suit in question in the same manner as such suit might be maintained by a county.

Second. The sufficiency of the proof in this

case is questioned in many particulars, but the respondent relies upon the assessment roll introduced in evidence as sufficient prima facie proof of its right to recover. It is provided in the statute of 1880 (page 136, c. 123), above referred to, that the assessment roll "shall be prima facie evidence of the plaintiff's right to recover." A similar provision is contained in the Political Code (section 3789). These provisions, we think, are made applicable by the provision of the charter of the city of Los Angeles above quoted to actions for the recovery of the municipal taxes.

Third. The plaintiff sued for taxes ur on $101,605, solvent credits. The court found the solvent credits subject to taxation to be $71,756, and no more. The question presented, therefore, is whether the remedy of the taxpayer is by an appeal to the board of equalization for a reduction of the amount of assessment, failing in which he is liable for the full amount, or whether he can raise this question as a defense to an action to recover the tax. The determination of the board of equalization with reference to all matters upon which they are competent as a board to pass, and within their jurisdiction as such board, is final and conclusive, and where a remedy is given by an application to this board, that is ordinarily the only remedy, and a failure to follow that remedy concludes the property holder. In People v. Dunn, 59 Cal. 340, it was held by the Supreme Court that while money could not be assessed at more than its face value, solvent credits might properly be assessed at a higher valuation than the face of the obligation. It would therefore follow that the case at har presents a case of overvaluation rather than of the assessment of nonexisting property, and that the remedy was an appeal to the board of equalization, failing in which the party cannot now complain. Columbia Savings Bank v. Los Angeles, 137 Cal. 467. 70 Pac. 308; Henne v. Los Angeles County, 129 Cal. 297, 61 Pac. 1081.

The views herein before expressed render immaterial the question as to the admissibility of the inventory, and other questions raised with reference to the introduction of evidence. They, therefore, need not be considered.

The judgment and order denying a new trial are affirmed.

We concur: GRAY, P. J.; ALLEN, J.

(4 Cal. App. 131)

CURTIN et al. v. KROHN et al. (Court of Appeal, Third District, California. July 18, 1906. Rehearing Denied by Supreme Court September 13, 1906.)

1. TRUSTS-ENFORCEMENT-REFUSAL OF TRUSTEE TO FORECLOSE TRUST DEED-ACTION.

Where the makers of a note executed an instrument, denominated a trust deed, conveying certain realty and notes secured by mort

gage to a trustee, creating a distinct and continuing obligation by the makers to reimburse the plaintiffs for all sums expended as sureties on the official bond of one of the makers, and allowing plaintiffs to pay off incumbrances and protect by suit the title to the property, and by which the trustee obligated himself, if possible, to obtain notes secured by mortgage from other sureties, which were to be heid in trust for plaintiffs, the plaintiffs, on the trustee's refusal to execute the trust, could maintain a suit in equity to have the respective rights of the parties adjusted and the property sold.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, §§ 497, 554.]

2. SAME-NATURE OF ACTION-PLEADING.

In such case the use of the formula, "barred and foreclosed of and from the equity of redemption," in the prayer of the complaint and in the judgment, does not conclusively establish the nature of the action nor impair the validity of the judgment.

Appeal from Superior Court, Madera County; W. M. Conley, Judge.

Bill by C. Curtin and others against L. W. Krohn and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Raleigh E. Rhodes, for appellants. G. J. Hely, for respondents.

MCLAUGHLIN, J. The recitals in the complaint show that on June 3, 1898, the defendants L. W., W. J., H. A., and Louisa Krohn were indebted to the plaintiffs in the sum of $7,000, and to secure the payment of the same executed their promissory note to the defendant Commercial Bank of Madera, reciting therein that said bank was a trustee, and was to pay all moneys paid on the trust note to the plaintiffs in certain designated proportions. At the same time and place the promisors executed an instrument, denominated a trust deed, conveying certain realty, and notes secured by mortgage, to the said bank under conditions, and for purposes therein specifically mentioned. In this instrument the Krohns are designated parties of the first part, the bank, party of the second part, and plaintiffs, parties of the third part. It contains a succinct history of the circumstances under which the indebtedness of the Krohns to plaintiffs accrued, specifically fixes the sums due to each of the plaintiffs, and the proportion in which payments made on the note are to be distributed to them. It distinctly provides that the parties of the first part shall be, and remain, liable to the parties of the third part until the latter are fully compensated for all money paid or advanced by them as sureties on the official bond of L. W. Krohn as tax collector of Madera county. In this connection it was agreed that the second party, if possible, would secure notes from other sureties on said bond; that the third parties would have an interest in any notes so obtained; and the collection thereof and application of payments made thereon is provided for in detail. The performance of assessment work on certain mines, and the distribution of gross profits therefrom, is also

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