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Rilovich and another. From a judgment in for the dress and hat. I requested Martin favor of plaintiff, and from an order denying Rilovich to pay it, and told him to tell me a new trial, defendants appeal. Affirmed. how much it is so I will charge it to myself."

As to the item "Sister's waist $3.00," he said: Dickerman & Torchiana and Lindsay &

“My sister went to the store, and Rilovich Netherton, for appellants. H. C. Wyckoff, for

Bros. paid for it, and told me to charge myrespondent.

self with it, and so I did.” He also said

that the item of “$16.35 sister's clothes" was HALL, J. Defendants appeal from a judg- a similar transaction. On cross-examination ment in favor of plaintiff and from an order he testified that he told them (Rilovich Bros.) denying defendants' motion for a new trial. to buy all the clothes his sister needed, and

Plaintiff sued for a balance alleged to be whenever they spent anything to tell him, owing him from defendants upon a mutual, and he would put it down and charge it to open, and current account. Defendants, his account. That at his request they paid among other matters, pleaded the bar of the $13 for a hat and dress for his sister. “The statute of limitations, and the only ques- $46.35 item was a similar transaction. tions involved in this appeal concern the * * * All the other items in the account correctness of an instruction given by the credited to me or charged against Rilovich court upon the subject of what constitutes Bros. are for cash which they paid me from a mutual, open, and current account, and the time to time on account.” Under this state sufficiency of the evidence to justify the of the evidence the court, after giving cerfinding that the account was mutual, open, tain instructions requested by defendants, and current, necessarily involved in the ver- charged the jury as follows: "But if you dict of the jury. The only testimony given believe from the evidence that there are on the trial was that of the plaintiff, from credits on the account which are not pay. which it appears that the defendants were ments to plaintiff, but are moneys advanced engaged in the business of packing and ship- | by defendants to third parties at the request ping fruit, and that he was employed by oi plaintiff, and upon which demands arose them as bookkeeper. He loaned the defend- in favor of defendants and against plaintiff, ants two sums of money ($500 and $1,000), and these moneys so advanced were credited paid for stationery supplies various sums on the account, then I charge you that the of money, and was allowed a salary of $60 account between plaintiff and defendants is a month; the whole aggregating over $3,000. a mutual, open, and current account, and Against this were various cash payments made the plaintiff's demand would not be barred to plaintiff by defendants at different periods, by the statute of limitations until two years and three items of credit relied on by re- after the time of the last item proved in spondent as making a case of mutual account, the account on either side." The jury found and which we will particularly notice further a verdict for plaintiff in the amount prayed on in this discussion. Plaintiff, as the book- for, and thus must have found that the ackeeper for defendants, kept an account with count was a mutual, open, and current achimself, in which he was credited with the count, for otherwise a large portion of the money loaned and paid out for defendants, account would have been barred. and was charged with cash paid him. Among The real question in controversy was as the items in this account charged against to whether the three items of credits above plaintiff are the three items above referred referred to constituted payments, or were to, and in the account as kept in defendants' matters of set-off or counter demands upon ledger by plaintiff they do not appear to which an action would lie against plaintiff in be anything but cash payments. Plaintiff favor of defendants. Charges upon one side also kept a private or personal account of and mere payments upon the other do not his own of his transactions with defendants make an account a mutual account. And in all respects similar to the account kept payments need not be made in money only, in defendants' books, except that the three but may be made in merchandise where by items relied on to sustain the finding of a agreement the same is taken at a fixed value mutual account are entered as follows:

as payment Mutual accounts are made up 1900. Aug. 4, $46.35 sister's clothes,

of matters of set-off where each party has a cash $5.00...

$51 355 demand or right of action against the other. Oct. 12, hat, dress made..

13 00

Norton v. Larco, 30 Cal. 127, 89 Am. Dec. Nov. 15, sister's waist..

3 00

70; Millet v. Bradbury, 109 Cal. 170, 41 Pac. In regard to the item for $13, plaintiff 865; Ross v. Ross, 6 Hun (N. Y.) 80. It is testified: “My sister came out here, and I not necessary, to support a mutual account, told Mrs. Martin Rilovich to go with my that there be items of merchandise sold to sister to the dressmaker's to fit her with a each party. In Toponce v. Corinne, etc., Co., dress. She bought her something else that 6 Utah, 439, 24 Pac. 534, there were demands day. It was the hat. The Rilovich Bros. on plaintiff's side for services rendered and paid $13 to the dressmaker and for my sis- money paid out, and on defendant's side deter's hat. They paid for the hat, and I mands for money received on sales of livecharged myself with it.

with it. Martin Rilovich stock, money loaned, paid out, and expended told me they bought $13 worth for my sister for plaintiff, and it was held a mutual ac

count, and not barred. See same case, Corinne, etc., Co. v. Toponce, 152 U. S. 405, 14 Sup. Ct. 632, 38 L. Ed. 493.

Where different conclusions may be reasonably drawn by different minds from the same evidence as to whether an account is a mutual account, the question is one for the jury. Abbott's Civil Trial Evidence, 386; Gunn v. Gunn, 74 Ga. 555, 58 Am. Rep. 447. In the case at bar it may be conceded for the purposes of this decision that the evidence would support a finding that the three items above referred to were matters of payment simply. But, on the other hand, we do not think that the evidence necessarily establishes the proposition that these three items of credit were payments simply, and not matters of set-off upon which a demand arose against plaintiff, in favor of defendants. It may be fairly urged that the evidence discloses, not three items of payment to plaintiff, but rather three items of money paid at his request for which demands at once arose in favor of defendants and against plaintiff. The word "payment" was never used by either party to the transactions. The effect of the evidence may be fairly said to be that the plaintiff authorized the purchase of goods for his sister on his account, and requested defendants to pay for the same for him. This, in connection with the testimony that the items were entered in the accounts kept by each party, would make the account a mutual account.

The difference between a payment of money by a debtor to his creditor, and the payment of money by a debtor to a third party at the request of the creditor, may be technical, but it is nevertheless substantial. While in the first case it is presumed to be a payment on the debt, in the second case it may be a payment on the debt if the parties so agree, or it may be a matter of set-off for which an action would lie. Under the evidence in this case it was for the jury to determine what was intended by the parties—. whether the moneys paid to third parties for clothing for plaintiff's sister were intended to be payments to plaintiff, or were matters of set-off to be charged to plaintiff and credited to defendants pending the final settlement of the account.

We are therefore of opinion that the court in its instructions correctly submitted the question to the jury, and that there was sufficient evidence to warrant the verdict of the jury.

The judgment and order are affirmed.

We concur: HARRISON, P. J; COOPER, J.

clerk, in reading the information, shallomit all that relates thereto. Section 1158 provides that, where defendant is found guilty, the jury must also, “unless the answer of defendant admits the charge," find whether he has been previously convicted. Section 1025, repealed by St. 1880, p. 19, c. 47, provided that, where the indictment alleged a previous conviction, defendant must be asked whether he has suffered such previous conviction. Held, that it could not be said that it was an act in excess of jurisdiction for the court, after the repeal of section 1025, to call upon defendant to plead to the charge of prior conviction contained in the indictment. 2. SAME-APPEAL--IIARMLESS ERROR.

Since defendant would in no event confess the charge of prior conviction if innocent thereof, and since by confession, if guilty, he would derive a positive advantage before the jury by removing such charge from the consideration of the jury, the action of the court in calling upon him to plead to the charge, in the absence of the jury, was at most a harmless irregularity. 3. SAME-REVIEW—CREDIBILITY OF WITNESSES.

Though the character of witnesses may not indicate much moral discrimination, yet, where the jury have accepted their testimony, it is not the province of the Supreme Court to discredit them. 4. BURGLARY - FELONIOUS ENTRY-EVIDENCE -SUFFICIENCY.

Defendant, about 2 p. m., went to a house occupied by the W. C. T. U., and having inquired for mail, though he had never before received any at such place, shortly thereafter left. A trunk which had been locked at 9 a. m. was standing in the hall. The owner of the trunk left the house about 9 p. m., and, returning about 10 p. m., missed the trunk. About 11 p m. defendant and another took the trunk to their room on another street, entering the house in haste through a narrow alley, broke it open, and appropriated the contents. Held sufficient to support a finding of felonious entry so as to justify a conviction of burglary.

[Ed. Note.-For cases in point, see vol. 8, Cent. Dig. Burglary, $ 97.] 5. CRIMINAL LAW – TRIAL – INSTRUCTIONS REPETITION.

It is not error to refuse to give an instruction as to the conviction of crime on suspicion, which is covered by instructions already given. 6. SAME-MATTERS OF FACT.

In a burglary case, an instruction that there was no evidence of any conspiracy between defendant and another would be in violation of Const. art. 6, § 19, forbidding a charge with respect to a matter of fact. 7. BURGLARY_TIIEFT BY ANOTHER-INSTRUCTIONS – SUPPORTING EVIDENCE – SUFFICIENCY.

Where, in a prosecution for burglary, there is no evidence on which to base a hypothesis that defendant may have received from another, who had stolen it, property which was proved to have been in defendant's possession a short time after the theft, an instruction is properly refused to find for defendant, unless the evidence excludes the hypothesis that he received the property after its theft by another.

Appeal from Superior Court, City and County of San Francisco; W. P. Lawlor, Juilge.

Joseph King was convicted of burglary, and appeals. Affirmed.

Joseph King, in pro. per. U. S. Webb, Atty. Gen., for the People.

(4 Cal. App. 213)

PEOPLE v. KING. (Court of Appeal, Third District, California.

Aug. 9, 1906.) 1. CRIMINAL LAW-PLEA-PRIOR CONVICTION -JURISDICTION OF COURT.

Pen. Code, $ 1093, provides that, where a defendant has confessed former conviction, the

CHIPMAN, P. J. Information for burglary alleging also two prior convictions of

as

burglary of the second degree. Defendant, ing that the defendant "must be asked" was found guilty by the jury and appeals whether he has “suffered such previous confrom the judgment of conviction and from viction." The condition of the statute on the the order denying his motion for a new trial. subject is shown in People v. McNeill, 118

The transcript contains the following en- Cal. 388, 50 Pac. 538. It was held, in People tries: “October 14th, 1902. Being called v. Wheatley, 88 Cal. 114, 26 Pac. 9.), that upon to plead, the defendant pleaded not where the defendant has been charged with guilty charged in the information, a prior conviction, and has pleaded not guilty, * * * " The cause came on for trial Oc- he may be permitted afterwards, in the distober 27, 1902, and out of the hearing of the cretion of the court, to withdraw his plea as jury panel the district attorney withdrew one to that charge and enter a plea of guilty thereof the two charges of prior conviction. The of; "the object doubtless being to keep from minutes of the court then show: “Being the jury on trial all knowledge of the prior called upon, the defendant, out of the hearing convictions, and thus secure a better chance of the jury panel, pleaded guilty to the prior for an acquittal of the main charge.” People conviction of felony, to wit, burglary of the v. King, 01 (al. 338, 30 Pac. 1028, relied on second degree.

Thereupon the de- by defendant, has since been overruled. Peofendant excepts to the order of the court re- ple v. Wheatley, supra. Section 1093, Pen. quiring the said defendant to plead as to Code, provides that, where the defendant has said prior conviction, upon the grounds al- confessed the charge of former conviction, leged in the demurrer herein." Thereafter the clerk in reading the information to the a jury was formed, and, being coinplete, jury "shall omit therefrom all that relates "the information herein was read to the jury, to such previous conviction." Section 11:58 no reference being made to the said prior of the same Code provides that, if the jury convictions contained in said information finds a verdict of guilty of the offense charged, when said information was read to the jury, the jury "must also, unless the answer of deand the plea of the defendant of not guilty : fendant admits the charge, find whether or as charged in the information was stated to not lie has suffered such previous conviction." the jury.” It is claimed by defendant that It seems to us that, even after the repeal of it was prejudicial error for the court after section 1023, it was within the power of the arraignment (Pen. Code, $ 1003) to call upon court, before the trial, to ascertain whether defendant to plead to the charge of prior the defendant adhered to his plea of not guilconviction : that the court exceeded its au- ty to the charge of prior conviction, and to thority, there being no statute authorizing give him an opportunity to "admit the the court to ask the defendant whether or charge” if willing to do so. If he "admits" not he had suffered a previous conviction ; or "confesses" the charge, the sections above that the particular offense and the previous referred to give him protection from any reconviction constituted one charge, a plea of sultant prejudice with the jury, for his adnot guilty to which puts in issue every ma- mission removes that part of the information terial allegation therein contained, and that from the knowledge of the jury. It is inthe plea of not guilty, first offered by defend- conceivable that he would confess the charge ant. was the only one admissible under sec- if innocent of it, and by confession, if guilty. tion 1017 of the Penal Code: and that he had he derives a positive advantage before the a right to rest upon that plea and could be

jury. It was said, in People v. McNeill, supra : convicted only by a verdict of a jury that "Xo doubt it would be better for the record tried him-citing cases. The record fails to to show that the defendant formaily made disclose the grounds of defendant's objection

confession in the form of a plea entered upon to pleading to the second conviction when the minutes contemporaneously with the makcalled upon. Indeed the record does not ing of the confession, but it cannot be said show that he objected. It shows only that he that the Code requires such procedure." But excepted upon the grounds stated in his de whether or not the court was authorized by murrer to the information, but the record any statute to "call upon” the defendant to does not contain the demurrer. There is plead to the charge of prior conviction, in nothing in the record sustaining defendant's doing so there was the exercise of no power contention that he was compelled, over his that can be said to be in excess of jurisdicprotest, "to either confess or deny the said tion. At most it was but an irregularity in prior conviction.” So far as appears he vole procedure which plainly, not only worked 110 untarily pleaded guilty when called upon. prejudice, but was a positive benefit to deWaiving the apparent failure of defendant to fendant. Besides the defendant could have affirmatively show error, we do not think the stood upon his original plea of not guilty, or court exceeded its authority, or, if it did, he could have again pleaded not guilty to the that defendant was in any degree prejudiced prior conviction. The re-enactment of ser'thereby.

tion 1025, while not affecting the present Defendant's argument is constructed chiefly | case, makes the question no longer of importon the fact that section 1023 of the Penal ance, if it ever had a serious aspect. Code was repealed in 1880 (St. 1880, p. 19, Upon the facts: There was evidence tendc. 47), and that until re-enacted in 1905 (St. ing to show that, some time between 2 p. m. 1905, p. 773, c. 574) there was no law provid- and 4 p, m. of April 21, 1902, defendant went

87 P.--26

to a house at No. 132 McAllister street, San | him guilty of burglarious entry. People v. Francisco, in which the Woman's Christian Brittain, 142 Cal. 8, 75 Pac. 314, 100 Am. St. Temperance Union had rooms. In going to Rep. 95. The statute applies to a dwelling. these rooms he passed through a hall in Pen. Code, $ 459. See People v. Flynn, 73 which was a trunk containing sundry articles Cal. 511, 15 Pac. 102; People v. Smith, 86 and belonging to one Mrs. Sheppard. He in- Cal. 238, 24 Pac. 988; People v. Lang, 142 quired at these rooms whether there were Cal. 482, 76 Pac. 232. The brief of defendant any letters for him, though he had never be- is signed by himself and purports to be the fore received any there, and shortly after work of his own hand. It possesses the proleft the house. The trunk had been in this fessional earmarks of the lawyer and is clearhall for some time, and its owner testified ly not the work of a layman. We are asked that she took some articles from it on the to scrutinize instructions, requested by demorning of the 21st of April and left it fendant and refused by the court, numbered locked. She went out of the house about 29, 48, and 49, as "he feels that they should 9 o'clock that night and returned about 10 have been given,” though no reasons are givo'clock and then missed the trunk. The same en for thus feeling. Instruction 29 was that night about 11 o'clock defendant and one

the law does not permit a conviction of crime Ilamilton, a codefendant, took the trunk to on suspicion. This was properly refused as their room, at 835B Howard street, entering covered by the other instructions, and parthe house in the rear by a narrow alley, run- ticularly instruction 13 given at defendant's ning from Tehama street to the rear of the request. Instruction 48 was that there was premises. The trunk was locked, but de- no evidence of any conspiracy between defendant opened it with a cold chisel and dis

fendant and any other person to commit the tributed some of the contents to inmates of

crime charged. This instruction, if given, the house to whom he said the trunk was his. would have been charging the jury on the The circumstances of his bringing the trunk matter of fact, which is forbidden (Const. to the house and breaking it open, his con- art. 6, § 19), and would not have been respon(luct two nights later when several police offi- sive to any issue in the case. Instruction 49 (ers went to arrest him, his attempt to evade was as follows: "If the evidence before you arrest, the hiding of the cold chisel with

does not reasonably exclude the hypothesis which he forced the trunk open, his final ar- that defendant might have received the trunk rest in a dark place where he had concealed and contents after they had been taken by himself, and other facts tending to show another from the premises, 132 McAllister guilty possession of the stolen property, were street, then your verdict must be that the brought out by the testimony of the police defendant is not guilty, unless the evidence officers and by two women witnesses who oc- satisfies your minds beyond all reasonable (upied part of the Howard street house. doubt that defendant aided and abetted the

It is strenuously urged that these women person who took the property." Much the were self-confessedly immoral persons and

same may be said of this instruction as has were accomplices, and the rule as to the lat

been said of No. 48. There was no evidence ter is invoked against their testimony. We

on which to base the theory of theft by any find nothing in the record showing that they

other person, or that defendant received it were accomplices. Their character for truth

from some other person. The court gave inand veracity was not assailed, and, while

structions 46 and 47, at defendant's request, their life was not of a character to indicate

with some proper modifications, which were the possession of much discrimination as to

sufficient to direct the minds of the jury to their companionships or moral conduct, the

the facts proven as to the possession of the jury must have accepted their testimony, and

trunk by defendant and their legal effect. it is not the province of this court to dis.

The judgment and order are affirmed. credit them.

It must be admitted that the evidence of a felonious entry to commit larceny is not

We concur: BUCKLES, J.; McLAUGH

LIN, J. strong, and the claim is made that there is an entire absence of evidence pointing in that direction. There is evidence, however, that

(7 Cal. Unrep. 297) defendant entered the McAllister street house

NOBLE v. LEARNED et al. (Civ. 235.) and had an opportunity to steal the trunk and had it in his possession a few hours later

(Court of Appeal, Third District, California. under circumstances indicating its theft by

July 31, 1906.) him. There was sufficient evidence to justi- 1. JURY-RIGHT TO JURY TRIAL-LEGAL OR fy the jury in its inference that the McAl

EQUITABLE-ACTIONS OR ISSUES. lister street house was entered by defendant

A suit to determine title to stock in a build

ing association, to cancel the certificate reprewith felonious intent. It has been held that,

senting the stock, to restrain the payment of where the defendant entered a dry goods money on account of the certificate, and to restore during business hours, and while there

quire the issuance to plaintiff of a new certifiwas caught in the act of attempting to steal

cate for the stock, is a suit in equity, and a jury

trial is not demandable as of right under Code a garment, the jury were warranted in finding Civ. Proc. $ 592, providing that, in cases other than actions for the recovery of specific real or the San Joaquin Valley Building & Loan Aspersonal property, etc., issues of fact must be

sociation issue to plaintiff certificates in due tried by the court, subject to its power to order issues to be tried by a jury.

form evidencing the ownership of plaintiff to

said 39 shares, and also the return of the [Ed. Note.-Fer cases in point, see vol. 31, Cent. Dig. Jury, $$ 35--47.]

$100. The San Joaquin Valley Building & 2. GIFTS-ASSIGNMENTS OF CORPORATE STOCK

Loan Association answered by general denial. --DELIVERY.

D. A. Learned answered by denying specificAn owner of stock in a building associa- ally, admitting the death of Deborah H. Lee tion gave to the secretary thereof a list of the and Gennis II. Learned and the proceedings persons to whom she wanted the stock assigned, and assignments were made on the back of the

taken to settle their respective estates, and, certificates. The secretary was given possession further answering, alleges that on October of the certificates subject to the owner's order, 17, 1902, Deborah H. Lee duly assigned by inand told to hold them until the owner's death,

dorsement all said shares of stock to Gennis and then deliver them to the assignees. A few months afterwards the owner died. Held, that

H. Learned, and then delivered the same so title did not vest in the assignees, but remained indorsed to A. M. Noble, to be held by him in in the owner.

trust for the said Gennis H. Learned as long [Ed. Note.For cases in point, see vol. 24,

as the said assignor should live, and at her Cent. Dig. Gifts, $$ 9, 36.]

death to me delivered to the said assignee; Appeal from Superior Court, San Joaquin that said Noble accepted sail trust; that County; F. H. Smith, Judge.

the said trust was not revoked, and was in Action by Arthur M. Noble, as executor of force when the said Deborah H. Lee died; Deborah H. Lee against D. A. Learned and that after her death, and on or about the others. From a judgment for plaintiff, de- | .20th of March, 1903, Noble delivered said fendants appeal. Affirmed.

certificates of stock to Gennis H. Learned,

and she then had said certificate for 40 A. H. Carpenter, for appellant. Plummer

shares canceled and the new certificate No. & Dunlap, for respondent. Budd & Thomp

559 issued to her for 39 shares in said asson, for Building & Loan Association.

sociation, receiving $100 in money. Prays

that the said trust be declared valid, and BUCKLES, J. This action was prosecuted defendant be adjudged the owner and entitled to determine the title to certain stock in the to the possession of said stock. The court San Joaquin Valley Building & Loan Asso- found that Deborah H. Lee never made any ciation, and for the delivery up and cancella- gift of said shares of stock to Gennis H. tion of the certificate representing the same, Learned and "never created any trust therefor an injunction restraining the payment of in, and never parted with any title, ownermoney on account of said certificates, and for ship, or control of said property during her the issuance to plaintiff of certificates of said lifetime, and the property and the whole stock. Judgment was for plaintiff, and the thereof was, at the time of her death, the appeal is from the judgment.

property of the said Deborah H. Lee, deceasThe first error assigned is that the court ed, and at the date of her death constituted refused the defendants' demand for a jury. and still constitutes a part and parcel of the Whatever view may be taken of the case as estate of said deceased." to other matters, it is an equity case, and This finding is based upon the testimony there was therefore no error in denying the of Arthur M. Noble, of whom she purchased defendants' demand for a jury. Code Civ. the 40 shares of the capital stock of the Proc. $ 592; Meek v. De La Tour (Cal. App.) San Joaquin Valley Building & Loan As83 Pac. 300; Ashton v. Heggerty, 130 Cal. sociation. Mrs. Deborah H. Lee was sick. 517, 62 Pac. 934. The complaint alleges that had about $1,600 which she wanted placed Deborah H. Lee died intestate March 12, where she could have the income from it and 1903, and at that time she was the owner use any part of the principal in case she and entitled to 40 shares of the capital stock of needed it at any time. In negotiating the the San Joaquin Valley Building & Loan As- purchase of said shares of stock with the sociation, in a certificate numbered 463, and witness A. M. Noble, who was the secretary that one Gennis H. Learned, upon the death of the San Joaquin Valley Building & Loan of said Deborah H. Lee, wrongfully and un- Association, she informed him that this was lawfully took possession of said certificate of the only money she had, and that she did not stock, had the same canceled and a new cer- want to put it out of her control. This cértificate issued to her in her own name for tificate of stock No. 465, with others, was is39 shares and received $100 in money for the sued to her with the assurance to her by other shares. That said Gennis H. Learned Mr. Noble that she could retain control of died testate, and the said certificate of stock them and draw money on them. The certifis now held by D. A. Learned, the executor icates were then issued in the name of Deof the last will of said Gennis H. Learned. borah H. Lee, and given to her. She assignAlleges demand made, and the value of the ed them to different persons, assigning No. property to be $4,000. The prayer is thąt | 465 to Gennis H. Learned. They were then the certificate of stock No. 559 be delivered by Mrs. Lee returned to Mr. Noble, who tesup by said defendant, that it be canceled and tified in relation thereto as follows: "I left

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