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(6-8) Courts will take judicial notice of the chapel is to hold religious services therein existence of private corporations created by sufficient under the rule of proof prescribed public law. 15 R. C. L. 1117; Fletcher, Pri- about twice a month. This showing is not vate Corporations, 584-587; Civ. Code, tit. by the statute. It is earnestly contended 12, 88 593-602. A corporation formed under that petitioner does not have the managetitle 12 of the Civil Code has civil rights ment and control of the chapel but that the and duties, and its powers, like those of oth- pastor who ordered the work done was alone er corporations, are construed with reference responsible for it, and that petitioner had to the object of the corporate existence. no knowledge of the repairs until after the Harriman v. Church, 63 Ga. 186, 36 Am. rehearing was granted by the Commission. Rep. 117. Section 602 of the Civil Code pro- It is to be gathered from the arguments of vides, in part:

petitioner's counsel it could have been shown “Whenever the rules, regulations, or disci- it was no part of his temporal duties to dipline of any religious denomination, society, or rectly or indirectly manage or repair the church so require, for the administration of the church buildings in his diocese; that this temporalities thereof, and the management of duty was delegated to the parish priest in the estate and property thereof, it shall be each particular parish; and that he was in lawful for the bishop * * * to become a sole | no way responsible for such repairs. It was corporation, in the manner prescribed in this stated that, if an award be made against title, as nearly as may be, and with all the powers and duties, and for the uses and pur- the parish and by it paid. But such con

petitioner, it will be assessed back against poses in this title provided for religious incorporations.

Every corporation sole tentions and statements of fact cannot take shall, however, for the purposes of the trust, the place of allegation and proof. It is conhave power to contract in the same manner and ceivable that, if these matters had been preto the same extent as a natural person, and sented, the Commission would have held the may sue and be sued, * and shall have pastor liable. In reply to a question by the authority * * * to buy * * and in every court counsel for respondents offered to stipway deal in real and personal property in the ulate as to matters of evidence, but the offer game manner that a natural person may

was not acted upon. It was stated in the Such powers are entirely distinct from the oral argument on behalf of petitioner: “If spiritual side of the church, and in order that anybody is holden, the Archbishop will cona religious society be recognized by law it sent an award may be made against him." must be shown that it is capable of making

Petitioner having failed to allege and contracts, accepting benefits, and of suing prove that his civil rights and duties as a and being sued. Baxter v. McDonnell, 155 corporation sole do not include the repairs N. Y. 83, 49 N. E. 667, 40 L. R. A. 670. The in question, the award must be affirmed. record shows that the Commission instituted

In deciding that petitioner failed to show proceedings against petitioner as a corpora- that the service did not come within the tion sole, and that he did not deny such ca- act, it is not to be assumed we have reached pacity, and it is therefore an established a conclusion on the question whether a fact in the case. Fletcher, Private Corpo- church building is a “business, business rations, vol. 11, 580. The existence of a cor premises, or business property,” or whether poration sole being shown, the courts take the repair thereof tends "toward the presjudicial notice that the office has civil rights ervation, maintenance, or operation of the and duties, but courts do not take judicial business, business premises, or business propnotice of the nature and scope of such civil erty” of petitioner, or whether it is an unrights and duties. Baxter v. McDonnell, su- dertaking actually engaged in with some depra; 15 R. C. L. 1126, 1127. What the na-gree of regularity. The award is affirmed ture of the civil rights and duties is was solely on the ground that petitioner has not, not alleged and has not been established by in contemplation of section 19 (d), shown proof. This it was necessary to do. In the that the service rendered by applicant is above case it was held that judicial notice excluded from the operation of the act. could not be taken of the civil rights and

The suggestion has been made that, if the duties, although they were alleged and

Legislature intended by the amendment of proved, because the capacity as a corporation 1917 to include church repairs in the term sole had not been alleged,

“business, business premises, or business [9] It having been shown that the appli- property," it would have so expressly procant was not an independent contractor, the

vided. This may be so, and it is apparent only evidence petitioner can rely on to prove of the act would be attended with less diffi

that, if this had been done, the construction that the services of the applicant are excluded by the act is that given by the pastor culty. However, this is a matter for the dethat petitioner is a corporation sole, holding

termination of the Legislature. the legal title to the chapel, the manage

The award is affirmed. ment and control of which is committed to the pastor, who acts under the appointment We concur: LENNON, J.; RICHARDS, of petitioner, and that the purpose of such J.; SHENK, J.; SEAWELL, J.; WASTE, J.

(230 P.)

SHENK, J. The defendant was accused PEOPLE v. CASADE. (Cr. 2667.) by indictment found by the grand jury of

Los Angeles county of the crime of murder, (Supreme Court of California. Oct. 25, 1924.

Following a verdict of guilty without recRehearing Denied Nov. 20, 1924.)

ommendation he was sentenced to suffer the 1. Homicide am 31.1--Instruction as to jury's extreme penalty. He appeals from the judgdiscretion in determining punishment of first ment of conviction and from the order denydegree murder not erroneous.

ing his motion for a new trial. Instruction as to jury's discretion, under On the 29th day of November, 1923, at Pen. Code, $ 190, in fixing punishment for first about 4 o'clock in the afternoon, the defenddegree murder, to the effect that it is not ar ant became engaged in an altercation with a bitrary, but to be employed only when the jury 13 year old Mexican boy in or near the city finds there is some extenuating fact or circumstance, and is satisfied that the lighter of San Fernando. In the course of the dispenalty should be imposed, held not erroneous. pute the defendant threatened to hit the boy.

The boy's sister-in-law overheard the threat 2. Homicide am 296 - Instruction as to kill. and called the police by telephone. About

ing while deceased was attempting to prevent | 10 minutes later the deceased, Oscar Longperformance of unlawful act' held applicable fellow, a police officer, answered the call

. to evidence.

On the arrival of the officer, the defendant Instruction on prosecution for killing an officer who was taking defendant to police sta- was standing in the middle of the street in tion, predicated on deceased being killed while front of the house where the boy was living. he was attempting in a lawful manner to pre- The officer approached the defendant and or. vent performance of an unlawful act in which dered him to go with him to the police stadefendant was engaged, held applicable to facts tion. The two were walking side by side unin evidence.

til they reached a point 'on the sidewalk in 3. Homicide am 300(7)–Refusal of instruction the business portion of the city immediately as to authority to arrest held not error.

in front of a jewelry store. At that point Where the killing was after arrest of de- the defendant stepped back and behind the fendant by deceased, an officer, and while they officer, drew a revolver, which he had conwere walking to the police station, refusal of cealed upon his person, and fired three times. instruction as to authority to arrest without a Two of the shots, one of which was fatal, warrant, for a misdemeanor not committed in entered the body of the officer, and the third the officer's presence, and as to right to resist pierced the rim of the defendant's hat. The an unlawful arrest, held not error.

defendant dropped the gun and ran across the 4. Criminal law Om829(1)-Refusal of instruc- street, where he was captured by bystanders tion covered by others given not error.

and taken to the city jail. It is not error to refuse an instruction ful [1] On his mution for a new trial the de ly covered by others given.

fendant contended and on this appeal urges

that the court gave improper instructions to 5. Homicide Om 250 - Evidence held to jus. the jury on the matter of recommendation of tify conviction of murder.

punishment, and that the court erroneously Evidence held to justify verdict of guilty of

refused other instructions requested by the murder,

defendant. The principal instruction com6. Homicide Om 332(3)-Jury's failure to rec- plained of and which was given is as fol

ommend lighter punishment for first degree lows: murder not reviewable.

"If the jury in this case should find the deThe evidence warranting the verdict of first fendant guilty of murder in the first degree. degree murder, jury's failure to recommend the and they also shall find the further fact that lighter punishment, under Pen. Code, $ 190, is there is some extenuating fact or circumstance not reviewable, notwithstanding conflicting evi- | in the case, it is within their discretion to prodence of defendant's intoxication; the effect nounce such sentence as will relieve the deon their verdict of any intoxication of defend fendant from the extreme penalty of the law. ant being for the jury to determine under sec- The penal code invests a jury in a criminal tion 22.

case for murder with the discretion, but the

discretion is not an arbitrary one, and is limin Bank.

ited to determining which of the two punishAppeal from Superior Court, Los Angeles ments shall be inflicted, and is to be employed County, Sidney N. Reeve, Judge.

only when the jury is satisfied that the lighter

penalty should be imposed. If the evidence Francisco Casade was convicted of mur. shows the defendant to be guilty of murder der, denied a new trial, and appeals. Af. in the first degree, but does not show some firmed.

extenuating fact or circumstance, it is the duty Mrs. Catherine McKenna and J. Irving Mc- of the jury to find a simple verdict of murder Kenna, both of Los Angeles, for appellant in the first degree and leave with the law the

responsibility of affixing the punishment.” U. S. Webb, Atty. Gen., John W. Maltman, Deputy Atty. Gen., and John L. Flynn, of Los It is contended that this instruction is Angeles, for the People.

prejudicially erroneous as an attempt on

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the part of the court to circumscribe and con- , should find the defendant guilty, and it was trol the discretion given to the jury in such held that no error was committed. cases by section 190 of the Penal Code, which In the case of State v. Thorne, 39 Utah, reads:

208, 117 P. 58, also earnestly relied upon by "Every person guilty of murder in the first the defendant, it was held that by the indegree shall suffer death, or confinement in the struction there given the court undertook to state prison for life, at the discretion of the guide and direct the jury in the determinajury trying the same.

tion and exercise of its discretion in fixing

the penalty. That instruction may not be It is urged that the instruction unduly and said to be the same either in substance or prejudicially affected the discretion to deter- effect as the one here complained of. As mine the penalty which said section has ex- pointed out by the court the particular vice clusively reposed in the jury. But by a long of that instruction was that it directed the line of decisions in this state it has been held jury that it was its duty to consider the questhat the giving of said instruction is not tion of the penalty “in the same manner” as

In the early case of People v. any other question submitted to it, taking inJones, 63 Cal. 168, it was held that the dis- to consideration the objects and purposes of cretion vested in the jury by said section 190 the criminal law. The phrase, “in the same was not an arbitrary one. The instruction manner," was held to include a consideration complained of was taken word for word from of “the issues, the burden, degree, and quanPeople v. Brick, 68 Cal. 190, 8 P. 858, where tum of proof, the effect and weight of the eviit was held that the giving of the instruc-dence, the requirement that the facts found tion was not error. This instruction was must be established and justified by eviagain under attack in People v. Olsen, 80 Cal. dence, or the party having this burden must 122, 22 P. 125, and the same conclusion reach- lose if he has not sustained it by the degree ed. Substantially the same instruction was and quantum of proof required by law, etc." under review in People v. Bawden, 90 Cal. 195, No such elements are involved in the instruc27 P. 204, and this court following the earlier tion here complained of. decisions declined to reopen the question. In [2] The defendant further complains of People v. Rogers, 163 Cal. 476, 126 P. 143, the following which was embodied in an inalleged error was predicated on the giving struction given at the request of the prosecuof this instruction which is again set forth tion: word for word on page 483 (126 P. 146), and

"If the accused was engaged in the performthe court, referring to the earlier cases, said: ance of an unlawful act, and if the deceased

“The law of this state thus appears to be attempted in a lawful manner to prevent the thoroughly settled to the effect that the in- performance of such unlawful act, and if, while struction in question is not erroneous."

so endeavoring to prevent the same, the defendant in anger, and solely for the purpose

of revenge, or to enable him to carry out his It was likewise held not to be erroneous unlawful design, so interfered with by said dein People v. Harris, 169 Cal. 53, 145 P. 520, ceased, attacked the latter with a deadly weapin People v. Miller, 177 Cal. 404, 170 P. 817, on, intending to kill said deceased, and did, in People v. Wolfgang (Cal. Sup.) 221 P. 907, into execution, the fact that defendant was in

under such circumstances, carry such intention and in People v. Reid (Cal. Sup.) 225 P. 859. a passion would not mitigate or excuse such Further consideration of the contention homicide, but the crime committed would in would seem to be foreclosed.

such case be murder in the first degree. It The cases of People v. Leary, 105 Cal. 486, is not less murder because the act is done sud39 P. 24; People v. Kamaunu, 110 Cal. 609. denly after the intent to commit the homicide 42 P. 1090, and People v. Ross, 134 Cal. 256, is formed. It is sufficient that the malicious 66 P. 229, do not support the defendant's con intention preceded and accompanied the act of

homicide." tention. In the Leary Case it was not contended that the facts were not sufficient to It is contended that there was no evidence justify the jury in finding the defendant in the case as to which this instruction could guilty of murder in the first degree, but it be applicable. The portion objected to is but was contended that the facts were not suffi- a part of an instruction covering over seven cient to warrant the jury in returning a ver-pages in the transcript, wherein the court at dict carrying the death penalty, and it was length expounded the law with reference to held that when the jury had exercised the murder in the first degree, murder in the discretion vested in it by the code section no second degree, and manslaughter, and there power was reserved to the court to review its was substantial basis in fact for including it action in that respect. The same conclusion as a part of the charge. The evidence showwas reached in People v. Ellis, 188 Cal. 682, ed that, when the defendant stepped behind 206 P. 753. In the Kamaunu Case and in the the officer, the latter turned in the defendRoss Case the court refused instructions prof. ant's direction, exclaimed, "Hey!" and grapfered by the defendant tending to instruct pled him, obviously in an attempt to prevent the jury as to how it should exercise its dis- the defendant from committing a felonious cretion in regard to the punishment in case it assault, in violation of section 217 of the

(230 P.) Penal Code, or to prevent the defendant from , witness testified that he saw the struggle, committing murder, The defendant there saw the defendant drop the gun, and run fore was engaged in an unlawful act, to wit, across the street. Still another witness tesa felony, and the deceased was attempting in tified that after the shooting the defendant a lawful manner to prevent the performance came toward him, that he captured the dethereof. The instruction was therefore ap- fendant, and that the defendant immediately plicable to the facts.

said to him, "Somebody shoot me." The [3] Prejudicial error is asserted because of chief of police testified that, when the dethe refusal of the court to instruct the jury fendant was brought to the jail, he asked that an officer has no authority to make an him where he kept the gun, and the defendarrest for a misdemeanor without a warrant, ant said, “Right here;" that he then opened unless the offense be committed in his pres- the defendant's clothing and found the imence; that the defendant has the right to re- print of the gun on the defendant's body; sist an unlawful arrest; and that an arrest that he asked the defendant about the shootmade by an officer for a misdemeanor not ing, but the latter refused to talk about it. committed in his presence is an illegal ar- In his dying declaration the deceased said rest. There was no error in refusing these that the defendant shot him twice. He furinstructions. Assuming that the arrest in its ther stated : | inception was without justification in that

"I had arrested him. I was walking down the defendant's threat to harm the boy was Porter avenue in front of Hillenbrand's jewelry not made in the officer's presence, it would shop. Casade jumped behind me, and began not follow that the defendant would be jus- shooting. I turned and grabbed him and took tified in murdering the officer in an attempt the gun away from him. I tried to shoot, but to release himself from such custody. In the I was getting too weak. I did not shoot. I light of subsequent events the authority of yelled at a bunch of men across the street to the officer to make the arrest in the first in- get him." stance became an immaterial question. Peo is suggested by counsel for th defendple v. Wolfgang, supra.

ant that it was highly improbable that the [4] The defendant offered an instruction on defendant could have done the shooting, for the subject of manslaughter, embodying the reason that one of the bullets passed therein the statement that the jury could through the rim in the rear portion of the take into consideration the state of mind of defendant's hat, but this circumstance is exthe accused, as to intoxication and his ca- plained in the testimony of the chief of popacity to act maliciously. The court refused lice who stated without objection that the dethe instruction as having been covered by ceased said that at the beginning of the other instructions given. The refusal is struggle he forced the defendant's hand upclaimed as error. Other instructions which ward in an endeavor to disarm him, and were given fully covered the subject of man- that the first shot went through the rim of slaughter and the consideration which the the defendant's hat. There was no evidence jury could give to voluntary intoxication as to the contrary. The defendant did not take bearing on the purpose, motive, or intent of the stand, and the testimony in his behalf the defendant and in determining the degree was confined to three character witnesses. of the crime. The court was not required to [6] It is asserted by defendant's counsel state the law to the jury more than once that the defendant was intoxicated at the People v. Feld, 149 Cal. 464, 86 P. 1100, 8 time of the shooting; that the evidence is Cal. Jur. 314, and cases cited.

without conflict on that subject; and that [5] The question of the insufficiency of the therefore he was not deserving of the exevidence to justify the verdict was first urged treme punishment. The record discloses a by defendant's counsel on oral argument. very substantial conflict in the evidence on We have examined the record with care, and the question of defendant's intoxication. find that the evidence abundantly supports Two witnesses testified that he appeared to the conclusion of the jury. One witness tes- be intoxicated. Another witness testified tified that he saw the defendant step behind that he was not intoxicated, and it was in the officer and fire three shots. He then ap- evidence that the defendant prior to the trial proached the defendant, who said to him, stated that he had consumed a pint and a "Why don't some one shoot me now?" An half of wine at his meal at noon that day, other witness testified that when he was which was four hours before the shooting; about 25 feet away from the defendant he that he was not drunk when the shooting saw him step back, draw the gun, and fire occurred; and that he remembered clearly at the officer; that the officer turned back, everything that had happened that day. Fursaid, "Hey !" and tried to grapple with the thermore, the effect on their verdict of the defendant. During the struggle the succeed intoxication of the defendant, if such existed, ing shots were fired, and the officer sank to was for the jury to determine under section the sidewalk. Another witness testified that 22 of the Penal Code. The question of he saw the shooting from a point about 15 whether the lighter punishment should have to 25 feet away, and that he saw the defend- been inflicted was exclusively for the jury's ant pull the trigger three times. Another determination. "If the reviewing court is

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satisfied that there is sufficient evidence to through and solely because of the carelessjustify a verdict of murder of the first de ness, wantonness, negligence, and recklessgree, its inquiry on that point is ended." ness of the defendant * * in the operation People v. Ellis, supra. The evidence was of said automobile; that none of the insufficient to justify the verdict herein, and, juries or damages that the plaintiff Fannie as we find no error in the record, the judg- Mardorf sustained were occasioned solely ment and order are affirmed.

or at all • * * through the negligence of

the plaintiff.” We concur: MYERS, C. J.; SEAWELL, J.; It is the appellant's contention that these LAWLOR, J.; WASTE, J.; LENNON, J.; findings are not sustained by the evidence. RICHARDS, J.

At about 6 o'clock in the evening on October 28, 1922, the defendant was operating an automobile through the city of Burlingame

in a southerly direction along the right or

westerly side of El Camino Real, the state MARDORF et ux. v. PENNIMAN.

highway, and was approaching the inter(Civ. 4946.)

section of said highway with Broadway, at (District Court of Appeal, First District, Di- a speed variously estimated at “less than vision 2, California. Sept. 18, 1924.) 20 miles an hour' and 25 miles an hour or i

more. It was already dark and the highMunicipal corporations m706(5)-Pedestrian struck by automobile which she saw, held not destrians and a number of persons who had

way was crowded with automobiles and peshown to have been negligent.

just come in on a train. Plaintiff attemptFindings that pedestrian who proceeded to cross street after seeing defendant's automo-ed to cross the highway from the southeast bile a block away, and was thereafter struck by to the northwest corner, at the usual crosshis car when a few feet from curb, was not ing for pedestrians, and within the lines negligent, and that proximate cause of accident marking out the safety zone. When she was heedlessness of defendant, held warranted. had reached a point close to the curbing on

the northwesterly corner (estimated at three Appeal from Superior Court, San Mateo to eight feet therefrom), she was struck by County; George H. Buck, Judge.

the right front wheel of defendant's automoAction by William Mardorf and wife bile and thrown partly upon the sidewalk. against L. E. Penniman. Judgment for Her ankle and nose were broken, her thumb plaintiffs, and defendant appeals. Affirmed.

was severely injured, ribs were fractured,

and she sustained various bruises and minor Chas. W. Haswell, of San Francisco, for injuries, confining her to her bed and to a appellant.

wheeled chair for several months. Franklin Swart, of Redwood City, and

[1] It is contended that even though it be Wm. T. Sweigert, of San Francisco, for re

conceded that the lights upon the automospondents.

bile were dim, that fact does not affect the

liability of the defendant, as the plaintiff LANGDON, P. J. This is an appeal by testified that when she started across the the defendant from a judgment against highway, she saw the lights of defendant's him for $1,000 in an action brought to re- automobile over a block away coming tocover damages for personal injuries alleged

ward her upon the highway. It is true that to have been suffered by the plaintiff Fannie so far as giving warning to plaintiff is conMardorf, by reason of the negligence of the cerned, it is immaterial whether the lights defendant in operating an automobile upon were bright or dim, since she actually did the public highway in the city of Burlin- see them. But the finding is material in game, Cal. The plaintiffs are husband and connection with the testimony of the defendwife. The answer denied negligence on the ant that he did not see the plaintiff until part of the defendant, and alleged that the he was but the length of his automobile from injuries were caused by the negligence of her. As she was crossing the highway, acthe plaintiff Fannie Mardorf.

cording to her testimony, from the time deThe case was submitted to the court with-fendant was a block away from her, it would out a jury, and it was found that at the seem that proper lights upon the automotime and place of the accident, the defendant bile would have made defendant aware of was operating his automobile “in a careless, her presence upon the highway and her unnegligent, wanton, and reckless manner, and interrupted movement across the same beat an unlawful rate of speed, and without fore he was so close to her as to make the sounding a warning signal, and with very accident inevitable. dim lights and with utter disregard of the Appellant also makes the point that the safety of the plaintiff Fannie Mardorf; that | finding that he did not sound a warning besaid automobile of defendant

comes immaterial in view of the fact that proximately and directly caused to collide the plaintiff testified she saw him coming with and strike the plaintiff * * by and toward her when she started across the

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