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[2] From this provision of the act it is evi-, paid by the employer to the dependents of dent that it was the intention of the Legisla- the employee, under the Workmen's Comture to provide that the action between the pensation Act of the state of Nebraska, that employee and the third person, or that be the contributory negligence of the employer tween the employer and the third person, in was no defense in such an action. This case which the employee might join, is to be deter was followed by the Supreme Court of Iowa mined without any reference to the amount in the action of the Fidelity & Casualty Compaid to the employee by the employer or the pany v. Cedar Valley Electric Co., 187 Iowa, amount for which the latter might become lia- 1014, 174 N. W. 709. These cases were de ble for the injury sustained by the employee. cided upon the ground that the employer, Such an action is to be determined as if no upon making payment to the employee, or his. settlement or award had been made as be- dependents, by the express terms of the tween the employee and the employer. With- statute became subrogated to the rights of out evidence of the amount of the death ben. the employee, and therefore the employer, in efit paid by the employer to the employee it his action against the negligent third per.. would be impossible, in case the court or son, stood in the shoes, so to speak, of the the jury found that the defendant was neg- employee, and no defense would be available ligent and that the employer was guilty of in such an action that could not be pleaded contributory negligence, to determine the againsť the employee in case the action was amount of the damages which would be being prosecuted by the latter. Defendant barred by the contributory negligence of the seeks to avoid the effect of these decisions employer, and the amount, if any, to which by calling our attention to the fact that the the employee would be entitled over and statute of 1917, as amended in 1919, conabove the amount paid to him by the em- tains no provision whereby the employer beployer. The consequences, therefore, of com came subrogated to the rights of the emplying with this provision of the act would ployee. Under the Workmen's Compensation be to make the defendant in such an action, | Act of 1913 (St. 1913, p. 279) of this state if liable at all, liable for the full amount of it was expressly provided that the employer the damages sustained by the employee. To became subrogated to the rights of the emhold that in such an action the defendant is ployee upon the former making payment to liable for the full amount of the damages the latter. This provision was omitted in sustained by the employee, irrespective of the latter statute upon the subject, but in the contributory negligence of the employer, the 1913 act, as well as in the subsequent is casting no burden upon the negligent third acts upon the subject, the employer was givperson greater than that borne by him prior en a right of action against the negligent to the enactment of the statute. Before the third party, and in such action was authorpassage of any workmen's compensation acts | ized to recover the full amount of damages a negligent third person was responsible for sustained by the employee by reason of the all damages sustained through his negligence injury. If the employer was subrogated to to one in the employ of another, and the fact the rights of the employee under the terms that the employer was liable for such injury of the 1913 statute, as the language thereof jointly with a third person was no defense to clearly provided that he was, we do not think such an action in whole or in part, nor could that his position as regards the negligent it be made the basis of any proceeding against third person is any less favorable under the the employer for contribution towards pay- latter acts, notwithstanding the failure of ment of the judgment recovered by the em- the subsequent statutes to provide specificployee against the third person.

ally that he shall be subrogated to the rights We are therefore of the opinion that by of the employee. By the terms of the act of the terms of the act of 1917, as amended in 1917, as amended in 1919, upon paying to the 1919, the defendant was precluded from in- employee compensation for the injury the emterposing as a defense in this action the con- ployer is given the right to sue the neglitributory negligence of the employer, and gent third person for the full amount of that it was not error on the part of the court damages sustained by the employee. This to sustain the objection to the introduction of was the same right given to the employer unwvidence in support of this defense.

der the act of 1913. The practical effect of This precise question has never, to our the terms of each statute is to subrogate the knowledge, been before the appellate courts employer to the rights of the employee upon of this state, and we have been able to find the former paying to the latter the compenbut two cases in which a question at all sim- sation provided by the statute, at least to the ilar to the one herein involved has been be- amount of such payment. fore any of the courts of this country. In On the other hand, counsel for the dethe case of Otis Elevator Co. v. Miller & fendant bas called to our attention the two Paine, 240 Fed. 376, 153 C. C. A. 302, the cases of Corey & Son v. France, 1 K. B. 1911, United States Circuit Court of Appeals held p. 114, and Canadian P. R. Co. V. Alberta that in an action by the employer against a Clay Products, Ltd., 8 B. W. C. C. 645. The third person, brought to recover the amount first of these two cases was decided under

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(230 P.) the Workmen's Compensation Act of Eng- , 24 inches. Accordingly, there was only about land, and the second under the Canadian 1 foot between the southerly edge of the statute. The latter statute was taken from pipe and the car as it passed along the track. the English act, and there is no essential The deceased and three others were at work difference in the two statutes upon the sub-wrapping the pipe with burlap, preparatory ject under consideration. Neither the Eng- to it being laid in the trench. It was therelish nor Canadian act contains any provision fore necessary for them to be in close proxwhereby the employer is subrogated to the imity to defendant's car track. The evirights of the employee, nor do either of said dence showed without contradiction that the acts provide, as does that of our own state, deceased, at the time he was struck by the that in an action instituted by the employee car, was facing the opposite direction from against the negligent third person the amount which the car was approaching. Being a paid by the employer to the employee shall workman whose duty required him to be on be inadmissible in evidence. As these stat- | the street, he was not required to look conutes differ so materially from our own stat- tinually for the approach of a car, 25 R. ute, the decisions of the English and Cana- C. L. 1287; King v. Green, 7 Cal. App. 473, dian courts construing them are but slight 94 P. 777. The car line being a single track, assistance to us in endeavoring to ascertain cars might come from either direction, and the true intent and purpose of the legislation he could not look both ways at the same time. of our own state.

The evidence therefore not only fails to show [3] Second. It is further insisted by the that he saw the approaching car, but it fails defendant that the evidence shows as a mat. to show that he was negligent in not seeing ter of law that the deceased was guilty of it as it approached the place where he was contributory negligence which was the proxi- at work. Neither is the evidence sufficiently mate cause of his death.

strong to justify us in holding that the de[4] Negligence as a rule is a question of ceased was, as a matter of law, guilty of fact for the jury, and it is only when but negligence in failing to hear the car, or, if one conclusion can reasonably be reached he heard it, in failing to avoid being struck from the evidence that it becomes a ques- by it. It is true that a strong inference tion of law for the court. Herbert v. S. P. might be drawn from the testimony that one Co., 121 Cal. 227, 53 P. 651.

working at or near the car tracks, as was "If one sensible and impartial man might de- the deceased, would hear an approaching cide that the plaintiff had exercised ordinary car traveling at the rate of 20 miles an hour, care, and another equally sensible and impar as it approached the place where the latter tial man that he had not exercised such care, was at work, but, in view of the evidence in it must be left to the jury.” Herbert v. S. P. the case, we are not entirely convinced that Co., supra, 229 (53 P. 651).

a contrary inference could not also reasonaThe defendant concedes that it was neg- bly be drawn. Especially is this so when ligent in the operation of the car which we consider the testimony of the witness caused the death of Milosevich. This negli-Bowers. The evidence shows that this witgence consisted, as conceded by defendant, in ness was engaged in the same kind of emdriving the car at an excessive rate of speed, ployment as was the deceased, wrapping pipe in the failure of the motorman to ring his with burlap, and that with one exception bell when close to the men at work in the he was nearer the deceased at the time of street, and in his failure to observe the de- the collision than any of the other workmen. ceased at his work near the car tracks. But He testified that he did not hear the car defendant contends that "surely a car com- until he looked up from his work for the ing along this track at 20 miles an hour purpose of getting a new ball of burlap. He could have been seen and heard

then saw the car "right close to us." Othif Milosevich had looked or listened," and er testimony in the case is to the effect that that failing to either look or listen was such the car was then about 15 feet from the denegligence on his part as would bar any re- ceased. It is true that Bowers was at this covery. The evidence shows that the de- time some 60 feet further away from the ceased, on the occasion of the injury, was car than was the deceased, but this differworking with a number of other men forence in the distance that the two men were the Los Angeles Gas & Electric Corporation, from the car, at the time Bowers first saw it This corporation was engaged in laying a but failed to hear it, would not wholly depipe line in the street over which defend- stroy the effect of Bowers' testimony as tendant was operating a single-track electric car ing to prove that the car was traveling in line. The trench in which the pipe was to such a manner that it was not heard by be laid was parallel with the car track and the deceased as it approached the place about 4 feet from the north rail of said where he was at work, We are not able track. The line of pipe ran along the south-to say, therefore, that the evidence in this erly edge of the trench and was 10 inches in case is such that it shows that the deceased diameter. This would leave about 3 feet was guilty of contributory negligence as a between the north rail of track and the line matter of law. of pipe. The street car "overhung' the rail Judgment affirmed.


CONREY, P. J. I concur in the judgment. U. S. Webb, Atty. Gen., and J. Charles I am not definitely satisfied that in an action Jones, Deputy Atty. Gen., for the People. of this kind, prosecuted by the dependent survivors of an employee as sole plaintiffs,

PLUMMER, J. [1] The defendant was against a person other than the employer tried and convicted upon an information (an action wherein, as the statute provides, charging him with the crime of unlawfully the amount of compensation paid by the em- having in bis possession, selling, furnishing, ployer is not permitted to be shown), the peddling, etc., a preparation of morphine, conemployer will in every case be entitled to trary to the provisions of the act of March apply for and obtain an order establishing 6, 1907, and the amendments thereto. From a lien in his favor for the amount of com- the order of the court denying his motion for pensatjon paid by him. It will possibly be a new trial and the judgment entered upon a defense to such application that the em-) the verdict of guilty the defendant appeals ployer's contributory negligence was a con- to this court. Only one point is stressed by curring proximate cause of the damage suf- the appellant in support of his contention fered. But, if so, that will be a question that the judgment and order herein referred between the plaintiffs and the employer. In to should be reversed. It is that the trial order to make sure that the right of action court erred in failing to instruct the jury on in a case like this shall not be affected by the law concerning the testimony of accomany compensation claim against the employ. plices and the necessity for the testimony of er, the statute has apparently excluded from an accomplice to be corroborated. The inthe trial of the controversy between the structions which were proposed by the deplaintiffs and the defendant herein any con- fendant covering these points are indorsed sideration of the amount of compensation by the trial judge as "refused, substance givpaid by the employer. The amount being en elsewhere.” We have carefully read the thus excluded, the plea of contributory neg. instructions, and fail to find any instructions ligence of the employer could not affect the covering the points mentioned. The instrucamount of the verdict, or be used at all un- tions were all asked in relation to the testiless to defeat the entire cause of action of mony of the witness G. B. McDonald. This the plaintiffs. But manifestly the Legisla- testimony, however, is set out in the tranture did not intend that such cause of ac script and also in appellant's brief, and shows tion shall be thus destroyed.

that the witness McDonald was simply a pur

chaser. His part in the transaction is testi. I concur: HOUSER, J.

fied to as follows:

“Q. Now, on the date, this last date in February, 1924, did you purchase anything from the defendant on that date? A. I did.

"Q. And what was it? A. Morphine.

"Q. Do you recall what time of day? A. PEOPLE V. GALLI. (Cr. 799.)

Well, it was around about between 4 and 5 (District Court of Appeal, Third District,

o'clock. California. Sept. 17, 1924.)

"Q. And whom did you get that morphine

from? A. The defendant. 1. Criminal law Ow507(1)-Purchaser of mor

"Q. And did he give it to you or did you purphine held not aider and abettor in defend chase it from him? A. Purchased it. ant's prohibited possession.

"Q. What did you pay him for it? A. BeFact that purchaser of morphine from de-tween $3 and $4, I forget just which." fendant had. after purchase, illegal posses

Cross-examination by Martin I. Welsh: sion, held not to make his possession identical with possession by defendant as to make him "Q. You knew, of course, when you bought an accomplice, within Pen. Code, $ 1111. this morphine from the defendant that it was

illegal to do that, didn't you? A. I did." 2. Criminal Law Ow780(2)--Evidence held not

to require instruction on law of accom Upon this testimony it is contended that plices.

the witness McDonald was an accomplice In prosecution for selling morphine prepa- within the terms of section 1111 of the Peration, where there was no testimony justify-nal Code. In this contention, however, the ing instruction on accomplices, within Pen. appellant is laboring under a misapprehension Code, & 1111, refusal so to instruct was not er

or a confusion of ideas. That section defines an accomplice ".

as one who is liaAppeal from Superior Court, Sacramento ble to prosecution for the identical offense County; Charles 0. Busick, Judge.

charged against the defendant on trial in

the cause in which the testimony of the Joseph Galli was convicted of unlawfully accomplice is given.” After the purchase of possessing, selling, and peddling a prepara- the morphine, the witness was, of course, tion of morphine, and he appeals. Affirmed. in possession of the drug illegally, and could

Martin I, Welsh, of Sacramento, for appel- have been prosecuted for the illegal posseslant.

sion, but similarity of offenses is not the


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(230 P.) same as identity. The mere fact that the [2] Under the authorities just cited and witness, after his purchase, had illegal pos- the amendment to section 1111 of the Penal session of morphine, though similar to the Code which we have set forth, the defendant offense of possession by the defendant from was not entitled to the instructions on the whom the drug was purchased, does not make subject of accomplices, for the simple reason it identical. In other words, it is not the that there was no testimony in the case jusself-same offense, although it is of the same tifying such instructions, hence whether the kind. The possession of each is separate and trial court correctly or incorrectly stated the distinct from the possession of the other, and reasons of its refusal to instruct the jury the offenses are likewise separate and dis- / along the proposed lines is wholly immatetinct. We think the rule applied to the sale rial. There being nothing in the case justifyand purchase of intoxicating liquors is ap- ing a reversal, the order and judgment applicable here. The authorities are almost pealed from are hereby affirmed. unanimous in holding that:

We concur: FINCH, P. J.; HART, J. "A, purchaser of intoxicating liquors is not guilty of inciting, aiding, or abetting, couuseling, or procuring the sale thereof to himself." 33 C. J. 617; 46 L. R. A. (N. S.) 409, and notes; Lott v. U. S., 205 F. 28, 123 C. C. A. 336, 46 L. R. A. (N. S.) 409; Wilson v. State, PEOPLE V. MURPHY. (Cr. 788.) 130 Ark. 204, 196 S. W. 921; State v. Teahan, 50 Conn. 92; Wakeman v. Chambers, 69 (District Court of Appeal, Third District, CaliIowa, 169, 28 N. W. 498, 58 Am. Rep. 218;

fornia. Sept. 23, 1924.) and State v. Cullins, 53 Kan. 100, 36 Pac. 56, 1. Criminal law Cu 116612(12)— Improper re24 L. R. A. 212. .

marks of trial court during examination of

juror, held not prejudicial error, where eviA number of other authorities might be dence of guilt conclusive. cited, but these are sufficient to support the Improper remarks of trial court during rule governing such cases. The reasoning in examination of juror on voir dire, and his the case of State v. Teahan, supra, is that dismissal of such juror, held not prejudicial followed by most of the authorities cited. It error, where proper jury was obtained, and

evidence of defendant's guilt was direct and is there said:

conclusive. "It is insisted, however, that the statute 2. Criminal law em 117012(5)-Cross-examina.

* which provides that 'every person who tion of defendant not within direct examinashall assist, abet, counsel, cause, hire, or com

tion held not prejudicial error, where it remand another to commit any offense, may be lated to immaterial matters. prosecuted and punished as if he were the prin

Cross-examination of defendant by proscipal offender,' governs this case; it being con- Jecuting attorney, though not within purview of tended that the person who purchases the liq: direct examination, held not prejudicial error, uor, induces the seller to commit the crime of selling it, and so aids and abets him in the where it related to immaterial matters, and

evidence of defendant's guilt was conclusive. commission of the offense.

"But we are satisfied that the purchaser is not an abettor of the offense within the mean

Appeal from Superior Court, Sacramento ing of the statute. The ‘abetting' intended by County; Charles O. Busick, Judge. it is a positive act in aid of the commission of

Jack Murphy was convicted of unlawfully the offense--a force, physical or moral, joined with that of the perpetrator in producing it. selling intoxicating liquors, and he appeals.

Affirmed. This is clear from the context, where abetting is classed with 'assisting,' 'causing,' 'hiring,' Clifford A. Russell, of Sacramento, for apand commanding.' The abettor, within the pellant. meaning of the statute, must stand in the same

U. S. Webb, Atty. Gen., and J. Charles relation to the crime as the criminal-approach Jones, Deputy Atty. Gen., for the People. it from the same direction, touch it at the same point. This is not the case with the purchaser of liquor. His approach to the crime is from

PLUMMER, J. [1] The defendant was the other side; he touches it at wholly another convicted of the unlawful sale of intoxicatpoint. It is somewhat like the case of a man ing liquors, and appeals to this court from who provokes or challenges another to fight the judgment based upon such conviction with him. If the other knocks him down, he and the denial of his motion for a new trial. has induced, but in no proper sense abetted, The principal assignment of error consists this act of violence. He has not contributed in the allegation that the trial court permitany force to its production. He touches the ted such errors during the course of the exoffense wholly on the other side. The purchaser of liquor, by his offer to buy, induces the amination on voir dire of one C. H. Chenoseller of the liquor to make the sale; but he weth, as to preclude the defendant from havcannot be said to assist him in it. The whole ing a fair and impartial trial. During the force, moral or physical, that went to the pro- cross-examination of such juror the followduction of the crime as such, was the seller's." Jing took place:

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“Q. Have you any bias or prejudice against script shows that three witnesses went to the the enforcement of the Prohibition Law, Mr. place of business conducted by the defendant Chenoweth ? A. Yes, sir. “Q. And is your bias or prejudice against the Stockton boulevard some two miles south

called Murphy's Inn, a roadhouse situated on the enforcement of that law such that it would cause you to be unable to act fairly and im- of the city of Sacramento, and purchased partially between the people of the state of two rounds of drinks consisting of whisky California on the one side and this defendant from the defendant. The testimony of the on the other? A. No, sir; I don't think it three witnesses is without equivocation, diwould. As a juror, I would have to consider rect, clear, and convincing. The defendant my oath, and weigh the testimony, and render went upon the witness stand, and in as few a decision accordingly.

words as possible made formal denial. Irre"The Court: Q. But you said, Mr. Chenoweth, that you had a bias against the enforce spective of what the trial court may have ment of the Prohibition Law? A. Not the en

said upon the examination of the proposed forcement-I didn't understand it that way. juror as herein set forth, it is scarcely con

* I misunderstood that question, or I ceivable that the jury would have brought said nothing against the Prohibition Law, and in any other verdict than the one which was I have no bias against the enforcement of any returned. Any other verdict under the testilaw of the country.

mony set out in the transcript would have "Question by Mr. Henderson: Q. You believe been a clear miscarriage of justice. This bein the enforcement, then, of the Prohibition ing the case, the remarks of the court and Law, the same as any law that is upon the statute books, Mr. Chenoweth? A. Yes; I do. the dismissal of the juror Chenoweth from

"Q. But you have a feeling of bias or preju- further service cannot be held to have been dice against prohibition itself? A. I prejudicial to the rights of the defendant, against it; yes, sir."

though it may be admitted that such comFurther questions along the same line and ments ought not to be made by a trial court. then the following:

[2] Upon cross-examination of the defend“Q. Well, you have a right to not like a law; ant, the district attorney was permitted to but when it becomes a law, it is your duty, as a ask a number of questions, the objections to citizen, to believe in the enforcement of the (which should have been sustained as not law. A. I do believe in the enforcement of the being within the purview of direct examinalaw.

"Q: But you answered the question of the tion, but those questions were mainly directdistrict attorney, when he first asked you, that ed to immaterial matters, and, in view of you did not believe in the enforcement of it? the testimony to which we have referred, afA. Well, I got my tongue twisted. I believe ford no ground for reversal herein. Being in the enforcement of this law.

of the opinion that there has been no mis“The Court: You will be excused from jury carriage of justice in this case, irrespective duty. Any man that don't believe in the on-l of the errors committed, the judgment and forcement of the laws of the country is not order of the trial court will be and the same qualified or fit to sit on the jury, and you will

are bereby affirmed. be excused from further duty. You will be excused from further duty.

"Mr. Russell: We desire to note exception We concur: FINCH, P. J.; HART, J. to your honor's ruling as to the juror, your honor.

"The Court: Note your exception.
“Mr. Russell: Cite it as prejudicial error,

"The Court: You don't want any man that don't believe in the enforcement of the laws?

PEOPLE v. BARNETT. (Cr. 774.) The court will not permit anybody to sit on the jury that will get up and say they don't believe (District Court of Appeal, Third District, Calin the enforcement of the laws of this country.

ifornia. Sept. 15, 1924.) "Mr. Russell: We also take exception to your honor's remarks, and assign them as prej- Criminal law Om 1069(5)-Appeal held too late. udicial error, having been made in the presence Where motion was granted January 7 to of the jurors or prospective jurors."

strike two counts of information, and district

attorney's motion to reconsider was denied While the testimony shows clearly that no January 21, appeal by district attorney on latlegal reason existed for the summary dismis- ter date from order striking the two counts and sal of Mr. Chenoweth from further jury du- order refusing to reconsider the first order, ty, and also further shows that while he was held, under Pen. Code, & 1240, to confer no not in favor of prohibition, or, to put it an- jurisdiction on appellate court. other way, of the principle of prohibition, nevertheless he was in favor of the enforce

Appeal from Superior Court, Yolo Counment of the law, and that as a juror he ty; W. A. Anderson, Judge. would do his duty. Nevertheless the tran Chester Barnett was charged with violascript shows that a jury was finally accepted tion of the Wright Act. From an order strikwhich was free from any legal disqualifica- ing two counts of information, the People tions. The testimony set out in the tran-lappeal. Appeal dismissed.

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