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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, §§ 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. Harriman v. Church, 63 Ga. 186, 36 Am. Rep. 117. Section 602 of the Civil Code provides, in part:

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"Whenever the rules, regulations, or discipline of any religious denomination, society, or church so require, for the administration of the temporalities thereof, and the management of the estate and property thereof, it shall be lawful for the bishop * *to become a sole corporation, in the manner prescribed in this title, as nearly as may be, and with all the powers and duties, and for the uses and purposes in this title provided for religious incorporations. Every corporation sole shall, however, for the purposes of the trust, have power to contract in the same manner and to the same extent as a natural person, and may sue and be sued, and shall have authority * ** to buy * and in every way deal in real and personal property in the game manner that a natural person may .*

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Such powers are entirely distinct from the spiritual side of the church, and in order that a religious society be recognized by law it must be shown that it is capable of making contracts, accepting benefits, and of suing and being sued. Baxter v. McDonnell, 155 N. Y. 83, 49 N. E. 667, 40 L. R. A. 670. The record shows that the Commission instituted proceedings against petitioner as a corporation sole, and that he did not deny such capacity, and it is therefore an established fact in the case. Fletcher, Private Corporations, vol. 11, 580. The existence of a corporation sole being shown, the courts take judicial notice that the office has civil rights and duties, but courts do not take judicial notice of the nature and scope of such civil rights and duties. Baxter v. McDonnell, supra; 15 R. C. L. 1126, 1127. What the nature of the civil rights and duties is was not alleged and has not been established by proof. This it was necessary to do. In the above case it was held that judicial notice could not be taken of the civil rights and duties, although they were alleged and proved, because the capacity as a corporation sole had not been alleged.

no knowledge of the repairs until after the rehearing was granted by the Commission. It is to be gathered from the arguments of petitioner's counsel it could have been shown it was no part of his temporal duties to directly or indirectly manage or repair the church buildings in his diocese; that this duty was delegated to the parish priest in each particular parish; and that he was in no way responsible for such repairs. It was stated that, if an award be made against petitioner, it will be assessed back against the parish and by it paid. But such contentions and statements of fact cannot take the place of allegation and proof. It is conceivable that, if these matters had been presented, the Commission would have held the pastor liable. In reply to a question by the court counsel for respondents offered to stipulate as to matters of evidence, but the offer was not acted upon. It was stated in the oral argument on behalf of petitioner: "If anybody is holden, the Archbishop will consent an award may be made against him."

Petitioner having failed to allege and prove that his civil rights and duties as a corporation sole do not include the repairs in question, the award must be affirmed.

In deciding that petitioner failed to show that the service did not come within the act, it is not to be assumed we have reached a conclusion on the question whether a church building is a "business, business premises, or business property," or whether the repair thereof tends "toward the preservation, maintenance, or operation of the business, business premises, or business property" of petitioner, or whether it is an undertaking actually engaged in with some degree of regularity. The award is affirmed solely on the ground that petitioner has not, in contemplation of section 19 (d), shown that the service rendered by applicant is excluded from the operation of the act.

The suggestion has been made that, if the

Legislature intended by the amendment of 1917 to include church repairs in the term "business, business premises, or business property," it would have so expressly provided. This may be so, and it is apparent of the act would be attended with less diffithat, if this had been done, the construction culty. However, this is a matter for the de

[9] It having been shown that the applicant was not an independent contractor, the only evidence petitioner can rely on to prove that the services of the applicant are excluded by the act is that given by the pastor that petitioner is a corporation sole, holding the legal title to the chapel, the management and control of which is committed to the pastor, who acts under the appointment We concur: LENNON, J.; RICHARDS,

termination of the Legislature. The award is affirmed.

(230 P.)

PEOPLE v. CASADE. (Cr. 2667.)

SHENK, J. The defendant was accused 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 rec

Rehearing Denied Nov. 20, 1924.)

1. Homicide 311-Instruction as to jury's discretion in determining punishment of first degree murder not erroneous.

Instruction as to jury's discretion, under Pen. Code, § 190, in fixing punishment for first degree murder, to the effect that it is not arbitrary, but to be employed only when the jury finds there is some extenuating fact or circumstance, and is satisfied that the lighter penalty should be imposed, held not erroneous. 2. Homicide 296 - Instruction as to killing while deceased was attempting to prevent performance of unlawful act held applicable

to evidence.

Instruction on prosecution for killing an officer who was taking defendant to police station, predicated on deceased being killed while he was attempting in a lawful manner to prevent performance of an unlawful act in which defendant was engaged, held applicable to facts in evidence.

3. Homicide 300 (7)-Refusal of instruction as to authority to arrest held not error. Where the killing was after arrest of defendant by deceased, an officer, and while they were walking to the police station, refusal of instruction as to authority to arrest without a warrant, for a misdemeanor not committed in the officer's presence, and as to right to resist an unlawful arrest, held not error.

4. Criminal law 829(1)—Refusal of instruction covered by others given not error.

It is not error to refuse an instruction fully covered by others given.

5. Homicide 250 Evidence held to Justify conviction of murder.

ommendation he was sentenced to suffer the extreme penalty. He appeals from the judgment of conviction and from the order denying his motion for a new trial.

On the 29th day of November, 1923, at about 4 o'clock in the afternoon, the defendant became engaged in an altercation with a 13 year old Mexican boy in or near the city of San Fernando. In the course of the dispute the defendant threatened to hit the boy. The boy's sister-in-law overheard the threat and called the police by telephone. About 10 minutes later the deceased, Oscar Longfellow, a police officer, answered the call. On the arrival of the officer, the defendant was standing in the middle of the street in front of the house where the boy was living. The officer approached the defendant and ordered him to go with him to the police station. The two were walking side by side until they reached a point on the sidewalk in the business portion of the city immediately in front of a jewelry store. At that point the defendant stepped back and behind the officer, drew a revolver, which he had concealed upon his person, and fired three times. Two of the shots, one of which was fatal, entered the body of the officer, and the third pierced the rim of the defendant's hat. The defendant dropped the gun and ran across the street, where he was captured by bystanders and taken to the city jail.

[1] On his motion for a new trial the defendant contended and on this appeal urges the jury on the matter of recommendation of that the court gave improper instructions to punishment, and that the court erroneously refused other instructions requested by the defendant. The principal instruction com6. Homicide 332 (3)-Jury's failure to rec-plained of and which was given is as folommend lighter punishment for first degree murder not reviewable.

Evidence held to justify verdict of guilty of murder.

The evidence warranting the verdict of first degree murder, jury's failure to recommend the lighter punishment, under Pen. Code, § 190, is not reviewable, notwithstanding conflicting eviIdence of defendant's intoxication; the effect on their verdict of any intoxication of defendant being for the jury to determine under section 22.

In Bank.

lows:

"If the jury in this case should find the defendant guilty of murder in the first degree. and they also shall find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such sentence as will relieve the defendant from the extreme penalty of the law. The penal code invests a jury in a criminal case for murder with the discretion, but the discretion is not an arbitrary one, and is limited to determining which of the two punish

Appeal from Superior Court, Los Angeles ments shall be inflicted, and is to be employed County; Sidney N. Reeve, Judge.

Francisco Casade was convicted of murder, denied a new trial, and appeals. Af firmed.

Mrs. Catherine McKenna and J. Irving McKenna, both of Los Angeles, for appellant.

U. S. Webb, Atty. Gen., John W. Maltman, Deputy Atty. Gen., and John L. Flynn, of Los Angeles, for the People.

only when the jury is satisfied that the lighter shows the defendant to be guilty of murder penalty should be imposed. If the evidence in the first degree, but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of murder in the first degree and leave with the law the responsibility of affixing the punishment."

It is contended that this instruction is prejudicially erroneous as an attempt on

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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 reads:

"Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same.

It is urged that the instruction unduly and prejudicially affected the discretion to determine the penalty which said, section has exclusively reposed in the jury. But by a long line of decisions in this state it has been held that the giving of said instruction is not erroneous. In the early case of People v. Jones, 63 Cal. 168, it was held that the discretion vested in the jury by said section 190 was not an arbitrary one. The instruction complained of was taken word for word from People v. Brick, 68 Cal. 190, 8 P. 858, where it was held that the giving of the instruction was not error. This instruction was again under attack in People v. Olsen, 80 Cal. 122, 22 P. 125, and the same conclusion reached. Substantially the same instruction was under review in People v. Bawden, 90 Cal. 195, 27 P. 204, and this court following the earlier decisions declined to reopen the question. In People v. Rogers, 163 Cal. 476, 126 P. 143, alleged error was predicated on the giving of this instruction which is again set forth word for word on page 483 (126 P. 146), and the court, referring to the earlier cases, said: "The law of this state thus appears to be thoroughly settled to the effect that the struction in question is not erroneous."

In the case of State v. Thorne, 39 Utah, 208, 117 P. 58, also earnestly relied upon by the defendant, it was held that by the instruction there given the court undertook to guide and direct the jury in the determination and exercise of its discretion in fixing the penalty. That instruction may not be said to be the same either in substance or effect as the one here complained of. As pointed out by the court the particular vice of that instruction was that it directed the jury that it was its duty to consider the question of the penalty "in the same manner" as any other question submitted to it, taking into consideration the objects and purposes of the criminal law. The phrase, "in the same manner," was held to include a consideration of "the issues, the burden, degree, and quantum of proof, the effect and weight of the evidence, the requirement that the facts found must be established and justified by evidence, or the party having this burden must lose if he has not sustained it by the degree and quantum of proof required by law, etc." No such elements are involved in the instruction here complained of.

[2] The defendant further complains of the following which was embodied in an instruction given at the request of the prosecution:

"If the accused was engaged in the performance of an unlawful act, and if the deceased

attempted in a lawful manner to prevent the in-performance of such unlawful act, and if, while 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 unlawful design, so interfered with by said deceased, attacked the latter with a deadly weapon, intending to kill said deceased, and did, into execution, the fact that defendant was in under such circumstances, carry such intention a passion would not mitigate or excuse such homicide, but the crime committed would in such case be murder in the first degree. It is not less murder because the act is done suddenly after the intent to commit the homicide is formed. It is sufficient that the malicious intention preceded and accompanied the act of homicide."

It was likewise held not to be erroneous in People v. Harris, 169 Cal. 53, 145 P. 520, in People v. Miller, 177 Cal. 404, 170 P. 817, in People v. Wolfgang (Cal. Sup.) 221 P. 907, and in People v. Reid (Cal. Sup.) 225 P. 859. Further consideration of the contention would seem to be foreclosed.

It is contended that there was no evidence in the case as to which this instruction could be applicable. The portion objected to is but

The cases of People v. Leary, 105 Cal. 486, 39 P. 24; People v. Kamaunu, 110 Cal. 609. 42 P. 1090, and People v. Ross, 134 Cal. 256, 66 P. 229, do not support the defendant's contention. In the Leary Case it was not contended that the facts were not sufficient to justify the jury in finding the defendant guilty of murder in the first degree, but it was contended that the facts were not suffi-a part of an instruction covering over seven cient to warrant the jury in returning a verdict carrying the death penalty, and it was held that when the jury had exercised the discretion vested in it by the code section no power was reserved to the court to review its action in that respect. The same conclusion was reached in People v. Ellis, 188 Cal. 682, 206 P. 753. In the Kamaunu Case and in the Ross Case the court refused instructions proffered by the defendant tending to instruct the jury as to how it should exercise its dis

pages in the transcript, wherein the court at length expounded the law with reference to murder in the first degree, murder in the second degree, and manslaughter, and there was substantial basis in fact for including it as a part of the charge. The evidence showed that, when the defendant stepped behind the officer, the latter turned in the defendant's direction, exclaimed, "Hey!" and grappled him, obviously in an attempt to prevent the defendant from committing a felonious

(230 P.)

Penal Code, or to prevent the defendant from, witness testified that he saw the struggle, committing murder. The defendant there fore was engaged in an unlawful act, to wit, a felony, and the deceased was attempting in a lawful manner to prevent the performance thereof. The instruction was therefore applicable to the facts.

[3] Prejudicial error is asserted because of the refusal of the court to instruct the jury that an officer has no authority to make an arrest for a misdemeanor without a warrant, unless the offense be committed in his presence; that the defendant has the right to resist an unlawful arrest; and that an arrest made by an officer for a misdemeanor not committed in his presence is an illegal arrest. There was no error in refusing these instructions. Assuming that the arrest in its , inception was without justification in that the defendant's threat to harm the boy was not made in the officer's presence, it would not follow that the defendant would be justified in murdering the officer in an attempt to release himself from such custody. In the light of subsequent events the authority of the officer to make the arrest in the first instance became an immaterial question. People v. Wolfgang, supra.

[4] The defendant offered an instruction on the subject of manslaughter, embodying therein the statement that the jury could take into consideration the state of mind of the accused, as to intoxication and his capacity to act maliciously. The court refused the instruction as having been covered by other instructions given. The refusal is claimed as error. Other instructions which were given fully covered the subject of manslaughter and the consideration which the jury could give to voluntary intoxication as bearing on the purpose, motive, or intent of the defendant and in determining the degree of the crime. The court was not required to state the law to the jury more than once. People v. Feld, 149 Cal. 464, 86 P. 1100, 8 Cal. Jur. 314, and cases cited.

saw the defendant drop the gun, and run across the street. Still another witness tes tified that after the shooting the defendant came toward him, that he captured the defendant, and that the defendant immediately said to him, "Somebody shoot me." The chief of police testified that, when the defendant was brought to the jail, he asked him where he kept the gun, and the defendant said, "Right here;" that he then opened the defendant's clothing and found the imprint of the gun on the defendant's body; that he asked the defendant about the shooting, but the latter refused to talk about it. In his dying declaration the deceased said that the defendant shot him twice. He further stated:

"I had arrested him. I was walking down Porter avenue in front of Hillenbrand's jewelry shop. Casade jumped behind me, and began shooting. I turned and grabbed him and took the gun away from him. I tried to shoot, but I was getting too weak. I did not shoot. yelled at a bunch of men across the street to get him."

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It is suggested by counsel for the defendant that it was highly improbable that the defendant could have done the shooting, for the reason that one of the bullets passed through the rim in the rear portion of the defendant's hat, but this circumstance is explained in the testimony of the chief of police who stated without objection that the deceased said that at the beginning of the struggle he forced the defendant's hand upward in an endeavor to disarm him, and that the first shot went through the rim of the defendant's hat. There was no evidence to the contrary. The defendant did not take the stand, and the testimony in his behalf was confined to three character witnesses.

[6] It is asserted by defendant's counsel that the defendant was intoxicated at the time of the shooting; that the evidence is 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

satisfied that there is sufficient evidence to justify a verdict of murder of the first degree, its inquiry on that point is ended." People v. Ellis, supra. The evidence was sufficient to justify the verdict herein, and, as we find no error in the record, the judgment and order are affirmed.

We concur: MYERS, C. J.; SEAWELL, J.; LAWLOR, J.; WASTE, J.; LENNON, J.; RICHARDS, J.

MARDORF et ux. v. PENNIMAN.
(Civ. 4946.)

(District Court of Appeal, First District, Di-
vision 2, California. Sept. 18, 1924.)
Municipal corporations 706(5)-Pedestrian
struck by automobile which she saw, held not
shown to have been negligent.

Findings that pedestrian who proceeded to cross street after seeing defendant's automobile a block away, and was thereafter struck by his car when a few feet from curb, was not negligent, and that proximate cause of accident was heedlessness of defendant, held warranted.

through and solely because of the carelessness, wantonness, negligence, and recklessness of the defendant * * * in the operation of said automobile; that none of the injuries or damages that the plaintiff Fannie Mardorf sustained were occasioned solely or at all * * through the negligence of the plaintiff."

It is the appellant's contention that these findings are not sustained by the evidence. 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 highway, and was approaching the intersection of said highway with Broadway, at a speed variously estimated at "less than 20 miles an hour" and 25 miles an hour or more. It was already dark and the highway was crowded with automobiles and pedestrians and a number of persons who had just come in on a train. Plaintiff attempted to cross the highway from the southeast to the northwest corner, at the usual crossing for pedestrians, and within the lines marking out the safety zone. had reached a point close to the curbing on the northwesterly corner (estimated at three

When she

Appeal from Superior Court, San Mateo to eight feet therefrom), she was struck by County; George H. Buck, Judge.

Action by William Mardorf and wife against L. E. Penniman. Judgment for plaintiffs, and defendant appeals. Affirmed. Chas. W. Haswell, of San Francisco, for appellant.

Franklin Swart, of Redwood City, and Wm. T. Sweigert, of San Francisco, for respondents.

LANGDON, P. J. This is an appeal by the defendant from a judgment against him for $1,000 in an action brought to recover damages for personal injuries alleged to have been suffered by the plaintiff Fannie Mardorf, by reason of the negligence of the defendant in operating an automobile upon the public highway in the city of Burlingame,, Cal. The plaintiffs are husband and wife. The answer denied negligence on the part of the defendant, and alleged that the injuries were caused by the negligence of the plaintiff Fannie Mardorf.

the right front wheel of defendant's automobile and thrown partly upon the sidewalk. Her ankle and nose were broken, her thumb was severely injured, ribs were fractured, and she sustained various bruises and minor

injuries, confining her to her bed and to a

wheeled chair for several months.

[1] It is contended that even though it be conceded that the lights upon the automobile were dim, that fact does not affect the liability of the defendant, as the plaintiff testified that when. she started across the highway, she saw the lights of defendant's automobile over a block away coming toward her upon the highway. It is true that so far as giving warning to plaintiff is concerned, it is immaterial whether the lights were bright or dim, since she actually did see them. But the finding is material in connection with the testimony of the defendant that he did not see the plaintiff until he was but the length of his automobile from her. As she was crossing the highway, according to her testimony, from the time defendant was a block away from her, it would seem that proper lights upon the automobile would have made defendant aware of her presence upon the highway and her uninterrupted movement across the same before he was so close to her as to make the accident inevitable.

The case was submitted to the court without a jury, and it was found that at the time and place of the accident, the defendant was operating his automobile "in a careless, negligent, wanton, and reckless manner, and at an unlawful rate of speed, and without sounding a warning signal, and with very 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 * * was 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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