ing liquors, was properly excluded, when there was no evidence of such conduct on the part of deceased, nor any offer to prove such conduct.

In bank. Appeal from superior court, Siskiyou county; EDWIN SHEARER, Judge. James F. Farraher, for appellant. G. 4. Johnson, Atty. Gen., and J. S. Beard, Dist. Atty., for the People.

degree, to contradict that of Dr. Robertson, we could not on that ground disturb the verdict of the jury. We think the circumstance of one of the jurors, at some time during the trial, engaging "in a close and earnest conversation with the prosecuting witness" is not of itself sufficient to raise a presumption that the juror was thereby improperly influenced. At the same time we avail ourselves of this occasion to express our disapprobation of such conduct. It is inexcusable. After the witness Robertson had testified as above stat

SHARPSTEIN, J. Appellant was accused, by information of the district attorney of Siskiyou county, of the crime of murder, committed by shooting and mortally wounding one John Pearson. Appellant was founded, defendant's counsel, on cross-examination, guilty of murder in the second degree. Counsel for appellant in his brief says he admits the shooting, "but maintains (1) that in inflicting these wounds he acted in self-defense; (2) that Pearson did not die from the effects of the wounds thus inflicted."

propounded the following question to him: "Suppose that a party had a wound inflicted upon him, and after that wound had been inflicted the party drank excessively of intoxicating liquors, would that have any effect, or would that probably produce blood poisoning?" The verdict of the jury is against appel- To which the district attorney objected, on the lant on both of these propositions, and we ground that it was not cross-examination, cannot disturb it, so long as there is suffi- and was immaterial and irrelevant, because cient evidence to justify it. Aside from the it was an hypothetical question, not based uptestimony of defendant in his own behalf, on the evidence in the case. The court suswe are unable to find any evidence upon tained the objection, and defendant excepted. which to base a defense of justifiable or ex- We think that in the absence of any evidence cusable homicide. He says that he did not that deceased, after receiving the wounds inshoot at deceased until after deceased had flicted on him, drank any intoxicating liquor, shot at him. The other eye-witnesses state or any statement of the counsel who prothat he shot first. That, taken in connec-pounded the question that he expected to tion with the evidence, which shows that de- prove that deceased did drink intoxicating fendant had no reason to apprehend any other or greater wrong than a trespass on his premises, would justify the jury in finding that the shooting by appellant was not done in self-defense. At the time of the shooting deceased was not committing any trespass, but was on a public highway, where he had an undoubted right to be. We think the evidence upon which appellant relies to support his first point tends rather to prove a motive than a defense for the shooting.

liquor after he was wounded, the ruling of the court was not erroneous. We think, however, that the district attorney might safely, and without any nelgect of duty, have withheld his objection. It is seldom, if ever, that an answer to an irrelevant question can prejudice a prosecution. Jurors are not so easily imposed upon or confused by irrelevant evidence as many prosecutors seem to suppose.

Witness Doggett was asked by defendant's Upon the point that Pearson did not die of counsel if he had ever seen the defendant the wounds inflicted upon him by the shoot-working on his claim before that year. The ing, we think the evidence sufficient to support the finding that he did. Dr. Robertson, a witness called by the prosecution, testified that he treated the deceased for a gunshot wound in the arm and hand, on the 20th day of October, 1887, and that he did not see him again until the 30th of the same month, at which latter time he found him in the acute stage of blood poisoning; that he grew gradually worse, and died three or four days afterwards. Witness performed an autopsy on the body, and states the condition and appearance of the lungs, heart, and liver, and continues by stating that in his opinion the cause of death was from the effects of acute blood poisoning, the immediate cause of death being extreme congestion of the lungs, and an insufficient aeration of the blood; and concludes as follows: "It is my opinion that these were caused by blood poisoning resulting from the wounds he received in his arm and hand." Conceding, which we do not, that other medical testimony tended, in some

question was objected to by the district attorney, and the objection sustained by the court, and defendant excepted. The witness then stated that defendant "had a wheelpump there, and had started to sink down," and that "there were cribs out there that he had his wheel on. Defendant's counsel then asked the witness: "How much do you consider the evidence that you saw of mining and expenditure, in the way of labor there, would be worth?" Objected to as incompetent and irrelevant. Objection sustained, and exception. We think the ruling correct. The case, we think, was fairly submitted to the jury by the instructions of the court. We think there is no error in those given, or in refusing to give those requested and refused, for which the judgment and order denying the motion for a new trial should be reversed. Judgment and order affirmed.

We concur: MCFARLAND, J.; PATERSON, J.; THORNTON, J.; WORKS, J.

(3 Cal. Unrep. 117)

Ex parte STERNES. (No. 20,480.) (Supreme Court of California. July 25, 1889.)

HABEAS CORPUS-EVIDEnce,

was found that, on account of the retirement of the

In bank. Habeas corpus.

Charles W. Kitts and A. L. Hart, for titioner. W. D. Long, Dist. Atty., (C. W. Cross, of counsel,) for respondent.

ping, a copy of which is annexed to the return; that after service of the writ of habeas corpus he had discharged the petitioner on Petitioner was arrested on the charge of kidnap- bail; and that subsequent thereto, on Octoping, and examined, and committed by the justice. ber 18, 1888, an information had been filed He applied to the supreme court to be released on by the district attorney of Nevada county, habeas corpus, pending the decision of which an information was filed against him for the same of accusing petitioner of said crime of kidnapfense for which he had been committed. On the ping. The court, sitting in bank, five jushearing of the habeas corpus before the court in tices present, including the late chief justice, bank, (five justices present,) evidence offered to thereupon proceeded with the hearing. It show that the commitment was ordered by the justice on no other evidence than that petitioner had appears from the notes of our official reportarrested a person by virtue of a warrant, and that, er, and statements of members of the court, therefore, the commitment was "without reasona- that counsel for petitioner offered in evible or probable cause," was excluded, (four jus- dence certified copies of the depositions taktices concurring,) on the ground that the filing of the information was conclusive as to probable en at the examination of petitioner by the cause. The case was subsequently submitted on committing magistrate, for the purpose of briefs, but when it was taken up for decision it establishing the ground upon which he chief justice, "the concurrence of four justices claimed that his imprisonment was unlawpresent at the hearing," required by Const. Cal. ful, viz., that he had been "committed on a art. 6, § 2, could not be had, and a rehearing was criminal charge without reasonable or probordered, and the case resubmitted upon the orig-able cause. inal briefs. Held, that the ruling excluding the Pen. Code, § 1487, subd. 7. evidence was a final disposition of the question To the introduction of this testimony reinvolved, and that petitioner must be remanded. spondent's counsel objected upon the ground that the filing of the information by the disthis proceeding as to the existence of reasontrict attorney put an end to all inquiry in able or probable cause for holding the petitioner to answer. Four of the justices presBEATTY, C. J. This is a proceeding upon ent at the hearing, including the late chief habeas corpus. It appears from the petition justice, concurred in sustaining this objecupon which the order for the issuance of the tion. Justice PATERSON did not concur in writ was based that in April, 1888, the peti-the ruling. But under the decision of the tioner, George H. Sternes, was deputy-sheriff four other justices the testimony was excludof Yuba county; that a warrant for the ar- ed. None of these occurrences at the time rest of one Ah Fong, issued by the superior of the hearing have been made matter of court of said county, was placed in his hands record, the minutes of the clerk merely showfor service; and that he executed the writ by ing that the cause was orally argued by arresting Ah Fong in Nevada county, and counsel for petitioner and for respondent, bringing him before the superior court of and submitted upon briefs to be filed. In Yuba county, at Marysville. It is further the printed briefs subsequently filed counsel alleged in the petition that said Ah Fong for petitioner elaborately argue the proposi thereafter procured a warrant to be issued tion that if a person has been held to anby a justice of the peace in Nevada county, swer on a criminal charge, without reasonacommanding the arrest of petitioner on a ble or probable cause, he has an undoubted charge of kidnapping, and that, being ar- right to be discharged upon habeas corpus, rested upon such warrant and taken before and that his right to be so discharged cannot said justice of the peace, petitioner had an be impaired by the subsequent filing of an examination, and upon proof of said arrest information by the district attorney, and of Ah Fong under said warrant issued by more especially where the information is filed the superior court of Yuba county, and the after the issuance and service of the writ of delivery of the body of Ah Fong to said court habeas corpus. Counsel for respondent in in Marysville, and without other proof of the their brief completely ignore the argument commission of any offense, said justice made made on behalf of petitioner, and rest entirean order holding the petitioner to answer up- ly upon the claim that the whole question on said charge of kidnapping, and thereupon was decided and finally disposed of at the committed him to the custody of George Lord, hearing. When, however, after the final sheriff of Nevada county. This petition was submission of the cause, it was taken up for filed September 26, 1888, and on the same decision, it was found that, on account of the day the late chief justice made an order di- retirement of the late chief justice, "the conrecting the issuance of the writ of habeas currence of four justices present at the hearcorpus as prayed, returnable before this ing," which is made by the constitution (arcourt on the 22d day of October following, ticle 6, § 2) essential to a judgment of this and ordered that pending the hearing the pe- court in bank, could not be obtained, and it titioner be admitted to bail. On the 22d of became necessary to set aside the previous October the respondent, Lord, filed his re-order of submission and to direct a rehearturn, showing that the petitioner had been ing. This having been done, counsel have in his custody, and had been confined by him again submitted the case upon the briefs alin the county jail of Nevada county, under ready filed. and by virtue of a commitment for kidnap.

From the foregoing statement it will ap

pear that the condition of the cause is decid-| cause of action set out in the plaintiffs' comedly anomalous. It is an original proceeding plaint," which we shall consider as a demurin this court, and evidence is necessary in rer to the second count of the complaint. support of the allegations of the petition in The demurrer was sustained, and, plaintiffs order to make out the ground upon which | declining to amend, final judgment was given the petitioner claims his discharge. The on- and entered in favor of defendants. From ly evidence offered for that purpose at the this judgment plaintiffs have appealed. hearing was by the ruling of a competent | number of the sitting justices excluded from consideration. This order did not need to be in writing, like the determination of a cause, (Const. art. 6, § 2,) ant seems to have been à final disposition of the question involved. At all events, the case was submitted at the time and has been resubmitted without the evidence upon which alone-conceding the correctness of the proposition so ably argued by his counsel we could order the petitioner's discharge. For this reason, therefore, and without deciding any other question presented by the record, we feel constrained to remand the prisoner. It is so ordered.

The object of the action is to procure rolief from certain alleged fraudulent misappropriations of the funds and property of the corporation defendant the Andes Silver Mining Company by some of its directors. The defendants contend that the complaint is defective in this: That the action should have been brought by the corporation as plaintiff, and not by the present plaintiffs, who are stockholders of the corporation. The general rule undoubtedly is that an action of this character must be brought in the name of the corporation. The recovery, if any, belongs to the corporation, and must go into its coffers. But there are exceptions to this rule. One is where a demand is made on the corTe concur: WORKS, J.; SHARPSTEIN, J.;poration to bring such action, and it refuses PATERSON, J.; Fox, J.

(3 Cal. Unrep. 113)

MOYLE et al. v. LANDERS et al. (No. 11,906.) (Supreme Court of California. July 1, 1889.)

CORPORATIONS-SUITS BY STOCKHOLDERS. 1. A suit to procure relief for the misappropriation of the funds of a corporation is properly brought by the stockholders, without any demand on the directors to bring such suit, where the complaint alleges that the corporation is under the control of the defaulting directors, and that such

demand would be useless.

2. Such a suit is not barred by the statute of limitations where the defaults are said to have occurred between August 1, 1882, and May 1, 1885, and the suit is brought July 1, 1885; Code Civil Proc. Cal. 338, providing that suits for relief on the ground of fraud shall be brought within three years of the discovery of the fraud.

3. Where a general demurrer is filed to a complaint containing two counts, on the ground that the causes of action are barred by the statute of 1.mitations, the demurrer must be overruled, if a good cause of action is stated in either count."

4. An averment that the plaintiffs were owners of the stock of the corporation before suit brought, and ever since 1881, sufficiently alleges ownership of the stock.

to bring it. This demand must be consid-
ered and passed on by the managing authori-
ty of the corporation, which is its board of
directors. But where such a demand would
be useless, as where the peccant directors
still control the affairs of the corporation,
such a demand would be regarded as useless,
We think the
and will not be insisted on.
averments of the complaint show that the
corporation is still under the control of the
alleged defaulting directors, or their tools and
servants, and that it sufficiently appears that
a demand to sue would have been nugatory.
In such a case the law dispenses with a de-
mand, and allows a stockholder to bring the
action to which the corporation, as is here
the case, must be a party.

It is contended, further, that the causes of action set forth in the complaint are barred by the statute of limitations, and that such appears on the face of the complaint to be the case.

The action is brought for relief

on the ground of fraud, in which case the cause of action is not to be deemed to have accrued until the discovery by the aggrieved 5. Such suit may be brought by any one or any party of the facts constituting the fraud. 6. The directors who are charged with having Such is the law of this state fixed by statutory connived in such defaults are proper parties de-enactment. The action, under such circumfendant in such action.

number of stockholders.

Department 2. Appeal from superior court, city and county of San Francisco; T. H. REARDEN, Judge.

Messrs. Moyle and Holling, stockholders in the Andes Silver Mining Company, sued Michael Landers and others, directors of said company, to obtain relief from certain frauds perpetrated by the directors. A demurrer to the complaint was sustained, and plaintiffs appeal.

L. E. Bulkeley, for appellants. H. C. Sieberst, for respondents.

PER CURIAM. The complaint contains two counts. The defendants demurred to the whole complaint, and "to the second alleged

stances, is not barred if the discovery of the facts constituting the fraud has been made within three years before the commencement of the action. Code Civil Proc. §338. Now, it seems to us that the defaults set forth in the second count of the complaint, hereinafter pointed out, were not discovered until within three years before action brought.

The defaults referred to are as follows: An overallowance of $3,850 to Michael Landers on account of expenses of trips to Virginia City, Nev.; the transaction with regard to the purchase of furniture of Burnham, for which it is averred $800 was allowed, of which sum only $346.45 was used in the purchase, and the balance was retained by Michael Landers, while the furniture bought

3. The holder of an invalid tax-deed cannot claim, either in law or equity, that his purchase at the tax-sale vested the state's lien in him.

4. It is no abuse of discretion to impose, as a condition of leave to file a second supplemental answer setting up title under a tax-deed obtained on the day of the trial under a sale made two years previously, the payment of $20, and, if a continuance should become necessary by reason of such answer, the payment of costs.

was taken by said Landers to his private res- | by introducing in evidence the delinquent assessidence, and there used by him from the time ment roll. of the purchase; the misappropriation of funds to pay the assessments on the stock of the directors of the Andes Silver Mining Company: the misappropriation of a portion of the proceeds of the sales of certain shares of the stock of the corporation above named. The above defaults are alleged to have occurred, the first in August and September, 1882, the second on the 1st of August, 1882, the others in December, 1882, August, 1883, and since the 1st of May, 1885. The action is averred to have been commenced on the 1st day of July, 1885. The above defaults are averred to have been committed and discov-county. ered within three years before this date, as will be seen by comparison of the dates above given.

5. Where there is no motion for a new trial, and the appeal is not taken within 60 days after entry of judgment, the question whether the findings were justified by the evidence cannot be aised." Commissioners' decision. In bank. Appeal from superior court, San Luis Obispo

V. A. Gregg, for appellants. S. M. Swinnerton, for respondent.

BELCHER, C. C. Action to quiet title to certain lands in the county of San Luis Obispo. Judgment for plaintiff. Appeal by defendants.

As the demurrer which embraces the first count is a demurrer to the whole complaint, if a good cause of action not barred by the statute of limitations is stated in either count, the demurrer, on the ground above stated, The defendants by their original answer must be overruled; this being in accord- denied plaintiff's ownership of the lands deance with the long-settled rule that where the scribed in the complaint, and by a suppledemurrer is to the whole complaint it is not mental answer they alleged that since the comwell taken, if any count of the complaint is mencement of the action they had acquired legally sufficient. The averinent as to the title thereto in fee. At the trial it was adownership of the stock is sufficient. The mitted that John Q. Greenwood held title to averments are that the plaintiffs, Moyle and all the lands described in the complaint under Holling, were owners of the stock of the patents issued by the United States in 1870. Andes Company above named before the be- The defendants then, in support of the issues ginning of the action, and have been such on their part, introduced in evidence a cerowners ever since some time in the year 1881. tificate of sale for non-payment of taxes made We can see no tenable objection to the join- to them by the tax col.ector of San Luis Obisder of Holling with Moyle as plaintiff. Any po county, under date of March 3, 1884. The one or any number f stockholders may unite certificate recited that the lands were assessed in bringing such action. In our opinion the for the fiscal year ending June 30, 1884, for directors made defendants are properly made state and county taxes, "to J. H. Greenwood, such. They are at any rate proper parties, and all known owners or claimants, and, and, indeed, it is highly proper that they when unknown, to unknown owners or claimshould be made such, as the defaults set forth ants." Defendants next offered in evidence in the second count of the complaint are al- a tax-deed, made to them in pursuance of leged to have occurred with their conniv- the certificate, and dated March 27, 1885. As to the other defaults set forth in The deed purported to convey the lands dethe complaint, and whether or not they are scribed as fully and absolutely as the tax colbarred by the statute of limitations, we think lector could lawfully convey the same, “toit proper to say nothing. We have said gether with all and singular the tenements, enough to warrant us in holding that the hereditaments, and appurtenances thereto becourt below erred in sustaining the demur-longing or in any wise appertaining, of the rer to the complaint, for which reason the said J. H. Greenwood, and all owners and judgment is reversed, and the cause remand-claimants thereof, known and unknown.” ed, with directions to overrule the demurrer to the complaint, and the second count thereof, to permit the defendants to answer, and for further proceedings in accordance with law. So ordered.

ance.

The plaintiff objected to the deed being received in evidence, on the ground that it was void and irrelevant and immaterial. The court sustained the objection, and defendants reserved an exception. We see no error in the ruling. It has been frequently held in this state that an assessment of real property · and claimants, known or unknown," is void, to some person named, "and to all owners and that a certificate or deed reciting such an assessment is also void. Grotefend v. Ultz, 53 Cal. 666; Grimm v. O'Connell, 54 Cal. 522; Daly v. Ah Goon, 64 Cal. 512, 2 Pac. Rep. 401. The recital in the certificate here is in substance the same as that in the cases cited.