*

a copy of the complaint in a civil action, * the court is deemed to have acquired jurisdiction of the parties, and to have control of all the subsequent proceedings." In Pico v. Sunol, 6 Cal. 295, it is said: "Jurisdiction of the person of defendant is acquired by the service of process, and dates from such service, and not from the return." And in Drake v. Duvenick, supra, it is said: "The fact of service was material, and from the time service was made the court was deemed to have acquired jurisdiction. The return of service might be formal or informal, perfect or imperfect. Still, if service were in fact made, the court acquired jurisdiction of the person of the defendant." So, in Estate of Newman, 75 Cal. 220, 16 Pac. 887, it is said: "It is the fact of service which gives the court jurisdiction, not the proof of service." The amended affidavit of service, which the court allowed to be filed, was in all respects in proper form, and showed that the appellant was regularly served with a copy of the summons and complaint. None of the facts stated in the affidavit are controverted; and it must be held, therefore, that from the time of the service the court acquired jurisdiction of the parties to the action.

The question then arises, did the court err in allowing the proof of service to be amended and filed nunc pro tunc as of the date of the judgment? Upon this subject, Mr. Freeman, in his work on Judgments (4th Ed., § 89b), states the law as follows: "If the return upon the summons or other writ designed to give the court jurisdiction over the person of the defendant is omitted, or incorrectly made, but the facts really existed which were required to give the court jurisdiction, the weight of authority at the present time permits the officer to correct or supply his return until it states the truth, though by such correction a judgment apparently void is made valid. Though the proof of the service of process does not consist of the return of an officer, the like rule prevails. Thus, if a summons has been published in the manner required by law, but the proof of publication found in the files of the court is defective, the court may, on the fact of due publication being shown, permit an affidavit to be filed showing the facts, and when so filed it will support the judgment, as if filed before its entry." In opposition to this view, and in support of his theory, appellant cites Reinhart v. Lugo, 86 Cal. 395, 24 Pac. 1089, in which, on page 401, 86 Cal., and page 1089, 24 Pac., it is said: "The default and judgment were void, not because there was no service, but because there was, at the time of entering the same, no proof of service." This language is not in harmony with the weight of authority upon the subject, and in our opinion it does not state the law correctly. The case is reported in the American State Reports (volume 21, p. 52), and, in a note com

menting upon it, it is said: "The court declares, in effect, that it is not the service of process which gives courts jurisdiction, but the proof of such service; that if the proof is defective it is immaterial that the service was perfect; and, the proof being imperfect, there is no way in which the judg ment can be sustained by showing the facts regarding the service of process as they really existed when it was entered. The very reverse of this we apprehend to be the law. It is the fact of service of process which confers jurisdiction, and it is a familiar practice in California, as well as else where, when the proof of such service is absent or defective, to permit it to be amended or supplied." And again: "To support judgments entered upon insufficient proof of service of process, or without the proof of such service appearing in the record, courts have uniformly permitted such proof to be amended or supplied, not for the purpose of authorizing them to enter new judgments based upon such proof, but to show that judgments previously entered were not entered without jurisdiction, and are not, and never were, void;" citing Allison v. Thomas, 72 Cal. 562, 14 Pac. 309, and numerous other cases. We conclude, therefore, in view of the authorities, that the judgment in question was not void, and the court did not err in permitting the amended affidavit of serv ice to be filed.

It is further claimed that the application to file the amended affidavit was without notice, and the order authorizing the filing was therefore erroneous. But, conceding that previous notice of the application should have been given, still we are unable to see that appellant was in any way prejudiced by the failure. He was present in court when the motion was made, and raised no such objection then. On the contrary, he proceeded to argue the question at length, and, when it was decided against him, took a general exception to the ruling. This was in effect a waiver of notice, and appellant cannot now be heard to complain of the action of the court on this ground. We discover no prejudicial error in the record, and therefore advise that the judgment and order appealed from be affirmed.

We concur: SEARLS, C.; TEMPLE, C.

states that it was committed with a human being, as distinguished from an animal.

2. Where defendant has no counsel, it is reversible error for the court to fail to comply with Pen. Code, § 1066, which provides that, before a juror is called, defendant must be informed that if he intends to challenge an individual juror he must do so when the juror appears, and before he is sworn.

Department 2. Appeal from superior

court, Kern county; A. R. Conklin, Judge.

William H. Moore was convicted of the crime against nature, and appeals. Reversed.

Wm. Fitzgerald, for appellant. Atty. Gen. Hart, for the People.

MCFARLAND, J. Appellant was convicted of the crime against nature, and was sentenced to suffer the very severe penalty of imprisonment in the state prison for the term of 41 years. He appeals from the judg

ment.

The appellant had no counsel in the court below. Consequently, there is no statement or bill of exceptions before us, and, of course, no evidence. Afterwards counsel took an appeal for appellant, and is compelled to rely upon the judgment roll, or what is called in section 1207 of the Penal Code a "record of the action." This includes only the indictment or information, a copy of the minutes of the plea or demurrer, a copy of the minutes of the trial, the instructions given or refused, and a copy of the judgment. The offense charged in this case is, in its nature, coarse and detestable; but it is an offense easily charged, and difficult to disprove. It affords great facility for a false accusation made for the purpose of revenge and injury, and usually its proof depends mainly upon the testimony of an accomplice. These considerations, and the very severe penalty imposed, induce us to look closely into the only record which appellant's counsel on the appeal could bring here.

We are disposed to think that the objections to the sufficiency of the information are not good. The averment that the alleged crime was committed "in and upon the person of Carl Kohler" sufficiently states that it was committed with a human being, as distinguished from an animal. We think, also, that the jurisdiction of the case in Kern county sufficiently appears from the face of the information. The crime is alleged to have been committed on a car; and whether or not the information would be good under section 783, Pen. Code, upon the theory that the jurisdiction was in any county through which the car passed in the course of its trip, we think that it sufficiently avers the offense to have been committed in Kern county. Appellant objects to the instructions of the court upon the subject of reasonable doubt; but, considering them all together, they are not erroneous.

We think, however, that under the circumstances of this particular case the judgment

should be reversed for the failure of the court to inform the appellant of his rights, as provided in section 1066 of the Penal Code. That section is as follows: "Before a juror is called the defendant must be informed by the court, or under its direction, that if he intends to challenge an individual

juror he must do so when the juror appears

and before he is sworn." In all the decisions of this court, which have been called to our attention, where this section of the Code was under review, it has been held that a failure to comply with it is error, although, in those decisions, the failure was held not to be prejudicial, because in each case the defendant had been represented by counsel competent to protect his rights, and the right of challenge had been exercised. In People v. Mortier, 58 Cal. 266, the court, speaking of the provision of the Code, say: "The object of this provision of the law is to protect the rights of the defendant in the matter of challenging jurors. He should be informed of the fact that if he desires to challenge any particular juror he must exercise that right before the juror is sworn; but it appears from the record in the case that the defendant's rights in this respect were fully understood by him and his counsel, and the privilege of challenging jurors was exercised to a large extent in the case. It is true that the court omitted a duty imposed by law, but it clearly appears that the defendant was not in any manner prejudiced by the error complained of." In People v. O'Brien, 88 Cal. 489, 26 Pac. 362, the above language was quoted approvingly, the court holding, also, that under the facts in that case the error was not prejudicial. See, also, People v. Ellsworth, 92 Cal. 596, 28 Pac. 604. But the facts in the case at bar are materially different from those in the cases above noticed. Here the appellant had no counsel in the trial court, and did not exercise the right of challenge. There is nothing in the record to show that he was not prejudiced by the failure of the court to give the information required by the statute to be given,-nothing which enables us to avoid the general presumption that error is prejudicial. See People v. Gaines, 52 Cal. 479. The general rule that every one is presumed to know the law cannot be successfully invoked in a criminal case against a statute which provides that the defendant must be specially instructed as to what the law is on a particular point.

The minutes of the court, of the date of May 22, 1893, contained on pages 3, 4, and 5 of the transcript, show what was done at the trial, from the calling of the cause to the return of the verdict,-all occurring on said May 22d. Commencing on page 12 of the transcript, there is some printed matter without date, in which there is a statement that on May 22d there were certain conversations between the court, the counsel for the people, and the defendant, about the

jurors. Following this, on page 14, there is matter which shows that there was a session of the court on December 30, 1893, -more than seven months after the trial, and after the appeal had been taken,-at which certain minutes of the trial were ordered corrected; and, so far as it can be ascertained from the transcript, the said statement, commencing on page 12, was ordered to be made nunc pro tunc at the said session of December 30th. This statement is relied on by respondent as showing that appellant was sufliciently informed of his right to challenge the jurors. While courts have a wide latitude in amending their records, it is extremely doubtful if a court can, in a criminal case, amend minutes which constitute part of a judgment roll after an appeal has been taken, and without notice. To do so would be, at least, the exercise of a very dangerous power. But, assuming that it can be rightfully done, we do not think that the statement in question at all shows a substantial compliance with the requirement of said section 1066 of the Code. The judgment is reversed, and a new trial ordered.

PEOPLE v. MALLON. (No. 21,093.) (Supreme Court of California. Aug. 11, 1894.) CRIMINAL LAW-EVIDENCE-STATEMENTS MADE IN DEFENDANT'S PRESENCE-ASSAULT WITH INTENT TO COMMIT ROBBERY-INSTRUCTION- HARMLESS ERROR.

1. It is not error to admit evidence of statements made by a person indicted with the defendant on trial, and who has pleaded guilty, in the presence of defendant, where it shows what the conduct of defendant was at the time, and that he did not deny the statements. People v. Ah Yute, 54 Cal. 89, distinguished.

2. On the trial for assault with intent to commit robbery, a charge that if "you have no doubt he aided and participated in the assault, and have a reasonable doubt as to the intent of the assault, you must give him the benefit of that doubt, and in that case you must find him guilty of simple assault," did not assume any fact.

Department 2. Appeal from superior court, city and county of San Francisco; W. R. Daingerfield, Judge.

Joseph Mallon was convicted of an assault with intent to commit robbery, and he appeals from the judgment and from an order denying his motion for a new trial. Affirmed. Agustus Tilden, for appellant. Atty. Gen. Hart, for the People.

MCFARLAND, J. The appellant Mallon was charged, jointly with one Foran, with assault, with intent to commit robbery, upon the person of one John Tieck, and was convicted as charged. He appeals from the judgment and from an order denying his motion for a new trial. Only two points are urged

for a reversal: (1) That the court erred in admitting certain testimony of Crockett and Donovan, witnesses for the prosecution; and (2) that the court erred in giving a certain instruction, which, it is contended, assumed that an assault had been committed.

It is doubtful if the record shows any sufficient objection to that part of the testimony of Crockett and Donovan which is claimed to be inadmissible; but, assuming that it does, we do not think that there was error in admitting said testimony. These witnesses were allowed to testify, among other things, to certain statements made by the said Foran (who had pleaded guilty) in the presence of appellant; and it is this part of their testimony that is claimed by appellant to have been improperly admitted. This testimony, standing by itself, and without any connection with the conduct of appellant when the alleged statements were made, would no doubt have been clearly hearsay and inadmissible. But it is established law that while a statement made in the presence of the accused is not admissible as being itself evidence of any fact narrated in such statement, it is admissible, primarily, for the purpose of showing that the accused acquiesced in the statement, either by express assent or by silence, or by such conduct as fairly implied assent. People v. McCrea, 32 Cal. 98; People v. Estrado, 49 Cal. 171. Such testimony should, no doubt, be received guardedly. If not followed by any proof of the conduct of the accused, it should be stricken out; and, if requested by the defendant's counsel (which was not done in the case at bar), the court should instruct the jury that such statement was limited as evidence to the purpose above indicated. But it is not error to admit such statements in the first instance. In the case at bar, we think that it clearly appears what the conduct of defendant was when Foran was making his statements, and that he did not deny them. During the testimony of Crockett as to said statements, and after an objection had been made by defendant's counsel, the court said, "I assume that what the defendant at bar said and did in the course of that conversation will come out;" and the court then asked the witness, "What did the defendant here on trial,-what did he say?" to which the witness responded, "He didn't say anything when he told him that." And the witness afterwards said: "We were all together in one group. The defendant Mallon said nothing." The witness Donovan, after testifying to certain statements made by Foran to defendant, said that "He didn't answer at all," and, further, that when the witness asked the defendant, "You were there?" he replied, "Do you suppose I was a damn fool, to tell you I was there?" The case at bar, therefore, is not within the principle of People v. Ah Yute, 54 Cal. 89, invoked by appellant. In that case Mr. Justice Ross, delivering the opinion of the court,

said that certain statements made in the presence of the defendant were hearsay and inadmissible because they stood "without any proof whatever as to the conduct by the defendant in reference to those accusations," and distinguished the case from People v. McCrea and People v. Estrado, which were approved. As, therefore, the rulings of the court below are not erroneous upon the ground taken by appellant, it is not necessary to inquire whether or not the said statements of Foran were admissible upon the ground of a proven conspiracy between the latter and the appellant to commit the crime charged.

2. The instruction complained of is as follows: "In case you have no doubt he aided and participated in the assault, and have a reasonable doubt as to the intent of the assault, you must give him the benefit of that doubt, and in that case you must | find him guilty of simple assault." We do not see that this instruction assumes any fact. It is contended that it assumes that there was an assault committed, but if that be conceded it could in no way have prejudiced appellant. It was clearly shown, and undisputed, that an assault was committed on Tieck by Foran, with whom appellant entered Tieck's store, and that it was committed in the presence of appellant. Appellant testified to that himself. Judgment and order appealed from affirmed.

A minority stockholder in a bank, in certain actions on behalf of himself and other stockholders against C., the majority stockholder, the bank, and other defendants, recovered judgments against C. "to and for the use of'' the bank, and "to be paid to" the bank "for its use and benefit," together with "his costs and disbursements herein taxed," at sums stated. Held, that the trial court could not, after such judgments were affirmed on appeal, on plaintiff's petition, order the clerk to pay plaintiff his attorneys' fees in such cases out of the money paid to the clerk on the judgments.

Department 2. Appeal from superior court, San Luis Obispo county; V. A. Gregg, Judge.

Two actions by A. G. Wickersham against James L. Crittenden, the Bank of San Luis Obispo, and others, in which there were judgments against defendant Crittenden for the use of defendant bank. From an order requiring the clerk to pay plaintiff $1,000, as attorneys' fees, out of money paid to the clerk on such judgments, defendants appeal. Reversed.

Graves & Graves and James L. Crittenden Henry S. Foote, of counsel), for appellants. v.37P.no.10-33

Lippitt & Lippitt and Wilcoxon & Bouldin, for respondent.

MCFARLAND, J. This is an appeal by the appellants, Crittenden and the Bank of San Luis Obispo, from an order of the superior court directing its clerk to pay certain moneys to the respondent, Wickersham, for attorneys' fees alleged to have been paid out by him to his attorneys in certain actions. Wickersham and Crittenden were stockholders in the Bank of San Luis Obispo, a corporation; Crittenden owning a fraction over one-half of the capital stock of the bank, and Wickersham owning about two-thirds of the other half. They disagreed about the business and management of the bank, and Wickersham brought two actions against Crittenden, the bank, and certain other defendants. He alleged in his complaint in each action that he brought it for himself and stockholders other than the defendants. In one of the actions he recovered judgment, "to and for the use of the Bank of San Luis Obispo," against Crittenden, for $548.19, together with "his costs and disbursements herein, taxed at the sum of $111.30." In the other action he recovered judgment against Crittenden for $2,716.78, "to be paid to the defendant the Bank of San Luis Obispo, for its use and benefit," and "his costs herein, taxed at the sum of $69.40." In each case an appeal was taken to this court, and the judgment was affirmed. When the remittiturs went down to the superior court, Crittenden paid the amounts of the judgments "into court" for the satisfaction of the judgments; by which is meant, we suppose, that he paid the money to the clerk of the court. Afterwards, Wickersham filed a petition in the court, in which he stated that the moneys recovered on said judgments were for the benefit of the said bank and all its stockholders, and not for himself alone, and that he had paid out to his attorneys in said actions certain amounts of money; and he prayed for an order that he be paid the amount of the attorneys' fees out of the said money paid in by Crittenden, which, it seems, was still in the hands of the clerk. The bank and Crittenden appeared and demurred to the petition; but, after a hearing and the introduction of evidence, the court made an order that the clerk pay to Wickersham $1,000 as attorneys' fees in said two actions, and that he pay the balance of said money to said bank. It is not necessary to determine here whether or not in said two actions, which were practically between the main stockholders of a corporation contending for the control of its management and business, the prevailing party was entitled to recover attorney fees in addition to statutory costs and disbursements. The judgments as rendered in the superior court were affirmed in this court, and were, of course, final judgments, and they did not include attorneys' fees.

They directed the moneys recovered, together with the stated costs, to be paid to the bank; and the superior court could not, upon petition or motion, change or modify these final judgments by ordering the moneys recovered to be disposed of in any way other than provided in the judgments themselves. If respondent has any legal claim against the bank for money advanced to attorneys for conducting said actions, he must prosecute that claim by an ordinary civil action against the bank; but he cannot, upon motion, have a final judgment substantially opened and changed so as to include his claim. The cases cited by respondent (Alemany v. Wensinger, 40 Cal. 294; In re Paschal, 10 Wall. 493; and Trustees v. Greenough, 105 U. S. 527) are not in point. Those cases merely declare the principle that in a proper case a trustee may be allowed, out of the trust fund, attorneys' fees expended in the necessary preservation or management of the fund; but there was no point made in them as to the method or procedure by which the allowance could be obtained, and in neither of them was an order like the one in the case at bar involved, made after a final judgment had been affirmed by the appellate court, and when there was no continuous administration of a trust. In those cases the order was made during the pendency of the litigation, and became part of the final judgment. from is reversed.

We concur:

VEN, J.

(103 Cal. 497)

The order appealed

FITZGERALD, J.; DE HA

Ex parte THOMAS. (No. 21,157.) (Supreme Court of California. Aug. 4, 1894.) ADULTERY-WHAT CONSTITUTES.

Mere adultery, without open and notorious cohabitation, is not a criminal offense in California (St. 1871-72, p. 380), and a conviction thereof is void.

In bank.

Petition by one Thomas for a writ of habeas corpus, for the purpose of obtaining his discharge from the custody of the sheriff of San Francisco county, Cal., to which he was committed on being convicted of adultery. Writ granted, and petitioner discharged.

Geo. W. Monteith, for petitioner. W. S. Barnes, for respondent.

PER CURIAM. The return to the writ of habeas corpus issued herein shows that the petitioner was convicted in the police court of the city and county of San Francisco of the crime of adultery, and thereupon sentenced to be imprisoned in the county jail for one year, and that he is now held in custody under commitment based upon said Judgment. The judgment is void. Adultery

is not made a crime by any statute of California. It is the living together in open and notorious cohabitation and adultery that is made criminal by the statute (St. 1871-72, p. 380), and it has been rightly held that mere adultery, without the notorious cohabitation, does not constitute the offense (People v. Gates, 46 Cal. 53). The judgment being void, the imprisonment is necessarily unlawful, and the prisoner must be discharged. It is so ordered.

(103 Cal. 506)

1

QUINT v. HOFFMAN et al. (No. 18,306.) 1 (Supreme Court of California. Aug. 8, 1894.) IRRIGATION DISTRICT COLLATERAL ATTACK-EXCESSIVE LEVY OF ASSESSMENTS VALIDITY-INJUNCTION AGAINST COLLECTION-WHEN Refused. 1. The organization of an irrigation district cannot be coilaterally attacked in an action by landowners to enjoin the collection of assessments by the officers of the district.

2. Under the Wright act (section 22), which provides that the board of directors of an irrigation district shall levy an assessment "sufficient to raise the annual interest on the outstanding bonds" of the district, such board has no power to levy an assessment in excess of such an amount.

3. A landowner cannot enjoin the collection of an excessive levy of assessments by the board of directors of an irrigation district until he has paid the amount the board had the power to levy.

Department 1. Appeal from superior court, Glenn county; Seth Wellington, Judge.

Action by Herman Quint against George W. Hoffman and others, claiming to act as directors of the Central irrigation district, P. H. Graham, claiming to act as collector of such district, and others, to enjoin defendant Graham from selling lands for assessments levied in the year 1892. From an order dissolving a temporary injunction, plaintiff appeals. Affirmed.

Geo. H. Maxwell, Maxwell & McEnerney, R. A. Long, G. D. Dudley, and Maxwell, Dorsey & Soto, for appellant. Johnson & Johnson and R. Percy Wright, for respond

ents.

GAROUTTE, J. This is an action commenced by the plaintiff to enjoin the defendant P. H. Graham, as collector of Central irrigation district, from selling any lands of the plaintiff, and of others similarly situated, for assessments levied in the year 1892. A temporary injunction was issued upon the filing of the complaint, which was subsequently dissolved upon the ground that the facts stated therein were not sufficient to entitle the plaintiff to the relief demanded, and thereupon this appeal was taken from such order of dissolution. The only question presented by this appeal is, does the complaint state sufficient facts to entitle the plaintiff to a perpetual injunction?

1. The organization of the Central irrigation district is assailed, and it is insisted that the validity of that organization may