And the same court in the case of Smith v. Flournoy, 47 Ala., 360, says: "The application in the case avers all the facts required by the code and the description of the land, if not perfectly accurate, is accurate as far as it goes. It would be sufficient in a deed and in a will. Such a description is sufficient to bring the subject within the jurisdiction of the court. * * It entitled the court to proceed. This was all that was needed to give validity to its judgment:" Commissioners v. Crawford, 3 Wall, 396.

* * *

*

So in Alexander v. Knox, 6 Sawyer, 54, which was an action of ejectment, by one who derived title from a purchaser at a foreclosure sale, to recover possession of a half-section of land known as claim number seventy, lying in sections thirty-five and thirty-six, in township twenty south, or range three west, of the Wallamet meridian. The degree of foreclosure described the land as "claim number seventy, in T. twenty S., R. three W., of the Wallamet meridian.” The court, by the aid of extrinsic evidence in taking judicial notice of public surveys under an act of congrees, held that the description was just as certain as a description by reference to the sections in the township and range: See, also, Wright's Heirs v. Ware, supra. In Crosby v. Dowd, this court held that a description of mortgage premises was absolutely void; but in this case I think the description of the land in the petition and order of sale was sufficient to sustain the sale when collaterally attacked.

No. 20,002.

PEOPLE v. CUNNINGHAM.

Department Two. Filed November 25, 1884.

LARCENY EVIDENCE OF SIMILAR OFFENSE NOT ADMISSIBLE.-On a trial for larceny, evidence tending to show that the defendant had in his possession property taken by other thefts at the same time is inadmissible.

SHORT-HAND REPORTER'S NOTES OF TESTIMONY TAKEN ON PRELIMINARY EXAMINATION.-On such trial the reporter's notes in short-hand of the testimony of a witness taken on the preliminary examination of the defendant are not admissible, although the witness may have died before the trial, and the correctness of such notes are proved by the reporter.

APPEAL from a judgment of the superior court of Santa Clara county, entered upon a verdict convicting the defendant of larceny, and from an order denying him a new trial. The opinion states the facts.

T. H. Laine, for the appellant.
Attorney-General, for the respondent.

THORNTON, J. The defendant was accused, tried and convicted of the crime of grand larceny in stealing on the eighteenth of May, 1883, five head of cattle, the property of one John Trimble.

It is urged that several errors were committed on the trial, on account of which the conviction ought not to be permitted to stand.

1. When the defendant was arrested there was found in his possession a steer belonging to Charles Wade, which was not referred to in the information.

In relation to this steer the following occurred on the trial: Charles Wade was called as a witness in rebuttal for the people, and testified that on the twentieth or twenty-first of May, 1883, he got from Trimble's pasture a red and white steer.

The district attorney, at the instance of the court, stated his reasons for offering the testimony which he was about to introduce, as follows:

"The defense in this case is that the defendant purchased the cattle which have Mr. Trimble's brand from the man who had charge of them, Carmel. This testimony is offered as tending to show that the story is improbable, because he took not only the cattle which had Mr. Trimble's brand, but another animal which did not belong to Mr. Trimble whose brand the defendant from his own testimony, is well acquainted with, and that of another owner at the same time. I understand that the taking of different articles at the same time is always admissible as tending to show the intent with which the animals were taken."

The defendant objected:

"First-If this testimony is offered for the purpose indicated, it was a part of the state's original case, and should have been then offered, and not in rebuttal. It rebuts nothing offered by us.

"Second-It is not within the charge. The defendant is not charged with taking any but the Trimble cattle. It is, therefore, incompetent and inadmissible."

These objections were overruled by the court, and an exception was reserved.

The witness Wade then proceeded to testify as follows:

"This red steer was mine, branded with my brand, and had my ear-marks. I never sold that steer nor authorized any one else to sell him. He was sent out there in that range the first of March, 1883, and I saw him between Dougherty's and Carmel's about the first of May; was between the fifteenth of April and the first of May." The court, in its directions to the jury, stated the reasons which induced it to admit the testimony as follows:

"This evidence was not admitted as tending to prove that he " (referring to defendant) "had stolen Wade's steer, as charging him with the guilt of that offense, or as seeking any conviction of him here on that ground, but simply as making it more or less probable or improbable that his explanation, that he acquired honestly the other animals, was founded in truth, by showing that at the same. time he had in his possession property taken by other thefts at the same time." Then, after giving an illustration as tending to show the relevancy and bearing of the evidence, this further was said as the reason why the testimony was let in, that, "stated plainly and simply, that if he took the Wade steer and drove it off, it was more probable that he was stealing the Trimble cattle and taking them off,

and that the explanation that he bought them from Carmel, supposing that he had a right to sell them, was not a truthful explanation." By the foregoing, in our judgment, the jury were informed that the evidence as to the Wade steer was let in for their consideration, that they might find whether defendant stole this steer or not, and if they did so find, such conclusion would render it more likely to be true, that he had stolen the Trimble cattle; in other words, that if they found that he had stolen the Wade steer, of which he was not accused in the information, it was a circumstance from which they might infer a larceny of the Trimble cattle with which he was charged in the information.

In admitting the evidence objected to, we are of the opinion that the court below fell into an error. A person cannot be accused of one offense and tried for another. The indictment or information must charge but one offense: penal code, section 954; and it must contain a statement of the facts constituting the offense in ordinary and precise language, in such manner as to enable a person of common understanding to know what is intended: Penal Code, section 950.

The object of these provisions is to present a distinct issue for trial, and clearly inform a defendant of that with which he is charged, that he may prepare to meet it. The evidence should, therefore, be confined to the offense charged, otherwise the party on trial might be taken by surprise.

"is

It was well said by the general court of Virginia, speaking by Brockenburgh, J., on this point: "As he" (the defendant) charged with a particular offense, he has notice to prepare to defend himself against that charge, and that alone; he cannot be prepared to defend himself against other charges not exhibited against him, or to maintain the integrity of his whole life when that is not in issue": Walker's case, 1 Leigh, 574. The principles just above referred to were violated in the ruling in this case. The evidence as to the Wade steer should have been excluded from the jury. The conclusion here reached is supported by the decisions of this court, in People v. Hartman, 62 Cal., 562, and People v. Wood, 12 Pac. C. L. J., 146.

The prosecution offered in evidence the reporter's notes in shorthand of the testimony of Ernest L. Fischer, taken on the preliminary examination of the defendant, offering at the same time to prove the correctness of the notes by the reporter, who was present. Fischer had died intermediate the preliminary examination and the trial, which was admitted by defendant's counsel; and it was further admitted that defendant was present with his counsel at such examination, and that his counsel then and there cross-examined Fischer in defendant's presence, and that the reporter would testify that his notes correctly represented Fischer's testimony on that occasion.

To the introduction of this testimony the defendant objected on the grounds that it was incompetent and inadmissible, that in a

criminal prosecution the defendant must be confronted with the witness, and that depositions cannot be read except in certain specified cases, of which this is not one; that the testimony of a deceased witness, taken or given on a preliminary examination, cannot be taken in a criminal case; that such examination is not a former action within the meaning of the statute. The court ruled against these objections, and admitted the evidence, to which an exception was reserved by defendant.

If the testimony of Fischer, given on the preliminary examination, had been taken, written out, certified and filed by the reporter, as provided by section 869 of the penal code, it would have been admissible as a deposition in the case of the death of the witness before the trial, as provided in section 680 of the same code. We recently held such a deposition admissible in the People v. Oiler, 4 West Coast Reporter, p. 383, where the witness had left the state after his testimony was taken, and prior to the trial. But we are of opinion that the written deposition is alone admissible, unless in case of its loss or destruction, when secondary evidence of its contents may be given. The object of the provisions of the penal code above cited (686 and 869) was to have the testimony on preliminary examinations so taken that it might be preserved as given, for use or reference at a time subsequent to that at which it was taken, and that if it became necessary to use such testimony on a trial, the written deposition, taken and certified as required by law, should alone be used for such purpose, and that resort should not be had to the memory of those who heard it. We are, therefore, of opinion that the court fell into an error in allowing the above mentioned evidence of Fischer's testimony to go to the jury.

We find no other error in the record, but for those above mentioned, the judgment and order denying defendant's motion for a new trial are reversed, and the cause remanded for a new trial. MYRICK, J., and SHARPSTEIN, J., concurred.

No. 9,604.

KIMPLE v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN

FRANCISCO.

Department Two. Filed November 25, 1884.

CERTIORARI-ORDER MADE AFTER JUDGMENT-DELAY IN APPLYING FOR WRIT -A writ of certiorari will not lie to review an order made after final judgment, when the right of appeal therefrom is barred, unless extraordinary circumstances are made to appear justifying the delay in applying for the writ.

APPLICATION for a writ of review. The opinion states the facts. D. L. Smoot and A. M. Heslip, for the petitioner.

W. R. Daingerfield, for the respondent.

No. 49-5.

THORNTON, J. In the case of Conway v. Conway, which was an action for a divorce, a decree was entered on the twenty-first of September, 1878, granting one of the parties a divorce and ordering a sale of the community property. Under this decree the community property was sold by the sheriff and the petitioner became the purchaser. The purchase money was paid to the sheriff by the petitioner and after the lapse of a proper period the sheriff executed a deed of the property to the purchaser. The possession of the property was withheld by Margaret Conway, the plaintiff in the action above mentioned, from the purchaser, and on motion of the purchaser a writ of assistance was on the twenty-eighth of February, 1880, ordered by the court, under which she was put in possession. This writ was granted by the superior court of the city and county of San Francisco. After the writ was executed it was duly returned and filed with the papers it the cause. Afterwards, on the twentyeighth of July, 1882, the above mentioned Margaret Conway procured from the said superior court an order vacating the writ of assistance formerly granted, and ordering said Margaret to be restored to the possession of the property above referred to.

The application before us in this case is for a writ of certioruri to to review and annul the last mentioned order of the twenty-eighth of July, 1882. The application for this writ was made on the fifth day of June, 1884, nearly two years after the entry of the order sought to be annulled.

It is contended on behalf of the respondent that the application comes too late. It was so held under a like state of facts in Keys v. Marin County, 42 Cal., 252. In that case as in this, nearly two years had elapsed after the entry of the order complained of, before an application was made for the writ. The court, in relation to this, said: "An appeal to the court from a final judgment of a district court, is barred by the lapse of one year; and we are of opinion that unless circumstances of an extraordinary character be shown to have intervened, the remedy through a writ of certiorari should be held to be barred by the lapse of a like period of time:" 42 Cal., 256.

In the case before us, the order sought to be annulled might have been appealed from in sixty days after it was entered (Č. C. P., sec. 939), and an appeal from a final judgment in the court granting the order, might have been taken within one year after said judgment was entered. No circumstances of any kind are made to appear in this case justifying the delay in applying for the writ of review. The like reasons for denying the writ exist in this case as in Keys v. Marin County; and approving the ruling in that case, we hold here that on the facts stated in the petition, the writ must be denied.

SHARPSTEIN, J. and MYRICK, J., concurred.