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tached in such case, have you any change or correction to make in your testimony?" The witness answered in the negative. The district attorney then asked: "You have no change or correction to make?" and Cooper answered: "None." This occurred in the presence of the jury. No objection or intimation that the same was not entirely satisfactory was made by defendant in regard to any of these questions, and no exception was taken to the action of the court or district attorney in the matter.

It is now urged that the court had no right to pursue this course of examination, for the reason that it thereby intimated to the jury an opinion on the part of the court as to the truth or falsity of Cooper's evidence, and also that it was prejudicial to the accused, as it left with the jury the impression that the witness had testified truthfully. Under our system, the trial judge is rigorously prohibited from 'action or words having the effect of conveying to the jury his personal opinion as to the truth or falsity of any evidence. The determination of questions of fact must be made by the jury free from the influence that knowledge of the trial judge's views thereon might have. If there was anything in the action complained of that would have the effect of intimating to the jury views on the part of the court as to Cooper's evidence, which were adverse to defendant's interests, defendant would have good ground for complaint. We are, however, unable to see therein any intimation on the part of the court of an opinion unfavorable to the defendant, and in favor of the evidence given by Cooper. If, despite the court's express disavowal of an intent to intimate either way as to the truth or falsity of the evidence given by Cooper, the statement made and questions asked by the court had the effect of conveying any intimation of opinion on its part,

such intimation was that the court was inclined to doubt the truth of the evidence, rather than to believe it. If it had been otherwise, there could have been no occasion for making the statement and asking the questions, for certainly it could not have been, and cannot now be, assumed by any one from the nature of the statement and questions, that it was the desire of the court thereby to fortify and emphasize the evidence given by the witness. It may be that the necessary effect of the statement and questions was to intimate a doubt on the part of the court as to the truth of the evidence given by Cooper, but in this there could be no intimation unfavorable to defendant, and he, therefore, cannot complain. So far, therefore, as the remarks and questions of the court are concerned, there was no intimation of opinion upon the part of the court that can be held to have been misconduct prejudicial to defendant's rights. It is unnecessary to here determine whether the objections now made in this matter can be considered

without objection made or exception reserved in the trial court.

We see no merit whatever in the objection that the effect of the adherence to his testimony by Cooper, in the face of the information given him by the court as to the penalty for willful perjury resulting in the conviction and execution of an innocent person was to strengthen that testimony in the minds of the jurors. If such was the effect, which may be conceded, it was due solely to the fact that the jurors knew that the witness was testifying with actual knowledge as to the penalty prescribed by law for perjury. This it was entirely proper for them to know and take into consideration with all other matters going to the question of credibility of the witness, in determining the weight that should be given to his testimony.

We are unable to see any merit in the contention of defendant relative to the incident we have been discussing. Everything done by the court was in furtherance of the ultimate object of every judicial investigation, viz., the eliciting of the truth-there was therein no intimation of opinion on the part of the court adverse to defendant's interest --and the only effect thereof was to bring to the attention of the jury a fact which it was proper for them to know in determining the weight to be given to Cooper's evidence.

3. Many rulings of the trial court overruling objections to questions asked the defendant on his cross-examination by the district attorney are complained of, it being claimed that such questions were not proper crossexamination for the alleged reason that they had no reference to matters about which he was examined in chief. Penal Code, § 1323. Defendant had testified very fully on his direct examination as to his conversations with

Cooper in the county jail, denying the truth of Cooper's statements, and, testifying explicitly in regard to the diagram made by him showing the place of the homicide, said that he told Cooper at the time that he knew nothing about the place or its whereabouts of his own knowledge, and that he was drawing the diagram solely from his own recollection of a map that had been produced in the police court. This was in direct conflict with the evidence of Cooper as to the conversations between them upon this subject. Several of the questions asked on cross-examination of the defendant were devoted to an effort to show by him that he did, at the time of the conversation with Cooper, know from personal observation as to the whereabouts and character of the place. It may be strongly argued that this was legitimate cross-examination upon a matter concerning which he had been "examined in chief," viz., his conversation with Cooper, for the reason that any answers to the questions asked which tended to show such personal knowledge on his part would impair the force of his direct testimony as to what his statements to Cooper were in this regard, and therefore would

be legitimate cross-examination within the rule laid down in People v. Gallagher, 100 Cal. 463, 475, 35 Pac. 80. It is not necessary, however, to decide this point, in view of the answers given by the defendant to the questions. By those answers he steadfastly denied any personal knowledge as to these matters, and the evidence elicited was of such a nature that prejudice could not have been suffered by defendant on account of such cross-examination.

Outside of the testimony as to the Cooper conversations, defendant had testified on his direct examinations simply as follows: "I did not kill my brother-in-law, Joseph Blaise. I never employed or tried to employ any one to, or make any combination or agreement with anybody to kill him." On cross-examination he was asked: "Where were you on the night of January 10th of this year at the hour of 9 o'clock?" This time, according to the evidence, was about the time of the commission of the murder. This undoubtedly was legitimate cross-examination as to the general statement made by defendant on his direct examination to the effect that he was not the person who had committed the murder. See People v. Gallagher, supra. The defendant having voluntarily testified in his own behalf became "subject to the same rules for testing his credibility before the jury by impeachment or otherwise, as any other witness" (People v. Hickman, 113 Cal. 80, 86, 45 Pac. 175), and it was therefore competent for the prosecution to show either by his cross-examination or the record of the judgment that he had theretofore been convicted of a felony. Code Civ. Proc. § 2051; People v. Arnold, 116 Cal. 682, 687, 48 Pac. 803; People v. Sears, 119 Cal. 267, 271, 51 Pac. 325; People v. Meyer, 75 Cal. 383, 386, 17 Pac. 431. The rulings of the court upon this point were, therefore, not erroneous.

The usual contention is made that the district attorney, in his closing argument to the jury, went beyond the limits of legitimate argument to the prejudice of the defendant. We find no support for this contention in the record. This is not a case like that of People v. Cook (Cal. Sup.) 83 Pac. 43, where the district attorney stated as a fact something most prejudicial to the defendant, as to which there was absolutely no intimation in the evidence. As was said in People v. Romero, 143 Cal. 458, 460, 77 Pac. 163, 164: "Counsel has the right in the argument to fully state his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom." In the case at bar, the district attorney, in our judgment, did no more than this. The transcript on appeal discloses no other point requiring discussion.

The judgment and order denying the motion for a new trial are affirmed.

We concur: SHAW, J.; HALL, J.; HENSHAW, J.; LORIGAN, J.; SLOSS, J.

(150 Cal. 6)

MCANENY v. SUPERIOR COURT OF SANTA CLARA COUNTY et al. (S. F. 4,609.) (Supreme Court of California. Oct. 4, 1906.) 1. APPEAL-STAY OF PROCEEDINGS-EFFECT—

ALIMONY-RECEIVERSHIP.

Though, under Civ. Code, § 137, a superior court may require the husband, in action for divorce, to pay temporary alimony, suit expenses, etc., and, under section 140, may enforce payment or security therefor by the appointment of a receiver or by other appropriate remedy, where defendant filed a bond to stay proceedings pending an appeal from orders requiring him to pay temporary alimony, etc., the superior court had no jurisdiction to appoint a receiver to provide security for the ultimate payment of temporary alimony, etc., since Code Civ. Proc. § 946, provides that the perfecting of an appeal shall stay further proceedings in the court below on orders appealed from and matters embraced therein.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 2208.]

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2. PROHIBITION GROUNDS-EXISTENCE OF ANOTHER REMEDY.

Code Civ. Proc. § 1102, giving the superior court authority to issue a writ of prohibition to arrest proceedings of a tribunal exercising judicial functions in excess of its jurisdiction, being limited by section 1103, providing that the writ will not issue where there is a plain, speedy, and adequate remedy in the ordinary course of the law, the writ will not issue to stay receivership proceedings to provide security for the payment of temporary alimony, etc., from orders for payment of which the husband has appealed, since the writ of supersedeas offered defendant a speedy and adequate remedy to stay the proceedings.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Prohibition, §§ 4, 5, 13.]

3. SAME-JURISDICTION-ISSUES AND PROOF

REVIEW.

Where a husband's petition for a writ of prohibition to stay receivership proceedings to secure the payment of temporary alimony, from the orders for the payment of which he had appealed, alleged that he was unable to procure sureties for the amount of the bond required by the superior court to stay proceedings, and the allegations were denied by the answer and the case was submitted without a trial of that issue, the Supreme Court could not determine whether or not appeal afforded the husband a plain and adequate remedy against the receivership proceedings.

4. SAME PRESENTATION OF OBJECTION IN ORIGINAL PROCEEDING.

Where a husband appealed from orders of the superior court requiring him to pay temporary alimony, etc., a writ of prohibition would not issue at his instance to stay receivership proceedings to secure the ultimate payment thereof, where it did not appear that he had objected to the jurisdiction of the lower court to appoint a receiver after appeal from the orders, or that the court was informed of the filing of the undertaking to stay proceedings on the appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Prohibition, § 66.]

In bank. Application of George B. McAneny for writ of prohibition against the superior court of Santa Clara county and another. Denied.

Jackson Hatch and John E. Richards, for petitioner. H. E. Wilcox and D. M. Burnett, for respondents.

pointed either for the purpose of enforcing payment of the alimony and expense money previously ordered paid, or for the purpose of enforcing a previous order requiring the husband to furnish security for such payment, or for the purpose merely of providing such security. Petaluma Bank v. Superior Court, 111 Cal. 495, 44 Pac. 177; Huellmantel v. Huellmantel, 124 Cal. 588, 57 Pac. 582; Sharon v. Sharon, 67 Cal. 202, 7 Pac. 456, 635, 8 Pac. 709.

SHAW, J. This is an original proceeding | der these provisions a receiver may be apin this court for a writ of prohibition to prevent further proceedings in pursuance of an order of said superior court made in the course of an action for divorce therein pending, wherein Mabel M. McAneny is plaintiff and George B. McAneny is defendant, appointing Walter L. Crow receiver to take charge of the property of the defendant. Prior to the making of the order appointing Crow as receiver the court had made an order in the action for divorce requiring the defendant, George B. McAneny, to pay certain sums of money to the plaintiff for her alimony pending the suit and for her costs and counsel fees in the prosecution thereof, and also a subsequent order for the payment of additional sums as alimony pending an appeal from the first order and for her expenses upon such appeal. From each of these orders the defendant had appealed to the Supreme Court, and had stayed further proceedings on each order pending the appeal by giving the necessary undertakings. The last order for alimony pending the appeal was made on February 12, 1906. tice of the motion for the appointment of a receiver and the notice of motion for alimony, etc., pending appeal were both served and filed on February 1st, and it was stated in the former notice that the purpose sought to be accomplished by the appointment of a receiver was the securing of the payment to plaintiff of such sums as might be directed to be paid to her for alimony, costs, and counsel fees. The order appointing a receiver was made on March 8, 1906. The court ordered that Crow be appointed receiver, and directed him, as such receiver, to take charge and custody of all the money and property of said defendant, with certain immaterial exceptions, and collect all rents, issues, and profits therefrom. This order recites the terms of the notice, stating the purpose for which the receivership was desired, as aforesaid.

A writ prohibition may be issued by this court to arrest the proceedings of any tribunal exercising judicial functions "when such proceedings are without or in excess of the jurisdiction of such tribunal." Code Civ. Proc. § 1102. By section 137, Civ. Code, power is given to the superior court in actions for divorce to make orders requiring the husband to pay money to the wife for her support pending the action and for her expenses in prosecution or defense thereof. The orders in question, directing the payments of money by the petitioner, were made in pursuance of the authority given by that section. By section 140 of the Civil Code it is provided that the court may require the husband to give reasonable security for making any payments which the court may direct to be made under the provisions of section 137 aforesaid, "and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case." Un

It must be admitted that the superior court had full jurisdiction to grant the motion for a receiver at all times during its pendency, prior to the taking of the appeal from the order to pay alimony and costs and the filing of the undertaking to stay proceedings on said appeal. The stay of proceedings on the alimony order, thus effected, operated as a supersedeas, and, during its operation, deprived the superior court of all power to enforce the order appealed from. either by execution or by proceedings for contempt, or through the appointment of a receiver. Ruggles v. Superior Court, 103 Cal. 127, 37 Pac. 211; State I. & I. Co. v. Superior Court, 101 Cal. 150, 35 Pac. 549. If the order appointing the receiver in this case was an act in furtherance of the enforcement of the alimony order which was stayed by the appeal, it was prohibited by the statute, which in such cases forbids further proceedings upon the order appealed from and matters embraced therein (Code Civ. Proc. § 946), and it was, in a certain sense, in excess of the jurisdiction of the court. Notwithstanding the limited scope and purpose of the order appointing the receiver in the present case, as expressed in the notice and recited in the order, we think it was a step taken for the enforcement of the payment of the alimony and expenses allowed. State I. & I. Co. v. Superior Court, supra. The fact that the custody is solely for the purpose of providing security does not change the character of the proceedings. It is security for payment, so that when the final act of enforcement comes-that is, the actual appropriation of the money to the satisfaction of the demand-the money will be ready for that purpose if enough has been secured, or the property will be in the receiver's hands for sale, if it is necessary to resort to a sale, and so it may be said to be a provision for the better enforcement of the order to pay alimony. It could have no other object than the ultimate enforcement of the payment. It is therefore a proceeding, which was stayed by the undertaking for the stay of the proceedings on the order of February 12th granting further alimony and attorney's fees.

A writ of prohibition will not be issued where there is a plain, speedy, and adequate remedy in the ordinary course of law. Code Civ. Proc. § 1103. We have already seen that the proceeding to appoint a receiver was a step toward the enforcement of the alimony

order appealed from, and that the effect of the stay bond on the appeal was to stay all proceedings on the order, or in the enforcement thereof. The petitioner has, therefore, a speedy and adequate remedy by means of a motion in this court in the matter of the appeal for a writ of supersedeas to stay the hand of the court below in any proceeding to enforce the order, whether judicial or ministerial. The writ of supersedeas "is frequently granted by this court for the purpose of staying proceedings in the superior court, when a review of the action of that court is sought in this court, either upon direct proceeding or on appeal, and is directed to the court whose action is under review, or to an officer of that court who may be about to enforce its judgment. *** If, after such appeal, the court below seeks to enforce its judgment, this court will grant a special order restraining its action." Dulin v. Pacific W. & C. Co., 98 Cal. 304, 33 Pac. 123. Such writs have been issued in the following cases: Hoppe v. Hoppe, 99 Cal. 537, 34 Pac. 222; Painter v. Painter, 98 Cal. 626, 33 Pac. 483: Born v. Horstmann, 80 Cal. 452, 22 Pac. 169, 338, 5 L. R. A. 577; Baldwin v. Superior Court. 125 Cal. 584, 58 Pac. 185; Anderson V. Anderson, 123 Cal. 445, 56 Pac. 61; Brown V. Rouse, 115 Cal. 619, 47 Pac. 601; Hubbard v. University Bank, 120 Cal. 632, 52 Pac. 1070. This court has even gone so far, upon the granting of a writ of supersedeas, as to quash writs already issued out of the superior court and vacate sales already made in pursuance of the order of that court. Owen v. Pomona L. & W. Co., 124 Cal. 331, 57 Pac. 71. This remedy is more effectual and comprehensive than prohibition in all cases where, as in this case, the acts of the party restrained are proceedings which are stayed by an appeal. The petitioner is also the appellant, and therefore has the right to apply for a supersedeas in aid of his appeal. We are aware that this court has sometimes granted relief by way of prohibition where the exercise of of judicial functions were threatened in enforcement of the judgment stayed by an appeal. In the leading case of Havemeyer v. Superior Court, 84 Cal. 342, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192. the persons applying for the writ of prohibition were not parties to the action. It was considered doubtful whether they had the right to appeal, and, if so, whether the appeal would be of any value without a bill of exceptions, and hence that remedy was not deemed plain or adequate. Not being parties, they could not move for a supersedeas. In the case of State I. & I. Co. v. Superior Court, supra, and in other cases where prohibition has been entertained at the instance of a party to the appeal, the existence of the remedy by writ of supersedeas does not appear to have been called to the attention of the court, and the effect of such

remedy has not been discussed in the opinion.

There is also the remedy by appeal by which the order can be vacated for mere error, as well as for excess of jurisdiction. The defendant has appealed from the order appointing the receiver, and in his petition he seeks to show that this remedy is ineffectual because the amount of the undertaking to stay proceedings thereon has been fixed at $30,000, and he avers that he is wholly unable to procure sureties for that sum. This allegation is denied in the answer, and, as the case has been submitted without a trial of the issue thus raised, we cannot decide whether or not this remedy is plain or adequate in this particular case.

Another objection to the sufficiency of the case made by the petitioner is that it does not appear that the objection to the jurisdiction of the court was ever brought to the attention of the superior court and an opportunity given to that court to recede from its position, a step which is usually a condition precedent to the right to a writ of prohibition in this court. There was not here, as in Havemeyer v. Superior Court, 84 Cal. 403, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192, a lack of opportunity to do so. nor is there anything in the record to show that the disposition of the lower court to persist in its course made it useless to object. The proceeding for a receiver was initiated at the same time as the application for additional alimony, and the court, as before stated, had full jurisdiction to proceed at all times prior to the appeal from the alimony order and the securing of the stay of proceedings thereon. The appeal from the alimony order was taken and the stay of proceedings thereon obtained on February 14, 1906. The application for a receiver was postponed from day to day by stipulation of the attorneys, and did not come on for hear ing until March 8, 1906, at which time it was granted. There was therefore ample opportunity given to the petitioner to object to the jurisdiction of the court and to give notice to the court of the fact he had taken the appeal and obtained a stay of proceedings. It does not appear that the superior court was ever informed of the filing of the undertaking which operated to stay proceedings. Unless it was aware of that fact, it could have no knowledge that it was proceeding in excess of its power. This case therefore does not come within the exceptions or qualifications to the rule that objection must be made in the lower court which are noted in the opinion in Havemeyer v. Superior Court, supra.

The petition is denied.

We concur: MCFARLAND, J.; ANGELLOTTI, J.; SLOSS, J.; HENSHAW, J.; LORIGAN, J.

(149 Cal. 744)

WESTERN UNION TELEGRAPH CO. V. CITY OF VISALIA. (Sac. 1,443.) (Supreme Court of California. Sept. 25, 1906.) 1. TRIAL-FINDINGS OF FACT-CONSTRUCTION -SUFFICIENCY OF EVIDENCE.

An ordinance purporting to grant a privilege to a telegraph company to use the streets of the city for its poles, regulating the manner of such use and the rights of the city and company therein, nowhere used the word "franchise." The company's officer testified that the ordinance and its acceptance by the company was not a "franchise," or understood to be such, but a mere police regulation. Held, that a finding that a "franchise" was created thereby should be construed as meaning that the ordinance and its acceptance by the company operated in law as a franchise, and not that a franchise was applied for and granted eo nomine.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial. § 871.]

2. MUNICIPAL CORPORATIONS-USE OF STREETS -FRANCHISE TO TELEGRAPH COMPANIES— WHAT CONSTITUTES.

An ordinance, to become operative on its acceptance by a telegraph company, purported to grant to the telegraph company a right to use the streets of the city for poles, provided that such use was not exclusive, regulated the manner of such use, fixed the company's liability for damages arising from an abuse thereof, and gave the city a right to use the poles. Held, that the other provisions contained in the ordinance did not change its character from an attempted grant of a franchise. 3. TAXATION-CORPORATIONS FRANCHISES GRANT OF POWER ALREADY POSSESSED.

Act July 24, 1866, c. 230, 14 Stat. 221, grants a certain telegraph company a franchise of constructing its lines along the post roads of the United States. Rev. St. U. S. § 3964, U. S. Comp. St. 1901, p. 2707] provides that all public highways are post roads. Pol. Code, § 2618, declares that public highways are roads, streets, and alleys laid out and dedicated to the public. Civ. Code, § 536, authorizes telegraph companies to construct their lines upon any public road or highway. Heid, that a city ordinance purporting to grant to the corporation referred to in 14 U. S. Stat. a franchise to use the city streets for its poles was a mere attempt to give what the company already had, and did not create a franchise which could be taxed.

In Bank. Appeal from Superior Court, Tulare County; W. B. Wallace, Judge.

Action by the Western Union Telegraph Company against the city of Visalia. From a judgment for defendant, plaintiff appeals. Reversed, and remanded with directions.

Brown & Wells, R. B. Carpenter, and Beverly L. Hodghead, for appellant. H. T. Miller, for respondent.

MCFARLAND, J. The plaintiff is a corporation organized under the laws of the state of New York and engaged in the telegraph business. It has been in existence as such corporation since before July 24, 1866. The defendant, the city of Visalia, is a municipal corporation organized and existing under the laws of the state of California. Plaintiff has numerous lines of telegraph running through many parts of California and other American states and adjoining countries, and one of its lines runs through the

streets of the defendant to the extent of 3 miles of poles and 12 miles of wires. The defendant assessed for the year 1904 all these poles and wires and all other tangible property of plaintiff within said boundaries, and all the taxes levied upon such property were paid by plaintiff, but defendant for said year also assessed plaintiff for "a franchise granted by the city of Visalia, $1,500," and levied a tax thereon of $30, and was about to levy upon and sell all plaintiff's said poles and wires to satisfy said tax, when plaintiff commenced this action to restrain such sale. Judgment went for defendant in the trial court, and, from the judgment, plaintiff appeals, bringing up the judgment roll and a bill of exceptions. As respondent does not make any point as to the remedy asked by appellant, we will assume, for the purpose of this appeal, that the remedy is a proper one and determine the case, as both parties seem to want it determined, upon its real legal merits.

The case was tried by the court, without a jury, upon a stipulated statement of facts. with leave to either party to introduce further evidence, and some further evidence was introduced by plaintiff. The character of plaintiff, and its rights, franchises, and immunities, have been before this court in other cases, and particularly in the case of the City and County of San Francisco v. The Western Union Telegraph Company, 96 Cal. 140, 31 Pac. 10, 17 L. R. A. 301. It was determined in that case-and is the law-that, by an act of Congress passed July 24, 1866, (14 Stat. p. 221, c. 230) and the subsequent acceptance of its terms by the appellant herein, the appellant was granted the franchise of constructing, maintaining, and operating its lines of telegraph over the public domain,' and across and under navigable waters, and along the military and post roads of the United States, in such manner as not to obstruct or interfere with ordinary travel thereon; that, by section 3964, Rev. St. of the United States [U. S. Comp. St. 1901, p. 2707] it was provided-as Congress had the right to provide that "all public roads and highways while kept up and maintained as such are declared to be post roads," and by section 2018 of the Political Code of this state it is provided that public "highways" are "roads, streets, alleys," etc., laid out, erected, and dedicated to the public; that, by said act of Congress, and its acceptance by appellant, the latter became an instrumentality of the United States in carrying out its govermental functions, and that, therefore, under the principle declared in McCulloch v. Maryland, 4 Wheat. 316. the franchises granted plaintiff by said act of Congress are not subject to state taxation, either directly or indirectly. Therefore the respondent had no authority to assess and tax any feder al franchise enjoyed by appellant and exercised upon the streets of respondent. This principle respondent admits, but it contends

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