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ness testified that the "ledger sheet" intro- , ceived in evidence as prima facie proof, duced was the original card showing the when supported by the tradesman's oath," only account kept with the chattel mort and cases in this state are cited which, it gages in question, and showed all the en is said, sanction, although they do not extries in relation thereto and all the credits | pressly declare, this rule. given thereon. A number of questions were We think, however, that a different rule asked of these witnesses as to the matters should be applied to the books here under displayed upon the records so introduced, consideration from that which is applied to all of which were objected to by defendant, the books of a party to the litigation proand his objections were overruled; the trial | ducing them to serve his own purposes and judge stating in explanation of his rulings aid his own claim. The exhibits here adin this regard at one time that it might be mitted are the records of the business transunderstood that the witness made none of actions of a corporation required by law to the entries, had no knowledge of the facts be kept by all corporations for profit. Civ. about which he was testifying, but that he Code, & 377. They constitute the "memory" had received the instruments, whose con of the transactions of the corporation. Havtents he was repeating, as records of the ing been produced as the regularly kept and office which it was the custom of the com original books of the corporation, identified pany to keep, in the custody of the employé as such by their proper custodians, they are filling the position which the testifying wit aumissible in evidence. City Sav. Bank v. ness did. The court by its remarks in some Enos, 135 Cal. 172, 67 Pac. 52. The exhibits instances expressly distinguished between were therefore entitled to be admitted upon the statement of a fact known to the witness the preliminary proof given. The practice and the statement of matters appearing on followed by the trial judge in permitting the the records introduced, and permitted the witnesses who were merely custodians of the witness to state the latter. In one instance,

In one instance, record, without pretense of knowledge as at least, where the question called for that to the transactions recorded, to read from which it was apparent from the question the the record in response to direct questions as witness could only answer from the record, to the fact, is one much pursued by some the court directed the witness: “He can trial judges where the case is tried without state whether there is any record of any a jury. Such a practice is open to abuse, such payment, regardless of whether they and should be pursued with great caution. existed in fact."

Deductions made by bookkeepers greatly aid Questions relating to the correctness and the court and materially reduce its labors, accuracy of books sought to be introduced but in the statement of the record as a fact, in evidence have generally arisen in cases if not confined to a literal reading of the where the books are introduced on behalf record, the witness' own inferences are liable of the party keeping them, and are in the to creep in and a wrong interpretation of nature of self-prepared and self-serving dec the writing be thus had. larations. They were permitted to be intro A careful examination of the record disduced at common law only because the party closes no statements of witnesses so testify(“ould not testify in his own behalf, and, ing to what the record contained which do when parties to an action were first per not appear in the exhibits, except, perhaps, mitted to testify, it was held by some of one or two answers to questions as to what the courts that the books of a party could the books did not show which were competent no longer be admitted in evidence. Roche and relevant questions in themselves. The v. Ware, 71 Cal. 377, 12 Pac. 281. 60 Am. Rep. exhibits being prima facie evidence, and no 539. Books of account so belonging to the attack being made upon their correctness, we parties to the litigation are said to be in cannot see that appellant was prejudiced by the nature of secondary or supplementary | the rulings of the court in permitting these evidence of the facts therein stated (Bush- questions to be asked and answers to be nell v. Simpson, 119 Cal. 661, 51 Pac. 1080), given. All the evidence relating to the Citrus but have been held admissible, when pre Union's books merely tended to increase or liminary proof has been made, to support a diminish one branch of the damage alleged claim against tue estate of a deceased pier by a corresponding decrease or increase of son, where the claimant cannot be a witness the other branch. Twenty-seven hundred to testify to his own claim. Cowdery v. dollars were necessary to release tracts 3 McChesney, 124 Cal. 263, 57 Pac. 221; City and 4 from the lien of the chattel mortgages. Sav. Bank S. Enos, 133 Cal. 172, 67 Pac. 52. To the extent that plaintiff's oranges were The question of who may make the pre used to pay this sum he was entitled to reliminary proof and the limitations upon the cover from defendant, and to the extent that parties' testimony in such cases appears to the defendant failed to pay the mortgages be still open to discussion in this state. plaintiff was entitled to compel him to do Stuart y. Lord. 138 Cal. 677, 72 Pac. 142. so or pay the amount necessary for this purIn White v. Whitney, 82 Cal. 166. 22 Pac. pose. It was immaterial to defendant upon 1138. the rule is adopted from Wharton on which branch he was required to pay, and Evidence that "a tradesman's book of origthe books of the Citrus Union only determininal entries is, in most jurisdictions, re ed into which pocket of plaintiff the money

should go, to reimburse him for his oranges taken or to clear his land from the lien against it. Conceding that some, or all, of the evidence relating to the books of the Citrus Union was improperly admitted, the defendant was not prejudiced thereby.

No error appearing in the record, the judg. ment and order appealed from are affirmed.

Appeal from Superior Court, Tuolumne County; G. W. Nicol, Judge.

Amadeo Bianchino was convicted of rape, and appeals from the judgment and from an order denying his motion for a new trial. Judgment and order affirmed.

J. C. Webster, for appellant. U. S. Webb, Atty. Gen., for the State.

We concur: ALLEN, P. J.; SHAW, J.

(5 Oal. App. 633)

PEOPLE v. BIANCHINO. (Cr. 35.) (Court of Appeal, Third District, California. May 28, 1907: Rehearing Denied by Su


Under Pen. Code, $ 872, providing that the magistrate must in a criminal case indorse on the complaint an order signed by him that it appearing that the offense in the complaint mentioned had been committed, and that there was sufficient cause to believe the within-named A. was guilty thereof, etc., an order in the statutory form designating the offense as "felony, rape, in the within complaint mentioned" was sufficient. 2. INFORMATION – VARIANCE FROM COMMITMENT.

A variance between the commitment and the information, relating to the particular, date of the commission of the crime, is unimportant, when it appears that only one offense was committed. 3. RAPE-EVIDENCE-COMPLAINT OF FEMALE.

In a prosecution for rape of a five year old child, committed towards the latter part of January, it appeared that prosecutrix was examined on the oth of February by a physician, who a few days later discovered that prosecutrix was infected with a venereal disease. Held, that evidence of complaints of the injury made by prosecutrix shortly before and after February 5th was admissible.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 42, Rape, $ 67.] 4. SAME-FAILURE OF PROSECUTRIX TO TESTIFY.

In a prosecution for rape, the failure of prosecutrix to testify is not ground for excluding evidence of complaints made by her, where she is too young to testify.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Rape, s 69.] 5. CRIMINAL LAW – APPEAL – HARMLESS ERROR.

Where, in a prosecution for rape of a child, the family physician testified as to an examination made by him of prosecutrix, the denial of defendant's motion for the appointment of a physician to examine prosecutrix was not prejudicial, since the result of another examination might have been unfavorable to defendant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, $$ 3085, 3088, 3089.] 6. SAME-TRIAL-ORDER OF PROOF.

While the corpus delicti should ordinarily first be shown, a ruling permitting evidence before the corpus delicti is established is not ground for reversal, unless it clearly appears that defendant was prejudiced thereby.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 3136.] 7. SAME--FAILURE TO TAKE EXCEPTIONS.

Rulings complained of will not be considerrd on appeal, where no exceptions thereto were taken at the trial.

|Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, 8.2665.]

BURNETT, J. Defendant was convicted of the crime of rape alleged to have been committed on the person of Annie Lertora, a child of the age of five years, and was sentenced to a term in the state prison at Fol

He appeals from the judgment of conviction and from the order denying his motion for a new trial.

1. It is contended that the court erred in denying the motion of defendant to set aside the information. The motion was as follows: "Now comes the defendant in the above-entitled action, and moves the court to set aside the information on file herein, on the ground that before the filing thereof he, the said defendant, had not been legally committed by a magistrate.” The evidence, however, introduced in support of the motion proves to the contrary that the defendant was legally committed by the magistrate. The order indorsed on the complaint or deposition and signed by the committing magistrate is as follows: "It appearing to me that the offense, to wit, felony, rape, in the within complaint mentioned, has been committed, and there is sufficient cause to believe the within Amadeo Bianchino guilty thereof, I order that he be held to answer the same," etc. The foregoing order seems to be in strict accord with the requirement of section 872 of the Penal Code, which provides that: “The magistrate must make or indorse on the complaint an order signed by him to the following effect: It appearing to me that the offense in the within complaint mentioned (or any offense, according to the fact, stating generally the nature thereof) has been committed, and that there is sufficient cause to believe the within-named A. B. guilty thereof, I order that he be held to answer to the same."

It will be observed that the magistrate designated the offense as “felony, rape,” thereby describing it generally as he is permitted to do, under the statute. He made it more definite, however, by stating that it was the "rape mentioned in the within complaint." It was such an order as the statute contemplates, and it afforded authority for the district attorney to file an information in the superior court. But it is contended that the district attorney filed an information charging a different offense from that for which defendant was held to answer, and therefore the motion should have been granted. The motion, as we have seen, did not raise the point, as it was based upon the ground that the defendant had not been legally committed at all and not that he had

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not been committed for the offense charged 596, 76 Pac. 490, it was held that the motion in the information. A defendant should to set aside the information should have been be required, in a technical matter of this granted; but the magistrate held the defendcharacter, to stand or fall upon the ground ant for assault with a deadly weapon, and that he has deliberately chosen, and the law the district attorney charged the defendant should impose upon him also the duty of with the crime of assault with intent to pointing out in his motion the particular commit murder a totally distinct offense. defect upon which he relies in order that the 2. It is complained that the testimony of district attorney, if he deems it advisable, witnesses for the prosecution was allowed, may amend the information and thereby over defendant's objection, to the effect that avoid the danger and expense of a mistrial. the child, Annie Lertora, made complaint If he fails to do so in a case like the one some time after the injury to her. Two at bar, where the only point involved in the grounds for this objection were urged-first, motion is an apparent variance between the that the complaint was too remote from the date of the offense as it appears in the order time of the occurrence; and, second, that as and as shown by the information, he should the child did not testify it was error to allow be precluded from raising the question in any testimony as to a complaint made by any subsequent proceeding. However, as her. The date of the alleged injury is not suming that the issue is properly before us, definitely fixed, but was, according to the it must be held that the information does not evidence and defendant's admission, some charge a different offense from that recited time in January, 1906, towards the latter in the order of commitment. There can be part of the month. Witness Stratton, the no pretense that the investigation before the family physician, was called to treat the committing magistrate and in the superior child on February 5, 1906, and found the court concerned more than one offense. The involved parts much inflamed and somewhat evidence disclosed only one act of criminal lacerated, and a few days later discovered intercourse, and the only variance between that the child was infected with a venereal the commitment and the information relates disease. It was shortly before and after to the particular date of the commission of February 5th that the complaints referred to the crime. This variance, however, is un were made, some of which were voluntary important when it is apparent that only one and others after the child was questioned by offense was committed. The same rule the witnesses. The court seems to have should apply here as in the case of a variance been careful to keep within the rule in this between the evidence at the trial and the class of cases, and, so far as we can discover, allegations of the information, as indicated the complaints were not too remote under by section 955 of the Penal Code, which pro the circumstances. The child was too young vides that: "The precise time at which the to be fully conscious of anything wrong in offense was committed need not be stated in the act, or to experience any sense of shame, the indictment or information, but it may and, considering the relations of defendant be alleged to have been committed at any to the family and his familiarity with the time before the finding or filing thereof, ex child, she may not have comprehended the cept where the time is a material ingredi nature of the act, or thought of complainent in the offense."

ing earlier than she did. When the disease If the contention of appellant should pre developed, and she found herself suffering vail, we would have this singular situa additional pain, the complaint was naturally tion: The district attorney will be required renewed. The more serious question is as to file another information alleging that the to the admissibility of the complaint, inasoffense was committed on or about the 9th much as the child did not testify at all in the day of March, when he knows that the evi case. The evidence is admissible as corrobdence will disclose that it was committed on orative of the testimony of the prosecuting or about the 1st day of February. In other witness, and the authorities generally hold words, because the magistrate has committed that, unless the prosecuting witness testifies, a mistake in the date of the offense, the dis her complaint is mere hearsay and inadmistrict attorney must allege an error before sible. Our Supreme Court seems to have he can be permitted to establish the true date. considered that the rule does not apply where This, of course, is unreasonable. There is the child is of too tender an age to testify. nothing in any of the cases cited opposed People v. Figueroa, 131 Cal. 159, 66 Pac. to our view. In People v. Lee Look, 143 202. We feel bound by this decision to susCal. 216, 76 Pac. 1028, it is held, as stated tain the ruling of the lower court. in the syllabus: “An information is based 3. Defendant moved the court for the apon the commitment and not on the com pointment of a physician to examine the plaint for arrest, and it is the duty of the child. The motion was denied, and defendcommitting magistrate to hold the defend ant excepted. If the court had made the orant for the offense proved whatever might der, it is difficult to see how it could have have been the offense charged.” People v. compelled an examination if the mother or Warner, 147 Cal. 546, 82 Pac. 196, is to the child had objected. But, assuming that ausame effect, and cites with approval the Lee thority existed to make the order and that Look Case. In People v. Nogiri, 142 Cal. it could have been rendered effective, we

91 P.-8

cannot say that the denial of the application section of land under "An act regulating the resulted in prejudice, as the result of an sale of the lands uncovered by the recession other examination might have been unfavor. or drainage of the waters of inland lakes," able to defendant. Besides, there is nothing etc., as enacted in 1893 (St. 1893, p. 311, c. to show that the defendant could not have 229), and amended in 1899 (St. 1899, p. 182, c. had the child examined by any physician 119). The land in question is a part of the that he might select.

territory uncovered by the receding waters 4. The testimony of the witness Stratton of Tulare Lake in Kings county. The applias to the physical condition of the child was cation of the respondent was made Deiemobjected to on the ground that the cor ber 14, 1904, and that of appellant made Janpus delicti had not been shown. The order uary 31, 1905. Both applications were in of proof is largely within the discretion of due form and accompanied by the required the court. The corpus delicti should first be affidavits. Upon the filing of appellant's apshown ordinarily, but, unless it clearly ap plication the state surveyor general declared pears that the defendant was prejudiced a contest to exist between said parties conthereby, a ruling permitting evidence before cerning the right to purchase the land, and the corpus delicti is established will not made his order referring such contest to justify a reversal of the judgment. People the superior court of Kings county for adV. Jones, 123 Cal. 65, 55 Pac. 698.

judication as to the respective rights of said Some other alleged errors are assigned, parties in the premises. Plaintiff alleged but we find nothing in any of them to de that the affidavit of defendant was false, mand a reversal of the judgment. No ex in that said defendant did not at the time ception was taken to certain rulings of which of making said application and affidavit decomplaint is made, and they therefore can sire to purchase said land for his own use not be considered.

and benefit, but for the use and benefit of We cannot say as a matter of law that the another; and that at the time of making evidence is insufficient to support the judg. the application and affidavit defendant had ment.

made a contract to sell the same. These The judgment and order are affirmed. allegations are denied by the answer, and

upon the trial the court found said allegaWe concur: CHIPMAX, P. J.; HART, J. tions of the complaint to be untrue and ren

dered judgment for defendant. Section 1 of

said act, under which these applications were (5 Cal. App. 599)

made, requires that the applicant shall, BRYAN V. GRAHAM. (Civ. 310.)

among other facts, state in his affidavit “that (Court of Appeal, Second District, California. he desires to purchase the same [the land] May 27, 1907.)

for his own use and benefit, and for the use 1. APPEAL – REVIEW FixdixGS OF FACT – and benefit of no other person or persons ('oxCLUSIVENESS.

w'homsoever, and that he has made no conIn a proceeding to determine the rights of parties to purchase certain land, where there tract or agreement to sell the same." It is was a conflict of testimony upon the issue as to admitted that the provisions of section 3300, whether or not defendant' at the time he made

Pol. Code, which provides that "any false the application to purchase did so for his own use and benefit, the finding of the court therein

statement contained in the affidavit provideil cannot be disturbed.

for in sectiou 3195, defeats the right of the 2. PUBLIC LANDS-CoXVEYANCES-STATUTES. applicant to purchase the land, or to receive

I'nder the lake land act of 1893 (St. 1893, any evidence of title thereto," likewise dep. 341, c. 229), as amended by St. 1899, p. 182, c. 149, regulating the sale of lands uncovered by

feats the right of any applicant to purchase the recession or drainage of the waters of in

the land under section 1 of said act of land lakes, one who agreed to sell after filing 1893. On his own behalf defendant testifieil his application and before the issuance of his

to the truth of the statements contained in certificate to purchase did not thereby lose his right to purchase: there being nothing in the

his affidavit, and the only evidence offered in law prohibiting such an agreement to sell.

support of plaintiff's allegation that defendAppeal from Superior Court, Kings Coun

ant's application was made for the use and

benefit of another than himself was an agreety; M. L. Short, Judge. Proceedings by B. L. Bryan against J. A.

ment, the nature of which does not clearly Graham to determine the rights of the par

appear, made with one Fowler about January

1, 1905, and a contract made January 23, ties to purchase certain land. From a judgment for defendant, plaintiff appeals.

1905, some 10 days after the filing of his apAf

plication, whereby defendant agreed to sell firmed.

the land in question to one Rubenstein. Letus N. Crowell, for appellant. J. L. C.

suming these contracts subsequently made Irwin, for respondent.

to constitute any evidence of the falsity of

the affidavit, there was, nevertheless, a ('onSHAW, J. Appeal from juilgment and or flict of testimony upon the issue as to whethder denying motion for new trial.

er or not defendant at the time he made the This proceeding arises out of conflicting application to purchase did so for his own claims of the parties due to the fact that use and benefit, and the finding of the court both were applicants to purchase a quarter i therein cannot be disturbed.

The contract to sell the land to Rubenstein the state, to one who has contracted to conwas made before the certificate of purchase vey to another a part of the land so acquirwas issued, and it is contended that, by rea ed,” reversing the lower court upon this son of entering into this contract prior to point. the issuance of this certificate, defendant We find nothing in the lake land act of lost his riglit to complete the purchase. In 1893, under which this application was made, support of his contention appellant cites nu which prohibits the applicant from making merous cases, in all of which the decisions an agreement to sell the land before the were based upon an express statutory provi issuance to him of the certificate of pursion either prohibiting or limiting the right chase therein provided for. of alienation or transfer; for instance, the The judgment and order are affirmed. statutes of the United States relating to homesteads require, upon the making of We concur: ALLEX, P. J.; TAGGART, J. final proof, an affidavit that no part of such land has been alienated. Rev. St. U. S. $ 2291 (U. S. Comp. St. 1901, p. 1390). So, too,

(5 Cal. App. 622) there is an express prohibition of transfer or

BOHN v. PACIFIC ELECTRIC RY. CO. alienation prior to the issuance of the pat

(Civ. 302.) ents as to lands held under claim of pre

(Court of Appeal, Second District, California. emption. Rev. St. U. S. § 2263. Our atten

May 28. 1907.) tion has not been called to any such limi

JURY-RIGHT TO JURY TRIAL-TAKING CASE tation or requirement contained in the law


TORY PROVISIONS. relative to public lands of the state. The

The right of the trial court to grant a non("ontract is with the state. and in the ab suit at the close of the evidence, where it would

be obliged to set aside a verdict for plaintiff, sence of any legislative expression other than

exists, and the exercise thereof is not violative that contained in section 3500, Pol. Code,

of Const. art. 1, § 7, declaring that the right of which clearly was not intended to apply to trial by jury shall remain in violate, or of Code an agreement to sell, made subsequent to

Civ. Proc. $ 2101, requiring all questions of fact,

where the trial is by jury, to be decided by the the filing of an application and prior to the

jury, etc. issuance of the certificate of purchase, it [Ed. Note. For cases in point, see cent. Dig. cannot be held that appellant's rights are vol. 31, Jury, $ 235.] in any wise abridged by the agreement under

Appeal from Superior Court, Los Angeles discussion. Section 3515, Pol. Code, express

County; Charles Monroe, Judge. ly provides that "certificates of purchase,

Action by John L. Bohn, administrator of and all rights acquired thereunder, are sub

Peter Bohn, . deceased, against the Pacific ject to sale," etc. This express statutory

Electric Railway Company. From a judggrant of the right to sell the certificate can

ment of nonsuit, plaintiff appeals. Affirmed. not be construed as an expression of legislative intent that one who agreed to sell after Kendrick, Knott & Ardis, for appellant. filing his application and before the issu Bicknell, Gibson, Trask, Dunn & Crutcher ance of his certificate to purchase should (Norman S. Sterry, of counsel), for respondlose his right to purchase. The policy of the

ent. law is to discourage restraints upon alienation. Rose v. Wood & Lumber Co., 73 Cal. SHAW, J. The defendant owned and 385, 15 Pac. 19; Phillips v. Carter et al., 67 operated an electric railway line running Pac. 1031, 135 Cal. 604, 87 Am. St. Rep. 152; from the city of Los Angeles through the Lamb v. Davenport, 85 U. S. 307, 21 L. town of Compton to Long Beach. It appears Ed. 759; Adams v. Church, 193 U. S. 510, without conflict in the evidence that on Sep24 Sup. Ct. 512, 48 L. Ed. 769; Arnold v.

tember 12, 1904, the defendant was running Christy, 33 Pac. 619, 4 Ariz. 19.

a car at the usual rate of speed north on Prior to the amendment of 1885, section Wilmington street in said town of Compton, 3493, Pol. Code, providing for the purchase and when approaching Main street, which of school lands, contained a provision requir crosses said Wilmington street, one Peter ing the affidavit of the applicant to state Bohn appeared in a vehicle, to which was therein that the purchase "was for his own hitched a team of horses which he was drivuse and benefit, and for the use and benefit ing south along said Wilmington street of no other person,” etc. In construing this parallel with and on the west side of defendstatute the facts being that H. had applied ant's tracks. The car, running at a speed to purchase a section of school land under of 15 to 20 miles per hour, which was not in an agreement made with N. at the time of excess of the usual speed, was approaching the filing his application that one-half thereof crossing at which there was a sign, "Railwas for the use and benefit of N., and which road. Look out for the Cars," and its ap)one-half thereof H. was to convey to N. as proach was in plain view of said Peter soon as purchased—the court held in Thomp- Bohn. The usual signal whistle was given, son v. Hancock, 51 Cal. 110: "There is noth and the gong was kept going. There was ing in section 3195 of the Political Code nothing in Bohn's manner which indicated which prohibits the sale of any portion of a that he contemplated trying to cross the sixteenth or thirty-sixth section, belonging to track until the car had reached a point about

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