ness testified that the "ledger sheet" introduced was the original card showing the only account kept with the chattel mortgages in question, and showed all the entries in relation thereto and all the credits given thereon. A number of questions were asked of these witnesses as to the matters displayed upon the records so introduced, all of which were objected to by defendant, and his objections were overruled; the trial judge stating in explanation of his rulings in this regard at one time that it might be understood that the witness made none of the entries, had no knowledge of the facts about which he was testifying, but that he had received the instruments, whose contents he was repeating, as records of the office which it was the custom of the company to keep, in the custody of the employé filling the position which the testifying witness did. The court by its remarks in some instances expressly distinguished between the statement of a fact known to the witness and the statement of matters appearing on the records introduced, and permitted the witness to state the latter. In one instance, at least, where the question called for that which it was apparent from the question the witness could only answer from the record, the court directed the witness: "He can state whether there is any record of any such payment, regardless of whether they existed in fact."

Questions relating to the correctness and accuracy of books sought to be introduced in evidence have generally arisen in cases where the books are introduced on behalf of the party keeping them, and are in the nature of self-prepared and self-serving declarations. They were permitted to be introduced at common law only because the party could not testify in his own behalf, and, when parties to an action were first permitted to testify, it was held by some of the courts that the books of a party could no longer be admitted in evidence. Roche v. Ware, 71 Cal. 377, 12 Pac. 284, 60 Am. Rep. 539. Books of account so belonging to the parties to the litigation are said to be in the nature of secondary or supplementary evidence of the facts therein stated (Bushnell v. Simpson, 119 Cal. 661, 51 Pac. 1080), but have been held admissible, when preliminary proof has been made, to support a claim against the estate of a deceased person, where the claimant cannot be a witness to testify to his own claim. Cowdery v. McChesney, 124 Cal. 363, 57 Pac. 221; City Sav. Bank v. Enos, 135 Cal. 172, 67 Pac. 52. The question of who may make the preliminary proof and the limitations upon the parties' testimony in such cases appears to be still open to discussion in this state. Stuart v. Lord. 138 Cal. 677, 72 Pac. 142. In White v. Whitney, 82 Cal. 166. 22 Pac. 1138, the rule is adopted from Wharton on Evidence that "a tradesman's book of original entries is, in most jurisdictions, re

ceived in evidence as prima facie proof, when supported by the tradesman's oath," and cases in this state are cited which, it is said, sanction, although they do not expressly declare, this rule.

We think, however, that a different rule should be applied to the books here under consideration from that which is applied to the books of a party to the litigation producing them to serve his own purposes and aid his own claim. The exhibits here admitted are the records of the business transactions of a corporation required by law to be kept by all corporations for profit. Civ. Co Code, § 377. They constitute the "memory" of the transactions of the corporation. Having been produced as the regularly kept and original books of the corporation, identified as such by their proper custodians, they are aumissible in evidence. City Sav. Bank v. Enos, 135 Cal. 172, 67 Pac. 52. The exhibits were therefore entitled to be admitted upon the preliminary proof given. The practice followed by the trial judge in permitting the witnesses who were merely custodians of the record, without pretense of knowledge as to the transactions recorded, to read from the record in response to direct questions as to the fact, is one much pursued by some trial judges where the case is tried without a jury. Such a practice is open to abuse. and should be pursued with great caution. Deductions made by bookkeepers greatly aid the court and materially reduce its labors. but in the statement of the record as a fact, if not confined to a literal reading of the record, the witness' own inferences are liable to creep in and a wrong interpretation of the writing be thus had.

A careful examination of the record discloses no statements of witnesses so testifying to what the record contained which do not appear in the exhibits, except, perhaps. one or two answers to questions as to what the books did not show which were competent and relevant questions in themselves. The exhibits being prima facie evidence, and no attack being made upon their correctness, we cannot see that appellant was prejudiced by the rulings of the court in permitting these questions to be asked and answers to be given. All the evidence relating to the Citrus Union's books merely tended to increase or diminish one branch of the damage alleged by a corresponding decrease or increase of the other branch. Twenty-seven hundred dollars were necessary to release tracts 3 and 4 from the lien of the chattel mortgages. To the extent that plaintiff's oranges were used to pay this sum he was entitled to recover from defendant, and to the extent that the defendant failed to pay the mortgages plaintiff was entitled to compel him to do so or pay the amount necessary for this purpose. It was immaterial to defendant upon which branch he was required to pay, and the books of the Citrus Union only determined 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 judgment and order appealed from are affirmed.

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

(5 Cal. App. 633)

PEOPLE v. BIANCHINO. (Cr. 35.) (Court of Appeal, Third District, California. May 28, 1907: Rehearing Denied by Supreme Court, July 27, 1907.)

1. CRIMINAL LAW-ORDER OF COMMITMENTSUFFICIENCY.

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 COMMIT

MENT.

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 5th 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 TES

TIFY.

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, § 69.]

5. CRIMINAL LAW - APPEAL - HARMLESS ER

ROR.

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 considered on appeal, where no exceptions thereto were taken at the trial.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §.2665.]

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.

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 Folsom. 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, 1 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

not been committed for the offense charged | in the information. A defendant should be required, in a technical matter of this character, to stand or fall upon the ground that he has deliberately chosen, and the law should impose upon him also the duty of pointing out in his motion the particular defect upon which he relies in order that the district attorney, if he deems it advisable, may amend the information and thereby avoid the danger and expense of a mistrial. If he fails to do so in a case like the one at bar, where the only point involved in the motion is an apparent variance between the date of the offense as it appears in the order and as shown by the information, he should be precluded from raising the question in any subsequent proceeding. However, assuming that the issue is properly before us, it must be held that the information does not charge a different offense from that recited in the order of commitment. There can be no pretense that the investigation before the committing magistrate and in the superior court concerned more than one offense. The evidence disclosed only one act of criminal intercourse, and the only variance between the commitment and the information relates to the particular date of the commission of the crime. This variance, however, is unimportant when it is apparent that only one offense was committed. The same rule should apply here as in the case of a variance between the evidence at the trial and the allegations of the information, as indicated by section 955 of the Penal Code, which provides that: "The precise time at which the offense was committed need not be stated in the indictment or information, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense."

If the contention of appellant should prevail, we would have this singular situation: The district attorney will be required to file another information alleging that the offense was committed on or about the 9th day of March, when he knows that the evidence will disclose that it was committed on or about the 1st day of February. In other words, because the magistrate has committed a mistake in the date of the offense, the district attorney must allege an error before he can be permitted to establish the true date. This, of course, is unreasonable. There is nothing in any of the cases cited opposed to our view. In People v. Lee Look, 143 Cal. 216, 76 Pac. 1028, it is held, as stated in the syllabus: "An information is based on the commitment and not on the complaint for arrest, and it is the duty of the committing magistrate to hold the defendant for the offense proved whatever might have been the offense charged." People v. Warner, 147 Cal. 546, 82 Pac. 196, is to the same effect. and cites with approval the Lee Look Case. In People v. Nogiri, 142 Cal.

91 P.-8

596, 76 Pac. 490, it was held that the motion to set aside the information should have been granted; but the magistrate held the defendant for assault with a deadly weapon, and the district attorney charged the defendant with the crime of assault with intent to commit murder-a totally distinct offense.

2. It is complained that the testimony of witnesses for the prosecution was allowed, over defendant's objection, to the effect that the child, Annie Lertora, made complaint some time after the injury to her. Two grounds for this objection were urged-first, that the complaint was too remote from the time of the occurrence; and, second, that as the child did not testify it was error to allow any testimony as to a complaint made by her. The date of the alleged injury is not definitely fixed, but was, according to the evidence and defendant's admission, some time in January, 1906, towards the latter part of the month. Witness Stratton, the family physician, was called to treat the child on February 5, 1906, and found the involved parts much inflamed and somewhat lacerated, and a few days later discovered that the child was infected with a venereal disease. It was shortly before and after February 5th that the complaints referred to were made, some of which were voluntary and others after the child was questioned by the witnesses. The court seems to have been careful to keep within the rule in this class of cases, and, so far as we can discover, the complaints were not too remote under the circumstances. The child was too young to be fully conscious of anything wrong in the act, or to experience any sense of shame, and, considering the relations of defendant to the family and his familiarity with the child, she may not have comprehended the nature of the act, or thought of complaining earlier than she did. When the disease developed, and she found herself suffering additional pain, the complaint was naturally renewed. The more serious question is as to the admissibility of the complaint, inasmuch as the child did not testify at all in the case. The evidence is admissible as corroborative of the testimony of the prosecuting witness, and the authorities generally hold that, unless the prosecuting witness testifies, her complaint is mere hearsay and inadmissible. Our Supreme Court seems to have considered that the rule does not apply where the child is of too tender an age to testify. People v. Figueroa, 134 Cal. 159, 66 Pac. 202. We feel bound by this decision to sustain the ruling of the lower court.

3. Defendant moved the court for the appointment of a physician to examine the child. The motion was denied, and defendant excepted. If the court had made the order, it is difficult to see how it could have compelled an examination if the mother or child had objected. But, assuming that authority existed to make the order and that it could have been rendered effective, we

cannot say that the denial of the application resulted in prejudice, as the result of another examination might have been unfavorable to defendant. Besides, there is nothing to show that the defendant could not have had the child examined by any physician that he might select.

4. The testimony of the witness Stratton as to the physical condition of the child was objected to on the ground that the corpus delicti had not been shown. The order of proof is largely within the discretion of the court. The corpus delicti should first be shown ordinarily, but, unless it clearly appears that the defendant was prejudiced thereby, a ruling permitting evidence before the corpus delicti is established will not justify a reversal of the judgment. People v. Jones, 123 Cal. 65, 55 Pac. 698.

Some other alleged errors are assigned, but we find nothing in any of them to demand a reversal of the judgment. No exception was taken to certain rulings of which complaint is made, and they therefore cannot be considered.

We cannot say as a matter of law that the evidence is insufficient to support the judgment.

The judgment and order are affirmed.

Under the lake land act of 1893 (St. 1893, p. 341, c. 229), as amended by St. 1899, p. 182, c. 149, regulating the sale of lands uncovered by the recession or drainage of the waters of inland lakes, one who agreed to sell after filing his application and before the issuance of his certificate to purchase did not thereby lose his right to purchase: there being nothing in the law prohibiting such an agreement to sell.

Appeal from Superior Court, Kings County: M. L. Short, Judge.

Proceedings by B. L. Bryan against J. A. Graham to determine the rights of the parties to purchase certain land. From a judg ment for defendant, plaintiff appeals. firmed.

Af

Letus N. Crowell, for appellant. J. L. C. Irwin, for respondent.

SHAW, J. Appeal from judgment and order denying motion for new trial.

This proceeding arises out of conflicting claims of the parties due to the fact that both were applicants to purchase a quarter

section of land under "An act regulating the sale of the lands uncovered by the recession or drainage of the waters of inland lakes," etc., as enacted in 1893 (St. 1893, p. 341, c. 229), and amended in 1899 (St. 1899, p. 182, c. 149). The land in question is a part of the territory uncovered by the receding waters of Tulare Lake in Kings county. The application of the respondent was made December 14, 1904, and that of appellant made January 31, 1905. Both applications were in due form and accompanied by the required affidavits. Upon the filing of appellant's application the state surveyor general declared a contest to exist between said parties concerning the right to purchase the land, and made his order referring such contest to the superior court of Kings county for adjudication as to the respective rights of said parties in the premises. Plaintiff alleged that the affidavit of defendant was false, in that said defendant did not at the time of making said application and affidavit desire to purchase said land for his own use and benefit, but for the use and benefit of another; and that at the time of making the application and affidavit defendant had made a contract to sell the same. These allegations are denied by the answer, and upon the trial the court found said allegations of the complaint to be untrue and rendered judgment for defendant. Section 1 of said act, under which these applications were made, requires that the applicant shall, among other facts, state in his affidavit "that he desires to purchase the same [the land] for his own use and benefit, and for the use and benefit of no other person or persons whomsoever, and that he has made no contract or agreement to sell the same." It is admitted that the provisions of section 3500. Pol. Code, which provides that "any false statement contained in the affidavit provided for in section 3495, defeats the right of the applicant to purchase the land, or to receive any evidence of title thereto." likewise defeats the right of any applicant to purchase the land under section 1 of said act of 1893. On his own behalf defendant testified to the truth of the statements contained in his affidavit, and the only evidence offered in support of plaintiff's allegation that defendant's application was made for the use and benefit of another than himself was an agreement, the nature of which does not clearly appear, made with one Fowler about January 1, 1905, and a contract made January 23, 1905, some 40 days after the filing of his ap plication, whereby defendant agreed to sell the land in question to one Rubenstein. Assuming these contracts subsequently made to constitute any evidence of the falsity of the affidavit, there was, nevertheless, a conflict of testimony upon the issue as to whether or not defendant at the time he made the application to purchase did so for his own use and benefit, and the finding of the court therein cannot be disturbed.

The contract to sell the land to Rubenstein was made before the certificate of purchase was issued, and it is contended that, by reason of entering into this contract prior to the issuance of this certificate, defendant lost his right to complete the purchase. In support of his contention appellant cites numerous cases, in all of which the decisions were based upon an express statutory provision either prohibiting or limiting the right of alienation or transfer; for instance, the statutes of the United States relating to homesteads require, upon the making of 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, there is an express prohibition of transfer or alienation prior to the issuance of the patents as to lands held under claim of preemption. Rev. St. U. S. § 2263. Our attention has not been called to any such limitation or requirement contained in the law relative to public lands of the state. The contract is with the state. and in the absence of any legislative expression other than that contained in section 3500, Pol. Code, which clearly was not intended to apply to an agreement to sell, made subsequent to the filing of an application and prior to the issuance of the certificate of purchase, it cannot be held that appellant's rights are in any wise abridged by the agreement under discussion. Section 3515, Pol. Code, expressly provides that "certificates of purchase, and all rights acquired thereunder, are subject to sale," etc. This express statutory grant of the right to sell the certificate cannot be construed as an expression of legislative intent that one who agreed to sell after filing his application and before the issuance of his certificate to purchase should lose his right to purchase. The policy of the law is to discourage restraints upon alienation. Rose v. Wood & Lumber Co., 73 Cal. 385, 15 Pac. 19; Phillips v. Carter et al., 67 Pac. 1031, 135 Cal. 604, 87 Am. St. Rep. 152; Lamb v. Davenport, 85 U. S. 307, 21 L. Ed. 759; Adams v. Church, 193 U. S. 510, 24 Sup. Ct. 512, 48 L. Ed. 769; Arnold v. Christy, 33 Pac. 619, 4 Ariz. 19.

Prior to the amendment of 1885, section 3495, Pol. Code, providing for the purchase of school lands, contained a provision requiring the affidavit of the applicant to state therein that the purchase "was for his own use and berefit, and for the use and benefit of no other person," etc. In construing this statute the facts being that H. had applied to purchase a section of school land under an agreement made with N. at the time of filing his application that one-half thereof was for the use and benefit of N., and which one-half thereof H. was to convey to N. as soon as purchased-the court held in Thompson v. Hancock, 51 Cal. 110: "There is nothing in section 3495 of the Political Code which prohibits the sale of any portion of a sixteenth or thirty-sixth section, belonging to

the state, to one who has contracted to convey to another a part of the land so acquired," reversing the lower court upon this point.

We find nothing in the lake land act of 1893, under which this application was made, which prohibits the applicant from making an agreement to sell the land before the issuance to him of the certificate of purchase therein provided for.

The judgment and order are affirmed.

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

(5 Cal. App. 622) BOHN V. PACIFIC ELECTRIC RY. CO. (Civ. 362.)

(Court of Appeal, Second District, California. May 28. 1907.)

JURY-RIGHT TO JURY TRIAL-TAKING CASE FROM JURY-CONSTITUTIONAL AND STATUTORY PROVISIONS.

The right of the trial court to grant a nonsuit at the close of the evidence, where it would be obliged to set aside a verdict for plaintiff. exists, and the exercise thereof is not violative of Const. art. 1, § 7, declaring that the right of trial by jury shall remain inviolate, or of Code Civ. Proc. § 2101, requiring all questions of fact, where the trial is by jury, to be decided by the jury, etc.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31, Jury, § 235.]

Appeal from Superior Court, Los Angeles County; Charles Monroe, Judge.

Action by John L. Bohn, administrator of Peter Bohn, deceased, against the Pacific Electric Railway Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Kendrick, Knott & Ardis, for appellant. Bicknell, Gibson, Trask, Dunn & Crutcher (Norman S. Sterry, of counsel), for respond

ent.

SHAW, J. The defendant owned and operated an electric railway line running from the city of Los Angeles through the town of Compton to Long Beach. It appears without conflict in the evidence that on September 12, 1904, the defendant was running a car at the usual rate of speed north on Wilmington street in said town of Compton, and when approaching Main street, which crosses said Wilmington street, one Peter Bohn appeared in a vehicle, to which was hitched a team of horses which he was driving south along said Wilmington street parallel with and on the west side of defendant's tracks. The car, running at a speed of 15 to 20 miles per hour, which was not in excess of the usual speed, was approaching the crossing at which there was a sign, "Railroad. Look out for the Cars," and its approach was in plain view of said Peter Bohn. The usual signal whistle was given, and the gong was kept going. There was nothing in Bohn's manner which indicated that he contemplated trying to cross the track until the car had reached a point about