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in the following: State v. Gilbert (Or.) de- ! 3.31, it was held that "it would approximate cided May 14, 1883 (unreported); People v. such a position to hold that he might be Corbett, 28 Cal. 328; Hopt v. People of Utah, bound by a contract providing for a trial be110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262; fore a court or jury unknown to the ConstituCrain v. United States, 162 U. S. 623, 16 Sup.

tion or the laws, the result of which trial Ct. 952, 40 L. Ed. 1097. The rule that it

might be to place him in the same prison. cannot be held that a defendant was legally In that case it was contended that ile cicconvicted, and thus be deprived of his liberty, fendant by failure to challenge a juror whe by a mere inference from the record, and that was not a citizen of the United States had every step essential to a trial according to waived his right to object to the proceedings law must affirmatively and clearly appear, after verdict; but it was there held that such is fully recognized and included in the doc waiver should not be recognized, and in distrine announced in State v. Walton, supra; cussing the question the Supreme Court of and as to whether defendant, by asking for a Michigan observe: “Let it once be settled continuance and thereafter by submitting to that a defendant may thus waive this contrial without protest, waived the right to be stitutional right, and no one can foresee the called upon to plead to the facts charged extent of the evils which might follow; but against him, we think the same rule should

the whole judicial history of the past must apply as there announced. As stated in Hopt admonish us that very serious evils should be v. People of Utah, supra: "That which the

apprehended, and that every step taken in law makes essential in proceedings involving that direction would tend to increase the the deprivation of life or liberty cannot be danger. One act of neglect might be recog. dispensed with or affected by the consent of nized as a waiver in one case, and another in the accused, much less by his mere failure

another, until the constitutional safeguards when on trial and in custody to object to un might be substantially frittered away. The authorized methods."

only safe course is to meet the danger in Even had defendant intended to waive his

limine, and prevent the first step in the rights in this respect, it must be remembered

wrong direction. It is the duty of courts to that this is a matter in which the public has see that the constitutional rights of a defendan interest, and which cannot be left entirely ant in a criminal case shall not be violated. to the wishes of the person on trial. Other however negligent he may be in raising the wise, a defendant might enter into a binding objection. It is in such cases emphatically contract with the state through the district that consent should not be allowed to give attorney to go to the penitentiary for a cer jurisdiction." The same reasoning there ain number of years in satisfaction of an adopted is applicable to the points involved offense. But it is too well settled to need ci

here. tation of authorities that the public has such For the reasons given in State v. Walton, an interest in procuring a trial of the citizens supra, as well as those here added, the judgof a state according to law as to preclude ment of the court below should be reversed. such proceedings. In Hill v. People, 16 Mich. and a new trial ordered.

(151 Cal. 675)

PEOPLE V. BRADBURY. (Cr. 1,377.) (Supreme Court of California. Aug. 14, 1907.) 1. INDICTMENT AND INFORMATION - CONVICTION OF LESSER OFFENSE-RAPE-ASSAULT.

Pen. Code, $ 240, defines assault to be an unlawful attempt, coupled with a present ability to commit a 'violent injury on the person of another. Held that, where defendant, charged with assault with intent to commit rape, was shown to be sexually impotent, he might be convicted of assault on evidence that his acts were such as to create a well-founded fear on the part of prosecutrix that he intended to rape her.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 27, Indictment and Information, $ 588.] 2. CRIMINAL LAW-INSTRUCTIONS_REQUESTED CHARGE.

criminal prosecution, a request to charge that, if the jury believed from the acts of witnesses for the prosecution, etc., that they, or any number of them, had pursued a common object of wrongfully prosecuting defendant for any wrongful purpose, and that such prosecution was instituted, not with the belief that the defendant was guilty of any crime, but in order that they might profit from making such charge, the jury should find defendant not guilty, was properly refused, as authorizing an acquittal if the jury believed that "some of the witnesses were actuated by improper motives, though sufficient evidence was given by other witnesses to sustain a conviction. 3. SAME-MISCONDUCT OF ATTORNEY.

Where, after the district attorney had asked an improper question, by which he sought to get certain inadmissible facts before the jury, the court, on defendant's objection, severely reprimanded him and instructed the jury not to consider such matter, and the district attorney submitted to the court's ruling and refrained from pursuing the subject, there was no reversible error.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 14, Criminal Law, 8 1693.)

In Bank. Appeal from Superior Court, Marin County; Thos. J. Lennon, Judge.

William B. Bradbury was convicted of assault, and he appeals. Affirmed.

James W. Keyes, for appellant. U. S. Webb, Atty. Gen., and Thos. P. Boyd, Dist. Atty., for the People.

$ 240) to be 'an unlawful attempts coupled with a present ability, to commit a violent injury upon the person of another. The ‘violent injury' here mentioned is not synonymous with bodily harm, but includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act. The term 'violence' as used here is synonymous with 'physical force,' and in relation to assaults the two terms are used interchangeably. State v. Wells, 31 Conn. 212; State v. Daly, 16 Or. 241, 18 Pac. 357; Am. & Eng. Enc. of Law, 'Violence. Mr. Bishop says (2 Crim. Law, $$ 32-34): "The kind of physical force is immaterial; * * * it may consist in the tak. ing of indecent liberties with a woman, or laying hold of and kissing her against her will.' There was testimony before the jury to the effect that the defendant was sexually impotent, and the court instructed them that if such was the fact he would not be guilty of the offense charged in the information: but although, in view of this fact, the jury were authorized to find that there was an absence of any ability on his part to commit rape on the prosecuting witness, they were not precluded from finding that his acts were such as to create a well-founded fear upon her part that such was his intent, and if so he was guilty of an assault. If the information had charged him with merely an assault upon her, the evidence set forth in the record would be sufficient to sustain his conviction thereon.

"(2) The court did not err in refusing to give the following instruction asked on behalf of the defendant: 'If the jury believe, from the acts of the parties appearing as witnesses for the prosecution, and from all the facts and circumstances in the case, that they, or any number of them, have pursued a common object of wrongfully prosecuting the defendant with the purpose of obtaining money from him, or for any other wrongful purpose, and that such prosecution was instituted, not with the belief that the defendant was guilty of any crime, but with the purpose of wrongfully charging him with such crime, that they might profit from making such charge, the jury should find the defendant not guilty.' A fatal objection to this instruction is that it authorizes the jury to acquit the defendant, if they believe that some of the witnesses for the prosecution were actuated by illegal motives, notwithstanding ample evidence for his conviction might have been given by other witnesses."

The only other contention made by appellant for a reversal is founded upon the alleged misconduct of the district attorney. This alleged misconduct appears in the record as follows: One Quigley had testified as a witness for the prosecution, and defendant, when presenting his evidence, had called and examined as a witness one L. B. Hills, who testified to certain statements made to bim

McFARLAND, J. This case was in the District Court of Appeal, First District, and an opinion was there delivered.

We approve and adopt all of the following part of that opinion :

"The defendant is charged in the information herein with an assault with intent to commit rape. Upon the trial thereon the jury found him guilty of an assault, and he was sentenced to pay a fine of $150. From this judgment he has appealed :

"(1) That upon the charge set forth in the information a conviction of an assault could be had is not disputed. See People v. Green, 1 Cal. App. 432, 82 Pac. 544. It is urged, however, that, as the jury found the defendant was not guilty of an attempt to commit rape, he could not be convicted of an assault, unless there was evidence of some violent injury to the prosecuting witness, and that the record fails to show that such evidence was given. An assault is defined (Pen, Code,

91 P. 32

by Quigley which the latter had denied mak question is a sufficient disposition of the mat ing. Thereupon on cross-examination the fol ter. It is only where a district attorney lowing occurred: “L. B. IIills: I have show's a clear and persistent attempt to inknown Mr. Quigley about five or six months. fluence a jury by wrongfully producing susHe told me that a hired man had knocked picions and hurtful suggestions through imMr. Bradbury down. Mr. Boyd: Did he tell proper questions that his conduct in the you why he knocked him down? A. Yo, sir. premises becomes such misconduct as will Q. Did he say he knocked him down for in warrant a reversal. sulting his wife? Jr. Kierulff: It seems to The judgment and order denying appelme that that is irrelevant, incompetent, and lant's motion for a new trial are affirmed. immaterial, and an improper statement. Mr. Boyd: I have the right to the conver We concur: BEATTY C. J.; SLOSS, J.; sation that occurred. Mr. Hosmer: Ile said LORIGAX, J.; HENSHA., J.; ANGELLOThe did not, and I submit that that is miscon TI, J. duct on the part of the district attorney, and we assign it misconduct. The Court: I think SIIAW, J. (concurring). I concur in the it is gross misconduct. Mr. Boyd: I submit opinion of Justice MCFARLAND. I wish to to your honor's ruling. The Court: After add, however, that, even in cases where a the witness has stated that he did not give district attorney does persistently attempt to his reason for it, you have no right to ask influence a jury by improper questions caliuhim the question and attempt to get before lated to produce suspicions and hurtful suythe jury something in that way that you gestions, it is the duty of the counsel for the could not do directly. It becomes my duty, defendant to make timely objection to the gentlemen, in view of the conduct of the dis court, and the duty of the court thereupon trict attorney, to admonish you that you will to instruct the jury that such suggestions pay no attention to anything suggested by must be disregarded and that such suspicions that question or by that answer. It is abso must be rejertell, and that when such inlutely not in this case. It is beyond your structions are given it will not be presumeil province, and the question should not have that the jury were influenced by the improper been asked, and you must disregard it en conduct objected to, unless the record shows tirely." No further attempt was made by extraordinary circumstances tending to show the district attorney to repeat the question, that such influence existed notwithstanding or to ask any other similar questions. He the caution of the court. I think that the immediately obeyed the ruling of the court. language of the opinions in some of the preConceding that it was wrong for the district vious decisions of this court goes too far in attorney to ask the question, there is no pre support of the theory that there is some sort cedent and no warrant for reversing the of a presumption that the misconduct of a judgment merely for the asking of the one district attorney will prevail with the jury improper question, under the circumstances and influence them in the face of the positive disclosed by the record. The cases where a instrutions of the court that they must not judgment has been reversed by this court for consider the

the suggestions thus

thus improperly the improper asking of questions have been made. The presumption should always be in some important respects similar in car that a jury has obeyeil the instructions of arter to the case of the People 1. Wells, 100 the court, ind, unless the contrary is shown Cal. 1.7.), 34 Pac. 1078, where the district at by the record, that presumption should pretorney persisted in asking a number of im vail in the appellate courts. proper questions, and, although the court sustained objections to these questions, it did not comply with appellant's request that

(151 Cal. 526) the district attorney be instructed not to ask GARVEY ». LA SIELLS et al. (Sac. 1,405.) any more such questions. In that case the

(Supreme Court of California. July 22, 1907.) court did not hold that the asking of the first

1. VENDOR AXD PURCHASER-CONTRACr-Posimproper question would have warranted a

SESSION-RIGHTS OF PURCHASER. reversal, but says that it "would not be, per In assignee of the purchaser of certain haps, of itself sufficient ground for reversing

mining claims in possession under a contract

of sale, obligating the vendor to give a warranty the judgment." In the case at bar only one

deed of the property conveying a perfect titlo improper question was asked. The district thereto, could not retain both the land and the attorney was severely reprimanded by the

price until a title should be offered, on the

vendor's failure and inability to convey a percourt for asking it, and he made no attempt

fect title but was required either to pay th: to repeat the question or to ask a similar one.

price according to the contract and receive such and the jury were expressly instructed to title as the vendor is able to give, or rescind pay no attention to anything suggested by

the contract. restore possession, and recover the question. Under these circumstances we

the amount paid, if any, with the value of im

provements after deducting rental value of the do not think that the question could have premises. been seriously prejudicial to the appellant. 2. SAME-P’URCHASE OF OUTSTANDING TITLE. or that it affords just ground for a reversal. A contract for the sale of certain mining It comes within the ordinary rule that the

claims obligated the vendor to deliver a war

ranty deed conveying a perfect title to the ensustaining of the objection to au improper tire claims. Two months prior to the date fixed

for the payrient of the price the purchaser's the payment of the $12.000 to the bank for assignee in possession discovered an alleged the use of the vendors, provided such payontstanding title to an interest previously owned by the vendor's co-tenant which such pur

ment is made at any time prior to the close chaser's assignee purchased. Held, that the pur of banking hours on July 12, 1904. The venchase of such outstanding title inured to the dee also agreed to pay $110 interest on the benefit of the rendor, and such assignee was

purchase price on November 12, 1903, and not entitled thereunder to possession as a tenant in common without paying the contract

$105 interest on January 12, 1904. It was price, but was only entitled to claim reimburse | mutually agreed that if the vendee failed to ment from the vendor for the amount paid for

pay such interest, or failed to pay the $12,000 such outstanding title, with interest.

by July 12, 1901, "this agreement is to be [Ed. Note.--For cases in point. see Cent. Dig. vol. 48. Vendor and Purchaser, $ 391.]

void and of no effect, and the deed which

the parties of the first part have agreed TRIAL-ISSC'ES-FAILURE TO FIND. Where the findings are sufficient as to all

to deposit in the Siskiyou County Bank is to material issues, a judgment will not be reversed be returned to them by said bank." Imor new trial granted for failure to make find mediately upon the execution of this agreeings on certain immaterial issues. [Ed. Note.--For cases in point, see Cent. Dig.

ment, possession of the property was delivervol. 46, Trial $ 940.]

ed by the vendors to La Shells, who accepted 4. SAME-CROSS-COMPLAINT-WAIVER OF OB

the same under the agreement. La Shells

continued in exclusive possession, mining the JECTIONS.

Where the issues raised on the cross-com property until April 23, 1904, when he transplaint and answer and by the complaint and ferred his interest in the agreement and the answer were tried together by consent, one of the defendants could not object that the issues

property described therein to the defendant raised on the cross-complaint and answer should corporation, the Klamath River Golil Mining bave been trid before the issues raised by the Company. Ever since such transfer such complaint anil answer.

corporation has been in exclusive possession, [Ed. Yote.--For cases in point, see Cent. Dig. mining, working, and operating such claim. vol. 2. Appea and Error, & 1252.]

Within the time fixed by the agreement the Department 1. Appeal from Superior Court,

three vendors deposited in escrow with the Siskiyou County ; J. S. Beard, Juilge.

Siskiyou County Bank, for delivery to La Action by J. J. Garvey against W. S. La

Shells upon compliance by him with the proShells and others. From a judgment in favor

visions of the agreement as to payment, their of plaintiff, and from an order denying de

grant, bargain, and sale deed purporting to fendant Kla nath River Gold Mining Com convey the property to him. Neither La pany a new trial, it appeals. Affirmed.

Shells nor the corporation ever paid, or, prior

to answer in this action, offered to pay, any W. F. Aram and Coburn & Collier (Lewis

portion of the consideration agreed to be paid, A. Heilbron, of counsel), for appellant. R.

and none of the interest has been paid, and on S. Taylor and James F. Lodge, for respond

July 13, 1904, the vendors, because of such ent.

failure to pay the $12,000 or any part thereof,

withdrew the deed deposited in escrow, and ANGELLOTTI, J. On September 25, 1903, demanded of La Shells and the corporation plaintiff and Lucien Guilbert and P. J. Gar

the possession of said property. This devey, claiming to own the same, were in the

mand not having been complied with, and exclusive possession of certain mining ground payment having been refused, and plaintiff known as the "Garvey Bar Placer Mining having succeeded to the interest of his coClaim," which consisted of the ground em vendors, this action was instituted for the braced in two locations, one being designated recovery of the possession of the property, the "Garvey Boys Mine" and the other the the amended complaint showing the facts "Last Chance." They had been in such pos before stated, and the court, upon sufficient session for five years, mining and operating evidence, finding the facts to be as so stated. the ground. On that day they entered into Defendant corporation, by its answer, ala written agreement with defendant La leged that it acquired La Shells' interest unShells whereby they agreed to sell to him said der the agreement on April 23, 1901, and that "Garvey Bar Placer Mining Claim," with it bas ever since been in the exclusive posall machinery thereon, for $12,000, payable on session. It further alleged that one Michael July 12, 1904. The vendors agreed that with Garvey was one of the original locators of in 10 days from September 25, 1903, they both claims and continued to own an undividwould execute "a good and sufficient deed to ed interest therein to the day of his death, said property, free and clear of all incum August 17, 1897, and that his estate continued brances and subject only to the title of the to own such interest until April 30, 1904, on Central Pacific Railway Company in and to which day said defendant purchased such unsuch portion of said mining claim as was divided interest from the estate. Basing its situated in said section fifteen, and subject claim on such purchase, it claims to be the only to the paramount title of the govern owner of such undivided interest and entitled ment of the United States. in and to the to possession of the claims. Further alleging remainder of said claim, and place the same that the vendors had falsely represented in the Siskiyou County Bank at Yreka, to themselves to be the exclusive owners of the be by the bank delivered to the vendee on property, subject only to the claims of the

railroad company and the United States gov of the estate of Michael Garvey in sail ernment, that the agreement was entered into claims, and that neither La Shells nor appelby La Shells because of such representations, lant had ever made any tender of any char. and that the estate of Michael Garvey was acter other than the offer in its answer althe owner of an undivided interest, which ready stated, both of which findings are susthe vendors had neglected to obtain and had tained by the evidence. never been able to convey, it declared that it Concluding that the most that appellant was ready and willing to pay the plaintiff could claim for the failure in part, if any, of the several sums of money specified in the plaintiff's title, would be the amount paid by contract "whenever the said plaintiff can con it for the Michael Garvey interest, $300, with vey to it a clear title to said property sub interest thereon from April 30, 1901, that deject only to the aforesaid interests of the fendant cannot in this action hold possession said Central Pacific Railway Company and of the property under the agreement, and at to the paramount title of the United States." the same time assert the adverse title of the

By its cross-complaint filed with the an Michael Garvey estate, and that plaintiff is swer, it alleged the ownership of the estate therefore entitled to recover possession of the of Michael Garvey as to such undivided in property, the court gave a judgment for such terest, its purchase thereof from the estate possession. on April 30, 1904, and its consequent owner

This is an appeal by the defendant corship and right to possession under said pur

poration from such judgment, and from an chase. Further alleging the agreement be order denying its motion for a new trial. tween the vendors and La Shells, and the as So far as the defense made by the answer signment thereof by La Shells to it on April is concerned, the case is simply that of a ven25, 1904, it alleged that by such agreement

dee who has received possession of the propthe vendors agreed not only to convey their

erty from the vendor under a contract of own interest, but also the interest of the es

sale, attempting to retain possession as tate of Michael Garvey, that the $12,000 spec

against the vendor without fulfilling his covified therein was the agreed consideration

enants as to payment on two grounds: (1) for the whole of said claims, and that the

That the title of the vendor is not good in vendors have wholly neglected to acquire the

that there is an outstanding undivided insaid Michael Garvey interest and convey the

terest in the property, which title such ven

dee, more than two months before the date same under the agreement. It further alleg. ed that since acquiring the La Shells' inter

fixed by the agreement for the payment of est in the agreement, it had placed improve

the purchase price, had itself purchased; and ments of the value of $10,000 on the property.

(2) that by reason of such purchase the

vendee became the absolute owner of such On these facts, it demanded judgment decree

undivided interest, and is as tenant in coming that it is the owner of the Michael Gar

mon entitled to remain in possession. There vey interest, and fixing the proportion of the

is no merit in these claims. whole purchase price which ought to be paid

As to the first ground, the position of apto the vendors for the remaining interests,

pellant is that it may indefinitely keep posand adjudging that, upon the payment of

session of the property so received from the such proportion within a reasonable time, a

vendor, while refusing to make payment of deed be executed to them for such remaining

the purchase price; in other words, may keep interest. By his answer to the cross-com

botin the property and the purchase money. plaint, plaintiff, alleging that the only agree

It has offered to pay nothing for the propment of sale between the parties was the one

erty, and confines itself now to offering to alleged in the complaint, and admitting that

pay anything only when plaintiff can convey Michael Garvey was originally a member of

a clear title, which, under its claim, plaintiff the mining co-partnership owning said claims, can never do, as the vendee has acquired the alleged that his interest had reverted to his

outstanding title, and thus made a conveyassociates by reason of his failure and that

ance impossible. We are now referring soleof his representatives to pay his proportional

ly to the matter set up in the answer. A portion of money expended in doing the as

purchaser cannot retain possession of propsessment work upon the property. It further

erty delivered to him under a contract of alleged that neither La Shells nor appellant sale without complying with the terms of the had offered to carry out the contract.

contract as to payment, for the reason that The court, after finding facts in accord the title of his vendor is not satisfactory. with the allegations of the complaint, as we If a perfect title was to be conveyed, and the have stated them, found that due notice of vendor is unable to give such a title, the forfeiture of the Michael Garvey interest to vendee has appropriate remedies, but he canhis co-owners for failure to pay bis propor not keep both the property and the purchase tion of the amount of assessment work bad money. The rule applicable, as stated in the been given on February 23, 1904, but, as will syllabus to Worley v. Nethercott, 91 Cal. 512, appear hereafter, we deem this finding imma 27 Pac. 767, 25 Am. St. Rep. 209, which has terial. It also found that on April 30, 1904, since been declared to be a correct summary the defendant corporation acquireil at pro of the decision (Haile v. Smith, 129 Cal. 115. bate sale for the sum of $300 all the interest CO Pac. 1032), is as follows: "A purchaser

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