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mant, unused, unappropriated, and prospec- veyance of water for a particular purpose, to tive right to drop said waters 100 feet to the wit, irrigation, the finding of the trial court bed of the Tuolumne river for the genera- that the prospective or remote possible use tion of electric power. This prospective or of the water for the generation of a limited contemplated use, pleaded in the defendant's electrical power to which uses and purposes answer and supported by its witnesses, the said waters have not heretofore been approcourt found to be of no value and an imprac- priated is of no value may be disregarded, tical project. It is strongly urged by appel- as the testimony and findings otherwise show lants that the judgment should be reversed that the appellant is receiving, as herein because the plaintiffs' complaint was not stated, all the water to which it is entitled, amended to conform to the issues actually and is making all the uses thereof which it tried by the court. Is this contention valid? The issues first tendered by the plaintiffs were the value of the ditch belonging to the power company and the portion thereof to be flooded by the erection of the Don Pedro dam. The complaint does not set forth the alleged rights of the defendant Waterford irrigation district other than it is entitled to certain waters, and that their taking of the ditch in question will not interfere with the uses of the waters of said system which the defendant has heretofore used, or the purposes or manner of its use. The amended

may lawfully do under the instrument of conveyance herein referred to. Under these conditions we do not perceive any real cause for complaint on the part of the appellant herein. The judgment of the trial court is hereby affirmed.

We concur: FINCH, P. J.; HART, J.

On Petition for Rehearing.

"It is understood and agreed between the parties hereto and made a condition of this grant that the grant for the uses of said water as herein stated is for the purposes of irriga tion only."

PER CURIAM. [2] The appellant in its petition for rehearing overlooks this portion answer of the defendant sets up all its as- of the deed of conveyance by which it claims serted rights which we have herein before title to 66 second feet of water, to wit: considered, and upon its asserted rights testimony was introduced and submitted to the consideration of the court. The trial court found, as we think correctly, upon the meaning of the terms used in the instrument by which the power company conveyed to the The original opinion of the court herein Waterford irrigation district a use of 66 calls attention to this fact and sets forth second feet of water. The trial court found, that, even if the trial court were in error in upon the testimony introduced as aforesaid, finding that the so-called prospective use for that the asserted right of the defendant to power purposes was of no value, such finding receive water running through a ditch at a could have no bearing upon the conclusion to certain level was of no value, and that the be reached from the fact that the defendant, defendant would have and receive all the under the instrument by which it obtained water to which it was entitled to be applied the right to use a certain quantity of water to the uses and purposes for which it has for irrigation purposes, acquired no title to purchased said water, and to which said the water for power purposes, and that uses had heretofore been applied by the Wa- therefore the contentions of the defendant terford irrigation district at a point in its cannot be sustained, because no property bemain canal theretofore used by the said Wa- longing to it has been taken away, or subterford irrigation district in conveying wa-jected to the uses and purposes of the plainter to and through its irrigation system. tiffs. This is not the exact language of the findings, but is a summary of their substance.

[3, 4] Appellant also appears to contend that the judgment against it is void, in that The pleadings in this case are not as clear nothing was condemned. If this is true, the and succinct as they might have been made; appellant is uninjured, as it is left with the the findings are not as explicit as might be full use and the only use of the water to desired; and the judgment of the court is which it was and is entitled under the deed not as direct and definite in setting forth the of conveyance upon which it bases its title. precise right of the parties in that it refers We do not see that section 1241, Code of to instruments set forth in the findings, Civil Procedure, has any bearing upon the which must be studied in order to ascertain issues presented in this case. That section, what is the judgment of the court, but the in subdivision 2, relied upon by the petitiondefendant Waterford irrigation district gets er herein, relates only to counties, cities, and all the water to which it is entitled. It is incorporated towns, and makes the finding of delivered to it at a point which enables the the legislative body thereof conclusive in district to make the same uses, and all the certain particulars. An irrigation district uses, thereof that it has heretofore made, does not come within any of the classificaand also all the uses granted to it by the in- tions therein mentioned. The necessity for strument through which it claims title to flooding a certain portion of the La Grange the said 66 second feet of water. The instru- ditch from which the waters conveyed by the ment under which the Waterford irrigation | Sierra & San Francisco Power Company to

(230 P.)

is set forth in the complaint, and is not de- | States or of the state of California or of any nied in the answer. The cause was tried, political subdivision thereof shall own or have so far as appellant is concerned, upon its in his possession or under his custody or conanswer, and as the judgment does not de- trol any pistol, revolver or other firearm capable of being concealed upon the person. The prive the appellant of any water to which it terms 'pistol,' 'revolver,' and 'firearms capable is entitled or of any uses of said water to of being concealed upon the person' as used in which it is entitled, we find no cause for dis- this act shall be construed to apply to and inturbing the judgment of the trial court. clude all firearms having a barrel less than 12 The petition for a rehearing is denied. inches in length. Any person who shall violate the provisions of this section shall be guilty of a felony and upon conviction thereof shall be punishable by imprisonment in a state prison for not less than one year nor for more than five years." Stats. 1923, p. 696.

PEOPLE v. BERTOLANI. (Cr. 1165.) (District Court of Appeal, First District, Division 1. California. Oct. 6, 1924.)

Aliens 17-Information against alien for carrying concealed pistol held to state public offense.

Information under St. 1923, p. 696, § 2, charging alien with possession and control of pistol, "capable of being concealed upon the person," stated a public offense.

To the information a demurrer was interposed upon the ground that it did not state facts sufficient to constitute a public offense. As above indicated, the demurrer was sustained without leave to amend, and plaintiff appeals.

Respondent's contention was and is predicated upon the claim that the act upon which the information is based is unconstitutional

Appeal from Superior Court, Fresno Coun- and void, for the reason that it discriminates ty; S. L. Strother, Judge.

Prosecution by the People against L. Bertolani. From an order of Superior Court of Fresno County sustaining demurrer to the information, plaintiff appeals. Reversed.

between a citizen and an alien.

In re

This precise question was presented and passed upon by our Supreme Court, and the constitutionality of the act upheld. Rameriz, 226 P. 914. See, also, Ex parte Prenosil (Cal. App.) 227 P. 1117. Every fact U. S. Webb, Atty. Gen., and Wm. F. Cleary, necessary to constitute the offense defined by Deputy Atty. Gen., for the People. the act in question is charged in the inforGearhart, Carling & Cummings, of Fresno, mation. It therefore sufficiently charges a for respondent. public offense.

TYLER, P. J. This is an appeal by the plaintiff, the people of the state of California, from an order sustaining a demurrer to an information filed against defendant by the district attorney of Fresno county, charging him with the crime of felony, to wit, possession by an alien of a firearm capable of being concealed on the person.

The charging part of the information reads as follows:

"The said L. Bertolani on or about the 22d day of September, 1923, at and in the said county of Fresno and state of California, and prior to the filing of this information, being then and there an unnaturalized foreign-born person, did willfully, unlawfully, and feloniously then and there have in his possession, under his control, a certain firearm, to wit, a pistol, capable of being concealed upon the person."

This information was premised and drawn under and in accordance with the provisions of section 2 of chapter 339 of the Statutes of 1923, approved June 13, 1923, and which went into effect on the 17th day of August, 1923. Section 2 of said act reads as follows:

"On and after the date upon which this act takes effect, no unnaturalized foreign-born person and no person who has been convicted of a felony against the person or property of another or against the government of the United

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(District Court of Appeal, Second District, Division 1, California. Oct. 6, 1924. Hearing Denied by Supreme Court Dec. 4, 1924.)

1. False pretenses 49(1)—Evidence held to show corroboration of complaining witness sufficient to justify conviction.

In prosecution for obtaining money by false pretenses in sale of interest in real estate business, evidence of other purchasers and prospective purchaser of such interest held sufficient corroboration of complaining witness, under Pen. Code, § 1110, to justify conviction. 2. False pretenses 15-Sale of worthless business by false pretenses held to support charge.

Sale of interest in worthless real estate

business by misrepresentations as to income therefrom, property listed for sale, etc., held to support charge of obtaining money by false pretenses as against contention that purchaser received what he bargained for.

Appeal from Superior Court, Los Angeles County; Walton J. Wood, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

G. A. Helmlinger was convicted of ob-, witnesses testified that he called upon detaining money by false pretenses, and he appeals. Affirmed.

Leo Daze and Cooper, Collings & Shreve, all of Los Angeles, for appellant.

U. S. Webb, Atty. Gen., John W. Maltman, Deputy Atty. Gen., and H. B. Eddie, of Los Angeles, for the People.

CURTIS, J. The defendant was convicted of the crime of obtaining money by false pretenses. The specific charge against the defendant was that he obtained the sum of $200 from the complaining witness T. S. Miller for a one-half interest in a certain real estate business, which defendant represented he was then carrying on at 311 San Fernando Building, in the city of Los Angeles. The false and fraudulent representations, which it is alleged defendant made to the said Miller, and which induced the latter to pay defendant said $200 for a half interest in said real estate business, were that said real estate business was then yielding a net profit of from $800 to $1,000 per month; that defendant had sold for one Benjamin F. Porter, at a price of $850 per acre, two tracts of land, one of 12 acres and the other of 25 acres, and that said defendant had listed with him for sale, by the owners thereof, a number of pieces of real property located in the city of Los Angeles.

[1] Practically the only question involved in this appeal is whether there is sufficient corroborative evidence in the record to com

ply with the requirements of section 1110 of the Penal Code. The complaining witness testified that he called upon the defendant in the first part of August, 1922, in response to an advertisement appearing in one of the daily papers of the city of Los Angeles, and that as a result of their negotiations, on the 6th day of September, he bought a one-half interest in the real estate business owned by defendant for the sum of $275, paying $200 in 'cash, the balance to be paid out of the profits of the business. He further testified in substance that all of the false and fraudulent representations set forth in the information were made to him by the defendant prior to the time he purchased an interest in said business, and that he was induced to make said purchase by reason of said false and fraudulent representations. No other person was present on any of the occasions when these statements were made by the defendant to the complaining witness, and it is claimed, therefore, that the testimony, as to the false pretenses made by defendant, lacks that corroboration required by the above provisions of the Code. Two other witnesses, however, testified in the case that representations similar to those the complaining witness testified were made to him were made to them by the defendant during the months

fendant, in answer to an advertisement appearing in a daily paper of said city, wherein defendant offered to sell a one-half in

terest in a real estate business located at 311 San Fernando Building, in the city of Los Angeles, and each of said two last-named witnesses testified that the defendant made statements to them which were practically the same as the statements which the complaining witness testified were made to him by the defendant, and each of said witnesses paid to the defendant the sum of $275 for a half interest in said real estate business, and one of said witnesses testified that, after finding that said business had been misrepresented to him by defendant, he demanded a return of his money and a dissolution of the partnership. The examination of the other of said witnesses was limited by the court simply to the representations made by .he defendant to him. A third witness testified that, in answer to an advertisement in the same daily paper, by the defendant, to sell a half interest in a real estate business at 332 Grosse Building, in said city, he called upon the defendant in the first part of June, 1922, and that practically the same representations were made to him as were testified to by the complaining witness.

A case presenting facts very similar to those in the present action was that of People v. Wymer, 53 Cal. App. 204, 199 P. 815. In that case it was held that:

"In this class of cases the circumstances connected with the transaction, the entire conduct

of the defendant, and his declarations to other

persons are proper matters for the consideration of the jury, and may be looked to to furnish the corroborative evidence contemplated by the law."

And it was accordingly held that the testimony of witnesses to whom the defendant had made statements similar to those testified to by the complaining witness was sufficient corroboration of the complaining wit ness to meet the requirements of section 1110 of the Penal Code, although said witnesses did not hear the defendant make any statement whatever to the complaining witness. Following this case, it must be held that the evidence in the present case shows a sufficient corroboration of the testimony of the complaining witness to justify the verdict of the jury.

[2] Appellant contends that, as the complaining witness received what he bargained for, that is, an equal partnership interest in the real estate business with the defendant, he is not defrauded. There can be no force in this argument, for it is founded upon a false premise. The complaining witness did not receive that for which he paid his money. He paid out his money for a partnership interest in a business that was represented to

(230 P.)

Vernon M. Brydolf, of Los Angeles, for ap

Albert Sidney Brown, of Los Angeles, for respondent.

CONREY, P. J. Action to recover damages for personal injuries and for injuries to plaintiff's automobile, both alleged to have been caused by negligence of the defendant Gertrude Wilson while driving an automobile, thereby causing her automobile to collide with the automobile of the plaintiff. Plaintiff recovered judgment in the sum of $1,254.75, of which $1,000 was the amount al

$1,000 per month net, and in connection with which the defendant had made certain sales pellants. of real property belonging to one Porter, and had other property listed for sale He received, according to the undisputed evidence, a partnership interest in a business that produced no net returns, had not made any sales of the Porter property, and had practically no property of others listed with it for sale. The complaining witness not only did not receive what he paid his money for, but he received absolutely nothing of value. The fraud practiced upon him by the defendant was complete. The regularity with which, as shown by the evidence, the defendant at-lowed for her personal injuries. Defendants tempted to fraudulently dispose of a fake business to unsuspecting victims, establishes, not only his intent to defraud the complaining witness in this action, but discloses a course of conduct on his part which is most reprehensible, and which, as we would naturally expect, finally resulted in his being haled before the criminal courts of the state.

appeal from the judgment.

The grounds of appeal, as stated by counsel for appellants, are that the evidence is insufficient to sustain either the finding that the defendant Gertrude Wilson was negligent or the finding that the plaintiff was not negligent, and that the damages awarded are excessive.

On the questions relating to negligence, the The judgment and order denying motion utmost that can be said in favor of appellants for a new trial are affirmed.

is that the evidence was conflicting. Never theless, there is evidence tending substantially to prove that the collision was caused by

We concur: CONREY, P. J.; HOUSER, J. negligence of Mrs. Wilson, and that there

DAVIS v. WILSON et al. (Civ. 4245.)

(District Court of Appeal, Second District, Division 1, California. Oct. 11, 1924.)

was no negligence on the part of the plaintiff. There is evidence directly to the effect that the defendant Mrs. Wilson approached the street intersection where the accident occurred at an excessive rate of speed, and without yielding the right of way to the plaintiff, who was approaching the intersection from the right, and who clearly had the right

1. Appeal and error 1011 (1) Finding of way. Conceding that there is evidence based on conflicting evidence will not be dis-tending to prove that the plaintiff's automoturbed. bile at the time of the accident was not entirely on the right side of the street, and that the plaintiff was "cutting the corner" in endeavoring to make a left turn, we find also other testimony directly to the effect that plaintiff's automobile was entirely on the right of the center of the street, and that she was not cutting the corner.

In personal injury action, finding based on conflicting evidence, that defendant motorist, who collided with plaintiff's car, was negligent, and that plaintiff was not negligent, will not be disturbed.

2. Damages 130(1)—$1,000 for personal injuries in automobile collision not excessive.

Evidence held not to show that award of $1,000 for personal injuries in automobile collision was excessive, or dictated by passion or prejudice.

An examination of the evidence concerning the nature and extent of the plaintiff's injuries is sufficient to satisfy this court that the amount of the award for those injuries was not dictated by passion or prejudice on Appeal from Superior Court, Los Angeles the part of the court, and was not necessarily County; Thomas O. Toland, Judge.

Action by E. Viola Davis against Gertrude Wilson and another. Judgment for plaintiff, and defendants appeal. Affirmed.

excessive.

The judgment is affirmed.

We concur: HOUSER, J.; CURTIS, J.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

STATE v. BAISH (No. 1233.) (Supreme Court of Wyoming. Dec. 2, 1924.)

8. Criminal law 829(10)-Requested in-
struction as to accomplice's testimony held
properly refused.

Requested instruction as to accomplice's
testimony held properly refused where other
instructions sufficiently advised jury of the law
on the matter to enable them to properly per-

1. Criminal law 1086(14), 1114(1)-Denial
of motion to dismiss prosecution, where nei-
ther denying order nor exception thereto inform their duties.
record, not reviewable.

Denial of motion to dismiss criminal prosecution predicated on fact that accused was compelled to testify against himself at his preliminary hearing, where neither order denying motion nor exception thereto appears in record, is not reviewable.

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815(7)-Instruction weight and consideration of accomplice's testimony, held not erroneous, as excluding other evidence by implication.

Instruction that while accused may be convicted on the uncorroborated testimony of an accomplice, such evidence should be acted on with great care and caution, and subjected to careful examination in the light of all other evidence in the case, and unless jury is satisfied beyond reasonable doubt of its truth they should acquit, held not erroneous as excluding

other evidence.

5. Criminal law 825 (4)-Instruction held not erroneous as failing to instruct as to what constitutes corroboration.

9. Larceny 65-Evidence held to sustain
conviction of grand larceny.

Evidence held to sustain conviction of grand
larceny of automobile.

Appeal from District Court, Natrona County; Robert R. Rose, Judge.

Art Baish was convicted of grand larceny,
and he appeals. Affirmed.

M. F. Ryan and F. M. Perkins, both of
Casper, for appellant.

David J. Howell, Atty. Gen., and John C.
Pickett, Asst. Atty. Gen., for the State.

RINER, District Judge. Art Baish was convicted in the district court of Natrona county of grand larceny, the property involved being an automobile, of the value of $2,500. From the judgment against him he appeals, and has filed seven specifications of error. As several of these relate to the same matter they can readily be discussed together.

[1-3] Appellant complains of the action of the trial court in denying his motion to dismiss the proceedings against him, the motion being predicated on the ground that he was compelled, over his objection, to testify against himself at his preliminary hearing before the justice of the peace. While the motion appears in the record before us, neither the order denying the motion nor any exception thereto can be found. It needs no citation of authority to establish that this court generally cannot review proceedings under such circumstances. Even if the omitted order and exception as claimed by appellant were before us, the result would have to be the same. The preliminary hearing was had before the justice of the peace on June 21, 1923. Thereafter an information was fil6. Criminal law 511(2)-Corroboration req- ed in the district court against Baish, to uisite to validate accomplice's testimony which, on September 4, 1923, he entered a should be to person of accused. plea of "not guilty." The motion under conCorroboration requisite to validate testi-sideration was filed October 17, 1923. It mony of an alleged accomplice should be to the undertook to bring into the record and beperson of the accused. fore the court, by means of an attached al

Instruction advising jury that corroborating evidence must be other and credible evidence tending to connect defendant with crime charged, held not objectionable in that jury was not instructed as to what constitutes corroboration, especially where no such charge was requested.

erroneous.

7484,

7. Criminal law 780 (3)—Refusal of request-leged transcript, the testimony given on preed instruction as to weight of impeached un- liminary hearing. But this can be done only corroborated testimony of accomplice held not by plea in abatement. See section Compiled Statutes of Wyoming 1920. Even if we should regard the motion as in fact a plea, as has sometimes been done by other courts, section 7487 of the statutes of this state declares that:

Requested instruction that if accomplice has testified differently at another time from his testimony in the case, defendant could not be found guilty on his uncorroborated testimony, omitting the words, "with reference to the facts in issue," held misleading, and its refusal was not erroneous.

"The accused shall be taken to have waived all defects which may be excepted to by a mo

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