though properly enough entered in the minutes, are not a part of the judgment rendered by the court. Sections 1172 and 1174 provide for exceptions and for a bill of exceptions to this very ruling. It may well be held that these provisions are exclusive of any other mode of obtaining a review, even when there is a judgment roll. But, however that may be, there can be no possible doubt about it in a case like this, where there is no other mode provided for a record upon appeal. There being no legal record from which we can determine whether the court erred, the orders or portions of the orders appealed from are affirmed in each case.

PEOPLE v. GEORGE. (Cr. 404.) (Supreme Court of California. July 21, 1898.) CRIMINAL LAW-COMPLAINT SUFFICIENCY.

The misstatement of the name of an affiant in a complaint charging an offense will not invalidate subsequent proceedings based on such complaint, which was subscribed by affiant.

Department 2. Appeal from superior court, Merced county; J. K. Law, Judge.

Information against James George for felonious assault. Appeal by the people from an order sustaining a motion to set aside information. Reversed.

Atty. Gen. Fitzgerald, for appellant. V. G. Frost, for respondent.

MCFARLAND, J. This is an appeal taken by the people from an order of the superior court sustaining a motion of the respondent to set aside the information, which charged him with felonious assault upon Frank Botano. The motion was made "upon the ground that before the filing thereof the defendant had not been legally committed by a magistrate for the offense charged in the information." The point rests entirely upon the alleged insufficiency of the complaint made before the magistrate upon the pre-. liminary examination. The part of said complaint necessary to be considered is as follows: "Personally appeared before me this 4th day of October, A. D. 1897, Frank Bartino, of Merced, the county of Merced, who, first being duly sworn, complains and accused James George of the crime of assault with a deadly weapon with intent to murder, committed as follows: That said James George, on or about the 3d day of October, A. D. 1897, at and in the said county of Merced, state of California, did willfully, unlawfully, and feloniously assault affiant, the said Frank Bartino, with a deadly weapon, with the intent then and there to kill and murder the said affiant. * ** * Said complainant, therefore, prays that a warrant may be issued for the arrest of the said

James George, and that he may be dealt with according to law. Frank Botano. Subscribed and sworn to before me, this 4th day of October, A. D. 1897. Jno. Naffziger, Justice of the Peace No. 2 Township, County of Merced." We think that upon these facts the court erred in setting aside the information. The preliminary examination and the commitment following it were certainly not void on account of any defect in the complaint. The most that can be said against the complaint is that it is somewhat ambiguous. The justice before whom the affidavit was made recites, at the commencement of it, that Frank Bartino "personally appeared before me," etc.; but in the body of the instrument the affiant testifies that the defendant, George, feloniously assaulted “affiant," and the affidavit is subscribed by Frank Botano, as affiant; and, as thus subscribed, it was certified by the justice to have been "subscribed and sworn to" before him. It is clear enough that Frank Botano was the person who was the affiant and made oath that the assault was made upon him; and the word "Bartino" was evidently inserted by mistake. The fact that in the recital the justice misstated the name of the real affiant, who actually subscribed the complaint, could not have prejudiced the respondent; and there is no doubt that he could successfully protect himself against any other prosecution for the offense charged. The court below directed the district attorney to file a new information, but it is difficult to see how a better one could be prepared. The information was sufficient in form and substance, and it does not appear "that before the filing thereof the defendant had not been legally committed by a magistrate.” The order appealed from is reversed.

We concur: TEMPLE, J.; HENSHAW, J.

(121 Cal. 495) PEOPLE v. BRENNAN. (Cr. 364.) (Supreme Court of California. July 21, 1898.) THREATENING LETTERS-INFORMATION-EVIDENCE

-STIPULATION.

1. An information which, after elimination of the word "extortion" in the general designation of the offense with which the accusation opens, properly charges the sending of a threatening letter with intent to extort money, will be held to charge the latter offense.

2. Evidence taken on a preliminary examination on one charge cannot, on subsequent stipulation that it be considered the evidence on another charge, be given in evidence on trial of the latter case; Pen. Code, § 686, providing merely that in a criminal action, where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of defendant, who has had an opportunity to cross-examine the witness, the deposition may be read, on its being shown that the witness is dead.

3. Stipulation, on preliminary examination of one charge, that there be considered, as evidence thereon, evidence taken on the examina

tion of another charge, is not a stipulation that on the trial of the case the evidence be admissible without regard to objections to its relevancy, materiality, and competency.

Department 2. Appeal from superior court, city and county of San Francisco; William T. Wallace, Judge.

Nicholas Brennan was convicted of sending a threatening letter with intent to extort money, and appeals. Reversed.

E. L. Forster and Richard Gibson, for appellant. Atty. Gen. Fitzgerald, for respondent.

TEMPLE, J.

An information was filed in the superior court of the city and county of San Francisco which accused defendant "of the crime of felony, to wit, extortion," in that he, with intent to extort money from one Theresa Tarpey, willfully, unlawfully, and feloniously sent her a letter which expressed and implied a threat to do her person an unlawful injury. The letter is set out in full. The de fendant was convicted, and this appeal is taken from the judgment and from the order denying his motion for a new trial. At the proper time the defendant moved the court to set aside the information because it did not comply with certain sections of the Penal Code, but he did not demur.

It is now contended that the information attempts to charge two offenses, and charges neither effectively. This claim is founded upon the use of the word "extortion" in the general designation of the offense with which the accusation opens. The word can be eliminated, and the information will still be good. Regarded as a charge of sending a threatening letter with the intent of extorting money, the information seems all that can be required. And it is plain that there is no attempt to charge any other offense. The defendant could not have been, and was not, misled by the unnecessary use of the word "extortion."

The charge was fully and accurately explained to the jury by the learned judge of the court. He said: "The real accusation, as set forth in the information, though denominated therein as 'extortion,' is not an accusation of an extortion committed,-an accusation that money was actually obtained by extortion, but that a threatening letter was sent by the accused with intent to extort money," etc. The defendant had been held upon three criminal charges, in all of which it was alleged that Theresa Tarpey was the victim of the crime charged. The complaints in the several cases, though put in evidence, are not in the transcript. Counsel and the court, in speak ing of them, designated them, respectively, as the charge of rape, or the rape case; the charge of extortion; and "taking a female by inducements for the purposes of prostitution, in which Theresa Tarpey is named as the female." The complaint charging the defendant with rape was filed December 4, 1896. The preliminary examination was commenced on the 15th of the same month, and, after

I

some testimony had been taken on the charge of rape, Officer Handley verified and filed with the magistrate the so-called charge of extortion. Mr. Vernon, the stenographer, was examined as a witness, and testified that a stipulation was made to the effect that the testimony taken in the rape case should be considered the evidence in the extortion case. It was made in open court and entered by him in his notes. As to the time or the stage in the proceedings when the stipulation was entered into, the following evidence was given: "Mr. Black: What was the date of that stipulation, that is, on the charge of extortion? A. That occurred twice. Mr. Van Duzer agreed to that at the time he took the testimony at the house, I believe. Q. What was the stipulation on that very day, though,— what date was that? A. That was the 15th day of December. The examination of witness was entered on the 28th of December. It was continued once or twice before that. The examination of witnesses on the charge of extortion was commenced on the 28th of December, and it was after two witnesses had been examined that this stipulation was entered of record and taken down by me, referring to the testimony that had already been taken on the other charge. That was the stipulation entered into by Mr. Long, who subsequently came into the case. Mr. Forster: Now, Mr. Vernon, what papers-what record -are you taking that stipulation from? A. I was looking at the extortion charge then. find a stipulation in the extortion charge here. It is: 'Mr. Mogan: It is stipulated that the testimony taken in the rape case be considered as the testimony in this case. Mr. Long: Yes; that is the case for the defense in the extortion matter.' Q. Well, now, wasn't there a stipulation in the record of the rape case also, Mr. Vernon, to that effect? A. Yes, sir. Q. And isn't that stipulation in the extortion record there a copy? Isn't that a part of the same record that is in the rape case? A. No; this is just at the end of the extortion case, before the testimony in the rape case comes on. That is the last thing before the testimony in the rape case comes on. Q. Well, isn't there a good portion of the record in the extortion case exactly the same as the record in the rape case? A. Well, there was additional testimony in the extortion case, and then the whole of the testimony in the rape case went in in the extortion case. Q. So the stipulation you are reading now from the extortion case is not the stipulation as would appear in the rape case, and as having been transferred from one record to the other? A. There was just the one stipulation made at that time,--that was the time that the extortion case was through,-that is, the additional testimony was through. Then that stipulation was made, but Mr. Van Duzer had previously made a stipulation at the house to that effect." Against the objections of defendant, the court then permitted the deposition to be read. It is not objected that the depositions were not properly certified. It is

contended that this deposition does not come within the statute, because it is not a deposition taken upon a preliminary examination of the defendant upon the charge upon which he was being tried.

The evidence was offered under the provisions of section 686 of the Penal Code, which, so far as material here, reads as follows: "In a criminal action the defendant is entitled: * *(3) To produce witnesses on his behalf, and to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a committing magistrate, and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness; or where the testimony of a witness on the part of the people, who is unable to give security for his appearance, has been taken conditionally in the like manner in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness, the deposition of such witness may be read, upon its being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found within the state."

As to that portion of the deposition which was taken before the stipulation was entered into, I can conceive of no theory upon which it can be brought under the provisions of the Code. Such testimony was not taken in the presence of the defendant, upon the charge then on trial.

The contention that none of the testimony was taken upon a preliminary examination of the charge upon which he was being tried is based upon the proposition that the examination was upon a charge for extortion, while the trial was held to be upon a charge for sending a threatening letter with intent to extort money. The complaint upon which the examination was held is not in the record. It is assumed to have been a charge of extortion rather than for sending a threatening letter, because the attorneys and the court, as well as the stenographer, so designated it when it was offered. It was before the court at the trial, and, for aught we know, may in fact have been identical with the present charge.

It is incumbent upon the appellant to make error appear. As in civil cases, where there is a specification of insufficiency of the evidence upon some point, we will presume that all the evidence upon such points has been put into the bill of exceptions. Here the bill contains no specifications as to any insufficiency, unless it be in regard to proof of venue. Under such circumstances, this point cannot be sustained.

The objections having been overruled, the district attorney proceeded to read the deposition of Theresa Tarpey, such witness

The

having died. The threatening letter is alleged to have been sent on the 21st day of December, 1895, and as to dates the testimony corresponds with the allegation. deposition commences by showing when the witness became acquainted with defendant, and then as follows: "Did you meet him in January, 1895? A. Yes, sir. Q. Did you go to any place with him? A. Yes, sir. Q. On or about the 4th day of January, did you go to what place? A. Pacific Heights. Q. In the day or night? A. Night." At this point the following occurred at the trial: "Mr. Forster: We object to all that testimony, if your honor please, as not competent, relevant, or material. This defendant is now being tried on a charge of extortion, having extorted through the alleged sending of a certain letter. Anything outside of that we object to, and in particular all that matter that is being read. The Court: This is the testimony, I understand, that was given before the committing magistrate on the hearing of that charge? Mr. Forster: On the charge of rape; this. testimony gets into the case by reason of the fact that it was taken during the preliminary examination on the charge of rape. The Court: But it was stipulated as the evidence also in this extortion case. Mr. Forster: Well, I presume that stipulation would only go so far as the parts are relevant to this case. The Court: It is admissible because it was stipulated; it is what the magistrate had before him; it is what the woman swore to. It seems she is dead, and they can't bring her here. Mr. Forster: Well, we will renew the objection. The Court: Well, I will overrule the objection. Mr. Forster: Exception. Well, I wish, if your honor please, to have a general objection go on record as to all the testimony outside of the actual sending of this letter, and have it understood that that is objected to, and objection overruled and exception taken. Mr. Black: That is the objection; there is no doubt about that (continuing reading)." The witness then proceeded to relate circumstantially the commission of the crime of rape upon her person by the defendant on the 4th day of January, 1895, which was, lacking just 14 days, one year before the sending of the threatening letter. It was not claimed that there was any connection between the charge of rape and the offense for the commission of which defendant was being prosecuted, other than that the testimony was given at the preliminary examination, or, rather, by virtue of the stipulation, was to be deemed as so given. It was not admitted because relevant or material, but "because it was stipulated." No evidence could possibly be better calculated to create a prejudice against the defendant, and nothing could be more obviously irrelevant. Page after page of it was read with remarks of counsel and the judge in the police court. Even there, much of the evidence was objected to, and the judge let

it all in without ruling upon its admissibility, taking it subject to a motion to strike out. The third charge upon which defendant was examined was a charge of enticing a female to become an inmate in a house of prostitution. When this charge was reached during the examination in the police court, as appeared from the notes of the evidence read at the trial, the attention of the witness was called to her complaint. In the superior court the following occurred: "Mr. Forster: We again renew our objection at this point, if your honor please, on the same ground, that all this matter is irrelevant and immaterial, and not bearing on the issues in this case. The Court: Well, it is her testimony, given under this charge, isn't it? Mr. Forster: On the charge of rape, as I understand it. The Court: Of course, I suppose it would be admissible as showing the relations of these parties. Mr. Forster (after discussion): Well, do I understand your honor to let this testimony go in? Court: Yes, sir. Mr. Forster: Exception. The Court: It goes in by stipulation of counsel and parties. Mr. Forster: Well, if that is the case, just consider that I have objected. With Mr. Black's consent, it is stipulated that I object to all of this testimony outside of the direct testimony in relation to the sending of the letter." The testimony was then read, and contained a long statement of how the defendant enticed her to a disreputable house. His promise to get some one "to show her how," etc. She also stated that he compelled her to go there; that she went because she was afraid of him; and there consorted with Chinamen, giving defendant the wages of her shame.

The

All this was alleged to have happened some two months after the sending of the threatening letter, and could not have thrown any light upon that charge, and it was not and is not claimed that it did. It was admitted because of the stipulation, and because the witness was dead at the time of the trial. There was no stipulation that the testimony could be read in evidence anywhere. All that the stipulation purported to be was that the evidence taken should be considered as taken in each of the three charges. So far as the preliminary examination was concerned, it should apply to all. There was no intent to stipulate to anything beyond. The deposition was not taken for the purpose of being read as evidence upon the trial. It was so read because of the death of the witness, which was not a thing to be anticipated.

Conceding that the testimony was taken at a preliminary examination upon which he was then being prosecuted, there is no use of a stipulation. The ruling was then based upon the proposition that all the evidence taken before a committing magistrate can, in the event of the death of the witness, be read at the trial, though not relevant, material, or competent, and yet injurious in the highest degree. I shall assume that there

is no occasion for argument on such a proposition.

There are other alleged errors in regard to the admission of testimony, but there must be a new trial, and most likely the same rulings will not be repeated. I am not able to make out from the record that the defendant has been denied a speedy trial. It is only fair to the defendant to state that evidence was produced in his behalf which tended to prove that Theresa Tarpey upon her deathbed retracted all that she had said in reference to the charge of rape, and for enticing her to a house of prostitution; that she sent for defendant's mother and sister, and made the retraction to them; and also signed a statement to that effect before a notary, who verified the same as a witness. The defendant, also on oath, denied their truth. Judgment and order reversed, and a new trial granted.

We concur: MCFARLAND, J.; HENSHAW, J.

(121 Cal. 257) ISAACS v. JONES et al. (Sac. 250.) (Supreme Court of California. July 23, 1898.) In bank. For opinion in department, see 53 Pac. 793.

PER CURIAM. Rehearing denied.

BEATTY, C. J. I dissent from the order denying a rehearing of this cause, and from the decision of the department. The matter in litigation in this action is the amount of surplus assets of the firm of Michael and Bernhard Isaacs, and the respective shares of the parties. Appellant had a lien upon Bernhard's share. Its lien was a valuable interest. The property and its value to which the lien attached not only can be, but must be, determined in the action; and, in my opinion, it is a plain case for intervention.

(19 Wash. 266) MORAN BROS. CO. v. NORTHERN PAC. R. CO. (Supreme Court of Washington. July 8, 1898.)

Specially concurring opinion. For prior report, see 53 Pac. 49.

GORDON, J. I concur in the result. Upon the pleadings in this case, I think the defendant would have been entitled to judgment. The reply admits that the sum of $75 was lawfully due defendant for freight charges upon the property replevied, and, until this was paid or legal tender was made, defendant was entitled to retain possession. But defendant did not see fit to avail itself of this defect in the pleadings, and the record contains no bill of exceptions, statement of facts, or mo tion for a new trial. Not a ruling of the trial court is assigned as error, nor does it appear

1. In an action for personal injuries, where defendant introduced evidence that plaintiff was intoxicated at the time of receiving the injuries, evidence as to plaintiff's general reputation and character for sobriety was not admissible in rebuttal, since it raised a collateral question.

2. Where an answer in a personal injury case, in addition to a general denial, alleged contributory negligence, and there was no motion to make it more specific, evidence that plaintiff was intoxicated at the time of the accident was admissible thereunder.

3. Where evidence was received without obJection, its immateriality cannot be urged on appeal.

App.) 21 S. W. 186, is cited and strongly relied on by the respondent; but, as we understand that case, it does not support his position. In that case the defendant claimed that the injury resulted from plaintiff's being so drunk as to stagger off the depot platform. To offset the evidence in support of such claim, plaintiff was permitted to call witnesses acquainted with his habits and con duct, to testify what effect, if any, imbibing intoxicating drinks had on him. It seeins to have been conceded that the plaintiff in that case was in liquor, and the question to which the evidence was directed was what effect imbibing liquor had upon him. The general and well-settled rule in negligence cases is that it is not proper for a plaintiff, in order to rebut evidence of particular acts of negligence, to show that he is generally careful, cautious, and prudent; nor can it be shown that a party is habitually careless to support a claim of negligence upon a particular occasion. The principle underlying these cases and the case at bar is that such evidence raises a collateral issue not affecting the question to be determined. Fahey v. Crotty (Mich.) 29 N. W. 876; City of Junction City v. Blades (Kan. App.) 41 Pac. 677; Adams v. Railway Co. (Iowa) 61 N. W. 1059; Railway Co. v. Bor

Action by John C. Carter against the city of Seattle. From a judgment in favor of plaintiff, defendant appeals. Reversed.

John K. Brown, for appellant. John E. Humphries, W. E. Humphrey, and E. P. Edsen, for respondent.

PER CURIAM. Plaintiff sued to recover damages for injuries sustained by falling from a sidewalk into a hole in an alley at a point where said alley joined the street. From the judgment in his favor based upon the verdict of the jury, the city has appealed. At the trial of the cause, evidence was given which tended to show that the plaintiff was intoxicated at the time of receiving the injury. In rebuttal, plaintiff testified that he had not been drinking on the evening of the accident, and also introduced three witnesses, who were permitted, over the objection of the appellant, to testify to his "general reputation and character for sobriety." The admission of this latter testimony constitutes the principal ground urged for a reversal. We think the court erred in permitting evidence to be given as to plaintiff's general reputation for sobriety. The effect of such evidence was to raise a collateral question, to draw the attention of the Jury from the issue they were called upon to try, and to engross their minds with a question wholly immaterial. Williams v. Edmunds (Mich.) 42 N. W. 534; Carr v. Railway Co. (Mass.) 40 N. E. 185, and cases there cited.

Co., 72 Hun, 197, 25 N. Y. Supp. 378.

Respondent claims that there was no issue as to intoxication, and urges that all testimony as to intoxication was immaterial. We think this position is not well taken. In addition to a general denial, the answer alleged contributory negligence. There was no motion to make the answer more specific. and the evidence as to intoxication was re ceived at the trial without any objection. For either of these reasons, the objection now urged by respondent comes too late. For the error above noticed, the judgment must be reversed, and the cause remanded for a new trial.

(19 Wash. 610)

COLEMAN ▼. MONTGOMERY et al (Supreme Court of Washington. July 12, 1898.)

APPEAL OBJECTIONS-EVIDENCE.

An objection to the reading of a copy of a power of attorney executed and of record in another state, without proof of the laws of the state on the subject, will not be considered, where the objection was general and indefinite. and was considered by the trial court as going only to the form of the recorder's certificate.

Appeal from superior court, Jefferson county; James G. McClinton, Judge.

Action by A. R. Coleman against J. B. Montgomery and others. From a judgment for plaintiff, defendant Montgomery appeals. Affirmed.

Robert W. Jennings, for appellant. A. R. Coleman and Trumbull & Trumbull, for re