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upon the ground that by its laches the court had lost jurisdiction. It is not in conflict with the rule and procedure applied in McCormick v. Sheridan, and, if it were, McCormick v. Sheridan is the latest expression of this court upon the matter. McCormick v. Sheridan, nioreover, is in full accord with the views of the Supreme Court of the United States expressed in Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77, 32 L. Ed. 405, where it is said: “Jurisdiction of the person of the petitioner attached instantly upon the contempt being committed in the presence of the court, :nd was neither surrendered nor lost by delay on the part of the circuit court in exercising its power to proceed. It was within the discretion of the court whose dignity he had insulted, and whose authority he had openly defied, to determine whether it should, upon its own view of what occurred, proceed at once to punish him, or postpone action until he was arrested upon process, brought back into its presence, and permitted to make defense.” In People v. Barrett, 121 N. Y. 678, 24 N. E. 1095, the respondent had secreted himself in the jury room while the jury were deliberating, and had taken notes of their proceedings. He was discovered and afterwards charged with having committed a contempt of court. By the Supreme Court (People v. Barrett, 56 Hun, 351, 9 N. Y. Supp. 321) it was held that it was a contempt committed in the immediate view and presence of the court, and the Court of Appeals affirmed this determination. In Hughes v. People, 5 Colo. 436, an affidavit for a change of judges was presented to the court while in session by respondent's attorney, respondent, himself an attorney, being absent. The affiant was brought before the court by attachment, and the Supreme Court declared: “It was in the face of the court, and warranted the judge in taking cognizance of it summarily as though the words, instead of being written or read in court, had been spoken in facie curie.” The contempt being one committed in the presence of the court required no supporting affidavit. Code Civ. Proc. $ 1211. The could could have proceeded upon it summarily, or by citation to show cause the course here adopted-and could have allowed a showing in defense, extenuation, or mitigation. Nor is this matter in any wise controlled by subdivision 12 of section 1209, Code of Civil Procedure. While conceding to the Legislature the fullest power in the matter of contempts to lay down rules of procedure, we repeat what was said in Re Shortridge, 99 Cal. 526, 34 Pac. 227, 21 L. R. A. 755, 37 Am. St. Rep. 78: "No authority has been found which denies the inherent right of a court, in the absence of a limitation placed upon it by the power which created it, to punish as a contempt an act, whether committed in or out of its presence, which tends to impede, embarrass, or obstruct the court in the discharge of its duties. It is a doctrine which is admitted in
all its rigor by American courts everywhere, and does not need the support of foreign authorities, based upon the fiction that the majesty of the King, represented in the persons of the judges, is always present in the court. It is founded upon the principle, which is coeval with the existence of the courts, and as necessary as the right of selfprotection, that it is a necessary incident to the execution of the powers conferred upon the court, and is necessary to maintain its dignity, if not its very existence. It exists independent of statute. The legislative department may regulate the procedure and enlarge the power, but it cannot, without trenching upon the constitutional powers of the court, * * fetter the power itself."
Nor is the judge disqualified from sitting in the contempt proceedings. Petitioner's theory in this regard, if we understand it, is that the judge is disqualified from hearing the proceedings in contempt, because the contempt itself consists in imputations upon his motives, and attacks upon his integrity. Such is not and never has been the law. The position of a judge in such a case is undoubtedly a most delicate one, but his duty is none the less plain, and that duty commands that he shall proceed. However willing he may be to forego the private injury. the obligation is upon him by his oath to maintain the respect due to the court over which he presides. As was said by the Chief Justice of this court in Re Philbrook, 105 Cal. 471, 38 Pac. 511, 884, 45 Am. St. Rep. 59: "The law which in such cases makes us the judges of offenses against the court places us in an extremely delicate and invidious position, but it leaves us no alternative except to allow the court and the people of the state, in whose name and by whose authority it acts, to be insulted with impunity, or to exercise the authority conferred by law for the purpose of compelling attorneys to maintain the respect due to courts of justice and judicial officers." Were the rule otherwise so that it was required that another judge should be called in to sit in the proceeding, the recalcitrant and offending party would need only to insult each judiciai officer in turn until the list was exhausted, and thus, by making a farce of legal procedure, go scathless and unpunished.
Coming, now, to the facts constituting the alleged contempt, it appears that John Bashore is a man about 70 years of age, who has been an invalid for more than 20 years, has been partially deaf for several years, and whose wife attended to and conducted all of his business transactions, while he remained upon the ranch where they lived, some miles from Visalia; that he prosecuted an action to recover certain properties which had been sold under execution. The cause was tried before a jury, resulting in a verdict and juilgment adverse to him, and upon his appeal to this court a new trial was ordered for certain errors in the admission of evidence and in the giving of instructions. Bashore v. Parker, 146 Cal. 525, 80 Pac. 707. The affidavit in support of the application for a change of judges, with other impertinent and defamatory matter, declares as follows: "Which said rulings upon the admission of such evidence this affiant believes and alleges was done willfully and corruptly and for the purpose of preventing this affiant from having a fair and impartial trial of said action; and affiant believes that said Hon. W. B. Wallace is a sufficiently good judge of law to know that the said rulings so made by him, and such instructions given to said jury in said action, were erroneous, and such rulings and instructions were not the law of said case; and this affiant believes that said instructions were so given and such rulings made with a full knowledge on the part of said judge that they were erroneous at the time they were given and made. And this affiant believes that the dislike and hatred of said W. B. Wallace, judge, as aforesaid, is so great that he would willfully make unlawful rulings in the trial of this action against this affiant, and that he would find all matters of fact against this affiant, whether there was any evidence to sustain such findings or not, and that he would not give the testimony of this affiant, or the witnesses produced by him upon the trial of said action, any credit what. ever as against any witness of any kind or character that might be produced upon the side of the defendant in said action." This application for change of judges is founded upon subdivision 4 of section 170 of the Code of Civil Procedure, the provision of which is simply that, "when it appears from the atfidavits on file that either party cannot have a fair and impartial trial before any judge or court of record about to try the case by reason of the prejudice or bias of such judge, said judge shall forthwith secure the services of some other judge of the same or some other county.” It must need little consideration to show that the language above quoted, as addressed to the law, is flagrantly and willfully contemptuous. It states the mere be lief of Bashore, without any supporting fact, as in Morehouse v. Morehouse, 136 Cal. 332, 68 Pac. 976, unless it can be said that the fact that the judge fell into error upon the first trial of the case is sufficient to justi?s the imputation of a corrupt intent-an argument too preposterous to merit even enunciation.. But, outside of this circumstance, the whole declaration is but the purported belief of this aged invalid, with no attempt to state even the source of his information or origin of that belief. It cannot impress the unprejudiced mind as being other than a deliberate intent to insult and defame the judge. Let it be understood that we are not here declaring that if a judge has in fact indulged in corrupt practices, or has in fact given a ruling or decision through a corrupt motive, that those facts may not be stated. They may be.
And they would be prepotent evidence of bias and prejudice. But it may not for one moment be countenanced that, without supporting facts, lawyer or litigant may wantonly charged a judge with corrupt and improper' motives, and seek protection from the just consequences of such outrage under the shield of the Code provision. McCormick v. Sheridan (Cal.) 20 Pac. 24; In re Philbrook, 105 Cal. 471, 38 Pac. 511, 884, 45 Am. St. Rep. 59; People v. Brown, 30 Pac. 338, 17 Colo. 431; In re Mains, 80 N. W.714, 121 Mich. 603 ; Hughes v. People, 5 Colo. 436; In re Snow, 75 Pac. 741, 27 Utah, 263; Harrison v. State, 35 Ark. 458; In re Pryor, 18 Kan. 72, 26 Am. Rep. 747. So, while it is true that matters which are pertinent to the consideration and which are charged as facts are admissible, without reference to their effect upon the reputation of the judge, or of any one else, it is equally true that neither attorney nor litigant has any right to present such degrading accusations under the guise of mere belief, without the aid of a single supporting fact. May v. Ball (Ky.) 67 S. W. 257.
Indisputably, therefore, John Bashore, upon the face of this record, was guilty of contempt committed in the immediate presence of the court. Is his attorney, who presumptively prepared, and who certainly presented to the court, this affidavit, any less guilty? As the case now stands, we think not. Under his oath to maintain the respect due to courts, erery attorney stands responsible, not only for his own individual conduct in court, but for every paper which, knowingly, he presents on behalf of his client. As the matter is here before us, the petitioner knowingly pre sented this affidavit on behalf of his client, and for this he is equally culpable with his client. Defenses are open to him, and he may exonerate himself upon the hearing from intentional wrongdoing, if the facts warrant, but no doubt can be entertained of the jurisdic tion of the court, under the circumstances shown, to proceed with that hearing.
The writ is discharged.
BEATTY, C J.; ANGELLOTTI, J.; SHAW, J.; SLOSS, J.; McFARLAND, J.; LORIGAN, J.
(151 Cal. 451) LAMB v. WEBB, Atty. Gen., et al.
(L. A. 1,864.) * (Supreme Court of California. June 24, 1907.
Rehearing Denied July 24, 1907.) 1. MANDAMUS-SUBJECTS OF RELIEF-ACTS OF PUBLIC OFFICERS–MATTERS OF DISCRETION.
The power of a court to compel the Attorney General to grant leave to commence a suit against his conscientious belief that such leave should not be given, should be exercised only where the abuse of discretion in refusing leave, is extreme and clearly indefensible. 2. SAME-LEAVE TO BRING QUO WARRANTO PROCEEDINGS.
Code Civ. Proc. $ 1111, provides that any elector may contest the right of any person to an office to which he has been declared elected, 1 For dissenting opinion on rehearing, see 91 Pac. 646.
and the procedure described includes a recount, , tered upon the duties of the office on the first but there is no provision for a recount where no | Monday of July, 1905, and has ever since been one is declared elected. Pol. Code, $ 1067, provides that a special election must be ordered in
and now is the acting supervisor of said dis. case of a tie between those receiving the highest
trict. On June 9, 1907, plaintiff, Lamb, number of votes. Code Civ. Proc. $ 80. jiro- made application to defendant Webb, as Atvides that an action may be brought by the Attorney General in the name of the people upon
torney General, for leave to sue defendant the complaint of a private party against any
Glass under section S03, Code of Civil Properson who usurps, intrudes into, or unlaw- cedure, on the ground that Glass was “usurpfully holds or exercises any public office or ing," etc., the franchises of said office of sufranchise in the state, and that he must bring the action whenever he has reason to believe
pervisor. The purpose of the proposed action that any such office has been usurped, etc. At
was to show that by a recounting of the bala general election plaintiff and defendant, G., lots cast at the said general election on Yowere the only candidates for a certain office.
vember 8, 1904, there was not actually a tie, The election returns showed a tie as to them, and the canvassing board declared the vote a tie,
but that by a legal count of said ballots plainand ordered a special election at which G. was tiff had a majority of the votes. The Attorelected and was so declared. A certificate of ney General, after a hearing, refused to grant election was issued to G., who assumed and has
the leare, whereupon the plaintiff applied to since held the oflice. The regularity of the special election was not objected to, nor its legality
the Governor of the state for an order directassailed, but plaintiff applied to the Attorney ing the Attorney General to grant said leave General for leare to bring quo warranto pro- for suit, but the Governor refused to make ceedings against G. under Code Civ. I'roc. $
such order. Thereupon plaintiff brought this 803, proposing to show that by a recounting of the ballots plaintiff was elected at the first elec- present proceeding to have the Attorney Gention, The only showing made to the Attorney eral compelled by mandamus to grant the General was a verified complaint which plaintiff | leave to sue.
leave to sue. The defendant demurred to the proposed to file, which on information and belief alleged generally that four nonresidents had
complaint. The court overruled the demurbeen allowed to vote, and their ballots had been rer, and gave judgment ordering a perempcounted for G.; that baliots bearing marks of tory writ to issue as prayed for, and from identification were counted for G. and unobjec
this judgment the defendant appeals. tionable ballots for plaintiff had been rejected. Held, that the showing was not sufficient to jus
The application to the Attorney General for tify compelling the Attorney General by man. leave to sue was accompanied by a document damus to grant leave to sue.
in the form of a complaint, which plaintiff in
tended to file in the action which he proposed Department 2. Appeal from Superior
to bring against Glass if permitted to do so. Court, Santa Barbara County; J. W. Tag
This "complaint" was verified in the usual gart, Judge.
form adopted in this state for the verification Action by Cyril G. Lamb against Ulysses S.
of a pleading, and it constituted the only Webb, Attorney General, and another, for
showing under oath made to the Attorney a writ of mandamus. From orders overruling
General. Section SO3, Code Cis. Proc., under a demurrer to the complaint and granting
which the application was made, is as folthe writ, defendants appeal. Reversed, with
lows: "An action may be brought by the directions to sustain the demurrer.
Attorney General, in the name of the people Rehearing denied; Beatty, C. J., dissent
of this state, upon his own information, or ing.
upon the complaint of a private party, against U. S. Wet b, Atty. Gen., Geo. A. Sturtevant,
any person who usurps, intrudes into, or unB. F. Thomas, and Henley C. Booth, for ap
lawfully holiis or exercises any public office, pellants. Canfield & Starbuck, for respond
civil or military, or any franchise within this ent.
state. And the Attorney General must bring the action, whenever he has reason to believe
that any such office or franchise has been MCFARLAND, J. At the general election usurped, intruded into, or unlawfully held or held throughout the state on November 8, exercised by any person, or when he is di1904, the plaintiff, Lamb, and the defendant rected to do so by the Governor." Section Glass were the only candidates for the office 1111, Code Cir. Proc., declares that any electof supervisor of the third supervisorial dis- or may contest the right of any person to an trict of tlie county of Santa Barbara. The office to which he has been “declared elected." board of supervisors, sitting as a canvassing And the procedure is prescribed for such (onboard, declared the rote for this office to be test including a recounting of the ballots. a tie between said two persons, and thereup- There is no provision for a contest for a reon the board ordered a special election to be counting of the ballots where no one has been held in sail district to elect a supervisor "declared elected," but section 1067 of the l'otherefor as provided in section 1007 of the litical Code provides that, "if at any election Political Cole. It is admitted that the elec- two or more persons
* receive an tion returns showed a tie. Lamb and Glass equal and the highest number of votes, there were both candidates at the special election is no choice, and a special election to fill such which resulted in Glass receiving a majority office must be ordered by the proper board or of 11 of the votes cast thereat. The board officer.” As the board of supervisors las no declared the result accordingly, and a certif- power to open and count the ballots, the icate of election was issued to Gluss, who en- above provisiou evidently means that the
board must act upon the only evidence before it, to wit, the returns of the election officers.
Under our views of the case, we do not deem it necessary to decide a number of questions discussed in the briefs, as, for instance, whether or not the discretion of the Attorney General under section 803 to grant or refuse leave to commence a quo warranto proceeding is limited only by the control of the Governor as expressly prescribed in said section; whether the provision that in case of a tie (which necessarily means a tie appearing upon the returns) there shall be a special election is not exclusive of any other proceeding in the premises; whether the submission by respondent of his claims to the voters at the special election did not estop him from objecting to such special election as a final conclusion of the whole matter. These and certain other questions we shall not discuss because, assuming for the purposes of this appeal that the Attorney General's discretion under the said section is not entirely beyond the control of the court, and that the other points discussed should be determined in favor of respondent, still it is clear that the power of a court to compel him to violate his own judgment by ordering him to grant leave to commence a suit against his own conviction and conscientious belief that such leave should not be given should be exercised only where the abuse of discretion by the Attorney General in refusing the leave is extreme and clearly indefensible. When such an extreme case does not appear, a decree of à court compelling him to act against his judgment is erroneous, and is itself an abuse of discretion.
Now, if we apply the above principles to the case at bar, we find that in refusing leave to plaintiff to commence his proceeding in quo warranto the Attorney General was not only not guilty of a violation of his discretion in any extreme sense, but was not guilty of any want of discretion. What was the case presented to him upon the application of plaintiff for leave to sue? In the first place, it appeared that there had beeen a tie between the parties at the general election; that in pursuance of the provisions prescribed for such an emergency a special election was ordered; that at such election the defendant Glass received a majority of the votes cast at said election and received his certificate of election; that by virtue of such election and certificate he entered upon the possession of the office and was discharging its duties; and that no objection to the regularity and legality of the said special election had ever been made, and no proceeding had ever been instituted to assail it. Here, then, was a perfect prima facie case showing that Glass had not usurped the said office, but was rightfully in its possession. And it must be remembered that the question with an Attorney General always is: Has
any person usurped the franchises of the office? Did plaintiff overthrow or undermine this prima facie case by any showing which he made to the Attorney General? The only showing which he made was this: He presented to the Attorney General a document in the form of a verified complaint which he intended to file in his proposed suit. In the complaint there were only two statements made, which, if supported by evidence of their truth, should have had any effect on the Attorney General. The first was that at the said general election four named persons were allowed to vote who were not residents of the precincts in which they were so allowed to yote, and that these votes were counted for Glass. But this statement was made wholly and expressly "upon information and belief," and therefore was of no value to the Attorney General as the presentation of any fact. The other statement was that the election officers had counted for Glass votes which were cast upon ballots that had distinguishing marks placed there for the purpose of identifying them, and rejecting the ballots for plaintiff which were unobjectionable. The character of the distinguishing marks is not given. The plaintiff says in the said complaint that he does not know the number of ballots with such distinguishing marks which were allowed by the election board, or the number with plaintiff's name on which were rejected. He does not positively identify even one. But these statements are also made upon "information and belief.” Outside of this "complaint" there was no attempt at any showing whatever. No affidavit or oral testimony of any person as to any fact within his knowledge touching such election was offered. The only showing made by plaintiff before the Attorney General was therefore that he had been informed that certain things had occurred before the election board at the general election; and upon no further evidence he asked the Attorney General to allow him to introduce litigation and confusion into the county affairs by permitting him to use the former's name to commence a suit for the purpose of discovering by a recounting of the votes whether there might not have been some error committed by said board of election. Clearly, to our minds, this was not a sufficient showing to warrant a court in holding that the Attorney General ought to have been convinced that he had "reason to believe" that Glass had unlawfully intruded into and usurped said office of supervisor. The true rule on the subject is, in our opinion, expressed by the court in Lamoreaux v. Ellis, 50 N. W. 814, 89 Mich. 146, as follows: "It has been held by the King's Bench that a chief object in requiring leave is to prevent vexatious prosecutions, and the rule is inflexible that there must be affidavits so full and positive from persons knowing the facts as to make out a clear
case of right in such a way that perjury may concede that this Chinaman [the absent witness be brought if any material allegation is false" will testify to anything in that affidavit."
[Ed. Note.--For cases in point, see' Cent. Dig. -citing many authorities.
vol. 14, Criminal Law, $$ 1321, 1342-1347.] For the reasons above given, the judgment
2. RAPE-EVIDENCE-ADMISSIBILITY. appealed from is reversed, with directions to
In a rape trial, it was error to exclude testhe court below to sustain the demurrer to
timony that the prosecutrix had a venereal disthe complaint.
ease when the rape is alleged to have occurred; it appearing she had such disease shortly there
after, and that defendant had never had it. We concur: LORIGAN, J.; HENSHAW, J.
though it is contagious.
[Ed. Note.For cases in point, see Cent. Dig.
vol. 42, Rape, $ 62.] (5 Cal. App. 586)
3. SAME. BEKINS v. DIETERLE et al. (Civ. 372.)
In a trial for raping a girl under age, it (Court of Appeal, Second District, California. was error to exclude testimony that she had had May 25, 1907.)
intercourse with Chinamen other than defendant APPEAL-TIME OF TAKING-STATUTORY PRO
prior to the alleged offense; the evidence being
admissible to repel an inference that he had conVISIONS.
veyed a loathsome disease to her, to show that A judgment "that the temporary injunction
perhaps she was mistaken in defendant's idenheretofore issued herein to the sheriff of said county be and the same is hereby dissolved and
tity, and as tending to affect her credibility. vacated" is not an order, within the meaning of
[Ed. Note.-For cases in point, see Cent. DigCode Civ. Proc. § 939, providing that appeals
vol. 42, Rape, $ 59.] from certain orders and interlocutory judgments 4. SAME-EVIDENCE AFFECTING CREDIBILITY. may be taken within 60 days from their entry.
In a trial for raping a child under age, it Appeal from Superior Court, Los Angeles
was error to exclude testimony that she made no
outcry, and that no one was permitted to see her County; D. K. Trask, Judge.
except the authorities after she was placed in Action by Kate Bekins against Minnie Die- jail, since it affected her credibility. terle and another. On motion to dismiss ap
5. CRIMINAL LAW – APPEAL — PREJUDICIAL
ERROR. peal. Motion denied.
In a rape trial, error in allowing a witness J. Marion Brooks (Henry E. Willis, of coun- to be asked if he had not heard in Chinatown
that defendant was taking little white girls there sel), for appellant. E. W. Freeman and A. D.
and was warned he would get into trouble if Laughlin, for respondents.
he continued it, and if witness had not heard
that members of the Hop Sing Tong accused deSHAW, J. Motion to dismiss an appeal
fendant of producing white girls there, was not
cured by negative answers. from that portion of the judgment wherein it
[Ed. Note.For cases in point, see Cent. Dig. was adjudged "that the temporary injunction
vol. 15, Criminal Law, $8 3130, 3131.] heretofore issued herein to the sheriff of said
6. SAME-APPEAL-PREJUDICIAL ERROR. county be and the same is hereby dissolved
In a rape trial, error in allowing a witness and vacated." The appeal was not taken to be asked if he had not conducted a lottery within 60 days from the entry of this judg
and a poker game until a grand jury investiga
tion was not cured by negative answers. ment, and upon this ground respondent in
[Ed. Note.For cases in point, see Cent. Dig. sists that the same should be dismissed.
vol. 15, Criminal Law, 88 3130, 3131.] The judginent was not an order, within the meaning of section 939 of the Code of Civil Appeal from Superior Court, Santa Clara Procedure, and the motion to dismiss is de- County; J. R. Welch, Judge. nied.
Fong Chung, alias Fat Jim, was convicted
of rape, and he appeals. Reversed. We concur: ALLEN, P. J.; TAGGART, J.
John W. Sullivan, for appellant. U. S.
Webb and James H. Campbell, for the People. (5 Cal. App. 537)
COOPER, P. J. The defendant is charged PEOPLE y. FONG CHUNG, alias FAT JIM, (Cr. 74.)
in the indictment with the crime of rape, in
having had sexual intercourse on the 26th (Court of Appeal, First District, California. May 27, 1907.)
day of September, 1905, with Lillie Ida Davis,
an unmarried female under the age of 16 1. CRIMINAL LAW – CONTINUANCE – ABSENT
years. After trial the jury returned a verTESTIMONY. A continuance was improperly refused de
dict of guilty, and judgment was thereupont fendant, where he offered an affidavit that a ma- entered, sentencing defendant to a term of terial witness, without whose testimony he could
10 years in the state prison. not safely proceed to trial, had been subpænaed several days before the trial, but was seriously
The facts disclosed by this record are reill; that defendant could prove by the witness volting. The party upon whom the rape is an alibi, a good reputation for truth, etc., and alleged to have been committed was just 13 could not prove those facts by any other witness; the attending physician corroborating the
years of age, and had an elder sister Eliza defendant as to the witness' inability to attend
who was 15. It seems, with the apparent court, and defendant's counsel having apprised knowledge and consent of the father and the district attorney before the trial and upon mother, that these two young girls were and hearing of the witness' illness that defendant
had been in the habit of having sexual intercould not go to trial on the day set, and the necessity for granting a continuance was not ob
course with Chinamen and other parties at viated by the district attorney stating, "We will their home, in which the father and mother