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and the smaller children of the family resided. not safely go to trial on the day set. Dr. For this they received small sums of money Trueman testified that he was attending the and presents. There were six other cases of witness Charlie Yan Tie, and that the witness alleged rape upon these sisters, charged to was in bed very ill with a high fever, sufferhave been committed by different individuals, ing from blood poisoning, and would not be pending, and set for hearing at the time this out of bed for at least three weeks, and that case was called. Three of these were appar- it would be dangerous for said witness to ently against Chinamen, and three of them attend court. Upon the above showing the against white men or boys. The sisters were judge remarked to the district attorney that each suffering from venereal disease. While in his opinion the continuance would have to it is not clear that such disease existed at the be grante:1. The district attorney thereupon time of the alleged crime by this defendant, remarked, "We will concede that this Chinait is clear that it existed, and both sisters man will testify to anything in that affidavit were afflicted with it, when examined a short -everything that is material.” Thereupon time afterwards. The offense is statutory, the court denied the continuance, and to this and no matter how depraved was the girl ruling the defendant duly excepted. upon whom the act is alleged to have been It must be borce in mind that no question committed, nor how many others were equally was raised as to the sufficiency of the facts guilty, the defendant would be held none the as stated in the affidavit. The ruling of the less amenable to the law for his acts, if the court was based squarely upon the theory evidence supported the verdict, and no error that the admission of the district attorney to appeared of record; but, as the offense charg- the effect that the absent witness, if present, ed is one that of itself creates a feeling of would testify to anything in the affidavit, anprejudice and hostility in the minds of the swered the purpose and obviated the necessity jury, particularly in the case of a Chinaman, of a continuance; that the statements in the court will look carefully into the record the affidavit could be taken in lieu of the evito see that all the substantial rights of the dence of the witness. Such is not the law. defendant were given him by the trial court. The Constitution of the state (article 1, § 13) In this class of cases, as well as in all others, gives a defendant the right to have the proa defendant should be fully protected during cess of the court to compel the attendance of the trial in all his rights, and, if he cannot witnesses in his behalf. It is the duty of thus be convicted, he should not be convicted the court, when due diligence has been used. at all.

and it appears that the application is made The first contention made by defendant is in good faith, and the evidence is material, that the court erred in refusing to postpone to continue the case for a reasonable time so the trial for a reasonable time on account of that the case may be fairly tried on its the absence of a material witness, and the merits. In the early case of People v. Diaz, contention must be sustained. When the 6 ('al. 248, it was held that the admission of case was called for trial the defendant's the district attorney that the witness, if counsel answered that he was not ready, and present, would have testified as set forth in moved for a continuance on account of the defendant's affidavit, was not sufficient, but absence of Charlie Yan Tie, a material wit- that. in order to obviate the necessity of a ness for defendant. In support of the motion continuance, the district attorney should have counsel for defendant offered and read the admitted tl:e truth of the facts set forth in aflidavit of defendant, which stated in sub- the atlidavit. The court said: “The materialstance that Charlie Yan Tie was a material ity of the evidence having been shown, it witness, without whose testimony he could was the duty of the court, in the absence of not safely proceed to trial; that a subpæna evidence tending to discredit or throw sushad been duly issued and served upon the picion on the application to postpone the said witness several days before the day set cause, to afford the prisoner reasonable time for trial; that the witness was seriously ill, to secure the attendance of his witness. It under the care of a physician, and unable to was not sufficient that the district attorney appear in court; that the defendant could agreed that the witness would have deposent prove by said witness, if present, and expect- to certain facts, if present. Ile should have ed to prove by him, that defendant was not in admitted the truth of the facts absolutely. the presence of said Lillie Ida Davis at the it was the right of the accused to have his time of the commission of the alleged crime; witnesses orally examined in court, and this that the defendant bought from said witness right could not be frittered away by compeltwo dress skirts and sold the same at a profit ling him to go to trial in their absence within the two Davis sisters, and that the defend- out the benefit of their testimony upon it ant's reputation for truth, veracity, peace, statement of what the evidence would be, su!)and quietude is good; that defendant could ject to impeachment. The value of oral tes. not prove the said facts by any other witness. timony over all other is too well understood In support of said motion defendant's counsel to suppose for a moment that such declariltestified that before the trial, and immediately tions will have the same weight on the minils upon learning of the illness of the said wit- of the jury as the testimony of the witness ness, he notified the district attorney that if he had been examined before them in opez the witness was ill, and that defendant coul·l court.” The above case has never been over

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ruled or modified by any case to which our not the girl, with whom he is alleged to have attention has been called. It has been fol- had sexual intercourse, was suffering from lowed in Graham V. State, 50 Ark. 167, 6 venereal disease on the day of such alleged S. W. 721, and in Newton r. State, 21 Fla. intercourse. What reason was there for ex70. Its reasoning is logical. The district cluding the evidence? The prosecution apattorney could not by a concession as to "this parently desired to prove that in October, Chinaman" deprive the defendant of the 1905, the girl was suffering from chancroids. benefit of a substantial right. It was the This might, and was probably intended to, time and the occasion when his each and carry with it the inference that she contracted every right should have been guarded both by the disease from the defendant on the 20th the district attorney and the court. It was day of September. Defendant had the right the first continuance asked. There was no to meet this inference by showing that she question raised as to the good faith of the had such disease on the 26th day of Septemdefendant in making the application. If the ber. He further had the right to prove, and question as to the good faith of the applica- did prove, that he had nerer had such disease. tion, or the sufficiency of the matters an: l'pon all the facts thus proven the jury bad things stated in the affidavit, had been raised, the right to determine the guilt or innocence and sufficient showing made so as to appeal of defendant. The court refused to allow to the discretion of the court, the question any evidence as to whether or not the girl would be different: but here we have sture- Was suffering from the disease on the 20th ly presente l the ruling of the court based up- day of September. The objection of the dison the statement of the district attorney trict attorney was sustained to a similar quoted above. The court not only proceeded question asked of Eliza, the sister of the girl. upon such theory, but instructed the jury to | Eliza was asked the direct question as to regard the statement in the affidavit as part whether or not Lillie had chancroids, or of the evidence in the case, was though Char- running sores, on her private parts on the lie Yan Tie had in open court as a witness 26th day of September, 1907, but under the so testified."

oljection of the district attorney she was not The evidence on the part of the prosecution | permitteil to answer it. The mother of the tended to show that the allegedl act of sexual

girl testified that she had chancroids on the intercourse took place about 7 o'clock of the 26th day of September, 1903; but, it appearevening of September 20, 190.5. Lillie Ida ing on cross-examination that the mother Davis so testified. In cross-examination the only knew it by Eliza telling her, the court, defendant's counsel asked her the following on the motion of the district attorney, struck question: "Q. Yow, is it not a fact that on out the testimony. The rulings of the court the 20th day of September last at 7 o'clock in this regard were highly prejudicial to dein the evening you had renereal and running fendant. sores on your private parts, in your vagina, Other rulings are complained of which apand on the lips thereof?" The district attor- pear to be erroneous, but which it is not necney objected to the question as irrelevant, essary to discuss in detail. The defendant's immaterial, incompetent, and not proper cross- attorney asked Lillie Ida Davis in cross-exexamination. The court sustained the objec- amination if she had had intercourse with tion, to which ruling defendant duly excepted. anyone else in the past year, Upon objecThe ruling of the court was erroneous. Dr. tion of the district attorney the court refused McMahon, il witness for the prosecution, testi- to allow the question to be answered. She fied that he examined the girl in October, was further asked by defendant's attorney 1905, and that she was then suffering from if she had not had sexual intercourse with a venereal disease. In fact, the evidence shows great number of Chinamen in her bedroom at without contradiction that she had such dis- her home during the past year. The court ease early in October, 1905. Defendant testi- sustained the objections of the district attorfied that he never at any time had sexual in- ney to this line of questions. The defendtercourse with Lillie Ida Davis, and that he ant's attorney then asked questions as to had never had any kind of venereal disease particular named Chinamen, and as to dates in his life. Dr. Cothran, a graduate of the prior to September 26, 1903; but the court medical department of the University of Cali- made the same ruling excluding the evidence. fornia, testified that he examined defendant While the facts sought to be elicited by about two weeks before the trial for any evi- these questions would not justify the defendant dence of any variety of venereal disease: that

in having sexual intercourse with a girl under he examined physically all the parts affected 16 years of age as a matter of law, yet they in such cases; and that defendant had never were competent for the purpose of aiding the had chancroids (the disease from which the jury in arriving at the main facts. If the girl was suffering).

suffering). The evidence show's fact that the girl was suffering from a venerthat in most cases a male having sexual in- eal disease a short time after the alleged act tercourse with a female suffering from vener- of intercourse was a circumstance tending eal chancroids would contract the dise:1se. to corroborate the girl's testimony as to the Now, if defendant had no venereal disease, act with defendant, by raising an inference and never had chancroids, it seems to us that the venereal disease was communicate! that it was very material as to whether or by defendant, the defendant, in that spirit of fairness which should prevail in all trials, ness. That a prosecuting witness of tender should have been permitted to show that the years was in a case like this kept in the sole girl might have been diseased by sexual in- custody and control of the officers of the law, tercourse with others. Or it might be that and permitted to see no one else, is a circumdefendant could have shown that the girl stance that the jury should have known. was mistaken in his identity, and that it Every lawyer and every judge under such might have been some other Chinaman. The circumstances would at once infer that the evidence sought to be elicited by the questions witness was testifying under the influences would have tended to show the credibility of that had been surrounding her. the girl. If she had been having promiscuous Sam Chew was called, and testified for the sexual intercourse with Chinamen, or if she defendant. Under defendant's express objechad been diseased by sexual intercourse with tion and protest the district attorney was alothers prior to the date when it was shown lowed to ask the witness many insulting and that she had such disease, the jury had the immaterial questions on cross-examination. right to consider these matters. We do not Among these the district attorney asked the think the conviction of the defendant, under witness if he had not heard in Chinatown the circumstances of this case, was so im- that the defendant was taking little white portant that everything else except the single girls down there, and was warned that he fact should have been excluded from the jury. would get into trouble if he continued it; if The district attorney in his zeal desired the he had not heard that the members of the case to be presented to the jury upon evi- Hop Sing Tong accused defendant of producdence as to the one act with defendant, and ing white girls there; if it was not a fact the corroborating fact of the girl having a that witness was conducting a lottery on First venereal disease. Such facts alone would give street back of Bachigalupi's cigar store; if him a beautiful theory as to the defendant's witness was not selling lottery tickets at such outrage upon an innocent girl of tender years, place; if he was not running a poker game and his giving her a venereal disease; but at the same place; if witness was not selling the defendant had some rights. If she was lottery tickets and running a poker game up suffering from a venereal disease on Septem- to the time the grand jury before last began ber 26th, and defendant never had such dis- to investigate those things. We can conceive ease, it is a strong circumstance in favor of

of no reason why such questions should have the testimony of defendant. If the girl was been allowed. It is true that the witness entertaining a great number of Chinamen in denied that any of the matters were true the same manner, it was very important for that were implied by the questions, but that defendant to show that she may have been does not cure the error. The district attorney mistaken as to his identity.

did not attempt to prove the truth of any of It was said, in People v. Howard, 143 Cal.

the many things implied by the questions. 316, 76 Pac. 1116 (a similar charge to this): They may have entirely destroyed the effect "The light of investigation should have been of the testimony of the witness, and, more permitted to fall upon the witness, her state

than that, they may have created the belief ment and her conduct. If she was testifying that defendant was in the habit of seducing to the truth, such investigation would not

young girls. A witness cannot be impeached have injured the cause of the prosecution. by evidence of particular wrongful acts, exIf she was testifying to a falsehood, the de- cept it may be shown that he has been convictfendant should have been allowed in every ed of a felony. Code Civ. Proc. $ 2051. A witreasonable way to show it." In a concurring ness need not give an answer which will have opinion by the Chief Justice it was said that,

a tendency to degrade his character, unless if the prosecuting witness made no outcry, it be to the very fact in issue, or to a fact or complaint to others, or if she was induced from which the fact in issue would be preby threats of imprisonment to make the ac- sumed. Id. § 2065. Not only this, but a cusation, the jury had the right to take these

witness has the right to be protected from facts into consideration in determining her

irrelevant, improper, or insulting questions. credibility. The court in the case at bar re

Id. $ 2066. The above provisions of the fused to hear evidence that the witness made

Code apply alike to all witnesses, whether no' outcry. The defendant's counsel endeav- the witness be a Chinaman, a negro, one in ored to prove by cross-examination of the the most humble walks of life, or one in high prosecuting witness that ever since she was

position, the rule is the same. placed in jail, October 16, 1905, no one was

It is not necessary to consider other quespermitted to see her except the sheriff and

tions raised in the briefs. his deputies, the district attorney and his

The judgment and order are reversed. deputies and detectives. The court, under the objection of the district attorney, would not allow the testimony. It seems to us that

I concur: KERRIGAN, J. such testimony should have been allowed, and would affect the credibility of the wit- I concur in the judgment: HALL, J.

(5 Cal. App. 614)

spectively), located in Los Angeles county, HURWITZ V. GROSS. (Civ. 309.) upon which, or portions of which, there were (Court of Appeal, Second District, California. growing crops. Against these lands and the May 29, 1907. Rehearing Denied by Su- crops thereon there subsisted four mortpreme Court July 27, 1907.)

gages; two against the lands for $13,000 and 1. ACTION-JOINDER OF CAUSES-COMPLAINT.

$5,000, respectively, and two against the A complaint for breach of agreement to pay

growing crops, dated April 29, 1901, and Aumortgages, alleging that by reason thereof the mortgagee applied to the indebtedness the pro- gust 15, 1904, given to secure the payment of ceeds of plaintiff's property held as security, promissory notes for the sum of $2,000 and and plaintiff was obliged to pay the balance, $700, respectively, and each due one day aftwhile alleging two elements of damages, states but one cause of action.

er date. These crop mortgages were held by 2. CONTRACTS-ACTION FOR BREACH-PARTIES.

the California Citrus Union, which, at the To an action for breach of contract to pay request of plaintiff, picked and removed of mortgages, by reason of which the mortgagee said mortgaged crops, before January 19, applied to the indebtedness the proceeds of plaintiff's property held as security, and plain

1905, oranges belonging to plaintiff of the net tiff was obliged to pay the balance of the in

value of $1,001.47, as determined by the subdebtedness, the mortgagee is neither a neces- sequent sales thereof made by said Citrus sary nor proper party.

Union. On January 19, 1905, plaintiff sold to 3. SAME-ACT! ON FOR BREACH-DEFENSES.

defendant parcels designated as 1 and 2, for Defendant having as part consideration of a conveyance from plaintiff agreed to pay a

a consideration expressed in the "escrow inmortgage on plaintiff's property, and having structions" as follows: "We are to pay Mr. failed to pay, but directed the mortgagee to ap- Hurwitz $2300 twenty-three hundred for ply to its payment the proceeds of plaintiff's

above property and assume $13000.00 Mtg. property held as security thereof, and plaintiff having paid the balance, defendant may not

or Tr. deed & all Int. due, & assume $5000 question the validity and enforceability of plain- Mtg. or Tr. deed & Int. from Jan. 20, '03 & tiff's obligation to pay.

assume $2700 Chat. Mtg. & all Int. from Jan. 4. EVIDENCE-BookS OF ACCOUNT--PRELIMI

20, '05. Hurwitz to show statements from NARY PROOF. The regularly kept and original books of a

last 2 mtgee's that said int. is paid to said corporation identified as such by the proper date.” On the same day plaintiff, in execucustodians, and constituting the records of the tion of said agreement, made a conveyance to business transactions of the corporation, required by Civ. Code, & 377, to be kept by all cor

defendant of parcels 1 and 2, wherein was porations for profit, are admissible in an action

contained the following clause: "Subject to between other parties without further prelimi- | all incumbrances now of record against said nary proof.

property, all of which incumbrances the par[Ed. Note. For cases in point, see Cent. Dig. ties of the second part assume and agree to vol. 20, Evidence, $s 1628-1646.]

pay.” Defendant complied with the other 5. APPEAL--HARMLESS ERROR.

terms of the "escrow," but failed to pay the Any error in allowing witnesses to testify to what books in evidence contain and do not

chattel mortgages and free parcels 3 and 1 contain is harmless, the statements being cor- from the lien thereof, and notified the Citrus rect.

Union to apply the proceeds of sales of said [Ed. Note.-For cases in point, see Cent. Dig.

oranges, picked prior to January 19th, to vol. 3, Appeal and Error, 85 4161-4170.]

the payment of the indebtedness secured by 6. SAME.

said mortgages, which was done. The comWhere plaintiff's measure of damages is the amount of the mortgage obligation which de

plaint counts on a cause of action for damfendant agreed to, but did not, pay, any error ages for breach of contract, and fixes the in showing the amount of it which plaintiff paid amount of such damages at $2,700—the agin one way, the balance being paid in cash, is

gregate of the principal sums of said two harmless.

chattel mortgages, which damages are dividAppeal from Superior Court, Los Angeles ed into two elements: The first ($1,213) for County; W. P. James, Judge.

partial failure of consideration for the conAction by Morris Hurwitz against S. L.

veyance made by plaintiff to defendant being Gross. Judgment for plaintiff. Defendant

measured by the proceeds of sales of oranges appeals. Affirmed.

belonging to plaintiff, applied to the payment

of the chattel mortgages by the Citrus Union Herbert Cutler Brown and George H.

after defendant had assumed the same; and, Moore, for appellant. Charles L. Batcheller

second ($1,487) the unpaid balance necesand Thomas C. Ridgway, for respondent.

sary to clear said third and fourth parcels of

land, retained by plaintiff, from the lien of TAGGART, J. This is an action to recover said chattel mortgages. By answer and crossdamages for failure to perform an agree- complaint defendant claimed that plaintiff ment to assume payment of two certain chat. agreed that the entire orange crop for the tel mortgages. Judgment was for plaintiff, year 1904 should pass by the conveyance menand defendant appeals from the judgment | tioned in the complaint, and that plaintiff reand an order denying his motion for a new moved the portion of said orange crop so trial.

taken by the Citrus Union without defendPlaintiff on the 19th day of January, 1905, ant's knowledge or consent. No evidence was was the owner of four parcels of land (desig- introduced on this issue, and the court propnated in his complaint as 1, 2, 3, and 4, re- erly found against the contention of defend

ant in this regard. The burden was upon defendant to establish bis allegations.

While there are two elements of damage specially alleged in the complaint, it states but one breach of contract, and but one cause of action. This is sufficiently stated. It appears from the allegations of the complaint that defendant agreed to clear parcels 3 and 4 from the liens of the chattel mortgages and to assume the payment thereof, that there was a sufficient consideration for such promise or agreement, that he failed to performi his agreement, and that plaintiff was injured by reason of such failure. The cause of action must not be confused with the remedy or relief sought. Frost v. Witter, 132 Cal. 426, 64 Pac. 705, 81 Am. St. Rep. 53. This view of the complaint disposes of the errors ('omplained of in the rulings of the trial court upon defendant's demurrer to the complaint on the ground of misjoinder and the motions to strike out and to sever and separately state the two alleged causes of action which it was contended were misjoined in the complaint. The special demurrers based upon alleged uncertainty of statement of ownership and other allegations as to the oranges taken by the Citrus Union and applied to the payment of the indebtedness secured by the chattel mortgages were properly overruled. There was unnecessary detail, perhaps, in the allegations relating to this element of damage, but no uncertainty or ambiguity that could mislead the defendant in pleading to the complaint. The Citrus l'nion was neither a necessary nor proper party to the action. It had a right under its contract to apply the proceeds of the orange sales to the indebtedness due it, and plaintiff could not recover the money back merely because he had contracted with defendant to pay the whole of the mortgages and the latter had failed to do so. Plaintiff's only right of action was against defendant for the breach of his contract. The crop mortgage for $2,000 given by Gore constituted a lien upon all of plaintiff's crops, and its assumption by defendant was made a part of the consideration for the conveyance to him. He cannot now question whether plaintiff's obligation to pay it was a legal or moral oue. Hartwig v. Clark, 138 Cal. 668, 72 Pac. 149. Plaintiff treated it as a binding obligation and so did defendant when he directed the Citrus Union to apply the proceeds of sales of plaintiff's oranges to its payment, and also later when he paid the balance due thereon to the Citrus Union. Having directed the application of plaintiff's money to its payment, he is estopped to deny the validity and enforceability of the obligation against plain. tiff's demand for a repayment of the money so applied.

. The construction of the contract by the trial court was correct. In ascertaining what is meant by the language used in a written instrument, the object in view and the circumstances surrounding its execution must

be taken into consideration. Neale v. Morrow (Cal. App.) 88 Pac. 815. Taking the contract here under consideration by the four corners, and reading it with the eyes of those who made it, by the light and under the circumstances which surrounded its execution (Walsh v. Hill, 38 Cal. 487), we see that plaintiff had four parcels of land incumbered with mortgages; that defendant agreed in consideration of the conveyance to him of two of the parcels to assume the payment of all the liens on the four parcels and pay the plaintiff $2,300. The consideration to plaintiff then was the clearing of parcels 3 and 4 from the mortgage liens and the $2,300 cash in hand. The oranges severed from the land prior to the sale were the property of plaintiff. The amount of the crop mortgages, ascertained on the face of the agreement, was $2,700. This amount was fixed as the liability of defendant by the contract, and the plaintiff was required to pay the interest thereon to the date of sale. This construction of the "escrow" and the clause in the conveyance justifies the conclusions reached by the trial court. The evidence introduced warrants tlie findings of the court, and justified it in denying the defendant's motion for a nonsuit.

A careful consideration of the errors assigned in connection with the admission of evidence discloses no prejudicial error. A number of exhibits, copies of account sales, check sheets of the California Citrus Union showing particulars of oranges received from, and sold for and on account of, M. Hurwitz, were admitted in evidence over the objections of defendant. These were identified by the employés of the company in whose custody they were, who testified that they were the original sheets received from the district agent at the Covina office, the place at which the oranges were received and from which the shipments purported to have been made; that the witness did not make the entries; they were not made in his presence; and that he had no information as to the knowledge of the district agent who made them. The district agent at Covina testified that the transactions took place during his predecessor's incumbency; that he knew nothing of the transactions to which they referred except as to the custom of making such records; that he received them from bis predecessor as records of the office; that he was acquainted with the agent in whose handwriting they were and with his handwriting; and that they were in his handwriting. A "ledger sheet" and "weigher's receiving account slip" were also admitted in evidence over the objections of defendant. These were identified by the chief clerk in the office of the Citrus Union as original records from that office. He also stated that the bookkeeper who kept the book showing the account of Mr. Hurwitz was no longer in the employ of the company, and when last heard from was in Arizona. The wit

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