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court held that the trial court was without jurisdiction to try the defendant for murder; but as we understand the opinion, written by Presiding Justice Cooper, it was so held because the offense charged did not involve the elements of manslaughter, and, as the defendant could not be convicted of murder, there was no authority to try him on the charge of murder or manslaughter. The question, therefore, was one of discretion with the trial court whether or not to admit the plea under the circumstances, and unless that discretion was abused this court will not interfere. It is not claimed that counsel for defendant were ignorant of his rights or of the decisions upon the very point in question. With this knowledge counsel, we must presume, intentionally chose to go to trial without a plea of jeopardy. They claimed and exercised the right to 20 peremptory challenges, when otherwise but 10 were allowed, tried and argued the case, and stood by until nearly all the instructions of the court had been given the jury, and then offered an ineffectual plea (State v. Lewis, 31 Wash. 86, 71 Pac. 778, citing People v. O'Leary, 77 Cal. 30, 18 Pac. 856), which was not corrected until the jury had reached a verdict. It seems to us that there was no abuse of discretion in the action of the court. Defendant received the same sentence at both trials, so that, while his counsel may reproach themselves for the risk they took in not pleading jeopardy, both they and defendant may find consolation in the fact that defendant has probably suffered no prejudice thereby.

2. In the course of the trial plaintiff offered in evidence a statement which plaintiff claimed defendant had made in the county jail in the presence and hearing of the district attorney, and which was reduced to longhand by the official court reporter, who was also present and heard defendant make the statement. It was objected to as immaterial, irrelevant, and incompetent. "The Court: I suppose that covers everything. I suppose it includes the accuracy of the transcription, and the accuracy of the interpretation. Mr. Cowan (attorney for defendant): No; we admit the accuracy of what Mr. Lafferty [court reporter] took down; that Mr. Lafferty took down what he heard. The Court: Of course I can't tell whether it is competent or not. I have not seen it or heard it. * * * The objection is overruled to the introduction of the statement." Later during the trial the question of the admissibility of this evidence came before the court, and the court said: "Gentlemen of the jury, I will admonish you that you are to disregard the statement read to you and alleged to have been the statement of Mr. Solani." In People v. Prather, 134 Cal. 436, 439, 66 Pac. 589, 590, the court said "Whatever error may have occurred in the admission in evidence of the verdict and judgment in the larceny case was cured by the subse

quent action of the trial court in taking the evidence away from the jury. At that time the court instructed the jury specially not to consider the evidence so taken from them, and it will be presumed that the jury obeyed the instruction." The court further said that it is only in certain exceptional cases where the action of the court in withdrawing evidence from the jury, which it deems erroneously admitted, may not be held to cure the error committed in its admission. Under ordinary circumstances the court should be allowed to correct an error of this kind, and, we think, it should be done under the present circumstances.

3. The homicide occurred in front of the Roma Hotel in the town of Glen Ellen at about 10 or half-past 10 o'clock at night. The evidence is conflicting as to the relation of the defendant and deceased to each other at the instant the fatal shot was fired. Two witnesses for the prosecution located deceased as standing from five to eight feet distant from the hotel porch, on which, or on the lower step leading up to the porch, the defendant stood. Another witness, a fellow Italian, was near the parties, when some angry words passed between them. He testified to having separated them at one time when defendant had drawn his revolver as though to shoot deceased. His testimony was that deceased was standing in the middle of the road when the shot was fired, and defendant was three or four steps from the porch, and about six or seven steps from the deceased; that deceased fell backwards to the ground when shot, and at the time was standing with his hands on his hips (showing the hands on the hips outside of the coat). Witness testified that he grappled with defendant after the first shot and threw him down, and while in this position defendant fired two more shots; both taking effect on witness. Witness Dr. Crepin, who assisted Dr. Thompson at the autopsy, testified for the prosecution at the first trial that there were powder marks on the skin around the wound. At the second trial he testified that he saw no powder marks and was quite sure there were none, but that he "could not swear to an absolute certainty that there were no powder marks." Dr. Thompson testified for the defense that there was discoloration around the orifice of the wound, which in his opinion "was caused by a powder burn," which did not extend beyond an area greater than two inches in diameter; that his opinion was based upon the appearance of the skin-"something embedded in the skin" which he "took to be particles of charcoal, particles of powder underneath the skin, underneath the cuticle." He further testified that he did not examine these particles to determine what they were; that he was not asked to do so; that his opinion was formed merely from surface indications; that he had no experience in the use of a gun, and in his medical experience he

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had not had occasion to examine or study gunshot wounds to any extent. Witness Hardman testified for the defense that he assisted in dressing the corpse for burial; that "there were little black specks, or rather black and blue, that was around that wound, from a distance-well the size of a half dollar or a dollar." Again: "What I have reference to by the grains was the impression. not see exactly the grains. but the impression as the corpse was stiff. That is as near as I can explain it. There was congested blood all over the face and forehead. There were little indentations on the skin." The testimony of defendant, in his own behalf, was that he had been thrown down by deceased and a friend of deceased, one Ricci; that Ricci was on top of him as he was lying on the ground, and deceased close by on the ground or on top of him. Defendant was corroborated in some degree as to his being down, and a witness testified that deceased was on top of him when defendant fired. It appeared that the revolver introduced at the first trial was not identified with certainty as the revolver introduced at the second trial as the one used by defendant, and there was some question whether it was a 32 or 38 caliber. Witness Boswell testified for defendant that he had experimentally fired into white paper with a 32-caliber revolver with a cartridge loaded with black powder, at distances of eight and fourteen inches and two and four feet. Defendant's counsel offered to prove by the witness that the revolyer discharged at a distance of eight inches from the muzzle of the revolver to the paper produced an effect similar to that described by witness Hardman. The witness was asked whether there were any powder marks shown in the experiments made at the other distances and if so to describe them. Certain four exhibits were shown the witness and offered for identification, which it was claimed tended to prove the result of Boswell's experiments. These exhibits were not offered, except for identification, and do not appear in the record. The district attorney objected to all this offered evidence as immaterial, incompetent, and irrelevant. The court sustained the objection on the grounds that the "experiments do not seem seem to have been under the same conditions or upon the same substance."

Among the cases which have come before our Supreme Court where this class of evidence has received attention are the following: People v. Clark, 84 Cal. 573, 24 Pac. 313; People v. Levine, 85 Cal. 39, 22 Pac. 969, 24 Pac. 631, People v. Woon Tuck Wo, 120 Cal. 294, 52 Pac. 833, and People v. Weber, 86 Pac. 671, 149 Cal. 325. The question is quite fully discussed in State v. Justus, 11 Or. 178, 8 Pac. 337, 50 Am. Rep. 470. In People v. Woon Tuck Wo, supra, it was held that the admission of such evidence is largely within the discretion of the trial court, and that a case will not be reversed 91 P.-42

for an abuse of discretion by the court in rejecting such evidence, unless it clearly within the principles by which it is allowed. The principle upon which this class of evidence is held admissible is stated as follows: "Unless the experiments are shown to have been under essentially the same conditions that existed in the case on trial, the tendency is to confuse and mislead, rather than enlighten, the jury"-citing Lake Erie, etc., R. R. Co. v. Mugg, 132 Ind. 168, 31 N. E. 564. The court further said: "There must be a possibility of reproducing substantially the same conditions which existed when the original occurrence took place, or the evidence will not be admitted." We should be unwilling to hold that under no circumstances could experiments be made in a case such as we have here, unless made upon a live human being. In Burg v. Chicago R. R. Co., 90 Iowa, 106, 57 N. W. 680, 48 Am. St. Rep. 419, it was held that the rule does not exact more than a substantial or reasonable similarity; and in Fein v. Cov. Mut. Ben. Ass'n, 60 Ill. App. 274, it was held that an experiment made upon white paper to test the distance at which powder would burn the human skin presented conditions substantially the same as the occurrence itself. The court said: "The difficulty of obtaining the latter substance for such an experiment is manifest, without argument to show that the substitution of paper was the best that could be done under the circumstances." In the case of People v. Clark, supra, the experiment with a Winchester rifle was made upon clothing to show that at a given distance no powder marks were made. In that case the evidence was admitted, but it was also an admitted fact that there were no powder marks upon the clothing of the deceased. In the Woon Tuck Wo Case the fact in dispute was whether the homicide could have been witnessed from the point where the witness stood who testified that he saw it committed. It was sought to prove by a witness standing at that point that he could not see and recognize a person standing where the defendant stood. The court said: "We think there could be no substantial reproduction of the same conditions under which the witness for the prosecution testified to having seen the homicide committed by the defendant and to have recognized him immediately afterward. The testimony of the various witnesses who testified for the prosecution and for the defendant, who were at the scene at the time of or immediately after the homicide, was very conflicting as to the condition of the lights at that time; and under these circumstances the proposed testimony of the witness McFarlane would have 'tended to confuse and mislead, rather than enlighten, the jury.'" In the case here the evidence was not only conflicting, but far from satisfactory, as to there being any powder marks plainly discernible around the wound. The caliber of the revolver used

for the experiment was not shown with cer- [ tainty to be the same as that used by the defendant, nor was there any evidence that the cartridge used for loading was the same in its contents.

It may be further observed that it nowhere appears in the record that the witness Boswell was asked to state the result of any experiment, except the one made at eight inches' distance from the paper. It was not shown what he would testify to as to other distances, or what the exhibits showed. Error must be made affirmatively to appear. Non constat but all his other experiments would have shown no powder marks, and thus have confirmed the theory of the prosecution.

The judgment and order are affirmed.

We concur: BURNETT, J.; HART, J.

(6 Cal. App. 144)

FISHER v. LUDWIG. (Civ. 353.) (Court of Appeal, Third District, California. July 30, 1907. Rehearing Denied by Supreme Court Sept. 26, 1907.)

1. GIFTS-INTER VIVOS-REQUISITES-DELIVERY-EXECUTED GRANT.

Civ. Code, § 1146, defines a gift as a transfer of personal property, which, when made in writing, is by action 1053 designated as a grant, conveyance, or bill of sale, and by section 1083 vests in the transferee all the actual title to the thing transferred which the transferror then had, unless a different intention is expressed or is necessarily implied, and section 1054 declares that the estate transferred is vested in the transferee on the donor's delivery of the grant. Held, that manual delivery of personal property is not essential to the validity of a gift thereof, evidenced by a written instrument duly executed and delivered.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 24. Gifts, § 37.]

2. SAME-EVIDENCE-BANK DEPOSIT-TRANS

FER.

Decedent, prior to his death being the owner of a bank deposit, executed a writing by which he authorized the bank to pay to defendant any money standing to his credit as a deposit in the bank, represented by a pass book with a specified number. This order, with the book, he gave to defendant, who filed the same with the bank, by which the order was accepted prior to decedent's death. Held, sufficient to establish a valid gift of the bank deposit inter vivos, although the account was not formally transferred on the bank's books until after decedent's death.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Gifts, $$ 52-57.]

Appeal from Superior Court, Placer County; J. W. Bartlett, Judge.

Action by George II. Fisher, as administrator of the estate of George Ludwig, deceased, against Caroline Ludwig. From a judgment in favor of defendant, and from an order denying plaintiff's motion for a new trial, he appeals. Affirmed.

A. K. Robinson, for appellant. John M. Fulweiler, for respondent.

BURNETT, J. Plaintiff, as administrator, brought the action for the recovery of $5,170, claiming that it belongs to said estate. and that the defendant unlawfully collected and embezzled said amount after the death of said George Ludwig. The defense is that the money was given to defendant by the said George Ludwig some time previous to his death. The issue is squarely presented by the pleadings, as follows. The complaint alleges: "That thereafter, to wit, January 29th, 1903, the said George Ludwig without any consideration therefor, and for the purpose that the said indebtedness due to him from the Sacramento Bank aforesaid and represented by said pass book 22.603 aforesaid might be drawn and collected therefrom and held in trust by the said defendant for his use and benefit, gave to the said defendant a power of attorney of which the following is a copy: 'Sacramento, Jan. 29, 1903. I hereby authorize the Sacramento Bank to pay to Caroline Ludwig any money standing to my credit as a deposit in said bank, represented by pass book No. 22,603. [Signed] George Ludwig.'" Defendant denies this allegation, and avers "that said George Ludwig, on the 29th day of January, 1903, executed and delivered to Caroline Ludwig, this defendant, for good and valuable consideration, an order, assignment, and transfer to defendant, absolutely and without any reservation, all the sums of money coming to said George Ludwig from, or standing to his credit in said Sacramento Bank as a deposit in said bank in his name and as represented by pass book No. 22.603, in words and figures as follows, to wit." Then follows the order hereinbefore set out. It is also averred in the answer that "the control and possession of said pass book No. 22.603 was also delivered to this defendant by said George Ludwig."

A distinction of importance is recognized in some of the decisions between a gift resting in parol and one made effective by virtue of a written instrument. In Driscoll v. Driscoll, 143 Cal. 535, 77 Pac. 471, Mr. Justice Harrison, who seems to have written most of the cases on this subject while he was a member of the Supreme Court, speaking for the court, says: "There is no statutory requirement in this state that a gift which is effected by an executed grant shall be accompanied by a delivery of the property given, and, as between the parties to the transaction, there is no violation of law or infringement of public policy, if the donor, after he has executed the instrument of gift, shall retain possession of the property. A gift is declared by section 1146 of the Civil Code to be 'a transfer of personal property' which if made in writing is by section 1053 called a 'grant or conveyance or bill of sale,' and by section 1083 'vests in the transferee all the actual title to the thing transferred which the transferror then has unless a different intention is expressed or is necessarily im

plied.' As under section 1053 of the Civil Code this promise applies to personal as well as real property, the interest intended to be transferred is under section 1054 of the Civil Code vested in the transferee upon the donor's delivery of the grant." The rule as to verbal gifts is provided in section 1147 of the Civil Code as follows: "A verbal gift is not valid, unless the means of obtaining possession and control of the thing are given, nor if it is capable of delivery unless there is an actual or symbolical delivery of the thing to the donee." The delivery of the written instrument to the donce in the one case then vests in him the title, but in the other case the means of obtaining possession must be given, and if capable of delivery the thing given must be actually or symbolically delivered to the donee before he can claim title. A failure to observe this distinction at times has led to some confusion and apparent conflict in some of the decisions. In fact, due consideration to this difference seems to have been given for the first time by our Supreme Court in the Driscoll Case, supra. Another consideration sometimes ignored is the difference between an action brought by an administrator of an estate as such and one brought by a creditor of the donor within the provision of section 3440. Civ. Code. But in the case at bar, whether the transaction be regarded in the light of a verbal gift or one effectuated by a written instrument explained by parol testimony, the evidence is clear and convincing that decedent prior to his death had voluntarily transferred the money in question to the defendant.

The evidence is without substantial conflict, and in its salient features is as follows: A. L. Smith, cashier of the Placer County Bank, testified: "I had something to do with the drawing of that order of July 29, 1902. [This was similar to the said order of January 29, 1903, but related to pass book 136.] I called at the office of the Sacramento Bank and was furnished with the original order that is dated July 29, 1902, by the cashier. I brought the order to Auburn with me and a few days later it was signed by George Ludwig. After it was signed by him it was filed with the Sacramento Bank. Prior to the drawing of that order I had a conversation with George Ludwig regarding moneys that stood in the Sacramento Bank in his name. He stated to me that he desired all his funds to go to Mrs. Caroline Ludwig before he died, in order to save any probating of the estate, and the order was drawn in connection with that particular matter. I had something to do with the drawing of the order of January 29, 1903. It was filed with the Sacramento Bank by me for Mrs. Ludwig. Pass book 136 was the term deposit, and 22,603 was the ordinary deposit. On the morning of March 12th, I received from Mrs. Caroline Ludwig an order requesting the Sacramento

Bank to transfer the amounts due to George Ludwig to a joint account in the name of Caroline Ludwig and George Ludwig. I wrote a letter to the Sacramento Bank requesting them to do that, and I sent the pass books which I had held in my possession for months for Mrs. Ludwig." He testified further that the Sacramento Bank replied suggesting some embarrassment that might arise in case of a joint account, and advising that it be opened with one who could give the other authority to draw. This letter was written March 14th. March 17th Mr. Ludwig died, and on the same day Mr. Smith, by direction of Mrs. Ludwig, wrote the Sacramento Bank to transfer the account to Mrs. Ludwig, which the said bank did on March 18th.

Mrs. Caroline Ludwig testified as follows: "I knew George Ludwig for 39 years. He was my brother-in-law and lived on ranch nine miles from Auburn. Prior to July 29, 1902, I had a talk with him about the disposition of his money. He wanted to give me the money, and he did give it to He gave me the bank book and an order for the money. When he gave it to me he told me to keep it. He told me he give me all the money he has got, and I shall keep it for myself. He said about the moncy represented by those books he told me to keep them, and if I wanted some money to go and get it, and any time he wanted money he come to me and get some. He gave me another order afterwards. When he gave that order he said to me, he gave me the order. He give me the books, and he told me to keep the money. I brought the books to the bank, and I gave them to A. L. Smith, and he kept them in the bank. I have drawn money out of the bank on Mr. George Ludwig's account. Whenever he told me he wanted money I drew it. If I had money in my pocket I went out and gave it to him without drawing it. I gave him all the money he wanted and everything he wanted. He simply gave me that money in the bank and wanted me to keep it because we worked together and earned it together, and he said it isn't more than right, because he didn't want to go through court."

J. M. Henderson, cashier of the Sacramento Bank, among other things, said: "The order of July 29, 1902, stands filed among the records of the bank as received on July 30, 1902. It authorized the bank to pay to Caroline Ludwig any money standing to the credit of George Ludwig represented by pass book 136, and the order of January 29, 1903, authorized the bank to pay to Caroline Ludwig, represented by pass book No. 22,603; and it was upon the strength of these orders that we recognized the subsequent orders of Caroline Ludwig dated March 12, 1904."

It is not contested that the whole amount in question is shown as a credit in said pass book 22,603. Of course, it may be that Mrs. Ludwig did not tell the truth; but as there

is nothing inherently improbable in her statements, and as the trial judge accepted them as true and based the findings upon her testimony and that of the other witnesses, we are not at liberty to discredit her testimony, but we must construe all the evidence so as to uphold, rather than overthrow, the judgment of the lower court. The record thus discloses every element of a gift. The deceased expressed clearly and unequivocally his intention that the defendant should have as her own the money immediately, and, since the property was not in his possession, he did all that the statute and decisions require. He gave her the means whereby she could reduce the property to her possession, to wit, the order upon the bank where the money was deposited. The elements necessary to the validity of a gift inter vivos have been specifically stated as follows: (1) The donor must be competent to contract. (2) There must be freedom of will. (3) The gift must be complete, with nothing left undone. (4) The property must be delivered by the donor and accepted by the donee. (5) The gift must go into immediate and absolute effect. Mercantile Safe Deposit Co. v. Huntington, 89 Hun, 465, 35 N. Y. Supp. 390; Matthews v. Hoagland, 48 N. J. Eq. 455, 21 Atl. 1054; Telford v. Patton, 144 Ill. 611, 33 N. E. 1119. Reduced to simpler form, it is held that a gift must be voluntary, gratuitous, and absolute. Williamson v. Johnson, 62 Vt. 378, 20 Atl. 279, 9 L. R. A. 277, 22 Am. St. Rep. 117. The foregoing elements must all be present to constitute a gift in this state, .except that delivery is modified, as we have seen, by the provisions of the Civil Code. And the only controversy here is as here is as to whether there was such a delivery as is required by the statute. The said order of January 29, 1903, was delivered to and accepted by the bank, and, if that be regarded in connection with the transfer of the pass book as a written instrument of gift, then the delivery of the money under the decision in the Driscoll Case, supra, was not required. That the said order was intended as an assignment of the money is shown clearly by the parol testimony, and there is no good reason why it should not be given the effect that was intended by the parties. But in any event, the order constituted the means whereby defendant could secure possession of the money, thereby satisfying the requirement of said section 1147, Civ. Code, since the property was in the hands of the bank and could not be actually delivered by the donor. The only circumstance in this connection urged by appellant entitled to any consideration is that the bank did not actually transfer the money to the account of defendant until the day after the death of the donor. It is difficult to see how the validity of the gift as between the donor and donee could be affected by any action of the bank. And it must be remembered that the plaintiff is in no better position to question the

gift than would the donor be if alive. To protect itself the bank might refuse to recognize the transfer, but the bank is not a party to the action, and, besides, the testimony of Mr. Henderson shows that the bank accepted and acted upon the orders before Mr. Ludwig's death. The fact that the clerical work of transferring the account had not been done is of no consequence, as the gift was complete prior to Mr. Ludwig's death. As stated in Hart v. Ketchum, 121 Cal. 428, 53 Pac. 931: "Money deposited in a savings bank may be the subject of a gift causa mortis if it appears from the transaction that the donor intended to confer upon the donee a present right to the money and at the same time clothed him with the means of obtaining it." And this applies equally to gifts inter vivos, as the only difference between the two relates to the power of revocation. Pullen v. Placer Co. Bank, 138 Cal. 170, 66 Pac. 740, 71 Pac. 83, 94 Am. St. Rep. 19.

It is claimed that the view of the lower court is opposed to certain decisions of the Supreme Court; but it is apparent that the facts in those cases are dissimilar to those before us, as will be disclosed by a brief reference to them. In Zeller v. Jordan, 105 Cal. 143, 38 Pac. 640, it was held that "the giving of a check by the wife to the husband in consideration of love and affection, with the understanding that the check is not to be used or presented until after her death, unaccompanied by the delivery of the pass book or of any order accompanying the pass book, as required by the rules of the bank, is invalid." Here the gift was to take effect immediately, and it was accompanied by the delivery of the pass books and an order upon the bank for the payment of the money. In Hart v. Ketchum, supra, the alleged gift was not absolute, but it was an unsuccessful attempt to make a testamentary disposition of property, as is apparent from what the intestate said: "I want you to draw this money and pay it out as I wish to have it done to different parties." There was nothing in his declarations to show an intent to make a present gift of the money. The case is not at all like the one at bar. In Knight v. Tripp, 121 Cal. 674, 54 Pac. 267, as stated in the syllabus, it is held that "oral declarations by an invalid woman preceding a written assignment of her personal property in contemplation of death, stating 'I want to give it to you or place all of it in your hands and tell you those I want should have it,' and other such declarations accompanying the transfer of bank books to the effect that she wanted to assign the money under certain conditions that she had given in regard to its disposal, are insufficient to sustain the claim of a gift." It is manifest that it was not the intention of the intestate in that case to vest the title in the defendant, but to constitute him her agent, rather than beneficiary, to carry out a testamentary disposition of her property. This was made clear by writ

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