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court held that the trial court was without , quent action of the trial court in taking the jurisdiction to try the defendant for murder; evidence away from the jury. At that time but as we understand the opinion, written the court instructed the jury specially not to by Presiding Justice Cooper, it was so held consider the evidence so taken from them, because the offense charged did not involve and it will be presumed that the jury obeyed the elements of manslaughter, and, as the de- the instruction." The court further said fendant could not be convicted of murder, that it is only in certain exceptional cases there was no authority to try him on the where the action of the court in withdrawcharge of murder or manslaughter. The ing evidence from the jury, which it deems question, therefore, was one of discretion erroneously admitted, may not be held to with the trial court whether or not to admit cure the error committed in its admission. the plea under the circumstances, and unless Under ordinary circumstances the

the court that discretion was abused this court will should be allowed to correct an error of this not interfere. It is not claimed that counsel kind, and, we think, it should be done unfor defendant were ignorant of his rights or der the present circumstances. of the decisions upon the very point in ques- 3. The homicide occurred in front of the tion. With this knowledge counsel, we must Roma Hotel in the town of Glen Ellen at presume, intentionally chose to go to trial about 10 or half-past 10 o'clock at night. without a plea of jeopardy. They claimed The evidence is conflicting as to the relation and exercised the right to 20 peremptory of the defendant and deceased to each other challenges, when otherwise but 10 were al- at the instant the fatal slot was fired. Two lowed, tried and argued the case, and stood witnesses for the prosecution located deceasby until nearly all the instructions of the ed as standing from five to eight feet distant court had been given the jury, and then of- from the hotel porch, on which, or on the fered an ineffectual plea (State v. Lewis, 31 lower step leading up to the porch, the deWash. 86, 71 Pac. 778, citing People v. O'- fendant stood. Another witness, a fellow Leary, 77 Cal. 30, 18 Pac. 856), which was Italian, was near the parties, when some not corrected until the jury had reached a angry words passed between them. He tesverdict. It seems to us that there was no tified to having separated them at one time abuse of discretion in the action of the court. when defendant had drawn his revolver as Defendant received the same sentence at though to shoot deceased. His testimony both trials, so that, while his counsel may was that deceased was standing in the midreproach themselves for the risk they took in dle of the road when the shot was fired, and not pleading jeopardy, both they and defend- defendant was three or four steps from the ant may find consolation in the fact that de- porch, and about six or seven steps from the fendant has probably suffered no prejudice deceased; that deceased fell backwards to thereby.

the ground when shot, and at the time was 2. In the course of the trial plaintiff offer- standing with his hands on his hips (showing ed in evidence a statement which plaintiff the hands on the hips outside of the coat). claimed defendant had made in the county Witness testified that he grappled with dejail in the presence and hearing of the dis- fendant after the first shot and threw him trict attorney, and which was reduced to down, and while in this position defendant longhand by the official court reporter, who fired two more shots; both taking effect on was also present and heard defendant make witness. Witness Dr. Crepin, who assisted the statement. It was objected to as imma- Dr. Thompson at the autopsy, testified for terial, irrelevant, and incompetent.

, “The the prosecution at the first trial that there Court: I suppose that covers everything. were powder marks on the skin around the I suppose it includes the accuracy of the wound. At the second trial he testified that transcription, and the accuracy of the inter- he saw no powder marks and was quite sure pretation. Mr. Cowan (attorney for defend- there were none, but that he "could not ant): No; we admit the accuracy of what swear to an absolute certainty that there Mr. Lafferty (court reporter] took down; were no powder marks.” Dr. Thompson testhat Mr. Lafferty took down what he heard. tified for the defense that there was discolorThe Court: Of course I can't tell whether ation around the orifice of the wound, which it is competent or not. I have not seen it or in his opinion "was caused by a powder heard it. * * * The objection is overrul- burn,” which did not extend beyond an area ed to the introduction of the statement." greater than two inches in diameter; that Later during the trial the question of the ad- his opinion was based upon the appearance missibility of this evidence came before the of the skin-"something embedded in the court, and the court said: "Gentlemen of skin" which he "took to be particles of charthe jury, I will admonish you that you are coal,

* particles of powder underto disregard the statement read to you and neath the skin, underneath the cuticle." He alleged to have been the statement of Mr. further testified that he did not examine Solani.” In People v. Prather, 134 Cal. 436, these particles to determine what they were; 139, 66 Pac. 589, 590, the court said “What- that he was not asked to do so; that his opinever error may have occurred in the admis- ion was formed merely from surface indicasion in evidence of the verdict and judgment tions; that he had no experience in the use in the larceny case was cured by the subse- of a gun, and in his medical experience he

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had not had occasion to examine or study for an abuse of discretion by the court in gunshot wounds to any extent. Witness rejecting such evidence, unless it comes Hardman testified for the defense that he clearly within the principles by which it is assisted in dressing the corpse for burial; that allowed. The principle upon which this class “there were little black specks, or rather black of evidence is held admissible is stated as and blue, that was around that wound, from a follows: "Unless the experiments are shown distance well the size of a half dollar or a to have been under essentially the same condollar." Again: "What I have reference to ditions that existed in the case on trial, the by the grains was the impression. You could tendency is to confuse and mislead, rather not see exactly the grains, but the impression than enlighten, the jury"-citing Lake Erie, as the corpse was stiff. * * * That is as etc., R. R. Co. v. Mugg, 132 Ind. 163, 31 N. near as I can explain it. There was congest- D. 564. The court further said: “There ed blood all over the face and forehead.

must be a possibility of reproducing substanThere were little indentations on the skin." tially the same conditions which existed The testimony of defendant, in his own be- when the original occurrence took place, or half, was that he had been thrown down by the evidence will not be admitted." We deceased and a friend of deceased, one Ricci; should be unwilling to hold that under no that Ricci was on top of him as he was ly- circumstances could experiments be made ing on the grourd, and deceased close by on in a case such as we have here, unless made the ground or on top of him. Defendant was upon a live human being. In Burg v. Chicacorroborated in some degree as to his being go R. R. Co., 90 Iowa, 106, 57 N. W. 680, 48 down, and a witness testified that deceased

Am. St. Rep. 419, it was held that the rule was on top of him when defendant fired. It

does not exact more than a substantial or appeared that the revolver introduced at the

reasonable similarity; and in Fein v. Cor. first trial was not identified with certainty Mut. Ben. Ass'n, 60 Ill. App. 274, it was held as the revolver introduced at the second trial

that an experiment made upon white paper as the one used by defendant, and there was

to test the distance at which powder would some question whether it was a 32 or 38

burn the human skin presented conditions caliber. Witness Boswell testified for de

substantially the same as the occurrence fendant that he had experimentally fired into

itself. The court said: “The difficulty of white paper with a 32-caliber revolver with obtaining the latter substance for such an exa cartridge loaded with black powder, at

periment is manifest, without argument to distances of eight and fourteen inches and

show that the substitution of paper was the two and four feet. Defendant's counsel of- best that could be done under the circumfered to prove by the witness that the revolv.

stances." In the case of People v. Clark, er discharged at a distance of eight inches

supra, the experiment with a Winchester rifle from the muzzle of the revolver to the paper

was made upon clothing to show that at a produced an effect similar to that described

given distance no powder marks were made. by witness Hardman. The witness was

In that case the evidence was admitted, but asked whether there were any powder marks

it was also an admitted fact that there were shown in the experiments made at the other

no powder marks upon the clothing of the distances and if so to describe them. Certain

deceased. In the Woon Tuck Wo Case the four exhibits were shown the witness and

fact in dispute was whether the homicide offered for identification, which it was claim

could have been witnessed from the point ed tended to prove the result of Boswell's ex

where the witness stood who testified that he periments. These exhibits were not offered,

saw it committed. It was sought to prove except for identification, and do not appear by a witness standing at that point that he in the record. The district attorney object- could not see and recognize a person standing ed to all this offered evidence as immaterial,

where the defendant stood. The court said: incompetent, and irrelevant. The court sus

“We think there could be no substantial retained the objection on the grounds that the production of the same conditions under "experiments do not seem to have been which the witness for the prosecution testiunder the same conditions or upon the same fied to having seen the homicide committed substance."

by the defendant and to have recognized him Among the cases which have come before immediately afterward. The testimony of our Supreme Court where this class of evi- the various witnesses who testified for the dence has received attention are the follow

prosecution and for the defendant, who were ing: People v. Clark, 81 Cal. 573, 24 Pac. at the scene at the time of or immediately 313; People v. Levine, 85 Cal. 39, 22 Pac. after the homicide, was very conflicting as 969, 24 Pac, 631, People v. Woon Tuck to the condition of the lights at that time; Wo, 120 Cal, 294, 52 Pac. 833, and People v. and under these circumstances the proposed Weber, 86 Pac. 671, 149 Cal. 325. The ques- testimony of the witness McFarlane would tion is quite fully discussed in State V. have 'tended to confuse and mislead, rather Justus, 11 Or. 178, 8 Pac, 337, 50 Am. Rep. than enlighten, the jury.'” In the case here 470). In People v. Woon Tuck Wo, supra, the evidence was not only conflicting, but it was held that the admission of such evidence far from satisfactory, as to there being any is largely within the discretion of the trial powder marks plainly discernible around the court, and that a case will not be reversed wound. The caliber of the revolver used

91 P.-42

for the experiment was not shown with certainty 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 ner distances, or what the exhibits showed. Erlor 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, 1N7.) 1. GIFTS - INTER VivoS-REQUISITES-DELIVERY-EXECUTED GRAXT.

Civ. Code, § 1146, defines a gift as a transfer of personal property, which, when made in writing, is by action 1033 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 transferre 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, evi(lenced by a written instrument duly executed and delivered.

[Ed. Note.-For cases in point, see Cent. Diy. vol. 24. Gifts, 8 37.) 2. SAME-EVIDENCE-BANK DEPOSIT-TRANSFER.

D''cedent, 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,

El. Yote.-For cases in point, see Cent. Dig. vol. 21, Gifts, $$ 32-57.]

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 bis 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 follow's, to wit." Then follow's the order hereinbefore set out. It is also averred in the answer that "the control and possession of said pass book Yo. 22.602 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, 113 Cal. 13.5, 77 Pac. 71, Mr. Justice Harrison, who seems to have written most of the (ases 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 11-16 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

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

Artion by George II. Fisher, as administrator of the estate of George Ludwig. de{"eased, 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.

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 donee 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 tiines has led to some confusion and apparent conflict in some of the decisions. In fact, due onsideration 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 3410. Civ. Code. But in the case at bar, whether the transaction be regarded in the light of a verhal 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 our ranch nine miles from Auburn. Prior to July 29, 1902, I had a talk with him about the disposition of his money. IIe wanted to give me the money, and he did give it to me. 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 money 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. Ile 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 be 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 be 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 bauk 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, 1901."

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 state- | gift than would the donor be if alive. To meuts, and as the trial judge accepted them protect itself the bank might refuse to recogas true and based the findings upon her tes- nize the transfer, but the bank is not a party timony and that of the other witnesses, we to the action, and, besides, the testimony of are not at liberty to discredit her testimony, Mr. Henderson shows that the bank accepted but we must construe all the evidence so as and acted upon the orders before Mr. Ludto uphold, rather than overthrow, the judg- | wig's death. The fact that the clerical work ment of the lower court. The record thus of transferring the account had not been discloses every element of a gift. The de- done is of no consequence, as the gift was ceased expressed clearly and unequivocally complete prior to Mr. Ludwig's death. As his intention that the defendant should have stated in Hart v. Ketchum, 121 Cal. 129, 53 as her own the money immediately, and, Pac. 931: "Money deposited in a savings since the property was not in his possession, bank may be the subject of a gift causa morhe did all that the statute and decisions re- tis if it appears from the transaction that the quire. He gave her the means whereby she donor intended to confer upon the donee a could reduce the property to her possession, present right to the money and at the same to wit, the order upon the bank where the time clothed him with the means of obtainmoney was deposited. The elements neces

ing it." And this applies equally to gifts sary to the validity of a gift inter vivos have

inter vivos, as the only difference between the been specifically stated as follows: (1) The two relates to the power of revocation. Puldonor must be competent to contract. (2) len v. Placer Co. Bank, 138 Cal. 170, 66 Pac. There must be freedom of will. (3) The gift 710, 71 Pac. 83, 94 Am. St. Rep. 19. must be complete, with nothing left undone.

It is claimed that the view of the lower (4) The property must be delivered by the court is opposed to certain decisions of the donor and accepted by the donee. (5) The

Supreme Court; but it is apparent that the gift must go into immediate and absolute

facts in those cases are dissimilar to those effect. Mercantile Safe Deposit Co. v. Hunt- before us, as will be disclosed by a brief ington, 89 Hun, 465, 35 N. Y. Supp. 390; Mat- | reference to them. In Zeller v. Jordan, 105 thews v. Hoagland, 48 N. J. Eq. 455, 21 Atl.

Cal. 143, 38 Pac. 610, it was held that "the 1051; Telford v. Patton, 144 Ill. 611, 33 N.

giving of a check by the wife to the husband E. 1119. Reduced to simpler form, it is held in consideration of love and affection, with that a gift must be voluntary, gratuitous,

the understanding that the check is not to and absolute. Williamson v. Johnson, 62 Vt.

be used or presented until after her death, 378, 20 Atl. 279, 9 L. R. A. 277, 22 Am. St. unaccompanied by the delivery of the pass Rep. 117. The foregoing elements must all

book or of any order accompanying the pass be present to constitute a gift in this state,

book, as required by the rules of the bank, is .except that delivery is modified, as we have invalid.” Here the gift was to take effect seen, by the provisions of the Civil Code.

immediately, and it was accompanied by the And the only controversy here is as to delivery of the pass books and an order upon whether there was such a delivery as is re- the bank for the payment of the money. In quired by the statute. The said order of

Hart v. Ketchum, supra, the alleged gift was January 29, 1903, was delivered to and ac- not absolute, but it was an unsuccessful atcepted by the bank, and, if that be regarded | tempt to make a testamentary disposition in connection with the transfer of the pass of property, as is apparent from what the inbook as a written instrument of gift, then testate said: "I want you to draw this monthe delivery of the money under the decision ey and pay it out as I wish to have it done in the Driscoll Case, supra, was not required. to different parties." There was nothing in That the said order was intended as an as- his declarations to show an intent to make signment of the money is shown clearly by a present gift of the money. The case is not the parol testimony, and there is no good at all like the one at bar. In Knight v. reason why it should not be given the effect Tripp, 121 Cal. 674, 54 Pac. 267, as stated in that was intended by the parties. But in the syllabus, it is held that "oral declarations any event, the order constituted the means by an invalid woman preceding a written aswhereby defendant could secure possession signment of her personal property in conof the money, thereby satisfying the require- templation of death, stating 'I want to give ment of said section 1147, Civ. Code, since it to you or place all of it in your hands and the property was in the hands of the bank tell you those I want should have it,' and and could not be actually delivered by the other such declarations accompanying the donor. The only circumstance in this con- transfer of bank books to the effect that she nection urged by appellant entitled to any wanted to assign the money under certain consideration is that the bank did not actual- conditions that she had given in regard to ly transfer the money to the account of de- its disposal, are insufficient to sustain the fendant until the day after the death of the claim of a gift.” It is manifest that it was donor. It is difficult to see how the validity not the intention of the intestate in that case of the gift as between the donor and donee to vest the title in the defendant, but to concould be affected by any action of the bank. stitute him her agent, rather than beneficiary, And it must be remembered that the plain to carry out a testamentary disposition of tiff is in no better position to question the her property. This was made clear by writ

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