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to has never been recognized or acquiesced in by the coterminous owners as being the common dividing line between the lands owned by defendants and the lands of the adjoining owners; that in the year 1884 a fence inclosing the property in dispute had been erected, but said fence did not fix or establish the boundary line between said lot 2 and said N. E. 14 of the S. W. 14 of said section 15. There is also a finding against the plea of adverse possession.

The main contention of the appellants is that these findings are contrary to the evidence. It is urged that the testimony of several witnesses show's without conflict that prior to the erection of the fences two agreements had been made between Sarah A. Mann, the owner of lot 2, and the then owners of the adjoining premises, whereby the said county road was agreed upon as the boundary of the respective parcels of land. The defendants rely upon the rule, declared by repeated decisions of this court, that "where coterminous proprietors of land in good faith agree upon, fix, and establish a boundary line between their respective tracts of land, in which they acquiesce, and under which they occupy, for a period equal to that fixed by the statute of limitations, the line as thus established is binding upon them.” Cooper V. Vierra, 59 Cal. 283; White v. Spreckels, 75 Cal. 616, 17 Pac. 715; Helm v. Wilson, 76 Cal. 485, 18 Pac. 604; Dierssen v. Nelson, 138 Cal. 398, 71 Pac. 456. But this rule is subject to the limitation that the agreement must be for the purpose of settling some uncertainty or dispute as to the real boundary. This qualification was fully explained in Lewis v. Ogram, 149 Cal. 505, 87 Pac. 60, where Shaw, J., in speaking of an agreement which purported to fix a boundary between adjoining parcels of land, said: "Such an agreement necessarily is not valid for any other purpose than that of settling an uncertainty in regard to the common boundary. If adjoining owners agree on a division line, knowing that it is not the true line, and with the purpose of thereby transferring from one of them to the other a body of land which they know his true line does not embrace, the agreement will not be enforced. Such a transaction would not constitute an adjustment of uncertainties or doubts as to the line, but would be an attempt to convey or release land from one to the other. Land cannot be conveyed by the device of moving fences or changing the marks or monuments which define its limits. If an agreement having for its real object the transfer of the land, but relating by its terms solely to the boundary line and made with knowledge that the true line is elsewhere than at the place fixed, is oral, it would be void, being an attempt to transfer land without writing. If it is in writing, it would be ineffectual to pass title, for it would lack the apt words of conveyance that are

necessary to accomplish a transfer of real property. The authorities are to the effect that these agreements, when deemed valid, are of such a nature that they do not operate upon the title at all."

The testimony which is relied upon by defendants as showing that the county road had been agreed upon as the boundary line between lot 2 and the land lying to the north thereof shows clearly that the parties in making such agreements were not endeavoring to settle any dispute or doubt as to what the actual boundary was, but were, in fact, undertaking to exchange a piece of land lying south of the road and which was a part of the Y. E. 14 of the S. W. 14 of section 15 for a tract of about equal size which lay north of the road, and was, in fact, a part of lot 2. It was known to the parties at the time they made the alleged agreements that the true boundary line between the two adjoining tracts of land was not the county road, and the object sought to be accomplished was not to ascertain and fix the boundary, but to make transfers of the two parcels so that all of the land owned by each party should be on one side of the road. The witness Metzgar, the first witness called by the defendants to prove such an agreement, testified that in 1873 he had been in possession of the property subsequently patented to Sayre; that at that time he had built a fence along the line of the Campo Seco and Woods Crossing road pursuant to an understanding with Mrs. Mann, the occupant of the Mann tract. "The understanding we had was we thought owning equal portions of the land to put the fence there. She owned a little more than I did on one side of the road, and I on the other. We agreed to run the line there, and when we got the title to deed back to the other.” And on cross-examination, being asked, “That is she was to convey what lay north of the road and you were to convey to her what lay south of the road?” he answered, “That is the agreement we had all around with quite a number of neighbors; had the same agreement." The witness James Bogan testified that at the time the Sayre tract had been sold in 1881 the representative of the vendor had said "that there was a small portion of the Mann tract north of the Campo Seco road, and a small portion of the Sayre tract south of the Campo Seco road, and that the fences were to remain as they were because they had traced them off; that there was an agreement between Mrs. Mann and Sayre.” The defendant Esther Durgan testitied that slie had been present on many occasions when conversations occurred between her mother, Sarah A. Mann, and Thomas Sayre. The conversations occurred between 1868 and 1871. They were "in regard to an exchange of a piece of land in Mr. Sayre's property and the piece of land in my mother's property, and they agreed to exchange properties. It was said

that the fence should be constructed on the claims (1) that the property in question had line along the side of the road instead of become a part of the Mann tract by the across the road with the other fences.” Taking agreement as to boundaries; and (2) that the the testimony of these witnesses as uncontra- defendants had a good title by adverse posdicted, the utmost that is established is that session. Neither of these claims was estabthe parties, knowing that a portion of the lished by the evidence. It is immaterial, land of each was separated from the main therefore, that the plaintiff was allowed to body of the tract to which it belonged by the prove matter, which, as he claimed, had a county road, orally agreed to exchange the tendency to show that he had acquired the parcels so separated, and that they built Sayre title before the conveyance from Ann fences and went into possession of the pieces O'Donnell. as if these exchanges had been effected by From what has been said it follows that proper conveyance. Such agreement, under the findings that the county road had not the rule declared in Lewis v. Ogram, supra, been fixed by the coterminous owners as becould have no effect as an agreement for the ing the dividing line of the adjoining tracts location of a disputed boundary line. As and that the defendants did not have title was said in that case: “It had no relation by adverse possession were fully sustained whatever to the true line, nor to any doubt | by the evidence. It follows, further, that concerning the location of the boundary, and the court properly determined that the plainhence it does not come within the rule which | tiff was the owner of the premises in quesmakes an agreed line binding between the tion. parties, not as a contract to convey, but as It may be added that the question whethan attempt in good faith to make certain er the defendants, on pleadings framed for that which before was in doubt.” Notwith- that purpose, would be entitled to a decree standing the alleged agreements, therefore, specifically enforcing the alleged agreements the land here in controversy still remained a of exchange, is not here involved. The answer portion of the N. E. 14 of the S. W. 14 of and cross-complaint, asserting title to the section 15, just as the piece for which it disputed premises to be in the defendants, was to have been exchanged remained a por- do not contain the allegations required in a tion of lot 2.

bill for such relief, nor do they seek it. Nor did the defendants establish their plea The judgment and order appealed from are of adverse possession. Granting, as they con- affirmed. tend, that the evidence shows that they were in the actual occupation of the disputed We concur: SIIAW, J.; ANGELLOTTI. premises since the construction of the fence J.: MCFARLAND, J.; HENSHAW, J.; LORin 1884, claiming them as their own, there IGAN, J. was no evidence that the defendants or their grantors had for the statutory period paid the taxes which had been levied upon the

(152 Cal, 42) land, as required by section 325 of the Code

PEOPLE v. CRAIG. (Cr. 1,402.) of Civil Procedure. The only evidence in this

(Supreme Court of California. Sept. 19, 1907.) regard was that they had paid the taxes 1. CRIMINAL LAW-APPEAL-BILL OF EXCEPupon lot 2. But, as we have seen, the prem

TIONS.

On appeal from an order denying a motion ises in question were not a portion of lot 2, for new trial, the bill of exceptions must show but were a part of the N. E. 14 of the S. W. that such a motion was made. 14 of section 15, and the taxes on this sub- 2. SAME--HARMLESS ERROR-ORDER OF INTROdivision were paid by Sayre's successors.

DUCING EVIDENCE.

The defense to a prosecution for assault beThe statutory requisite to the acquisition of

ing that defendant merely made a justified rea title by adverse possession had therefore sistance of an illegal attempted arrest, it is no not been fulfilled.

ground for complaint that the prosecution put in The plaintiff, who had been in possession of

as part of the main case, rather than in rebuttal,

evidence to show justification in making the the Mann tract as a life tenant, testified that

arrest without a warrant. during his occupancy he had made an agree- 3. SAJE-EVIDENCE OF OTHER CRIME. ment with one O'Donnell, then the owner of On a prosecution for assault, the defense the Sayre tract, by which he was "to ex

being justification in resisting an attempt to

arrest because made without a warrant, evidence change the piece on the south side, when he

to show justification under Pen. Code $8 8:31[I] could get title to it for this corner.” The 810, in so making the arrest, is admissible, if defendants objected to this testimony, "on

competent, though it tend to show commission the ground that the writing is the best evi

by defendant of an offense distinct from the

assault. dence," and now assign the overruling of the

4. ARREST-NECESSITY OF WARRANT-OFFENSE objection as error. If we assume that the IN PRESENCE OF OFFICER. objection was properly framed and should Vagrancy, as defined in Pen. Code, $ 647, have been sustained, the admission of the

subd. 6, declaring guilty of vagrancy every idle.

leid, or dissolute person, or associate of known evidence was in no way barmful to the ap- | thieves, or every person who wanders about the pellants. The plaintiff showed a clear title streets, at late or unusual hours of the night. in himself by the production of the deed from

without any visible or lawful business, though it Ann O'Donnell. No attempt was made to

cannot be committed by a single act observable

at one time, is a misdemeanor that can be com meet this case otherwise than by defeudants' mitted "in the presence” of an officer, so as to justify him, under sections 836–810, in arrest- | 12. ARREST – NECESSITY OF WARRANT – OFing him without a warrant.

FENSE COMMITTED IN PRESENCE OF OFFICER. 5. ASSAULT - DEFENSES - RESISTING UXLAW

An officer who, in aiding in an arrest for

a misdemeanor, is acting under the order of his FUL ARREST-EVIDENCE. In a prosecution for assault, the defense be

superior oflicer, who is present, is justified in

so doing without a warrant, though the offense ing that it was merely resistance to an illegal

was not committed in his presence, but in that arrest, testimony of the officer that for three

of the superior officer. months prior to the attempted arrest he had seen defendant at all hours of the night, from 13. ASSAULT_DEFENSE-AIDING ANOTHER IN

RESISTING ARREST. 9 p. m. to 3 a. m., in and about the saloons in the disreputable part of the city, that he had

Under Pen. Code. $ 694, providing that one, no visible or lawful business, and that he had in aid or defense of a person about to be inassociated with a reputed prostitute, is relevant

jured, may make resistance sufficient to prevent to prove the officer was personally cognizant of

the offense, he can interfere only in aid of a lawthe facts constituting defendant a vagrant, with

ful resistance by the person threatened, and, in Pen. Code, $ 047, subds. 5. 6. so as to justify

that resistance not being confined to lawful him, under sections 8:36-S10, in arresting de

means when he comes to the rescue, he may fendant without a warrant.

not aid it.

11. CRIMIXAL LAW-PROVINCE OF JURY-IN6. ARREST—NECESSITY OF W'ARRANT-OFFENSE

STRUCTIOX. IN PRESENCE OF OFFICER.

An instruction that the jury assume a fact An arrest of defendant without a warrant to be conclusively proven is erroneous, even for the offense of vagrancy, committed in the where the evidence is without conflict; and it presence of the officer, is justified, though the

therefore cannot be required to give such an fact of his being a vagrant has been known for

instruction, though the giving thereof might be some time, and the real motive of the arrest is harmless. a report brought to the officer that defendant

15. SAME – HARMLESS ERROR – ARGUMENT OF had assaulted and beaten a man.

PROSECUTING ATTORNEY. 7. CRIMINAL LAW – IRRESPONSIVE ANSWER – The recollection of the jury as to what JIOTION TO STRIKE.

the testimony was will be deemed a sufficient Where part only of the answer to a ques- protection to defendant, where the prosecuting tion is irresponsive, a motion to strike out, on attorney in his argument claimed the defendant's the ground of it being irresponsive, should speci- testimony showed a certain matter, damaging to fy and be confined to the objectionable part. him. as to which there was no evidence, and, [Ed. Note.-For cases in point, see Cent. Dig.

on the court's admonishing him to confine him

self to the testimony, he still contended such vol. 14, Criminal Law, $ 1613.)

evidence had been given by another witness. 8. SANE - HARMLESS ERROR STRIKING OUT [Ed. Yote.For cases in point, see Cent. Dig. TESTIMONY.

vol. 15, Criminal Law, $ 3127.] Where, under the other evidence, there could have been no other conclusion than that

In Bank. Appeal from Superior Court, of guilt, refusal to strike out irresponsive testi- | Sacramento County; E. C. Hart, Judge. mony was harmless.

Charles Craig was convicted of assault [Ed. Note,-For cases in point, see Cent. Dig. with a deadly weapon, and appeals. Affirmed. vol. 15, Criminal Law, $$ 3137, 3138.]

R. Porter Ashe, Gaston M. Ashe and E. S. 9. ASSAULT - RESISTING ARREST - JUSTIFICATION-EVIDENCE.

Wachhorst, for appellant. U. S. Webb, Atty. In a prosecution for assault, the defense

Gen., and J. Charles Jones, for respondent. being that it was merely resistance to an unlawful arrest, for the purpose of corroborating

BEATTY, C. J. The defendant and one other evidence that defendant was a ragrant, to the personal knowledge of the officer arrest

Charles Mack were jointly accused by inforing, so as to justify the arrest without a war- mation of the crime of assault with a deadly rant, testimony of another as to how frequent- weapon with intent to commit murder. Uply, during the preceding month, defendant visited a disreputable saloon in the officer's beat, is

on a separate trial defendant was convicted admissible.

of the crime of assault with a deadly weap10. SAME.

on. He appealed from the judgment, and As bearing on the question of the knowl- from an order denying his motion for a new edge of an officer that defendant was a vagrant. trial, to the District Court of Appeal, where, justifying him in arresting defendant without

by reason of a difference of opinion among a warrant, his testimony that defendant, during the preceding three months, had no busi

the judges, there was a failure to decide the ness that he knew of, is admissible.

cause, and it has accordingly been transfer11. WITNESSES-CROSS-EXAMINATION OF Ac- red to this court for hearing and decision. CESED.

There is an objection by the Attorney GenDefendant, for the purpose of rebutting the

eral to any consideration of the appeal from evidence of his vagrancy, which was claimed to have existed to the knowledge of the officer ar

the order, upon the ground that it does not resting him, so as to justify the arrest without appear from the bill of exceptions that any a warrant, having testified that he had a lease, motion for a new trial was made. The obcovering several months prior and up to the time of the arrest, of a certain tenement, which he

jection seems to be well founded according had sublet to prostitutes, and that he had in

to the decision of this court in People v. the meantime purchased a mining location, on Ruiz, 114 Cal. 251, 77 Pac. 907, and that of which he intended to go as soon as the lease the District Court of Appeal in l’eople v. expired, may, for the purpose of showing that Frank, 2 Cal. App. 283, 83 Pac. 578; but in he had no lawful business, which fact, in connection with his wandering about the streets at

this case it is of no practical consequence late and unusual hours of the night, would con- whether the objection be sustained or not, stitute him a vagrant under Pen. Code. (it7.since every assignment of error urged by subd. 6. be required on cross-examination to testify that during the running of his lease he counsel for appell:unt is reviewable on the had no other business except gambling.

appeal from the judgment.

Such facts as are essential to a clear un- an unlawful attempt to subject him to arderstanding of the questions to be considered rest cannot be denied, we think there can be on that appeal may be briefly stated as fol- no question, in view of the circumstances of lows: About 3 o'clock in the morning of this case, that the prosecution were right in December 25, 1905, Sergeant Wilson and Offi- submitting such evidence as they could to cer Ryan, of the Sacramento police, entered show that the attempted arrest of appellant a saloon in what appears to have been an and Mack was strictly legal, and certainly exceedingly disreputable quarter of that city the fact that it was put in as a part of their for the purpose of arresting the appellant main case, rather than in rebuttal, affords and his codefendant Mack. They found the appellant no ground of complaint. The them drinking at the bar in company with only question is whether the evidence offera number of women and other men. Wilson ed and admitted was relevant to the issue; arrested Craig, and took him to the sidewalk for, the fact that the offense was committed in front of the saloon, while Ryan, by Wil- in the presence of the arresting officer being son's direction, was attempting to arrest material, if the evidence offered to prove it Mack, who, with the aid of some bystanders, was relevant, the fact that it also tended to violently resisted the attempt. Wilson, at- prove that the appellant had committed other tracted by the noise, left Craig on the side- substantive offenses, distinct from the aswalk and hurried to Ryan's assistance, close- sault upon Ryan, was not a ground of objecly followed by Craig. The evidence as to tion to it. We think the evidence was clearwhat ensued is conflicting and confusing, but ly relerant, as tending to prove that the arthere was testimony which would warrant a resting officers were personally cognizant of jury in finding that several of the men pres- facts constituting the appellant a vagrant ent in the saloon made common cause with within the statutory definition of vagrancy. appellant and Mack in resisting the arrest, Pen. Code, § 617, and especially subdivisions and in vicious assaults upon the officers, who 5 and 6. It was to the effect that for a pewere speedily overpowered, deprived of their riod of three months prior to the assault clubs, and otherwise roughly handled. Ap-l charged he had been seen by Sergeant Wilpellant and Mack, who had gained posses- son at all hours of the night, from 9 p. m. sion of the clubs, at one period of the affray to 3 a. m., in and about the saloons clusterconcentrated their attack upon Ryan, who ing around Second and L streets, "McCarwas then on the floor, encouraging each oth- thy's." "The Art," "The Palm," and "The er by such suggestions as "kick the son of Casino," and in the immediate neighborhood a bitch's head off, Buff!” (the “Buff Kid" of the "Concentration Camps" (a local euwas a familiar nickname of Mack). The re- phemism for houses of ill fame). It was to sult of the fracas was that Ryan was very the further effect that he had no visible or badly beaten, both officers disabled, and their lawful business and that he associated with prisoners enlarged. The information against a reputed prostitute. This was ragrancy, the defendants was based upon the assault | and, if vagrancy of this species is a misdeon Officer Ryan.

meanor which can be committed “in the presThere seems to have been some attempt ence" of an observer, this misdemeanor, supmade at the trial to show that the club with posing the evidence to be true, was commitwhich Ryan was beaten by appellant was ted in the presence of the arresting officer. not a deadly weapon, but the state of the If, as a witness, he could testify from actual record does not warrant a consideration of knowledge to every element of the offense, that point, and it is not pressed.

the offense must have been committed in his T'he principal defense in the trial court presence. And it makes no difference that was that the attempted arrest of the defend- this species of vagrancy cannot be commit. ants was illegal, and that they were justified teil by a single act observable at one point in such resistance as they made. The appel- of time. A series of acts extending over a lant, at least, defends his acts upon the considerable period of time, and only constiground that he was justified in resisting his tuting a criminal offense because of their own arrest, and in aiding Mack to resist an continuance and repetition, alone or in conunlawful attempt to arrest him. The facts junction with other circumstances, being caas to this matter are that the officers had no pable of observation and actual knowledge warrant of arrest for either party, and nei- | by a peace officer, will justify him, when ther had committed or been suspected of the series of acts is complete, in making an committing any felony. The only justifica- arrest without a warrant as fully as in the tion which could be alleged for the action of case of any other misdemeanor committed or the officers was that the defendants had com- attempted in his presence. The only thing mitted a misdemeanor in their presence. decided in People v. Denby, 108 Cal. 51, 10 Pen. Code, $$ 836-810. This the prosecution Pac. 1051, is that the solicitation of alms by undertook to show as a part of their case in a healthy beggar on one occasion does not chief, by proving acts constituting the crime make him a vagrant, or justify a citizen in of vagrancy; and the main contention on arresting him. The case did not involve the the part of appellant is that the superior question here presented; but the implication court erred in admitting evidence of these from what was decided is that habitual beg. acts. Since the right of a person to resist ging, known to the citizen, would have made the arrest legal, a point as to which we have the reported beating of a man by appellant no doubt.

and Mack went beyond the scope of the quesA more doubtful question is raised by the tion, and was hearsay, and therefore incomuncontradicted evidence of the officers them- petent. It was necessary, however, for the selves that the real motive of the arrest was appellant, in moving to strike out, to specify not the fact that the defendants were va- the objectionable part of the answer and congrants, but was a report brought to their fine his motion to that, and a part of the anknowledge that at an earlier hour in the swer being strictly responsive, and his monight the defendants had assaulted and beat- tion embracing the whole, the court was techen a man passing along the street. This nically correct in overruling it. People v. offense they had not seen, and upon consulta- Rodley, 131 Cal. 212, 03 Pac. 351. We are tion they concluded that, as they could not satisfied, moreover, in view of all the other arrest them for the battery without a war- testimony in the case, that the jury could rant, they would arrest them as vagrants,

have come to but one conclusion as to the known to them to be such. It seems to be guilt of appellant, and that the ruling was generally held that an arrest for a misde

harmless. meanor without a warrant cannot be justi- May Graves, a woman employed in the fied, if made after the occasion has passed,

"Art Saloon," was called as a witness for the though committed in the presence of the ar

prosecution, and, after answering that she resting officer; and it is contended here that knew the appellant, was asked by the district according to Sergeant Wilson's own testi- attorney: "How frequently during that time mony the occasion for arresting appellant as

[the month of December] did you see the dea vagrant had long passed, since, if he knew

fendant?" The question was objected to as him to be a vagrant at all, he had known it

incompetent, irrelevant, and immaterial, and for some time prior to December 25th. On the objection overruled. The witness ancross-examination Wilson was asked why he

swered: "Oh, he would come in the house had not sooner arrested him for vagrancy,

four or five times during the week, I should and he made this answer: “I was told by a

imagine." It is contended that this answer former administration to not bother these

was seriously prejudicial to the appellant, as fellows as long as they behaved themselves.

tending to degrade his character, and that On this morning I was notified that this man

the district attorney called it out for no other and Mack had beat up a man by Officer

purpose. It seems probable that the district Ryan, and I says: 'Well, the only thing we

attorney was seeking by this testimony to can do—we didn't see it—we will will go and

corroborate the other evidence as to vavag them.'Whether this is an entirely

grancy; and, if so, it is by no means clear commendable attitude towards the appel

that the question was objectionable, for, if it lant's class of misdemeanants we need not

was material to show that the officers knew stop to consider; but we think the admitted

that appellant was a vagrant, it was permisfact that the appellant would not have been

sible to prove that he was comporting himself arrested if he had confined himself to va

as a vagrant in that part of the city comprisgrancy did not render his arrest for that of- ed in their beat. But, whether technically fense illegal. Vagrancy differs from most

objectionable or not, it is clear that the eviother offenses in the fact that it is chronic,

dence could not have been prejudicial. rather than acute; that it continues after it

Ryan, the prosecuting witness, was asked, is complete, and thereby subjects the offender "Do you know what business he [appellant] to arrest at any time before he reforms. was engaged in, if any, during that time?" Here there was no evidence of reformation, and answered without objection, “None that but the reverse; for, according to the evi- | I know of.” There would have been no error dence, the appellant was comporting himself in permitting this question and answer, even quite consistently with his usual line of con- if they had been objected to. The evidence duct at the moment of his arrest. All this bore directly upon the question as to the ofSergeant Wilson knew, and, having heard ficer's knowledge that appellant was a vathat he had ceased to conduct himself peace

grant. ably, he had a sufficient reason, as he had a

Called as a witness in his own behalf, the perfect right, to make the arrest at that time. appellant, evidently for the purpose of rebut

The appellant assigns another error in this ting the evidence as to vagrancy, testified connection. He moved to strike out the that in July, 1905, he had taken a lease of a above-quoted answer of Sergeant Wilson up- certain tenement on Second street, covering on the ground that it was not responsive to the months from August to December, in: his question, and that it was incompetent, ir- clusive, which he had sublet to women for relevant, and immaterial. It is contended purposes of prostitution at a very considerthat the court erred in overruling this mo- able profit, and that he had in the meantime tion. The answer of the witness certainly did purchased a mining location in the state of contain matter which was not strictly respon- Nevada, upon which he intended to go to sive to the question. He was not asked why work as soon as the Second street lease exhe arrested appellant on the 25th, but only pired. On cross-examination he was asked to explain why he had not arrested him soon- if, during the running of his lease, he had er, and that part of his answer relating to any other business besides letting rooms to

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