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 1881 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. 4 of the S. W. 4 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 shows 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 N. E. 14 of the S. W. 4 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 1884 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 testified that she 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 line along the side of the road instead of across the road with the other fences." Taking the testimony of these witnesses as uncontradicted, the utmost that is established is that the parties, knowing that a portion of the land of each was separated from the main body of the tract to which it belonged by the county road, orally agreed to exchange the parcels so separated, and that they built fences and went into possession of the pieces as if these exchanges had been effected by proper conveyance. Such agreement, under the rule declared in Lewis v. Ogram, supra, could have no effect as an agreement for the location of a disputed boundary line. As was said in that case: "It had no relation whatever to the true line, nor to any doubt concerning the location of the boundary, and hence it does not come within the rule which makes an agreed line binding between the parties, not as a contract to convey, but as an attempt in good faith to make certain that which before was in doubt." Notwithstanding the alleged agreements, therefore, the land here in controversy still remained a portion of the N. E. 4 of the S. W. 4 of section 15, just as the piece for which it was to have been exchanged remained a portion of lot 2.

Nor did the defendants establish their plea of adverse possession. Granting, as they contend, that the evidence shows that they were in the actual occupation of the disputed premises since the construction of the fence in 1884, claiming them as their own, there was no evidence that the defendants or their grantors had for the statutory period paid the taxes which had been levied upon the land, as required by section 325 of the Code of Civil Procedure. The only evidence in this regard was that they had paid the taxes upon lot 2. But, as we have seen, the premises in question were not a portion of lot 2, but were a part of the N. E. 4 of the S. W. 1/4 of section 15, and the taxes on this subdivision were paid by Sayre's successors. The statutory requisite to the acquisition of a title by adverse possession had therefore not been fulfilled.

The plaintiff, who had been in possession of the Mann tract as a life tenant, testified that during his occupancy he had made an agree ment with one O'Donnell, then the owner of the Sayre tract, by which he was "to exchange the piece on the south side, when he [I] could get title to it for this corner." The defendants objected to this testimony, "on the ground that the writing is the best evidence," and now assign the overruling of the objection as error. If we assume that the objection was properly framed and should have been sustained, the admission of the evidence was in no way harmful to the appellants. The plaintiff showed a clear title in himself by the production of the deed from Ann O'Donnell. No attempt was made to meet this case otherwise than by defendants'

claims (1) that the property in question had become a part of the Mann tract, by the agreement as to boundaries; and (2) that the defendants had a good title by adverse possession. Neither of these claims was established by the evidence. It is immaterial, therefore, that the plaintiff was allowed to prove matter, which, as he claimed, had a tendency to show that he had acquired the Sayre title before the conveyance from Ann O'Donnell.

From what has been said it follows that the findings that the county road had not been fixed by the coterminous owners as being the dividing line of the adjoining tracts and that the defendants did not have title by adverse possession were fully sustained by the evidence. It follows, further, that the court properly determined that the plaintiff was the owner of the premises in question.

It may be added that the question whether the defendants, on pleadings framed for that purpose, would be entitled to a decree specifically enforcing the alleged agreements of exchange, is not here involved. The answer and cross-complaint, asserting title to the disputed premises to be in the defendants, do not contain the allegations required in a bill for such relief, nor do they seek it.

The judgment and order appealed from are affirmed.

We concur: SHAW, J.; ANGELLOTTI. J.: MCFARLAND, J.; HENSHAW, J.; LORIGAN, J.

(152 Cal. 42)

PEOPLE v. CRAIG. (Cr. 1.402.) (Supreme Court of California. Sept. 19, 1907.) 1. CRIMINAL LAW-APPEAL-BILL OF EXCEP

TIONS.

On appeal from an order denying a motion for new trial, the bill of exceptions must show that such a motion was made.

2. SAME--HARMLESS ERROR-ORDER OF INTRODUCING EVIDENCE.

The defense to a prosecution for assault being that defendant merely made a justified resistance of an illegal attempted arrest, it is no ground for complaint that the prosecution put in as part of the main case, rather than in rebuttal, evidence to show justification in making the arrest without a warrant.

3. SAME EVIDENCE OF OTHER CRIME.

On a prosecution for assault, the defense being justification in resisting an attempt to arrest because made without a warrant, evidence to show justification under Pen. Code §§ 836840, in so making the arrest, is admissible, if competent, though it tend to show commission by defendant of an offense distinct from the assault.

4. ARREST-NECESSITY OF WARRANT-OFFENSE IN PRESENCE OF OFFICER.

Vagrancy, as defined in Pen. Code, § 647, subd. 6. declaring guilty of vagrancy every idle, lewd, or dissolute person, or associate of known thieves, or every person who wanders about the streets, at late or unusual hours of the night. without any visible or lawful business, though it cannot be committed by a single act observable at one time, is a misdemeanor that can be com mitted in the presence" of an officer, so as to

justify him, under sections 836-840, in arresting him without a warrant.

5. ASSAULT-DEFENSES-RESISTING UNLAWFUL ARREST EVIDENCE.

In a prosecution for assault, the defense being that it was merely resistance to an illegal arrest, testimony of the officer that for three months prior to the attempted arrest he had seen defendant at all hours of the night, from 9 p. m. to 3 a. m., in and about the saloons in the disreputable part of the city, that he had no visible or lawful business, and that he had associated with a reputed prostitute, is relevant to prove the officer was personally cognizant of the facts constituting defendant a vagrant, within Pen. Code, § 647, subds. 5. 6. so as to justify him, under sections 836-840, in arresting defendant without a warrant.

6. ARREST-NECESSITY OF WARRANT-OFFENSE IN PRESENCE OF OFFICER.

An arrest of defendant without a warrant for the offense of vagrancy, committed in the presence of the officer, is justified, though the fact of his being a vagrant has been known for some time, and the real motive of the arrest is a report brought to the officer that defendant had assaulted and beaten a man.

7. CRIMINAL LAW-IRRESPONSIVE ANSWER MOTION TO STRIKE.

Where part only of the answer to a question is irresponsive, a motion to strike out, on the ground of it being irresponsive, should specify and be confined to the objectionable part.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1643.]

8. SAME HARMLESS ERROR-STRIKING OUT TESTIMONY.

Where, under the other evidence, there could have been no other conclusion than that of guilt, refusal to strike out irresponsive testimony was harmless.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 3137, 3138.]

9. ASSAULT RESISTING ARREST-JUSTIFICATION-EVIDENCE.

In a prosecution for assault, the defense being that it was merely resistance to an unlawful arrest, for the purpose of corroborating other evidence that defendant was a vagrant, to the personal knowledge of the officer arresting, so as to justify the arrest without a warrant, testimony of another as to how frequently, during the preceding month, defendant visited a disreputable saloon in the officer's beat, is admissible.

10. SAME.

As bearing on the question of the knowledge of an officer that defendant was a vagrant. justifying him in arresting defendant without a warrant, his testimony that defendant, during the preceding three months. had no business that he knew of, is admissible.

11. WITNESSES-CROSS-EXAMINATION OF AC

CUSED.

Defendant, for the purpose of rebutting the evidence of his vagrancy, which was claimed to have existed to the knowledge of the officer arresting him, so as to justify the arrest without a warrant, having testified that he had a lease, covering several months prior and up to the time of the arrest, of a certain tenement, which he had sublet to prostitutes, and that he had in the meantime purchased a mining location, on which he intended to go as soon as the lease expired, may, for the purpose of showing that he had no lawful business, which fact, in connection with his wandering about the streets at late and unusual hours of the night, would constitute him a vagrant under Pen. Code, § 647, subd. G. be required on cross-examination to testify that during the running of his lease he had no other business except gambling.

12. ARREST NECESSITY OF WARRANT-OFFENSE COMMITTED IN PRESENCE OF OFFICER. An officer who, in aiding in an arrest for a misdemeanor, is acting under the order of his superior officer, who is present, is justified in so doing without a warrant, though the offense was not committed in his presence, but in that of the superior officer.

13. ASSAULT-DEFENSE-AIDING ANOTHER IN RESISTING ARREST.

Under Pen. Code. § 694, providing that one, in aid or defense of a person about to be injured, may make resistance sufficient to prevent the offense, he can interfere only in aid of a lawful resistance by the person threatened, and, that resistance not being confined to lawful means when he comes to the rescue, he may not aid it.

14. CRIMINAL LAW-PROVINCE OF JURY-INSTRUCTION.

An instruction that the jury assume a fact to be conclusively proven is erroneous, even where the evidence is without conflict; and it therefore cannot be required to give such an instruction. though the giving thereof might be harmless.

15. SAME HARMLESS ERROR — ARGUMENT OF PROSECUTING ATTORNEY.

The recollection of the jury as to what the testimony was will be deemed a sufficient protection to defendant, where the prosecuting attorney in his argument claimed the defendant's testimony showed a certain matter, damaging to him. as to which there was no evidence, and, on the court's admonishing him to confine himself to the testimony, he still contended such evidence had been given by another witness.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3127.]

In Bank. Appeal from Superior Court, Sacramento County; E. C. Hart, Judge.

Charles Craig was convicted of assault with a deadly weapon, and appeals. Affirmed.

R. Porter Ashe, Gaston M. Ashe and E. S. Wachhorst, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, for respondent.

BEATTY, C. J. The defendant and one Charles Mack were jointly accused by information of the crime of assault with a deadly weapon with intent to commit murder. Upon a separate trial defendant was convicted of the crime of assault with a deadly weapon. He appealed from the judgment, and from an order denying his motion for a new trial, to the District Court of Appeal, where, by reason of a difference of opinion among the judges, there was a failure to decide the cause, and it has accordingly been transferred to this court for hearing and decision.

There is an objection by the Attorney General to any consideration of the appeal from the order, upon the ground that it does not appear from the bill of exceptions that any motion for a new trial was made. The objection seems to be well founded according to the decision of this court in People v. Ruiz, 144 Cal. 251, 77 Pae. 907, and that of the District Court of Appeal in People v. Frank, 2 Cal. App. 283, 83 Pac. 578; but in this case it is of no practical consequence whether the objection be sustained or not, since every assignment of error urged by counsel for appellant is reviewable on the appeal from the judgment.

Such facts as are essential to a clear understanding of the questions to be considered on that appeal may be briefly stated as follows: About 3 o'clock in the morning of December 25, 1905, Sergeant Wilson and Officer Ryan, of the Sacramento police, entered a saloon in what appears to have been an exceedingly disreputable quarter of that city for the purpose of arresting the appellant and his codefendant Mack. They found them drinking at the bar in company with a number of women and other men. Wilson arrested Craig, and took him to the sidewalk in front of the saloon, while Ryan, by Wilson's direction, was attempting to arrest Mack, who, with the aid of some bystanders, violently resisted the attempt. Wilson, attracted by the noise, left Craig on the sidewalk and hurried to Ryan's assistance, closely followed by Craig. The evidence as to what ensued is conflicting and confusing, but there was testimony which would warrant a jury in finding that several of the men present in the saloon made common cause with appellant and Mack in resisting the arrest, and in vicious assaults upon the officers, who were speedily overpowered, deprived of their clubs, and otherwise roughly handled. Appellant and Mack, who had gained possession of the clubs, at one period of the affray concentrated their attack upon Ryan, who was then on the floor, encouraging each other by such suggestions as "kick the son of a bitch's head off, Buff!" (the "Buff Kid" was a familiar nickname of Mack). The result of the fracas was that Ryan was very badly beaten, both officers disabled, and their prisoners enlarged. The information against the defendants was based upon the assault on Officer Ryan.

There seems to have been some attempt made at the trial to show that the club with which Ryan was beaten by appellant was not a deadly weapon, but the state of the record does not warrant a consideration of that point, and it is not pressed.

The principal defense in the trial court was that the attempted arrest of the defendants was illegal, and that they were justified in such resistance as they made. The appellant, at least, defends his acts upon the ground that he was justified in resisting his own arrest, and in aiding Mack to resist an unlawful attempt to arrest him. The facts as to this matter are that the officers had no warrant of arrest for either party, and neither had committed or been suspected of committing any felony. The only justification which could be alleged for the action of the officers was that the defendants had committed a misdemeanor in their presence. Pen. Code, §§ 836-840. This the prosecution undertook to show as a part of their case in chief, by proving acts constituting the crime of vagrancy; and the main contention on the part of appellant is that the superior court erred in admitting evidence of these acts. Since the right of a person to resist

an unlawful attempt to subject him to arrest cannot be denied, we think there can be no question, in view of the circumstances of this case, that the prosecution were right in submitting such evidence as they could to show that the attempted arrest of appellant and Mack was strictly legal, and certainly the fact that it was put in as a part of their main case, rather than in rebuttal, affords the appellant no ground of complaint. The only question is whether the evidence offered and admitted was relevant to the issue; for, the fact that the offense was committed in the presence of the arresting officer being material, if the evidence offered to prove it was relevant, the fact that it also tended to prove that the appellant had committed other substantive offenses, distinct from the assault upon Ryan, was not a ground of objection to it. We think the evidence was clearly relevant, as tending to prove that the arresting officers were personally cognizant of facts constituting the appellant a vagrant within the statutory definition of vagrancy. Pen. Code. § 647, and especially subdivisions 5 and 6. It was to the effect that for a period of three months prior to the assault charged he had been seen by Sergeant Wilson at all hours of the night, from 9 p. m. to 3 a. m.. in and about the saloons clustering around Second and L streets, "McCarthy's." "The Art." "The Palm," and "The Casino," and in the immediate neighborhood of the "Concentration Camps" (a local euphemism for houses of ill fame). It was to the further effect that he had no visible or lawful business and that he associated with a reputed prostitute. This was vagrancy, and, if vagrancy of this species is a misdemeanor which can be committed "in the presence" of an observer, this misdemeanor, supposing the evidence to be true, was committed in the presence of the arresting officer. If, as a witness, he could testify from actual knowledge to every element of the offense, the offense must have been committed in his presence. And it makes no difference that this species of vagrancy cannot be committed by a single act observable at one point of time. A series of acts extending over a considerable period of time, and only constituting a criminal offense because of their continuance and repetition, alone or in conjunction with other circumstances, being capable of observation and actual knowledge by a peace officer, will justify him, when the series of acts is complete, in making an arrest without a warrant as fully as in the case of any other misdemeanor committed or attempted in his presence. The only thing decided in People v. Denby, 108 Cal. 54, 40 Pac. 1051, is that the solicitation of alms by a healthy beggar on one occasion does not make him a vagrant, or justify a citizen in arresting him. The case did not involve the question here presented; but the implication from what was decided is that habitual beg ging, known to the citizen, would have made

the arrest legal, a point as to which we have no doubt.

A more doubtful question is raised by the uncontradicted evidence of the officers themselves that the real motive of the arrest was not the fact that the defendants were vagrants, but was a report brought to their knowledge that at an earlier hour in the night the defendants had assaulted and beaten a man passing along the street. This offense they had not seen, and upon consultation they concluded that, as they could not arrest them for the battery without a warrant, they would arrest them as vagrants, known to them to be such. It seems to be generally held that an arrest for a misdemeanor without a warrant cannot be justified, if made after the occasion has passed, though committed in the presence of the arresting officer; and it is contended here that according to Sergeant Wilson's own testimony the occasion for arresting appellant as a vagrant had long passed, since, if he knew him to be a vagrant at all, he had known it for some time prior to December 25th. On cross-examination Wilson was asked why he had not sooner arrested him for vagrancy, and he made this answer: "I was told by a former administration to not bother these fellows as long as they behaved themselves. On this morning I was notified that this man and Mack had beat up a man by Officer Ryan, and I says: 'Well, the only thing we can do we didn't see it-we will will go and vag them.'"

Whether this is an entirely commendable attitude towards the appellant's class of misdemeanants we need not stop to consider; but we think the admitted fact that the appellant would not have been arrested if he had confined himself to vagrancy did not render his arrest for that offense illegal. Vagrancy differs from most other offenses in the fact that it is chronic, rather than acute; that it continues after it is complete, and thereby subjects the offender to arrest at any time before he reforms. Here there was no evidence of reformation, but the reverse; for, according to the evidence, the appellant was comporting himself quite consistently with his usual line of conduct at the moment of his arrest. All this Sergeant Wilson knew, and, having heard that he had ceased to conduct himself peaceably, he had a sufficient reason, as he had a perfect right, to make the arrest at that time.

The appellant assigns another error in this connection. He moved to strike out the above-quoted answer of Sergeant Wilson upon the ground that it was not responsive to his question, and that it was incompetent, irrelevant, and immaterial. It is contended that the court erred in overruling this motion. The answer of the witness certainly did contain matter which was not strictly responsive to the question. He was not asked why he arrested appellant on the 25th, but only to explain why he had not arrested him sooner, and that part of his answer relating to

the reported beating of a man by appellant and Mack went beyond the scope of the question, and was hearsay, and therefore incompetent. It was necessary, however, for the appellant, in moving to strike out, to specify the objectionable part of the answer and confine his motion to that, and a part of the answer being strictly responsive, and his motion embracing the whole, the court was technically correct in overruling it. People v. Rodley, 131 Cal. 242, 63 Pac. 351. We are satisfied, moreover, in view of all the other testimony in the case, that the jury could have come to but one conclusion as to the guilt of appellant, and that the ruling was harmless.

May Graves, a woman employed in the "Art Saloon," was called as a witness for the prosecution, and, after answering that she knew the appellant, was asked by the district attorney: "How frequently during that time [the month of December] did you see the defendant?" The question was objected to as incompetent, irrelevant, and immaterial, and the objection overruled. The witness answered: "Oh, he would come in the house four or five times during the week, I should imagine." It is contended that this answer was seriously prejudicial to the appellant, as tending to degrade his character, and that the district attorney called it out for no other purpose. It seems probable that the district attorney was seeking by this testimony to corroborate the other evidence as to vagrancy; and, if so, it is by no means clear that the question was objectionable, for, if it was material to show that the officers knew that appellant was a vagrant, it was permissible to prove that he was comporting himself as a vagrant in that part of the city comprised in their beat. But, whether technically objectionable or not, it is clear that the evidence could not have been prejudicial.

Ryan, the prosecuting witness, was asked, "Do you know what business he [appellant] was engaged in, if any, during that time?" and answered without objection, "None that I know of." There would have been no error in permitting this question and answer, even if they had been objected to. The evidence bore directly upon the question as to the officer's knowledge that appellant was a vagrant.

Called as a witness in his own behalf, the appellant, evidently for the purpose of rebutting the evidence as to vagrancy, testified that in July, 1905, he had taken a lease of a certain tenement on Second street, covering the months from August to December, in. clusive, which he had sublet to women for purposes of prostitution at a very considerable profit, and that he had in the meantime. purchased a mining location in the state of Nevada, upon which he intended to go to work as soon as the Second street lease expired. On cross-examination he was asked if, during the running of his lease, he had any other business besides letting rooms to