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BURNETT, J.-Appellant bases his claim for a reversal upon four grounds, but there is not sufficient merit in any of them to justify an interference with the verdict of the jury or the judgment of the lower court.
1. The court refused the following instruction requested by appellant: “You are instructed that if the defendant be proved of good character.as to truth, veracity, honesty, morality and integrity, such good character may be sufficient to create and generate a reasonable doubt of his guilt, although no such doubt would have existed but for such good character." The principle was fully covered by the following instruction given at defendant's request: “You are further instructed that good character is of importance to a person charged with crime, and you have a right to consider whether the person of good character would be less liable to be guilty of the crime than a person of bad habits and character. The good character of the defendant when proven is itself a fact in the case; it is a circumstance tending in a greater or lesser degree to establish his innocence, and it is not to be put aside by a jury in order to ascertain if the other facts and circumstances, considered by themselves, do not establish his guilt beyond a reasonable doubt."
2. While the trial was in progress an unusual incident occurred, which appears in the transcript as follows:
“Before the jurors left the jury box, a man standing at the left of the defendant addressed the court as follows: 'They have got the wrong girl. It is not Elsie Lopez at all.'
“The Court: 'Take your seat, sir.'
“The man standing at the left of the defendant: 'Well, I want to say they have got the wrong girl. I am the father of the girl and it is not Elsie Lopez.'
“The Court: Take this man from the court room, Mr. Sheriff.'
“The bailiff escorted the man from the court room.
The man's conduct, of course, was reprehensible and explainable only upon the theory that he was drunk or insane. Such declarations in the presence of the jury might under some circumstances prejudice the substantial rights of a defendant, but we must presume that the jurors were men of probity and fair intelligence and that they heeded the earnest admonition of the court:“The case must be decided upon lawful evidence
adduced upon the witness stand, and nothing else, and statements which you have just heard from this man are no more evidence than nothing in the world; discard them from your mind; act as though you had never heard them.” (People v. Prather, 134 Cal. 439, [66 Pac. 589, 863); People v. Ruef, 14 Cal. App. 606, [114 Pac. 48, 54].)
3. A certain witness testified as to the good reputation of defendant and, upon cross-examination, was asked certain questions, over the objection of appellant, tending to reflect upon the latter's moral character. The form of the questions was somewhat objectionable, but that was not called to the attention of the court. The purpose of the questions was to show acts of appellant inconsistent with the character attributed to him by the witness and they were permissible under the rule laid down in People v. Ah Lee Doon, 97 Cal. 179, (31 Pac. 933); People v. Mayes, 113 Cal. 624, [45 Pac. 860); People v. Moran, 144 Cal. 62, [77 Pac. 777); People v. Perry, 144 Cal. 750, [78 Pac. 284); People v. Weber, 149 Cal. 342, (86 Pac. 671]. Besides, the answers were favorable to appellant and hence he is in no position to complain.
4. The proposed and refused instruction as to the presumption of innocence involved no principle of law that was not clearly and fully expressed in the following, given at the request of appellant: “The jury is instructed that the defendant at the outset of the trial is presumed to be innocent. He is not required to prove himself innocent or to put in any evidence at all upon the subject. In considering the testimony in the case, you must look at all the testimony and view it in the light of that presumption, and it is a presumption that abides with him throughout the trial of the case until the evidence convinces you to the contrary beyond all reasonable doubt. It is your duty if possible to reconcile the evidence with this presumption.”
We find no prejudicial error in the record and the judgment and order are affirmed.
Hart, J., and Chipman, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 13, 1912.
[Civ. No. 995. Third Appellate District.-October 15, 1912.) ANNIE BOND, Appellant, v. UNITED RAILROADS OF
SAN FRANCISCO, Respondent.
APPEAL COSTS-EXPENSE OF PRINTING BRIEFS NOT TAXABLE.—The
expense of printing briefs on appeal is not allowable as costs to the prevailing party, in view of rule XIII of the supreme court, allowing only the expense of printing transcripts or other papers constituting the record in original proceedings, required by its rules to be printed, to be taxed in bills of costs in the usual mode, notwithstanding briefs are required to be printed under subdivision
4 of rule II of that court. ID.- CONSTRUCTION CODE SECTIONS—"DISBURSEMENTS"_"Costs"
ON APPEAL.-The term "disbursements” used in sections 1021 and 1033 of the Code of Civil Procedure, adds no strength to the statute except possibly its use may justify the court in construing the term "costs” used therein more liberally than it might otherwise do. But section 1034 of that code which relates to "costs” upon appeal makes no mention of "disbursements” but is confined by its terms to “costs” and must be construed in the light of rule XIII of the supreme court. Until that rule is amended, the costs of printing briefs cannot be taxed or allowed either as "costs" or
as "disbursements” to the prevailing party. ID.-Costs IN SUPERIOR COURT_DISCRETION or TRIAL JUDGE-REVIEW
UPON APPEAL.-Since the legislature has failed to specifically enact what shall constitute recoverable costs in an action in the superior court, it has been held by the supreme court that "the allowance or disallowance of items for expense and disburse. ment incurred upon the trial of the action must be left, in nearly every instance, to the discretion of the judge where the cause was tried," subject to review upon appeal. The same principle applies to its retaxation of costs upon appeal, its ruling being subject to review upon appeal.
APPEAL from an order of the Superior Court of the City and County of San Francisco granting a motion to retax costs claimed after the reversal of appeals taken from said superior court to the supreme court. Geo. A. Sturtevant, Judge.
The facts are stated in the opinion of the court.
Sullivan & Sullivan and Theo. J. Roche, for Appellant.
A. A. Moore, Stanley Moore, and Wm. M. Cannon, for Respondent.
CHIPMAN, P. J.—This is an appeal from the order of the superior court in said action granting the motion of defendant to retax the costs. It appears that plaintiff commenced an action in the superior court against defendant. The cause was tried by a jury and plaintiff had a general verdict for the sum of four thousand five hundred dollars. The jury also returned a verdict on certain special issues. The trial court thereafter entered judgment on the verdict for four hundred and five dollars. Plaintiff moved for an order vacating said judgment and for a judgment in her favor for the sum of six thousand nine hundred dollars, or for four thousand five hundred dollars, which motion, by order of the court, was denied. Plaintiff appealed from said order and judgment to the supreme court which resulted in a judgment of the supreme court reversing the judgment of the superior court and directing that judgment be entered "upon said verdict in favor of plaintiff and against said defendant for the sum of four thousand five hundred dollars, interest and costs." Upon the going down of the remittitur plaintiff's attorneys duly filed a memorandum of costs and disbursements, among which were the following items: “Printing appellant's points and authorities, 62 pages
$52.70 Printing appellant's closing brief, 240 pages. 240.00 Printing petition for modification of judgment, 7 pages.
6.00" Defendant moved to strike out these items on the ground “that said items and each of them were and are not necessary disbursements on the part of plaintiff”; that they are not "legally chargeable as costs" or "proper subject of charge”; that they are not “within the intent and purpose of the statute allowing costs and disbursements" and that they “were paid voluntarily by plaintiff for her own benefit." The court made an order granting the motion and the appeal is from this order.
The statutory provisions relating to costs are found in part II, title XIV, chapter VI of the Code of Civil Procedure, sections 1021 et seq.
Section 1021 provides that the compen
sation of attorneys rests with the parties by their agreement express or implied; but “parties to actions or proceedings are entitled to costs and disbursements, as hereinafter provided.” Section 1022 provides : “Costs are allowed of course to the plaintiff upon a judgment in his favor, in the following cases”: Five different classes of cases are enumerated, including actions for the recovery of money or damages. Section 1025 provides: "In other actions than those mentioned in section ten hundred and twenty-two, costs may be allowed or not, and, if allowed, may be apportioned between the parties, on the same or adverse sides, in the discretion of the court, where recovery is not less than three hundred dollars. Section 1027 provides : “In the following cases, the costs of appeal is (are) in the discretion of the court: “1. When a new trial is ordered ; 2. When a judgment is modified." Section 1033 provides: “The party in whose favor the judgment is rendered, and who claims his costs must deliver to the clerk ... a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified . . , stating that to the best of his knowledge and belief the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding. A party dissatisfied with the costs claimed may . . . file a motion to have the same taxed by the court in which the judgment was rendered, ..." Section 1034 provides: “Whenever costs are awarded to a party by an appellate court, if he claims such costs, he must, within thirty days after the remittitur is filed with the clerk below, deliver to such clerk a memorandum of his costs, verified as prescribed by the preceding section,'' and thereafter he may have an execution therefor as upon a judgment."
Rule II, subdivision 4, of the supreme court, reads as follows: “Thirty days after the filing of the transcript the appellant shall file with the clerk his printed points and authorities. . . . Within thirty days after the service of appellant's points and authorities the respondent shall file and serve his printed points and authorities; and within ten days after the service of respondent's points the appellant may file a reply." In directing what printing expenses should be taxable costs the supreme court, in 1904, adopted: "Rule XIII. Cost of Printing. The expense of