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judgment was pronounced, and an appeal taken from both the order and judgment.
We quote from appellant's brief: "Three propositions are advanced by appellant, demanding a reversal herein: First, we contend that there is no evidence in the record to sustain the verdict and judgment; second, the trial court erred in giving to the jury an instruction on the question of manslaughter; and, third, the defendant was deprived of his constitutional right to a trial by jury by reason of misconduct of one of the jurors, in that during a portion of defendant's cross-examination of one of the witnesses for the People, such juror was asleep.”
1. There was evidence, in its nature circumstantial, that defendant killed the deceased. In addition to this evidence, defendant testified in his own behalf admitting that he shot and killed deceased, claiming that it was in self-defense. The point made is that “the evidence for the defense was a connected whole, no portion of it could stand unless it all stood; to adopt a part demanded that credence be given to all, and to discredit one circumstance detailed forbade credit to any other," and hence the verdict cannot stand. That is to say, the jury having believed defendant's testimony that he killed the deceased, they were also bound to believe him that it was done in self-defense. The jury were under no such constraint. They had the right to judge from all the narrated circumstances what part of defendant's story should be credited and what part disbelieved. They had the right to say whether, on his own statement of the facts and under the instructions of the court on that subject the defendant was justified, in self-defense, to go to the extremity of killing the deceased.
In People v. Sherman, 103 Cal. 409, [37 Pac. 388], it was held that the defendant, who was accused of murder and was convicted of manslaughter, was entitled to a new trial where the evidence, without conflict, showed that the killing was justifiable. Defendant relies on this case on the assumption that the justification in the case cited, shown by the witnesses who were present and saw the killing, also appeared in the present case.
This is on the further erroneous assumption that the jury were bound to give credit to all of
defendant's testimony. The jury, as we have seen, were not so required to do.
2. Upon the second point, it is stated in his brief: “Defendant has either justified the killing or he has not, for no mitigating circumstances were shown. This being so, defendant is either guilty of murder or he is not guilty, and the court was not warranted in instructing the jury that a verdict of manslaughter might be rendered." It has been held that where the defendant requested such an instruction it was not error to refuse it. People v. Lee Gam, 69 Cal. 553, 555, [11 Pac. 183); People v. Chavez, 103 Cal. 407, [37 Pac. 389), and other cases. But such ruling was based on the fact that the evidence was all one way and pointed to no other conclusion than of guilt as charged. The converse does not follow, as claimed, for the all sufficient reason that by giving the instruction the defendant was not prejudiced. On the contrary, the jury were given latitude which resulted to defendant's advantage.
There was evidence that defendant and deceased were not on friendly terms; that both of them had been drinking the early part of the night of the homicide which occurred about half past nine o'clock when both were on their way home; there was also evidence that the reputation of defendant for peace and quiet in the neighborhood was good. An examination of the entire record discloses some ground for the conclusion reached by the jury. There was no witness to the homicide except the defendant and the deceased.
The jury were at full liberty to acquit the defendant if they believed that he was justified in taking the life of deceased. The instruction cannot be said to have been an invitation to render a compromise verdict. The jury may have decided that, while the deceased was, in some degree, the aggressor, the defendant was not justified in killing him.
3. The only support given to the claim of misconduct by a jurcr is found in the affidavit of W. D. L. Held, one of defendant's attorneys, which is as follows: “That on the 18th day of June, 1912, and while testimony was being taken in said case, affiant observed that one of the jurors w asleep in the jury-box, that Clarence Ylitalo, a witness on behalf of the prosecution, was at said time under cross-examination; that affiant has no knowledge of the duration of the time
during which said juror was asleep; that the judge of this court, presiding at said trial, before affiant had an opportunity to call his attention to the condition of said juror, admonished the jury that all of them should remain awake, and thereupon declared a recess of said court."
Without doubt the defendant was entitled to the undivided attention of every juror while evidence was being taken in the trial. But we do not think the facts appearing in the affidavit of Mr. Held are sufficient to show that the juror's condition was other than momentary, or that he failed to hear any question and answer of material importance. The juror's name is not given nor was he asked whether he heard the testimony. He was not given an opportunity to explain, what may have been the fact, that his eyes were closed but that he was not asleep. The affidavit shows that the duration of the juror's condition was not known, and we cannot presume that it was of such length of time as to have prevented his understanding the testimony being given.
The judgment and order are affirmed.
Hart, J., and Burnett, 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 January 22, 1913.
(Civ. No. 1001. Third Appellate District.-November 27, 1912.]
JOHN DOUDELL, Respondent, v. JOHN J. SHOO, JOSE
PHINE J. SH00, and L. F. HERRICK, Appellants. PARTNERSHIP ACCOUNTING - PLEADING — EXISTENCE OF PARTNERSHIP
SHOWN.-A complaint for an accounting of partnership assets, which alleges that the plaintiff and one of the defendants entered into a parol contract of partnership, whereby they agreed to associate themselves together for the purpose of conducting and main. taining a certain business therein described, and to acquire personal and real property suitable for the purposes of the business they had agreed to carry on, and for the purpose of dividing the profits of
said business between them, clearly shows the existence of a part
nership as defined in section 2395 of the Civil Code. ID.-AGREEMENT TO ACQUIRE LAND IN DEFENDANT'S NAME-CONSTRUC
TION OF COMPLAINT-TIME OF RECOVERING PARTNERSHIP ASSETS.Where the complaint alleges an agreement to secure an option in the name of the defendant to purchase the land and buildings required for the partnership business, and that he borrowed twenty thousand dollars for payment upon its acceptance, and an agreement that the unpaid principal and interest should be paid from rents and profits, and that when so paid, plaintiff would pay to defendant onehalf of said sum of twenty thousand dollars, and that said real property "should be and become part of the copartnership assets,” the complaint is to be construed as meaning that the property was to become partnership assets when purchased by defendant, and not
when it was fully paid for. ID.–CONTRACT or EMPLOYMENT UPON EQUAL SHARES OF PROFITS NOT
SHOWN-PARTNERSHIP ONLY ALLEGED.—The complaint discloses no contract of employment by the defendant of the plaintiff upon an equal share of the profits, without a vested interest therein, but it clearly alleges a partnership only, where it states that the parties agreed to purchase the property for partnership purposes, that they did so, and jointly took possession of the property, and agreed to carry on the business for which they associated themselves together,
and to jointly share the profits thereof. ID.—LIABILITY FOR DEBTS OR LOSSES IMPLIED FROM AGREEMENT TO DI
VIDE PROFITS.—It is not essential to a partnership that there should be an express agreement to pay debts or losses incurred in carrying on the business. The law implies an agreeinent to divide the losses from an agreement to divide the profits of the business, unless it
is otherwise expressly stipulated. ID.-PAROL CONTRACT OF PARTNERSHIP NOT A LEGAL CONCLUSION-ISSU.
ABLE FACT-AVERMENT SUFFICIENT.—The statement that the parties "entered into a parol contract of partnership,” is not the statement of a mere legal conclusion, but presents an issuable fact. Where such averment is immediately followed by the allegation, "whereby they agreed to associate themselves together for the purpose of condacting and maintaining” the business therein named, it suficiently
states a partnership under the code definition thereof. ID.-RULE OF PLEADING-ULTIMATE FACTS_DISTINCTION FROM EVIDEN
TIARY Facts.—In pleading, where ultimate, and not probative facts are dealt with, much more liberality must be indulged in as to the statement of the facts of the transaction on which the action is founded than can be accorded to the witnesses, who must give evi.
dentiary facts only. ID.-SUFFICIENT AVERMENT AS TO PARTNERSHIP TITLE TO REAL PROP
ERTY—PLAINTIFY'S INTEREST.—Notwithstanding by the agreement
the title to the real property was taken in the name of the defend. ant, the complaint sufficiently alleges not only that the improvements put upon the real property and the stock in trade and all fixtures and paraphernalia used in connection with the business entered into, but also that real property was purchased by the partnership, in pursuance of the option secured, and was to be paid out of the profits of the business and the rents derived from certain parts thereof, and the principal purchase price and interest had been fully 80 paid, thus showing that the real property was the property of the partnership, and that the plaintiff has an interest as a partner in
such title. ID.-AVERMENT OF PARTNERSHIP TITLE IMPORTANT AS TO ACCOUNTINO
EXISTENCE NOT ESSENTIAL TO PARTNERSHIP. Though the averment of the partnership’s title to the real property is important as to the accounting; yet, in order to constitute a partnership, it is not necessary that there should be real property forming its capital jointly owned by the partners. It may be the separate property of the partners, but if they share in the profits and losses arising from its
use, a partnership exists. ID.—DURATION OF PARTNERSHIP_STATUTE OF FRAUDS-ORDER STRIKING
OUT-PARTIAL EXECUTION-PARTNERSHIP AT WILL EXISTENCE UNTIL DISSOLUTION.—The objection to the complaint that the contract for partnership involved at the final hearing was void under the statute of frauds, embodied in section 1624 of the Civil Code, as having been made for three years, is not available, where it was stricken out upon motion. But, since it was partly executed, the only effect that it could have upon the agreement finally enforced, would be to convert it into a partnership at will, which exists until
something is done to dissolve it. ID.-PAROL AGREEMENT TO ACQUIRE LAND FOR PARTNERSHIP PURPOSES
NOT VOIDABLE UNDER STATUTE OF FRAUDS.—It is settled upon abundant authority that a parol agreement to acquire lands for partnership purposes, is not voidable under the statute of frauds. Where, in the present case, the object of the partnership agreement was not only to carry out the partnership business, but also to purchase real property to be used for the purposes of the partnership, as well as to acquire personal property for such purposes, it is held there is no distinction between the transaction by the partners as to the real property and the transaction by them involving the pur
chase of the goods and wares which they agreed to engage in selling. ID--PROPER JOINDER OF VENDEE OF DEFENDANT PENDING ACTION IN
EQUITY TO SETTLE PARTNERSHIP.—Where it is alleged in the action in equity to settle the partnership rights as to the real property involved, that prior to the filing of an amended and supplemental complaint therein, and during the pendency of the action, the de. fendant partner conveyed said real property to another person, it was