CRIMINAL LAW (Continued). 88. IMPROPER MOTION TO STRIKE OUT EVIDENCE QUESTION NOT OBJECTED TO-RES GESTAE.-A motion cannot be allowed to strike out evidence where no objection was made to the question which elicited the testimony, nor where the evidence was unobjectionable, as being part of the res gestae of the offense. (Id.) 89. LEADING QUESTIONS - DISCRETION QUESTION NOT ANSWERED.— Leading questions are largely in the discretion of the trial court, and before error can be claimed or allowed for the asking of such questions, it must be shown that the trial court abused its discretion. It is held that no such abuse of discretion appears, and that the record does not show that the particular leading question objected to was answered by the witness. (Id.) 90. INSTRUCTIONS-FULL CHARGE OF COURT UPON LAW OF THE CASEABSENCE OF REQUEST-REQUEST OF JURY.-Where the court fully and fairly charged the jury upon the law appertaining to the facts of the case, the failure of the court to instruct the jury upon any particular matters deemed essential by the defendant was not error in the absence of a request for such instructions. The request of the jury for further instruction as to what constituted the gist of the offense charged, was properly conveyed to them by a reading of the indictment; and their request as to evidence was answered by consent of counsel. The court was not required to instruct them any further. (Id.) 91. SUPPORT OF VERDICT.-It is held that upon a careful review of the evidence appearing in the record, that the evidence fully supports the verdict, and that the defendant was justly convicted. (Id.) 92. RAPE SEXUAL INTERCOURSE WITH GIRL UNDER SIXTEEN-SUPPORT OF VERDICT.-Upon a prosecution for rape committed by the defendant by having sexual intercourse with a young girl under sixteen years of age, who was not the wife of the defendant, it is held that the verdict of guilty of the offense charged is supported by the evidence, not only of the prosecutrix, but also of the uncontradicted evidence of an unimpeached witness to whom the defendant's guilt was practically admitted, while in jail. (People v. Von Perhacs, 48.) 93. CREDIBILITY AND WEIGHT OF EVIDENCE-PROVINCE OF JURY AND JUDGE. The credibility and weight of the evidence is within the province of the jury, in the first instance, and when the verdict of guilty as charged has been rendered, it rests solely with the trial judge, in passing upon the motion for a new trial, and the order of the court in denying a new trial, after such verdict, will rarely be disturbed upon appeal. (Id.) 94. SUFFICIENCY OF EVIDENCE WHEN DISTURBED UPON APPEAL.-The sufficiency of the evidence to support the verdict, will not be disturbed by the appellate court, save in those rare cases where it obviously CRIMINAL LAW (Continued). appears that the testimony upon which the conviction was had is in and of itself, or when considered with the undisputed facts of the case, so inherently improbable as to be impossible of belief, and therefore must be considered in effect to be no evidence at all. (Id.) 95. MOTION FOR A NEW TRIAL-NEWLY DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE-IMPEACHMENT OF WITNESS-MOTION PROPERLY DENIED.-Where a motion for a new trial, made for newly discovered evidence, shows that such evidence is merely cumulative, and of a character impeaching the testimony of a witness for the prosecution, it shows, in its entirety, that the ground of newly discovered evidence is insufficient, and that the motion was properly denied. (Id.) 96. EVIDENCE OF GOOD CHARACTER OF DEFENDANT-PROPER INSTRUCTION. Where there was evidence of the good character of the defendant, as to which a requested instruction was given, the court also properly instructed the jury that if, after weighing all of the evidence including that of the good character of the defendant, the jury believed him guilty beyond a reasonable doubt, they should bring in a verdict accordingly notwithstanding the fact that the defendant had previously borne a good reputation. (Id.) 97. PROPER INSTRUCTION AS TO TESTIMONY OF PROSECUTRIX.-The court properly instructed the jury, that although they should be cautious in accepting the uncorroborated testimony of the prosecutrix, nevertheless they were not required to acquit the defendant merely because her testimony was not corroborated, and that if the jury are satisfied beyond a reasonable doubt from her testimony, that the defendant had sexual intercourse with her, within the meaning of the allegations of the information herein, it will be your duty to resolve that question of fact on the side of the people, notwithstanding no other witness has testified to the same effect. (Id.) 98. ROBBERY-EVIDENCE-DENIAL OF STATEMENT-FOUNDATION FOR IMPEACHMENT. Where one of the defendants in a prosecution for robbery, on his cross-examination gave evasive answers to questions asked as to statements made by him, and when asked whether he had not stated on the day of his arrest in the presence of the "deputy sheriffs and others" that "he was not present at the scene of the crime at all on the day of its commission," replied: "I did not say anything like that," a sufficient foundation was laid for impeaching testimony of the sheriff, that such statement was made by such defendant on the day of his arrest in the presence of the sheriff and his deputies. (People v. Singh, 146.) 99. RELATION OF IMPEACHMENT TO UNDENIED CONTRADICTORY STATEMENTS NOT ADMITTED.-While, in general, a witness cannot be impeached by evidence of previous contradictory statements which he does not deny having made, said rule is subject to the qualifica CRIMINAL LAW (Continued). tion, that such impeaching evidence is admissible, if the witness does not distinctly admit that he made the statements attributed to him. (Id.) 100. RULE AS TO FOUNDATION FOR IMPEACHMENT-MINOR DEFECTS NOT CONSIDERED.-While it is a settled rule that before the contradictory statements of a witness can be properly admitted for impeachment purposes, the proper foundation therefor must be laid; yet minor defects in the foundation question should not be seriously considered, and it will generally suffice to designate the person to whom the statement was made, without naming all of the other persons who may have been present, if it is otherwise clear that the attention of the witness is called to the conversation in such a manner that it can with reasonable certainty be identified by him. (Id.) 101. PROPER REQUESTED INSTRUCTIONS-DUTY OF EACH JUROR AS TO REASONABLE DOUBT.-Requested instructions to the effect that the defendant was entitled to the individual opinion of each member of the jury, and that if any juror entertained a reasonable doubt of the guilt of the defendant, he should not vote for a verdict of guilty, merely because a majority of the jurors believed the defendant to be guilty, contained a correct statement of the law, and should have been given, and it was error to refuse them. (Id.) 102. NONREVERSIBLE ERROR ADMONITORY INSTRUCTION INCLUDED IN OATHS OF JURORS-JUSTICE NOT MISCARRIED.-It is held that the error in refusing such instruction is immaterial; that the instruction was admonitory and was embodied in the oaths of each juror to well and truly try the case and render a verdict according to the evidence; and that in view of the whole case it cannot be said that justice has miscarried as the result of the error. (Id.) DAMAGES. See Bank, 9, 10; Contract, 6-8, 10; Conversion, 2; False Imprisonment, 7, 8; Injunction, 1. DEBTOR AND CREDITOR. See Bankruptcy; Fraud, 1-3; Guaranty. DIVORCE. 1. DEFAULT-DEFECTS IN AFFIDAVIT OF SERVICE-PROPER FILINGINTERLOCURORY JUDGMENT - MOTION TO VACATE- ADMISSION OF SERVICE GROUNDS OF MOTION NOT SUSTAINED-DEFECTS WAIVED.In an action for divorce, where the summons was served August 27, the date of filing the complaint, and the proof of the service of the summons, which is essential to sustain a default, bore date September 27, owing to a probable mistake of the notary, but it appears that such proof was on file September 8, when the default of the defendant was entered, and the proofs of the plaintiff were heard, 20 Cal. App. 54 DIVORCE (Continued). and an interlocutory judgment granted, which recited the service of summons and the entry of the defendant's default, and the defendant moved the court to vacate the judgment, on the grounds of mistake, inadvertance, surprise, and excusable neglect and admitted in her motion that he was served with summons on August 27, he thereby admitted that the summons had served its purpose, and where the grounds of his motion failed, he is in no position to object to any defects in the affidavit of the service of summons. (Hamilton v. Hamilton, 117.) 2. DIVORCE OF MOTHER FROM FATHER-CUSTODY OF BOY BY AGREEMENT— MODIFICATION OF DECREE-AWARD TO FATHER FOR CARE AND EDUCATION-CONDITIONS-DISCRETION NOT ABUSED.-Where a decree of divorce was obtained by a mother from the father on the alleged ground of extreme cruelty, but the decree of divorce awarded the custody of their young boy, then eight years of age, by agreement, for six months to each of them, and about two years after the interlocutory decree, the decree was modified so as to award his custody to the father for care and education at a suitable school, subject to the conditions that the mother should have his custody during vacations, with right to visit him at other times so as not to interfere with his attendance at school by such visits, it is held that the court did not abuse its discretion by so modifying the decree. (Russell v. Russell, 457.) 3. DECREE FOR CUSTODY UNDER AGREEMENT NOT AFFECTING POWER OF COURT TO MODIFY DECREE.-The decree for the custody of the boy, pursuant to the agreement of the parties, which was confirmed thereby, cannot affect the power of the court to modify the decree as to such custody under section 138 of the Civil Code. A decree based upon such an agreement as to custody is simply provisional. The court is not bound to enforce the agreement; but a decree made in pursuance thereof, may be modified by the court, pursuant to the statute. (Id.) 4. CHARACTER OF DIVORCE NOT AFFECTING RIGHT OF CUSTODY OF FATHER. It cannot be assumed that the decree of divorce for extreme cruelty was of such a character as rendered the father not a suitable custodian of the boy, in view of the terms of the decree as to his custody, by the agreement of the parties. (Id.) 5. BOY NOT OF TENDER AGE IMPERATIVELY REQUIRING CARE OF MOTHER -PROPER CARE OF FATHER FOR EDUCATION AT SUITABLE SCHOOL.It is held that a boy past ten years old is not of such tender age as imperatively to require the attention of his mother, where it appears that the household of the father, as constituted, may give the needed attention for his attendance at a suitable school under the father's direction. (Id.) DIVORCE (Continued). 6. CONSTRUCTION OF CODE AS TO "TENDER YEARS"-PROVISION AS TO GUARDIANSHIP NOT CONTROLLING.—The provision of section 246 of the Civil Code that "other things being equal, if the child is of tender years, it should be given to the mother; if it is of an age to require education and preparation for labor and business, then to the father," is not to be controlled or affected by the provisions of the Code of Civil Procedure relating to guardianship, which contains no provision that every child under fourteen years of age is to be treated as a child of "tender years." The sex and physical development is to be considered. There is no fixed or certain age of minority, which in all cases, and for all purposes can be said to constitute a child of "tender years." (Id.) 7. POWER OF COURT OVER CUSTODY OF CHILDREN-PROVISIONS AS TO GUARDIANSHIP NOT CONTROLLING. The provisions of the Civil Code relating to guardians and wards in nowise control the power of the court, under section 138 of the Civil Code, in actions for divorce, to "make such order for the custody, care, .. and support of such minor children as may seem necessary or proper." (Id.) ... 8. ACTION FOR DIVORCE-DECREE DENIED TO BOTH PARTIES-FINDINGSRELIEF AS TO CUSTODY OF CHILDREN-ALIMONY, COUNSEL FEES, OR PROPERTY UNSUPPORTED-MODIFICATION.-In an action for divorce, where the application of each party therefor is denied, and the only findings made are "that the allegations and averments of plaintiff's complaint have not been proved; that the allegations and averments of defendant's cross-complaint have not been proved"; and no fact is found that would justify the inference that it is for the best interests of the children that their custody should be awarded to the mother, or that she is entitled to alimony, or to counsel fees, or to the rents and profits of the community property or homestead, or to any relief under section 136 or 137 of the Civil Code, the judgment awarding such relief must be modified by striking it from the decree, leaving only the decree denying such divorce to both parties. (Bensen v. Bensen, 462.) ELECTION. 1. ELECTION CONTEST-DISQUALIFICATION OF JUDGE CONTINUANCE BEYOND TWENTY DAYS-PROCUREMENT OF QUALIFIED JUDGE JURISDICTION NOT LOST-MANDAMUS.-Where an election contest, owing to the disqualification of the judge, was continued beyond the twenty days' limit fixed by section 1121 of the Code of Civil Procedure, in order that a judge qualified to try the contest may be procured, jurisdiction to hear the contest was not lost in such case, but where it was deemed lost, mandamus will lie to compel the court to reset the contest for hearing. (Moore v. Superior Court, 299.) 2. FAILURE TO TRY CAUSE FOR WANT OF JURISDICTION-PRIOR DEMAND AND REFUSAL TO RESET CAUSE NOT A CONDITION OF MANDAMUS.— |