5. They are entitled, however, to only one-half the rents and profits accruing during the detention; defendant being liable for the remaining half to the owner of the other undivided onehalf of the estate.

Department 2. Appeal from superior court, Solano county.

Ejectment by Annie McGuire and others against P. C. Lynch. From a judgment for plaintiffs, defendant appeals. Modified.

H. H. McPike, for appellant. Frank R. Devlin, for respondents.

TEMPLE, J. Annie McGuire and four of her children sue in ejectment to recover the demanded premises, with damages for withholding the same. A demurrer was sustained to the complaint of Annie McGuire, and she failed to amend, but the suit was continued by the other plaintiffs. Defendant denied all the material allegations of the complaint, and pleads the statute of limitations.

The court finds, in substance, that in 1880 the property belonged to one Patrick McGuire, who was the father of the plaintiffs and the husband of the said Annie McGuire. He died in that year intestate, and the probate court duly set aside and assigned all the property of the estate to the widow and minor children for their support, under section 1469, Code Civ. Proc. That section then provided that if the value of the estate be found to be less than $1,500 the court shall assign, for the use and support of the minor children, the whole estate, after certain pay'ments, and there shall be no further proceedings in the administration unless further estate be found. It was further found that, on the 16th day of April, Annie McGuire executed and delivered to defendant an instrument in writing, purporting to be a deed, but in fact a mortgage, which has never been foreclosed. On the 28th day of September, 1890, defendant ousted plaintiffs, and has since unlawfully withheld said premises from plaintiffs. The value of the use and occupation is found to be $780, for which amount judgment was rendered, after deducting $249 for the care and preservation of the property and for taxes. Whether there was error in making the deductions is not a question here, for the plaintiffs have not appealed.

In effect, although not expressly, the court finds that the defendant is a naked trespasser, without right or title to any extent in the demanded premises. The evidence was ample to support the finding that the deed to Lynch was a mortgage. It is contended that the court had no jurisdiction to determine that the deed from Mrs. McGuire was a mortgage, rather than a conveyance, because Mrs. McGuire had ceased to be a party to the action. If the question was material to the issues made between plaintiffs and defendant, so far the court was bound to determine the matter. As to the statute of limitations, the court did not find that issue in favor of defendant, nor did the court find that the

right of Annie McGuire was barred by defendant's adverse possession. Nor, indeed, does the evidence show that her right was barred by the statute. She testified that when defendant demanded possession of the premises she told him she would give him possession, that he might pay the debt due him from the rents. That being so, his possession was not adverse, and the statute did not begin to run.

The bill of exceptions is a mere skeletonstatement. Many documents are referred to as introduced, and it is said, "Here insert plaintiffs' exhibit," etc., but the documents do not appear in the bill of exceptions. We can only conclude, therefore, that they are exactly as stated in the findings. It is found that the whole of the estate of Patrick McGuire was by the probate court "assigned to said widow and minor children for their use and support, and declared to be the property of said widow and minor children under and by virtue of the provisions of section 1469 of the Code of Civil Procedure of California." That section, as it then read, does not expressly state to whom the estate shall be assigned, but simply that it shall be assigned for the use and support of the widow and minor children. The preceding section, however, which is in the same chapter, provides that "when property is set apart to the use of the family under the provisions of this chapter, if the decedent also left

a minor child, or children, the one-half of such property shall belong to the widow or surviving husband, and the remainder to the child, or in equal shares to the children if there be more than one." In the absence of special provision in section 1469, this must control.

The children, therefore, were properly held to be entitled to an undivided one-half of the demanded property. The deed to defendant, being a mortgage, conveyed to defendant no interest in the property and no right of possession. Annie McGuire testified, in substance, that defendant was in possession as her tenant, but defendant denied this, and claimed to hold adversely. If he had admitted the tenancy, plaintiffs could only have recovered an undivided one-half. But the court found, according to his own testimony, that he was a mere trespasser. Plaintiffs, therefore, properly recovered possession of the entire property.

I see no plausibility, however, in the theory adopted by the court as to the rents. The widow was the owner of an undivided onehalf, and was entitled to the use of one-half for her support. Indeed, there is much more force in the contention that, being bound for the support of her minor children, she can claim all of it, than that the children can do The defendant is still liable to a suit by her for her portion. The cause is therefore remanded, with directions to the superior court to modify the judgment by deducting one-half of the sum recovered for rents

So.

COMPTON, Road Com'r, v. CARR et al. (L. A. 557.) (Supreme Court of California. Nov. 7, 1899.) CONTRADICTORY FINDINGS.

In an action under Pol. Code, §§ 2731, 2734, for the obstruction of a highway, the court found that a strip of land 66 feet in width, and of a certain length, as described in the complaint, was a public highway, that said strip was dedicated to the public as a public highway by a certain person, that said highway was of the uniform width of 40 feet, and that defendants obstructed said road as charged. The court failed to locate the 40-foot strip within the 66-foot strip. Held, that the findings were too contradictory to support a judgment.

VAN DYKE, J. The plaintiff, as one of the supervisors of Riverside county, and road commissioner of his supervisorial district, brought this action against the defendants for the obstruction of an alleged public highway within his road district. The action is brought under the provisions of the Political Code: "If any highway duly laid out or erected is encroached upon by fences, buildings or otherwise, the road overseer of the district may, orally or in writing, require the encroachment to be removed from the highway." Section 2731. "If the encroachment is denied, and the owner, occupant, or person controlling the matter or thing charged with being an encroachment refuses to remove or permit the removal thereof, the road overseer must commence, in the proper court, an action to abate the same as a nuisance; and if he recovers judgment he may, in addition to having the same abated, recover ten dollars for every day such nuisance remained after notice, also costs in said action." Section 2734. Defendants in their answer did not deny the encroachment,-that is, erecting the fence alleged to be on the highway,-but denied that the alleged highway was a public highway, or ever dedicated as such. The complaint, as amended, described by courses and distances a strip 33 feet wide on each side of the common line dividing lots 2 and 3 in the Arthur Parks tract in West Riverside (the said strip being, in all, 1 chain, or 66 feet, in width, by 22.68 chains in length), and alleges that this strip is, and for many years has been, a duly laid out, constructed, and

established public highway. The court finds that the said strip (giving the same description as in the complaint) is and has been a public highway, and has been used as such without interruption for about 15 years, and has been practically the principal road in a northerly and southerly direction in the locality in which said road is situated, during all of said time; "that said strip of land was dedicated to the public as a public highway by one Arthur Parks, Sr., many years ago, who at the time of said dedication was the owner of the tract of land through which said road passes; that said highway is of the uniform width of forty feet." The court further finds that the defendants obstructed said road as charged, and, as a conclusion of law, that the plaintiff is entitled to a judgment to have the obstruction removed, and for costs. The judgment entered upon the findings, after the preliminary recitals, reads: "Wherefore, by reason of the law and the findings aforesaid, it is ordered, adjudged, and decreed that the plaintiff, Ambrose Compton, as road commissioner of the First supervisorial road district of the county of Riverside, do have and recover judgment as follows: First. That that certain highway in the county of Riverside described as follows is, and for many years has been, a public highway. [Then follows the same description, by courses and distances, contained in the amended complaint and in the findings; being the strip 1 chain, or 66 feet, in width.] Second. That said highway is of the uniform width of forty (40) feet," and that the obstructions were placed across the same as charged, and that the same be removed, together with plaintiff's costs. Defendants moved for a new trial, which was denied, and this appeal is from the judgment, and from an order denying a new trial.

It is contended on behalf of the appellants: First, that the findings are contradictory and inconsistent with each other in material matters; second, that the evidence does not support the finding that there was or is a public highway.

The court found, as shown, that there was a public highway 1 chain, or 66 feet, in width; describing the same by metes and bounds. Owing to the nature of the testimony, or for some other reason, the court also finds that the dedicated road is only 40 feet wide; being the minimum width, fixed by law, of all public highways. Pol. Code, § 2620. The court, however, failed to locate the dedicated strip limited to 40 feet, and that remains, as it were, afloat. It may be located in the center of the wider strip (that is, 20 feet on each side of the line dividing the lots of the defendants), or all on one side of said exterior strip, to wit, 33 feet on one side of the dividing line and 7 feet on the other. It is quite impossible to reconcile these contradictory and conflicting findings so as to support the judgment, and for that reason, without considering the other point raised by the appel

indorsement: 'Los Angeles, Cal., Dec. 30, 1896. Dear Fred and Rose: In handing you this envelope I wish to make the following requests: That the envelope shall not be opened for one month after my death, and that you give to your son Fred one-third of the value therein, for his exclusive use. It is my desire that nobody but myself shall know the contents hereof.' He then signed his name to said writing. This envelope containing the stock was then left in my possession, and was by me placed in the safe in my office. Daniel Calkins had previously intrusted to me for safe-keeping certain valuable papers, which I kept in the same safe, but in a different compartment from that in which I placed the envelope containing the stock." On cross-examination the witness testified, in substance: "At the time the envelope was handed to me, and the indorsement written thereon, I did not notice that the envelope was unsealed. The day after the death of Daniel Calkins I noticed that fact, and thereupon sealed the envelope. This I did because Daniel Calkins really intended that it should be sealed, and I intended that it should. It was simply an oversight of mine that it was not sealed. It was agreed between us that it should be sealed. Within a week after the death of Daniel Calkins I opened the envelope, took the stock to the office of the Equitable Building and Loan Association, and asked to have it transferred on the books of the association to my name, and new certificates issued, which was refused. I never presented the stock for transfer during the lifetime of Daniel Calkins. There was no consideration paid for the stock. It was not a sale; it was a gift."

This testimony of plaintiff Calkins was corroborated in several particulars, and was not contradicted at all, and the court finds the several facts to which it relates in exact accord with said testimony. The question is, do the evidence and findings show a complete and executed gift of the stock in question by deceased, in his lifetime, to the plaintiffs? "A gift is a transfer of personal property, made voluntarily and without consideration." Civ. Code, § 1146. "Whenever the capital stock of any corporation is divided into shares, and certificates therefor are issued, such shares of stock, except as hereinafter provided, are personal property, and may be transferred by indorsement by the signature of the proprietor, his agent, attorney or legal representative, and the delivery of the certificate; but such transfer is not valid, except as to the parties thereto, until the same is so entered upon the books of the corporation as to show the names of the parties by whom and to whom transferred, the number of the certificate, the number or designation of the shares, and the date of the transfer." Id. § 324. Everything necessary to a complete transfer of the stock, as between the parties, was found by the court to

have been done by them in the lifetime of Daniel Calkins, and it is also found that these things were done with the intent to make a present transfer, and not with the intent to make a testamentary disposition. We think these findings are fully warranted by the evidence, and that the conclusion of the trial court that a valid transfer of the stock was effected is fully supported. Whether an actual gift and transfer of the stock was accomplished depended principally upon the intention of the alleged donor. The case of Ruiz v. Dow, 113 Cal. 490, 45 Pac. 867, is similar, in the principles involved, as Iwell as in the facts considered, to the case now under consideration. The decision in that case we regard as sound, and an examination of it we think will show that it disposes effectually of every point of importance contained in appellant's brief in this case, and that no judgment other than the one entered in this case could have been rendered herein consistently with that decision. The fact that the donor reserved to himself the right to the dividends during his life did not affect the validity of the gift. The gift and transfer of the stock were accomplished by the written assignment and delivery of the stock with the intention to make a gift thereof to plaintiffs. The donor thereby gave up to plaintiffs the title and control of the stock, and he could not thereafter revoke the gift. The donees became the owners of the stock, and might have conveyed it away to a third party in the lifetime of the donor, subject to the reservation contained in the written assignment. Of course, the donor did not give away or pass title to the dividends which he had expressly reserved, but every other interest and right in the certificates and in the stock represented thereby passed to the donees. The cases of Zeller v. Jordan, 105 Cal. 143, 38 Pac. 640, and Hart v. Ketchum, 121 Cal. 426, 53 Pac. 931, and the other California cases relied on by appellant, differ materially as to their facts from the case now under consideration, and furnish no guide for this decision. We advise that the judgment and order be affirmed.

We concur: COOPER, C.; BRITT, C.

3. Prosecuting witness was standing on the rear platform of a crowded ear, when it was claimed that his pocket was picked of two purses, containing $30 and five $20 gold pieces, respectively. Such witness testified that he saw defendant's hand withdrawn from witness' pocket, and he thereupon grabbed him, and that he saw defendant pass some article to a codefendant, whom he also grabbed. There was evidence that the co-defendant dropped the article passed to him on the car platform, where it was picked up, and found to be witness' $30 purse intact. On being searched, five $20 gold pieces were found concealed on defendant. Held, that the facts warranted a verdict of guilty.

4. Where prosecuting witness in a trial for larceny testified that, when defendant pulled his hand out of witness' pocket, he grabbed him, and, on seeing him pass something to a co-defendant, grabbed him also, and shouted to a friend, "They are robbing me," such statement was a part of the res gestæ, and hence admissible.

5. Where prosecuting witness, on being robbed, grabbed defendants, the testimony of a bystander to statements made by such prosecuting witness, while defendants were still in his grasp, was admissible, as spoken in the presence of defendants.

6. Where a purse claimed to have been stolen on a car was found on the car platform, it was admissible as part of the res gestæ in a prosecution for larceny.

7. Where it was shown that five $20 gold pieces were found in defendant's stockings a short time after the larceny, such coins were properly admitted in evidence, it appearing that coins of similar denomination and number had been stolen from prosecuting witness.

8. Where defendant testified that he had placed $100 in his stockings the morning of the larceny, and on cross-examination stated that he always carried his money there, it was not error for the prosecution in rebuttal to show that defendant was not in the habit of carrying money in his stockings, since defendant's evidence as to his habit of carrying money was material to the issue.

9. Where defendant testified that he had placed $100 in his stockings the morning of the larceny, and on cross-examination stated that he always carried his money there, testimony of police detectives that they had searched defendant many times, and had found money on his person but none in his stockings, though they had examined them, was proper in rebuttal, though by such evidence it incidentally appeared that defendant had been previously arrested.

10. Where defendant brought out, on cross-examination of witnesses, the fact that he had been previously arrested, the admission of other testimony, tending to show such arrests, was not prejudicial.

11. Where, in a prosecution for larceny, the state presented suflicient evidence to warrant the jury in rendering a verdict of guilty, it was not error to refuse defendant's request for an instruction that there was no evidence that defendant, and not another, either took or carried away money or other property from the person of the prosecuting witness, and without that evidence they could not find defendant guilty.

Department 1. Appeal from superior court, city and county of San Francisco.

John Piggott was convicted of grand larceny, and he appeals. Affirmed.

George D. Collins, for appellant. Atty. Gen. Ford, for the People.

GAROUTTE, J. Defendant has been convicted of the crime of grand larceny, and ap

his motion for a new trial.

He insists the indictment is fatally defective. It alleges: "The said John Piggott and Cal Childs, on the 11th day of February, A. D. 1899, at the said city and county of San Francisco, did ** steal, take, and car

ry away from the person and immediate possession of Gregoire Henrioulle one hundred and thirty dollars, gold coin of the United States, lawful money of the United States, the same being the money and property of said Gregoire Henrioulle; and two money purses, of the value of fifty cents each in lawful money of the United States, said purses being the personal property of said Gregoire Henrioulle." It is now insisted that there is no allegation in the pleading alleging the money stolen to have been the property of Henrioulle at the time it was stolen. It will be observed that the indictment says, "being the money and property of said Gregoire Henrioulle." It is now claimed that the word "being" refers to the time of the filing of the indictment, and not to the time of the commission of the larceny, and therefore the allegation is that the money and property was the money and property of Henrioulle at the time of the filing of the indictment, and this would be the allegation of a fact of no materiality to the legal sufficiency of the pleading. Some ancient English authority is cited to support the contention here disclosed, but, even conceding the soundness of the reasoning upon which the conclusion is rested in those cases, still in this day, under the code procedure, we are satisfied such a holding would be sticking in the bark. Our statute says that the indictment must be so framed that a person of common understanding may know what is intended. While this pleading would have been better if the words "then and there" had been inserted before the word "being," still we are satisfied that their absence does not render it void. Any person, even of the commonest understanding, would know from the allegations here stated that he was charged with stealing the money and property of Henrioulle, and that it was Henrioulle's money and property at the time it was stolen. If he is charged with stealing Henrioulle's money and property, it certainly must have been his at the time it was stolen. This is the only reasonable and fair construction of the pleading. It is not possible that the de fendant could have been misled by these allegations. He understood them perfectly well, and must have understood that it was Henrioulle's money and property that he was charged with having stolen. In the reports of this state we find many indictments and informations for larceny framed in this respect as the one at bar, and, while their legal sufficiency has been attacked upon many grounds, they have been upheld. The particular objection here presented possibly has never been raised, presumably, we think, be