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cause it has never been deemed of substantial merit. But, however that may be, we are convinced the defect in this pleading does not go to its substance, and therefore hold that the point made is not well taken.

The remaining objection to the indictment goes to the effect that the allegation of ownership is not made by positive declaration, but is a mere matter of recital. There is no great substance in this objection. Such style of pleading is not the best and is not favored. At the same time, it has been held sufficient by this court, and in various cases declared ample upon which to support a verdict and judgment.

sence and hearing of the defendant, and for that reason was admissible. It is idle to contend that the record does not disclose it to have been made in his immediate presence and hearing, for the record does disclose that at the time the statement was made the prosecuting witness had the defendant in his grasp. Again, at this identical time it is testified to by defendant himself that "the prosecuting witness told me I had his pocketbook, and I replied, 'How dare you insult me?' or 'I ain't got your pocketbook.'" Again, the prosecuting witness testified at the trial that the defendant was the man who stole his money; and in the face of this testimony it is impossible to see how his statement made at the time of the larceny, to the same effect, could possibly have injured defendant's case. There is no error in the ruling of the court upon this question demanding a new trial.

It was clearly proper to admit in evidence the purse containing $30 which was found upon the car platform. There is some evidence that defendant passed it to his co-defendant, and that the co-defendant dropped it upon the platform. Under any circumstances, it was the purse of Henrioulle, declared by him to have been stolen, and therefore clearly admissible as part of the res gestæ. Again, the five $20 pieces found in defendant's stockings were admissible in evidence. One of the purses which was stolen

The prosecuting witness was standing upon the rear platform of a crowded electric car, when it is claimed that his pocket was picked of two purses, containing $30 and $100, respectively. At the very moment that he claims to have been robbed he grasped the defendant Piggott, and immediately thereafter also grasped the co-defendant, Childs, they being in his immediate presence at the time. He testified at the trial that he felt a hand withdrawn from his pocket; that he saw it was Piggott's hand, and thereupon he took hold of him. He further testified that about the same time he saw Piggott pass some article to his co-defendant, Childs. There was other evidence to the effect that the co-defendant dropped the article passed to him by Piggott upon the car platform, and it, hav-contained five $20 pieces only, and the coing been picked up, was found to be the purse of the prosecuting witness containing the $30. Upon being searched at the city prison, five $20 gold pieces were found concealed in the stockings of defendant. The remaining purse of the prosecuting witness contained five $20 gold pieces. The evidence is reasonably certain that both purses, with the money contained therein, were taken from the pocket of the prosecuting witness. This recital of evidence is made as indicating defendant's guilt, and we are clear that it is ample to support the verdict. It may be conceded that other evidence was offered tending to contradict, explain away, and neutralize the evidence contained in the foregoing recital; but the credibility and sufficiency of all of this evidence was essentially a matter for the jury to pass upon, and not a matter for this court.

The prosecuting witness, referring to defendant, testified: "When he pulled his hand out of my pocket, I grabbed him. That was the defendant Piggott's hand. I saw him then pass something to the other man, and I grabbed them two,-the two of them. I grabbed the other fellow, too, and I hallooed out to my friend, "They are robbing me!" This friend, the witness Flinn, testified that Henrioulle said: "These two men robbed him." Those statements of Henrioulle were admitted in evidence under objection, and error in such ruling is now insisted upon. The first statement is clearly part of the res gestæ. If the other statement was one different from the first, it was made in the immediate pres59 P.-3

incidence of finding five $20 pieces in defendant's stockings a very short time after the commission of the offense was a matter which might well be placed before the jury. Any objection made to the admission of these facts and of this money before the jury necessarily went to the weight of the evidence rather than to its competency.

Defendant testified that he placed the $100 in his stockings the morning of the larceny. Upon cross-examination, he was asked if he was in the habit of carrying his money in those places. He answered that he always did it. In rebuttal, the prosecution, under objection, introduced evidence tending to show that defendant was not in the habit of carrying money in his stockings. It is now insisted that this ruling of the trial court was erroneous, upon the ground that the crossexamination of the defendant as to this matter was collateral to the issue on trial, and that his evidence upon the point could not be attacked by other evidence. Defendant's declaration that he always carried his money in his stockings was not evidence as to a collateral matter. It was direct and material evidence upon an issue in the case. The prosecution would have been entitled to show, in the first instance, that it was not the practice of defendant to so carry his money. Such evidence would have strengthened their case. If this evidence could have been introduced in chief by the prosecution, it was not collateral to the issue of guilt or innocence.

The police detectives testified that they had

searched the defendant many times, and had found money upon his person, but never had found any in his stockings, although they had examined them. This evidence tended to contradict the statements of defendant upon the foregoing point, and the fact that by such evidence it may have incidentally appeared to the jury that defendant had been previously arrested upon many occasions did not furnish ground for rejecting it. Possibly it was unfortunate for defendant that such evidence came before the jury, but it was his misfortune simply. Again, it appeared upon the cross-examination of these witnesses and others by defendant that previously to this affair he had been arrested 18 or 20 times upon criminal charges. For this reason the incidental reference to that unfortunate fact by other witnesses could not possibly have prejudiced his case.

Defendant's counsel complains of the action of the court in refusing his request to give various instructions to the jury. We see no merit in these contentions. As, for example, the following instruction was asked: "You are instructed there is no evidence in this case to justify the conclusion that defendant Piggott, and not somebody else, either took or carried away money or other property from the person of the prosecuting witness, and without that evidence you cannot find the defendant guilty." Considerable space in defendant's brief is devoted to an attempt to show that the refusal to give this instruction was error. When we consider that this instruction, in substance, told the jury to acquit the defendant, it may readily be seen why it was refused. In view of what we have already said, it certainly was properly refused. We see no substantial merit as to the claims made by defendant's counsel upon the refusal of the court to give the other instructions asked. We have carefully examined the charge given to the jury, and find no substantial error therein. For the foregoing reasons, the judgment and order are affirmed.

We concur: VAN DYKE, J.; HARRISON, J.

(126 Cal. 505)

PEOPLE v. MOLINA. (Cr. 496.) (Supreme Court of California. Oct. 30, 1899.) CRIMINAL LAW-ARGUMENT OF COUNSEL-AP

PEAL-INSTRUCTIONS-PRESUMPTIONS.

1. It is not error for the district attorney to state in his opening argument that, in a former prosecution against defendant for an assault to commit murder, he consented to allow him to plead guilty of assault with a deadly weapon, "owing to the fact that it is sometimes very difficult, in these little troubles between that class of people, to have them come up and prosecute," where the fact of such plea of guilty and consent was proved.

2. A district attorney's argument, stating that the county had been free from crime for 15 years subsequent to 1877, and that it was unnecessary for him to say why crime exists in the community, or why arguments are being ban

died back and forth in the state as to whether the jury system is a failure, is not so prejudicially erroneous as to justify a reversal of a convic tion, where the evidence was sufficient to sustain the verdict, and the jury were instructed to disregard all matters outside the record.

3. It will be presumed that the jury were instructed to disregard statements of counsel outside the record, where such statements were made, and the record on appeal does not contain the instructions.

4. Where the evidence supports the verdict, and proper instructions were given, and no exceptions were taken to the admission of evidence, error in procedure must be plainly shown to have been prejudicial, to justify a reversal of the judgment or the order denying a new trial. Temple, J., dissenting.

In bank. Appeal from superior court, Kern county.

Ysabel Molina was convicted of murder, and he appeals from the judgment and an order denying a motion for new trial. Affirmed.

J. W. Wiley and S. M. Reed, for appellant. Atty. Gen. Ford, for the People.

PER CURIAM. The defendant was charged by the information with having on the 2d day of December, 1897, willfully, feloniously, and with malice aforethought killed and murdered one A. Ramos in the county of Kern. He pleaded not guilty, and, after trial, was convicted by the jury of the offense charged, without recommendation. He made a motion for a new trial, which was denied, and he was thereupon sentenced to be taken to the state's prison at San Quentin, and hanged by the neck until dead. This appeal is from the judgment and an order denying defendant's motion for a new trial.

Defendant has not brought here the evidence, nor the instructions given to the jury. In his brief he states that there was evidence to sustain the verdict, and that the instructions contain no error justifying a reversal. The sole and only point on which it is claimed the judgment and order should be reversed is by reason of the remarks of the district attorney in his argument to the jury before the final submission of the cause. The defendant was charged in the information with a prior conviction in the superior court of Kern county on the 3d day of September, 1896, of the crime of an assault with a deadly weapon, and to the charge he pleaded not guilty. In his opening argument to the jury the district attorney said: "No longer ago, gentlemen, than the 3d day of September, 1896, as was shown by the judgment roll in the case of the people of the state of California against Molina (No. 394) in this court, this defendant was convicted, or pleaded guilty, rather, to the crime of assault with a deadly weapon, having been informed against upon a charge of assault to commit murder; the plea having been allowed to be entered by my consent for the lesser offense, owing to the fact that it is sometimes very difficult, in these little troubles that ɛrise between that class of people, to have them come up and

PEOPLE v. MOLINA.

prosecute when it comes into a court of justice." The defendant excepted to the remarks, but made no motion to have them corrected, or the jury instructed to disregard them. It is now claimed that the remarks were prejudicial error. As the defendant had entered his plea of not guilty to the charge of a prior conviction, it became necessary for the district attorney to introduce proof in support of such charge, or abandon it. He did accordingly introduce the judgment roll of such prior conviction, showing the facts as stated, and showing the fact that by consent of the district attorney the defendant was allowed to plead guilty of an assault with a deadly weapon, after having been informed against upon a charge of assault with intent to commit murder. The remarks of the district attorney were therefore in accordance with the evidence, and were pertinent to an issue before the jury.

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imagination as to the cessation of crime in Kern county after 1877, and as to the jury system being claimed by many to be a failure, but we cannot see how the remarks could have injured the defendant. The matters jury as to the district attorney before he made spoken of were probably as well known to the the statement. It does not appear to us whether they were in the record or not. the leading case of Tucker v. Henniker, 41 N. H. 323, it is said: "The right of discussing the merits of the cause, both as to the law and facts, is unabridged. The range of discussion is wide. He may be heard in argument upon every question of law. In his addresses to the jury, it is his privilege to descant upon the facts proved or admitted in the pleadings; to arraign the conduct of parties; impugn, excuse, justify, or condemn motives, as far as they are developed in the evidence; assail the credibility of witnesses, when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance on the stand, or by circumstances. His illustrations may be as various as the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wings to his imagination." In 1 Bish. New Cr. Proc. § 975a, it is said: "Matters of common knowledge-being things not special to the case in hearing-may, like the language itself, be parcel of the woven argument which the advocate lays before the jury. Thus, historical facts may be referred to, and it was not improper for counsel to draw an illustration from the Guiteau Case. It may be stated that crime is on the increase; hence, that juries should do their duty. Well-known riots may be cited as resulting from a lax administration of justice." In accordance with the rule above laid down, it was held not to be error, where during the argument the district attorney addressed the defendant per

In his closing argument to the jury, the district attorney said: "I will now say again, and say it for a fact: From the period of 1877, for fifteen years, nearly, in Kern county, Kern county had a cessation of crime, practically. The laws were obeyed, and the laws were enforced. But I tell you, gentlemen, it does not need me to tell you why those things exist in any portion of the community. It does not need me to tell you of arguments being bandied back and forth in the state, from one end of the state to the other, as to whether the jury system is a failure or not." The defendant excepted to these remarks, but made no motion to have them corrected, or the jury instructed to disregard them. The instructions are not in the record, and we must presume that the court correctly instructed the jury, and that they were told to disregard all matters and statements outside the record. In a case where the evidence supports the verdict, and where the court properly instructs the jury, and where no exceptions are taken to the admission of evidence, error in procedure would have to ap-sonally, advanced towards him, and pointed

pear to us plainly to have been prejudicial, before we would feel justified in reversing the judgment or the order denying a new trial. The rule is well settled that it is error sufficient to reverse a judgment for counsel, against objection, to state facts pertinent to the issue, and not in evidence, or to assume in argument to the jury such facts to be in the case, when they are not. People v. Mitchell, 62 Cal. 412, and cases cited. In this case, even with no evidence in the record, where the life of a fellow creature is at stake, we would have no hesitation in reversing the case if the remarks were erroneous when measured by the above rule, but they are not. There is no statement of any fact, pertinent to the issue, not in evidence. There is no charge against the character of defendant or his good name. There is no charge that he has been guilty of any offense or offenses other than charged in the information. The district attorney may have drawn upon his

his finger at him, saying: "You sought this trouble with him [referring to the prosecuting witness], and made a cowardly attack upon him." People v. Wheeler, 65 Cal. 77, 2 Pac. 892. So, where in the closing argument the district attorney challenged the attorney for defendant to explain the facts and circumstances of the case upon any other hypothesis except that of guilt, and said, "There is no theory on the face of the earth, the possession of all this property, and trying to escape from these officers, that he can advance or has advanced," it was held that the remarks had reference to the testimony and inferences to be drawn therefrom, and that the remarks were proper. People v. Hall, 94 Cal. 599, 30 Pac. 7. In this case the record is entirely silent as to what action the court took in regard to the remarks, and as to any instructions to the jury in regard to them. If the remarks were objectionable, and the record fails to show whether or not

the court corrected the statement, it will be presumed here that the statements were corrected, and the jury instructed to disregard them. Fredericks v. Judah, 73 Cal. 604, 15 Pac. 305. The judgment and order are affirmed.

I dissent: TEMPLE, J.

(126 Cal. 591)

MACKENZIE v. HODGKIN.

(S. F. 903.) HODGKIN v. WILLIAMS et al.1 (Supreme Court of California. Nov. 8, 1899.) PLEADING-CROSS COMPLAINT-PARTIES-RE

VIEW-EVIDENCE-NEWSPAPER MARKET REPORTS FACTORS-SALE FACTORS' DILIGENCE.

1. Under Code Civ. Proc. § 442, permitting a defendant seeking affirmative relief against a party, relating to the transaction sued on, to file a cross complaint with his answer, one sued by an assignee of factors' claim for advancements exceeding the value of property consigned to them for sale by defendant was entitled to file a cross complaint against such factors for breach of their contract.

2. Where, in an action by an assignee of factors' claim for excess advancements, defendant claimed damages for breach of the factors' contract, such factors may be made parties to the suit; they being necessary to a complete determination of the controversy.

3. Code Civ. Proc. § 442, provides that a defendant's cross complaint, asking affirmative re lief relating to the transaction sued on, must be served on the parties affected thereby. Held that, where none of the rights of one of the parties were prejudiced by defendant's omission to serve a copy of a cross complaint on him, such failure was not ground for reversal.

4. Where factors contracted to sell raisins according to a schedule of prices of a fruit-growers' association, and sold below the schedule without defendant's consent, error in admitting a newspaper report of such prices, under objection that it was not the best evidence, in an action for the factors' breach of contract, was cured by subsequent evidence, unobjected to, that such prices were the prices fixed by the association.

5. Where factors agreed to sell raisins consigned to them, and use their best ability to obtain the highest market price, and not to sell below the price fixed by a fruit-growers' association at the place where the raisins were to be delivered, without consulting their principal, evidence of the prevailing prices of raisins at such place was admissible on the question of the factors' diligence in making sales, though the raisins were in fact sold in other markets, since by the agreement the factors were not required to sell in any particular market.

6. Where defendant executed a written contract to cure and deliver all his raisins to certain factors for sale on commission, and he delivered to them all his raisins, including a lot of dipped raisins, called "Valencias," he cannot thereafter claim that such raisins were delivered under the factors' subsequent parol contract to purchase such raisins, in the absence of evidence that the factors ever paid anything on such alleged purchase, under Civ. Code, § 1698, permitting evidence of a subsequent executed parol agreement to vary a written contract, since defendant was bound by the written contract to deliver such raisins, and the subsequent oral agreement, if made, was wholly executory.

7. Where factors agreed not to sell raisins below prices fixed by a fruit-growers' association, without defendant's consent, and two months after the contract was made the association abandoned its schedule of prices, and did not fix 1 Rehearing denied December 8,

further prices, the factors were not thereby entitled to sell for less than the association's prices at the time of the contract, without defendant's consent.

Department 2. Appeal from superior court, Fresno county.

Action by one Mackenzie against one Hodgkin, in which said Hodgkin filed a cross complaint against Williams, Brown & Co. From a judgment for defendant, Williams, Brown & Co. appeal. Reversed.

L. L. Cory, for appellants. H. H. Welsh and Frank H. Short, for respondent.

PER CURIAM. Williams and others were partners, under the firm name of Williams, Brown & Co., in the business of commission merchants at the city of Fresno, in this state. On August 31, 1893, they made a contract in writing with Hodgkin, whereby the latter agreed to pick, cure, and deliver to them at Fresno all the grapes and raisins to be produced that season on a certain vineyard in that vicinity owned by him (said Hodgkin), and Williams, Brown & Co., on their part, agreed to pack all the raisins so delivered, and sell the same for Hodgkin; they to charge specified rates of compensation for their services, and to make certain advances of cash to him on delivery of the crop at their packing house. At various times from September 29 to November 22, 1893, inclusive, Hodgkin delivered to said Williams, Brown & Co. at Fresno above 460,000 pounds of raisins. They made advances to him on account thereof to an amount which proved to be greater than the proceeds of sales of the entire crop, by the sum of $2,665.75. They assigned their de mand for such balance to Mackenzie, who was a bookkeeper in their employ, and he brought this action to recover the same from Hodgkin. The complaint is virtually a count for money loaned to Hodgkin by plaintiff's assignors. The defendant answered such complaint, and also filed a cross complaint, not against Mackenzie, the plaintiff, but against said Williams, Brown & Co. In both the answer and the cross complaint he set up in various forms his transactions with Williams, Brown & Co. concerning the marketing and sale of his said crop, and alleged sundry derelictions in that behalf against them, as the result whereof he prayed in his answer that plaintiff take nothing, and in his cross complaint for judgment against Williams, Brown & Co. for the sum of $5,555.92 above the amount of their advances to him. In each count of the cross complaint, as also in the answer, it is alleged that the assignment on which plaintiff sues was made to him by his employers without consideration, and merely for the purpose of qualifying him to sue on their demand; that his cause of action arose out of the contract of defendant with Williams, Brown & Co. relating to said crop of raisins, and the delivery, sale, and disposition thereof. The cross complaint was not served on the plaintiff, nor did he answer

thereto. It was, however, answered by Willlams, Brown & Co. The trial was by jury, and resulted in a verdict and judgment that plaintiff take nothing, and that Hodgkin recover of Williams, Brown & Co. the sum of $100.

1. Appellants argue that the court erred in allowing the cross complaint to be filed. "Whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract or transaction upon which the action is brought, * * he may, in addition to his answer, file * * a cross-complaint." Code Civ. Proc. § 442. It is said that the cross complaint here proceeds on a cause of action independent of. and not germane to, the matters alleged in the complaint of plaintiff. This objection is clearly unfounded. The plaintiff sues to recover money loaned. Defendant admits that he had the money of plaintiff's assignors, but avers, in effect, that he received it as part performance of their contract with him, and that they are liable to him for failure to perform the same fully. These averments, if proved, show that the relief sought by defendant "relates to or depends upon the contract or transaction upon which the action is brought," within the meaning of that language in the statute above quoted. The further objection that Williams, Brown & Co. could not properly be made parties defendant in the cross complaint, because they were not originally parties to the action, is also untenable. A complete determination of the controversy cannot be had without bringing in parties to the contract or transaction who have not been named as parties to the action in the original complaint. Winter v. McMillan, 87 Cal. 256, 25 Pac. 407; City of Eureka v. Gates, 120 Cal. 54, 52 Pac. 125; Water Co. v. Raynor, 57 Cal. 592, 593; Chalmers v. Trent, 11 Utah, 88, 39 Pac. 488, and cases cited. It is also contended that the omission to serve the cross complaint on Mackenzie, the plaintiff, was a fatal irregularity. It was, no doubt, negligent practice. Said section 442 provides that the cross complaint "must be served on the parties affected thereby." But in this instance no right of the plaintiff has been at all prejudiced by such omission, and the judgment cannot be reversed because of it. For all the matters of substance charged in the cross complaint were pleaded affirmatively in defendants' answer, which was served on the plaintiff, so that the latter met in the prosecution of his own action every issue which would have been tendered to him had he been served also with the cross complaint; and, further, it was proved at the trial, by his own testimony, and without conflict, that plaintiff took by the assignment no interest beneficial to himself in the demand he sued on, and that, if he had recovered, the whole proceeds of his recovery would have been paid to Williams, Brown & Co., who made full defense against the defendant's alleged cause of action.

2. In the contract of August 31, 1893, Williams, Brown & Co. promised that they would not sell the raisins "below prices named by the association," without consulting Hodgkin; and one of the breaches alleged in the cross complaint is that they did sell at prices less than those "named by the association," without consulting him or obtaining his consent. There was evidence at the trial that the prices so referred to in the contract were a list agreed upon by a number of raisin growers and packers at a meeting held by them on August 22, 1893, as the prices at which raisins were to be held for sale that season. In order to show the schedule so established, defendant offered in evidence printed matter purporting to be a copy thereof in a certain newspaper published at Fresno on August 23, 1893; and, in connection with the offer, Hodgkin testified that the parties to the contract had such published prices in mind when they signed the instrument of August 31st. Plaintiff and Williams, Brown & Co. objected that the newspaper report was not the best evidence, and the objection was overruled. If there was any error in this,-which we do not decide, it was cured by evidence, subsequently admitted without objection and without contradiction, that the prices of raisins shown in the publication received in evidence were the said prices fixed by the association on August 22d.

3. By another clause of the contract, Williams, Brown & Co. agreed that they would endeavor, to the best of their ability, to obtain the highest market price for defendant's raisins; and in one count of the cross complaint they are charged with negligence in the performance of this covenant, whereby, it is claimed, they failed to obtain the full value of the goods. Upon the questions thus arising the defendant was permitted to introduce evidence of the market price of raisins at Fresno during the months of October and November, 1893, the period of the delivery of defendant's product to Williams, Brown & Co. Appellants contend that evidence of this nature should have been confined to the market value of the raisins at points in the Eastern states where they were actually sold by Williams, Brown & Co. They rely on the decision in Pugh v. Porter Bros. Co., 118 Cal. 628, 50 Pac. 772, to support this point. We think, however, the present case is materially different. In the case cited it appeared that the goods were delivered to the commission merchant for the purpose of shipment from the place of delivery, and to be sold in a foreign market. Accordingly it was held that the factor's duty was to obtain the value in the foreign market, and that evidence of the state of the market at the place where he received the goods was inadmissible. But here it does not appear that the raisins were necessarily to be sent away from Fresno for purposes of sale. The contract was prefaced with a recital that Williams, Brown & Co. are "engaged, among other things, in the

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