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if essential, would be yet produced by plaintiff. The real objection is that the evidence does not support the decision-that is, the finding. As no motion for a new trial was made, and the appeal was not taken within 60 days after the rendition of the judgment, this question cannot be now considered.

The objection that the court erred in not finding in favor of the defendant corporation upon the plea of the statute of limitations is in the same position. No evidence is contained in the bill of exceptions, and, if it were there, it could not now be considered. The court found that the demand was not barred by the statute of limitations. This finding is not attacked in any mode authorized by law, to wit, by a motion for a new trial, or on an appeal taken within 60 days, with a bill of exceptions setting out the evidence. We must presume, therefore, that there was sufficient evidence to sustain the finding.

The other point-that plaintiff cannot recover interest, because he elected to claim the profits actually made by the use of the trust funds-was determined on plaintiff's appeal from this judgment. The judgment now appealed from was then modified by increasing the amount of interest allowed. Respondents then had an opportunity to be heard, and were heard at least in their petition for a rehearing. The question cannot be again raised. I think the judgment should be affirmed.

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HARMLESS ERROR-EVIDENCE.

1. As Pen. Code, § 1258, provides that the appellate court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties, a conviction will not be reversed merely because much of the evidence was immaterial.

2. On a trial for conspiring to falsely move and maintain a suit, the complaint in the suit is admissible to show an overt act in furtherance of the conspiracy, as required by Pen. Code, § 184, providing that no agreement, except to commit a felony, amounts to a conspiracy, unless some act besides such agreement be done to effect the object of the conspiracy by a party to the agreement, though neither defendant was a party to the suit.

3. A conversation with one of defendants in regard to what was done as to the suit after its commencement may be admitted before the conspiracy is established, if the conspiracy is subsequently proved.

4. On a criminal trial, a witness who overheard only a part of a conversation with defendant may testify as to what he overheard.

5. Pen. Code, § 1118, provides that, if the court deems the evidence insufficient to warrant

a conviction, it may "advise" the jury to acquit, but that the jury are not bound by the advice. Held, that the court cannot "instruct" the jury that there is no evidence in support of an indictment.

Commissioners' decision. In bank. Appeal from superior court, Fresno county; S. A. Holmes, Judge.

E. P. Daniels and Joseph Hutchings were convicted of conspiracy to falsely move and maintain a suit, and appeal. Affirmed.

Graham & Terry and Frank H. Short, for appellants. Atty. Gen. Hart, for the People.

HAYNES, C. Appellants were indicted for conspiring falsely to move and maintain an action of slander by Zua Daniels against M. J. Church, under division 3 of section 182 of the Penal Code, and upon the trial were found guilty by the jury, and a judgment against each was entered, imposing a fine; and they appeal from said judgments, and an order denying their motion for a new trial.

The appeal from the order denying a new trial must be dismissed, because taken long after the time limited therefor by section 1239, Pen. Code. Appellants' brief, however, is almost wholly devoted to questions which could only be considered upon an appeal from such order, and point out no errors in receiving or rejecting evidence, unless it is contained in the statement that "the whole of the evidence for the prosecution is irrelevant, immaterial, and inadmissible for any purpose, for the reason that it did not even tend to show that Daniels and Hutchings had conspired together to falsely move or maintain the action of Zua Daniels v. M. J. Church." The bill of exceptions covers nearly 400 pages of the transcript, and clearly it was the duty of the counsel, if, in their opinion, any material error was committed, to have pointed it out, and shown how or why appellants were prejudiced by it. That the evidence took an exceedingly wide range, and that much of it was immaterial, is apparent; but we cannot, on that ground alone, reverse the judgment. The Penal Code (section 1258) provides: "After hearing the appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties." The exceptions which seem to us to be most important will be briefly noticed.

The complaint in the action of Zua Daniels against M. J. Church was properly received in evidence. To sustain this prosecution, it was necessary to allege in the indictment, and to prove upon the trial, in addition to the conspiracy, some overt act in furtherance or pursuance of the conspiracy. The commencement of the action by filing the complaint was an overt act (Pen. Code, § 184), though such overt act need not be alleged or proved, if the conspiracy was to commit a felony.

Objection was made to evidence of a conversation between Church and defendant Hutchings relating to the suit, after its com

mencement, upon the ground that no conspira cy had then been established. Evidence had been given tending to prove a conspiracy, but it was not necessary that the conspiracy be actually shown to have been formed, be fore the declarations of either of the conspira tors can be proven. If the conspiracy is not ultimately proved, such declarations must be disregarded; but generally conspiracy cannot be proved as an independent fact, such as the execution of a promissory note, but is shown from circumstances, some testified to by one witness, and others by other witnesses. It is largely in the discretion of the court as to how much evidence of the existence of the conspiracy shall be required before receiving evidence of the acts and declarations of one of the alleged conspirators in the absence of the other. The evidence objected to was properly received.

A witness for the prosecution was called to testify to what he overheard defendant Daniels and his wife say concerning Mr. Church, and suits against him for slander. The witness said he could not hear all that was said; that sometimes their voices would be so low he could not hear. The defendants objected to the witness stating any part of the conversation, unless he heard and could state the whole of the conversation. The objection was properly overruled. The general rule is that a witness called to testify to a conversation cannot give a part and withhold a part, but must give the whole conversation, at least in substance. But, where a part only of a conversation is heard by the witness, the rule that he must give all that was said applies only to so much as he heard. If what he heard is intelligible, and pertinent to the case, the prosecution is entitled to it. If the part not heard by the witness would in any material respect modify or explain the part he heard, the defendant can give it in explanation. Frank v. State, 27 Ala. 37.

Numerous other exceptions were taken, but, after reading the entire transcript, we do not find that any prejudicial error was committed in receiving or rejecting evidence. Great latitude was allowed in the introduction of evidence, and there is much that might have been omitted without prejudice to either side, but we cannot for that reason reverse the judgment.

The minutes of the court show that a demurrer to the indictment was overruled, but the demurrer is not in the record. no ground, however, upon which the indictment could be held insufficient.

We see

When the prosecution rested after the introduction of its evidence in chief, counsel for defendants moved the court as follows: "We move the court to instruct the jury on two grounds: First, that there is no evidence of any conspiracy to do an unlawful act, and no evidence tending to support the allegations of the indictment." This motion was denied, and defendants excepted. Section 1118, Pen. Code, provides: "If, at any time v.38p.no.12-46

after the evidence on either side is closed, the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury are not bound by the advice." The motion to "instruct" the jury was properly denied. The court was only authorized, in any case, to "advise" the jury to acquit. People v. Horn, 70 Cal. 18, 11 Pac. 470. It must be borne in mind that the court has no such power to control the action of the jury in criminal as in civil cases, for in criminal cases the court cannot "direct," but only "advise," an acquittal. We cannot say, therefore, that defendants were prejudiced by the refusal so to advise, since the jury might, notwithstanding the advice, have found the defendants guilty; and, if so, the verdict could not be set aside upon the ground that the jury had disobeyed or disregarded the instruction of the court, but only upon motion for a new trial, upon the ground that the verdict was not sustained by the evidence. The obvious effect of this provision of the Penal Code is to take from the court the power to determine, as a matter of law, at the close of the evidence for the prosecution, that the evidence is insufficient to justify a conviction.

It is further urged by appellants that the court erred in giving the ninth instruction requested by the prosecution. They say that: "The prosecution, being unable to prove that defendants falsely moved or maintained said action, began to cast about for some grounds upon which the prosecution might be maintained by dropping out the word 'falsely,' *** and came to the conclusion that they could admit that Church did slander Zua Daniels; that she had a good cause of action against Church; and yet, if the defendants advised or assisted her in said action, they became thereby criminally liable." As the record is not open to us for the purpose of considering whether the verdict is supported by the evidence, we can only examine this contention in the light of the instructions given to the jury. In People v. Richards, 67 Cal. 415, 7 Pac. 828, it was said: "A conspiracy is, in the absence of statutory limitations, an agreement of two or more to do an unlawful act, or a lawful act by unlawful means." This definition applies to the conspiracy here charged. Such charge may be maintained by proving a conspiracy to move an action without cause, knowing that no cause of action exists, or, a cause of action existing, to maintain it by false testimony, or other unlawful means. The ninth instruction given at the request of the prosecution, after referring to the case of Zua Daniels v. Church as the action to which the alleged conspiracy related, and cautioning the jury that they were not trying that action, proceeded as follows: "The issues here are, did E. P. Daniels and Joseph Hutchings, at the time and place as alleged in the indictment, willfully, unlawfully, conspire, combine, and agree to

gether falsely to move or maintain that suit and action, as set out in the indictment, and whether, in pursuance of such agreement, they, or either of them, committed an overt act looking towards the carrying out of the common design." It will be seen that this instruction closely followed the statute, and did not omit the word "falsely." But instructions given at defendants' request, while entirely consistent with the instruction above quoted, were more specific, and expressly instructed the jury that, if they had any reasonable doubt whether the action of Zua Daniels against Church was one which could be justly and lawfully prosecuted, they should give the defendants the benefit of the doubt, and assume that it was a just one; and, if they should have any reasonable doubt as to whether said action was justly or unjustly prosecuted, "and you, under such circumstances, should assume, as it would be your duty to assume, that the said action was a just one, and one that could rightfully be prosecuted, then you may consider whether or not, in prosecuting said action, the said defendants conspired together, willfully, corruptly, falsely, and fraudulently, to prosecute said action by unlawful means, or by false and fraudulent testimony, corruptly procured." And upon this point, also, they were instructed to give the defendants the benefit of any reasonable doubt. In preparing these instructions, counsel stated the law as favorably to defendants as they could desire, and cannot complain that the jury were misdirected. We advise that the appeal from the order denying a new trial be dismissed, and that the judgment be affirmed.

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PER CURIAM. Rehearing denied,

BEATTY, C. J. I dissent from the order denying a rehearing in this case. The judgment, in my opinion, is not sustained by the findings. It is nowhere found that transactions in question were sales of stock on margin or for future delivery, nor do the special facts found necessarily imply such sales. That the evidence would have sustained such a finding may be true, but that is not sufficient. This court cannot take evidence, however conclusive, in place of a finding necessary to sustain the judgment.

(105 Cal. 526)

ROBINSON v. SOUTHERN PAC. CO. (No. 15,283.)

(Supreme Court of California. Jan. 5, 1895.) RAILROAD PASSENGER RIGHT TO STOP OVERILLEGAL RULES OF COMPANY-EFFECT.

1. Civ. Code, § 490, empowers the purchaser of a railroad ticket to ride from the station at which the ticket was bought to the station of destination, "and from any intermediate station to the station of destination," at any time within six months thereafter. Held, that the right of a passenger to stop at an intermediate station, and resume his journey, is not affected by the fact that the ticket bought by him gave him the choice of two different routes, and he selected the longer route.

2. A passenger need not take notice of a rule of a railroad company which contravenes a statute.

McFarland, J., dissenting.

On rehearing. Affirmed. ports, see 38 Pac. 94, 109.

For former re

BEATTY, C. J. The three principal questions arising in this case were very fully and elaborately argued by counsel, both orally and in the printed briefs filed prior to its submission, and they were as carefully considered in the opinion of the court heretofore filed, wherein it was held: First, that section 490 of the Civil Code is still in force; second, that it confers stop-over privileges upon the holders of the tickets therein provided for; and, third, that the defendant is subject to its provisions. As to these points our views remain unchanged, and nothing further need be said concerning them. The rehearing, indeed, was ordered with special reference to a question which, although it had been stated in the briefs, had not been discussed at the oral argument, and had been but slightly considered in the opinion of the court. This question, to which the reargument was practically confined, may be briefly stated as follows: Did the plaintiff, by purchasing and accepting a ticket which in terms and in fact gave him the alternative right to go to Oakland or Alameda, become thereby entitled to go to Oakland, stop off there, and afterwards resume his journey to Alameda? When this question is considered in the light of the principles established by our former decision, and with reference to the facts stated in the opinion and other facts appearing in the record, it is of comparatively easy solution. The defendant had a ferry and railroad line which it was operating between the foot of Market street, in San Francisco, and the city of Alameda, and which passed through the city of Oakland, where there was a station at which passengers were accustomed to enter and leave its cars. The fact that defendant had another and more di

1 Civ. Code, § 490, empowers the purchaser of a railroad ticket to ride from the station at which the ticket was bought to the station of destination, "and from any intermediate station to the station of destination," at any time within six months thereafter.

rect line of road (and ferry) between the same termini did not relieve its statutory obligation to fix (either alone or in conjunction with the railroad commission) a regular passenger rate by the longer route. The right to operate the road and the obligation to fix such regular rate are correlative. It had in fact complied with the statute, and fixed the rate at 15 cents, and this was well known, not only to the plaintiff, but to the public generally. Such being the case, the plaintiff, desiring to go from San Francisco to Alameda via Oakland, tendered the regular fare, and demanded the ticket which it was the duty of the defendant to furnish. He received a ticket in the form set out in our original opinion, which was the only ticket the defendant was accustomed to issue to passengers desiring to go by either of two routes to Oakland or either of two other routes to Alameda. But the fact that the ticket gave the plaintiff his choice of these various routes and different destinations made it none the less effective as a ticket from San Francisco to Alameda via Oakland. What he wanted was a ticket of that particular kind, with all the lawful privileges thereto attached, and it was not in the power of the defendant to deprive him of such privileges by offering him other privileges in exchange. This conclusion does not involve the consequences that are apprehended by counsel for appellant. We do not hold, and it does not follow, from the views herein expressed or from anything decided or said by way of argument in our original opinion, that there can be no ticket sold on any line of road which is not a stop-over ticket. We only hold that there must be a regular passenger rate established from one depot to another, and that a passenger who tenders the regular fare is entitled to a ticket to his place of destination, which ticket, under the law, gives him a right to stop over at an intermediate station. And the railroad company cannot demand the regular rate, and at the same time deny the privilege which the law confers upon all who pay it. If in consideration of an abatement from the regular established rate a passenger voluntarily accepts an excursion or other limited ticket, an entirely different case is presented. Here the regular established fare was tendered and accepted, and a ticket issued, which was the only ticket a passenger from San Francisco to Alameda via Oakland could obtain,-the only ticket provided by the defendant. This being so, the defendant cannot be permitted to say that it was not the ticket which the statute obliged it to provide and issue, and this is more especially true in view of the fact that it contained nothing which in terms denied or assumed to curtail the rights conferred by the statute.

But it is said that the ticket is not the contract; that it is a mere token or voucher, and that it is the duty of the passenger to inform himself of the rules and regulations

of the carrier, which really determine his rights. This is, perhaps. true to a certain extent. But the passenger is not bound to take notice of any rule or regulation which contravenes the law of the land. So far as the law fixes the terms of the contract, it cannot be varied by rules of the company, known or unknown, unless assented to by the passenger. We have held that under the law of California the ticket issued by a rail. road company upon receipt of the regular fare from one depot to another gives the holder the right to stop over at an intermediate sta tion, and to resume his journey at any time within six months; and, if this is so, it matters not how well it may be known to a perticular passenger that this right is contested or denied by the company. He nevertheless acquires, by payment of the regular fare, all the rights which the statute gives him. The passenger who is informed of the claim and practice of the carrier is in no worse position than one who is not informed. So far as the law goes, it protects all alike. These views are conclusive of the question submitted for reargument, and for the reasons here stated, and those set forth in the original opinion, the judgment and order of the superior court are affirmed.

We concur: GAROUTTE, J.; HARRISON, J.; VAN FLEET, J.; FITZGERALD, J.; DE HAVEN, J.

MCFARLAND, J. I dissent. There was nothing in the argument on rehearing which in the least changes my mind as to these propositions: (1) That section 490 of the Civil Code does not require a railroad company to "provide" or "furnish" a stop-over ticket, under either the legal or the common meaning of that word; and (2) that the ticket which appellant did "furnish" respondent was not, on its face, a stop-over ticket, but merely gave him the right to go either to Oakland or Alameda,-not to both; and that he well knew the meaning and purpose of the ticket when he accepted it. This action is not for refusing respondent the kind of ticket he wanted, but for refusing to do something for which the ticket he accepted did not provide. In my opinion, the judgment can be affirmed only upon the theory that, if respondent had paid the proper fare, he could ride, and get off, and get on again, as often as he pleased, upon any sort of a ticket, or without any ticket at all.

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testified that it was customary to send the notice with another communication sent assured. Plaintiff, wife of assured, testified that it was customary for her to receive all insurance papers sent assured, and that she never received the notice. Held, that a finding that the notice was not sent would not be disturbed.

2. Where the failure of an insurance company to send to assured a certain notice waives the forfeiture of a policy for nonpayment of an assessment, the fact that the failure to send the notice was due to a mistake of an employé is not material.

3. A finding that an insurance company by a certain act waived a condition in a policy excludes the presumption that the act was unintentional.

Department 1. Appeal from superior court, city and county of San Francisco; A. A. Sanderson, Judge.

Action by Miranda E. Mills against the Home Benefit Life Association on an insurance policy. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

T. C. Van Ness and L. A. Redman, for appellant. L. T. Hengstler and Jas. Alva Watt, for respondent.

GAROUTTE, J. The facts of this case are fully stated in Murray v. Association, 90 Cal. 402, 27 Pac. 309. Upon that appeal, by the decision of the court, the cause was remanded for a new trial. The respondent has since married, a new trial has been had, and the case is again before us upon the merits. In this action a recovery is sought upon a policy or certificate of insurance issued by appellant upon the life of respondent's husband. Prior to his death he suffered default in the payment of two certain assessments, and such default is now relied upon to defeat the right of recovery. Respondent insists that the forfeiture incurred by reason of the aforesaid defaults was waived, owing to an extension of time being granted to make the payments, and this court's disposition of the case is solely dependent upon the conclusion to be arrived at from an examination of this question of forfeiture and waiver. The facts, in the main, are similar to the facts presented at the previous trial, and to a great extent the law of the case has been established by the prior decision of this court. The waiver of the forfeiture was based upon a letter written to the insured by the company, notifying him that a certain assessment would be due upon a named day in the future, and, in effect, requesting a remittance thereof on or before that time; and in this regard, upon the previous appeal, the court declared the law as follows: "But the letter notifying the insured that an assessment would be due and payable on October 1st, and in substance requesting payment, of itself constituted a waiver of the previous default, and must be construed as an unconditional offer to accept payment of that assessemnt on or before the date named. It was, in effect, an assertion that the certificate was still in force, and, notwithstanding previous defaults known to defend

ant, would remain in force until the date therein named for such payment. As already stated, this notice was sent after full knowledge by defendant of the nonpayment of the previous assessments; and, if it was the intention to make the acceptance of the amount to become due on this assessment conditional upon the payment of such prior assessments immediately upon the receipt of the other letter, it should have so stated. But, not having done so, we think its legal effect was to waive the previous forfeiture, and continue the certificate in force until October 1st; and, this being so, the insured had the right, at any time after receiving it, and before October 1st, to make payment of all assessments accruing prior thereto, and necessary to be made in order to give the certificate continued existence." To avoid the force and effect of the prior decision of this court as to the waiver, upon the second trial it was attempted to be shown that a health certificate (to be signed and returned to the company) was inclosed to the insured in connection with these notices of assessments due, to the effect that the insured was in good health when he forwarded the remittance. At the time the insured tendered a payment of the amounts due under his certificate of insurance he was not in good health, and was unable to make the certificate contemplated, and for these reasons it is now insisted the facts of the present case are different, the law of the case inapplicable, and the waiver not proven.

Upon the question of the sending of a health certificate to the insured an issue of fact was presented to the trial court, and upon that issue the court made its finding; and, after first finding as a fact that it was the customary practice of defendant to inclose these certificates with notices of delinquent assessments, the court further found "that said custom was not invariable, and was not followed in the instance of the sending to said Murray of the notice of said assessment to become due and payable on or before the 1st day of October, A. D. 1886, but the failure to so mail the notice that such certificate was required was an exception to the customary practice of said company." Appellant now insists that the portion of this finding to the effect that defendant mailed no health certificate to the insured is unsupported by the evidence, but we cannot say so by the record. The testimony upon the one side is that of the ex-secretary of the company, and upon the other that of the plaintiff, the former wife of the insured. The ex-secretary does not testify positively that the certificate was sent; the wife does not testify positively that it was not received. The evidence as to the fact is purely circumstantial upon both sides. The appellant says it was the custom of the company to send this paper under the then existing conditions; ergo, it was sent. The respondent says it was the custom of the wife to

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