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faith of the district attorney in making the in- f neglect of such drivers in failing or refusing quiries at the time not being questioned to comply with such requirements a felony.

Ed. Note.-For other cases, see Criminal [1] The facts of this case immediately preLaw, Cent. Dig. $8 2640, 3133.]

ceding, attending, and succeeding the colli4. CRIMINAL LAW 1144(16)-APPEAL-PRESUMPTION-HEEDING ADMONITION.

sion are substantially these: On the evening It will be presumed that the jury heeded the of October 31, 1915, a little after sunset the admonition that offers of testimony which the defendant was proceeding northward along court refused to admit, and answers stricken

the state highway near the town of Mayfield, out and insinuations against a party in questions, are not evidence, and should be disre.

in the county of Santa Clara, on his way garded.

home to San Francisco from Coyote, in that [Ed. Note.-For other cases, see Criminal | county, to which place he had made the trip Law, Cent. Dig. 88 2768, 2901, 3034.)

earlier in the day. There were four com5. CRIMINAL LAW m1037(2) – APPEAL – panions with the defendant in the car which WAIVER OF ERROR. Prejudicial misconduct cannot be predicat

he was driving at a rate estimated as exed on the asking by the district attorney wheth ceeding 40 miles an hour. A closed limouer witness ever heard that on the day of the sine, in which two ladies—Mrs. Carolan and matter in issue, a violation of the law of the Miss Shu

Miss Shute-were being driven by a chaufhighway, defendant was visiting a person who had been arrested as a member of the Black feur, was also proceeding northward along Hand Society; the defendant allowing the ques- the highway at that point at about 25 miles tion, and the answer in the negative made before an hour. The defendant undertook to pass he could object, to stand, and making no request | for admonition or instruction to disregard the the limousine, swerving to the left in order same, though the court, on objection by him, to do so. At the moment of passing, a tanstated that if he wished it would be stricken out.

dem motorcycle, driven by one Hector Zapa[Ed. Note.-For other cases, see Criminal

ta with one Joseph Ottens as his companion, Law, Cent. Dig. $8 1691, 2645.)

two young students of the University of Santa 6. HIGHWAYS 186 – COLLISION – FAILURE

Clara, was going southward at the rate of TO STOP AND ASSIST-KNOWLEDGE AS ELE

18 to 20 miles an hour, and was also about MENT.

Aside from Pen. Code, $ 20, providing that to pass said limousine, when a collision in every crime there must be a union of act and

occurred between the defendant's machine intent, it is necessarily to be implied from section 367c, declaring the duty of the driver of a and said motorcycle, in which Zapata was vehicle colliding with another to stop, and as- instantly killed and Ottens severely injured. sist the occupants of the vehicle collided with,

The defendant did not stop or check his and making violation thereof an offense, that knowledge by the driver of the collision is es- speed, but rather increased it until he was sential to the offense.

overtaken at Mayfield by the Carolan car, [Ed. Note. For other cases, see Highways, when the chauffeur called to the defendant Cent. Dig. $8 476, 477.]

to stop. There is also some evidence that 7. WITNESSES C293—PRIVILEGE-TESTIMONY | the chauffen

the chauffeur, who spoke English imperfectAGAINST HIMSELF-STATUTES.

Pen. Code 8 367c. requiring the driver of an ly, made some remark to the defendant to auto colliding with any vehicle to stop and give the effect that he had killed somebody. The aid, and to give information as to the number defendant stopped momentarily, but did not of his machine and his name and address, and making violation of any provision thereof an

return to the scene of the collision, but

evidence continued rapidly on his way to San Franagainst himself, in violation of Const. art. 1, cisco until he was finally halted by the offi$13.

cers at Burlingame. He insisted at all times [Ed. Note.-For other cases, see Witnesses, Cent. Dig. 88 1009-1014.]

that he did not know of the collision at the

time of its occurrence, and in this he was Appeal from Superior Court, Santa Clara supported by the testimony of the four other County; W. A. Beasly, Judge.

persons who were occupants of the car. The Antone Fodera was convicted of violating evidence educed at the trial disclosed, howPen. Code, § 367, and appeals. Affirmed. lever, that the impact of the collision was dis

W. E. Foley, and Devoto. Richardson & tinctly heard by the two ladies who were Devoto, of San Francisco, for appellant. U. within the closed limousine, and also by a S. Webb, Atty. Gen., John H. Riordan, Depu

Mr. Van Gordon, who was sitting upon the ty Atty. Gen., and Arthur M. Free. Dist. porch of his residence 100 yards away from Atty., and Archer Bowden, Deputy Dist.

the scene of the collision. It also appeared Atty., both of San Jose, for the People.

that the body of Zapata had been carried

along by the defendant's car for a distance LENNON, P. J. This is an appeal from

of from 45 to 60 feet before falling from it a judgment of conviction of the defendant to the roadside; while from the exhibits upon the charge of a violation of section produced at the trial and exhibited to this 367c of the Penal Code, requiring drivers court upon the oral argument of this appeal, of automobiles colliding with other vehicles consisting of photographs of the defendant's to stop and render assistance to the occu- car, and also of articles of clothing worn by pants of the vehicle collided with and who one of the occupants thereof sitting on the may have been injured by such collision, side nearest to the point of contact, it apunder penalties which render the act or peared that the fenders and tool box of the


2. does

not compel him

for other cases see sama topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

defendant's car had been bent and indented , selves had a direct bearing upon the issue by the impact, while the sides of the machine as to the particular qualities of the defendand the coat of its said occupant were bespat- ant to which these several witnesses were tered with the blood and brains of Zapata. called to testify, and that, in the absence of

It would thus appear that the evidence a showing of bad faith on the part of the before the jury was abundantly ample to prosecuting officer, they were within the justify the defendant's conviction. Notwith- proper bounds of his cross-examination. standing this fact the appellant insistently [3] The district attorney also asked of a contends that the judgment of conviction number of said witnesses whether they had herein should be reversed on account of cer- heard that the defendant had on sereral octain alleged acts of prejudicial misconduct casions been arrested for speeding his autoon the part of the district attorney occurring mobile beyond the legal limit, and in some during the trial and the argument of the case instances had pleaded guilty and paid fines and claimed to have resulted in a miscar- therefor. In most cases this question was riage of justice. The specific acts of alleged asked and answered negatively without obmisconduct relied upon for a reversal, subjection or assignment of misconduct. It may stantially stated, are these :

be seriously questioned whether a person [2] During the trial of the cause and prior habituated to reckless driving of an autoto the time when the defendant himself had mobile to the extent of being in a number of taken the stand as a witness in his own be- cases and in several counties arrested therehalf his counsel proffered proof that his for is of that kindly and humane disposition general reputation for truth, honesty, and which the character witnesses of the defendintegrity was good. The trial court, upon ant herein would have had the jury believe objection made, limited the evidence offered him to be; but however this may be it apin this regard to proof of the general reputa- pears, as above stated, that in most instances tion of the defendant for kindness and gentle- no objection or assignment of misconduct was ness, as being the particular qualities in- made to these questions, and that also in volved in the particular inquiry. The de- most cases the witnesses stated that they fendant apparently accepted this limitation; had never heard of the matter, and in some and proceeding upon the theory that it would instances the witnesses admitted that they be unlikely that a person of gentle and kind had heard of these episodes. It further aply nature would disregard the promptings pears from the record that no request was of humanity as well as the commands of made to the court for an admonition to the the law requiring him to stop and render aid jury to disregard this evidence; nor was to those who might be injured by a collision any instruction to that effect requested; nor if he was aware of the fact or likelihood of was the good faith of the district attorney in such injury, the defendant called several wit- making these inquiries at the time brought nesses, who testified that the general reputa- into question. Under these circumstances tion of the defendant for kindness and gen- no prejudicial error can be predicated upon tleness was good. Of the witness George the action of the district attorney in making, Filmer the district attorney asked upon or of the court in permitting, the inquiry as cross-examination whether he had ever heard to whether the character witnesses for the it discussed that the defendant, with several defendant knew of his arrests and pleas of other poultry men of San Francisco, had guilty and fines for unlawful speeding. been arrested for picking chickens alive. [4] The district attorney is also charged The same question was asked of each of the with misconduct in asking several of said other witnesses to the defendant's general witnesses whether they had heard it disreputation for kindness and gentleness. A cussed that the defendant was under investinumber of these replied to the question that gation by the police department of San Fran. they had never heard the matter discussed, cisco for the selling of several stolen autowhile others stated that they had heard of mobiles. The question was improper, and it, but had investigated it and found that the the action of the district attorney in asking rumor had no foundation in fact. The dis- it an act of misconduct on his part; but the trict attorney also asked of most, if not all, record shows that the court in each instance of said witnesses if they had not heard that sustained the defendant's objections to the the defendant had run down a boy or a man question; and further shows that while upon the streets of San Francisco and been the defendant's counsel assigned the act of arrested, for it, to which most of them re- the district attorney as misconduct, no replied that they had never heard of it. Of quest was made of the court to admonish or some of said witnesses the district attorney instruct the jury to disregard the same, also inquired if they had not heard of the Notwithstanding this, the court of its own defendant's arrest fo unlawfully killing an motion gave the jury the following instrucelk. To this line of questions in most in- tion: stances no objection or assignment of mis “Offers of testimony by either counsel which conduct was made at the time, nor was the the court refused to admit in evidence, and angood faith of the district attorney in ask- swers given by witnesses which may have been

stricken out by the court, are not evidence, and ing these questions assailed at the trial; and should be disregarded by you. It sometimes bapit seems very clear that the questions them- pens that counsel asks a question of a witness

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which contains an insinuation against one or whole these imprudent remarks of the disother party to the action. The insinuations con

trict attorney were not in our opinion suffitained in such questions are not evidence and

ciently prejudicial to have seriously affected you must disregard them." It is to be assumed that the jury beeded

the verdict or to warrant a reversal of the this admonition with respect not only to this

case, particularly in view of the fact that,

as above stated, the proof presented to the precise inquiry, but also as to other questions of doubtful propriety respecting which,

jury in the form of testimony and exhibits objections were made and sustained by the

was amply sufficient to justify the verdict

of conviction, and to warrant the conclucourt. People v. Burke, 18 Cal. App. 72,

sion that none of the several alleged acts of 122 Pac. 435.

misconduct on the part of the prosecuting [5] The district attorney is also charged

officer were sufficiently prejudicial in charwith misconduct in having asked of the wit

acter or influential in effect as to cause the ness Charles Swanberg the following question: "Q. Did you ever hear it discussed,

verdict of conviction in this case to have

been a miscarriage of justice. Mr. Swanberg, that on the day of this af

[6] The final contention of the appellant fair he (the defendant) was visiting at the home of a person who had been arrested as a

is that the section of the Penal Code under

which the defendant was prosecuted and conmember of the Black Hand Society?” Be

victed is unconstitutional, for two alleged fore objection could be made the witness re

reasons: First, that the section does not sponded, "I never heard it discussed." The

expressly embody in its phraseology words defendant then made his objection and assignment of misconduct; whereupon the

limiting its application to those persons who

knowingly cause their vehicles to collide with court stated to the counsel for the defend- | ant, “If you wish, it will be stricken out."

those occupied by others. But our reading of No such request was made, however, nor was

the section in question convinces us that the

element of knowledge of the fact of the colthe court asked to either admonish or in

lision is necessarily to be implied from the struct the jury, nor was the district attor- 1. ney charged with bad faith in making the

requirements of the act, to the effect that

drivers of such vehicles must stop and reninquiry. It is sufficient to say, therefore, that since the defendant chose to allow the

der aid to those who may possibly have been question and answer to stand, and made no

injured in the collision. Moreover, section request for an admonition or instruction to

20 of the Penal Code, which is to be read the jury to disregard it, no prejudicial mis

together with and into the section under conduct sufficient to justify a reversal of

review, provides that "in every crime or the case can be predicated upon the asking

public offense there must exist a union or of the question.

joint operation of act and intent, or crimThe appellant further contends that the

inal negligence." We are of the opinion that district attorney was guilty of misconduct in

the act is not unconstitutional for the first producing a justice of the peace of San

reason assigned. Mateo with his docket, for the purpose of

[7] The appellant urges as the second reashowing aflirmatively that the defendant had son for its alleged invalidity Its provision rein fact been arrested, and pleaded guilty and quiring the driver or occupant of a vehicle paid a fine upon the charge of unlawful striking another to give certain information speeding. It is sufficient to say that the evi- as to the number of the vehicle, the name dence was incompetent, and its proffered in and address of the driver and of the owner troduction improper, but that the court and of its passengers. It is claimed that this promptly sustained an objection to it, and requirement, by compelling the persons of that the defendant neither assigned the prof-whom such information is demanded to be fer of it as misconduct, nor asked for an in- witnesses against themselves, amounts to a struction to the jury to disregard it. The violation of section 13 of article 1 of the error and impropriety of its offer in evi. state Constitution. But the appellant condence must therefore be held to have been cedes that this point has been decided adcured by the foregoing voluntary instruction versely to his contention in a number of cases of the court in its final charge to the jury. from other states which, as respondent shows,

With regard to the alleged acts of miscon- have been approved by this court in the case duct on the part of the district attorney of People v. Diller, 24 Cal. App. 799, 802, 142 during the argument of the case, we do not Pac. 797. There is, therefore, no merit in deem it necessary to deal with these in de- this contention. tail, for the reason that in most instances Judgment and order affirmed. the court admonished the district attorney to contine himself to the evidence in the case; We concur: RICHARDS, J.; KERRIand for the further reason that upon the GAN, J.

(33 Cal. App. 19)

tainer for restitution of the property and reRAMISH V. WORKMAN et al. (Civ, 2201.) covery of the rent then due for said month,

for which judgment was rendered on Janu(District Court of Appeal, Second District, California. Feb. 14, 1917. Rehearing Denied

ary 31, 1913, pursuant to which, notwithby Supreme Court April 12, 1917.) standing an appeal perfected therefrom by

defendants, they were evicted from the prop1. JUDGMENT C603—ACTIONS BARRED-ACTION FOR RENT.

erty on February 10th following. Under Code Civ. Proc. $ 1176, providing that The present action, filed April 26, 1913, was an appeal taken by defendant shall not stay to recover the rent for the period extending proceedings upon the judgment unless the court from January 1st to February 10th, during so directs, where lessees under a lease which gave a right of re-entry for default in payment which the premises were held and occupied of rent continued to occupy the premises, pend- by defendants, and for which judgment in ing the final determination of an appeal in an the sum of $2,000 was rendered in favor of action for unlawful detainer in which the landlord recovered judgment, and no stay was di- plaintiff, from which, and an order denying rected, the lease constituted the measure of the their motion for a new trial, both Workman lessees' liability for such time as they remained and Sturm, as defendants, and the former in possession, and the judgment did not consti- also as cross-complainant, appeal. tute a bar to the maintenance of an action for the rent for such period.

[1] The lease provided, among other things, [Ed. Note.- For other cases, see Judgment, that upon default in payment of the rent Cent. Dig. § 1118.)

reserved, the lessor, at his option, might enter 2. LANDLORD AND TENANT 184(2)—LEASE upon the demised premises and remove all -CONSTRUCTION.

persons therefrom. By another provision it Where a lease for ten years provided that was agreed that the lessees "will pay to the the lessees "will pay to the lessor as a further consideration for his lease for this lease in ad- lessor as a further consideration for this dition to the rent hereinabove reserved the sum lease in addition to the rent hereinabove reof $7,200, the receipt of which is hereby ac- served the sum of $7,200, receipt of which is knowledged by the lessor," and that, if the les hereby acknowledged by the lessor," and sees should pay the rent reserved when due, and perform the agreements of the lease for first “that, if the lessees shall pay the rent herein nine years, seven months, and twelve days of the reserved when the same becomes due herelease, and the lease shall not be terminated by under, and shall well and truly perform and the re-entry of the lessor within said period, etc., he will credit the sum of $7,200 the res observe all the covenants and agreements mainder of the rent due, the $7,200 was in the herein contained on their part to be performnature of a bonus or additional consideration for ed and observed, during the first nine years, the lease of the premises under the conditions seven months, and twelve days of this lease, specified, and the lessees did not part with the money, as a penalty or as security, and title to and this lease shall not be terminated by the it passed absolutely to the lessor, unaffected by re-entry of the lessor as hereinafter provided the fact that he agreed upon the performance of within said period of nine years, seven months certain conditions by defendants to give them and twelve days, he will credit the sum of credit therefor, and in the absence of such performance by the defendants they have no claim $7,200 hereinafter provided to be paid to him to the fund.

by the lessees upon the last four months and [Ed. Note.--For other cases, see Landlord and eighteen days' rent under this lease." Tenant, Cent. Dig. 88 745–748.]

While appellants admit that they occupied Appeal from Superior Court, Los Angeles the premises during the month of January County; Lewis R. Works, Judge.

and up to February 10th, the rent for which Action by Adolph Ramish against Elmer N. period under the terms of the lease was $2,Workman and another, in which the named 000, they insist their obligation to pay the defendant filed a cross-complaint. From a same was fully adjudicated in the action for judgment for plaintiff and an order denying unlawful detainer, wherein judgment was a motion for a new trial, the defendants, rendered for $1,500, which judgment they and named defendant, as cross-complainant, claim constituted a bar to the maintenance appeal. Affirmed.

of this action. At the trial it was in subI. Henry Harris and Williams, Goudge & stance stipulated that in the unlawful detainChandler, all of Los Angeles (Hunsaker & er action no claim was made for any damHarris, of Los Angeles, of counsel), for appel ages, nor for rent, other than $1,500 due for lants. Olin Wellborn, Jr., and Alfred H. Mc- the month of December, for which and the Adoo, both of Los Angeles, for respondent.

restitution of the premises judgment was ren

dered, but not executed as to restitution until SHAW, J. This controversy grew out of a February 10th. The action did not involve lease of property made by plaintiff to defend the rent for the period extending from Januants Workman and Sturm and their as- ary 1st to February 10th, nor was there any signors, for a term of ten years, for the sum judgment therefor rendered. Moreover, this of $180,000, payable in advance in monthly judgment was not final for the reason that installments of $1,500.

an appeal was perfected therefrom, and Default was made in the payment of the hence, there being no final determination of rent due December 1, 1912, whereupon plain the question as to plaintiff's right to forfeit tiff instituted a proceeding in unlawful de- the lease, the question was left as though it

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

had never been tried, even though no stay therein contained; and, as stated, the fact was directed by the court as provided in sec- that upon the performance of all the covetion 1176, Code of Civil Procedure. Hence, nants and agreements contained in the lease so long as defendants continued to occupy the to be performed by the lessees during the premises, pending the final determination of first nine years, seven months, and twelve the action for unlawful detainer, the lease days of the term thereof he promised in effect constituted the measure of their liability for to release them from the payment of rent at such time as they remained in possession. the rate of $1,500 per month for the last four

Appellants' chief ground for a reversal, months and eighteen days of the term so deand upon which they devote much of their mised furnishes no reason for appellants' argument, is based upon the provision of the contention. lease pursuant to which they paid plaintiff The judgment and order appealed from are $7,200, claim to which is asserted in both affirmed. the answer and cross-complaint. Notwithstanding the plain language in which the We concur: CONREY, P. J.; JAMES, J. prorision is couched, the meaning of which, to our minds, admits of no controversy, they insist that it should be construed as security

(32 Cal. App. 764) for the payment of the rent reserved during HILLYER v. EGGERS, Sheriff. (Civ. 1870.) the time ending with their eviction and any (District Court of Appeal, First District, Calidamages sustained by plaintiff ; that when

fornia. Feb. 9, 1917.) the landlord elected to evict defendants from the premises for nonpayment of rent he waiv- 1. REPLEVIN @ww4, 59—ACTION OF CLAIM AND

DELIVERY-DESCRIPTION OF PROPERTY. ed all claim to the $7,200, except in so far

In an action in claim and delivery, it is esas it was necessary to apply it in payment of sential that the specific personal property claimrent then due or accrued. As stated in Dut- ed should be described with a reasonable degree ton v. Christie, 63 Wash. 373, 115 Pac. 857, subject of such an action unless it is marked or

of certainty, and, as a rule, money is not the where a similar question was involved: “We designated so as to make it specific as regards cannot agree with this contention without in its capability of identification. effect writing a new contract for the parties." [Ed. Note.-For other cases, see Replevin,

[2] Clearly the $7,200 was paid for a ten- Cent. Dig. $$ 4-19. 21-26, 215-218.] year lease of the premises, upon the condi- | 2. Action Cw32–CLAIM AND DELIVERY.

Under Code Civ. Proc. 88 509-520, providtions and terms specified therein. Defend- ing an auxiliary remedy whereby when a party ants parted with the money, not as a penalty sues to recover personal property he may claim or as security, but as a payment the con- that the property, be immediately delivered to sideration for which was the execution of the plaint showed plaintiff to be entitled to recover

him without awaiting the trial, where the codelease on the part of plaintiff. The title there from a sheriff an amount of money taken from to passed absolutely to the lessor, unaffected him wrongfully under execution, upon the theby the fact that he agreed, upon the perform the facts constituting his cause of action, or

ory that he had, as required by the Code, stated ance of certain conditions by defendants, to facts showing a cause of action for money had give them credit therefor. The conditions and received, judgment for plaintiff was propwere never performed by defendants, and er, though the complaint did not describe the

money sufficiently to entitle plaintiff to its rehence they could have no claim to the fund. turn in specie in an action in claim and delivery; The authorities which appellants cite in sup- there being no forms of civil actions in Caliport of their contention all appear to have

fornia, been cases where the deposit was made with Dig. $8 257-261, 316.]

[Ed. Note.-For other cases, see Action, Cent. the lessor upon the execution of the lease as security for the payment of the rent, and in

Appeal from Superior Court, City and such cases, upon the lessor evicting the ten- County of San Francisco; Hon. Geo. E.. ants, it is uniformly held that he cannot as

Crothers, Judge. sert claim to the amount so deposited, over

Action by Curtis Hillyer against Frederand above rent due, with damages sustained. ick Eggers, Sheriff of the City and County The cases cited by appellants involve deposits of San Francisco, State of California. From made as “a guaranty,” “as indemnity," as "a a judgment for plaintiff, defendant appeals. penalty," "for security,” etc., and hence are

Affirmed. readily distinguished from the case at bar. Wm. Tomsky, of San Francisco (J. L. NaThis view finds full support in the case of gle, of San Francisco, of counsel), for appelDutton v. Christie, supra.

lant. Curtis Hillyer and Thomas W. ForThe provisions of the lease in question syth, both of San Francisco, for respondent. hereinbefore quoted should be interpreted in accordance with the plain import of the lan KERRIGAN, J. This is an appeal by the guage used, and, thus construed, it is clear defendant from an adverse judgment in an that the parties intended the $7,200 to be in action for the recovery of $730, claimed to the nature of a bonus or additional considera- have been unlawfully taken under execution. tion paid the lessor as an inducement to In the early part of the year 1914 the make the lease upon the terms and conditions Sequoia Motorcar Company gave in payment

fi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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