faith of the district attorney in making the in- neglect of such drivers in failing or refusing quiries at the time not being questioned. to comply with such requirements a felony. [1] The facts of this case immediately preceding, attending, and succeeding the colli1144(16)-APPEAL-PRE- sion are substantially these: On the evening [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2640, 3133.] 4. CRIMINAL LAW SUMPTION-HEEDING ADMONITION. It will be presumed that the jury heeded the admonition that offers of testimony which the court refused to admit, and answers stricken out and insinuations against a party in questions, are not evidence, and should be disregarded. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2768, 2901, 3034.] 5. CRIMINAL LAW WAIVER Of Error. 1037(2) APPEAL of October 31, 1915, a little after sunset the defendant was proceeding northward along the state highway near the town of Mayfield, in the county of Santa Clara, on his way home to San Francisco from Coyote, in that county, to which place he had made the trip earlier in the day. There were four companions with the defendant in the car which 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 matter in issue, a violation of the law of the highway, defendant was visiting a person who had been arrested as a member of the Black Hand Society; the defendant allowing the question, and the answer in the negative made before he could object, to stand, and making no request for admonition or instruction to disregard the same, though the court, on objection by him, stated that if he wished it would be stricken out. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645.] 6. HIGHWAYS 186-COLLISION FAILURE TO STOP AND ASSIST-KNOWLEDGE AS ELE MENT. Aside from Pen. Code, § 20, providing that in every crime there must be a union of act and intent, it is necessarily to be implied from section 367c, declaring the duty of the driver of a vehicle colliding with another to stop and assist the occupants of the vehicle collided with, and making violation thereof an offense, that knowledge by the driver of the collision is essential to the offense. [Ed. Note. For other cases, see Highways, Cent. Dig. §§ 476, 477.] sine, in which two ladies-Mrs. Carolan and 7. WITNESSES 293-PRIVILEGE-TESTIMONY the chauffeur, who spoke English imperfectAGAINST HIMSELF-STATUTES. Pen. Code, § 367c, requiring the driver of an auto colliding with any vehicle to stop and give aid, and to give information as to the number of his machine and his name and address, and making violation of any provision thereof an offense, does not compel him to give evidence against himself, in violation of Const. art. 1, § 13. ly, made some remark to the defendant to the effect that he had killed somebody. The defendant stopped momentarily, but did not return to the scene of the collision, but continued rapidly on his way to San Francisco until he was finally halted by the officers at Burlingame. He insisted at all times 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. [Ed. Note. For other cases, see Witnesses, Cent. Dig. 88 1009-1014.] Antone Fodera was convicted of violating LENNON, P. J. This is an appeal from a judgment of conviction of the defendant upon the charge of a violation of section 367c of the Penal Code, requiring drivers of automobiles colliding with other vehicles to stop and render assistance to the occupants of the vehicle collided with and who may have been injured by such collision, under penalties which render the act or persons who were occupants of the car. The evidence educed at the trial disclosed, however, that the impact of the collision was distinctly heard by the two ladies who were within the closed limousine, and also by a Mr. Van Gordon, who was sitting upon the porch of his residence 100 yards away from the scene of the collision. It also appeared that the body of Zapata had been carried along by the defendant's car for a distance of from 45 to 60 feet before falling from it to the roadside; while from the exhibits produced at the trial and exhibited to this court upon the oral argument of this appeal, consisting of photographs of the defendant's car, and also of articles of clothing worn by one of the occupants thereof sitting on the side nearest to the point of contact, it appeared that the fenders and tool box of the For other cases see same 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 and the coat of its said occupant were bespattered with the blood and brains of Zapata. as to the particular qualities of the defendant to which these several witnesses were 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 contends that the judgment of conviction herein should be reversed on account of certain alleged acts of prejudicial misconduct on the part of the district attorney occurring during the trial and the argument of the case and claimed to have resulted in a miscarriage of justice. The specific acts of alleged misconduct relied upon for a reversal, substantially stated, are these: [3] The district attorney also asked of a number of said witnesses whether they had heard that the defendant had on several occasions been arrested for speeding his automobile beyond the legal limit, and in some instances had pleaded guilty and paid fines therefor. In most cases this question was asked and answered negatively without objection or assignment of misconduct. It may be seriously questioned whether a person habituated to reckless driving of an automobile to the extent of being in a number of cases and in several counties arrested therefor is of that kindly and humane disposition which the character witnesses of the defendant herein would have had the jury believe him to be; but however this may be it appears, as above stated, that in most instances no objection or assignment of misconduct was made to these questions, and that also in most cases the witnesses stated that they had never heard of the matter, and in some instances the witnesses admitted that they had heard of these episodes. It further appears from the record that no request was made to the court for an admonition to the jury to disregard this evidence; any instruction to that effect requested; nor was the good faith of the district attorney in making these inquiries at the time brought into question. Under these circumstances no prejudicial error can be predicated upon the action of the district attorney in making, or of the court in permitting, the inquiry as to whether the character witnesses for the defendant knew of his arrests and pleas of guilty and fines for unlawful speeding. nor was [2] During the trial of the cause and prior to the time when the defendant himself had taken the stand as a witness in his own behalf his counsel proffered proof that his general reputation for truth, honesty, and integrity was good. The trial court, upon objection made, limited the evidence offered in this regard to proof of the general reputation of the defendant for kindness and gentleness, as being the particular qualities involved in the particular inquiry. The defendant apparently accepted this limitation; and proceeding upon the theory that it would be unlikely that a person of gentle and kindly nature would disregard the promptings of humanity as well as the commands of the law requiring him to stop and render aid to those who might be injured by a collision if he was aware of the fact or likelihood of such injury, the defendant called several witnesses, who testified that the general reputation of the defendant for kindness and gentleness was good. Of the witness George Filmer the district attorney asked upon cross-examination whether he had ever heard it discussed that the defendant, with several other poultry men of San Francisco, had 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. cussed that the defendant was under investinumber of these replied to the question that gation by the police department of San Franthey 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 for 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 hapit seems very clear that the questions them- pens that counsel asks a question of a witness A which contains an insinuation against one or other party to the action. The insinuations contained in such questions are not evidence and you must disregard them." It is to be assumed that the jury heeded this admonition with respect not only to this precise inquiry, but also as to other questions of doubtful propriety respecting which, objections were made and sustained by the court. People v. Burke, 18 Cal. App. 72, 122 Pac. 435. [5] The district attorney is also charged with misconduct in having asked of the witness Charles Swanberg the following question: "Q. Did you ever hear it discussed, Mr. Swanberg, that on the day of this affair he [the defendant] was visiting at the home of a person who had been arrested as a member of the Black Hand Society?" Before objection could be made the witness responded, "I never heard it discussed." The defendant then made his objection and assignment of misconduct; whereupon the court stated to the counsel for the defendant, “If you wish, it will be stricken out." No such request was made, however, nor was the court asked to either admonish or instruct the jury, nor was the district attorney charged with bad faith in making the inquiry. It is sufficient to say, therefore, that since the defendant chose to allow the question and answer to stand, and made no request for an admonition or instruction to the jury to disregard it, no prejudicial misconduct sufficient to justify a reversal of the case can be predicated upon the asking of the question. The appellant further contends that the district attorney was guilty of misconduct in producing a justice of the peace of San Mateo with his docket, for the purpose of showing affirmatively that the defendant had in fact been arrested, and pleaded guilty and paid a fine upon the charge of unlawful speeding. It is sufficient to say that the evidence was incompetent, and its proffered introduction improper, but that the court promptly sustained an objection to it, and that the defendant neither assigned the proffer of it as misconduct, nor asked for an instruction to the jury to disregard it. The error and impropriety of its offer in evidence must therefore be held to have been cured by the foregoing voluntary instruction of the court in its final charge to the jury. With regard to the alleged acts of misconduct on the part of the district attorney during the argument of the case, we do not deem it necessary to deal with these in detail, for the reason that in most instances the court admonished the district attorney to confine himself to the evidence in the case; and for the further reason that upon the whole these imprudent remarks of the district attorney were not in our opinion sufficiently prejudicial to have seriously affected the verdict or to warrant a reversal of the case, particularly in view of the fact that, as above stated, the proof presented to the jury in the form of testimony and exhibits was amply sufficient to justify the verdict of conviction, and to warrant the conclusion that none of the several alleged acts of misconduct on the part of the prosecuting officer were sufficiently prejudicial in character or influential in effect as to cause the verdict of conviction in this case to have been a miscarriage of justice. [6] The final contention of the appellant is that the section of the Penal Code under which the defendant was prosecuted and convicted is unconstitutional, for two alleged reasons: First, that the section does not limiting its application to those persons who expressly embody in its phraseology words knowingly cause their vehicles to collide with those occupied by others. But our reading of the section in question convinces us that the element of knowledge of the fact of the collision is necessarily to be implied from the requirements of the act, to the effect that drivers of such vehicles must stop and render aid to those who may possibly have been injured in the collision. Moreover, section 20 of the Penal Code, which is to be read together with and into the section under review, provides that "in every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence." We are of the opinion that the act is not unconstitutional for the first reason assigned. [7] The appellant urges as the second reason for its alleged invalidity its provision requiring the driver or occupant of a vehicle striking another to give certain information as to the number of the vehicle, the name and address of the driver and of the owner and of its passengers. It is claimed that this requirement, by compelling the persons of whom such information is demanded to be witnesses against themselves, amounts to a violation of section 13 of article 1 of the state Constitution. But the appellant concedes that this point has been decided adversely to his contention in a number of cases from other states which, as respondent shows, have been approved by this court in the case of People v. Diller, 24 Cal. App. 799, 802, 142 Pac. 797. There is, therefore, no merit in this contention. Judgment and order affirmed. (33 Cal. App. 19) RAMISH v. WORKMAN et al. (Civ. 2201.) 1. JUDGMENT 603-ACTIONS BARRED-AC- Under Code Civ. Proc. § 1176, providing that an appeal taken by defendant shall not stay proceedings upon the judgment unless the court so directs, where lessees under a lease which gave a right of re-entry for default in payment of rent continued to occupy the premises, pending the final determination of an appeal in an action for unlawful detainer in which the landlord recovered judgment, and no stay was directed, the lease constituted the measure of the lessees' liability for such time as they remained in possession, and the judgment did not consti tute a bar to the maintenance of an action for the rent for such period. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1118.] 2. LANDLORD AND TENANT -CONSTRUCTION. 184(2)-LEASE Where a lease for ten years provided that the lessees "will pay to the lessor as a further consideration for his lease for this lease in addition to the rent hereinabove reserved the sum of $7,200, the receipt of which is hereby acknowledged by the lessor," and that, if the lessees should pay the rent reserved when due, and perform the agreements of the lease for first nine years, seven months, and twelve days of the lease, and the lease shall not be terminated by the re-entry of the lessor within said period, etc., he will credit the sum of $7,200 the remainder of the rent due, the $7,200 was in the nature of a bonus or additional consideration for the lease of the premises under the conditions specified, and the lessees did not part with the money, as a penalty or as security, and title to it passed absolutely to the lessor, unaffected by the fact that he agreed upon the performance of certain conditions by defendants to give them credit therefor, and in the absence of such performance by the defendants they have no claim to the fund. tainer for restitution of the property and recovery of the rent then due for said month, for which judgment was rendered on January 31, 1913, pursuant to which, notwithstanding an appeal perfected therefrom by defendants, they were evicted from the property on February 10th following. The present action, filed April 26, 1913, was to recover the rent for the period extending from January 1st to February 10th, during which the premises were held and occupied by defendants, and for which judgment in the sum of $2,000 was rendered in favor of plaintiff, from which, and an order denying their motion for a new trial, both Workman and Sturm, as defendants, and the former also as cross-complainant, appeal. [1] The lease provided, among other things, that upon default in payment of the rent reserved, the lessor, at his option, might enter upon the demised premises and remove all persons therefrom. By another provision it was agreed that the lessees "will pay to the lessor as a further consideration for this lease in addition to the rent hereinabove reserved the sum of $7,200, receipt of which is hereby acknowledged by the lessor," and "that, if the lessees shall pay the rent herein reserved when the same becomes due hereunder, and shall well and truly perform and observe all the covenants and agreements herein contained on their part to be performed and observed, during the first nine years, seven months, and twelve days of this lease, and this lease shall not be terminated by the re-entry of the lessor as hereinafter provided within said period of nine years, seven months and twelve days, he will credit the sum of $7,200 hereinafter provided to be paid to him 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. §§ 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. Action by Adolph Ramish against Elmer N. Workman and another, in which the named defendant filed a cross-complaint. From a judgment for plaintiff and an order denying a motion for a new trial, the defendants, and named defendant, as cross-complainant, appeal. Affirmed. and up to February 10th, the rent for which period under the terms of the lease was $2,000, they insist their obligation to pay the same was fully adjudicated in the action for unlawful detainer, wherein judgment was rendered for $1,500, which judgment they claim constituted a bar to the maintenance of this action. At the trial it was in substance stipulated that in the unlawful detainer action no claim was made for any damages, nor for rent, other than $1,500 due for the month of December, for which and the restitution of the premises judgment was rendered, 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 of $180,000, payable in advance in monthly installments of $1,500. I. Henry Harris and Williams, Goudge & Chandler, all of Los Angeles (Hunsaker & Harris, of Los Angeles, of counsel), for appellants. Olin Wellborn, Jr., and Alfred H. McAdoo, both of Los Angeles, for respondent. Default was made in the payment of the rent due December 1, 1912, whereupon plaintiff instituted a proceeding in unlawful de judgment therefor rendered. Moreover, this judgment was not final for the reason that an appeal was perfected therefrom, and hence, there being no final determination of the question as to plaintiff's right to forfeit the lease, the question was left as though it 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 months and eighteen days of the term so demised furnishes no reason for appellants' contention. Appellants' chief ground for a reversal, and upon which they devote much of their argument, is based upon the provision of the lease pursuant to which they paid plaintiff $7,200, claim to which is asserted in both the answer and cross-complaint. Notwithstanding the plain language in which the provision is couched, the meaning of which, to our minds, admits of no controversy, they insist that it should be construed as security for the payment of the rent reserved during the time ending with their eviction and any The judgment and order appealed from are affirmed. We concur: CONREY, P. J.; JAMES, J. (32 Cal. App. 764) HILLYER v. EGGERS, Sheriff. (Civ. 1870.) (District Court of Appeal, First District, Cali fornia. Feb. 9, 1917.) damages sustained by plaintiff; that when the landlord elected to evict defendants from the premises for nonpayment of rent he waived all claim to the $7,200, except in so far as it was necessary to apply it in payment of rent then due or accrued. As stated in Dutton v. Christie, 63 Wash. 373, 115 Pac. 857, where a similar question was involved: "We cannot agree with this contention without in effect writing a new contract for the parties." [2] Clearly the $7,200 was paid for a tenyear lease of the premises, upon the condi-2. ACTION 32-CLAIM AND DElivery. tions and terms specified therein. Defendants parted with the money, not as a penalty or as security, but as a payment the consideration for which was the execution of the lease on the part of plaintiff. The title there to passed absolutely to the lessor, unaffected by the fact that he agreed, upon the performance of certain conditions by defendants, to give them credit therefor. The conditions were never performed by defendants, and hence they could have no claim to the fund. The authorities which appellants cite in support of their contention all appear to have been cases where the deposit was made with the lessor upon the execution of the lease as security for the payment of the rent, and in such cases, upon the lessor evicting the ten-County ants, it is uniformly held that he cannot assert claim to the amount so deposited, over and above rent due, with damages sustained. The cases cited by appellants involve deposits made as "a guaranty," "as indemnity," as "a penalty," "for security," etc., and hence are readily distinguished from the case at bar. This view finds full support in the case of Dutton v. Christie, supra. 1. REPLEVIN 4, 59-ACTION OF CLAIM AND DELIVERY-DESCRIPTION OF PROPERTY. In an action in claim and delivery, it is essential that the specific personal property claimed should be described with a reasonable degree of certainty, and, as a rule, money is not the subject of such an action unless it is marked or designated so as to make it specific as regards its capability of identification. [Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 4-19, 21-26, 215-218.] Under Code Civ. Proc. §§ 509-520, providing an auxiliary remedy whereby when a party sues to recover personal property he may claim that the property be immediately delivered to him without awaiting the trial, where the complaint showed plaintiff to be entitled to recover from a sheriff an amount of money taken from him wrongfully under execution, upon the thethe facts constituting his cause of action, or ory that he had, as required by the Code, stated facts showing a cause of action for money had and received, judgment for plaintiff was proper, though the complaint did not describe the money sufficiently to entitle plaintiff to its return in specie in an action in claim and delivery; there being no forms of civil actions in Cali The provisions of the lease in question hereinbefore quoted should be interpreted in accordance with the plain import of the language used, and, thus construed, it is clear that the parties intended the $7,200 to be in the nature of a bonus or additional consideration paid the lessor as an inducement to make the lease upon the terms and conditions fornia. Dig. §§ 257-261, 316.] Appeal from Superior Court, City and Crothers, Judge. Action by Curtis Hillyer against Frederick Eggers, Sheriff of the City and County of San Francisco, State of California. From a judgment for plaintiff, defendant appeals. Affirmed. Wm. Tomsky, of San Francisco (J. L. Nagle, of San Francisco, of counsel), for appellant. Curtis Hillyer and Thomas W. Forsyth, both of San Francisco, for respondent. KERRIGAN, J. This is an appeal by the defendant from an adverse judgment in an action for the recovery of $730, claimed to have been unlawfully taken under execution. In the early part of the year 1914 the Sequoia Motorcar Company gave in payment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |