of the jury, we have no recourse but to hold that the judgment and order denying a new trial must be reversed. While the error complained of may not have wholly controlled the verdict, undoubtedly it contributed to it. The information charged a public offense, and we think sufficiently apprised the defendant of all that it was essential for him to know to intelligently defend against the charge contained therein. In the absence of a demurrer, it cannot be said that the defendant was seriously misled by the alleged ambiguity of the information. The judgment and the order denying a new trial are reversed, and the cause remanded for a new trial.

the defendant had committed offenses simi-dency of the objectionable evidence was perlar to that with which he was charged and mitted to permeate and poison the minds for which he was being tried. This testimony was given evidently before counsel for the defendant had an opportunity to object, and it proved particularly prejudicial to the defendant, inasmuch as the district attorney, despite the protest of counsel for defendant, subsequently made it the groundwork of his argument to the jury. In ruling upon the motion to strike out this voluntary testimony the trial court declared that it was "immaterial," but nevertheless decided to "let it stand." Comprehending and declaring its immateriality, it seems to us that it would have been just as easy for the trial court to say, "Strike it out," as it was to say, "Let it stand." The growing tendency to permit irrelevant and immaterial matters to stand in evidence in the face of well We concur: grounded objections is, we think, born of the ARDS, J. hope that perchance it may be ultimately determined in the event of a conviction and upon appeal that, when measured by the provisions of section 42, art. 6, of the Constitution, they neither controlled the verdict nor contributed to it. In this instance, unfortunately, the argument of the district attorney, coupled with the failure to grant that which the court tacitly admitted to be a wellgrounded motion, and one that was made in keeping with the elementary rules of evidence, must result in a reversal. The defendant, as a witness in his own behalf, denied the commission of the offense charged against him, and the record shows that in his closing argument to the jury the district attorney said:

* * And the only thing that is stated in the defense is the statement of Bob Clark [the defendant] that he did not do it. Now, I wonder whether you think Clark's statement is correct, or whether the statement of the boys is correct. They tell you the details, got the flask, and went right over to the sheriff with it, and in the statement of the first witness here, L. E. Albin, he said he met Clark in front of the pool hall and said to him, 'I want a little bottle, Bob,' or something like that. He said, 'Of course, I have bought plenty of them before,' or 'plenty of them there."

KERRIGAN, J.; RICH

(28 Cal. App. 683) PEOPLE v. RUDOLPH. (Cr. 320.) (District Court of Appeal, Third District, California. Oct. 30, 1915.)

1. CRIMINAL LAW 304-TRIAL-JUDICIAL NOTICE.

The court will take judicial notice of the day of the week on which a certain day of the month fell in a certain year, in determining whether a former conviction of the same offense was had on Sunday.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 700-717, 29512; Dec. Dig. 304.]

2. CRIMINAL LAW

MER CONVICTION.

374-EVIDENCE-FOR

Pen. Code, § 1204, requiring evidence in mitigation or aggravation of an offense to be given by witnesses in court or their deposition, has no application to evidence of a former conviction, where the conviction is charged in the indictment, as permitted by section 969, so that such conviction is properly shown by the record of the former conviction.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 835; Dec. Dig. 374.] 3. CRIMINAL LAW 763, 764-TRIAL-INSTRUCTIONS-WEIGHT OF EVIDENCE.

In a prosecution for larceny it is not error to refuse to charge that the testimony of a police officer or private detective must be scruAt this juncture counsel for the defend-tinized for bias, since that charge would be on ant objected to the argument upon the lines the weight of evidence, contrary to Const. art. 6, § 19, although that proposition may be argued quoted, practically upon the grounds stated to the jury by counsel. in the motion to strike out, and the district [Ed. Note.-For other cases, see Criminal attorney very properly replied that, inas-Law, Cent. Dig. §§ 1731-1748, 1752, 1768, much as the court had permitted the objec-1770; Dec. Dig. 763, 764.] tionable evidence to stand when it was first objected to, it was his privilege to comment upon the same in his argument to the jury. The court sat silent, and the district attorney continued his argument, driving the point home by repeating substantially that which has been quoted above.

In the light of all that transpired during the argument of the district attorney to the jury, the error of the ruling and its ultimate prejudice are obvious. Because of this error and the manner in which the evil ten

Appeal from Superior Court, Sonoma County; Emmet Seawell, Judge.

Frank Rudolph was convicted of the crime of petit larceny, with a prior conviction of the same offense, and he appeals from the conviction and an order denying new trial. Affirmed.

R. M. Quackenbush, of Santa Rosa, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 153 P.-46.

HART, J. Convicted under an information (ed. The manifest object of the section is to filed by the district attorney of Sonoma coun- authorize the court, after a conviction has ty in the superior court of said county of the crime of petit larceny, with a prior conviction of the same offense, the defendant brings the cause to this court on appeal from the judgment and the order denying him a new trial. The information first charges the defendant with having unlawfully and feloniously stolen, taken, and carried away "one brace and drill of the value of $4, the personal property of one John Ronne." It then charges:

"That the said defendant, Frank Rudolph, before the commission of the offense charged in this complaint, to wit, on the 2d day of November, 1914, was in the recorder's court of the city of Petaluma, county of Sonoma, state of California, convicted of the crime of petit larceny, and which said judgment of conviction has never been annulled, reversed, or set aside." Section 969, Penal Code.

The defendant pleaded not guilty to each of the charges thus laid against him.

[1] The first point made by the defendant is that the prior conviction of the defendant of petit larceny as charged in the information is void, inasmuch, so he asserts, as the trial of the defendant on said charge and his conviction thereof were had and obtained upon Sunday, a legal holiday or nonjudicial day. Sections 10, 133, and 134, Code Civ. Proc. The point is without a predicate for its support. To establish the prior conviction the people introduced in evidence the record of the police court of the city of Petaluma showing such previous conviction, and therefrom it appears that, as alleged in the infor mation, the trial of the defendant upon the charge of petit larceny was held on the 2d day of November, 1914, and that on that day a judgment of conviction was rendered against him. The 2d day of November, 1914, fell on Monday-a fact of which we are authorized to take judicial notice. Section 1875 subd. 8, Code Civ. Proc.

been had and before sentence is pronounced in any criminal case, to receive testimony either in mitigation or aggravation of the punishment to be imposed. To this end any testimony bearing upon the character or the antecedents of the convicted person-whether he has theretofore been of good or bad character or borne a good or bad reputation or been previously convicted of some offense against the law-may be presented to the court. In such case, unlike those where, under sections 666 and 667 of the Penal Code, a prior conviction is charged in addition to the crime subsequently committed, the court is not authorized or empowered to impose a greater punishment than the maximum penalty prescribed for the particular crime of which the accused has been convicted. Where a prior conviction has been charged and sustained, and the subsequent offense charged is likewise established, the court is authorized to impose a penalty in excess of the maximum penalty prescribed for either the prior or the subsequent offense.

Our conclusion, therefore, is that section 1204 has no application to a case where, as here, the defendant is put upon trial under an indictment or information charging him, in addition to the later offense charged, with a prior conviction of a similar or other pub

lic offense.

[3] The third and last point submitted by the defendant is that the court erred in its refusal to give to the jury the following instruction proposed by him:

"The court instructs the jury that, when one acts in the capacity of a private detective or public officer, it becomes the duty of the jury to scrutinize the testimony of such person and person so acting is biased, whether the interest to say whether or not the testimony of that he serves has influenced him to any extent that would reflect upon or affect his testimony." The instruction was properly rejected. We [2] The second point upon which the de- know of no reason for declaring, as an abfendant relies for a reversal is that the evi-stract proposition, that because a witness dence of the prior conviction as presented by the people, measured by the provisions of section 1204 of the Penal Code, was insufficient to establish that charge in the information.

The section mentioned reads: "The circumstances must be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken by a magistrate of the county, out of court, upon such notice to the adverse party as the court may direct. No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section."

It is very plain that said section does not pretend to prescribe either the quantum or the character of the evidence essential to the proof of a prior conviction, where the fact of such conviction is pleaded or set up in an indictment or information against the accus

may be a public or police officer, and in his capacity as such acquired the information which he is asked to impart to the jury in a criminal or other case, his testimony should be given more careful scrutiny or viewed with more circumspection than ought to be given to the testimony of any other witness. If it is made to appear that, by reason of the part that an officer may be shown to have taken in the apprehension of one charged with crime and in the preparation of the case against him, he evinces undue interest in behalf of the prosecution or shows a strong desire for a conviction, then it is proper for the defendant through his attorney to emphasize that fact in his argument to the jury. and thus convince the triers, if it may so be done, that the officer's testimony should be viewed with caution. But it is certainly not within the legitimate province of the court to argue the proposition to the jury in its in

structions. Indeed, the instruction bears up-, duly appointed under an order of the court on the question of the weight of testimony, was instructed to take into his custody the and therefore invades territory exclusively mortgaged chattels, and thereupon he made allotted to the jury by the Constitution, or, demand upon petitioner that she deliver to in other words, flies in the face of the consti- him two pairs of andirons, which were intutional provision forbidding the charging of cluded in the mortgage, with which demand juries by judges with respect to matters of so made she refused to comply. Thereupon fact. Const. art. 6, § 19. the receiver procured from the court an order citing petitioner to appear in court at a time therein specified and show cause why she should not be punished for contempt for such disobedience. This order was not served upon petitioner, but upon one J. S. Josselyn, Esquire, who, though he was not her attorney of record, nevertheless accepted service thereof in her behalf.

There is no claim that the evidence does not support the verdict otherwise than in the particular above indicated.

The judgment and the order are affirmed.
We concur: CHIPMAN, P. J.;
NETT, J.

(28 Cal. App. 625)

BUR

CROUSE v. SUPERIOR COURT IN AND
FOR LOS ANGELES COUNTY et al.

(Civ. 1860.)

[1, 2] It may be conceded, as claimed by petitioner, that the purported acceptance of service of the order by this attorney, who,

(District Court of Appeal, Second District. So far as shown by the record, was at the

California. Oct. 20, 1915.)

1. CONTEMPT 57- PROCEEDINGS TO PUNISH FOR CONTEMPT JURISDICTION.

time a stranger thereto, was a nullity and constituted no sufficient basis for the contempt proceeding instituted thereby. NeverWhere an order to show cause why a de- theless, petitioner, in obedience to the order fendant in a suit to foreclose a chattel mortgage requiring her so to do, did appear, and adshould not be punished for contempt for her remitting she then had possession of the andfusal to deliver certain of the mortgaged property to a receiver appointed by the court, was served on an attorney not then her attorney of record, but she neverthless appeared in obedience to the order and admitted her possession of the property, and the court thereupon in open court ordered her to deliver it to the receiver by a time fixed in the order which was entered of record, even though the service of the order to show cause was a nullity and constituted no sufficient basis for the contempt proceeding instituted thereby, prohibition would not lie to prevent the court from enforcing obedience to the order made in open court and in the presence of the defend

ant.

[Ed. Note. For other cases, see Contempt, Cent. Dig. §§ 162, 163; Dec. Dig. 57.] 2. CHATTEL MORTGAGES 281 SUITS TO FORECLOSE-APPOINTMENT OF RECEIVER RIGHT TO PROPERTY,

Where a judgment by default in an action to foreclose a chattel mortgage adjudged that certain articles in the possession of a defendant were covered by and subject to the mortgage, it was her duty to deliver them to a receiver ordered by the court to take into his custody the mortgaged chattels, unless subsequent to the judgment she had with consent of the plaintiff acquired some right or title to the property from the owners thereof.

[Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 529; Dec. Dig. 281.]

Application by Christine Shelton Crouse for a writ of prohibition directed to the Superior Court in and for the County of Los Angeles and another. Alternative writ dismissed, and application denied.

Joel S. Josselyn, of Oakland, for petitioner. Rush M. Blodget, for respondents.

SHAW, J. Prohibition. It appears that petitioner was a party defendant duly served with summons in a certain action to foreclose a mortgage given upon chattels, some of which were at the time in her possession. She made no appearance, and judgment was entered against her by default. A receiver

irons, was in open court by the judge there-
of ordered to deliver the andirons to the
receiver by 6 o'clock p. m. of that day, which
order was entered of record. Apparently the
court did not proceed with contempt proceed-
ings founded upon the first order based upon
an affidavit showing that petitioner had re-
fused to deliver the articles upon the receiv-
er's demand so orally made. That proceeding
may be deemed to have been abandoned. It
is the second order made in open court, pe-
titioner being present, whereby she was or-
dered to deliver the property to the receiver,
the failure to comply with which may or may
not, upon a proper showing, constitute a bas-
is for contempt proceedings. So far as right
to possession of the property is concerned, pe-
titioner had her day in court as a party to the
foreclosure action, wherein it was adjudged
that the articles in her possession were cov-
ered by and subject to the mortgage; and
unless she has subsequently to the rendition
of the judgment therein and with consent of
the plaintiff in foreclosure, acquired some
right or title to the property from the own
ers thereof, it is her duty to deliver the same
to the receiver in obedience to the order.
she has thus acquired title to the property, a
showing of such fact upon citation in con-
tempt proceedings based upon her refusal to
comply with the order, would, no doubt, be
deemed sufficient to purge her of such alleged
contempt. Upon the record presented, we
perceive no reason why the court should be
prohibited from enforcing obedience to the
order.

If

The alternative writ heretofore issued is dismissed, and the application of petitioner denied.

We concur: CONREY, P. J.; JAMES, J.

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

From the above it is apparent that the defendants did not agree, as alleged in the complaint, to pay the plaintiff $4,500 in money as compensation for his services in selling ELLISON, Judge pro tem. The complaint the stock. Neither was there any agreement in this action alleges that, at the special to deliver specific property in satisfaction instance and request of the defendants, the of a determined money indebtedness. plaintiff performed certain services, to wit, There is a line of decisions holding that,