N. D. Meyer, of Santa Ana, for petitioner. I will not be disturbed, in the absence of abuse L. A. West, Dist. Atty., and Arthur E. Koep- as to the amount to be awarded. sel, Deputy Dist. Atty., both of Santa Ana, Appeal from Superior Court, Alameda for respondent. County; J. O. Moncur, Judge. Edward C. Harrison and Maurice E. Har rison, both of San Francisco, for appellant. Daniel O'Connell, of San Francisco, for respondent. Action by James A. Johnston against HerPER CURIAM. Habeas corpus. Jose Cor-man Murphy. Judgment for plaintiff, and rea is in the custody of the sheriff of the defendant appeals. Affirmed. county of Orange under a commitment issued out of the justice's court of Anaheim township, Orange county. In that court Correa was convicted of an alleged misdemeanor pursuant to a complaint which charged that the defendant at the time and place named did "willfully and unlawfully expose his person," BEASLY, Judge pro tem. This is an action etc. It is admitted that by the complaint it begun December 31, 1914, on a promissory The was attempted to charge the offense describ-note given by defendant to plaintiff. ed in section 311 of the Penal Code. principal defense is that the note was secured section, so far as applicable to this case, is as by a mortgage, and that the action should follows: That It is manifest, upon an inspection of the complaint, that it failed to charge the offense described in the statute. It was not alleged that the acts described were done "lewdly," nor were any words of equivalent meaning used in the complaint. An essential element of the crime being thus omitted, the complaint did not state a public offense. It is ordered that the prisoner, the said Jose Correa, be discharged from custody. (36 Cal. App. 469) JOHNSTON v. MURPHY. (Civ. 2324.) (District Court of Appeal, First District, California. March 7, 1918.) 1. MORTGAGES 40- WHAT CONSTITUTES · FORM. A letter accompanying a note, which read, "This is to certify that there is due you a sum of $4,000 secured by a lien upon certain land," when not accepted or received or treated by the recipient as a mortgage, and in the absence of showing that it was so intended by the sender, would not be considered a mortgage. 2. EQUITY 65 (2) CLEAN-HANDS Doc have been one of foreclosure. The note was dated January 23, 1909. The alleged mortgage consists of a letter from the defendant to plaintiff, the body of which reads as follows: "I hereby certify that there is due to you the sum of $4,000. Said sum is secured by a lien upon that certain land comprising 937 acres in the rancho Los Positos, being the same land conveyed to me by Louis Aurrecoechea. The indebtedness is a prior claim to any lien I may have." The letter was not acknowledged nor recorded. The transactions between the parties of which this letter formed an incident may be stated more at large as follows: The defendant, Murphy, during or perhaps before the year 1902, acting for one Aurrecoechea, borrowed $4,000 from plaintiff, and Aurrecoechea executed a mortgage on a ranch belonging to him to secure payment of the loan. In 1904 Murphy purchased the ranch from Aurrecoechea, and on July 19, 1906, he conveyed it to his wife. This deed was not recorded until June 30, 1908. Some time in the early summer of 1908-so Johnston testified-Murphy induced him to sign what he, Johnston, supposed was a release of a part of the ranch from the lien of the Aurrecoechea mortgage, but what turned out to be a deed of the entire ranch to Murphy. This deed was not recorded until November, 1906. Johnston did not learn until January 23, 1909-the date of the note in suit-of the true character of the paper he had signed in 1906, namely, of the deed to Murphy of the whole ranch, nor that this deed released the ranch from the lien of the mortgage; nor was anything said by Murphy even at that time about the deed to Mrs. Murphy, and it appears from Johnston's evi588-CROSS-EXAMINATION- dence that although the letter which defendRECONCILING CONFLICTING STATEMENTS. Where statements of witness on cross-examination, though apparently contradicting his statements on direct examination, were capable of reconciliation therewith, it was the duty of the court to reconcile them. TRINE. Where defendant deceived the mortgagee into giving him a deed for the land and then deeded it to his wife, he was in no position to defeat recovery on the note later given, on the ground that an instrument, not on its face a mortgage, was such in fact, and that the suit should have been for foreclosure thereof, especially where the bar of limitations could have been invoked against a later suit on the note, since unconscientious conduct, even without ant now seeks to have construed to be a mort gage is dated November 1, 1906, it was actually received by Johnston through the mail and after the execution of the note in suit. It also appears that Johnston kept this letter but 4. APPEAL AND ERROR 984(5)—REVIEW-made no reply to it; that is to say, it does ATTORNEY'S FEES-DISCRETION. In action on note empowering court to fix not appear that he accepted it or treated it attorney's fees, the court has a discretion which as a mortgage. 1/ the We concur: LENNON, P. J.; KERRI [1, 2] Upon the facts, the defendant de- to have been abused in this case considering sires to defeat recovery on this note by claim- the work of counsel evidenced by the record. ing that the letter in question is a mortgage, Judgment affirmed. and argues that if it is not as a matter of law such, it should be so construed in equity. We cannot agree with him, for the reason, GAN, J. among others, that it is evident that Johnston did not receive or accept or treat it as a mortgage; nor does it appear upon its face, nor from the surrounding circumstances in evidence, that Murphy ever so intended it. Counsel suggests that it is "an imperfect at-1. tempt to create a mortgage" which will be considered a mortgage in equity, but it seems to us, in view of the defendant's conduct throughout these transactions, that he is in no position to invoke the aid of equity to have this paper declared a mortgage, a result which would defeat the collection of the note in this action. And it could not be collected in a new action should the defendant plead the bar of the statute of limitations. It is quite plain from the evidence that the trial court decided that Murphy had deceived Johnston into releasing the Aurrecoechea mortgage in full, and that the latter was not undeceived until after the note sued on here was executed. At that time Murphy's mortgage would have been of no value, for Mrs. Murphy owned the property, and Murphy refused to let her even sigh the note. Upon these facts Murphy cannot be permitted to call upon a court of equity and conscience to indirectly relieve him from the payment of a just debt by holding this mere letter to be a mortgage. "It is not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscientious conduct connected with the controversy to which he is a party will repel him from the forum whose very foundation is good conscience." 1 Pomeroy's Eq. Juris. (3d Ed.) § 404. [3] Defendant claims that the amount of interest included in the judgment is excessive. Without going into the computation here it is sufficient to say that we find no error in the amount allowed by the trial court under this head. The plaintiff testified clearly as to the payments, and they were not disputed. It is claimed, however, that the plaintiff contradicted this testimony on cross-examination; but his testimony on cross-examination was susceptible of reconciliation with that on direct examination, and it was accordingly the duty of the court to reconcile this testimony. This it patently did. (36 Cal. App. 511) Ex parte SCHWITALLA. (Cr. 597.) (District Court of Appeal, Second District, California. March 13, 1918.) CRIMINAL LAW 238-PRELIMINARY EXAMINATION-PROBABLE CAUSE-UNCORROBORATED ACCOMPLICE TESTIMONY. The uncorroborated testimony of an accomplice may be sufficient to establish probable cause for the magistrate's action in holding accused to answer for trial, and in committing him. 2. CRIMINAL LAW 238-PRELIMINARY EXAMINATION-UNCORROBORATED ACCOMPLICE TESTIMONY. While a defendant cannot be convicted upon the uncorroborated testimony of an accomplice, the testimony of an accomplice is sufficient to that defendant has been guilty of the offense make it appear that there is a "probability" charged. Application by Alexis M. Schwitalla for a writ of habeas corpus. Writ discharged, and petition remanded. Harry A. Chamberlin, of Los Angeles, for petitioner. Thomas Lee Woolwine, Dist. Atty., and Asa Keyes, Deputy Dist. Atty., both of Los Angeles, for respondent. JAMES, J. Habeas corpus. Petitioner asks to be discharged from the custody of the sheriff of Los Angeles county to which he was heretofore committed by a magistrate. A complaint in sufficient form, charging defendant with the crime of arson, was filed before the magistrate and after examthe order holding defendant to answer for ination had, at which testimony was taken, trial to the superior court was made and commitment issued. [1] One contention urged is that the evidence was insufficient to establish probable cause for the holding of the defendant. The principal evidence against the defendant was furnished by an accomplice in the alleged crime. This accomplice very fully narrated the acts which the defendant did and which were participated in by the witness, all of which showed that the fire was the result of a deliberate plan of the defendant. There was the further testimony of a witness who was not an accomplice, wherein it was shown that the defendant, some months prior to [4] The judgment provides for $700 attor- the time the building was burned, solicited ney's fees, which defendant objects is ex- the co-operation of that witness to the end cessive. Under the provisions of the note the that the building which was ultimately deduty of fixing a reasonable fee for plaintiff's stroyed should be set fire to. We are not attorney rested upon the trial court; and its prepared to concede, notwithstanding the judgment in that matter will not be disturbed holding made by the Supreme Court of Neunless its discretion has been abused. Berke- vada in Ex parte Oxley, 38 Nev. 379, 149 ley, etc., v. Miller, 23 Cal. App. 315, 137 Pac. Pac. 992, that the uncorroborated testimony 1101. The court's discretion does not seem of an accomplice may not be sufficient to esFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tablish probable cause. We think that it | 4. TRIAL may be sufficient. [2] While a defendant cannot be convicted upon the uncorroborated testimony of an accomplice, the testimony of an accomplice is admissible and is proper to be considered, and we think is sufficient to make it appear that there is a "probability" that a defendant has been guilty of the offense charged against him. Our Supreme Court, in People v. Cokahnour, 120 Cal. 253, 52 Pac. 505, held that the unsworn written confession of a defendant, which constituted the entire evidence submitted to the committing magistrate, was sufficient to justify an order determining that probable cause existed upon which the defendant was held to answer. See, also, Ex parte Heacock, 8 Cal. App. 420, 97 Pac. 77. And we may add that, to our minds, the testimony of the independent witness who gave evidence of the plan of the defendant to burn the building several months prior to the time the fire actually occurred furnished some corroboration, slight though it was, of the testimony of the accomplice. The writ is discharged, and petitioner remanded to the custody of the sheriff of Los Angeles county. 191(4)-INSTRUCTIONS-ASSUMP TION OF QUESTION IN ISSUE. by the husband, and his control of it, or any Instructions that the use of the property part of it, did not change its status from the wife's separate property, etc., and that the mere fact that the property was seemingly in the possession and apparent control of the husband did not estop the wife from claiming the stock, or deprive her of her separate property, were objectionable, as assuming the property was the separate estate of the wife, the question in issue. 5. TRIAL 260(6)-INSTRUCTIONS-REQUESTS -MATTERS COVERED. Where the court instructed that certain insurance money with which the property was purchased was the wife's separate property, and that, if the money was used by her to buy some or all of the property sued for, such property also became the wife's separate property, she could not ask for more as to such feature of the case, and her proposed instruction that the deposit of the insurance money by her in bank in her own name and the name of her husband was not a gift to him, unless she intended to give, could have been of no greater benefit to her. Appeal from Superior Court, Yuba County; Eugene P. McDaniel, Judge. Action by Mrs. Minnie Jolly against Chas. J. McCoy. From a judgment for defendant, plaintiff appeals. Affirmed. John M. Fulweiler, of Auburn, and E. Ray Manwell, of Marysville, for appellant. W. We concur: CONREY, P. J.; WORKS, H. Carlin, of Marysville, for respondent. Judge pro tem. (36 Cal. App. 479) JOLLY v. McCOY. (Civ. 1524.) (District Court of Appeal, Third District, California. March 11, 1918. Rehearing Denied by Supreme Court May 9, 1918.) 1. HUSBAND AND WIFE 131(1) · SHIP-BURDEN OF PROOF. OWNER In a wife's action against the sheriff for the conversion of personalty taken and sold under writ of execution pursuant to judgment rendered against her husband, the burden to prove her ownership of the property was upon plaintiff wife. 2. HUSBAND AND WIFE 262(1)--COMMUNITY OR SEPARATE PROPERTY-POSSESSION OF HUSBAND-PRESUMPTION-STATUTE. Where personalty was in the possession of the husband, and treated by him as though it were community or his own separate property, from the circumstances a disputable presumption follows, under Code Civ. Proc. § 1963, subd. 12, that such was its character. 3. APPEAL AND ERROR 1064(1)-HARMLESS ERROR-INSTRUCTION-"ACQUIRE." In a wife's action against the sheriff for the conversion of personalty under execution pursuant to judgment against her husband, the wife claiming the property was her separate estate, the instruction that in determining the question as to who was the owner the jury had a right to consider the manner in which the property was acquired and by whom, where it was kept, how it was handled, and by whom controlled, etc., though open to criticism as lying close to the line between law and fact, and being somewhat confusing, was harmless to plaintiff, since the word "acquire" has not only the meaning of to obtain as one's own, but also the meaning of "procure," in which sense the jury may have understood it. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Acquire.] BURNETT, J. The action was for damages for conversion of certain personal property of the alleged value of $1,871. The defendant is the sheriff of the county, and he justified his taking and sale of the property under a writ of execution issued in pursuance of a judgment rendered in the superior court of said county against A. Jolly, the husband of the plaintiff herein. The claim of appellant was and is that said property sold under said execution was her separate estate, and therefore not liable for the debts of the husband. Plaintiff, her husband, and their son all testified to facts from which the jury might legally have drawn the inference that her claim was just, and, if the verdict had been in her favor, we should have no hesitation in affirming it as amply supported. But the jury distrusted these witnesses, and it is apparent, also, that the trial judge was not convinced that they were entitled to full credit, as he denied the motion for a new trial. Since we have not had the witnesses before us, we cannot say that such attitude of the court and jury was unwarranted. Indeed, we may add that the printed record of their testimony reveals certain circumstances that tend to justify the suspicion with which their statements were undoubtedly received by the jury. These we need not stop to particularize. [1, 2] As to the support for the verdict, unless the jury believed the story told by said witnesses, it was their duty to find for the defendant, since the burden of proof was, but it seems rather objectionable as emphaupon the plaintiff. The peculiar province of sizing certain features that were developed the jury in such matters is fully considered by the testimony in the case. No doubt, reby this court in Clark v. Tulare Lake Dredg-spondent in his argument to the jury, laid ing Co., 14 Cal. App. 414, 112 Pac. 564, and particular stress upon the facts suggested in in this connection it is sufficient to refer to the instruction, and the peculiar phraseology that decision. Besides, the evidence showed thereof might be seized upon by the jury as that all of the property was in the possession an argument in favor of the defendant. In of said A. Jolly, and treated by him as other respects, also, the instruction is somethough it were community or his own sep- what confusing. The jury was directed "to arate property. From this circumstance, consider the manner in which said property the presumption-disputable, it is true was acquired and by whom." One meaning would follow that such was its character. Code Civ. Proc. § 1963, subd. 12. of the word "acquire" is to "obtain as one's own." An ultimate fact to be determined by the jury was really, "By whom was the property acquired?" The instruction, however, puts this ultimate fact upon the same footing as certain evidentiary matters, and The observation may not be out of place that fraudulent claims as to the ownership of property under similar conditions are often made, and the court or jury should scrutinize with care an asserted right, which directs the jury to consider this in connechas been quiescent until credit may have been extended on the faith that such right does not exist. No doubt such claims are sometimes genuine, and, where so established, they should be protected; but it is hardly to be expected that they will be regarded without some suspicion. We may add that, as to a portion of the property which plaintiff claims she obtained from her husband, the jury was justified in concluding that there was not an immediate delivery and continuous change of possession within the contemplation of section 3440 of the Civil Code. Upon the whole it cannot be said that the verdict of the jury lacks legal support. [3] Another question seriously argued arises over the action of the court in reference to the instructions. Most of them are unobJectionable, however, and therein were presented quite fully the legal principles bear-mon ing upon the theory of plaintiff as well as of defendant, and the general axioms that should be regarded by the jury in every case. The following, though, is somewhat open to criticism: "I instruct you that, in determining the question as to who was the owner of the property claimed by plaintiff herein at the time of the levy of the writ of execution therein by the defendant, you have a right, and it is your duty, to consider the manner in which said property was acquired and by whom, where it was kept, how it was handled, and by whom controlled, whether or not it was mingled with other property admittedly belonging to the husband of plaintiff, whether or not there was anything about the use, possession, or control of said property, or anything at all about the use, possession, or control of said property, or anything at all in connection with the property, to indicate that it belonged to any other person other than the husband of plaintiff, and all the facts and circumstances bearing upon the question, as the same is made to appear to you from the evidence; and if, from the consideration of all thereof, you are not satisfied by a preponderance of the evidence that said property was the separate property of plaintiff at the date of the levy of the writ of execution, your verdict should be in favor of defendant." tion with other facts, to determine who was the owner of the property; whereas it would seem to be true that, if they were satisfied as to who had "acquired" the property, that would be equivalent to a determination as to who was the owner. If the instruction had declared that in the determination of "who had acquired or owned the property the jury should consider the manner in which the property was obtained, where it was kept, how it was used, and whether mingled with other property of the husband," etc., there would be less ground for criticism. But it is fair to say that the word "acquired" has also the meaning of "procured," and it is not unreasonable to hold that the jury so understood it. Indeed, while we think the instruction is somewhat obscure and of doubtful propriety, the comunderstanding would probably accept it as a direction to consider the manner in which the property was procured and how it was used, with other circumstances disclosed by the evidence, in the determination of the ownership of the property. Besides, the other instructions were so clear and favorable to appellant that we are satisfied she suffered no prejudice in this matter. [4] Among certain instructions requested by the plaintiff and refused by the court was the following: "The use of the property by the husband, and his control of the same, or any part of said personal property of the wife, did not change the status of the property from the plaintiff's separate property, or make it liable to levy and sale to pay the debt of Jolly & Son, or either of them.' This was also refused: "The mere fact that the property was seemingly in the possession and apparent control of the husband does not estop the wife from claiming the stock, or in any wise deprive the wife of her separate property therein." Both instructions were objectionable in assuming that the property was the separate estate of the wife-the very question which the jury was to determine. If appelThe instruction lies close to the line be-lant had requested the court to instruct the tween law and fact. It is not strictly a jury that the mere possession, use, and condirection as to the weight of the evidence, trol of the property by the husband was not inconsistent with the ownership of the wife, | purchased with the insurance money. It or was not sufficient to transfer title, it is thus to be seen how exceedingly favorable would probably have been given. To say to appellant was the law presented by the that it "did not change the status of the court. property from the plaintiff's separate property" was, of course, to assume that it had such status. If the phrase "would not" had been used, the situation might be different. [5] Another instruction refused was this: "The deposit of the insurance money by the plaintiff in the bank in her own name and in the name of the husband was not a gift to him, unless she then intended to give the same absolutely to him; and it is the intent with which that deposit was made in the bank that must appear by a preponderance of the evidence to have been to divest herself of all interest in the mon: ey and make it the money of her husband, and so long as she held the bank book, and the control of the money, it could not in law be a gift to her husband.' The question of the intention of the wife to make a gift to the community or to her husband, and the consideration of the use and control of the property, were entirely eliminated, and the jury were expressly told that, if any of the insurance money was used to purchase any of said property, they must find it to be plaintiff's separate property and not subject to execution. Respondent might have some cause to complain of this instruction, but not so the appellant. While the case is not altogether free from difficulty, we think it cannot be said that the verdict is unjust. The judgment is therefore affirmed. (36 Cal. App. 503) TURNER v. WATKINS. (Civ. 2114.) It appears from the evidence without any question that plaintiff had received something over $2,500 as insurance money and had deposited it as suggested in said proposed instruction. It was the claim of appellant that with this money she purchased the property in controversy here, and, to (District Court of Appeal, Second District, Calimeet the possible conclusion that the money became community property by reason of the form of the deposit, the instruction was re quested. The court, however, virtually instructed the jury that the money was the separate property of the wife, and also: "That if this money thus received by plaintiff was by her or under her instructions used to buy some or all of the personal property described in the complaint, then such personal property, thus purchased, became and was her separate property, and was not liable to levy and sale to pay the debts of her husband, A. Jolly & Son, Raphael Jolly, or that of either of them." fornia. March 12, 1918.) 1. PLEADING 122-ANSWER-SUFFICIENCY. In action for commission for furnishing one ready to exchange land, affirmative allegations in answer that the exchange was not "consummated," that defendant was at all times ready to exchange and failure was not his fault, and. that the deal fell through because of misrepresentations of the broker, did not amount to a traverse of anything averred in the complaint, and where the denial was insufficient, the court properly required the defendant to go forward at the opening of the trial with his affirmative 3. BROKERS 51 defenses. - EXCHANGE OF LANDS "CONSUMMATE. Where broker agrees to "consummate" an exchange of land within 30 days, he has done his part by bringing the parties together so that his principal could have carried through the deal in such time. As a matter of law, therefore, the court instructed the jury that under the evidence this money was the separate property of the plaintiff. She could not ask for more as to this feature of the case, and the proposed instruction could have been of no greater benefit to her. Indeed, it is quite apparent that, since the court instructed the jury that this insurance money was the separate property of the wife, and, that, if she used it in the purchase of any of the property in controversy, that property was also her separate property and not liable for the debts of her husband, it left only one question for the jury to determine and that is whether she so purchased it. If they believed she did purchase it with said money, under this instruction of the court, they must have found for the plaintiff, notwithstanding any possession, use, or control by the husband. It appears clear, therefore, that no specific instruction as to a change of title by virtue of the use of the property could have been of any avail to appellant, and also that the Action by E. C. Turner against Roy S. instruction given on behalf of respondent, to which we have adverted, could only have Watkins, administrator of the estate of W. been considered by the jury in deciding C. Watkins, deceased. Judgment for plainwhether any of the property was actually tiff, and defendant appeals. Affirmed. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Consummate; Consummated Sale.] 4. BROKERS 86(7)-EXCHANGE OF LANDSCOMMISSION-SUFFICIENCY OF EVIDENCE. In action by broker for furnishing one ready to exchange lands, evidence held sufficient to sustain finding that deal did not fall through by reason of false representations of the broker. Appeal from Superior Court, San Diego County; T. L. Lewis, Judge. |