(49 Cal. App. 589)

(193 P.)

PEOPLE v. TAYLOR. (Cr. 921.) (District Court of Appeal, First District, vision 1, California. Oct. 16, 1920.) 1. Criminal law 1159 (4) Evidence held sufficient to sustain conviction.

The jury had also before it certain facts and circumstances which cast much doubt upon the truth of the statements made by the ac

Di-cused and his supporting witnesses. Some of these facts and circumstances may be briefly referred to:

In a prosecution for rape on a girl of the age of 13, the appellate court will not reverse a conviction, although the story of the complaining witness on the record seemed to be rather improbable.

The defendant produced as one of his witnesses a colored woman named Reeves, who testified very strongly in his favor, stating that she was stopping in the defendant's house at the very times when the several acts of intercourse, according to the complaining witness' story, were committed; that she occupied the bed in which the complaining witness also slept, and from which the accused An appellate court cannot substitute its called her to his own bed in the adjoining judgment for that of the jury, or for that of room for the purpose of committing the crimthe trial court, expressed in denying defend-inal acts complained of; and that no such

2. Criminal law 1160-Appellate court cannot substitute judgment for that of jury and trial court.

ant's motion for a new trial.

occurrences as those to which the complain

Appeal from Superior Court, Alameda ing witness testified ever took place. The County; J. J. Trabucco, Judge.

importance of this witness and her testimony to the accused is apparent, and yet the record

David G. Taylor was convicted of rape, and shows that upon his preliminary examination, he appeals. Affirmed.

J. N. Young and P. A. Fontaine, both of Oakland, for appellant.

U. S. Webb, Atty. Gen., and John H. Riordan, Deputy Atty. Gen., for the People.

wherein he and his son and daughter testified fully, no mention was made by any of them of the presence of this vital witness in his house at the very time the acts complained

of were alleged to have been committed. The entire omission of any reference to this witIness by the defendant and his other witnessRICHARDS, J. This is an appeal from a judgment of conviction of the defendant upon es at the time of the preliminary examinathe charge of rape. The sole point urged by tion, if she was where she testified she was the appellant is that there was no sufficient upon the trial of the case, called for a credevidence to justify the verdict against him ible explanation, and the attempt of the acor the judgment rendered thereon. In sup-cused to explain away this omission was port of this contention the appellant quotes lame and unsatisfactory to a degree that largely from the evidence in the case, which would have justified the jury in believing that he insists sustains his claim that he was con- her story, related upon the trial, was a tissue victed upon the unsupported testimony of the of falsehoods. complaining witness, who not only related an improbable story, and one which was unsupported by the facts and circumstances surrounding the alleged rape, but was contradicted by strong and clear testimony in favor of the defense.

Again, a letter was produced at the trial, purporting to have been written by the defendant to the mother of the complaining witness after the condition of the latter became known, showing solicitude for his own safety and expressing a willingness to marry the We do not deem it necessary or profitable girl. While it is true that this letter also to relate in detail the sordid story which the contains a denial of any improper relations complaining witness, a colored girl of the age with the daughter, it is such a letter as apof 13 years, has told with respect to her rav-parently required some explanation as to the ishment by the defendant, who is also of col- circumstances under which it was written. ored extraction and of the age of 54 years at The defendant testified that he did not write the time of the trial. The story which the the letter himself, but gave its substance in complaining witness related upon said trial, a dictation to his daughter, who wrote and it must be conceded, appears to be quite im- signed the letter on his behalf, and that he probable upon the face of the record present- did not instruct her to insert the clause in the ed to us; but the jury in the case saw both letter expressing his willingness to marry the the accused and the complaining witness, girl. This letter was produced upon the trial, his accuser, and heard the stories told by and in connection with it there were also proeach, and also saw and heard the witness- duced certain exhibits in the handwriting of es whom the defendant produced to sup- the son of the accused. A comparison of these port his denials of any criminal intercourse exhibits with the letter shows indubitably with the complaining witness, and whose that the letter in question was written by statements, if believed, would render not only the defendant's son, and not by his daughter, improbable, but practically impossible, the as testified to by him, and also by the daughstory which the complaining witness related. ter. Why the defendant and his witnesses

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

Appeal from District Court, Beckham County; Frank Mathews, Judge.

sought so studiously to becloud the author- [ not properly part of the record, and cannot ship of this letter may not be very clear; but be presented to this court by transcript. one thing is clear, and that is that their stories with reference to its origin and authorship are false. The jury, perceiving this, may well have made application of the instruction given them by the trial court to the effect that, if they believed a witness to have sworn falsely in any material part of his testimony, he was to be distrusted in other parts of it.

[1, 2] There are certain other particulars, not necessary to be detailed, wherein much doubt was thrown upon the truth of the testimony offered by the accused and his witnesses; and this leaves the case in a condition where, conceding the story of the complaining witness to be, upon the cold record before us, rather improbable, it is not such a story as we are prepared to say was unbelievable; and, this being so, since the jury with all of the parties before it believed her story, and disbelieved the contradicting testimony of the accused and of his witnesses, we are unable to say that the evidence was insufficient to warrant his conviction. To do so would be to substitute our judgment for that of the jury, and for that of the trial court expressed in denying the defendant's motion for a new trial, and this, under the jurisdiction upon appeal committed to us, we have no authority to do. People v. Fitzgerald, 138 Cal. 40, 70 Pac. 1014; People v. Burke, 18 Cal. App. 80, 122 Pac. 435; People v. Preston, 19 Cal. App. 685, 127 Pac. 660.

Judgment affirmed.

We concur: Judge pro tem.

(80 Okl. 19)

Action by Jennie Edgerly against Tom R. Johnson and others. Judgment for defendants, and plaintiff appeals. missed. Appeal dis

J. M. Bishop, of Elk City, for plaintiff in

error.

T. R. Wise, of Sayre, and C. S. Gilkerson, of Elk City, for defendants in error.

KANE, J. Defendants in error filed motion to dismiss on the ground that the casemade was signed and settled in the absence of the defendant in error and his counsel, and without notice to them of the time and place of such settlement. To this motion no response has been filed.

[1] On April 26, 1918, defendants in error were served with notice that the case-made would be presented to the trial judge for settlement and signature on the 1st day of May, 1918, at 10 o'clock a. m. "or as soon thereafter as counsel can be heard." No further notice of settlement was served on defendants in error. It is shown that the casemade was signed and settled on the 6th day of May, 1918, in the absence of defendants in error and their attorneys, and no amendments were suggested thereto by defend

ants in error.

The rule is well settled that where it does not appear from the record or otherwise that the defendant in error was present, either WASTE, P. J.; BEASLY, in person or by counsel, at the settlement, or

EDGERLY V. JOHNSON et al. (No. 10140.) (Supreme Court of Oklahoma. Aug. 10, 1920. Rebearing Denied Dec. 14, 1920.)

(Syllabus by the Court.)

that notice of the time thereof was served or waived, or that amendments were suggested, a case-made so settled and signed was 53 Okl. 528, 157 Pac. 284; Globe Surety Co. a nullity. Sand Springs Ry. Co. v. Oliphant, v. First State Bank of Hewett, 57 Okl. 427, 157 Pac. 316; Wood v. King, 49 Okl. 98, 151 Pac. 685; Southwestern Surety Co. v. Going, 48 Okl. 460, 150 Pac. 488.

The errors assigned are that the court err

1. Appeal and error 568-Notice held noted in overruling the motion of plaintif in to authorize signing and settlement of casemade after day specified, and in absence of defendant in error.

A notice to defendant in error that casemade would be presented to the trial judge for signing and settlement on May 1, 1918, at 10 o'clock a. m., "or as soon thereafter as counsel can be heard," is not sufficient to confer authority upon the trial judge to sign and settle the same on the 6th day of May, in the absence of the defendant in error.

2. Appeal and error 516-Trial motions and exceptions to rulings thereon are not a part of the record.

Motions presented to the trial court, the rulings thereon, and exceptions thereto, are

error for a new trial; that the court erred in refusing and ruling out competent evidence on the part of the plaintiff in error; and that the court erred in sustaining defendant's demurrer to the evidence introduced by plaintiff in error. These matters are not part of the record in the trial court, and cannot therefore be considered on transcript.

[2] Motions presented to the trial court, the rulings thereon, and exceptions thereto, are not properly part of the record, and cannot be presented to this court by transcript. Williams v. Kelly, 176 Pac. 204; Lawton Grain Co. v. Brunswig, 179 Pac. 465.

(193 P.)

For the reasons stated, the motion to dis- county court of said county on the judgment miss is sustained. in the case in which said bond was given, and that said defendant was kept in the

RAINEY, C. J., and HARRISON, HIG- jail five or six days, and was permitted to GINS, and BAILEY, JJ., concur.

(80 Okl. 20)

ANDREWS et al. v. STATE ex rel.

SAYE, Co. Atty. (No. 9734.) (Supreme Court of Oklahoma. Oct. 12, 1920. Rehearing Denied Dec. 14, 1920.)

(Syllabus by the Court.)

depart therefrom by the sheriff's force of said county, or that they turned him out. The court excluded this evidence, and its action in this respect is the principal assignment of error. This evidence would doubtless have authorized the court in which the forfeiture was taken to discharge the forfeiture, but such a defense was not available in an action on the bond, for it has been repeatedly held in this jurisdiction that the final order of the trial court, declaring a forfeiture of a bail bond, cannot be col

Bail 77 (2)-Final order forfeiting bail bond cannot be collaterally attacked in action laterally attacked in a subsequent action

against principal and sureties.

The final order of the trial court, declaring a forfeiture of a bail bond cannot be collaterally attacked in a subsequent action against the principal and sureties on the bond. Pitchford, J., dissenting.

against the principal and sureties on the bond. State v. Hines et al., 37 Okl. 198, 131 Pac. 688. Ann. Cas. 1915B, 431; Hines et al. v. State, 39 Okl. 638, 136 Pac. 592; Edwards et al. v. State, 39 Okl. 605, 136 Pac. 577.

In Edwards et al. v. State, supra, the sureError from District Court, Jefferson Coun- ties offered to prove by parol testimony that ty; Cham Jones, Judge.

Proceedings by the State, on the relation of Ben F. Saye, County Attorney of Jefferson County, against Brooks Andrews and anothJudgment for plaintiff, and defendants bring error. Affirmed.

er.

W. D. Hereford, of Oklahoma City, and Bridges & Vertrees, of Waurika, for plaintiffs in error.

Ben F. Saye, Co. Atty., of Waurika, for de fendant in error.

RAINEY, C. J. The state of Oklahoma, as plaintiff, obtained a judgment in the district court of Jefferson county in the sum of $500 on a forfeited appeal bond against the defendants H. D. Anderson, as principal, and Brooks Andrews and Bert Tucker, as sureties, from which the defendants Andrews and Tucker have appealed to this court.

The defendant Anderson was convicted in the county court of Jefferson county of maintaining a gambling house, from which judgment he appealed to the Criminal Court of Appeals of this state. For the purpose of staying execution he executed the supersedeas bond on which this action was brought and judgment rendered. He failed to perfect the appeal within the time provided by law, and on the 3d day of February, 1917, a forfeiture was taken against him and the sureties named on the appeal bond.

The defendants Andrews and Tucker offered to prove by witnesses Ad Wilson and Jim Roche that Anderson was taken into custody by the sheriff of Jefferson county, and placed in the county jail of said county, some time in the month of June, 1916, by virtue of a commitment issued out of the

the principal voluntarily surrendered himself to the sheriff of Okfuskee county prior to the entry of the default on the bond, and that the sheriff had taken him into custody. With reference to this defense, Galbraith, commissioner, speaking for the court, said:

"It does not appear from an examination of the record in this case that the plaintiff in error appeared in the county court when the forfeiture of the bonds was taken, or after

wards made application to that court to vacate or set aside the forfeiture, or made any effort in that court to relieve himself from the consequences of the forfeiture. He seemed to have remained passive until after action was commenced in the district court, when he attempted to show as a defense, by oral testimony, a surrender of the principal. This could not avail him as a defense in such action. He might have secured his discharge by complying with the provisions of the statute above quoted, by proper steps taken in the county court. That he did not do this seems to have been his own fault, and he should not now complain of the result."

We have not overlooked the decision in the case of State v. Herber, 173 Pac. 651, L. R. A. 1918F, 396, wherein it was held that it was sufficient defense to an action upon a criminal appeal bond for the bondsmen to show that the principal in the case, subsequent to the execution of the bond, had been convicted on another criminal charge and confined, pursuant to the judgment of said court, in the state penitentiary, thereby preventing said principal from appearing and the bondsmen from producing him in court to submit to the judgment in the case wherein the appeal bond was given. This statement of the law is not accurate and is in conflict with all the other cases in this juris

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

evidence not reversible error unless causing miscarriage of Justice.

A cause will not be reversed for error in

the admission of evidence where it does not appear to the court, after an examination of the entire record, that the error complained of has probably resulted in a miscarriage of justice.

diction above cited. The opinion is correct | 4. Appeal and error 1170(7)—Exclusion of in holding that the facts therein set out would excuse the bondsmen from producing the defendant in court as required by the bond, but it failed to state that the proper and only way in this jurisdiction to relieve the bondsmen under such circumstances was to apply to the court adjudicating the forfeiture to have it set aside, and that such defense could not be made in a collateral attack on the bond. The error in the opinion is easily explained by the fact that the manner of the attack does not appear to have been raised in that case in the trial court,

nor does it appear to have been raised or considered in this court. Where a judgment is attacked in a collateral proceeding, and the adverse party waives the form of attack, and issues are determined by a court of competent jurisdiction, such determinaton is binding and conclusive on the parties, for the reason that the general rule against collateral attacks on judgments is one of public policy and convenience which the parties for whose benefit it exists may waive.

The judgment is therefore affirmed.

HARRISON, JOHNSON, HIGGINS, and BAILEY, JJ., concur.

PITCHFORD, J., dissents.

(80 Okl. 9)

BOATMAN v. COVERDALE.

(No. 9689.)

5. Trial 156(3)-Truth of evidence admitted by demurrer thereto.

A demurrer to the evidence admits the

truth of all the evidence adduced and all facts which the evidence tends to establish, as well

as every fair and reasonable inference to be drawn therefrom.

RAINEY, C. J. In a replevin action in the district court of Oklahoma county, N. W. Coverdale, as plaintiff, recovered judgment against J. H. Boatman, as defendant, for the possession of a certain Haynes automobile, or its value, in the sum of $750. A jury was waived and the cause was tried to the court. The defendant Boatman, as plainRequisites of judicial tiff in error, appeals from the judgment

(Supreme Court of Oklahoma. Sept. 14, 1920. Rehearing Denied Dec. 7, 1920.)

(Syllabus by the Court.)

In order for a court to take judicial notice of a matter, it must be of common and general knowledge within the limits of the jurisdiction of the court, and must be well estab

lished and authoritatively settled.

2. Evidence 20(2)—No judicial notice of arrival and departure of trains at particular place.

The schedule time of the arrival and departure of trains at a particular place is so variable that courts will not take judicial no

tice thereof.

aforesaid. Plaintiff based his title upon a bill of sale to the automobile from his brother Thos. W. Coverdale, and defendant based his right of possession on account of an alleged lien on the car for a debt owing him by Thos. W. Coverdale.

[1-4] The first assignment of error is that the trial court erred in overruling defendant's motion to suppress the deposition of Thomas W. Coverdale, on the ground that sufficient notice was not given for the taking of the deposition and because of alleged irregularities of counsel at the time of the 3. Depositions 65-Where party is denied taking of said deposition in denying the deright to cross-examine, testimony in chief fendant the right of cross-examination of is inadmissible. said witness. The notice to take the deposiWhere a party, in the taking of a deposition was served upon the attorney for defendtion, is deprived of the right of cross-examina- ant in Oklahoma City on February 13, 1917, tion on account of the fault of the opposite and recited that the deposition was to be party or his attorney, the testimony given in taken in Kansas City, Mo., on February 16, chief should not be admitted. The law, however, is satisfied where a party has been given 1917, at 8 o'clock a. m. sufficient notice of the time and place of the taking of the deposition and is given a reasonable opportunity for cross-examination.

Section 5079, Rev. Laws 1910, requires that the notice to take depositions shall be served so as to allow the adverse party sufficient

(193 P.)

time, by the usual route of travel, to attend, defendant to Kansas City, and it further apand one day for preparation, exclusive of pears that the defendant arrived there on Sunday and the day of service. No evidence the 15th, and no reason was shown why was offered as to the schedule time of the de- he did not make arrangements with an attorparture of trains from Oklahoma City and ney either on the 15th or the morning of the their arrival in Kansas City; but counsel 16th to represent him at the taking of the for plaintiff in error insist that the trial deposition, which actually commenced on court, and this court, will take judicial no- the afternoon of the 16th; nor after the taktice of such time, and that when so taken it ing of the deposition commenced did he ask will appear that the time provided by the that the examination be discontinued until above statute was not allowed. This con- his counsel came, or until he could arrange tention cannot be sustained for the reason for counsel. that judicial notice will not be taken of the usual time of the arrival and departure of trains at a particular place. It is a matter that should have been proved at the trial. Wiggins v. Burkham, 77 U. S. 129, 19 L. Ed. 884; Pearce v. Langfit, 101 Pa. 507, 47 Am. Rep. 737; 15 R. C. L. 1121. In order for a court to take judicial notice of a matter, it must be of common and general knowledge within the limits of the jurisdiction of the court, and must be well established and authoritatively settled. The schedule of trains is so variable as not to bring their time of arrival and departure within the rule of judicial notice. Moreover, if a train leaves Oklahoma City at 7:25 in the evening for Kansas City and arrives there the following morning at 8 o'clock (as stated in the brief of counsel for plaintiff and not disputed in the brief of counsel for defendant), the defendant had one full day for preparation and one full day for travel. Neither the 13th, 14th, 15th, or 16th of February, 1917, fell on Sunday.

With reference to the defendant having been denied the right of cross-examination when the deposition of Thos. Coverdale was taken, the record shows that, shortly after this witness was examined and had been excused, one Mr. Finis Rosenberg appeared with the defendant Boatman and stated that he had been employed by the latter to represent him in the taking of the deposition and asked permission to cross-examine the witness, whereupon Mr. O. G. Briley, attorney for the plaintiff, refused to consent to the witness being cross-examined at that time and stated that during the examination of Coverdale the defendant voluntarily absented himself from the taking of the deposition and was not present when the examination was concluded either in person or by his attorney. Mr. Rosenberg then supplemented his statement by saying that the defendant absented himself during the examination of Coverdale from the place where the deposition was being taken for the purpose of consulting his attorney, whose office was directly across the hall, and the taking of the deposition was concluded while he was in conference with his said attorney.

It appears that the defendant's attorney in Oklahoma City, on whom the notice to take the deposition was served, did not accompany the

We agree with counsel for defendant that, if defendant had been deprived of the right of cross-examination by reason of the fault of the opposite party or his attorney, the testimony given on examination in chief should not have been admitted, but from the .circumstances above related we cannot say that such was the case. At least, all the circumstances surrounding the refusal of the cross-examination were before the trial court and from these circumstances we cannot say that the court erred in refusing to quash the deposition. The law is satisfied when a party has been given sufficient notice of the time and place of taking the deposition and has been afforded a reasonable opportunity for cross-examination.

Complaint is made that the court committed reversible error in the admission of the testimony of the plaintiff Coverdale as to the value of the automobile in controversy. It is unnecessary for us to make specific reference to this testimony, for the reason we have examined all the evidence in the record relative to the value of the car, and after an examination of the entire record, as required by section 6005, Rev. Laws 1910, we cannot say that the error, if any, in its admission resulted in a miscarriage of justice. On the other hand, the competent testimony exclusive of that complained of reasonably tends to show that the value of the car was at least $750, as found by the trial court.

[5] Under the third assignment of error it is contended that the court erred in refusing to sustain a demurrer to plaintiff's evidence. This assignment, we think, is without merit, for the reason that plaintiff's testimony reasonably tends to prove that he was the owner of the automobile in controversy at the time of the institution of the action, and that he was entitled to the immediate possession thereof. It is not error for the court to overrule a demurrer to the evidence when the same with every fair and reasonable inference to be drawn therefrom is sufficient to support a verdict for the plaintiff.

[6] Under the fourth assignment of error it is contended that the judgment of the trial court is wholly unsupported by the law and the evidence. It was the defendant's contention that Thos. Coverdale was indebt