(32 Cal. App. 476)

Ex parte CHAMBERS. (Cr. 384.) (District Court of Appeal, Third District, California. Jan. 3, 1917.)

1. CRIMINAL LAW 228-PRELIMINARY EXAMINATION-TIME.

While the statute does not prescribe the time within which the preliminary examination must be begun after information is filed before the committing magistrate, its letter and spirit is opposed to a delay of nearly five months.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 477.]

2. HABEAS CORPUS 30(2)-GROUNDS OF RELIEF-DEFECTIVE INDICTMENT.

An application for a writ of habeas corpus involves the question of jurisdiction, and one held in custody under a bench warrant issued on an indictment which is sufficient to give the court jurisdiction to try the offense is not entitled to the writ, though the indictment is verbally defective so as to be subject to demurrer. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 25.]

3. INDICTMENT AND INFORMATION

159(3)

AMENDMENT OF INDICTMENT-STATUTE. Under Pen. Code, § 1008, providing that an indictment may be amended by the district attorney where it can be done without prejudice to the substantial rights of the defendant, but cannot be amended so as to change the offense charged, a district attorney can amend an indictment charging perjury which alleged that defendant falsely testified that a note was made January 15th or 22d, by adding allegations that it was material to know when the note was made, and that in fact it was made February 5th. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 513.]

Application by Margaret Chambers for a writ of habeas corpus. Application denied, and petitioner remanded.

Ben Berry and D. P. Eicke, both of Stockton, for petitioner. E. P. Foltz, Dist. Atty., and C. P. Rendon, Deputy Dist. Atty., both of Stockton, for respondent.

As to the other process we have this contention:

On October 24, 1916, petitioner was indicted for perjury. Upon arraignment, November 20, 1916, a demurrer was interposed, one point being that, while the indictment charged the making of certain false statements, there was no sufficient averment of what the real facts were. The demurrer was sustained, and the court made an order granting the district attorney leave to amend by November 21, 1916. at 10 o'clock a. m. "This was not an order or the equivalent of an order that the case be resubmitted to another grand jury. Ex parte Williams, 116 Cal. 512, 48 Pac. 499; Ex parte Hayter, 16 Cal. App. 211, 116 Pac. 370. But whether it may be considered the equivalent of an order or not, it was not submitted to another grand jury, and the demurrer having been sustained, the prosecution was at an end (P'en. Code, § 1000; Ex parte the amendment authorized by the court was one Williams and Ex parte Hayter, supra), unless provided by statute. In pursuance of the order, the district attorney filed what purported to be an amended indictment on November 21, 1916, which indictment was not found or presented by a grand jury, but prepared, presented, and filed by the district attorney, and which indictment differed very materially in substance from the indictment to which a demurrer had been sustained."

The said difference, it is claimed, arises from the allegation in the amended indictment that a certain note was written and delivered on February 5, 1916, and that it was material to know the date of its execution and delivery.

[1] We deem it unnecessary to decide whether said warrants issued by the justice of the peace became inoperative and void by reason of the failure and refusal to bring on the preliminary examination. We may remark, however, as to this, that while the statute does not prescribe the number of days after the information is laid before the ap-liminary examination must be begun, yet committing magistrate within which the preboth in letter and spirit it is opposed to such has often been said, and it will probably be unreasonable delay as occurred herein. It advisable many times to repeat it, that a guaranteed by the Constitution and statutes person charged with crime has certain rights that even a district attorney is bound to respect. No one should be detained in prison indefinitely or capriciously in order that a

BURNETT, J. In the return to this plication for a writ of habeas corpus appear three warrants of arrest in proper form which it is claimed by the sheriff of San Joaquin county justify his detention of petitioner. The first two were issued by a jus

tice of the peace, based upon verified complaints charging two separate offenses of perjury, and the third is a bench warrant upon an indictment, also for perjury, found by the grand jury of said county.

As to the warrants issued by the said justice, the contention of petitioner is as fol

lows:

cumstances arise that will justify a trial case may be developed in the future or cirand probably afford sufficient ground for conviction. The interests of society do not demand and the rights of the individual forbid such invasion of personal liberty.

[2] But, passing the foregoing consideration, we may say that we find no ground for affirming the invalidity of the said bench warrant.

"No preliminary examination has been held upon either charge, neither does it appear that the officers whose duty it is to conduct such preliminary examination intend to hold a preliminary examination upon either charge, as 4 months and 20 days have elapsed since petitioner was deprived of her liberty upon said charges, during which time she has repeatedly requested that preliminary examination be held, all of which requests have been ignored. While such process was at first lawful, she has certainly become entitled to a discharge by reason of the failure of the officers to follow the plain mandate of the or

The scope of the writ of habeas corpus is familiar, and we need not describe it further than to state that the application for the writ involves, of course, in one form another, the question of jurisdiction.

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

Herein we think it must be held that there is no lack of legal authority as to any of the proceedings or process by virtue of which petitioner's detention is sought to be justified. The warrant itself is regular and within the provisions of the statute. Indeed, its sufficiency is not assailed or questioned. It is not denied that the indictment constituting the basis for said warrant was found as the law requires. Said indictment undoubtedly stated a public offense of which the superior court had jurisdiction. Without any doubt, the crime of perjury is therein set forth. We deem is unnecessary to set forth its averments; as it is not seriously claimed that any essential element of said crime was omitted. The objections raised to said indictment relate rather to the phraseology than to any substantial defect, and they do not present any question of jurisdiction.

to the effect that under said section 1008
the district attorney has no power to amend
an indictment or information in matters of
substance, but only as to matters of form.
In that case, it may be observed, it was held
that "an amendment to an indictment *
by merely changing the date in a specified
month as to the commission of the offense
could not be prejudicial to the defendant,"
and was permitted by said statute.

There is certainly as much reason for holding that the district attorney here did not exceed the limitations imposed by said section of the law. It may be said also that several cases from other jurisdictions approving much more serious amendments are cited by respondent, but it is not deemed advisable to refer to them specifically. But if we concede that the district attorney has added more than the law allows, it does not [3] So far there is nothing to indicate any follow that petitioner is entitled to her disillegality in petitioner's incarceration. A charge. It would be simply a case of error, demurrer was interposed to said indictment, and not of an entire want of jurisdiction, both general and special. It was sustained, to be corrected in the court below or rethe court holding that there was not a suffi-viewed on appeal. cient averment of "what the true facts are." It also appears that the court made a further order granting the district attorney leave to file an amended indictment by November 21, 1916, at 10 o'clock a. m. This proceeding was and is warranted also by the statute. Section 1008 of the Penal Code provides that:

The district attorney did file an amended indictment almost identically the same as the original, but adding, as we have seen, the averment that it was material to know whether the note set out in the indictment was written on January 15th or January 22d, and the further averment that it was written February 5th. But the offense was not changed. The amendment constituted, at most, an additional specification of the perjured testimony, and could not have prejudiced the substantial rights of the accused. In fact, the amendments simply made the indictment more certain in the respect indicated. In the original it does at least inferentially appear that it was material to know whether said note was written on January 15th or 22d, and there can be no objection to the addition that it was written on February 5th, since it appears by proper averment that she falsely testified that it was written on January 15th or 22d, and the effect of the amendment is simply to fix the actual date more definitely. The case falls, indeed, within the rule announced in People

We may repeat: The jurisdiction for the arrest and detention of petitioner, having existed by virtue of a valid indictment, was not lost or affected by reason of an amended indictment charging the same offense, though in somewhat amplified form. The warrant was therefore continued in force as a legal process and justifies the sheriff in holding said petitioner. Ex parte Williams, supra, and Ex parte Hayter, supra, the two cases principally relied upon by the applicant, arose when said section 1008 made no such provision for an amendment to the indictment or information. This. was added by the statute of 1911 and approved March 22d of that year. Prior to said amendment,

the section read:

"If the demurrer is allowed, the judgment is final upon the indictment or information demurred to, and is a bar to another prosecution

unless the court, being of the opinion lowed may be avoided in a new indictment or inthat the objection on which the demurrer is alformation, directs the case to be submitted to the same or another grand jury, or directs a new information to be filed."

In each of said cases a demurrer was sustained, and no such order was made by the trial court, and it was therefore held by the higher tribunal that under the express provisions of the statute the prosecution was at an end, and therefore the defendant was entitled to be discharged.

In the Williams Case the demurrer was sustained in 1897 and in the Hayter Case on January 28, 1911. It is apparent, therefore, that these cases are not controlling here.

There seems to be no warrant for holding that the writ should issue, and the application is denied, and the petitioner remanded.

(32 Cal. App. 481)

engaged in the work of sacking and handling HARTFORD ACCIDENT & INDEMNITY pulverized grain for his employer. We think CO. v. INDUSTRIAL ACCIDENT COM- this evidence was sufficient to warrant the MISSION et al. (Civ. 2080.) Commission in arriving at its aforesaid conclu

(District Court of Appeal, First District, Cal- sion, and, this being so, we have no power to interfere with its discretion in making said award.

ifornia. Jan. 4, 1917.)

MASTER AND SERVANT 405(4)-INJURIES TO
SERVANT-RIGHT OF REVIEW.

Evidence held to warrant a finding by the Industrial Accident Commission that a servant engaged in sacking pulverized grain contracted actinomycosis, an affection of the nose and mouth, by reason of his employment, and so a writ of review was properly denied.

Petition by the Hartford Accident & Indemnity Company for a writ of review against the Industrial Accident Commission, and others, to review an award of compensation to H. A. Burris, an employé. Applica

tion denied.

E. A. Ingalls and H. L. Clayberg, both of San Francisco, for petitioner. Chris. M. Bradley, of San Francisco, for respondents.

The application for the writ is denied.

(32 Cal. App. 423) LEUTHEUSER v. SILENT. (Civ. 1797.) (District Court of Appeal, Second District, California. Dec. 28, 1916.)

1. CONTRACTS 335(2)-ACTION FOR BREACH -COMPLAINT VALUE OF WORK DONE.

A complaint on an express contract to dig a well at a certain price per foot, and to case, perforate, and sand-pump it, so as to leave it in condition for the installation of a pump, which alleged that the well was dug, but that defendant refused to permit the other work to be done, and did not allege the reasonable value of the work done, is insufficient, since the price fixed in the contract included work not done, so that it could not be the measure of recovery.

[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1664-1676.]

2. APPEAL AND ERROR 878(2)—QUESTIONS PLEADED-NECESSITY OF CROSS-APPEAL.

On appeal by defendant from a judgment for plaintiff on a count alleging an express contract, the granting of a nonsuit by the trial court on two counts for reasonable value of work done cannot be reviewed, in the absence of an appeal therefrom by plaintiff.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3573.] 3. APPEAL AND ERROR

PER CURIAM. The petitioner herein presents the entire record of the proceedings before the Industrial Accident Commission, from which it appears that one H. A. Burris was, during the months of October, November, and December, 1915, in the employ of the Perkins Grain & Milling Company, of which this petitioner is the insurer, and that while so employed in the work of grinding and sacking wheat and barley for feed, and while actively engaged in filling sacks of such pulverized grain from the spout of the grinding mill, said Burris became afflicted with an affection of the nose and mouth, which was diagnosed as actinomycosis, from which he suffered partial disability, and for compensa-peals. tion, on account of which he filed his claim before the Industrial Accident Commission. Upon the hearing thereon the chief issue presented was as to whether the applicant for compensation had suffered any injury arising out of and in the course of his employment.

1002-REVIEW

VERDICT-CONFLICTING EVIDENCE. The determination of the jury, regarding matters as to which there was a conflict of evidence, cannot be reviewed by the Court of Ap

[Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. §§ 3935-3937.]

Appeal from Superior Court, Los Angeles County; Louis W. Myers, Judge.

Action by J. Leutheuser against Charles Silent, in which Elizabeth Leutheuser, as administratrix, was substituted as plaintiff. Judgment for the plaintiff, and defendant appeals. Reversed, with directions.

The evidence taken upon this issue was that of expert witnesses as to the nature and causes of actinomycosis, and as to whether it was or could be conveyed by grain to the hu- Frank J. Thomas, Edwin A. Meserve, and man organism. Upon this subject the testi-Irving M. Walker, all of Los Angeles, for mony of the physicians was in conflict, as appellant. Harry William Elliott, of Corina, were also the medical treatises upon which for respondent. they respectively relied for their opinions. The Commission resolved this conflict in opinion and authority in favor of the applicant for compensation by its finding that "the applicant's employment in and about the handling of grain caused him to contract the disease known as actinomycosis." The evidence in support of this finding consists, not only in the opinion evidence of the physicians who treated the applicant and diagnosed his case, but also in the testimony of the applicant himself that he had not theretofore suffered from any such disorder, but that it had become acutely developed whilst he was

JAMES, J. Plaintiff in this action sued to recover for services alleged to have been performed for the defendant in drilling a water well. The jury in the case found a verdict in his favor, upon which judgment was entered. Motion for a new trial being denied, this appeal was taken from the judgment and also from the order denying that motion. The appeal is presented on the judgment roll and a bill of exceptions.

[1] In plaintiff's complaint three alleged causes of action were set up; the first upon an express contract, the second and third

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 163 P.-15

"Where a variance has occurred in the performance of a specific contract, under such cirtain an action on the implied promise to pay cumstances as still enable a plaintiff to mainthe reasonable value of the work actually done, and the contract, so far as it has been performcontained, the contract may ordinarily be ined in accordance with the specifications therein troduced as evidence of value."

The controversy involved in the case cited wit: In 54 Cal. 605; 63 Cal. 198; 76 Cal. was before the court on several appeals, to

In

for the reasonable value of work perform- | the price per foot agreed upon, from the top ed. At the conclusion of plaintiff's testi- of the well to the bottom. Necessarily it mony, a nonsuit was granted as to the sec- would be presumed that the work of perfoond and third causes of action. In the first rating and sand-pumping the well and putcause of action it was alleged that the agree- ting the casing down to the bottom would ment between plaintiff and defendant was cost the plaintiff something in time, material, that the defendant should pay the plaintiff and effort, which would have to be taken $2.50 per foot for drilling the well for the into account in determining what his servfirst 300 feet and 50 cents additional per ices were worth. This situation showed foot "in every 100 feet thereafter dug"; clearly the necessity for pleading the value that the exact depth of the well was not of the work, as far as it had progressed first decided upon, but that plaintiff was when stopped by the defendant, and we think authorized to drill the first 300 feet, and that the complaint did not state a good cause of the matter as to whether a greater depth in action without such allegation. While counthe ground should be penetrated was left to sel for respondent insists that the contract the decision of the defendant, who was to price was evidence of the value, it cannot notify the plaintiff as to how deep he want-be conceded that it would constitute evidence ed the well dug. It was further alleged that of the value where the work had not been As is said in Cox v. Methe plaintiff drilled the well to a depth of fully performed. 360 feet; that there was no water in the Laughlin, as that case is reported in 52 Cal. hole at that depth; that the plaintiff notified 590: the defendant that the conditions were unfavorable for securing water, and asked for instructions as to whether he should drill deeper, and defendant notified the plaintiff to cease drilling. After the nonsuit was granted as to the second and third causes of ac tion, plaintiff was allowed to amend his complaint by alleging that defendant neglected and refused to give any decision as to what depth the well should be dug, and never gave any such decision, but instructed the plaintiff to go from the property, and so pre-60, 18 Pac. 100, 9 Am. St. Rep. 164. vented plaintiff from digging any deeper, and from perforating and sand-pumping the well, as the contract required, and that for such reason said perforation was not made and the casing was not put down deeper in the hole. There was no allegation incorporated, either in the statement of the first alleged cause of action or in the amendment made thereto, as to what the reasonable value of the work performed was. The written offer first made by the plaintiff to the defendant, the acceptance of which by the defendant created the contractual relation between the two, provided that, in addition to drilling the well, the plaintiff was to put down casing furnished by the defendant, and was to perforate and sand-pump the well and leave it in first-class condition for a pump to be installed. The condition of the complaint as it was left after the trial judge had granted the motion for nonsuit on the second and third causes of action was that the express contract and its terms were stated, and the depth to which the well was dug was stated. It was alleged that the work was not completed as called for by the contract because of the action of the defendant, and that there was left undone the placing of the [3] As to the merits of the case on the casing to the bottom of the hole and the per- facts, there was a conflict of evidence which foration thereof. It is quite clear from this places the determination of the jury regardstatement of the allegations of that cause ing those matters beyond the reach of any of action that the price as fixed by the con- review by this court. It appears that the tract would not be a measure of the well as put down was not perpendicular,

that case work having been abandoned under a grading contract before final completion and because of alleged acts of prevention on the part of the cocontractor, the plaintiff set up the particular contract and sought recovery thereunder. The court indicated that damages might be recovered, but not under the specific terms of the contract; rather for the value of the work performed, together with profits which might have been made upon the uncompleted portion thereof. Before the last appeal the trial judge had allowed an amendment, setting up a cause of action on quantum meruit. The Supreme Court held that there was no abuse of discretion in allowing this amendment. In one of the earlier appeals (54 Cal. 605) it was declared in the opinion "that the present is not an action on the implied promise is apparent, not only from the omission of any averment of the actual value of the work done, but from the whole frame of the complaint."

[2] As to whether the trial judge here was right in granting a nonsuit as to the second and third causes of action is not involved, because no appeal was taken on the part of the plaintiff to review that ruling.

tiff produced some testimony showing that a pump could be operated successfully, and that it was reasonably practicable to install a pump, in such a well; also, that there was no understanding or agreement that the well should be straight. These matters were directly contradicted by evidence which defendant introduced.

purported authority of a writ of execution"; "that the aforesaid purported writ of execution was not directed against this plaintiff or any property, real or personal, of this plaintiff"; that this plaintiff "is a stranger and not a party to the suit wherein said purported writ of execution was issued"; that said Byrnes, as said sheriff, was without author

From what has been stated it will be ap-ity to seize, take, or sell said personal propparent that the judgment and order must be reversed.

The judgment and order are reversed, with direction to the trial judge to allow the plaintiff, if he be so advised, to amend his complaint to correct the imperfection first herein pointed out.

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

(32 Cal. App. 431)

LAZARUS v. BYRNES, Sheriff, et al.

(Civ. 1567.)

erty; that by reason of said act plaintiff has been damaged, etc. By proper averments the said sheriff's bondsmen are made parties defendant.

A general and special demurrer was overruled, and defendants answered: Alleged that on November 4, 1910, a judgment was duly given and made in the justice's court of Big River township, county of Mendocino, whereby it was adjudged that certain named persons, plaintiffs in the action, have and recover judgment against M. D.. Nolan for the sum of $238 and costs; that on September 11, 1913, an execution was duly issued out of

(District Court of Appeal, Third District, Cal- said justice's court, directed to the sheriff of

ifornia. Dec. 29, 1916.)

1. JUSTICES OF THE PEACE 130 MENT INTENDMENTS FAVORING.

ment.

said county, whereby said sheriff. was comJUDG-manded to make the amount of said judgment out of the property of said Nolan; that There are no intendments in favor of a judgment of a justice of the peace, and a par- defendant Byrnes,, acting under the written ty relying on such judgment must establish the instructions from plaintiff's attorneys in said legality of every step necessary to a valid judg-action and upon the authority of said writ, did take into his possession the personal 2. SHERIFFS AND CONSTABLES 98(1)-PRO- property mentioned in said complaint and CESS AS PROTECTION-COLORABLE TITLE. Where, at the time of the alleged sale of did sell the same; that all of said property property by brother to sister, the ceremony con- then was and for a long time prior thereto sisted in the brother's taking the property, hors- had been the property of said Nolan; that es, and vehicles, used in his livery barn, to the said defendant sheriff, as aforesaid, sold said street, and stating to the sister's agent, there present, that he had sold the property to her, property at public auction, and after deductthereupon taking the property back to the barn, ing the expenses of said sale applied the proand thenceforward using it in his livery and ceeds thereof in satisfaction of said judg draying business as he had for years before, to ment; that "plaintiff did not previous to all appearances as the owner, the sister not seeing the property and not having personal pos- said sale nor for more than five months theresession of it, the sale was merely colorable, and after claim the property * * or any his writ was sufficient justification for a sheriff part thereof as her property by a written who took the property on execution as the prop-claim verified by her oath * setting erty of the brother.

[Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. §§ 143-145.]

Appeal from Superior Court, Mendocino County; J. Q. White, Judge.

Action by Mary F. Lazarus against Ralph R. Byrnes, Sheriff of Mendocino County, and

others, sureties on his official bond. From a

judgment for defendants, plaintiff appeals. Judgment affirmed.

Charles Kasch, of Ukiah, for appellant. Mannon & Mannon, of Ukiah, for respond

ents.

CHIPMAN, P. J. This is an action to recover damages for the alleged conversion of certain personal property of which plaintiff alleges that on September 11, 1913, and for a long time prior thereto she was the owner; that on said mentioned day defendant Byrnes, as sheriff of said county, "wrongfully took and carried away and converted and disposed of said personal property, under the

out her right to the possession thereof and serve the same upon the said sheriff."

For further defense: Denied that plaintiff was on September 11, 1913, or at any other

time, the owner of said property, and denied that said property was of the value alleged

or of any value other than as specifically set forth in the answer; denied that defendant,

said sheriff, "did not well, truly, and faithfully perform the duties of his said office" in said matter; denied that defendant, said sheriff, on said September 11, 1913, or any other time, wrongfully or at all deprived plaintiff of the use or possession of said property and denied that plaintiff had been damaged by reason of any acts of said sher iff or at all.

A demurrer to the answer was overruled, and a motion to strike out certain averments of the answer was denied. The cause was tried by the court without a jury, and defendants had the judgment from which plaintiff appeals.

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