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MONTGOMERY v. MERRILL.

Filed February 28, 1884.

No error appears in the rulings, and the order is affirmed.

Department 1.

H. M. Alberry, for plaintiff.

John T. Harrington, for defendants.

BY THE COURT. This is an appeal by the receiver from the order of the court below settling his accounts. We have examined the rulings as to the items of the account to which our attention is called, and find no error in them. It would serve no useful purpose to go over the items in detail. Order affirmed.

HAYSMEISTER v. Porter.

Filed February 28, 1884.

Judgment reversed; following Meyer v. Porter, 2 PAC. REP. 884.

Department 1.

Rosenbaum, Sheeline & S. C. Denson, for appellant.

W. A. Anderson and McKime & George, for respondent.

BY THE COURT. On the authority of Meyer v. Porter, 2 PAC. REP. 884, judgment reversed and cause remanded, with direction to the court below to overrule the demurrer and permit defendant to an

swer.

(64 Cal. 467)

PEOPLE v. MCDOWELL.

Filed January 22, 1884.

In a prosecution for murder, evidence is admissible to show that defendant had in his possession a weapon which might have caused the wounds on the body of the deceased.

Testimony of witnesses is admissible as to where deceased was supposed to have been killed, if merely for the purpose of locating the spot as a foundation for further examination.

Where the whole charge to the jury is unobjectionable, the fact that certain portions of the charge, when segregated, are objectionable, is not ground for reversal of the judgment.

In bank.

Appeal from the superior court of San Bernardino county.

This was an appeal from a judgment of the superior court, convicting the defendant of murder in the first degree. Appellant assigned, as errors of law, the admission of evidence that a slung-shot had been found in the possession of defendant, and testimony concerning an interview with him on the night before the arrest, relating to such slung-shot, without directly connecting the slung-shot with the crime; the admission of testimony as to the place where the crime was said to have been committed, on the ground that it was hearsay; and the portions of the charge of the court set forth in the dissenting opinion.

Byron Waters and Q. S. Sparks, for appellant.

R. E. Bledsoe, for respondent.

MYRICK, J. The testimony of the witness Hicks as to the slungshot in the possession of the defendant, and as to the statement made by defendant, was relevant and material, because there was evidence tending to show that the wounds inflicted upon the person of deceased might have been caused by such an implement. The statements of the witnesses Wixon, Rice, and Cheatham, as to the place where the deceased was supposed to have been killed, were for the purpose, merely, of locating the spot, as foundation for further examination, as was so stated. While there are certain portions of the charge of the court below which, segregated, are objectionable, still when taken in connection with the context, as they must be, we think it cannot be fairly said that there was on the part of court any invasion of the province of the jury.

Judgment and order affirmed.

We concur:
J.; THORNTON, J.

MORRISON, C. J.; Ross, J.; McKEE, J.; McKinstry,

SHARPSTEIN, J., dissenting. I dissent. In one part of the charge of the court this language occurs:

"The guilt of the prisoner rests upon evidence of his own declarations; also evidence tending to show that the dead body of the deceased was found with marks of violence and wounds upon it, and other circumstances tending to connect the defendant with the cause of hår death.

"The conclusion that the prisoner is the person who committed the murder, from all the facts and circumstances surrounding the killing, is a result of a process of reasoning which men exercise in alnost every department of society, and in the practical affairs of life and experience."

If we assume, as I think we must, that the jury attached to this language the meaning which men ordinarily attach to it, I cannot see how we can escape the conclusion that the appellant is entitled to a new trial. The constitution (article 6, § 19) declares that "judges shall not charge juries with respect to matters of fact, but may state the evidence and declare the law." In this case the jury were told that the guilt of the prisoner rested upon evidence of his own declarations, and upon evidence tending to show other material facts and circumstances. And then the jury were informed that the conclusion that the prisoner was the person who committed the murder, from all the facts and circumstances surrounding the killing, was the result of a certain process of reasoning. The jury were certainly warranted in inferring from this that the court knew that somebody had arrived at that conclusion, and was familiar with the process by which it had been reached. The court stated conclusions, not facts. It told the jury what the guilt of the prisoner rested on, and by what process of reasoning the conclusion that he was the person who committed the murder was reached. If an error of this kind could be cured by giving other instructions which were free from error, it would seem to follow that no judgment could be reversed for errors in the charge of the court unless the entire charge was erroneous, which would rarely, if ever, occur in trials for murder, as the greater part of the charge usually given in such cases has become, as it were, stereotyped.

I think this judgment should be reversed.

(64 Cal. 495)

SWEENY and others v. SUTRO and others.

Filed January 28, 1884.

Where, in pursuance of the mandate of a court, a city auditor issues a warrant in favor of the petitioner or his attorney, in the proceeding for mandamus, a bona fide purchaser from such attorney acquires a valid title as against said petitioner. Buch a warrant is not a negotiabic instrument.

In bank.

Appeal from the superior court of the city and county of San Francisco.

This was an action brought to recover of defendants & certain audited warrant on the city treasury, or its value. This warrant was for an account which had been duly allowed by the board of supervisors and had then been presented to the auditor for allowance, which was refused, but finally allowed under a writ of mandate directing him to audit it, and issue a warrant to the petitioners or their attorney. In accordance therewith a warrant was issued to J. P. Sweeny & Co., or M. J. Cobb, their attorney. The lower court found against the defendants, and that plaintiffs were entitled to the possession of said warrant. Defendants appealed, and thereon the judgment below was reversed by department 2 of this court, on the ground that as the warrant was issued to said Cobb under direction of this court, defendants, by purchase from him, acquired a good title to it, and were not bound to inquire further into the matter of title than to see that it conformed to the direction of the court.

E. J. Moore, for appellants.

J. B. Hart, for respondents.

We

BY THE COURT. In this cause the opinion of the department (2) will stand as the opinion of the court. 10 Pac. C. L. J. 788. add this further remark: The decree cannot be said to be without jurisdiction. It may have been made by consent of the plaintiff's themselves. The defendants being innocent purchasers for value of Cobb, the judgment and order must be reversed, as directed in the opinion of the department. We do not see that, in coming to this conclusion, we have overruled any of the cases to which our attention has been called by counsel for respondents. We do not intend to hold that a warrant is a negotiable instrument.

We dissent: Ross, J.; McKINSTRY, J.; MCKEE, J.

(64 Cal. 492)

KORNAHRENS v. HIS CREDITORS.

Filed January 29, 1884.

Delay in prosecuting a proceeding on the part of certain creditors, to adjudge a debtor an insolvent, will be cause for the dismissal of the proceedings where delay is not accounted for and inexcusable.

Department 2.

Appeal from the superior court of Alameda county.

This was a proceeding on the part of certain creditors to have plaintiff adjudged an insolvent debtor, and for the surrender of all his estate for the benefit of his creditors. After various proceedings and delays, including an order to show cause why said debtor should not be declared an insolvent, which order was never served, and a subsequent order of a similar nature, the service of which was delayed, the proceeding was, on motion of said debtor, dismissed for inexcusable delay in the prosecution thereof. The creditors appealed from this order of dismissal.

R. W. Kent, for appellants.

Emil Nusbaumer and Welles Whitmore, for respondent.

THORNTON, J. In examining this cause we cannot come to the conclusion that the court below abused its discretion in dismissing the proceeding, which was brought by certain creditors of Kornahrens to have him adjudged an insolvent, and that a surrender of his property be made for the benefit of his creditors. The order of thirteenth of December, 1879, that Kornahrens show cause on the twenty-ninth of same month why he should not be adjudged an insolvent, etc., was never served. No steps were taken to have it served. This delay was unaccounted for and inexcusable. There was further delay in serving the subsequent order made on the eighth of September, 1880. This was not accounted for in any way. We are of opinion that this proceeding should have been proceeded with, without the frequent and unaccountable delays which took place. According to the provisions of the statute under which this proceeding was instituted, (St. 1875-76, p. 581,) all attachments upon the property of the debtor, levied within two months before the filing of the petition, are dissolved on the debtor's being adjudged insolvent. Section 6 of statute. Many other dispositions of property made by the debtor are also void, if made by him when insolvent or in contemplation of insolvency within two months before the filing of the petition by or against him. Section 8 of statute. To sustain the proceeding before us would put a stop to the dealings of the debtor with his creditors during the period of delay, and affect very injuriously other creditors not joining in the petition who may have secured liens by attachment upon the property of the debtor, and even payment of their claims. It was not the intention of the law-makers to allow such consequences to occur. The dealings of the debtor with his creditors would be interfered with to a degree which the law-givers never intended to permit. The petitioners, if they think proper, can commence their proceedings anew.

The order must be affirmed.

We concur: SHARPSTEIN, J.; MYRICK, J.

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