OF FINANCIAL CONDITION. The general financial condition of plaintiff in an action for personal injuries is immaterial and irrelevant on the question of damages. [Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, § 499.] 3. TRIAL-STRIKING OUT ANSWERS. An irresponsive answer putting before the jury what the court had properly ruled could not be shown should be stricken out on motion. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 238.] 4. SAME-NECESSITY OF OBJECTING TO QUES TION. Where it is not apparent from a question that the answer will be inadmissible, the question need not be objected to, to entitle the opposing party to move to strike out the answer. could invoke making a distinction, if it were 2. DAMAGES-PERSONAL INJURIES - EVIDENCE permissible. His affidavit states no facts showing that he is in the actual possession under the most liberal rule that might be indulged in short of defining actual possession to be synonymous with constructive possession, which, of course, would be absurd. We are therefore of the opinion that the actual possession of property required to be had in order to give the court jurisdiction under the McEnerney act must be such an actual possession as defined by the general rule, and embodied in the Code sections referred to, as necessary to sustain title by adverse possession if maintained and continued for the period required by law. All petitioner shows in his affidavit is that he had constructive possession of the property. Before he is entitled to avail himself of the benefit of the McEnerney act, he must be in the actual possession of the property as that term is defined by the authorities cited, and the fact that he is in actual possession must be stated or shown in his affidavit. And, upon the hearing before the court for the purpose of obtaining the decree authorized under the act, he must prove actual possession of the property at the time of filing his complaint and making his affidavit, as it is defined by these authorities. It is further claimed by petitioner that, if the phrase "actual possession" is to be given the construction which we here give it, then the act is unconstitutional as special legislation, in this: that it divides property owners into two classes, one having actual possession of their property, the other only constructive possession, without any natural intrinsic or constitutional basis for the distinction. This is not a new point. This act was attacked in Title, etc., Co. v. Kerrigan (Cal. Sup.) 88 Pac. 356, as unconstitutional, on all the grounds to which it was deemed vulnerable in that respect, and the point made now was made there, but was not pressed, probably because on reflection it was deemed untenable, as we are satisfied it is. The petition for the writ is denied. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 242.] 5. SAME-INSTRUCTIONS-ASSUMING FACTS. The conclusion to a requested instruction on contributory negligence that plaintiff had no right, on the happening of some trivial occurrence, to bring injury on herself, is objec tionable as assuming that plaintiff did, on the happening of a trivial occurrence, bring injury on herself. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 430.] Appeal from Superior Court, City and County of San Francisco; John Hunt, Judge. Action by Frances H. Johnston against C. B. Beadle, and others. From a judgment for plaintiff and from an order denying a motion for new trial, defendants appeal. Reversed. C. H. Wilson, for appellants. Maguire, Lindsay & Wyckoff and Houx & Barrett, for respondent. HALL, J. Appeal from judgment and order denying defendants' motion for a new trial. The action was brought to recover damages for injuries received by plaintiff while a passenger on the steamer Point Arena, and the verdict and judgment were in favor of plaintiff. While the plaintiff was a passenger on the steamer Point Arena, voyaging from San Francisco to Little River, in Mendocino county, the steamer struck on the rocks near Point Fort Ross, and plaintiff, while attempting to get out of her berth, was thrown or fell to the floor and was injured. It is insisted by appellants "that there is absolutely no evidence of negligence on the part of the defendants to sustain the verdict and judgment," and also that "the evidence did not show any negligent act on the part of the defendants which was the proximate cause of the injuries complained of." After a careful examination and consideration of the evidence in the record, we are satisfied that neither of these contentions of appellants can be sustained. The evidence is sufficient to justify the conclusion that the vessel ran on the rocks because of the negligence of defendants, and that such running on the rocks was the proximate cause of the injuries to plaintiff: but, as we are of the opinion that the judgment and order must be reversed, and the action remanded for a new trial, for reasons hereinafter stated, we do not think it necessary or expedient to discuss in detail the evidence in the record. The court repeated in substance several instructions on the question of damages. It is not claimed that any of these are not correct statements of the law, but it is urged that the court, by thus laying stress on the question of damages, led the jury to think that the court believed a verdict should be rendered in favor of plaintiff. But the court in express words cautioned the jury against any such result. It said: "But the jury are not to understand that, because the court instructs them upon the question of damages, it thereby means to convey any intimation that in its opinion the plaintiff is or is not entitled to damages." Besides, an examination of the instructions on the subject of damages discloses that all but one were manifestly intended and so worded as to prevent the jury from giving excessive or unreasonable damages in the event that they gave a verdict for the plaintiff. We now come to a matter that necessitates The plaintiff pleaded special damages through loss of time and earnings as a dressmaker, and at the trial gave evidence in support thereof, to the effect that she had been steadily employed prior to the injury complained of as a dressmaker, and earned at such employment $2.50 per day and her board. She was then asked by her counsel: "Are you a woman of means?" Defendants objected to the question as immaterial, and the court sustained the objection. Thereupon her counsel asked this question: "During the period you have been a dressmaker, state the means by which you have supported yourself?" And she answered: "I have no other means or resources." Whereupon counsel for defendants at once moved to strike out the answer as not responsive, and on the ground that her means and resources are immaterial and irrelevant. The court denied the motion, and in so doing, we think, committed error, for which a new trial must be ordered. The ruling of the court to the first question above quoted was correct. The general financial condition of the plaintiff was immaterial and irrelevant to the question of damages, or to any issue in the case. Shea v. Railway, 44 Cal. 414; Malone v. Hawley, 46 Cal. 409; Green v. Southern Pacific Co., 122 Cal. 563, 55 Pac. 577; Mahoney v. San Francisco, etc., Ry. Co., 110 Cal. 471, 42 Pac. 968. The answer of the witness (plaintiff) to the second question went beyond the legitimate scope of the question, and put before the jury the fact that she was not only not a only not a woman of means, but had no means or resources other than her earnings as a dressmaker, and was thus a flagrant evasion of the ruling of the court to the first question above quoted. It is no answer to the contention or to the motion of counsel for appellants to say that he It should have objected to the question before it was answered. The answer actually given is not a direct auswer to the question put, as would have been such an answer as "I have supported myself by my earnings as a dressmaker." The question put was susceptible of an answer that would have been in accord with the previous ruling of the court. Counsel for defendants were not obliged to assume that counsel for plaintiff was attempting to intentionally get an answer that would contravene the ruling of the court that had just been made any more than we will impute any such purpose to counsel. It was only when the answer had been given that it could be known that it was immaterial and in violation of the previous ruling of the court. The proper practice in such a case is to move to strike out the answer. "When it is apparent from the question that the answer will contain evidence necessarily inadmissible, then a motion to strike out comes too late, unless preceded by an objection to the question, but the rule is otherwise where the evidence may or may not be admissible." People v. Williams, 127 Cal. 212, 59 Pac. 581; People v. Lawrence, 143 Cal. 148, 76 Pac. 893, 68 L. R. A. 193. The court erred in refusing to strike out the answer, "I have no other means or resources." It is also urged that the court erred in refusing to give two instructions requested by defendants upon the defense of contributory negligence. The first of these instructions, we think, is open to the objection that it assumes that plaintiff, upon the happening of a trivial occurrence, brought the injury on herself, and for that reason was properly refused. It concludes in these words: "The plaintiff had no right, upon the happening of some trivial occurrence, or such an occurrence as would not create fear or apprehension of injury in the mind of an ordinarily prudent person, to bring injury on herself." To say that a person had no right to do a certain thing strongly suggests that such person did do that thing. The second of these instructions is in these words: "If you find from the evidence in the case that the plaintiff, in attempting to get out of and descend from her berth on the steamer Point Arena at the time complained of, did not act with ordinary care and prudence, and hold and guard herself from falling and injuring herself as a result of any motion of the vessel that might have been expected at the time by an ordinarily prudent person, and that such want of ordinary care and prudence contributed to or caused the accident, then and in that case your verdict must be for the defendant." This instruction is correct in its statement of principles of law, and the only reason suggested by respondent why it should not have been given is that the court sufficiently instructed the jury upon the subject of contributory negligence, and, in substance, gave the instruction under discussion. An examination of the instructions giv NONMARRIAGE. Where on a trial for rape, there is ample opportunity for the state to prove directly that the accused and the prosecutrix were not husband and wife, indirect evidence of that fact will not suffice. 3. SAME-COMPLAINT-ADMISSIBILITY. The complaint made by the victim of a rape on her return home a month and a half after the occurrence testified to by her is inadmissible, though she is under the age of consent. [Ed. Note.-For cases in point, see Cent. Dig. vol. 42, Rape, § 67.] 4. SAME. On a trial for rape on a child under the age of consent, the prosecution asked the mother of the child as to whether the child on the date of the offense, or shortly thereafter, made complaint. On cross-examination, she testified that it was made about a month and a half after the occurrence. On redirect examination the mother disclaimed knowledge of the exact time, but stated that it was a short time after the occurrence. Held, the proof of the complaint was inadmissible. [Ed. Note.--For cases in point, see Cent. Dig. vol. 42, Rape, § 67.] Appeal from Superior Court, Los Angeles County; B. N. Smith, Judge. Juan Gonzalez was convicted of rape, and he appeals. Reversed. James D. Reymert, for appellant. U. S. Webb, Atty. Gen., and George Beebe, Deputy Atty. Gen., for the People. TAGGART, J. Defendant was convicted of the crime of rape alleged to have been committed by having sexual intercourse with a female child under the age of 16 years who was not his wife. He appeals from the judgment of the superior court sentencing him to 10 years' imprisonment in the state prison at Folsom, and from the order of the court denying his motion for a new trial. In support of these appeals he urges that the verdict is not sustained by the evidence; that there is no proof that the prosecutrix is not the wife of defendant; that the court erred in the instruction relating to this matter, and in not striking out certain testimony of the mother of the prosecutrix as to the complaint said to have been made by the latter. In so far as the first matter urged is not covered by the second, the presentation thereof brings it clearly within the rule so often announced by appellate courts that, where the evidence is conflicting, the verdict of the jury will not be disturbed. The probability of the story told by the prosecutrix is a matter for the jury. People v. O'Brien, 130 Cal. 1, 5, 62 Pac. 297. It is admitted that there is no direct evidence that the prosecutrix is not the wife of the defendant. There was no attempt to establish this element of the case, but there is some testimony from which the inference might be drawn that the parties were not married. On the other hand, all the testimony of this character introduced by the prosecution might have been true, and yet such a marriage exist. The case is to be distinguished from that of Lewis v. People, 37 Mich. 518, relied upon by the Attorney General, in this: That the objection is a part of the record on the motion for a new trial here, while in the Michigan case the point was not made in the court below, and the appellate court refused to consider "the lack of evidence direct in form, there being abundance of other evidence," because it was too late to make this objection in the appellate court for the first time. Page 520. The age of the girl as testified to by the defendant (13) was not such as to compel the assumption that there was no valid marriage between the parties for this reason. Marriage under the age of legal consent without consent of parent or guardian is made voidable only under our statute, and, if followed by cohabitation freely and voluntarily after attaining the age Civ. of consent, cannot even be annulled. Code, § 82; People v. Beevers, 99 Cal. 286, 33 Pac. 844. It is apparent either that the prosecution overlooked this element of the case, or tried it on the theory that the presumption of the innocence of the defendant was overcome by the presumption that a marriage contracted by a girl under the age of consent was void. The age of the girl as shown by her own and her mother's testimony (11) might well justify this assumption of nonmarriage. This was further strengthened by the testimony of the physician who examined the child and found that the menses had not yet appeared. The circumstances and evidence strongly support the inference that there was no marriage, but we cannot accept or indorse the view that, where there is ample opportunity for the prosecution to prove this element of the crime directly, indirect evidence will suffice. We feel particularly disinclined to this view as applied to this case, owing to the unsatisfactory character of the evidence upon which the conviction rests. It is not the province of this court to deal with the weight of the evidence 'where there is any conflict, but where the sole evidence of the commission of the crime of rape rests upon the testimony of a child who says the act was committed while she was asleep, that she woke up and found that something was inserted in her body wrong, and the defendant was at the foot of the bed, that this was the only time she had intercourse with the defendant, though she left her mother's house, and, the evidence shows, was gone for a month and a half, with him. it seems imperative that every element of the crime should be clearly and legally established. The complaint made by the child to her mother upon her return home a month and a half after the occurrence testified to by her was improperly admitted in evidence, and this must have been largely responsible for the verdict of guilty found by the jury. The complaint by the victim of rape which the law permits to be introduced in evidence is one which follows so closely upon the occurrence as to be practically the first opportunity available to tell one in whom she has confidence. It is the fact of complaint immediately that is supposed to show that she was an unwilling victim; it being presumed that an innocent woman. so assaulted and outraged, will complain of the injury at the earliest practicable moment. What she may say is hearsay, but the act of complaining is original evidence. People v. Mayes, 66 Cal. 599, 6 Pac. 691; "I People v. Stewart, 97 Cal. 238, 32 Pac. 8; People v. Lambert, 120 Cal. 170, 52 Pac. 307. The same rule is applied in those cases in which the female child is under the age of consent. People v. Baldwin, 117 Cal. 244, 49 Pac. 186; People v. Wilmot, 139 Cal. 103, 72 Pac. 838. The evidence asked to be stricken out, the failure of the court to do which is assigned as error here, is the following answer to a question propounded by the district attorney to the mother of the prosecutrix : "I know that he did wrong. She told me that he did wrong. I examined her, and found her condition such that she had been wronged." The question was: I will ask you whether or not Carmen on or about May 15, 1906 (the date of the alleged occurrence), or shortly afterwards, made any complaint to you that Juan Gonzalez had had sexual intercourse with her?" The court instructed the witness to answer "yes or no." She did not do so. The defendant immediately cross-examined the witness as to the time of this complaint, and elicited the statement that the complaint was about a month and a half after the occurrence, whereupon he made the motion to strike out, which was denied. The question was not objected to, and, as limited by the court, should have elicited an unobjectionable answer. A motion to strike out the answer as not responsive would have cleared the record, but, assuming that the witness attempted to answer the ques tions asked, the most than can be said is that she appears to have answered that "on or about May 15th, 1906, or shortly thereafter."" the child told her mother that "he did wrong." On cross-examination she modified this by saying that it was a month and a half after the occurrence. On redirect examination by the district attorney the witness disclaimed exact knowledge of the time, but says it was a short time after the occurrence. The only definite fixed time mentioned by the witness is "about a month and a half after the happening." This in the witness' mind might be, and perhaps was, entirely reconcilable with the term "shortly thereafter" of the direct examination, or the "short time" of the redirect. The only definite time to be considered by the court in ruling upon the motion to strike out the testimony was that given on cross-examination. The remarks of the court in making the ruling justify the inference that the testimony was admitted on the theory that the jury might determine the question of time as a fact. This was error. The time of the complaint was material to the determination of the question of law affecting the admissibility of the evidence, and it was the duty of the court to make its own finding of fact as to the time shown by the testimony. Conceding that the admission of the evidence by the trial court was an implied finding that the complaint was made immediately, such a finding is not conclusive upon this court, as there is no conflict in the evidence. The various statements of the witness are all compatible with each other, and, when properly reconciled each with the others, show that the complaint was made a month and a half after the occurrence. This being true, it should not have been admitted. For the foregoing reasons, the judgment and the order denying defendant's motion for a new trial are reversed, and the cause remanded for a new trial. We concur: ALLEN, P. J.; SHAW, J. (7 Cal. Unrep. 338) ROTHROCK v. BALDWIN. (Civ. 318.) (Court of Appeal, Second District, California. Aug. 20, 1907.) APPEAL RECORD ERRORS - DISPOSITION OF CASE. Where an examination of the record on appeal suggests no error, and the attention of the court is called to none by reason of the failure of appellant to file points and authorities, the judgment will be affirmed. [Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3109.] Appeal from Superior Court, Los Angeles County; W. P. James, Judge. Mandamus proceedings by A. B. Rothrock against Fred P. Baldwin, as clerk, and another, as president of the board of trustees of the city of Long Beach, to compel defendants to issue and deliver a warrant for labor performed for the city. From a judgment for plaintiff, defendants appeal. Affirmed. John E. Daly and Carl Monk, for appellants. F. A. Knight, for respondent. ALLEN, P. J. This is a proceeding in mandamus commenced by plaintiff to obtain an order of the superior court commanding defendant Downs, as president of the board of trustees, and defendant Baldwin, as clerk of the city of Long Beach, to draw, sign, countersign, and deliver a certain warrant on account of labor done and performed by plaintiff for said city at its request, which payment had not theretofore been made. A demurrer was interposed to the petition and overruled. The cause was subsequently tried upon its merits, findings of fact and conclusions of law filed and judgment entered in favor of plaintiff. From the judgment, so entered, this appeal is taken. The transcript on appeal was filed November 2, 1906. Stipulations were filed for an extension of time within which appellants should file points and authorities. This time expired in December, 1906, and no points or authorities have ever been filed in the case. An examination of the record suggests no error, and, our attention being called to none, the judgment is ordered affirmed. We concur: SHAW, J.; TAGGART, J. (6 Cal. A. 242) BEAULIEU VINEYARD et al. v. SUPERIOR (Civ. 383.) for the taking was denied, and defendant did not demand that the issue of necessity should be submitted to the jury, the right to submit the issue to the jury was waived and the court must find on it. 6. PROHIBITION-GROUNDS FOR RELIEF-IRREGULARITY IN PROCEEDINGS. In proceedings to condemn land for a railway right of way, the court left to the jury the determination of the value per acre of a tract, and reserved for itself the determination of the question of necessity, after the jury had rendered a verdict. The jury awarded damages by finding the value per acre, and the court subsequently made findings on the question of necessity. Held that, though the more orderly procedure required a finding on the question of necessity before leaving to the jury the determination of the amount of damages to be awarded, the action of the court was not in excess of jurisdiction, and was not reviewable on prohibition. 7. SAME. fendant in proceedings to condemn land for a The court on application for writ of prohibition cannot impeach the verity of the recitals of the findings and judgment of the trial court, as any error in the decision based on the insufficiency of the evidence may be disposed of by appeal. Application for a writ of prohibition by the Beaulieu Vineyard and others against the superior court of Napa county and another to prohibit the superior court and the judge thereof from enforcing an order and to prohibit proceedings under or in furtherance of a judgment. An alternative writ was issued, the order to show cause discharged, and a peremptory writ denied. Carlton W. Greene, for petitioners. John (Court of Appeal, Third District, California. T. York, for respondents. Aug. 19, 1907.) 1. PROHIBITION-GROUNDS FOR RELIEF-WANT OR EXCESS OF JURISDICTION-STATUTES. Under Code Civ. Proc. § 1102, the writ of prohibition is issued to restrain subordinate courts acting without or in excess of jurisdic tion. [Ed. Note. For cases in point, see Cent. Dig. vol. 40, Prohibition, § 37.] 2. EMINENT DOMAIN-PROCEEDINGS TO TAKE PROPERTY-JURISDICTION OF COURTS. Under Code Civ. Proc. § 1243, the superior court has jurisdiction of proceedings to condemn land situated in the county. 3. PROHIBITION-GROUNDS FOR RELIEF. The regularity of the proceedings of an inferior court acting within its jurisdiction cannot be reviewed on prohibition. [Ed. Note. For cases in point, see Cent. Dig. vol. 40, Prohibition, § 37.] 4. EMINENT DOMAIN-PROCEEDINGS TO TAKE PROPERTY-ISSUES. Where, in proceedings to condemn land for a railway right of way, the allegations of the complaint were put in issue and the necessity for the taking was denied, it was necessary to find on every material averment of the complaint before judgment for the taking of the land could be awarded. 5. SAME TRIAL BY COURT. Where, in proceedings to condemn land for a railway right of way, the allegations of the complaint were put in issue and the necessity BURNETT, J. The proceeding is for a writ of prohibition. An alternative writ was issued upon a verified petition. On the return day respondent filed a demurrer and also an answer, denying many of the allegations of the petition. Thereafter petitioners filed a traverse of the answer; and respondent-not to be outdone in volume of asseveration and denial-replied with a "rejoinder to the traverse." We do not deem it necessary to give special consideration to the demurrer of respondent. It is true that a sharp issue is presented as to some of the facts, but, notwithstanding this want of agreement be tween the parties, the record is sufficient to enable us to determine the controversy. This proceeding grew out of an action brought by the San Francisco, Vallejo & Napa Valley Railroad Company against petitioners, in the superior court of Napa county, to condemn certain lands of the defendants for a right of way for the railroad of the plaintiff in that action. Petitioners state that "the object of this application is particularly to prohibit the superior court of Napa county and the judge thereof from enforcing |