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and the smaller children of the family resided. For this they received small sums of money and presents. There were six other cases of alleged rape upon these sisters, charged to have been committed by different individuals, pending, and set for hearing at the time this case was called. Three of these were apparently against Chinamen, and three of them against white men or boys. The sisters were each suffering from venereal disease. While it is not clear that such disease existed at the time of the alleged crime by this defendant. it is clear that it existed, and both sisters were afflicted with it, when examined a short time afterwards. The offense is statutory, and no matter how depraved was the girl upon whom the act is alleged to have been committed, nor how many others were equally guilty, the defendant would be held none the less amenable to the law for his acts, if the evidence supported the verdict, and no error appeared of record; but, as the offense charged is one that of itself creates a feeling of prejudice and hostility in the minds of the jury, particularly in the case of a Chinaman, the court will look carefully into the record to see that all the substantial rights of the defendant were given him by the trial court. In this class of cases, as well as in all others, a defendant should be fully protected during the trial in all his rights, and, if he cannot thus be convicted, he should not be convicted at all.

The first contention made by defendant is that the court erred in refusing to postpone the trial for a reasonable time on account of the absence of a material witness, and the contention must be sustained. When the case was called for trial the defendant's counsel answered that he was not ready, and moved for a continuance on account of the absence of Charlie Yan Tie, a material witness for defendant. In support of the motion counsel for defendant offered and read the affidavit of defendant, which stated in substance that Charlie Yan Tie was a material witness, without whose testimony he could not safely proceed to trial; that a subpoena had been duly issued and served upon the said witness several days before the day set for trial; that the witness was seriously ill, under the care of a physician, and unable to appear in court; that the defendant could prove by said witness, if present, and expected to prove by him, that defendant was not in the presence of said Lillie Ida Davis at the time of the commission of the alleged crime; that the defendant bought from said witness two dress skirts and sold the same at a profit to the two Davis sisters, and that the defendant's reputation for truth, veracity, peace. and quietude is good; that defendant could not prove the said facts by any other witness. In support of said motion defendant's counsel testified that before the trial, and immediately upon learning of the illness of the said witness, he notified the district attorney that the witness was ill, and that defendant could

not safely go to trial on the day set. Dr. Trueman testified that he was attending the witness Charlie Yan Tie, and that the witness was in bed very ill with a high fever, suffering from blood poisoning, and would not be out of bed for at least three weeks, and that it would be dangerous for said witness to attend court. Upon the above showing the judge remarked to the district attorney that in his opinion the continuance would have to be granted. The district attorney thereupon remarked, "We will concede that this Chinaman will testify to anything in that affidavit -everything that is material." Thereupon the court denied the continuance, and to this ruling the defendant duly excepted.

It must be borne in mind that no question was raised as to the sufficiency of the facts as stated in the affidavit. The ruling of the court was based squarely upon the theory that the admission of the district attorney to the effect that the absent witness, if present, would testify to anything in the affidavit, answered the purpose and obviated the necessity of a continuance; that the statements in the affidavit could be taken in lieu of the evidence of the witness. Such is not the law. The Constitution of the state (article 1, § 13) gives a defendant the right to have the process of the court to compel the attendance of witnesses in his behalf. It is the duty of the court, when due diligence has been used, and it appears that the application is made in good faith, and the evidence is material, to continue the case for a reasonable time so that the case may be fairly tried on its merits. In the early case of People v. Diaz, 6 Cal. 248, it was held that the admission of the district attorney that the witness, if present, would have testified as set forth in defendant's affidavit, was not sufficient, but that. in order to obviate the necessity of a continuance, the district attorney should have admitted the truth of the facts set forth in the affidavit. The court said: "The materiality of the evidence having been shown, it was the duty of the court, in the absence of evidence tending to discredit or throw suspicion on the application to postpone the cause, to afford the prisoner reasonable time to secure the attendance of his witness. It was not sufficient that the district attorney agreed that the witness would have deposed to certain facts, if present. He should have admitted the truth of the facts absolutely. it was the right of the accused to have his witnesses orally examined in court, and this right could not be frittered away by compelling him to go to trial in their absence without the benefit of their testimony upon a statement of what the evidence would be, subject to Impeachment. The value of oral tes timony over all other is too well understood to suppose for a moment that such declarations will have the same weight on the minds of the jury as the testimony of the witness if he had been examined before them in open court." The above case has never been over

ruled or modified by any case to which our attention has been called. It has been followed in Graham v. State, 50 Ark. 167, 6 S. W. 721, and in Newton v. State, 21 Fla. 70. Its reasoning is logical. The district attorney could not by a concession as to "this Chinaman deprive the defendant of the benefit of a substantial right. It was the time and the occasion when his each and every right should have been guarded both by the district attorney and the court. It was the first continuance asked. There was no question raised as to the good faith of the defendant in making the application. If the question as to the good faith of the application, or the sufficiency of the matters and things stated in the affidavit, had been raised, and sufficient showing made so as to appeal to the discretion of the court, the question would be different; but here we have squarely presente 1 the ruling of the court based upon the statement of the district attorney quoted above. The court not only proceeded upon such theory, but instructed the jury to regard the statement in the affidavit as part of the evidence in the case, "as though Charlie Yan Tie had in open court as a witness so testified."

Dr.

The evidence on the part of the prosecution tended to show that the alleged act of sexual intercourse took place about 7 o'clock of the evening of September 26, 1905. Lillie Ida Davis so testified. In cross-examination the defendant's counsel asked her the following question: "Q. Now, is it not a fact that on the 26th day of September last at 7 o'clock in the evening you had venereal and running sores on your private parts, in your vagina, and on the lips thereof?" The district attorney objected to the question as irrelevant, immaterial, incompetent, and not proper crossexamination. The court sustained the objection, to which ruling defendant duly excepted. The ruling of the court was erroneous. McMahon, a witness for the prosecution, testified that he examined the girl in October, 1905, and that she was then suffering from venereal disease. In fact, the evidence shows without contradiction that she had such disease early in October, 1905. Defendant testified that he never at any time had sexual intercourse with Lillie Ida Davis, and that he had never had any kind of venereal disease in his life. Dr. Cothran, a graduate of the medical department of the University of California, testified that he examined defendant about two weeks before the trial for any evidence of any variety of venereal disease: that he examined physically all the parts affected in such cases; and that defendant had never had chancroids (the disease from which the girl was suffering). The evidence shows that in most cases a male having sexual intercourse with a female suffering from venereal chancroids would contract the disease. Now, if defendant had no venereal disease, and never had chancroids, it seems to us that it was very material as to whether or

not the girl, with whom he is alleged to have had sexual intercourse, was suffering from venereal disease on the day of such alleged intercourse. What reason was there for excluding the evidence? The prosecution apparently desired to prove that in October, 1905, the girl was suffering from chancroids. This might, and was probably intended to, carry with it the inference that she contracted the disease from the defendant on the 26th day of September. Defendant had the right to meet this inference by showing that she had such disease on the 26th day of September. He further had the right to prove, and did prove, that he had never had such disease. Upon all the facts thus proven the jury had the right to determine the guilt or innocence of defendant. The court refused to allow any evidence as to whether or not the girl was suffering from the disease on the 26th day of September. The objection of the district attorney was sustained to a similar question asked of Eliza, the sister of the girl. Eliza was asked the direct question as to whether or not Lillie had chancroids, or running sores, on her private parts on the 26th day of September. 1905, but under the objection of the district attorney she was not permitted to answer it. The mother of the girl testified that she had chancroids on the 26th day of September, 1905; but, it appearing on cross-examination that the mother only knew it by Eliza telling her, the court, on the motion of the district attorney, struck out the testimony. The rulings of the court in this regard were highly prejudicial to defendant.

Other rulings are complained of which appear to be erroneous. but which it is not necessary to discuss in detail. The defendant's attorney asked Lillie Ida Davis in cross-examination if she had had intercourse with any one else in the past year. Upon objection of the district attorney the court refused to allow the question to be answered. She was further asked by defendant's attorney if she had not had sexual intercourse with a great number of Chinamen in her bedroom at her home during the past year. The court sustained the objections of the district attorney to this line of questions. The defendant's attorney then asked questions as to particular named Chinamen, and as to dates prior to September 26, 1905; but the court made the same ruling excluding the evidence. While the facts sought to be elicited by these questions would not justify the defendant in having sexual intercourse with a girl under 16 years of age as a matter of law, yet they were competent for the purpose of aiding the jury in arriving at the main facts. If the fact that the girl was suffering from a venereal disease a short time after the alleged act of intercourse was a circumstance tending to corroborate the girl's testimony as to the act with defendant. by raising an inference that the venereal disease was communicated by defendant, the defendant, in that spirit

of fairness which should prevail in all trials, should have been permitted to show that the girl might have been diseased by sexual intercourse with others. Or it might be that defendant could have shown that the girl was mistaken in his identity, and that it might have been some other Chinaman. The evidence sought to be elicited by the questions would have tended to show the credibility of the girl. If she had been having promiscuous sexual intercourse with Chinamen, or if she had been diseased by sexual intercourse with others prior to the date when it was shown that she had such disease, the jury had the right to consider these matters. We do not think the conviction of the defendant, under the circumstances of this case, was so important that everything else except the single fact should have been excluded from the jury. The district attorney in his zeal desired the case to be presented to the jury upon evidence as to the one act with defendant, and the corroborating fact of the girl having a venereal disease. Such facts alone would give him a beautiful theory as to the defendant's outrage upon an innocent girl of tender years, and his giving her a venereal disease; but the defendant had some rights. If she was suffering from a venereal disease on September 26th, and defendant never had such disease, it is a strong circumstance in favor of the testimony of defendant. If the girl was entertaining a great number of Chinamen in the same manner, it was very important for defendant to show that she may have been mistaken as to his identity.

It was said, in People v. Howard, 143 Cal. 316, 76 Pac. 1116 (a similar charge to this): "The light of investigation should have been permitted to fall upon the witness, her statement and her conduct. If she was testifying to the truth, such investigation would not have injured the cause of the prosecution. If she was testifying to a falsehood, the defendant should have been allowed in every reasonable way to show it." In a concurring opinion by the Chief Justice it was said that, if the prosecuting witness made no outcry, or complaint to others, or if she was induced by threats of imprisonment to make the accusation, the jury had the right to take these facts into consideration in determining her credibility. The court in the case at bar refused to hear evidence that the witness made no' outcry. The defendant's counsel endeavored to prove by cross-examination of the prosecuting witness that ever since she was placed in jail, October 16, 1905, no one was permitted to see her except the sheriff and his deputies, the district attorney and his deputies and detectives. The court, under the objection of the district attorney, would not allow the testimony. It seems to us that such testimony should have been allowed, and would affect the credibility of the wit

ness.

That a prosecuting witness of tender years was in a case like this kept in the sole custody and control of the officers of the law, and permitted to see no one else, is a circumstance that the jury should have known. Every lawyer and every judge under such circumstances would at once infer that the witness was testifying under the influences that had been surrounding her.

Sam Chew was called, and testified for the defendant. Under defendant's express objection and protest the district attorney was allowed to ask the witness many insulting and immaterial questions on cross-examination. Among these the district attorney asked the witness if he had not heard in Chinatown that the defendant was taking little white girls down there, and was warned that he would get into trouble if he continued it; if he had not heard that the members of the Hop Sing Tong accused defendant of producing white girls there; if it was not a fact that witness was conducting a lottery on First street back of Bachigalupi's cigar store; if witness was not selling lottery tickets at such place; if he was not running a poker game at the same place; if witness was not selling lottery tickets and running a poker game up to the time the grand jury before last began to investigate those things. We can conceive of no reason why such questions should have been allowed. It is true that the witness denied that any of the matters were true that were implied by the questions, but that does not cure the error. The district attorney did not attempt to prove the truth of any of the many things implied by the questions. They may have entirely destroyed the effect of the testimony of the witness, and, more than that, they may have created the belief that defendant was in the habit of seducing young girls. A witness cannot be impeached by evidence of particular wrongful acts, except it may be shown that he has been convicted of a felony. Code Civ. Proc. § 2051. A witness need not give an answer which will have a tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact in issue would be presumed. Id. § 2065. Not only this, but a witness has the right to be protected from irrelevant, improper, or insulting questions. Id. § 2066. The above provisions of the Code apply alike to all witnesses, whether the witness be a Chinaman, a negro, one in the most humble walks of life, or one in high position, the rule is the same.

It is not necessary to consider other questions raised in the briefs.

The judgment and order are reversed.

I concur: KERRIGAN, J.

I concur in the judgment: HALL, J.

(5 Cal. App. 614)

HURWITZ v. GROSS. (Civ. 309.) (Court of Appeal, Second District, California. May 29, 1907. Rehearing Denied by Supreme Court July 27, 1907.)

1. ACTION-JOINDER OF CAUSES-COMPLAINT. A complaint for breach of agreement to pay mortgages, alleging that by reason thereof the mortgagee applied to the indebtedness the proceeds of plaintiff's property held as security, and plaintiff was obliged to pay the balance, while alleging two elements of damages, states but one cause of action.

2. CONTRACTS-ACTION FOR BREACH-PARTIES.

To an action for breach of contract to pay mortgages, by reason of which the mortgagee applied to the indebtedness the proceeds of plaintiff's property held as security, and plaintiff was obliged to pay the balance of the indebtedness, the mortgagee is neither a necessary nor proper party.

3. SAME-ACTION FOR BREACH-DEFENSES.

Defendant having as part consideration of a conveyance from plaintiff agreed to pay a mortgage on plaintiff's property, and having failed to pay, but directed the mortgagee to apply to its payment the proceeds of plaintiff's property held as security thereof, and plaintiff having paid the balance, defendant may not question the validity and enforceability of plaintiff's obligation to pay.

4. EVIDENCE-BOOKS OF ACCOUNT-PRELIMINARY PROOF.

The regularly kept and original books of a corporation identified as such by the proper custodians, and constituting the records of the business transactions of the corporation, required by Civ. Code, § 377, to be kept by all corporations for profit, are admissible in an action between other parties without further preliminary proof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 1628-1646.]

5. APPEAL--HARMLESS ERROR.

Any error in allowing witnesses to testify to what books in evidence contain and do not contain is harmless, the statements being correct.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4161-4170.] 6. SAME.

Where plaintiff's measure of damages is the amount of the mortgage obligation which defendant agreed to, but did not, pay, any error in showing the amount of it which plaintiff paid in one way, the balance being paid in cash, is

harmless.

spectively), located in Los Angeles county. upon which, or portions of which, there were growing crops. Against these lands and the crops thereon there subsisted four mortgages; two against the lands for $13,000 and $5,000, respectively, and two against the growing crops, dated April 29, 1904. and August 15, 1904, given to secure the payment of promissory notes for the sum of $2,000 and $700, respectively, and each due one day after date. These crop mortgages were held by the California Citrus Union, which, at the request of plaintiff, picked and removed of said mortgaged crops, before January 19, 1905, oranges belonging to plaintiff of the net value of $1,004.47, as determined by the subsequent sales thereof made by said Citrus Union. On January 19, 1905, plaintiff sold to defendant parcels designated as 1 and 2, for a consideration expressed in the "escrow instructions" as follows: "We are to pay Mr. Hurwitz $2300 twenty-three hundred for above property and assume $13000.00 Mtg. or Tr. deed & all Int. due, & assume $5000 Mtg. or Tr. deed & Int. from Jan. 20, '05 & assume $2700 Chat. Mtg. & all Int. from Jan. 20, '05. Hurwitz to show statements from last 2 mtgee's that said int. is paid to said date." On the same day plaintiff, in execution of said agreement, made a conveyance to defendant of parcels 1 and 2, wherein was contained the following clause: "Subject to all incumbrances now of record against said property, all of which incumbrances the parties of the second part assume and agree to pay." Defendant complied with the other terms of the "escrow," but failed to pay the chattel mortgages and free parcels 3 and 4 from the lien thereof, and notified the Citrus Union to apply the proceeds of sales of said oranges, picked prior to January 19th, to the payment of the indebtedness secured by said mortgages, which was done. The complaint counts on a cause of action for damages for breach of contract, and fixes the amount of such damages at $2,700-the aggregate of the principal sums of said two chattel mortgages, which damages are divid

Appeal from Superior Court, Los Angeles ed into two elements: The first ($1,213) for County; W. P. James, Judge.

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partial failure of consideration for the conveyance made by plaintiff to defendant being measured by the proceeds of sales of oranges belonging to plaintiff, applied to the payment of the chattel mortgages by the Citrus Union after defendant had assumed the same; and, second ($1,487) the unpaid balance necessary to clear said third and fourth parcels of land, retained by plaintiff, from the lien of said chattel mortgages. By answer and crosscomplaint defendant claimed that plaintiff agreed that the entire orange crop for the year 1904 should pass by the conveyance mentioned in the complaint, and that plaintiff removed the portion of said orange crop so taken by the Citrus Union without defendant's knowledge or consent. No evidence was introduced on this issue, and the court properly found against the contention of defend

ant in this regard. The burden was upon defendant to establish his allegations.

While there are two elements of damage specially alleged in the complaint, it states but one breach of contract, and but one cause of action. This is sufficiently stated. It appears from the allegations of the complaint that defendant agreed to clear parcels 3 and 4 from the liens of the chattel mortgages and to assume the payment thereof, that there was a sufficient consideration for such promise or agreement, that he failed to perform his agreement, and that plaintiff was injured by reason of such failure. The cause of action must not be confused with the remedy or relief sought. Frost v. Witter, 132 Cal. 426, 64 Pac. 705, 84 Am. St. Rep. 53. This view of the complaint disposes of the errors complained of in the rulings of the trial court upon defendant's demurrer to the complaint on the ground of misjoinder and the motions to strike out and to sever and separately state the two alleged causes of action which it was contended were misjoined in the complaint. The special demurrers based upon alleged uncertainty of statement of ownership and other allegations as to the oranges taken by the Citrus Union and applied to the payment of the indebtedness secured by the chattel mortgages were properly overruled. There was unnecessary detail, perhaps, in the allegations relating to this element of damage, but no uncertainty or ambiguity that could mislead the defendant in pleading to the complaint. The Citrus Inion was neither a necessary nor proper party to the action. It had a right under its contract to apply the proceeds of the orange sales to the indebtedness due it, and plaintiff could not recover the money back merely because he had contracted with defendant to pay the whole of the mortgages and the latter had failed to do so. Plaintiff's only right of action was against defendant for the breach of his contract. The crop mortgage for $2,000 given by Gore constituted a lien upon all of plaintiff's crops, and its assumption by defendant was made a part of the consideration for the conveyance to him. cannot now question whether plaintiff's obligation to pay it was a legal or moral one. Hartwig v. Clark, 138 Cal. 668, 72 Pac. 149. Plaintiff treated it as a binding obligation and so did defendant when he directed the Citrus Union to apply the proceeds of sales of plaintiff's oranges to its payment, and also later when he paid the balance due thereon to the Citrus Union. Having directed the application of plaintiff's money to its payment, he is estopped to deny the validity and enforceability of the obligation against plaintiff's demand for a repayment of the money so applied.

He

. The construction of the contract by the trial court was correct. In ascertaining what is meant by the language used in a written instrument, the object in view and the circumstances surrounding its execution must

Neale v. MorTaking the con

be taken into consideration. row (Cal. App.) 88 Pac. 815. tract here under consideration by the four corners, and reading it with the eyes of those who made it, by the light and under the circumstances which surrounded its execution (Walsh v. Hill, 38 Cal. 487), we see that plaintiff had four parcels of land incumbered with mortgages; that defendant agreed in consideration of the conveyance to him of two of the parcels to assume the payment of all the liens on the four parcels and pay the plaintiff $2,300. The consideration to plaintiff then was the clearing of parcels 3 and 4 from the mortgage liens and the $2,300 cash in hand. The oranges severed from the land prior to the sale were the property of plaintiff. The amount of the crop mortgages, ascertained on the face of the agreement, was $2.700. This amount was fixed as the liability of defendant by the contract, and the plaintiff was required to pay the interest thereon to the date of sale. This construction of the "escrow" and the clause in the conveyance justifies the conclusions reached by the trial court. The evidence introduced warrants the findings of the court, and justified it in denying the defendant's motion for a nonsuit.

A careful consideration of the errors assigned in connection with the admission of evidence discloses no prejudicial error. A number of exhibits, copies of account sales, check sheets of the California Citrus Union showing particulars of oranges received from, and sold for and on account of, M. Hurwitz, were admitted in evidence over the objections of defendant. These were identified by the employés of the company in whose custody they were, who testified that they were the original sheets received from the district agent at the Covina office, the place at which the oranges were received and from which the shipments purported to have been made; that the witness did not make the entries; they were not made in his presence; and that he had no information as to the knowledge of the district agent who made them. The district agent at Covina testified that the transactions took place during his predecessor's incumbency; that he knew nothing of the transactions to which they referred except as to the custom of making such records; that he received them from his predecessor as records of the office; that he was acquainted with the agent in whose handwriting they were and with his handwriting; and that they were in his handwriting. A "ledger sheet" and "weigher's receiving account slip" were also admitted in evidence over the objections of defendant. These were identified by the chief clerk in the office of the Citrus Union as original records from that office. He also stated that the bookkeeper who kept the book showing the account of Mr. Hurwitz was no longer in the employ of the company, and when last heard from was in Arizona. The wit

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