cannot be legally selected as a homestead. Laughlin v. Wright, 63 Cal. 113; McDowell v. His Creditors, 103 Cal. 264, 35 Pac. 1031, 42 Am. St. Rep. 114; Beronio v. Ventura Co. Lumber Co., 129 Cal. 232, 61 Pac. 958, 79 Am. St. Rep. 118. See, however, Gaylord v. Place, 98 Cal. 472, 33 Pac. 484. In no case has it been decided that where a portion of a building is dedicated to residence purposes, and is actually occupied by the claimant as the home of himself and his family, and such occupation is not merely incidental to the carrying on of some business in other parts of the building, the building and the land on which it is situated cannot be legally selected as a homestead. In Estate of Noah, 73 Cal. 590, 15 Pac. 290, 2 Am. St. Rep. 834, the property which it was sought to have set apart consisted of a four-story brick building of the value of $25,000, which had been erected and occupied exclusively for business purposes.

Appellants rely also on a line of cases where it is held that where two or more buildings suitable for dwelling house purposes, belonging to the claimant, are situated upon the same parcel of land, and the claimant resides in one, he can legally select but one as a homestead. In re Ligget, 117 Cal. 352, 49 Pac. 211, 59 Am. St. Rep. 190; Tiernan v. His Creditors, 62 Cal. 286; Maloney v. Hefer, 75 Cal. 422, 17 Pac. 539, 7 Am. St. Rep. 180; Lubbock v. McMann, 82 Cal. 226, 22 Pac. 1145, 16 Am. St. Rep. 108; In re Allen, 78 Cal. 293, 20 Pac. 679. The distinction between these cases and the case of a single building is obvious. Under the express terms of the statute, the homestead "consists of the dwelling house in which the claimant resides and the land on which the same is situated." While this definition may include not only the land on which the dwelling house stands, and of which it has become a part, but also such other land as may be necessary to its convenient use and occupation, it does not, when fairly construed with a view to the objects of the homestead law, include such other land as has resting thereon, as a part thereof, a building or buildings devoted to other purposes than those of a family home.

In the case at bar one floor of a threestory residence building was actually occupied as the family home, the occupation being solely for the purposes of such a home, and not merely incidental to some other purpose. The place so occupied was an integral part of the land on which the building stood. The fact that the building contained two other stories, so constructed that they were more adapted for renting purposes by being built with separate street entrances, could not impair the right of the claimant to select as a homestead the building and all of the land on which it stood. While those floors may have constituted separate dwelling places, there was but one building, incapable of division, and the form of construction of

the building is immaterial. The case comes fairly within the doctrine of Heathman v. Holmes, supra, and we have no doubt that the property could have been legally selected as a homestead during the life of the husband. As has been frequently said, the homestead statute is a remedial measure, and should be liberally construed. Being suitable for residence purposes at the time of its selection by the court, and of such a character that it could have been legally selected during the life of the husband, it was capable of selection by the court.

2. It is settled that there is no specified limitation of value in the case of a probate homestead, the rule being that the court may set apart such property as, regardless of its value, in view of the value and condition of the estate, may seem just and proper. Estate of Walkerly, 81 Cal. 579, 22 Pac. 888; In re Smith, 99 Cal. 449, 34 Pac. 77. It has been held that where an estate is insolvent the court must take into account the rights of creditors, and, as the Legislature has fixed the sum of $5,000 as the limit in value which the debtor may claim for his homestead against the demands of his creditors, “a wise exercise of judicial discretion would limit the homestead to be so set apart to this amount in value in the case of an insolvent estate, where a homestead of this value can be divided from the remainder of the estate, or where the property sought to be set apart is capable of such admeasurement." Estate of Adams, 128 Cal. 380, 384, 57 Pac. 569, 60 Pac. 965.

While the rights of creditors are not to be disregarded in setting apart a homestead, they "are subordinate to the right of the family to a home" (Estate of Adams, 128 Cal. 383, 57 Pac., 569, 60 Pac. 965); and if, in order to set apart such a home, it be necessary to take the entire estate of the deceased, the creditors' rights must yield (Keyes v. Cyrus, 100 Cal. 322, 34 Pac. 722, 38 Am. St. Rep. 296). Heirs, devisees, and legatees occupy, at best, no more advantageous position than creditors. Sulzburger v. Sulzburger, 50 Cal. 385; In re Davis, 69 Cal. 458, 10 Pac. 671; Estate of Lahiff, 86 Cal. 151, 24 Pac. 850. While they have rights which should be considered, the family is first entitled to a home, if there be property capable of being set apart as such; and where the only premises suitable for homestead purposes are indivisible, and no homestead can be given to the family unless the whole of such premises is given, the fact that such premises are valued at $17,500, and constitute in value nearly one-half of the estate, does not impair the homestead right, in the absence of a statutory limitation as to value.

As before stated, there is here no question as to the right of any creditor, and, so far as the record goes, it shows that the only other premises were appraised at a higher sum, and fails to indicate that the same, or any portion thereof, was of such a character that it could be set apart as a homestead.

In view of the peculiar condition of this estate, the action of the court below was just and proper. Being unable to divide the only property suitable for homestead purposes, it was necessary to set aside the whole of such property; but it was set apart for the most limited period-the period of administration of the estate-and it was further provided that the family allowance theretofore granted should cease and determine. Thus the rights of all others interested in the estate were preserved so far as was practicable. The order is affirmed.

1. In a prosecution for rape, an instruction that "the fact that the prosecutrix made prompt and early complaint of the wrong # committed upon her person * aje * is independent and original evidence, and * considered may be in corroboration of her other testimony," etc., is not objectionable as telling the jury that prosecutrix did in fact make prompt and early complaint.

*

*

2. In a prosecution for rape, it is proper to instruct that the fact that prosecutrix made prompt complaint is independent and original evidence, and may be considered in corroboration of her other testimony.

3. The fact that prosecutrix failed to make prompt complaint of an alleged rape is not conclusive of defendant's innocence.

4. In a prosecution for rape, an instruction that it is the jury's province to determine the weight and credibility of prosecutrix's testimony as of any other witness testifying in the case, and if such testimony creates in their minds a satisfactory conviction and belief beyond a reasonable doubt of defendant's guilt it is sufficient of itself, without corroboration, to justify a verdict of guilty, is not objectionable as telling the jury that if they believe the prosecutrix they must find the defendant guilty.

5. Where, in a prosecution for rape, the evidence admits of no doubt as to the sexual interzourse, and there is no evidence tending to reduce the offense, it is not error to refuse to charge on assault with intent to commit rape and other lesser offenses.

6. In a prosecution for rape, defendant requested instructions that he was a competent witness, and the jury were as much bound to consider his evidence as that of any other witness, and to give it all the weight they believed it entitled to; and also that if from all the testimony, including defendant's, there remained a probability of his innocence, it was sufficient to raise a reasonable doubt, and entitled him to an acquittal. Held, that as these instructions singled out the testimony of a particular witness for comment it was not error to refuse them.

7. The fact that the court indorsed on these instructions that they were refused because the defendant did not testify, when in fact he did testify, did not make their refusal erroneous.

8. In a prosecution for rape, an instruction that prosecutrix's prompt complaint of the wrong is original evidence, and may be considered in corroboration of her other testimony, is not objectionable as singling out the testimony of a particular witness for comment.

9. In a prosecution for rape, prosecutrix's testimony as to her physical condition at the time she complained to her mother shortly after the assault, and as to certain treatment by her mother to relieve such condition, is admissible. 10. On the retrial of a criminal case after reversal, in sustaining defendant's objection to certain questions, the court remarked, "I do not propose to have this case go up there and be reversed again if I can help it." Held not ground for reversal, as indicating to the jury that the court expected or wanted a verdict of guilty.

Commissioners' Decision. Department 1. Appeal from Superior Court, Yolo County; E. E. Gaddis, Judge.

William Keith was convicted of rape, and appeals. Affirmed.

See 68 Pac. 816.

William S. Wall, for appellant. U. S. Webb, Atty. Gen., and C. N. Post, Asst. Atty. Gen., for the People.

CHIPMAN, C. This is an appeal from the second judgment of conviction of defendant for the crime of rape. The verdict of guilty is not called in question otherwise than through alleged errors of law occurring at the trial.

1. The court instructed the jury as follows: "Upon the trial of a defendant accused of the crime of rape the fact that the prosecutrix made prompt and early complaint of the wrong and injury committed upon her person, and to her character and chastity, is independent and original evidence, and is admissible and may be received and considered by the jury in corroboration of her other testimony given in the case." The objections urged are (1) that the court "tells the jury that it is a fact that the prosecution made prompt and early complaint"; (2) that the court by the instruction "distinguishes between one part of her testimony and the other" by stating that it was a fact that she made prompt and early complaint; (3) also that the court told the jury that her testimony was "independent and original evidence"; (4) that the instruction points out as the fact that "her chastity and character has received a wrong and an injury." The instruction states a well-recognized rule of evidence in this class of cases as applicable generally "upon the trial of a defendant."

It

in no sense can be held to be equivalent to saying, "the fact as testified to by the prosecutrix that she made prompt complaint," etc., or that "it is a fact that the prosecutrix made prompt and early complaint." The evidence is uncontradicted that she did make such complaint, but we do not think the instruction informs the jury that the fact was as she testified. That the instruction is a correct statement of the law is held in People v. Lambert, 120 Cal. 170, 52 Pac. 307, and in People v. Wilmot (Cal.) 72 Pac. 838, and we can see no error in so informing the jury.

2. The court instructed the jury that it is their province to determine the weight and credibility "to be given the testimony of a

female upon whom it is alleged in an information that a rape has been committed, and who testifies to the facts and circumstances of such rape as of any other witness testifying in the case. And, if such testimony creates in the mind of the jury a satisfactory conviction and belief beyond a reasonable doubt of the defendant's guilt, it is sufficient of itself, without other corroborating circumstances or evidence, to justify a verdict of guilty of rape upon the trial of the case." The objection urged is that the court singles out the testimony of the prosecutrix, and tells the jury how much weight they are to attach to it, and that under this instruction the jury might have found the defendant guilty though the prosecutrix never made complaint to any person. So far as making seasonable complaint to some relative or friend is concerned, it is not necessary to a legal conviction. This is but a circumstance in the case, and is received as corroborative of the testimony of the prosecutrix as to the criminal act itself. Failure to make prompt complaint might be in some cases a strong circumstance, if unexplained, contradictory of the prosecutrix, but not necessarily conclusive. The remaining objection is based, upon the decision of this court in People v. Johnson, 106 Cal. 294, 39 Pac. 622, and People v. Barker, 137 Cal. 557, 70 Pac. 617. In those cases the instruction was as follows: "While it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evidence is never sufficient to convict; if you believe the prosecutrix, it is your duty to render a verdict accordingly." The chief objection to this instruction made by the court was that it took from the jury the question of the intent with which the acts of the defendant were committed; that it might be true that defendant did all the acts testified to and not have intended to commit rape, and yet the jury were not at liberty under the instruction to so find. Both these cases were assaults with intent to commit rape. In the instruction now before us the jury are first told that it is within their province to determine the weight and credibility to be given the testimony of the prosecutrix who testifies to the facts as of any other witness, and in the second place that if her testimony creates in the minds of the jury a satisfactory conviction beyond a reasonable doubt of defendant's guilt it is sufficient without other corroborating circumstances. This is very far from telling the jury if they believe the prosecutrix they must find the defendant guilty. The jury is told that they must be convinced of defendant's guilt beyond a reasonable doubt, while in the cases cited the jury were told to convict whether the facts constituted guilt or not. Here the jury were fully instructed as to what must be proved and how proved before there could be a conviction, and if defendant's guilt was thus established beyond a reasonable doubt by the testimony 75 P.-20

of the prosecutrix it would be sufficient. The instruction complained of is not open to the objections made to the instruction in the cases last above cited.

3. It is complained that the court refused to instruct that the jury might find the defendant guilty of rape, assault with intent to commit rape, attempt to commit rape, battery and assault, and in fact instructed only as to the crime charged. The evidence in the case admitted of no doubt as to the sexual intercourse. If it was with the consent of the prosecutrix, there was no offense at all included in the crime charged; if it was without her consent and under the circumstances, it could have been nothing but rape. It was one thing or the other, and there was no evidence tending to reduce the offense. The court did not err. People v. Chavez, 103 Cal. 407, 37 Pac. 389; People v. Lopez, 135 Cal. 23, 66 Pac. 965; People v. Swist, 136 Cal. 520, 69 Pac. 223.

4. Defendant's instructions marked 11 and 12 were refused, and this is claimed to be error. In the first of these the court was asked to instruct the jury that the defendant was a competent witness, and that the jury "are as much bound to consider the evidence given by the defendant in the case as that of any other witness, and to give it all the weight you believe it entitled to." The instruction was indorsed, "Refused because the defendant did not testify." The second of these instructions was that "if from, all the testimony in the case, that of defendant included, there remains a probability of defendant's innocence, it is sufficient to raise a reasonable doubt of his guilt and to entitle him to a verdict of not guilty." Marked refused for the same reason as stated above. The defendant testified in the case, and the court no doubt inadvertently stated the ground of its refusal as it did. It is not material for what reason the instructions were refused; they did not go to the jury nor did the court's reasons indorsed thereon. This court has held it not error to refuse an instruction which singled out the testimony of a particular witness for comment. People v. Patterson, 124 Cal. 102, 56 Pac. 882; Thomas v. Gates, 126 Cal. 1, 58 Pac. 315; People v. Arlington, 131 Cal. 231, 63 Pac. 347; People v. Lonnen (Cal.) 73 Pac. 586. Instruction 20 was general, and applied to all witnesses, including defendant, and covered the point that the jury should "give such credit to each witness as, under all the circumstances, such witness seems to be entitled to." The case of People v. Cowgill, 93 Cal. 596, 29 Pac. 228, cited by appellant, does not sustain him. There the objectionable clause, stricken out by the court before the instruction was given, was in substance embodied in the instruction asked in this case. The instruction given as to the testimony of the prosecutrix (people's instruction numbered 19), first above noticed, involves an entirely different question than the one now before us, and was not amena

ble to the objection that it singled out a particular witness. As to the instruction marked 12, the court instructed the jury with clearness and repeatedly to the same effect as asked by defendant, and hence defendant was not injured. That instructions given in substance need not be repeated has often been held here.

5. Error is claimed on the alleged ground that the court permitted the prosecutrix "to tell about the facts of the complaint." The testimony complained of did not relate to the particulars of the alleged rape or of the complaint made, but related to the physical condition of the prosecutrix at the time she complained to her mother shortly after the assault, and also related to certain treatment by her mother to relieve the condition in in which the prosecutrix then was. We cannot see but that she was as competent a witness upon these facts as her mother or other person cognizant of them.

6. In sustaining defendant's objection to certain questions put to the prosecutrix by the district attorney, and referring to the decision of this court upon a point arising at the former trial, the court remarked: "I don't propose to have this case go up there and be reversed again if I can help it." It is contended that "by this remark the court plainly told the jury that the court fully expected their verdict to be that of guilty," and "that the court wanted the defendant convicted." If such an inference could reasonably have been drawn by the jury from the remarks of the court, we might well presume that they were prejudicial, and therefore error; but we think counsel attribute unwarranted importance to this remark. Trial judges should always endeavor to so rule as to avoid reversal, for presumably they thus avoid error, and error is always to be avoided. A more reasonable inference to be drawn from the remarks is that the court desired only to be right in his ruling, and meant no more than if it had said to counsel, "I wish to avoid making a mistake in my ruling and will sustain the objection." The remarks were unnecessary, but we can discover no prejudicial error in them.

It is advised that the judgment and order be affirmed.

We concur: HAYNES, C.; GRAY, C.

For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed: ANGELLOTTI, J.; SHAW, J.; VAN DYKE, J.

(141 Cal. 628)

PEOPLE v. WARD. (Cr. 946.) (Supreme Court of California. Jan. 16, 1904.) JUDGMENTS-CRIMINAL-CORRECTION BY

COURT-EXTRANEOUS EVIDENCE

-NECESSITY.

1. The power of a court to cause its acts and proceedings to be correctly set forth in its rec

ords, and to correct its records in accordance with the facts, extends to criminal as well as civil cases.

2. The power of a court to correct its records is not lost by mere lapse of time, and the rule as to the effect of the adjournment of the term has become obsolete.

3. When the record of a judgment itself affords satisfactory evidence, not only of a mistake therein, but also of what the order of judgment really was, it may be corrected without any further extraneous proof.

4. A record recited a conviction of embezzlement and an order that defendant "be punished by imprisonment in the State at F. for the term of seven years," and concluded with a statement that defendant was to be delivered to the proper officers of "said State Prison at F." The only sentence that can be imposed for embezzlement is incarceration in the state prison, and there is a state prison at F. Held, that the record was sufficient to authorize its correction so as to recite an order that defendant be "punished by imprisonment in the state prison at F. for the term of seven years."

Department 1. Appeal from Superior Court, City and County of San Francisco; F. H. Dunne, Judge.

Bernard Ward was convicted of embezzlement, and appeals from an order directing the entry of a judgment nunc pro tunc. Affirmed.

See 66 Pac. 372; 72 Pac. 343.

George D. Collins, for appellant. J. J. Lermen, W. W. Foote, U. S. Webb, Atty. Gen., E. B. Power, Dep. Atty. Gen., and Lewis F. Byington, Dist. Atty., for the People.

ANGELLOTTI, J. The defendant was convicted of embezzlement in the superior court of the city and county of San Francisco on November 14, 1899, and judgment was rendered by the court, Hon. F. H. Dunne, judge presiding, on December 2, 1899. Defendant appealed to this court from the judgment, the record on such appeal showing a judgment regular on its face, and on October 11, 1901, the judgment was affirmed. 134 Cal. 301, 66 Pac. 372. It was subsequently discovered that the only minute entry of a judgment in the superior court was the following, viz.: "Saturday, December 2, 1899. The People of the State of California v. Bernard Ward.-No. 12847. The District Attorney with the defendant and his counsel F. McGowan, Esq., came into Court, by the Court of the information duly presented on the 11th day of April 1899 by the District Attorney of the City and County of San Francisco charging said defendant with the crime of felony to wit: embezzlement of his arraign and plea of 'Nt Gly' as charged on said Information'; on the 29th day of April, 1899, of his trial and the verdict of the jury on the 14th day of November, 1899, Guilty as charged. The defendant show why judgment should not be against him through his counsel moved the court for a new trial upon all the statutory grounds on the 18th day of November, 1899, which motion was taken under advisement by the Court, and now this day

2. See Courts, vol. 13, Cent. Dig. § 372.

by the Court ordered denied. And no sufficient cause being shown or to the Court hereupon the Court renders its. That Bernard Ward having been duly convicted in his Court of the crime of felony, to wit: embezzlement, It is therefore ordered, that the said Bernard Ward be punished by imprison in the State at Folsom for the term of seven (7) years. The defendant was then of the said City and County to be by him delivered into the custody of the proper officers of said State Prison at Folsom, California." The district attorney thereupon moved, on notice, for an order correcting said minute entry so as to make it conform to and be a correct record of the judgment, stating in his notice that the motion would be based on the minutes and records of the court, and the knowledge of Hon. Frank H. Dunne, the judge who rendered said judgment. This motion came on for hearing before the court on November 19, 1901, Judge Dunne presiding. The district attorney introduced in evidence the notice of motion, and the minute entry hereinbefore quoted was received in evidence by consent. The court then stated that the minute entry was not a true record of the judgment, and that judgment had been rendered by said court on December 2, 1899, and that the judgment so rendered was correctly set forth in a proposed order, which was then shown to defendant. Defendant was then asked if he had any evidence to offer to show that the judgment alleged to have been rendered was not in fact rendered, and he offered no evidence. The court then made an order reciting the rendition of judgment on December 2, 1899, the adjudging part of which judgment was as follows: "It was therefore ordered, adjudged and decreed that the said Bernard Ward be punished by imprisonment in the State Prison of the State of California at Folsom for the term of seven years," and reciting the failure of the clerk to enter said judgment except as hereinbefore set forth, and declaring the judgment rendered to be the true judgment, and directing the entry thereof nunc pro tunc as of December 2, 1899. The defendant appeals from this order.

The inherent right and power of a court to cause its acts and proceedings to be correctly set forth in its records, and, where the record made by its clerk does not correctly show the order of direction in fact made by the court, to cause the record to be corrected in accordance with the facts, is not denied by the appellant. This matter is elaborately discussed, and the California authorities cited, in the opinion of this court in Kaufman v. Shain, 111 Cal. 16, 43 Pac. 393, 52 Am. St. Rep. 139. There can be no doubt that the power exists in criminal cases as well as in civil cases, as is clearly recognized by the decisions rendered in the matter of settling this defendant's bill of exceptions on appeal from the order here assailed. See Ward v. Dunne, Judge, 136 Cal. 19, 68 Pac. 105, and People v. Ward, 138 Cal. 684, 72 Pac. 343.

It is also now well settled that the power of the court to make such corrections is not lost by mere lapse of time, and in this respect the rule as to the effect of the adjournment of the term has become obsolete. Kaufman v. Shain, 111 Cal. 23, 43 Pac. 393, 52 Am. St. Rep. 139, and cases there cited; Freeman on Judgments, § 71; Black on Judgments, §§ 155, 157, 158, 162. Mr. Black says: "The power of courts to amend judgments after the close of the term extends to all omissions to enter the judgments pronounced by the court, and to clerical errors in the form of the entry, whether by introducing a fact which ought to appear on the record, or by striking out a statement of a fact improperly produced, and when the record affords sufficient evidence." Black on Judgments, § 158.

It is contended that there was not, upon the hearing of the motion in the trial court, any showing that the judgment as entered originally in the minutes was not the judgment rendered, and that there was no showing, other than the minutes containing the defective entry, as to what judgment actually was rendered. There may be some question as to the character of evidence competent to show an error in the recorded judgment, and as to the right to resort to the recollection of the judge, who rendered the judgment, after such a lapse of time. It was said, however, in Kaufman v. Shain, supra, that the question as to whether the clerk has correctly recorded an order is to be determined by the court in which the motion is made, and that the evidence offered in support of the motion "must be satisfactory to the judge of that court." It was further intimated that in some cases the judge's own memory might be sufficient. In that case the affidavit of the shorthand reporter was considered, together with the calendar and notebook kept by the judge. See, also, Morrison v. McCue, 45 Cal. 118, 119. These questions are, however, immaterial on this appeal, for it is universally established that, if the record itself furnishes the means of correction, the court may order the amendment without further proof. This is admitted by counsel for appellant. We are satisfied that the defective minute entry itself affords sufficient evidence to justify the court in making the order in question. It has never been held, as contended by appellant, that to justify such a correction there must be proof outside of and extrinsic to the contents of the entry sought to be corrected. In many cases it is doubtless true that the alleged defect is of such a nature that the contents of the entry do not afford satisfactory evidence of the mistake and of the order made or judgment rendered. In such cases, proof outside of and extrinsic to such entry is of course necessary, if the recollection of the judge cannot be invoked. The record entry may, on the other hand, be such as to afford to any reasonable mind satisfactory evidence, not only of the mistake, but also of what the order or judgment in reality was.