VOL. I. APRIL 20, 1878. No. 4 Legal Notes. LOOK OUT FOR DEFECTIVE BLANKS. The demurrer to the complaint of Bertha B. Block against Sheriff Nunan was sustained in the Fifteenth District Court one day last week. The action was to recover personal property seized by the Sheriff. Judge Dwinelle remarked that the lawyer had been misled by one of the miserably-drawn blanks sold by stationers. The complaint does not say that the goods were wrongfully seized, or that any demand had been made for their return, or that they were in the possession of the defendant when a demand was made. This is like a majority of the printed blanks. IN the case of Hagar vs. Spect, decided March 21st, and published in the LEGAL RECORD, No. 1, a petition for rehearing has been filed upon motion of Belcher for respondent, and a stay of proceedings granted until same is determined. IN the case of Zeinwaldt vs. the Sacramento City Railway Company, reported in the RECORD of last week, it is now or dered that the remittitur be stayed, and we suppose the company intend making one more effort before consenting to the payment of the gardener's claim. IN Billings vs. Drew, published in the RECORD of last week. a stay of proceedings has been granted, upon motion of Armstrong, for respondent, and filing of petition for rehearing. REHEARING has been granted in the case of DeCelis vs. Maclay, et al.; also in the case of People vs. Jones; Orena vs. Dewlany; Shaw vs. Wadsworth; and in City of Stockton vs. Reid, as the counsel who tried it in the Court below and prepared the points here, was prevented by sickness from arguing the case. A BIG DAY'S WORK.-Twenty-five decided cases have just been filed by the Supreme Court, in one day—April 19thtoo late for report in this issue. ADMITTED TO PRACTICE.-Wm. H. Allen was admitted to practice by the Supreme Court on April 9th, upon a license from the Court of Appeals from Kentucky; and, on April 15th, Wm. Dorsey Carlile, on motion of Hon. Creed Haymond, and a license from the Supeme Court of Illinois. SECRETARY OF SUPREME COURT.-Mr. Carl C. Finkler has resigned the office of Secretary and Librarian of the Supreme Court of this State, which he has filled for some eleven years, and Mr. T. F. O'Connor, the genial and capable Baliff, has received the appointment. JUDGE FREELON, announces that he expects to occupy the present Probate Court-room for the Municipal Court of Appeals by the 20th of May, when the calendar will be called and the remainder of the vacation will be devoted to the disposal of cases in which parties are ready on both sides. No cases will be disposed of ex parte or by default of appearance during vacation. WE had all ready for publication in this issue-an exhaustive statement of the celebrated "Cunningham Will Case,"prepared by Robert Ash, Esq.-one of the attorneys in the case-but which, we regret to say, was crowded out at the last moment, by the press of Supreme Court Opinions-which always have precedence. Supreme Court of California. [April Term, 1878.] [No. 10,342.] [Filed April 11, 1878.] THE PEOPLE vs. MCKELLER. On appeal from San Joaquin County Court-W. S. BUCKLEY, Judge. TESTIMONY-Cross-ExaminatION.-The direct testimony of a witness must not be discredited by contradictory evidence on a collateral or irrelevant issue. He cannot be cross-examined as to collateral facts, for the purpose of contradicting or impeaching his testimony-in-chief. [See 1st Greenleaf Er., § 449.] STATEMENT OF FACTS. On May 25, 1877, the defendant was indicted jointly with James Hopkins, Frank Jones, Chas. Jefferson, and Frank Moore, by the Grand Jury of San Joaquin county, at Stockton, for burglary of a railroad car on the night of Saturday, April 21st, while running between Lathrop and Stockton, between 3 o'clock and 3:50 A. M. of Sunday, April 22d. The articles taken were a case of cigars and a case of shoes. Upon trial, some of the evidence was in confession by some of the prisoners, and somewhat contradictory. One witness, Carolan, testified to seeing the defendant on the corner of Third and Mission streets, San Francisco, on the same Sunday between 3 and 4 P. M. The prosecution sought to throw discredit upon this by cross-examination and comparison of his statements as to residence. Defendant found guilty and sentenced to three and one-half years in State Prison. Motion for new trial denied, and appeal taken. District Attorney J. A. Hosmer, assisted by W. L. Dudley, for People. OPINION BY THE COURT. The prisoner, in order to prove that he was not present in San Joaquin county at the commission of une burglary for which the indictment procedes, produced a witness, Richard Carolan, who testified in substance that he had seen the prisoner at the corner of Third and Mission streets, in the city of San Francisco, on Sunday, April 22, 1877, between 3 o'clock and 4 o'clock P. M. It was conceded at the trial, that if the prisoner was present in San Francisco at the time mentioned by the witness Carolan, it was impossible for him to have been present at the scene of the burglary. The witness Carolan, upon his cross-examination by the counsel for the People, stated that he had lived in the city of San Francisco ever since 1855, except that he had been out of the city for the space of two years, working on a ranch in Marin county. He also stated that he had testified in this cause as a witness for the prisoner at a former trial. He was then asked by the counsel for the People if he did not testify at the former trial that he had lived in Marin county four years, or that he had been in that county six or seven years since the year 1855, and answered that he had not so testified. In their case in rebuttal the People, in order to contradict the witness upon this point, were permitted by the Court, against the objections of the prisoner to read to the jury a portion of the evidence given by the witness at a former trial, and by which it was made to appear that he had, in point of fact, testified as claimed by the counsel for the prosecution, and had stated at the former trial that he had been absent from San Francisco, and in Marin county some six or seven years since 1855. In permitting the prosecution to contradict the witness on this point the Court below erred. The witness had testified in chief, that he had met the prisoner in San Francisco in the month of April, 1877. When, on his cross-examination, and in answer to questions put by the prosecution, he testified that he had first gone to live in San Francisco some twenty-two years before, and that since the year 1855 he had been in the county of Marin only two years, he testified to matters merely collateral in their character, and under the well settled rules concerning the production of evidence the prosecution were bound by his answers. "But it is a well settled rule," says Mr. Greenleaf, "that a witness cannot be cross-examined as to a fact which is collateral and irrelevant to the issue merely for the purpose of contradictiug him by other evidence, if he should deny it, thereby to discredit his testimony. And if a question is put to a witness which is collateral or irrelevant to the issue, his answer cannot be contradicted by the party who asked the question; but is conclusive against him." (1 Greenleaf Er., § 449.) Judgment and order denying a new trial reversed and cause remanded for a new trial. [No. 10,331.] [Filed April 11, 1878.] THE PEOPLE vs. MORINE. On appeal from Tenth District Court, Colusa county, PHIL. W. KEYSER, Judge. TESTIMONY.In a criminal case, the jury must be satisfied beyond a reasonable doubt that every fact essential to constitute the offense charged has been proved. STATEMENT OF FACTS. Antoine Morine was indicted by the Grand Jury of Colusa County, on July 16th, 1877, for the murder of F. L, Gardiner, committed May 6th, 1877, in a saloon in Butte City, Colusa Co., with a knife, on Sunday evening, and Gardiner died on the following Tuesday. There were three eye witnesses besides the defendant. Morine was convicted, on trial, of murder in the first degree, and sentenced to imprisonment for life. His counsel took many exceptions to the rulings of the Court, as to admission of evidence objected to, and testimony prepared by the Defendant, and refused. Motion was made for new trial, and overruled. Appeal then taken on questions of law and fact, among them certain instructions asked by Defendant and refused by the Court, to this effect: " Jury must be entirely satisfied beyond a reasonable doubt that Gardiner died from the effect of wounds inflicted by defendant, and did not die from any other cause," or must acquit; and three others of like bearing, the refusal of which, the Judge avers, was for want of conformity to the law, and the difficulty of correcting them amid the distractions of the trial, and proper examination of points, etc. Jackson Hatch, District Attorney, for people. A. L. Hart, attorney for defendant and appellant. OPINION BY THE COURT. The Court below erred in refusing the instruction asked by defendant's counsel: "Before the jury can convict defendant, they must be entirely satisfied, and beyond a reasonable doubt, that deceased, Gardiner, died from the effect of wounds inflicted by defendant, and did not die from any other cause." In a criminal case the jury must be satisfied beyond a reasonable doubt, that every fact essential to constitute the offense charged has been proved. Judgment and order reversed and cause remanded for a new trial. THE [No. 10,324.] [Filed April 11, 1878.] PEOPLE vs. METHVIN. On appeal from Colusa County Court, F. L. HATCH, Judge. IMPEACHMENT-PERSONAL KNOWLEDGE.-Evidence tending to impeachment of a witness must not be based on personal knowledge as distinguished from general reputation. STATEMENT OF FACTS. J. D. Methvin and R. B. Methvin were indicted for grand larceny on July 31, 1877, by the Grand Jury of Colusa county, and tried by jury at October term of 1877 and found guilty, with recommendation to the mercy of the Court. The larceny was thirty-three sacks of wheat, value $100, from one J. |