(66 Cal. 534)

LARCENY

PEOPLE v. FAGIN. (No. 20,057.)

Filed March 21, 1885.

STOLEN PROPERTY-POSSESSION AS EVIDENCE.

In a prosecution for larceny, the posses ion by the accused of recently stolen property is not sufficient in itself to justify a conviction, but is a circumstance to be considered, with other evidence, in determining the guilt or innocence of the person charged.

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

Chas. B. Darwin, for appellant.

The Attorney General, for respondent.

BY THE COURT. The court in effect charged the jury that if the property which the defendants were charged with having stolen was found in their possession soon after it was stolen, it was a circumstance tending to show their guilt, and that they were bound to explain the possession in order to remove the effect of it; and that such possession was a circumstance to be considered in connection with other suspicious facts and circumstances which might have been shown in the case; and that if the jury found that a part of the property was found in the possession of the defendants, and that they had failed to explain to the entire satisfaction of the jury how the defendants became possessed of it, that might be taken into consideration with all the other facts and circumstances as tending to show their guilt. And if the jury believed that the property described in the indictment was stolen, and that a part of it was afterwards found in the possession of the defendants, the jury were authorized to presume that all the property which they found to have been stolen was taken at the same time and place as that part which was found in the possession of the defendants.

We think the jury must have understood the court to mean that if the defendants were found in possession of any part of the property described in the indictment soon after such property was stolen, such possession, unless satisfactorily explained, was a circumstance to be considered, in connection with other suspicious facts, in determining their guilt or innocence. The charge, taken as a whole, would not, we think, convey to the jury the idea that the possession of stolen goods, unexplained, would of itself be sufficient to justify a conviction. If the jury were satisfied that the defendants stole so much of the stolen property as was found in their possession, then the jury might presume that all the property stolen at the same time and place was stolen by the defendants, unless there was some fact or circumstance tending to show that it was not.

The defendants did not request the court to further instruct the jury on these questions, or as to the rules applicable to circumstantial evidence. In the absence of such a request, we think the failure to

further instruct the jury does not constitute an error for which the judgment should be reversed. As we construe the charge it is not substantially erroneous.

Judgment and order affirmed.

(2 Cal. Unrep. 452)

CARLSON and others v. MUTUAL RELIEF Ass'N. (No. 8,198.)

Filed March 23, 1885.

1. VERDICT-CONFLICTING EVIDENCE ON MATERIAL ISSUE.

Where there is a substantial conflict in the evidence on a material issue, the finding of the jury will not be disturbed.

2. VERDICT, IF JUSTIFIED BY THE EVIDENCE, IS NOT CONTRARY TO LAW.

3. IMMATERIAL ERRORS-REVERSAL NOT GRANTED for.

Reversal will not be granted for errors in the admission of evidence, which do not affect the substantial rights of the appellant.

Department 2. Appeal from the superior court of the county of Mendocino.

E. S. Lippitt, for appellant.

T. L. Carothers, for respondents.

SHARPSTEIN, J. Two of the grounds of the motion for a new trial in this case are that the evidence is insufficient to sustain the verdict, and that it is against law.

The action was brought by the heirs of Elizabeth Carlson, deceased, to recover the sum which it is alleged the defendant agreed to pay, on the death of the said Elizabeth Carlson, to her heirs. The plaintiffs' right to recover depends on deceased being a member of the defendant association at the time of her death. If previous to her death. she paid all the assessments of which she had notice, then she was a member when she died. That was a question, and the only question, which the jury had to determine; and if there was any substantial conflict in the evidence on it, this court will not disturb the order denying the motion for a new trial.

The by-laws of the defendant provide that a member shall have 20 days within which to pay an assessment after notice of it; and if he do not pay within that time he may retain his membership by paying $1.25 within the next 20 days. But if nothing be paid within 40 days after the first notice, the person so in default ceases to be a member. Defendant's rules require all notices to be delivered to a member or sent by mail. In this case it is not claimed that any notice was delivered. The insistence is that the notices to which the deceased was entitled were sent by mail. Defendant's secretary testified that his assistant, Mr. Gilbert, did the mailing. The latter, on his direct examination, stated that he duly mailed the notices to which deceased was entitled; but on being asked, on his cross-examination if

he could testify that he actually mailed any notices to Mrs. Carlson, the deceased, he answered, "No, I cannot." He further stated that he had no means of knowing whether the notices were received by the parties to whom sent.

The surviving husband of the deceased did not testify as clearly as we think he might have done, in regard to the receipt of notices of assessments, but he certainly denied that notices of the unpaid assessments were received in the life-time of the deceased. The defendant claims that the notices were duly mailed. It was incumbent on it to prove that they were; and the only person who was introduced to prove that fact said he could not testify to it.

It is too plain to admit of argument that this court, on evidence of such a character, cannot hold that the jury were bound to find that notices of the unpaid assessments were duly mailed to the deceased in her life-time; a fortiori that the court erred in denying the motion for a new trial on the ground of insufficiency of the evidence to justify the verdict. If the verdict was justified by the evidence it was not against law. The notice sent out for Mrs. Carlson after her death, and the forwarding of money to the defendant by the husband, thereafter, were immaterial circumstances, and the admission of evidence to prove them could not, we think, under the charge and instructions of the court, have prejudiced the defendant. And as we cannot see that the error, if such it was, could possibly have affected the substantial rights of the parties, it is the duty of the court to disregard it. Judgment and order affirmed.

(12 Or. 81)

SUPREME COURT OF OREGON.

PETERSON V. Foss.

Filed March 16, 1885.

1. APPROPRIATION OF MONEY DUE ANOTHER.

Whenever one person obtains possession of money which, ex æquo et bono, belongs to another, the latter may maintain an action to recover it.

2. APPEAL-STIPULATION.

Question as to the effect of an irregularity in proceedings in appealing the case, made by stipulation of parties, not considered, the court not being a unit thereon.

Appeal from Clatsop county.

John Catlin and Raleigh Stott, for appellant.

C. W. Fulton, for respondent.

THAYER, J. This appeal is from a judgment of the circuit court for the county of Clatsop, rendered in an action in said court, commenced by the respondent against the appellant to recover money.

The complaint in the action contains a number of facts relating to the transaction between the parties, beginning with the sale of land in Washington Territory by the respondent to the appellant, the price therefor, the partial payments made thereon, and the execution of a promissory note to the former by the latter, with J. H. Jones & Co., for the sum of $2,000. It is further alleged in the complaint that said note was deposited in the safe at the Occident Hotel, at Astoria, for respondent; that subsequently the appellant went to said hotel, took said note, and went to Portland and collected the same, but failed to pay said sum of $2,000 to the respondent; that said note, and the money due thereon, was the property of the respondent, and that he was entitled to the possession thereof; that said appellant had failed to pay said sum to respondent, although the same was past due “and owing," and that it had been demanded.

The appellant answered the complaint, denying all the allegations thereof, and set up as a further defense, after setting out a history of the transaction as he claimed it, the payment over to the respondent of the $2,000. The case was tried by a jury, who returned a verdict for the respondent and against the appellant for $2,092, upon which the judgment appealed from was entered.

When the appeal came on for argument before this court the respondent made a motion to dismiss it, upon the ground that the transcript had not been filed within the time required by the statute. It appears that the transcript was not filed with the clerk of this court for a number of days after the time provided in the statute for filing transcripts for the October term, 1884, had expired; but the appellant's

counsel produced a stipulation between the attorneys for the respective parties, to the effect that the time for filing it had been enlarged, but no order for such enlargement of the time had been entered. Upon this point the court is not agreed, and express no opinion.

The case has been heard upon the merits, and, as the view taken by the court does not affect the ultimate rights of the parties, it has been deemed unnecessary to consider the question of the regularity of the appeal. There is no error in the record that the court has been able to discover. The action was for money had and received by the appellant for the use and benefit of the respondent, and we must, after verdict, conclude that the allegations of the complaint are true, as the jury have so found. The complaint contains redundant matter, but the gist of the action may be discovered, notwithstanding. The essence of the complaint is that the appellant took the note and collected it. When he did so he became possessed of money which equitably belonged to the respondent, and it mattered not whether he rightfully or wrongfully went and took the note. Whenever one person obtains possession of money which, ex æquo et bono, belongs to another, the latter may maintain an action to recover it. Hoxter v. Poppleton, 9 Or. 487; Buel v. Boughton, 2 Denio, 91.

The issue in this case involved simply the payment of the money over by the appellant to the respondent after the former had collected it. There were no errors in the instructions given by the court to the jury. The case was fairly submitted to them, and their verdict is conclusive upon the question in controversy.

The judgment appealed from is therefore affirmed.