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could invoke making a distinction, if it were 2. DAMAGES-PERSONAL INJURIES - EVIDENCE permissible. His affidavit states no facts

OF FINANCIAL CONDITION. showing that he is in the actual possession un

The general financial condition of plaintiff

in an action for personal injuries is immaterial der the most liberal rule that might be indulg and irrelevant on the question of damages. ed in short of defining actual possession to [Ed. Note.-For cases in point, see Cent. Dig. be synonymous with constructive possession,

vol. 15, Damages, $ 499.) which, of course, would be absurd. We are 3. TRIAL-STRIKING OUT ANSWERS. therefore of the opinion that the actual pos

An irresponsive answer putting before the

jury what the court had properly ruled could session of property required to be had in

not be shown should be stricken out on motion. order to give the court jurisdiction under the [Ed. Note. For cases in point, see Cent, Dig. McEnerney act must be such an actual pos vol. 46, Trial, $ 238.] session as defined by the general rule, and 4. SAVE-NECESSITY OF OBJECTING TO QUESembodied in the Code sections referred to, as

TION.

Where it is not apparent from a question necessary to sustain title by adverse posses

that the answer will be inadmissible, the quession if maintained and continued for the pe tion need not be objected to, to entitle the opposriod required by law. All petitioner shows in ing party to move to strike out the answer. his affidavit is that he had constructive pos [Ed. Note.-For cases in point, see Cent. Dig.

vol. 46, Trial, $ 242.] session of the property. Before he is entitled to avail himself of the benefit of the McEner

5. SAME-INSTRUCTIONS-ASSUMING FACTS.

The conclusion to a requested instruction on ney act, he must be in the actual possession

contributory negligence that plaintiff had no of the property as that term is defined by the right, on the happening of some trivial ocauthorities cited, and the fact that he is in currence, to bring injury on herself, is objecactual possession must be stated or shown

tionable as assuming that plaintiff did, on the

happening of a trivial occurrence, bring injury in his affidavit. And, upon the hearing be on herself. fore the court for the purpose of obtaining [Ed. Note. For cases in point, see Cent. Dig.

the decree authorized under the act, he must vol. 46, Trial, § 430.] • prove actual possession of the property at Appeal from Superior Court, City and

the time of filing his complaint and making | County of San Francisco; John Hunt, Judge. his affidavit, as it is defined by these authori.

Action by Frances H. Johnston against C. ties.

B. Beadle, and others. From a judgment for It is further claimed by petitioner that, if plaintiff and from an order denying a mothe phrase "actual possession” is to be given

tion for new trial, defendants appeal. Rethe construction which we here give it, then versed. the act is unconstitutional as special legisla

C. H. Wilson, for appellants. Maguire, tion, in this: that it divides property owners

Lindsay & Wyckoff and Houx & Barrett, for into two classes, one having actual possession

respondent. of their property, the other only constructive possession, without any natural intrinsic or

HALL, J. Appeal from judgment and orconstitutional basis for the distinction. This

der denying defendants' motion for a new is not a new point. This act was attacked in

trial. The action was brought to recover Title, etc., Co. v. Kerrigan (Cal. Sup.) 88 Pac.

damages for injuries received by plaintiff 356, as unconstitutional, on all the grounds while a passenger on the steamer Point to which it was deemed vulnerable in that Arena, and the verdict and judgment were respect, and the point made now was made

in favor of plaintiff. there, but was not pressed, probably because

While the plaintiff was a passenger on the on reflection it was deemed untenable, as we steamer Point Arena, voyaging from San are satisfied it is.

Francisco to Little River, in Mendocino counThe petition for the writ: is denied.

ty, the steamer struck on the rocks near

Point Fort Ross, and plaintiff, while atWe concur: BEATTY, C. J.; HENSHAW, tempting to get out of her berth, was thrown J.; ANGELLOTTI, J.; SLOSS, J.; McFAR

or fell to the floor and was injured. It is LAND, J.; SHAW, J.

insisted by appellants “that there is absolutely no evidence of negligence on the part

of the defendants to sustain the verdict and (6 Cal. A. 251)

judgment," and also that "the evidence did JOHNSTON V. BEADLE et al. (Civ. 259.) not show any negligent act on the part of (Court of Appeal, First District, California.

the defendants which was the proximate Aug. 19, 1907.)

cause of the injuries complained of.” After 1. TRIAL-INSTRUCTIONS - SEVERAL INSTRUC

a careful examination and consideration of TIONS ON SAME SUBJECT-EFFECT.

the evidence in the record, we are satisfied The giving of several instructions on the that neither of these contentions of appelquestion of damages has not a tendency to lead the jury to think the court believes plaintiff lants can be sustained. The evidence is sufshould have a verdict; the court cautioning them ficient to justify the conclusion that the vesthat they are to make no such deduction, and all sel ran on the rocks because of the neglibut one of the instructions being worded to prevent the giving of excessive damages in the event

gence of defendants, and that such running of a verdict for plaintiff.

on the rocks was the proximate cause of the [Ed. Note.-For cases in point, see Cent, Dig. injuries to plaintiff: but, as we are of the yol. 4€, Trial, $ 513.]

opinion that the judgment and order must

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be reversed, and the action remanded for a should have objected to the question before new trial, for reasons hereinafter stated, we it was answered. The answer actually given do not think it necessary or expedient to is not a direct answer to the question put, as discuss in detail the evidence in the record. would have been such an answer as "I have

The court repeated in substance several supported in yself by my earnings as a dressinstructions on the question of damages. It maker.” The question put was susceptible is not claimed that any of these are not cor of an answer that would have been in accord rect statements of the law, but it is urged with the previous ruling of the court. Counthat the court, by thus laying stress on the sel for defendants were not obliged to asquestion of damages, led the jury to think sume that counsel for plaintiff was attemptthat the court believed a verdict should be ing to intentionally

ing to intentionally get an answer that rendered in favor of plaintiff. But the court would contravene the ruling of the court in express words cautioned the jury against that had just been made any more than we any such result. It said: “But the jury are will impute any such purpose to counsel. It not to understand that, because the court was only when the answer had been given instructs them upon the question of dam that it could be known that it was immateages, it thereby means to convey any intima rial and in violation of the previous ruling tion that in its opinion the plaintiff is or is of the court. The proper practice in such not entitled to damages.” Besides, an ex a case is to move to strike out the answer. amination of the instructions on the subject "When it is apparent from the question that of damages discloses that all but one were the answer will contain evidence necessarily manifestly intended and so worded as to inadmissible, then a motion to strike out prevent the jury from giving excessive or comes too late, unless preceded by an objecunreasonable damages in the event that they tion to the question, but the rule is othergave a verdict for the plaintiff.

wise where the evidence may or may not be We now come to a matter that necessitates admissible.” People v. Williams, 127 Cal. a new trial. The plaintiff pleaded special 212, 59 Pac.

212, 59 Pac. 581; People v. Lawrence, 143 damages through loss of time and earnings Cal. 148, 76 Pac. 893, 68 L. R. A. 193. The as a dressmaker, and at the trial gave evi court erred in refusing to strike out the andence in support thereof, to the effect that swer, “I have no other means or resources." she had been steadily employed prior to the It is also urged that the court erred in reinjury complained of as a dressmaker, and fusing to give two instructions requested by earned at such employment $2.50 per day defendants upon the defense of contributory and her board. She was then asked by her negligence. The first of these instructions, counsel: "Are you a woman of means?" we think, is open to the objection that it asDefendants objected to the question as im sumes that plaintiff, upon the happening of material, and the court sustained the objec a trivial occurrence, brought the injury on tion. Thereupon her counsel asked this herself, and for that reason was proj:erly question: "During the period you have been refused. It concludes in these words: “The a dressmaker, state the means by which you plaintiff had no right, upon the happening have supported yourself?' And she answer of some trivial occurrence, or such an occured: "I have no other means or resources." rence as would not create fear or apprehenWhereupon counsel for defendants at once sion of injury in the mind of an ordinarily moved to strike out the answer as not re prudent person, to bring injury on herself." sponsive, and on the ground that her means To say that a person had no right to do a and resources are immaterial and irrelevant. certain thing strongly suggests that such perThe court denied the motion, and in so do son did do that thing. The second of these ing, we think, committed error, for which a instructions is in these words: “If you find new trial must be ordered. The ruling of from the evidence in the case that the plainthe court to the first question above quoted tiff, in attempting to get out of and descend was correct. The general financial condition from her berth on the steamer Point Arena of the plaintiff was immaterial and irrelevant at the time complained of, did not act with to the question of damages, or to any issue ordinary care and prudence, and hold and in the case. Shea v. Railway, 44 Cal. 414; | guard herself from falling and injuring herMalone v. Hawley, 46 Cal. 409; Green v. self as a result of any motion of the vessel Southern Pacific Co., 122 Cal. 563, 55 Pac. that might have been expected at the time 577; Mahoney v. San Francisco, etc., Ry. Co., by an ordinarily prudent person, and that 110 Cal. 471, 42 Pac. 968. The answer of the such want of ordinary care and prudence witness (plaintiff) to the second question contributed to or caused the accident, then went beyond the legitimate scope of the and in that case your verdict must be for the question, and put before the jury the fact defendant.” This instruction is correct in that she was not only not a woman of its statement of principles of law, and the means, but had no means or resources other only reason suggested by respondent why it than her earnings as a dressmaker, and was should not have been given is that the court thus a flagrant evasion of the ruling of the sufficiently instructed the jury upon the subcourt to the first question above quoted. It is no answer to the contention or to the mo stance, gave the instruction under discustion of counsel for appellants to say that he

sion, An examination of the instructions giv

It ject of contributory negligence, and, in sub

en upon the subject, however, discloses that erred in the instruction relating to this matthey were all couched in very general terms, ter, and in not striking out certain testimony and it is at least doubtful whether they ful of the mother of the prosecutrix as to the ly cover the ground of the requested instruc complaint said to have been made by the tion. Inasmuch as the judgment and order latter. must be reversed for the error heretofore In so far as the first matter urged is not pointed out, it is sufficient for us to say that covered by the second, the presentation thereit would have been the better practice to

of brings it clearly within the rule so often have given the requested instruction.

announced by appellate courts that, where The judgment and order are reversed. the evidence is conflicting, the verdict of the

jury will not be disturbed. The probability We concur: COOPER, P. J.: KERRI

of the story told by the prosecutrix is a matGAN, J.

ter for the jury. People v. O'Brien, 130 Cal.

1, 5, 62 Pac. 297. It is admitted that there is (6 Cal. App. 255)

no direct evidence that the prosecutrix is not PEOPLE v. GONZALEZ. (Cr. 55.)

the wife of the defendant. There was no at(Court of Appeal, Second District, California.

tempt to establish this element of the case, Aug. 20, 1907.) 1. CRIMINAL LAW-APPEAL-VERDICT-CON

but there is some testimony from which the CLUSIVENESS.

inference might be drawn that the parties Where the evidence in a criminal case is were not married. On the other hand, all conflicting, the verdict will not be disturbed on

the testimony of this character introduced by appeal. [Ed. Note.--For cases in point, see Cent, Dig.

the prosecution might have been true, and vol. 15, Criminal Law, $ 3076.]

yet such a marriage exist. The case is to be 2. RAPE-EVIDENCE-SUFFICIENCY-PROOF OF

distinguished from that of Lewis v. People, NONMARRIAGE.

37 Mich. 518, relied upon by the Attorney Where on a trial for rape, there is ample General, in this: That the objection is a part opportunity for the state to prove directly that the accused and the prosecutrix were not hus

of the record on the motion for a new trial band and wife, indirect evidence of that fact here, while in the Michigan case the point will not suffice.

was not made in the court below, and the ap3. SAME-COMPLAINT-ADMISSIBILITY. The complaint made by the victim of a rape

pellate court refused to consider "the lack or on her return home a month and a half after

evidence direct in form, there being abundance the occurrence testified to by her is inadmissible, of other evidence," because it was too late though she is under the age of consent.

to make this objection in the appellate court [Ed. Note.--For cases in point, see Cent. Dig.

for the first time. Page 520. The age of the vol. 42, Rape, § 67.]

girl as testified to by the defendant (13) was 4. SAME. On a trial for rape on a child under the

not such as to compel the assumption that age of consent, the prosecution asked the mother there was no valid marriage between the parof the child as to whether the child on the ties for this reason. Marriage under the age date of the offense, or shortly thereafter, made complaint. On cross-examination, she testified

of legal consent without consent of parent or that it was made about a month and a half guardian is made voidable only under our after the occurrence. On redirect examination statute, and, if followed by cohabitation freethe mother disclaimed knowledge of the exact

ly and voluntarily after attaining the age time, but stated that it was a short time after the occurrence. Held, the proof of the com

of consent, cannot even be annulled. Civ. plaint was inadmissible.

Code, $ 82; People v. Beevers, 99 Cal. 286, [Ed. Note.--For cases in point, see Cent. Dig. 33 Pac. 844. It is apparent either that the vol. 42, Rape, § 67.)

prosecution overlooked this element of the Appeal from Superior Court, Los Angeles case, or tried it on the theory that the preCounty; B. N. Smith, Judge.

sumption of the innocence of the defendant Juan Gonzalez was convicted of rape, and was overcome by the presumption that a marhe appeals. Reversed.

riage contracted by a girl under the age of James D. Reymert, for appellant. U. S.

consent was void. The age of the girl as Webb, Atty. Gen., and George Beebe, Deputy

shown by her own and her mother's testimony Atty. Gen., for the People.

(11) might well justify this assumption of

nonmarriage. This was further strengthened TAGGART, J. Defendant was convicted by the testimony of the physician who exof the crime of rape alleged to have been amined the child and found that the menses committed by having sexual intercourse with had not yet appeared. The circumstances a female child under the age of 16 years who and evidence strongly support the inference was not his wife. He appeals from the judg that there was no marriage, but we cannot ment of the superior court sentencing him to accept or indorse the view that, where there 10 years' imprisonment in the state prison at is ample opportunity for the prosecution to Folsom, and from the order of the court de prove this element of the crime directly, innying his motion for a new trial.

direct evidence will suffice. We feel particuIn support of these appeals he urges that larly disinclined to this view as applied to the verdict is not sustained by the evidence ; this case, owing to the unsatisfactory charthat there is no proof that the prosecutrix is acter of the evidence upon which the convicnot the wife of defendant; that the court tion rests. It is not the province of this

court to deal with the weight of the evidence tions asked, the most than can be said is that where there is any conflict, but where the she appears to have answered that "on or sole evidence of the commission of the crime about May 15th, 1906, or shortly thereafter,** of rape rests upon the testimony of a child the child told her mother that "he did wrong." who says the act was committed while she On cross-examination she modified this by was asleep, that she woke up and found that saying that it was a month and a half after something was inserted in her body wrong, the occurrence. On redirect examination by and the defendant was at the foot of the the district attorney the witness disclaimed bed, that this was the only time she had in exact knowledge of the time, but says it was tercourse with the defendant, though she left a short time after the occurrence. The only her mother's house, and, the evidence shows, definite fixed time mentioned by the witness was gone for a month and a half, with him, is "about a month and a half after the bapit seems imperative that erery element of the pening." This in the witness' mind might crime should be clearly and legally estab be, and perhaps was, entirely reconcilable lished.

with the term "shortly thereafter" of the diThe complaint made by the child to her rect examination, or the "short time" of the mother upon her return home a month and redirect. The only definite time to be cona half after the occurrence testified to by her sidered by the court in ruling upon the mowas improperly admitted in evidence, and tion to strike out the testimony was that this must have been largely responsible for given on cross-examination. The remarks of the verdict of guilty found by the jury. The the court in making the ruling justify the incomplaint by the victim of rape which the ference that the testimony was admitted on law permits to be introduced in evidence is the theory that the jury might determine the one which follows so closely upon the occur question of time as a fact. This was error. rence as to be practically the first opportu The time of the complaint was material to nity available to tell one in whom she has con the determination of the question of law affidence. It is the fact of complaint immedi fecting the admissibility of the evidence, and ately that is supposed to show that she was it was the duty of the court to make its own an unwilling victim; it being presumed that finding of fact as to the time shown by the an innocent woman, so assaulted and outrag- testimony. Conceding that the admission of ed, will complain of the injury at the earliest the evidence by the trial court was an implied practicable moment. What she may say is finding that the complaint was made immehearsay, but the act of complaining is orig. diately, such a finding is not conclusive upon inal evidence. People v. Mayes, 66 Cal. 599, this court, as there is no conflict in the evi6 Pac. 691; People v. Stewart, 97 Cal. dence. The various statements of the witness 238, 32 Pac. 8; People v. Lanibert, 120 Cal. are all compatible with each other, and, wben 170, 52 Pac. 307. The same rule is applied in properly reconciled each with the others, those cases in which the female child is un show that the complaint was made a month der the age of consent. People v. Baldwin, and a half after the occurrence. This being 117 Cal. 244, 49 Pac. 186; People v. Wilmot, true, it should not have been admitted. 139 Cal. 103, 72 Pac. 838. The evidence ask For the foregoing reasons, the judgment ed to be stricken out, the failure of the court and the order denying defendant's motion for to do which is assigned as error here, is the a new trial are reversed, and the cause refollowing answer to a question propounded by manded for a new trial. the district attorney to the mother of the prosecutrix: “I know that he did wrong. We concur: ALLEN, P. J.; SHAW, J. She told me that he did wrong. I examined her, and found her condition such that she had been wronged." The question was: "I

(7 Cal. Unrep. 338) will ask you whether or not Carmen on or

ROTHROCK V. BALDWIN. (Civ. 318.) about May 15, 1906 (the date of the alleged

(Court of Appeal, Second District, California. occurrence), or shortly afterwards, made any

Aug. 20, 1907.) complaint to you that Juan Gonzalez had bad

APPEAL — RECO3D – ERRORS — DISPOSITION OF sexual intercourse with her?" The court in Case. structed the witness to answer "yes or no."

Where an examination of the record on apShe did not do so. The defendant immediate

peal suggests no error, and the attention of the

court is called to none by reason of the failure ly cross-examined the witness as to the time of appellant to file points and authorities, the of this complaint, and elicited the statement judgment will be affirmed. that the complaint was about a month and a

[Ed. Note.-For cases in point, see Cent, Dig. half after the occurrence, whereupon he

vol. 3, Appeal and Error, $ 3109.] made the motion to strike out, which was de Appeal from Superior Court, Los Angeles nied. The question was not objected to, and, County; W. P. James, Judge. as limited by the court, should have elicited Mandamus proceedings by A. B. Rothrock an unobjectionable answer. A motion to against Fred P. Baldwin, as clerk, and anstrike out the answer as not responsive would other, as president of the board of trustees have cleared the record, but, assuming that of the city of Long Beach, to compel defendthe witness attempted to answer the ques ants to issue and deliver a warrant for labur

performed for the city. From a judgment for the taking was denied, and defendant did for plaintiff, defendants appeal. Affirmed.

not demand that the issue of necessity should be

submitted to the jury, the right to submit the John E. Daly and Carl Monk, for appel- | issue to the jury was waived and the court must lants. F. A. Knight, for respondent.

find on it.
6. PROHIBITION - GROUNDS FOR RELIEF IR-

REGULARITY IN PROCEEDINGS.
ALLEN, P. J. This is a proceeding in

In proceedings to condemn land for a railmandamus commenced by plaintiff to obtain way right of way, the court left to the jury the an order of the superior court commanding and reserved for itself the determination of the

determination of the value per acre of a tract, defendant Downs, as president of the board question of necessity, after the jury had reaof trustees, and defendant Baldwin, as clerk dered a verdict. The jury awarded damages by of the city of Long Beach, to draw, sign, finding the value per acre, and the court subse

quently made findings on the question of necescountersign, and deliver a certain warrant sity. Held that, though the more orderly proon account of labor done and performed by cedure required a finding on the question of plaintiff for said city at its request, which necessity before leaving to the jury the deter

mination of the amount of damages to be awardpayment had not theretofore been made. A ed, the action of the court was not in excess of demurrer was interposed to the petition and jurisdiction, and was not reviewable on prohibioverruled. The cause was subsequently tried tion. upon its merits, findings of fact and conclu

7. SAME. sions of law filed and judgment entered in fendant in proceedings to condemn land for a

The action of the court in denying to defavor of plaintiff. From the judgment, so railway right of way the benefit of a jury trial entered, this appeal is taken.

is not in excess of the jurisdiction of the court, The transcript on appeal was filed Novem- and is not reviewable by writ of prohibition.

8. SAME-ISSUES. ber 2, 1906. Stipulations were filed for an

The court on application for writ of prohiextension of time within which appellants bition cannot impeach the verity of the recitals should file points and authorities. This time

This time of the findings and judgment of the trial court, expired in December, 1906, and no points or

as any error in the decision based on the in

sufficiency of the evidence may be disposed of authorities have ever been filed in the case. by appeal.

An examination of the record suggests no error, and, our attention being called to Application for a writ of prohibition by none, the judgment is ordered affirmed.

the Beaulieu Vineyard and others against

the superior court of Napa county and anWe concur: SHAW, J.; TAGGART, J. other to prohibit the superior court and the

judge thereof from enforcing an order and

to prohibit proceedings under or in further(6 Cal. A. 242)

ance of a judgment. An alternative writ was BEAULIEU VINEYARD et al. v. SUPERIOR issued, the order to show cause discharged, COURT OF NAPA COUNTY et al. and a peremptory writ denied. (Civ. 383.)

Carlton W. Greene, for petitioners. John (Court of Appeal, Third District, California. T. York, for respondents.

Aug. 19, 1907.) 1. PROTIBITION-GROUNDS FOR RELIEF-WANT OR EXCESS OF JURISDICTION-STATUTES.

BURNETT, J. The proceeding is for a Under Code Civ. Proc. § 1102, the writ of writ of prohibition. An alternative writ was prohibition is issued to restrain subordinate issued upon a verified petition. On the recourts acting without or in excess of jurisdic- turn day respondent filed a demurrer and altion. [Ed. Note.-For cases in point, see Cent. Dig.

so an answer, denying many of the allegavol. 40, Prohibition, $ 37.)

tions of the petition. Thereafter petitioners 2. EMINENT DOMAIN-PROCEEDINGS TO TAKE , filed a traverse of the answer; and respondPROPERTY-JURISDICTION OF COURTS.

ent-not to be outdone in volume of assevUnder Code Civ. Proc. $ 1243, the superior eration and denial-replied with a “rejoinder court has jurisdiction of proceedings to condemn land situated in the county.

to the traverse." We do not deem it necessary 3. PROHIBITION-GROUNDS FOR RELIEF.

to give special consideration to the demurrer The regularity of the proceedings of an in- of respondent. It is true that a sharp issue ferior court acting within its jurisdiction cannot is presented as to some of the facts, but, be reviewed on prohibition,

notwithstanding this want of agreement be [Ed. Note. -For cases in point, see Cent. Dig. tween the parties, the record is sufficient to vol. 40, Prohibition, $ 37.]

enable us to determine the controversy. 4. EMINENT DOMAIN-PROCEEDINGS TO TAKE PROPERTY-ISSUES.

This proceeding grew out of an action Where, in proceedings to condemn land brought by the San Francisco, Vallejo & Nafor a railway right of way, the allegations of pa Valley Railroad Company against petithe complaint were put in issue and the necessity for the taking was denied, it was neces

tioners, in the superior court of Napa county, sary to find on every material averment of the to condemn certain lands of the defendants complaint before judgment for the taking of the for a right of way for the railroad of the land could be awarded.

plaintiff in that action. Petitioners state 5. SAME-TRIAL BY COURT.

Where, in proceedings to condemn land for that “the object of this application is partica railway right of way, the allegations of the ularly to prohibit the superior court of Napa complaint were put in issue and the necessity | county and the judge thereof from enforcing

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