per cent solution of potassium hydroxide. Coutts testified that these substances were prepared and kept for various uses, such as injuring the bearings on machinery, starting incendiary fires, poisoning livestock and putting the lastnamed chemical in the shoes of laboring men who refused to join the I. W. W. He testified that at a meeting of the organization held in its hall in Stockton, about October 1, 1917, a motion was made to send a committee to Modesto "to smoke up the town" because a delegate had been arrested there for selling I. W. W. literature; that the chairman of the meeting stated that such a motion could not appear upon the minutes "but if it had to be done . . . that there was men there that knew how to do it"; that the witness and three others, one apparently the chairman of the meeting, immediately after the adjournment thereof, prepared some phosphorus "kitties" for the purpose of starting fires and later went to Modesto where they placed the kitties in various barns, causing several fires. G. J. Davis, who was then a deputy sheriff at Modesto, testified that between the hours of 10:10 P. M. on the 6th of October, 1917, and 3:05 the next morning eight different fires started in Modesto. He also testified that numerous isolated stacks of hay were burned during the summer of 1917. Other corroborative evidence was introduced, but space forbids the enumeration of any considerable number of the crimes concerning which the former members testified or the corroboration thereof. It is sufficient to say that there is ample corroboration of much of the testimony of at least two of the accomplices. In view of the conclusive character of the evidence, it cannot be said that the refusal to give the proposed instruction has resulted in a miscarriage of justice.

[5] Appellants contend that it was error to admit evidence of the crimes committed by the former members. Such evidence was admissible to establish the character of the organization. (People v. Steelik, supra.) The evidence was very similar to and much of it identical with that in the case of People v. Roe, 58 Cal. App. 690 [209 Pac. 381], in which the judgment was affirmed.

[6] It is contended that the court erred in admitting hearsay declarations. Coutts was permitted to testify that in the I. W. W. hall in Stockton, in the presence of the local secretary and other members, including the witness,

Connellan said that he had placed potassium hydroxide in several men's shoes, including those of Joe Arada, on one occasion, because they would not quit their employment. Arada testified that on the occasion referred to fourteen or fifteen men came to the place where Arada and others were employed and worked during one afternoon; that they slept that night in the same room which the other men occupied, and all the newcomers left the next morning before breakfast, leaving some I. W. W. literature on the floor where they had slept; that the feet of himself and the other men were injured by some acid which had been placed in their shoes, those of witness seriously. It is clear that the testimony as to what Connellan said he had done was hearsay in so far as proof of the fact stated by him is concerned. It does not clearly appear whether such statement was made at an authorized meeting of the organization. If made at an authorized meeting, then the testimony was admissible, not as proof of the fact stated, but in connection with any action. or omission to take action by the organization relative thereto, as showing its attitude toward the commission of such crimes by its members. In any event, there was other evidence which justified the inference that members of the organization had placed acid in the men's shoes on the occasion mentioned, and, in view of the innumerable unlawful acts committed by members thereof, as shown by the evidence, it is not believed that the admission of the evidence of which complaint is made could have prejudiced the rights of the defendants. Coutts testified that on two occasions he went out with other members to place kitties for the purpose of starting fires and that a number of fires occurred immediately thereafter. He was then permitted to testify that after the fires had started some of the members who had gone with him said they had placed some of the kitties. The testimony as to what the other men said, being a statement of a past event, was purely hearsay and should have been excluded. From the testimony properly admitted, however, to the effect that the members went out for the purpose of setting fires and that fires immediately thereafter occurred at the places where they had gone, the inference naturally arises that they had started them, and the admission in evidence of their subsequent declarations that they had done so was harmless error. Counsel for appellants say that

there are "many other instances in which the trial judge allowed witnesses to testify as to unsworn statements of others which were a mere narration of past events," but they fail to point them out. It is incumbent upon an appellant to point out specifically the errors relied on. The testimony covers more than seven hundred pages of the transcript, and this court must not be expected to search through the long record for errors to which particular attention has not been called. A few minor errors similar to those discussed have been discovered, but it is sufficient to say that none of them are prejudicial. While a court should carefully guard against the admission of hearsay evidence, in a case where so wide a range of evidence is permissible for the purpose of proving the character of an organization, some improper evidence usually creeps into the record, but in this case the hearsay evidence admitted is comparatively, as said in the anarchist's case, Spies v. People, 122 Ill. 1 [3 Am. St. Rep. 320, 12 N. E. 865, 17 N. E. 898], "so inconsiderable that it could not have in any way injured" the defendants.

[7] The testimony of the witness Townsend embraced his criminal activities as a member of the I. W. W. in a large number of states. He testified that during March, April, May, and June, 1921, he was in the employ of the Citizens' Alliance of Minneapolis. The court sustained the people's objection to the following question: "During the period of time that you say you were in the employ of the Citizen's Alliance in Minneapolis, isn't it a fact that you were in the Minneapolis general hospital undergoing treatment for general paresis?" Counsel for defendants explained the purpose of the question to the trial court as an effort to prove by the witness that at the time stated he was "suffering from incipient general paresis, which of course produces insanity, and it is incipient insanity." The objection should have been overruled. "It is admissible . . . in order to affect the credibility of the witness, to prove that he was or is subject to insane delusions; that his mind and memory are impaired by disease. (Wharton's Criminal Evidence, 10th ed., sec. 370a.) Such proof may be made by examining the witness himself. (Id., sec. 370b; People v. Haydon, 18 Cal. App. 543 [123 Pac. 1102, 1114]; People v. Salladay, 22 Cal. App. 552 [135 Pac. 508].) While it must

be conceded that the ruling of the court was erroneous, it is extremely doubtful whether defendants suffered any prejudire thereby. Whatever may be said of the character or trustworthiness of the witness, he endured the ordeal of a long examination on the witness-stand by both parties without any apparent display of mental weakness. From the nature of general paresis, it is highly improbable that one who was in a stage of the discase requiring his confinement in a hospital at a given time would have the mental capacity, eighteen months later, to undergo a long examination in court with the intelligence which the witness displayed.

[8] The court refused to give an instruction proposed by the defendants to the effect that persons have "the right to advocate peaceable changes in our constitution, laws or form of government." At defendants' request the court instructed the jury: "It is proper to seek desired changes in political and industrial control but when criminal or unlawful means are used to effect political control the means are punishable under the act defining and prohibiting criminal syndicalism." The instruction given substantially embraces the proposition of law contained in the one refused.

All the errors committed relate to the proof of the unlawful character of the organization. The proof thereof is so overwhelming that an examination of the whole case not only fails to show a miscarriage of justice but affirmatively shows that a reversal would constitute a miscarriage of justice.

The judgments and orders are affirmed.

Plummer, J., pro tem., and Burnett, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on June 22, 1923, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 19, 1923.

[Civ. No. 4171. Second Appellate District, Division One.-May 24, 1923.]

IMPERIAL WATER COMPANY No. 1 (a Corporation), et al., Respondents, v. IMPERIAL IRRIGATION DISTRICT et al., Respondents; IMPERIAL LAGUNA WATER COMPANY (a Corporation), Intervener and Appellant.

[1] INJUNCTION-ACTION TO PREVENT PAYMENT OF MONEY IN SETTLEMENT OF CONTROVERSY EXISTENCE OF CONTRACT - FINDING-EviDENCE. In this action by certain independent water companies to enjoin an irrigation district from paying a sum of money to another water company on account of an alleged contract of settlement of a controversy with respect to the diversion and use of water from a certain river, in which action the latter company intervened, the finding of the trial court to the effect that no contract was ever entered into between said irrigation district and intervener, "or anyone on its . . . behalf," was amply supported by the evidence.

[2] ID.-MATERIAL ISSUES-ABSENCE OF FINDINGS-REVERSIBLE ERROR. The failure of the trial court to find upon material issues is prejudicial error for which a new trial should ordinarily be granted; but a judgment will not be reversed on that account where, if the findings were in favor of appellant, no different judgment could be entered.

In such ac

[3] ID. FAILURE TO FIND ON SUBSIDIARY ALLEGATIONS. tion, the trial court having found that no contractual relation ever existed as between the irrigation district and the water company, intervener, and all the other allegations having been subsidiary and dependent upon that fact so far as the complaint in intervention was concerned, it was immaterial whether the court found for or against such other allegations, or whether there was any finding whatsoever with respect thereto.

[4] ID.-APPEAL-REVERSAL-PREJUDICIAL ERROR.-An appellant must not only show error, but he must also show that he is really harmed thereby before the appellate court will be justified in ordering a reversal of the judgment because of such error.

[5] ID.

CROSS-EXAMINATION OF WITNESSES-LACK OF PREJUDICE.-In this action by certain independent water companies to enjoin an irrigation district from paying a sum of money to another water company on account of an alleged contract of settlement of a controversy with respect to the diversion and use of water from a certain stream, in which action the latter company intervened, conceding that, under the pleadings in the case and the admissions