the provisions of section 953a of the Code of Civil Procedure.

For a long time prior to and on November 10, 1911, Elizabeth Schwan was the owner of the tract of land described in the complaint. On that day she made a deed of this property conveying an undivided two-fifths thereof to Elizabeth Hans, an undivided two-fifths to Conrad Scholl, and the remaining one-fifth to Elias Trust. Deceased's deed was executed under the direction and advice of her attorney, who testified at the trial that the grantor delivered the deed to him in escrow with instructions that he deliver it to the grantees upon her death. Subsequent to its delivery the grantor procured the deed from her attorney on more than one occasion and exhibited it to some of her friends. On one of these occasions she returned to the office of her attorney and told him that the deed had been destroyed. It was never seen thereafter, but, over the objection of appellant, what purported to be a typewritten carbon copy of the original deed was produced by the attorney who drew it and was received in evidence. Some time after the destruction of the deed the grantor therein made and executed her will disposing of this same property. The defendant is the executor under this will.

The appeal is based upon the grounds: (1) That Scholl and Trust should have been made parties to the action; (2) that the testimony of the grantor's attorney was inadmissible; and (3) that the evidence was insufficient to support the findings of fact.

[1] (1) It appears that the interests of Scholl and Trust were not disclosed until the trial of the case. Νο allegations appear in the complaint relating to the fact that these parties asserted any claim against the interests of the parties who were named in the action. Thus no demurrer was filed raising the point of nonjoinder of parties. It seems to be conceded that under the deed Scholl and Trust were both tenants in common with the administrator of the estate of Elizabeth Hans, a fact which appeared for the first time when the deed was offered in evidence. Such being the case, it was not necessary to stop the proceedings in order to make either Scholl or Trust a party to the action. As tenant in common the administrator was entitled to sue

either jointly or severally for the protection of her interest. (Sec. 384, Code Civ. Proc.)

(2) Upon the question of the admissibility of the testimony of the grantor's attorney, appellant cites subdivision 2 of section 1881 of the Code of Civil Procedure, which provides: "An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him." Under the provisions of the code section appellant's position is unanswerable. The legislature prohibited the admission of testimony based upon confidential information gained by an attorney from his client. The reason for the law is illustrated by this case. The deed which was executed by the deceased was never delivered to the grantees nor to anyone to hold for them under written escrow instructions. Without the testimony of the attorney the destruction of the deed by the grantor before delivery was a complete and efficient revocation, as she undoubtedly intended it to be. By taking the testimony of the attorney, the want of escrow instructions was supplied by parol and a deposit in escrow was created. The value of the code rule as well as the evil of its nonobservance is also illustrated by the circumstances of this case. All the acts of the grantor and statements made by her to her friends demonstrate that she did not know the effect of her deed or that she did not intend to create an escrow condition. If such had been her intention the simplest precaution would have dictated the writing of instructions covering the escrow. If she had been living at the time of the trial she could have denied the testimony of her attorney and it would seem to be self-evident that his testimony was just the kind intended to be prohibited by the code section. But the supreme court, in Estate of Nelson, 132 Cal. 182, 188 [64 Pac. 294], held that the confidential relation between attorney and client was waived when he was employed to draw his client's will; that "by requesting his attorney to draw his will the client impliedly asks him to do and say whatever may at any time and place be requisite for the purpose of establishing the integrity of the will." If this is true regarding the preparation of a will it should also apply to conversations relating to the preparation and execution of a deed placed in escrow transferring possession of real property after the death of the grantor. Though we are

unable to draw from the statute the exception stated in the Nelson case, the decision of the court is controlling. Respondent also relies upon Smith v. Smith, 173 Cal. 725, 732 [161 Pac. 495]. But this case is not in point because the communications of the attorney Russell there under consideration were made in the presence of other parties, while the testimony of the attorney Taylor were not attacked on the ground that it was privileged.

(3) The attack upon the findings is based upon the ground that the testimony of the grantor's attorney was inadmissible. It is granted that respondent's entire case depends upon the testimony of this witness and that if this testimony was stricken out her case would fall. There cannot be any question that there is sufficient evidence in this testimony to support the findings of the trial court.

Judgment affirmed.

Sturtevant, J., and Langdon, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on July 3, 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 August 6, 1923, and the following opinion then rendered thereon:

THE COURT.-[2] In denying the petition for transfer to this court after decision by the district court of appeal we deem it proper to say that escrow instructions given by the grantor in a deed are not privileged communications even though such instructions be given to a party who has theretofore, or at the time occupies the position of attorney to the grantor. The assumption that the attorney, while acting as the depository of the deed, is occupying the position of attorney to the grantor, and acting as the agent of the grantor, assumes the very matter in issue where the question of delivery in escrow is involved, because if the attorney is acting solely as the attorney for the grantor then the deed in the possession of the attorney, as such, is, in legal effect, in the possession of the grantor and there has been no delivery whatever. The very act of constituting the attorney depository of the deed in escrow makes him the agent

62 Cal. App.-29

of both the grantor and grantee (McDonald v. Huff, 77 Cal. 279, 282 [19 Pac. 499]; Wellborn v. Weaver, 17 Ga. 267 [63 Am. Dec. 235]; Davis v. Clark, 58 Kan. 100 [48 Pac. 563]; Gammon v. Bunnell, 22 Utah, 421 [64 Pac. 958]), and renders the instructions given to him unprivileged.

[3] Instructions to the holder of a deed delivered in escrow with reference to its delivery are not "in the course of the professional employment" of the attorney within the meaning of section 1881, subdivision 2, of the Code of Civil Procedure, although the delivery be made to the grantor's attorney, but are instructions which he is bound to reveal at the request of the grantee for whose benefit the instructions are given. "Where the communication between the client and attorney is one authorizing the attorney to perform some act on behalf of the client, the communication giving such authority is not a confidential communication by the client, and the attorney may testify to the instructions given to him. (Burnside v. Terry, 51 Ga. 186; Williams v. Blumenthal, 27 Wash. 24 [67 Pac. 393]; Bruce v. Osgood, 113 Ind. 300 [14 N. E. 563])." (Collette v. Sarrasin, 184 Cal. 283, 284 [193 Pac. 571, 572]. See, also, Henshall v. Coburn, 177 Cal. 54 [169 Pac. 1014]; Ruiz v. Dow, 113 Cal. 498 [45 Pac. 867].)

The petition is denied.

[Crim. No. 692. Third Appellate District.-June 7, 1923.] THE PEOPLE, Respondent, v. CARTER SINGH, Appellant. [1] CRIMINAL LAW-INFAMOUS CRIME AGAINST NATURE-EVIDENCEAPPEAL. In this prosecution for the commission of the infamous crime against nature, while there was a sharp conflict in the evidence, the story of the victim of the assault, a boy of the age of nine years, having disclosed every fact material to a conviction, the case was properly one for the jury to determine, and the appellate court could not substitute its judgment for theirs as to the facts.

[2] ID.

INSTRUCTIONS-DEFINITION OF CRIME.-In such a prosecution, an instruction, in the language of section 287 of the Penal Code, that "any sexual penetration, however slight, is sufficient to complete the crime against nature," is not rendered erroneous by the addi

tion of the further statement that "evidence of emission is not necessary."

[3] ID.-DATE OF COMMISSION OF OFFENSE.-In such a prosecution, the jury is properly instructed that "it is not necessary for the prosecution to prove the commission of the offense" on the date charged in the information, "but proof of its commission at any time on or about that date and within three years of the filing of the information is sufficient," where there is no evidence or claim of more than one offense.

[4] ID. CHILD AS ACCOMPLICE.-In such a prosecution, it is not error to instruct the jury that "in the absence of clear proof that at the time of committing the act constituting the crime he knew its wrongfulness, a child under the age of fourteen years is presumed incapable of committing a crime, and cannot therefore be deemed an accomplice."

[5] ID. GOOD CHARACTER EVIDENCE.-In such a prosecution, it is not error to refuse an instruction to the effect that evidence of good character is evidence relevant to the question of guilty or not guilty, where there is not such proof.

[6] ID. REPUTATION EVIDENCE. In a prosecution for the commission of the infamous crime against nature, evidence of the reputation of the defendant is properly restricted to his general reputation "for the elements involved in the charge," and evidence of his reputation for truth, honesty, and integrity is properly held inadmissible.

[7] ID.-INTEREST OF FATHER-EVIDENCE.-In such a prosecution, it is not error to refuse to permit the defendant to show the interest and ill feeling of the father of the boy (the victim of the assault) toward the defendant, where the father is not called as a witness for the people and the complaint which was sworn to by him is not introduced as evidence.

[8] ID. STATEMENTS OF BOY-CONFIRMATION BY MOTHER.--In such a prosecution, the boy having testified on direct examination in response to a proper question that he had made complaint to his mother, and on cross-examination in an effort to discredit his testimony defendant having required him to state just what he had said to his mother, it was permissible to allow his mother to confirm what he had said; but even if it was error to permit her to so testify, the error was not prejudicial to defendant, where her testimony merely confirmed the testimony of the boy.

APPEAL from a judgment of the Superior Court of Sutter County. K. S. Mahon, Judge. Affirmed.

The facts are stated in the opinion of the court.