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inquiry that is presented is whether or not the servant was at the time engaged in serving the master. If the act is done while the servant is at liberty from service and pursuing his own ends exclusively, there can be no question of the master's freedom from all responsibility, even though the injury complained of could not have been committed without the facilities afforded to the servant by his relation to his master.

The doctrine as stated in Morier v. St. Paul etc. R. R., 31 Minn. 351 [47 Am. Rep. 793, 17 N. W. 952], is frequently quoted in the cases upon the subject. It is there held that in determining whether a particular act is done in the course of the servant's employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act is done while the servant is at liberty from the service and pursuing his own ends exclusively, the master is not responsible. If the servant was at the time the injury was inflicted acting for himself and as his own master pro tempore, the master is not liable. If the servant step aside from his master's business for however short a time to do an act not connected with such business, the relation of master and servant is for the time suspended.

To the same effect is Slater v. Advance Thresher Co., 97 Minn. 305 [5 L. R. A. (N. S.) 598, 107 N. W. 133], where the doctrine is briefly set forth to be that a master is not liable for injuries occasioned to a third party by the negligence of the servant while the latter is engaged in some act beyond the scope of his employment, although he may be using the instrumentalities furnished by the master with which to perform his duties. The expression "in the course of his employment" means, in contemplation of law, "while engaged in the service of his master" and nothing more. Beyond the scope of his employment, therefore, a servant is as much a stranger to his master as any third person (Cunningham v. Castle, 127 App. Div. 580 [111 N. Y. Supp. 1057]).

Whether the subject be viewed from the question of agency or of master and servant there can be no difference in principle, as here suggested, for while there is a distinction between an agent and a servant, this distinction in no sense impairs the application of the doctrine of respondeat

superior to both classes of individuals (Evans v. Dyke Auto Co., 121 Mo. App. 266 [101 S. W. 1132]).

[2] Applying these principles to the evidence in the case, the act here complained of must be held to have been done while the driver was at liberty from his service and pursuing his own ends exclusively, and defendant cannot therefore be held responsible even though he afforded the means without which the accident might not have occurred. (Glassman v. Harry, 182 Mo. App. 304 [170 S. W. 403]; Stewart v. Baruch, 103 App. Div. 577 [93 N. Y. Supp. 161]; Robinson v. McNeill, 18 Wash. 163 [51 Pac. 355]; Christensen v. Christiansen (Tex. Civ.), 155 S. W. 995; Tyler v. Stephans, Admr., 163 Ky. 770 [174 S. W. 790]; Evans v. Dyke Auto Co., supra; Gousse v. Lowe, 41 Cal. App. 715 [183 Pac. 295]; Steffen v. McNaughton, 142 Wis. 49 [19 Ann. Cas. 1227, 26 L. R. A. (N. S.) 382, 124 N. W. 1016]; Davis on Motor Vehicles, sec. 216; 26 Cyc. 1537; Mauchle v. Panama-Pacific I. E., 37 Cal. App. 715 [174 Pac. 400].)

In conclusion, it might be said that if there was any evidence in the record which showed in any manner that the driver had authority to operate the machine after his working hours for the benefit of defendant, or any circumstance from which such authority might be inferred, the case would present a different aspect, but there is none. Nor is there any evidence upon which a claim could be made that plaintiff was relying upon the fact that the defendant owned the taxi, for there is nothing in the record to indicate that she had any knowledge upon this subject, nor is there any evidence from which knowledge of the actual ownership of the vehicle could be inferred. In other words, there is no evidence upon which any question of estoppel might be raised other than the mere employment discussed.

For the reasons given the judgment is affirmed.

Richards, J., and St. Sure, J., concurred.

62 Cal. App.-43

[Crim. No. 946. Second Appellate District, Division Two.-June 26,

1923.]

THE PEOPLE, Respondent, v. OTHA F. BRITT, Appellant.

Where an

[1] CRIMINAL LAW-RAPE-TIME-EVIDENCE- VARIANCE. information charges statutory rape on or about the 15th of a given month, and the prosecuting witness is not able to fix the exact date, but her testimony fixing the time with reference to other events places the commission of the act in that month, no fatal variance as to the time alleged and proved is shown. [2] ID.-EVIDENCE-CORPUS DELICTI.-In this prosecution on a charge of statutory rape, the prosecutrix, who was fourteen years of age at the time of the alleged offense, having testified that the defendant had sexual intercourse with her about the time specified in the information, and a physician, produced on behalf of the people, having testified that he examined the prosecutrix on a specified date, which was about seven months after the offense charged, and found her to be pregnant and that she had been pregnant for about seven months, no more was required to establish the corpus delicti.

[3] ID. TESTIMONY OF PROSECUTRIX-CONVICTION.-In such prosecution, the testimony of the prosecutrix was not improbable, and upon her statements alone the jury was authorized to convict. The truth or falsity of her testimony was exclusively for the determination of the jury and the trial court.

[4] ID.—EVIDENCE-ADMISSIONS.-In such prosecution, the defense having been an alibi and that the charge was a result of a conspiracy between defendant's wife and daughter, the latter being the complaining witness, and the defendant having denied that he ever had illicit relations with his daughter but the investigating officers having testified that after his arrest the defendant admitted partial penetration, this was sufficient to warrant the jury in concluding that the crime had been completed.

[5] ID.-MISTAKE AS TO DATE-WEIGHT OF TESTIMONY-PROVINCE OF JURY.-The prosecutrix having testified that the offense was committed on a Saturday morning in the early part of a given month and the testimony having shown that the defendant was not at home on Saturdays during that month, but the testimony having also shown that he was at home on Sunday mornings during that month, under such circumstances it could not be said that the

2. Character and sufficiency of proof of corpus delicti in rape cases, notes, 68 L R. A. 69; L. R. A. 1916B, 748.

testimony of the prosecutrix as to the particular act charged was not convincing, but the effect of such evidence was for the determination of the jury.

[6] ID.-EXCLUSION OF ANSWER-ERROR CURED BY SUBSEQUENT QUESTION. The error, if any, resulting from the ruling of the trial court sustaining an objection to a question as to whether the prosecutrix had ever had intimate relations with anyone else was cured when, later on, she was permitted to answer a similar question and she admitted such relationship with a fifteen year old boy.

[7] ID.

EXCLUSION OF TIME-BOOK-ADMISSION OF TESTIMONY OF CONTENTS. The exclusion from evidence of the time-book of the conductor on the railroad where defendant was employed at the time of the commission of the alleged offense, on the ground that the proper foundation had not been laid, whereas the foundation for the introduction of such book was sufficient, did not constitute prejudicial error, where the witness producing such book was permitted to testify fully as to the contents of the record pertaining to the time the defendant was on duty.

[8] ID.-TIME OFFENSE COMMITTED-INSTRUCTIONS.-In a prosecution on a charge of statutory rape, an instruction "that it is wholly immaterial on what day or night the offense charged in the information was committed, providing you believe from the evidence it was committed and that the same was committed within three years prior to the filing of the information in this case," while erroneous where a particular act is alleged and other acts of a similar nature between the same parties are proved for the purpose of showing a lascivious tendency, is not erroneous where no offenses are proved other than those specifically alleged. [9] 1D.-EXCUSING OF WOMEN FROM JURY PANEL-TRIAL BY IMPARTIAL JURY-ABSENCE OF PREJUDICE.-On appeal, the defendant cannot predicate prejudicial error on an order of the trial court, made in the forenoon of the day on which the trial was commenced, but out of the presence of defendant and without his consent, excusing the women on the jury panel until the following morning and directing the men to return that afternoon, where no objection was made by counsel for defendant in the trial court to such method of procedure and there is no suggestion that the jurors who did serve were not competent, fair, and qualified to act. [10] ID.-MISCONDUCT OF DISTRICT ATTORNEY-REMARKS AS TO TRIAL BY MALE JURY-INSTRUCTIONS.-The defendant could not have been prejudiced by the statements of the district attorney, in his opening argument to the jury, to the effect that because of the character of the case a male jury had been agreed upon, where defendant's counsel did not deny that such an arrangement had been agreed upon before the trial commenced, and the jury were

instructed that "if counsel upon either side have made any statements in your presence concerning the facts in the case you must be careful not to regard such statements as evidence, but must look entirely to the proof in ascertaining what the facts are."

APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Sidney N. Reeve, Judge. Affirmed.

The facts are stated in the opinion of the court.

William M. Morse, Jr., for Appellant.

U. S. Webb, Attorney-General, and John W. Maltman, Deputy Attorney-General, for Respondent.

SHENK, J., pro tem.-The defendant was accused by information in four counts, the first and third counts charging statutory rape on or about the fifteenth day of June, 1921, and on or about the fifteenth day of September, 1920, respectively, and the second and fourth counts charging incest at the same times at which the alleged rape was committed. A verdict of guilty as to each count was returned by the jury. A motion for a new trial as to counts two and four was granted. A similar motion as to counts one and three was denied and sentence thereon was pronounced. Defendant appeals from the judgment and from the order denying his motion for a new trial.

The contentions of the appellant are: (1) That the corpus delicti was not established; (2) that the evidence was insufficient to warrant or sustain a conviction; (3) that the trial court made prejudicially erroneous rulings during the course of the trial; (4) that instructions were improperly given or refused, and (5) that he was not given a fair trial because of certain matters occurring at the trial and which will hereinafter be more particularly noted.

[1] The prosecuting witness, Beulah Britt, died before the trial and her testimony given at the preliminary examination was offered and received in evidence under section 686 of the Penal Code. She testified that she was the daughter of the defendant; that she was fourteen years. of age at the time of the alleged offenses. As to the first count she testified that the defendant had sexual intercourse

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