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pel an election. She made no attempt to identify either of the three separate acts, but bulked them in the one comprehensive statement that her father at that house committed the act about three times. Under such conditions it is not possible that two or more or any number of jurors less than the twelve could have believed the testimony as to one of these three acts at the Maple Avenue house and disbelieved it as to the others. On the contrary, her broad general statement left but two alternatives for the jury, i. e., to accept her statement in its entirety or to reject it in its entirety. Having found the defendant guilty upon that count which, as the circumstances of the case show, does in effect charge an offense committed while the defendant resided with his daughter at the Maple Avenue house, we must conclude that the jury as a whole accepted as true the testimony of the prosecutrix that at that house the father committed the act about three times. That being the situation appellant could not possibly have suffered prejudicial error because no election was made as between these three acts. The cases of People v. Elgar and People v. Williams, supra, are, therefore, not controlling.

It is further contended that a separate offense was intimated by a question propounded by the district attorney to the prosecuting witness as follows: "You say that the first time this occurred was in Kansas City, Missouri?” and that the jury might draw the inference therefrom that an offense not alleged had taken place in Kansas City. An inspection of the record discloses that defendant's counsel objected to this particular question and that the objection was sustained. Furthermore, the court instructed the jury that "if any counsel had intimated by questions which the court has not permitted to be answered, that certain things are or are not true you must disregard such questions and refrain from any inferences based upon them.” The defendant was therefore not called upon to meet any charges except those alleged and proved.

The other instructions criticised by appellant, both given and refused, are accompanied by neither citation of authority nor argument requiring consideration. Under these cir. cumstances they need not be further commented upon. (Moore v. San Vicente Lumber Co., 175 Cal. 212 [165 Pac.

687), and cases there cited; People v. Zarate, 54 Cal. App. 372 (201 Pac. 955].)

The appellant assigned as error certain statements of and questions propounded by the court and the district attorney during the course of the examination of witnesses. Each assignment has been considered in so far as the action of the court is concerned and as to the district attorney it is assumed that counsel intended to charge him with niisconduct and not with error, but no assignment of error or misconduct as to these matters was made by counsel during the course of the examination of the witnesses, consequently no extended consideration of points now raised is required. Each contention in this regard, however, has been examined and is found to be untenable.

[9] This case was on the calendar in the trial court in the forenoon of the day on which the trial was commenced. The court excused the women on the jury panel until the following morning, and directed the men to return at 2 o'clock. He stated in effect that the case would not be reached before 2 o'clock and excused the witnesses until that hour. The order excusing the women on the panel until a later time is now assigned as error as having been made out of the presence of the defendant and without his consent. No objection was made by counsel in the trial court to this method of procedure and there is no suggestion that the jurors who did serve were not competent, fair, and qualified to act. The defendant was not prejudiced by the order so long as an impartial jury was obtained. (People v. Harris, 45 Cal. App. 547 (188 Pac. 65); People v. Lee, 17 Cal. 76; see, also, note, People v. Barker, 1 Am. St. Rep. 519.)

[10] Misconduct is charged against the district attorney for using the following language in his opening argument to the jury: “Now, no doubt you have all surmised that we have mutually agreed upon a male jury because of the peculiar character of the case. I am constrained to say Mr. Morse thought, as well as I did—Here the district attorney was interrupted by defendant's counsel with his assignment and then proceeded: "I was about to say Mr. Morse himself was very courteous about the matter and realized we would have to call a spade a spade, and that certain language which would develop in the testimony would be very difficult for either of us, hard boiled though we may be " This was also assigned as misconduct. Defendant's counsel did not deny that such an arrangement had been agreed upon before the trial commenced, and even if an agreement to that effect had been made in the presence of the jurors it is difficult to see how they would thereby be prejudicially affected against the defendant. The court instructed the jury 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." The remarks of the district attorney in view of this instruction could work no possible prejudice to the defendant's rights. The character of some of the testimony was such as to prompt a desire on the part of counsel for both sides to avoid trying the case before a mixed jury,

The judgment and order are affirmed.

Finlayson, P. J., and Craig, J., concurred.

(Civ, No. 4517. First Appellate District, Division One.—June 28,

1923.)

CARRIE E. COLLINS, Appellant, v. CLARK M.

FOLLETTE et al., Respondents.

[1] QUIETING TITLE - DELIVERY OF DEED EVIDENCE — NONSUIT.-In

this action to quiet title to an interest in a certain city lot, the evidence having shown that there had been no delivery to plaintiff of the deed upon which plaintiff relied to establish her owner. ship, but that the same had been delivered to a third person with instructions to deliver it to the grantor upon her request or to plaintiff in case of the grantor's death, and that the grantor bad subsequently called for the deed, which was delivered to her, the trial court properly granted defendant's motion for nonsuit on the ground that there had been no transfer of title to plaintiff.

1. Right of grantor to revoke deed delivered to stranger to be de. livered by him to grantee after grantor's death, notes, Ann. Cas. 1915C, 378, 385, 388; 4 L. R. A. (N. S.) 816; 9 L. R. A. (N. S.) 317.

APPEAL from a judgment of the Superior Court of Alameda County. Dudley Kinsell, Judge. Affirmed.

The facts are stated in the opinion of the court.

Hamilton A. Bauer for Appellant.

Adams & Adams for Respondents.

RICHARDS, J.-This appeal is from a judgment of nonsuit. The plaintiff commenced this action against the defendant Clark M. Follette to quiet title to a certain lot in the city of Berkeley of which she alleged herself to be the owner and entitled to an undivided one-half of which the said defendant was making an adverse claim. In her complaint the plaintiff averred as the source of her title to the one-half interest in said lot to which said defendant Follette made claim to be that of a conveyance of the same to her by her sister, the deceased wife of said Follette, which said deed antedated by several years the conveyance to said Follette by his said wife, which formed the foundation of his adverse claim. By his answer in the case said Follette denied that said plaintiff was the owner of the said undivided portion of the premises in dispute in the action and in support of said denial alleged that the deed by which said plaintiff claimed to have received title to said portion of said premises had never in fact been delivered to said plaintiff by the grantor named therein but had been later destroyed by said grantor of her own volition and while she had and retained full control over the disposition of said document; and that thereafter and shortly before her death his said wife had by proper deed conveyed said undivided one-half of said premises to him. The cause went to trial upon the issues as thus framed; at the conclusion of the testimony offered in support of the plaintiff's case the trial court granted the defendants' motion for nonsuit and entered its judgment accordingly in the defendants' favor.

[1] The sole question presented upon this appeal is as to whether, giving the most favorable interpretation to the testimony adduced in support of the plaintiff's case, she had shown delivery of the instrument through which she claims title. We have examined the entire evidence in the case and from such examination are entirely satisfied that there is no sufficient evidence showing delivery of said deed to support the plaintiff's claim of ownership in or to that portion of said premises to which the defendant Follette claims title under a later deed. The facts which are practically undisputed are these: The plaintiff, Carrie E. Collins, and her sister, Julia Blanch Golden, were for some years prior to June 1, 1916, the owners as tenants in common of the entire lot, the title to the undivided one-half of which is in dispute in this action, having acquired the same from their mother by deed of gift. Mrs. Collins lived in one of the houses on the property and on and for a short while prior to June 1, 1916, her sister, Mrs. Golden, was staying with her, having returned ill from a trip to Arizona. Her physician informed her that a serious operation was necessary and that she had better put her affairs in order before undergoing said operation. A notary and real estate dealer named Brown who knew both ladies was sent for and when he arrived Mrs. Golden asked him to make out a deed to an undivided one-half interest in the property to Mrs. Collins. At the time of making this request Mrs. Golden stated to Mr. Brown that she was going to the hospital for an operation and that if she did not survive it she wished her sister, Mrs. Collins, to have the property and that if she survived she wanted the deed back. She also asked him to make out a bill of sale to some jewelry in her sister's favor upon the same condition. Two witnesses were called in and one of these testified to substantially the same effect as the witness Brown with respect to the wishes of the grantor. The other witness who signed the deed as such does not recall that portion of the conversation between the grantor and the notary, while Mrs. Collins herself, when called as a witness, had no recollection as to that portion of the interview but does not deny that the interview as related by Brown and the other witness actually took place. The deed and bill of sale, when executed, were handed to Mrs. Collins, who read them over. They were then handed to the notary, who placed them in an envelope, making a memorandum thereon that it was to be delivered to Mrs. Golden upon her request or to be delivered to Mrs. Collins in case Mrs. Golden died. He took the documents to his office and kept them there until Mrs. Golden had survived her operation and called for them

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