ferred to therein, and also attached thereto was an article published in the same newspaper the following day, stating that the defendant, through a friend, positively denied any intention of pleading guilty, and containing a statement from Mr. Seymour, one of the attorneys who withdrew from the defense of the defendant, that "The Chinese and their friends maintained their absolute innocence of the crime charged, and that, a difference of opinion having arisen in the conduct of the case, the attorneys for the defense had withdrawn in the best interests of their clients; a friendly interest still being maintained." It will be observed that all that the affidavit contains as showing that the defendant was prejudiced by the publication referred to is the mere inference to be drawn from the statement therein made, on the information and belief of the affiant, that the jurors saw and read the said article. There is no positive showing that the jurors or any of them read the article, or that they were prejudiced against the defendant or influenced to find against him by reason thereof. Even if such a publication had been made before the jury were called to the jury box and it developed that any juror had read the article, it would not, per se, have disqualified him from sitting in the case. To have disqualified him, it would have been necessary further to show that his mind had been by the article so affected relative to the case as that he could not give the defendant a fair and impartial trial, according to law. Moreover, if it may be assumed that the jury read said article, it may with equal propriety be assumed that they also read the subsequent article correcting the statement of the first that the defendant contemplated entering a plea of guilty; and thus it may be assumed (assuming that both articles were read by the jurors) that the effect of the first article was overcome by the last. But, however that may be, without something more positive than is shown here that the jurors read and were affected or influenced against the accused by the first article, it must be assumed that, even if they perused the article, they were intelligent enough to know their sworn duty, and honest enough to have confined themselves in the determination of the very serious question of the guilt or innocence of the accused entirely to a consideration of the evidence as it was allowed to go before them under the rules of law submitted to them by the court for their enlightenment and guidance in the discharge of that all-important function. On Petition for Rehearing. HART, J. [8, 9] In a characteristically able argument, the senior counsel for the defendant urges a rehearing of this cause. There is nothing we can add to what has been said in the former opinion filed herein, except to express hearty concurrence in the general animadversion of the learned lawyer upon the practice too often resorted to in criminal cases by public prosecutors of lugging into their cases in argument matters having vital bearing upon the case which have not been brought in by evidence and which are calculated to deprive an accused of that fair and impartial trial which is guaranteed to him by the Constitution and the statute laws of the state. A public prosecutor should be equally as solicitous of the protection of the rights of a citizen or other person on trial for his life or his liberty as the judge who presides at the trial, and it is obviously an egregiously erroneous notion if that public officer conceives it to be his duty to convict every person against whom a crime has been charged, regardless of whether he is or is not guilty or of whether the proof he is able to produce against one so accused is or is not sufficient to justify his conviction. And it is equally a mistake for such an officer to suppose that it is proper for him to present to the jury anything but strictly legal evidence in support of the charge, or that it is within the sphere of legitimate argument to prejudice the standing of the accused in the minds of those who are to determine an issue so serious to him by insinuating in the course of his address that some fact bearing strongly against the accused which has not been proved by proper evidence in reality exists. This court has on a number of previous occasions in a number of cases, notably in People v. Hail, 25 Cal. App. 342, 143 Pac. 803, condemned such practice. In the present case, however, as is stated in the former opinion, there is no such record as justifies us in reviewing the point that the special prosecutor was guilty of misconduct in referring to a matter in his argument which, it is claimed, was not brought into the case through the evidence. As explained in the former opinion, all that the record shows is that a controversy arose during the course of the prosecutor's argument as to whether it was conceded by counsel repre senting the people that the court reporter had made a mistake in reporting that the defendant had testified that he shook hands with the witness Love at the lumber yard, counsel for the defendant claiming that such concession had been made and that the mistake so We have discovered no legal reason for disturbing the verdict, and, for the reasons herein given, the judgment and the order appeal-made by the reporter had been corrected beed from are affirmed. We concur: fore the argument of the case was begun. Nowhere else in the record is it made to apCHIPMAN, P. J.; BUR-pear that a correction of the defendant's tes made, or that there was any suggestion by counsel that the reporter had made a mistake in any respect or particular in reporting his testimony. The prosecutor, when interrupted, did not admit that any such mistake had been conceded or that a correction of any such mistake had been made. He simply replied to the interruption, "If you didn't like the record, why didn't you correct it?" from which observation, and from the fact that he did not admit that a mistake in defendant's testimony had been conceded, or that any such mistake had been corrected, we felt justified in declaring, as we did declare in the former opinion, but which declaration counsel say we were not warranted by the record in making, that the special prosecutor "in effect insisted that the defendant did testify that Suey shook hands with Love, and that the record disclosed that he so testified," etc. As above stated in the outset hereof, the learned attorney, as always he does, makes a forceful plea for a rehearing; but we do not thus feel persuaded that the conclusion we arrived at upon each of the points urged for a reversal, and from which conclusion necessarily followed the final result of the consideration of the record by this court, is George E. Gardner, of Oroville, George J. McDonough, of Oakland, Danna P. Eicke, of Stockton, and Dion R. Holm, of San Francisco, for appellants. U. S. Webb, Atty. Gen., and J. Chas. Jones, Deputy Atty. Gen., for the People. BURNETT, J. The defendants were convicted of murder in the first degree, and the jury fixed the punishment at imprisonment for life. The appeal is from the judgment and the order denying a motion for a new trial. That a foul murder was committed is not disputed. It was deliberate, premeditated, and malicious. It was one of a series of bloody episodes that attended what is known as a "tong war" between rival societies of Chinese. [1] The principal contention in the case is in reference to the defense of "alibi," upon which appellants relied. It must be admitted that their claim in that regard was strongly supported. Not only Chinese witnesses, but several Caucasians, including prominent members of the police force of the city of Stockton, testified positively that the defendants were in said city on the very day and at the very hour when the offense was committed near Gridley in the county of Butte. Their testimony was entirely inconsistent with the theory of the guilt of the BUR-defendants, as the time of the murder was definitely fixed. But the jury, probably believing that some of the witnesses were mistaken and that others were falsifying, rejected their said statements, and based their PEOPLE v. LEE GOW et al. (Cr. 427.) (District Court of Appeal, Third District, Cali TITY. fornia. Sept. 24, 1918.) MURDER IDEN 1. HOMICIDE 234(1) APPEAL verdict upon the evidence offered by the people. We can readily understand how the testimony in support of the "alibi" might have led the jury to acquit the defendants; but, after a careful reading of the entire record, we are compelled to say that there is abundant evidence of the identification of 2. CRIMINAL LAW 1035(5) these men as the murderers of the deceased, COMPETENCY OF JURORS-WAIVER. In a murder trial, where a juror stated that and that under the familiar rule we are not he did not understand the instructions, defend-permitted to hold that the verdict is unsupants waived his incompetency by remaining silent, failing to request permission to question the juror or to ask that the jury be polled, and first seriously objecting thereto in the brief. 8. WITNESSES 290-REDIRECT EXAMINATION-REPETITION OF QUESTIONS. In a prosecution for murder, it was not error to sustain the district attorney's objection to a question, on redirect examination, as to why witness fixed a certain date when such question had been asked and answered on crossexamination. 4. CRIMINAL Law ~304(1)—JUDICIAL NoTICE-DEATH OF COUNSEL. The appellate court will not take judicial notice of the death of counsel for appellants, subsequent to the trial and before the hearing. Appeal from Superior Court, Butte County; H. D. Gregory, Judge. Lee Gow and Chow Soon were convicted of murder in the first degree, and, from the judgment and denial of a new trial, they appeal. Affirmed. ported. Many witnesses, including white men, testified unreservedly that the defendants were in the vicinity of the scene of the crime at or near the time it was committed, and one Chinese testified unequivocally that he was at the home of the deceased and witnessed the perpetration of the deed. His testimony, if fully credited, compels the conclusion that the crime was deliberate murder and that the defendants committed it. Nor can it be accepted for a moment that the testimony of these witnesses for the people is inherently improbable. Of course, the possibility of a mistake as to the identification of an individual under such circumstances is ever present, and innocent men may be unjustly convicted; but it is hardly necessary to add that the accuracy of the memory of the witnesses as to the identification of the parties, and the disposition of said witnesses to tell the truth, were considerations entirely consideration was not presented at all on for the determination of the jury. the motion for a new trial, and seems not to have been regarded seriously by appellants until they filed their brief in this court. Moreover, some of the instructions given Of course, it is plain that, in a criminal case, the verdict must be unanimous; but there is no ground for holding that the requirement was violated herein. Such conten- | were quite complicated and contained techtion, however, is made in view of a certain colloquy that occurred between the judge and the jurors after the case had been submitted but before a verdict had been reached. A juror, Mr. Beck, asked this question: "When these jurors swore to try this case by the law and the evidence, did it imply the unwritten law as well?" The court answered: "By consent of the defendants I state this: All of the law by which you will be governed in this case is contained in the instructions given you here by the court. The court will now read all the instructions again if you desire." Mr. Beck then said: "If I take it right, then, it implied the unwritten law because it did not state that it was only the written law. Is that right, your honor?" The transcript proceeds: "The Court (to reporter): 'Read the statement again.' (At this time the reporter reads the statement again.) Mr. Beck. We were asked if we would try the case by the law and the evidence. Why didn't they give us those instructions at the beginning of the case so we could know if the unwritten law was not implied." The answer clearly implies that his delusion as to the unwritten law had been allayed by the repetition of the statement of the court, but he was disposed to criticize the procedure as to the time of giving the instructions. But, manifestly, his opinion as to that matter is of no moment here, and it does not constitute a cause of complaint by appellants. The court then asked each of the jurors if he desired the instructions to be read again. They all said no, some of them supplementing their answers with the explanation: "I understand them." Mr. Beck, however answered: "No, I don't understand them." Finally, as to this the record shows: "The Court: Do you all understand that these were the instructions that I read to you at the close of the trial? This is the close of the case. You may retire to your room.' (At this time the jurors retire to their jury room.)" [2] If appellants were dissatisfied with the situation, they should have manifested it in the proper manner. They should have requested permission to question the juror further to ascertain the extent of his misunderstanding of the instructions that he might be enlightened, but they were apparently content and made no objection to the further consideration of the case by said juror, Indeed, when the jury returned with a verdict of conviction, appellants were mute and did not even ask that the jurors be polled. Their conduct signified an acquiescence in the course pursued, and they waived all privilege thereafter to urge the incompetency of nical expressions that would not be easily understood by the lay mind. These were not essential to a proper determination of the cause by the jury, and we have a right to assume that such portion of the charge was what the juror had in mind in such statement. Besides, we must presume that the other jurors were able to explain the instructions to the satisfaction of Mr. Beck, and that during the four hours they were deliberating after returning again, they succeeded in removing any misapprehension, at least as to the material portions of law involved. Ap [3] It is claimed that the court erred in sustaining the district attorney's objection to the question asked on redirect examination of witness Lawrence Moore: "Is there any thing that fixes this particular date in your memory, Mr. Moore?" The witness had testified on direct examination that he saw the defendants on March 6th at about 10 minutes after 12 o'clock noon at 131 South Hunter street, Stockton. On cross-examination, the district attorney asked the witness questions as to his memory of different times and places, when and where he had seen the defendants, the object being, of course, to discredit his testimony as to this particular date, and to leave the impression on the minds of the jury that it was impossible for the witness to be certain that he saw the defendants on March 6th, as he claimed. pellants indulge in an interesting discussion of the scope and purpose of redirect examination, quoting from section 871 of volume 5 We of Jones' Commentaries on Evidence. agree generally with what is stated by counsel as to the admissibility of such explanation. And it may be added that the court subsequently allowed similar questions addressed to the other witnesses. However, the ruling here was clearly without prejudice, since the witness had answered the question on cross-examination. The district attorney asked him, "How do you fix the time in your mind?" and he answered, "I hired a boat to him on that day." He went on to explain that he hired the boat to Chew Chung, and a memorandum was made of it, and the defendants were present, and "that is why I remember it." If there had been any other circumstance to aid his memory, he had ample opportunity to state it. The repetition of his answer to the question would have added nothing to the force and effect of his testimony. One of the most singular points made by appellants is stated by them as follows: "We now approach the third point upon which we claim reversal should be granted. George McDonough, Esq., leading counsel for the de such as this, or, in fact, any other trial. It is regrettable, indeed, that we are forced to call the court's attention to the fact, but we feel justified in doing so because of the gravity of the offense with which Lee Gow and Chow Soon are charged. George J. McDonough, a man of wide experience in the legal profession, unfortu: nately met with reverses, and as an officer of this court it is believed your honors will take judicial notice of the fact that he committed suicide about one month after these appellants were convicted." [4] It can hardly be seriously argued that we can take judicial notice of Mr. McDonough's death. But, aside from that, an insurmountable objection to our attaching any importance to this contention is found in the fact that there is no evidence whatever in the record that Mr. McDonough was incompetent. As far as we can determine from a reading of the transcript, he seemed quite capable of protecting the interest of his clients. We may add that two other attorneys were associated with him, and neither of them nor the judge of the court, apparently, discovered anything in the conduct of said attorney to create an impression that he was mentally unbalanced. In the foregoing we have covered all the contentions made by appellants, and it must be plain that no sufficient reason has been LENNON, P. J. This is an action to quiet title to a certain parcel of land situated in the county of Marin. The record discloses the following facts: On June 14, 1904, plaintiff purchased from the Tamalpais Land & Water Company a certain lot of land which is the subject of this controversy. On the 25th day of February, 1915, he executed a deed of trust, conveying the same to A. W. Foster, Jr., and M. T. Freitas, as security for the payment of a certain indebtedness referred to in the deed of trust. In this conveyance the plaintiff used precisely the same description as that contained in the deed under which he acquired the property. Having failed to pay his indebtedness, one of the trustees, under the power conferred in the trust deed, sold the property in question to defendant May J. Robertson. Thereafter the plaintiff brought this action to quiet title to the property. Judgment went for defendants, and plaintiff appeals. As ground for reversal it is the claim of plaintiff that certain deeds offered in evidence to defeat his title were inadmissible for that purpose, for the reason that the description of the property therein recited was ambiguous and should not have been considered in establishing defendant's title. He further claims that the deed signed by one The judgment and order are therefore af- of the trustees which purported to convey this title to defendant, May J. Robertson, advanced for an interference with the verdict of the jury. firmed. We concur: CHIPMAN, P. J.; HART, J. was void because of a lack of proper notice (38 Cal. App. 219) WILHELM v. ROBERTSON et al. of sale. Under the pleadings it was admitted that plaintiff was the owner and in possession of the property on the 8th day of June, 1915. For the purpose of identifying the property and establishing his case, plaintiff at the (District Court of Appeal, First District, Cali- trial introduced in evidence a map of the fornia. Sept. 19, 1918.) 1. EVIDENCE 353(14)—ADMISSIBILITY—AMBIGUOUS DEEDS. In action to quiet title to lot numbered "18," where deeds referred to map containing a lot so numbered, the deeds were not inadmissible, as ambiguous, merely because some lots had been subdivided and contained the number "18," followed by a further designation of the original lot. 2. MORTGAGES 354 NOTICE EFFECT OF DEATH OF TRUSTEE. Where the trustees under trust deed gave due notice of sale on default, that one of them died before the sale, which was consummated on the day set, did not invalidate the deed under Tamalpais Land & Water Company, from which it appears that the property described in the complaint is designated thereon by the figures "18." After the introduction of this map plaintiff testified that he had not conveyed the property, and rested his case. Thereupon the defendants, for the purpose of establishing their title, offered in evidence a deed of trust from plaintiff and his wife, as grantors, to A. W. Foster, Jr., and M. T. Freitas, given to secure a certain indebtedness. In this deed the property was described as lot 18 as delineated on the map referred to. For the purpose of explaining which lot 18 was meant by the description in the trust deed, the defendants offered in evidence the deed from the Tamalpais Land & Water Company to plaintiff, purporting to convey "lot number eighteen (18)" as laid down on the company's map. Defendants also called Keys & Harlan, of San Rafael, for appel- the plaintiff, who testified that the parcel of lant. land identified was the only land he owned Thomas P. Boyd, of San Rafael, and O. F. in that vicinity. Defendants further offered Meldon, of Sausalito, for respondents. in evidence a deed from M. T. Freitas, as such sale for insufficient notice. Appeal from Superior Court, Marin County; Edgar T. Zook, Judge. Action by J. H. Wilhelm against May J. Robertson and others. Judgment for defendants, and plaintiff appeals. Affirmed. surviving trustee under the trust deed, to defendant May J. Robertson, being the deed under which defendants claim title, wherein the property conveyed is described in the same manner as in the conveyance from the company to plaintiff. The introduction of these various deeds was objected to upon the ground that the description of the property contained therein was ambiguous, for the reason that the map referred to contained four different and distinct lots numbered 18, any one of which, it is claimed, fits the description in the several conveyances. [1] We are of the opinion that the deeds were properly admitted. From the map of the company, referred to in the several deeds, it appears that a large tract of land had been divided into 33 blocks or parcels, numbered from 1 to 33, inclusive. Six of these parcels, viz. Nos. 1, 2, 3, 4, 5, and 6, were again subdivided into smaller parcels, containing 18 or more small subdivisions, which are designated upon the map by consecutive numbers. Four of these blocks as subdivided contain Subsequent to the giving of the notice, however, but before sale, one of the trustees died; but the sale was made on the day so fixed, by the surviving trustee, without further notice, and it is for this reason that the deed given thereunder is claimed to be void. The trust deed contained a specific covenant to the effect that in the event of default the trustees or the survivor of them might execute the trust and sell the property. The death of the cotrustee in no manner affected the notice, or prevented the survivor from executing the powers conferred upon him under the covenants of the deed. For the reasons given the judgment is affirmed. SOUTHWESTERN OIL CO. v. McDANIEL et al. (No. 9362.) OIL AND (Syllabus by the Court.) 1. MINES AND MINERALS 78(5) GAS LEASE-FORFEITURE-WAIVER. Where a lessor in an oil and gas lease, after to the lessee his intention to avoid the lease in cause for forfeiture has accrued, fails to signify some unequivocal manner, and thereafter accepts rentals in lieu of development, such conduct on the part of the lessor amounts to a waiver of the right to declare a forfeiture. 2. MINES AND MINERALS 78(1) — OIL AND GAS LEASE CONSTRUCTION COMMENCEMENT OF WELL. a lot numbered "18." The remaining blocks, (Supreme Court of Oklahoma. Oct. 29, 1918.) up to and including block 18, are not so subdivided. It is under these conditions that plaintiff contends that the deeds mentioned were improperly introduced to defeat plaintiff's title, for the alleged reason that they all contain a description which is a perfect example of a patent ambiguity, and were, so plaintiff claims, wrongfully considered in establishing defendants' title to the property, and that the findings based thereon that the defendant is the owner are not supported by the evidence. It is conceded by respondents that, where a description in a deed equally applies to two or more parcels, there is a patent ambiguity; but it is insisted that the description here involved does not apply to any other lot shown on the map of the Tamalpais Land & Water Company, and we are of that opinion. May 14, 1912, provided that a test well should Where an oil and gas lease contains an express stipulation for delay in development by the payment of rentals, held, that an implied covenant for development will not be permitted to change the agreement of the parties. The map to which reference is made contains only one parcel of land designated as "18." The parcels which are subdivided into smaller lots or tracts, and which contain a lot or parcel designated by such number, bear the further and additional designation of the number of the larger parcels as subdivided. The tract in question is designated by the single number (18), and its description by such designation does not apply to Action by C. S. McDaniel and C. E. Mcany other lot upon the map. Aside from any Daniel against the Southwestern Oil Comother question, the description being sufficient to put plaintiff into possession, it ought to be sufficient to dispossess him. [2] The further contention that the deed purporting to convey title to respondent May J. Robertson is void for lack of proper notice is without merit. When plaintiff failed to pay his indebtedness, a notice of sale was given by both trustees. It is conceded that the notice up to this time was a proper one. Error from District Court, Noble County; W. M. Bowles, Judge. pany. Judgment for plaintiffs, and defendant brings error. Reversed and remanded. Geo. S. Ramsey, of Muskogee, Wm. H. England, of Ponca City, Edgar A. deMeules, of Tulsa, Malcolm E. Rosser, of Muskogee, Villard Martin, of Tulsa, and J. Berry King, of Muskogee, for plaintiff in error. Garber & Kruse, of Enid, B. T. Hainer, of Miami, and Burns & Toney, of Oklahoma City, for defendants in error. |