4. The court charged the jury as follows: "The charge in the information puts upon the prosecution the burden of proving that he is guilty of the charge laid in the information beyond all reasonable doubt. In other words, gentlemen, the defendant at the outset of this trial is presumed to be an innocent man. He is not required to prove himself innocent or to put in any evidence at all upon that subject until the prosecution has proven to your satisfaction and beyond all reasonable doubt that he is guilty. Now, in considering the testimony in the case, you must look at that testimony and view it in the light of that presumption which the law clothes him with, that he is innocent, and it is a presumption that abides with him throughout the trial of the case until the evidence convinces you to the contrary beyond all reasonable doubt."

It is claimed that the effect of this instruction was to deprive defendant of the presumption of innocence, at some time throughout the trial, before the jury should by their verdict determine to the contrary; that the jury were in effect told that when the prosecution closed its evidence, and the defendant was called upon to put in his defense, at that point of time the presumption of innocence with which the defendant was clothed ceased to operate. There is no doubt but that the presumption of innocence continues not only during the taking of the testimony, but during the deliberations of the jury and until they reach a verdict (People v. McNamara, 94 Cal. 509); and if it could fairly be said that the instruction deprived the defendant of the full operation of this rule, we should not hesitate to hold the error to be prejudicial. But we cannot so interpret the meaning of the instruction. The court told the jury that "it is a presumption that abides with him throughout the trial of the case," and we do not think the language, "until the evidence convinces you to the contrary beyond all reasonable doubt," conveyed the impression that the presumption ceased to operate at the close of the evidence of the prosecution or at any time before the jury had finally determined upon a verdict. The court meant, and we think must have been by the jury understood to mean, that the presumption remained to the last with defendant and until in their deliberations upon the

evidence they became convinced of his guilt. When the jury reached that conclusion on the whole evidence and beyond a reasonable doubt, of course the presumption disappeared and should disappear.

The judgment and order are affirmed.

[L. A. No. 751. Department Two.-December 29, 1900.]

L. A. GREEN, Respondent, v. JOHN BURR, Sheriff, Appellant.

ACTION FOR CONVERSION-ATTACHMENT OF RESTAURANT PROPERTY-FINDING OF OWNERSHIP-PURCHASE BY PLAINTIFF OPTION TO ATTACHMENT DEBTOR-AGENCY.-In an action for the conversion of restaurant property taken under attachment against another person who was in possession and was running the restaurant, a finding that plaintiff was the owner is sustained by evidence that plaintiff acquired the property by bill of sale from a restaurant company, upon advancing money to settle with its creditors, and had given to the attachment debtor, who had been an attaching creditor of the restaurant company, an option to purchase the restaurant within fifteen days, and had allowed him possession meanwhile as plaintiff's agent, and that the property was attached in his hands before the option to purchase had been exercised.

ID.-DECLARATION OF OWNERSHIP BY ATTACHMENT DEBTOR.-Declarations of ownership of the property made by the attachment debtor while in possession of the restaurant can have but little weight against the proof of plaintiff's title, and cannot overthrow the finding in favor of plaintiff's ownership.

ID. AMENDMENT OF ANSWER AFTER SUBMISSION OF CASE-REFUSAL OF LEAVE-HARMLESS RULING.-It is harmless for the court to refuse to allow an amendment of the answer after submission of the cause to the court for its decision to conform the pleading to the proof, where it does not appear that any evidence was excluded at the trial on account of any defect in the answer, or that the defendant's situation would be bettered if his answer were changed, or that he was in any way injured by the ruling.

APPEAL from an order of the Superior Court of Lo3 Angeles County. Waldo M. York, Judge.

The facts are stated in the opinion.

Dillon & Dunning, for Appellant.

The plaintiff is estopped from denying ownership of the property as against the creditors of the party in possession under a conditional contract of sale, who claimed the property as his own. (Wylie's Appeal, 90 Pa. St. 210; Over v. Blackstone, 8 Watts & S. 71.) The court erred in refusing to allow the defendant to plead the estoppel to conform to the proofs. (3 Estee's Pleadings, sec. 4450; Cook v. Croisan, 25 Or. 475; Flanders v. Cottrell, 36 Wis. 564; Carpentier v. Small, 35 Cal. 346.)

George D. Blake, for Respondent.

The plaintiff had a title which was good against the creditors of Harvat, who had a mere unexercised option, and was not bound to purchase the property; and there is no estoppel in the case. (Vermont Marble Co. v. Brow, 109 Cal. 2361; Rodgers v. Bachman, 109 Cal. 552, 556; Harkness v. Russell, 118 U. S. 663; Bump on Fraudulent Conveyances, 4th ed., sec. 138.) The declarations of ownership by Harvat were not binding upon the plaintiff, and could not estop the plaintiff. (Robinson v. Haas, 40 Cal. 474; Shafer v. Lacy, 121 Cal. 574, 578, 579; Zuchtmann v. Roberts, 109 Mass. 532; Sumner v. Woods, 67 Ala. 139.3) No amendment of the pleadings was required, as the defendant could prove anything which would defeat the title of the plaintiff. (Howe v. Johnson, 107 Cal. 67; Banning v. Marleau, 121 Cal. 240.)

GRAY, C.-The defendant appeals from an order denying a new trial.

The action is to recover the value of the furniture and contents of a certain restaurant in the city of Los Angeles alleged to have been wrongfully converted by defendant. The defendant denies plaintiff's title and justifies the taking, as sheriff, under a writ of attachment issued in a cause entitled G. C. de Garmo v. George F. Harvat, and alleges that the defendant in that action is the owner of the property in controversy.

150 Am. St. Rep. 37. 212 Am. Rep. 663.

3 42 Am. Rep. 104.

The appellant contends that the findings in favor of plaintiff as to the ownership of the property are not sustained by the evidence. The evidence shows that the property in dispute belonged to a certain restaurant company of which Harvat was a creditor in a small amount. He assigned his claim to one Clark, who brought suit thereon and attached. the said property. IIarvat then fearing the restaurant owners would be thrown into insolvency, desired to purchase the property in controversy for enough to pay the other creditors of the restaurant fifty per cent of their claims, which they had agreed to accept in full satisfaction thereof. For lack of funds Harvat was unable to do this, and so through his assignee, Clark, who seems to have been a mere agent in the matter, he applied to the plaintiff herein and she consented to and did put up the money, about five hundred dollars, to pay the creditors and took a bill of sale of the property from the owners of the restaurant. The plaintiff then gave Harvat a fifteen days' option to purchase the property from her for six hundred dollars. The constable who had the property under attachment and Clark, the plaintiff in the attachment suit, then placed said property in the possession of Harvat as the agent of the plaintiff, and while the property was so in the possession of Harvat and before the expiration of the fifteen days' option the defendant, as sheriff, seized the goods as the property of Harvat in an attachment suit brought against him by one of his creditors. It further appears from the evidence that Clark had previously been acting for the plaintiff in the investment of her money, and she gave him. special authority as her agent to purchase the property in question from the restaurant company and look after her interests in the matter. At the time of the seizure of the property by defendant, Harvat was running the restaurant and was in possession of the property in litigation herein. The creditors of the restaurant company were settled with, and they are making no claim with reference to the property. The foregoing facts were proven without substantial conflict in the testimony, except that there was evidence tending to show that Harvat while in possession had made some declarations of his proprietorship in said property. On the evidence as presented the court was fully warranted in finding

that plaintiff was the owner of the property at the time it was seized by defendant. There was nothing tending to show that Harvat, the debtor in the attachment suit was the owner of the property except his own declarations to that effect, which seem to have been received in evidence without objection made thereto; as against the other undisputed facts showing that plaintiff had bought and paid for the property, these declarations could have little weight.

The remaining contention of appellant is that the court erred in refusing to allow the defendant to amend his answer to conform to the proofs. It appears from the record that the request to be permitted to amend the answer was not made until after the case was submitted to the court for decision how long after such submission, or whether the request to amend was made before the case was decided, does not appear. But aside from this, it does not appear that any evidence was excluded at the trial on account of any defect in the answer. Nor can we see how any prejudice or injury accrued to defendant for want of anything in his answer, or how his situation might be bettered if his answer were in any way changed. The defendant appears to have lost his case for want of evidence, and not on account of any defect in his answer.

The order appealed from should be affirmed.

Haynes, C., and Smith, C., concurred.

For the reasons given in the foregoing opinion the order appealed from is affirmed.

Henshaw, J., McFarland, J., Temple, J.