of its vehicles were accustomed to remain about the office awaiting orders, at all times during working hours when they were not engaged in the operation of their trucks in the performance of their actual work. The owner of the company testified that Fickett's working hours were "any time from half past six until he got through at night. Sometimes it was four, sometimes it was ten, sometimes it was morning". No luncheon time was provided by the employer for the drivers. The owner said on this subject: "We leave that to the men. If they are in a hurry, or out in the country, it ain't no object to them to sit around for an hour. They eat their lunch and go on and lots of times they take it with them and eat it on the truck going along." He was then asked if that condition of affairs was changed to any degree when the men were in town and he said it was not. In response to a question as to whether the men could take longer than an hour for lunch if they desired, he said, "If they wished, if they weren't busy-no rules about that at all."

On the day that the accident occurred which cost Fickett his life he had been ordered, at about eleven in the morning, to haul a load of pipe from a certain establishment to the Southern Pacific depot. He procured his load and trucked it as far as the employer's office, where he arrived at twelve o'clock noon, the place being directly on his way to the depot. The depot was closed from noon until one o'clock, and Fickett stopped at the office on that account, instead of proceeding to his destination and being compelled to await the opening of the depot for the delivery of his load. He went into the office, leaving his truck on the opposite side of the street, where it was headed toward the depot and stood on the right side of the way. Moreover, the owner of the transfer company testified that, during the day, it was the custom of the drivers to park their trucks on either side of the street, in front of the office, and that space was reserved for that purpose on both sides. Trucks were run into the employer's yard at night only. Fickett remained in the office at least a part of the time from twelve to twelve forty-five, but the record does not show whether he ate luncheon there, or at his home, which was near at hand, or whether he went to a restaurant for it, or, in fact, whether he partook of lunch that day at all. At any rate, he was at the office at twelve forty-five. At that time, the owner of the company said to him, "Georgie, you better start along and you will be at the S. P. at the time they open the doors and get away a little quicker". Fickett then left the office, started to cross the street toward his truck, and was run down by a passing automobile.

[1] The petitioner relies upon the many cases to the effect that one is not entitled to compensation under the Workmen's Compensation Act if he is injured while on the way toward or from his employment. These cases are not in point, for the reason that, at the time he was stricken, Fickett was not on the way to his employment. He had never left it. Under the facts above stated, he was within the hours of his employment, he was in a place where he had a right to be and he had left his truck in a place where he had a right to leave it, in the regular and usual discharge of the duties he owed his employer. We are satisfied, and we need not cite

1

authority in support of our view, that Fickett's death was occasioned by an accident that happened in the course of his employment and that it arose out of the employment.

The award is affirmed.

We concur:

CONREY, P. J.

JAMES, J.

WORKS, J. pro tem.

Civil No. 2663. Second Appellate District. June 26, 1918. UNITED STATES FIDELITY AND GUARANTY COMPANY (a Corporation), Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, and the Honorable S. M. Marsh, Judge of said Court, Respondents.

OF

[1] PROBATE LAW-APPLICATION FOR LETTERS-EVIDENCE DEATH LETTERS AND TELEGRAMS-PEDIGREE. In a proceeding for the appointment of a special administrator of the estate of a deceased person, the death of the deceased cannot be proven by letters and telegrams under section 1870 of the Code of Civil Procedure, which permits hearsay evidence in "cases of pedigree".

Original application made to the District Court of Appeal for the Second Appellate District for a writ of review to the Superior Court of San Diego County-S. M. Marsh, Judge.

For Petitioner-Patterson Sprigg; Thomas, Beedy & Lanagan. For Respondents-Bischoff & Thompson.

This proceeding was instituted for the purpose of annulling an order of the superior court appointing a special administratrix. The order assailed is the second of that nature made by the court in the matter of the same estate. Upon the demand of the same petitioner who is before us now, the first order was annulled by this court. (Estate of Paulsen, 170 Pac. 855.) Upon all preliminary questions, this proceeding is the counterpart of that, and upon the authority of the opinion cited we summarily determine that the petitioner has a beneficial interest in this proceeding, that there is no right of appeal from an order appointing a special administratrix, and that such an order will be annulled under the writ of review if entered in the absence of proof of the death of the person in the matter of whose estate the appointment is sought to be made. We are thus left to consider, only, whether there was evidence of death of the alleged decedent to support the order now inveighed against.

Ingina Ostergard, the petitioner for letters, is a sister of the alleged decedent, Bjelka Paulsen. The former came to the United States from Denmark ten years ago, leaving the latter in that country. In the interim the two have not seen each other, the one having remained in this country ever since her coming within its borders, and the other having remained in Denmark until her death, if she be in fact dead. Bjelka Paulsen had various relatives in Denmark, including her children. Ingina Ostergard received from these relatives a telegram and several letters announcing the death of Bjelka Paulsen to have occurred

about November 20, 1914. The sole evidence of the death lies in the showing made by the telegram and letters. The question presented to us is whether, being hearsay, they are evidence of the death of Bjelka Paulsen. Section 1852 of the Code of Civil Procedure provides that "The declaration . . . of a member of a family who is . . . out of the jurisdiction, is . . . admissible as evidence of common reputation, in cases where, on questions of pedigree, such reputation is admissible." Section 1870 of the same code contains the following: "In conformity with the preceding provisions" (including section 1852), "evidence may be given upon a trial of the following facts: 11. Common reputation existing previous to the controversy, in cases of pedigree and boundary." The respondent contends that, under the terms of these sections, the telegram and letters constituted evidence of the death of Bjelka Paulsen. It will be observed from the language of the statute that, under this contention, our only labor is to determine if the question whether Bjelka Paulsen is dead, presented to the respondent, made a "case of pedigree." It may be asserted, upon the basis of various authorities which we have examined, that pedigree is the lineage, descent or succession of a family, or, perhaps speaking with more exactness, it is the chain, history or table of such lineage, descent or succession. (See title "Pedigree" in each of the following: Encyclopaedic Dict.; 30 Cyc., 1329; 6 Words and Phrases, 1 ed., 5267; 3 Words and Phrases, 2 ed., 941.) It may also be asserted, from a consideration of the same authorities, that the facts of birth, marriage and death are a part of pedigree. That assertion merely means, however, that they are links in the chain of lineage, pages in the history of descent, items in the table of succession; and it is very far from conveying the idea that an isolated question of either birth, marriage or death, arising in a given controversy, presents a case of pedigree. In People v. Mayne, 118 Cal. 516, a rape case, the trial court had admitted hearsay evidence to establish the date of the birth of the victim of the defendant, for the purpose of fixing her age, upon the theory that the question of birth was itself a question of pedigree. The supreme court said, "Although the term 'pedigree' includes the facts of birth, marriage, and death, and the times when these events happened (Greenleaf on Evidence, sec. 104), and evidence of these facts is pertinent for the purpose of establishing pedigree, the several facts, or either of them, do not of themselves constitute pedigree, and a case in which the age of an individual is the issue to be determined is not a case of pedigree. 'A case is not necessarily a case of pedigree because it may involve questions of birth, parentage, age, or relationship. Where these questions are merely incidental and the judgment will simply establish a debt or a person's liability on a contract, or his proper settlement as a pauper, and things of that nature, the case is not one of pedigree, although questions of marriage, legitimacy, death, or birth are incidentally inquired of.' (Eisenlord v. Clum, 126 N. Y. 566. See, also, Haines v. Guthrie, L. R. 13 Q. B. Div. 818.)" The same question was briefly touched in People v. Balmain, 16 Cal. App. 28, 35. There the court, con

sidering the admissibility of hearsay evidence to establish the date of the birth of a girl with whose abduction for purposes of prostitution the defendant was charged, said, "this is not a case of pedigree, but only a case where the date of a birth is involved." [1] So, here, there is no "case of pedigree". No question of lineage, descent or succession is presented. The only question before the respondent court was whether Bjelka Paulsen is deceased. That question, not coming within the statutory exception to the general rule excluding hearsay evidence, was not proven by the telegram and letters before the court, for they were not evidence upon the subject.

The order is annulled.

We concur:

CONREY, P. J.

JAMES, J.

WORKS, J., pro tem.

Crim. No. 434. Third Appellate District. June 26, 1918. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOE JACINTO, Defendant and Appellant.

[1] CRIMINAL LAW-ASSAULT WITH DEADLY WEAPON WITH INTENT TO MURDER-SUFFICIENCY OF EVIDENCE.-On this appeal from a judgment convicting defendant of the crime of an assault with a deadly weapon with intent to commit murder, it is held the evidence clearly shows the guilt of the accused.

Appeal from the Superior Court of Sacramento County-Malcolm C. Glenn, Judge.

For Appellant-George E. Foote.

For Respondent-U. S. Webb, Attorney-General; J. Chas. Jones, Deputy Attorney-General.

BY THE COURT.

This case was submitted on the record by the attorney-general, no brief having been filed with or appearance otherwise made before this court to sustain the appeal from the judgment of conviction taken by the defendant.

We have, however, examined the record and have found no substantial ground for the appeal.

The offense of which the defendant was convicted was that of an assault with a deadly weapon with intent to commit murder. The evidence discloses that the assault was committed on the wife of the accused at their home in the town of Hood, in Sacramento county, in the month of July, 1917, the motive for the crime being that the wife-the victim of the assault-had threatened and was about to leave the defendant because of his alleged ill-treatment of her and refused to heed his repeated demands that she remain with him. [1] The evidence clearly shows the guilt of the accused.

We have found no errors in the rulings admitting and excluding evidence, while the charge of the court is in clear language, pertinent to the issues and otherwise unobjectionable.

The judgment is affirmed.

Crim. No. 437. Third Appellate District. June 26, 1918. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOE U. POPE, Defendant and Appellant.

[1] CRIMINAL LAW-RAPE-SUFFICIENCY OF EVIDENCE. On this appeal from a judgment of conviction of the crime of rape it is held that the verdict is supported by the evidence and no prejudicial rulings appear.

Appeal from the Superior Court of Sacramento County-Malcolm C. Glenn, Judge.

For Appellant-S. Luke Howe, C. H. Crocker.

For Respondent-U. S. Webb, Attorney-General; J. Chas. Jones, Deputy Attorney-General.

BY THE COURT.

Defendant was accused by information of the crime of rape alleged to have been committed on the day of May, 1917, his victim being of the age of eleven years. He was convicted by a jury and the court sentenced him to serve the term of fifteen years in the state prison at San Quentin. The crime was alleged and shown to have been committed on May 3, 1917, and prior to the passage or adoption of the new section 1168 to the Penal Code relating to indeterminate sentences, and hence the sentence was properly imposed. (Ex parte Lee, 55 Cal. Dec. 489.)

The transcript was filed January 18, 1918, and was placed upon the June calendar. No brief has been filed by defendant and he made no appearance at the call of the calendar. On motion of the attorney-general the cause was submitted on the record. [1] Although not required to do so, we have examined the transcript of the evidence and rulings of the court, with the result that the verdict is shown to have support and that no prejudicial rulings appear.

The judgment is affirmed.

Crim. No. 441. Third Appellate District. June 27, 1918. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. STEFANO FLACCO, Defendant and Appellant.

Appeal from the Superior Court of San Joaquin County-D. M. Young, Judge.

For Appellant-A. H. Carpenter.

For Respondent-U. S. Webb, Attorney-General; J. Chas. Jones, Deputy Attorney-General.

BY THE COURT.

An

There has been no appearance in this court for appellant. examination of the record thoroughly convinces us that he was fairly tried and justly convicted.

The judgment and order are, therefore, affirmed.