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tween statements made at the trial, regarding the time when the shot had been fired from the chamber of the revolver, and statements made previously. It was shown that the witness had previously stated that the gun had been fired about a month before the alleged homicide, and his statements at the trial showed that it had been fired about a week before. Appellant and the deceased had always been close friends. Appellant testified that deceased had done some favors for him and that he had done many favors for the deceased. The only hint of any quarrel was that relating to an argument which occurred between the two men at a time considerably in advance of the commission of the alleged crime, which argument arose over the refusal of deceased to pay fare to an automobile driver who had brought the two men home from some point. At that time the deceased was objecting to the amount of the fare, and appellant insisted that he should not argue with the driver, but pay it. The fare was paid and the dispute there ended, and from no testimony does it appear that the men were other than upon the most amicable terms thereafter, as they had theretofore been. It was established that deceased was killed by a bullet passing through his head, and a bullet, which was picked up in the room near the body, was of .38 caliber.

We have now stated all of the most material evidence offered in the case by which the prosecution claimed that the guilt of appellant was established. The question, then, submitted to us is as to whether this evidence was of such a substantial nature as to justify the conviction, or whether it merely presents a set of suspicious circumstances the sum of which cannot amount to proof of the commission of the alleged crime by appellant. [1] We are not satisfied that the proof made was sufficient to support the verdict of the jury. In expressing this conclusion we have not left out of view the requirement that before an appellate court can interfere with the verdict of a jury made upon conflicting testimony, the evidence shown must be of such an unsubstantial nature as to amount to no proof at all; and thus do we characterize the case for the prosecution, as shown in this record. The evidence was circumstantial purely and at best established only a suspicion of guilt; the alleged incriminating circumstances stood alone and formed no completed chain. No witness produced at the trial saw appellant go to the house of deceased on the afternoon referred to, no one saw him at that house, and no one saw him on that day discharge a revolver. Absolutely no motive for the crime was established, and the fact of the conceded friendship between the deceased and appellant is a potent argument against any subtle motive having been aroused in the mind of appellant. The statement of the medical expert that the blood that he found upon the trousers was human blood, did not have any direct effect to connect appellant with the alleged murder; and this witness declined to state as to whether the blood that he examined was fresh or old. The opinion of the officer who examined the revolver, to the effect that he believed from the smell and appearance that the chamber had been discharged within a few hours prior to the making of his examination, while also a suspicious circumstance, could not legally be given much weight, unsupported by some proof other than that narrated, such, for instance, as establishing what the prosecution did not establish, that appellant, between the time that deceased returned to his cabin and the time of the discovery of his dead body, had visited the latter's place of abode. It is understood, of course, that in considering the particular question under discussion the evidence for the prosecution must be taken alone and given the strongest interpretation permissible. It may be added, however, that as to each of the matters adverted to, the appellant testified

freely and offered plausible explanation. As to the firing of the gun, he stated, that at the time he was first interrogated about it, he did not recall precisely the time that he had fired the gun, but that some days after that time a witness (apparently reputable) had reminded him that about a week before that time he had, in the witness' presence, discharged the gun at a stray dog near the store. He produced this witness, who corroborated the testimony fully. As to the alleged blood spots, he testified that on the day of the alleged homicide he was intoxicated and that in taking catsup from a bottle he had spilled the contents down the front of his trousers and onto his shoes, and remembered that Curran had called his attention to it and that at that time he had taken off the trousers and washed one of his shoes to clear it of the stains. He further stated that a day or so before, while wearing he same trousers, he had killed some squabs with a butcher knife and that, no doubt, blood had dropped upon the trouser legs from the birds; that he knew of no other blood having gotten there, although he said he was in the habit of shooting rabbits and of wearing the trousers while so engaged. He testified further that he was lying down when Curran returned that afternoon, and that he did not get up until later in the day. He flatly contradicted Curran as to the latter having gone to sleep, and stated that he saw Curran behind the counter after the latter arrived from the ranch and saw him there again when he woke up. Another witness, apparently reputable, testified that he saw Curran back of the counter at about 1 o'clock and again at 3. Appellant stated, and there appeared to be no dispute about that, that it was his habit to keep the revolver about the store on account of thieves, who had previously robbed him; that on the day in question he did put the revolver in his trousers for a time, but did that because he found it under the counter and was afraid some one would take it, and that he had put it in his pants, intending to put it under the pillow, but was interrupted at the time. He did not state, however, with clearness as to when the gun had been replaced under the pillow. Upon the evidence introduced on behalf of the people, including all of the alleged contradictions, as shown in the statements made by appellant, we do not think that a sufficient case was made entitling the jury to return a verdict of guilty. Having reached that conclusion, it will not be necessary to give particular attention to the alleged errors assigned by appellant. We may call attention, however, to one of them: The defense produced two witnesses who were ready to testify that between 1 and 3 o'clock on the afternoon of December 15th, when they saw Curran back of the counter at appellant's store, that Curran told them that Bailey was asleep. It will be remembered that Curran's testimony was that he himself went to bed and that he did not know what happened after that until just before the time the body of deceased was discovered in the cabin. That this testimony was most material, there can be no doubt; that it was admissible as part of the res gestae we do not believe. It was purely impeaching testimony and no foundation had been laid for its introduction in the examination of Curran. We called attention to the fact that Curran hai disappeared at the time of the second trial and could not be found; hence his testimony, given at the previous trial, was read in evidence. He was not at that time asked as to whether he had made the statement to these witnesses to the effect that on that afternoon appellant was asleep. It might well be that the defense, as counsel state, was laboring under a disadvantage because he did not know that there were witnesses available at the first trial who would testify to these facts. But that was a misfortune which could not be made to supply the want of sufficient foundation being laid for the introduction of the testimony referred to.

For the lack of sufficient evidence shown to justify the verdict of the jury, the judgment appealed from is reversed.

We concur:

CONREY, P. J.

MYERS, J. pro tem.

JAMES, J.

Civil No. 2595. Second Appellate District. October 31, 1918. AGNES O'BRIEN, Plaintiff and Appellant, v. NEW METHOD CO-OPERATIVE LAUNDRY COMPANY (a Corporation), Defendant and Respondent.

[1] ACTION FOR DAMAGES-PERSONAL INJURIES-CONTRIBUTORY NEGLIGENCETRIAL UPON THEORY OF ISSUE RAISED.-In an action for damages for personal injuries, where the parties considered that the issue of contributory negligence was before the court and the case was tried upon that assumption, it cannot be claimed on appeal that the allegation of the answer as to such negligence was insufficient to present the issue.

[2] ID. INSTRUCTIONS-CLAIM OF ERROR-PRESUMPTION FROM RECORD.Where on an appeal from the judgment and order denying a new trial in an action for damages for personal injuries, the bill of exceptions does not contain all the instructions given, but only those the giving of which and refusal to give which are made the subject of the claim of error, it will be assumed that were the whole charge before the appellate court it would not show error, but that any imperfections of instructions were harmonized. Appeal from the Superior Court of Los Angeles County-J. P. Wood, Judge.

For Appellant-James Donovan, John L. McGonigle.

For Respondent-Elmer R. McDowell, R. C. Gortner.

Appeal from a judgment in favor of defendant, entered upon a verdict returned by a jury. There is also an appeal taken from an order denying a motion for new trial.

Plaintiff was operating a shirt-ironing machine in the establishment of defendant. The machine was arranged in such a way that, after the shirt was placed upon a board or roller, the board was made, by mechanical means, to pass forward and backward underneath hot rollers. The fingers of plaintiff's right hand were caught in the reliers and burned. She alleged that the machine was unsuitable and dangerous in that it would, without warning, act irregularly and "jump"; and that because of the "jumping" her hand was caught and her fingers burned and injured. Defendant denied negligence on its part, and alleged further "that if plaintiff was injured in the operating of said machinery the said alleged accident was due to plaintiff's carlessness in operating the said shirt polisher". It is first contended that this allegation was insufficient to present the issue of contributory negligence. However, we find upon examining the statement of the evidence, that testimony without objection was introduced tending to show, and from which the jury might rightly conclude, that in operating the machine plaintiff was habitually negligent in not giving close attention to her work, and that she had been advised that she should be careful and "keep her eye on the work while she was ironing, because the machine was dangerous". There was testimony also by others who operated the machine before and immediately after the accident, that it was in good working order and that it did not "jump", as the plaintiff asserted it did. [1] It is very clear that the parties to the suit considered that the issue of contributory negligence was before the court and that they tried the case upon that assumption. While there was a demurrer to the answer,

it appears not to have been specially pointed to the alleged insufficiency of the plea of contributory negligence.

Counsel for appellant further insist that on the mere testimony as stated by the plaintiff, that the machine worked in an irregular manner, a prima facie case was made out and that there was no evidence sufficient to overcome that. Suffice it to say that it was for the jury to take the whole case as made by the evidence on behalf of both plaintiff and defendant and determine the fact of negligence or the lack of it.

[2] A number of instructions are referred to as having been given and refused, for which error is claimed. The bill of exceptions does not contain all of the instructions given by the court, but only those the giving of which and refusal to give which are made the subject of the claim of error. In such a state of the record we must assume that were the whole charge of the court before us, it would not show error, but that any imperfections of instructions as are exhibited here were harmonized and that a correct statement of the law was made. (Harris v. Barnhart, 97 Cal. 546; Churchill v. More, 4 Cal. App. 219.) It necessarily must be said that from such a record this court would not be justified in determining that there had been a miscarriage of justice.

We find nothing in the argument presented upon this appeal which justifies interference with the judgment or order as entered. The judgment and order appealed from are affirmed.

We concur:

CONREY, P. J.

MYERS, J. pro tem.

JAMES. J.

Civil No. 1875. Third Appellate District. November 1, 1918. THE EQUITABLE TRUST COMPANY OF NEW YORK (a Corporation), Plaintiff and Respondent, v. WESTERN LAND AND POWER COMPANY (a Corporation, herein referred to as the Power Company), ALFRED J. ANDERSON, GEORGE B. VAN ALLEN et al., Defendants, and AUGUST ANDERSON and EMILY C. DODGE, Defendants and Appellants.

[1] CORPORATION LAW-FOREIGN CORPORATION ACTING AS TRUSTEE FOR BONDHOLDERS-SINGLE ACT OF BUSINESSs.-A foreign corporation is not carrying on business in this state by the isolated act of acting as trustee for bondholders, collecting accruing interest on the bonds and taking title as security to the property of the corporation issuing the bonds.

[2] ACTION FOR FORECLOSURE-SECURITY FOR BOND ISSUE-EXECUTION OF BONDS EVIDENCE.-In an action to foreclose a deed of trust made to secure a bond issue, the testimony of the holder of the majority of the bonds that the corporation executed the bonds is inadmissible, as the bonds themselves are the best evidence.

Appeal from the Superior Court of Lassen County-H. D. Burroughs, Judge. For Appellants-R. M. Rankin.

For Respondent-I. M. Peckham.

This is an action to foreclose a deed of trust or first mortgage on lands in Lassen county made by defendant Power Company to plaintiff to secure a five hundred thousand dollar issue of first mortgage bonds of defendant Power Company, in two series of one thousand and five hundred dollar denominations, respectively, as provided for by deed of trust.

The trust deed was made July 15, 1911, and was recorded August 1, 1911. Pursuant thereto the Power Company issued 290 of the one thousand dollar bonds and 360 of the five hundred dollar bonds. The Power Company failing to pay the accrued interest, the majority bondholders requested the trustee

to foreclose, and this action was instituted in compliance with that request. September 20, 1912, appellant Anderson, having taken judgment against the Power Company for $671.00 on certain assigned labor claims, at execution sale thereunder bought the Power Company's equity of redemption in 280 acres of the land covered by the deed of trust, and, subsequently, April 27, 1914, conveyed an undivided half interest in the land so purchased to appellant Emily C. Dodge.

The action was tried September 1, 1916, and plaintiff had judgment foreclosing said deed of trust, which was entered October 26, 1916. The Power Company defaulted. Defendants Anderson and Dodge appeal from the judgment.

It is contended by appellants that the evidence is insufficient to support certain findings of fact by the court: That the evidence does not sustain the averment by the complaint, which was denied by the answer, that the Power Company "made, executed and delivered and issued for a valuable consideration" the bonds described in the complaint.

In establishing its case plaintiff introduced a certified copy of the statutes of the state of New York incorporating the plaintiff corporation and defining its powers and duties; also a certified copy of the articles of incorporation of the defendant Power Company on file in the office of the secretary of state. Plaintiff then offered in evidence two sample copies of these bonds, one numbered D 36 for $500.00 and one numbered M 1 for $1,000.00. Objection was made as immaterial, irrelevant and incompetent-"incompetent particularly for the reason that it has not been shown that the plaintiff corporation is entitled to carry on business in the state of California or to acquire the title, the legal title, to any property. Mr. Peckham (plaintiff's attorney): That is not in issue by the pleadings and therefore stands admitted". After argument, the court overruled the objection and admitted these sample copies of bonds as exhibits 3 and 4. These samples purport to set forth the facts as to the Power Company's purpose in issuing the bonds; sample D 36 recites that "this bond (one of the samples) is one of a series of coupon bonds of the Western Land and Power Company, numbered consecutively from D 1 to D 400 and from M 1 to M 300 both inclusive, . . subject to the terms of the mortgage or trust deed hereinafter referred to", the aggregate amount not to exceed $500,000.00. Other recitals follow not necessary to be stated. Sample M 1 is to like effect.

Plaintiff holds a charter under the laws of the state of New York; its place of business is in the city of New York, and the character of its business requires that it be there transacted; the bonds in question and the interest coupons are payable there. So far as appears, plaintiff has never transacted any business in this state, unless it can be said that to act as trustee for the holders of the Power Company's bonds, collect accruing interest, taking title to property as security and otherwise discharging the duties of trustee can be said to violate section 208 of the Civil Code.

In Roseberry v. Valley Building & Loan Association, 83 Pac. 637, it was said: "The only business which plaintiff actually transacted in this state (Colorado) is that involved in this action. There is no averment that it has made any other loan or sold any other stock, and proof of the allegation which is made would be that plaintiff loaned money to defendant and took his mortgage. It has been repeatedly decided in this jurisdiction that a single act of business does not come within the purview of these statutes." There the statutes are somewhat similar to ours.

The question was quite fully discussed in Ammons v. Brunswick-Balke-Collender Co., 82 S. W. 937, where an act of congress was involved which required certain things to be done before any foreign corporation shall begin to "carry

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