favor. If, on the other hand, it resembled the alleged father, it would be convincing evidence, not of the alleged violence, but of the act of intercourse with him which it was necessary for plaintiff to establish. There existed no controversy as to the birth of the child, and it was competent for plaintiff to testify that defendant was the father thereof. (State v. Miller, 71 Kan. 200, [6 Ann. Cas. 58, 80 Pac. 51].) And it has also been held that a child may be exhibited to the jury in order that they may consider and determine whether or not there may be any resemblance to the defendant. (State v. Danforth, 73 N. H. 215, [111 Am. St. Rep. 600, 6 Ann. Cas. 557, 60 Atl. 839].) In State v. Danforth, supra, it is said: "All of the cases concede, in effect, that there may be cases in which the maturity of the child or the character of the peculiarities relied upon as a ground of resemblance or dissimilarity render the child competent evidence on the issue of paternity. The objections urged to the competency of the, evidence go rather to its weight than to its relevancy." In 1 Wigmore on Evidence, section 166, it is said: "The sound rule is to admit the fact of similarity of specific traits, however presented, provided the child is in the opinion of the trial court old enough to possess settled features or other corporal indications." In our opinion, since the child is not before us, the matter complained of was a question peculiarly within the province of the trial court to determine. At all events, it devolves upon appellant to affirmatively show prejudicial error, and there is nothing in the record here presented upon which we can assume, even if the court erred, that defendant was prejudiced by the ruling.

Complaint is made that the court erroneously instructed the jury as follows: "Whether or not plaintiff was chaste and virtuous prior to the alleged assault is not material to the maintenance of this action, and should you find from the evidence that she was not, that alone would not justify you in finding for the defendant. Whether or not she was chaste prior to the alleged assault is only material for the purpose of showing the damages which she may have suffered by reason of the alleged assault." The chastity of plaintiff prior to the assault was made an issue in the trial, and there was conflicting evidence touching the question. In our opinion, evidence as to the chastity of plaintiff was not only material touching the question as to the measure of damages,

as stated by the court, but likewise material as tending to show the probability or nonprobability of resistance on the part of the prosecutrix; "for it is certainly more probable that a woman who has done these things voluntarily in the past would be much more likely to consent than one whose past reputation was without blemish, and whose personal conduct could not truthfully be assailed." (People v. Johnson, 106 Cal. 289, [39 Pac. 622].) Conceding, however, that the court erred in thus limiting the purpose for which such evidence was to be considered by the jury, it is nevertheless impossible to perceive how defendant could have been prejudiced thereby, since his defense, being an alibi, was not based upon the fact that plaintiff had consented to the act. Hence, conceding the error, defendant's substantial rights could not have been prejudiced by reason thereof.

The court instructed the jury that "Compensatory damages should be given in such amount as in your judgment will fairly compensate her for the injury she has received by reason of the act complained of, taking into consideration her physical suffering and disability during pregnancy and in childbirth, if you find the pregnancy was the result of the defendant's act, also her mental suffering, shame, and disgrace, and her loss of social standing, and all other harm you find she suffered as the natural result of the wrong. Objection is made to this instruction upon the ground that it invades the right of the jury, telling it that damages should be awarded to plaintiff regardless of whether she gave her consent or not. We do not so construe it. Read in connection with other instructions, and also as stated therein, they are to compensate her for the wrong by reason of the act complained of. "The act complained of" was the rape alleged to have been committed upon plaintiff by defendant.

Numerous assignments of error are predicated upon rulings of the court in admitting and rejecting evidence. Conceding some of the questions calculated to elicit immaterial testimony, we are unable to perceive that any prejudice could have resulted therefrom. The questions: "Did you become unconscious at any time while you were struggling with him?" "Did he say anything while he was doing this?" "Were you or were you not unconscious at the time he set you up?" "Before this assault were you as large physically as you are now?" were all proper, not only as tending to

show damage, but for the further reason that they bore upon the question of her power to resist the defendant. In response to the last question plaintiff replied that she weighed 140 to 145 pounds at the time the act was committed, whereas at the time of the trial she weighed 215 pounds. This testimony was certainly proper, since defendant claims that, as he weighed only 155 pounds, it was improbable that he could forcibly rape a woman weighing 215 pounds. It was made to appear that after the commission of the act plaintiff remained on friendly terms with defendant, and she was asked the reason for such continued relations. Her answer to the effect that he always "promised Papa that he would come and get married, and we expected that he would keep his word," shows the materiality of the question. It is also claimed that the court erred in admitting the testimony of a physician as to the period of gestation. The ground of this objection is that such period is a matter of common knowledge, and not one requiring expert testimony. Conceding this to be true, how could defendant have been prejudiced by the answer? It is also claimed that the court erred in striking out the following testimony given by witness Mendez for the defense: "Last summer I saw Frank Truhillo and Alvina Valencia at Urbita Springs. It was last year I saw them." It is impossible to perceive how such fact could be material to any issue involved in the case. There were numerous other objections, in character as trivial and unimportant as those to which we have adverted. No purpose could be subserved by a more extended reference thereto. Suffice it to say, we find no error which in any event could have resulted in a miscarriage of justice. (Const., art. VI, sec. 42.). The judgment and order are affirmed.

Conrey, P. J., and James, J., concurred.

[Civ. No. 1915. First Appellate District.-September 28, 1916.] EDWARD L. KNORP, Appellant, v. BOARD OF POLICE COMMISSIONERS, etc., et al., Respondents.

POLICE OFFICER REINSTATEMENT MANDAMUS STATUTE OF LIMITATIONS. The right of a member of the police department of the city and county of San Francisco, whose resignation was accepted on account of collapse due to mental strain, to be reinstated, is barred by laches and the provisions of sections 338 and 343 of the Code of Civil Procedure, where the mandamus proceeding to compel such reinstatement was not instituted until some seven years and eight months after the date of his certificate of discharge from the state hospital to which he was committed, although the proceeding was instituted within the statutory period after his restoration to capacity pursuant to the provisions of section 1766 of the Code of Civil Procedure, where the petition for such restoration failed to show that there had been any previous guardianship proceedings. INSANE PERSONS-RESTORATION TO CAPACITY-ABSENCE OF GUARDIANSHIP PROCEEDINGS JURISDICTION OF OFFICERS OF ASYLUM. The superior court is without jurisdiction, under the provisions of section 1766 of the Code of Civil Procedure, to restore to capacity a person adjudged to be insane and committed to an insane asylum, without having been put under guardianship, as such jurisdiction, in the absence of guardianship proceedings, is vested exclusively in the officers of the hospital.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. James M. Troutt, Judge.

The facts are stated in the opinion of the court.

Von Schrader & Cadwalader, for Appellant.

Percy V. Long, City Attorney, and D. S. O'Brien, Assistant City Attorney, for Respondents.

LENNON, P. J.-In this proceeding the plaintiff sought a writ of mandate against the defendants, sitting as the board of police commissioners of the city and county of San Francisco, commanding them to reinstate the plaintiff as a member of the police department of said city and county. The

appeal is from a judgment entered in favor of the defendants, and from an order denying the plaintiff a new trial.

The facts of the case are practically undisputed and, in so far as they are pertinent to a discussion of the paramount point in the case, are, substantially stated, these: On the sixth day of November, 1899, the plaintiff became a member of the police department of said city and county, and was thereafter an active member of the department until June, 1901, when he "collapsed on account of mental strain." The records of the police commission show that on July 2, 1901, the plaintiff's application for leave of absence for three months without pay was granted by the board, and that on September 24, 1901, he tendered his resignation as a member of the police department, which was accepted "to take effect from On November 22, 1901, the plaintiff was adjudged to be insane by the superior court of said city and county, and committed to the care of the Napa State Hospital, where he remained as a patient and an inmate until November 16, 1902, when he was released on leave of absence in care of his brother, George H. Knorp. Thereupon plaintiff returned to San Francisco, where he resided with his brother until May 24, 1904, when he in person applied for and procured from the medical superintendent of the Napa State Hospital a certificate discharging him from the custody and control of said institution upon the ground of his mental recovery. Thereafter, on October 24, 1911, he petitioned the superior court of the city and county of San Francisco for an order restoring him to capacity pursuant to the provisions of section 1766 of the Code of Civil Procedure, and the court made the order. The trial court in its findings of fact, among other things, found that plaintiff's resignation as a member of the police department was tendered by him and accepted by the board of police commissioners on September 24, 1901, and that his cause of action for reinstatement was, as pleaded in the answer of the defendants, barred by the provisions of sections 338 and 343 of the Code of Civil Procedure and the laches of the plaintiff.

The latter, we think, is fully sustained by the evidence. The action was not instituted until March 26, 1912, some seven years and eight months after the date of the medical superintendent's certificate finally discharging the plaintiff from the custody and control of the state as recovered. That