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(68 Cal. 11)

BARTON v. BROWN. (No. 9,234.)

Filed November 19, 1885.


Sales of personal property are void as against the seller's creditors, unless followed by an actual and continued change of possession, even though the property was of the class exempt from execution in the hands of the seller; as the right of exemption is a personal privilege, and is waived if not claimed by the debtor.

Department 1. Appeal from superior court, county of Humboldt.
James Hanna, P. F. Hart, and E. W. Wilson, for appellant.
W. W. Brumfield, for respondent.

Ross, J. The plaintiff sued for the conversion of certain personal property by the defendant, alleged to have been at the time, and since, the property of the plaintiff. Plaintiff claims to have purchased the property from James N. Barton, but the evidence shows that the pretended sale was not followed by an actual or continued change of possession. The court below, however, held, as matter of law, that the property in question was exempt from execution in the hands of the vendor, James M. Barton, and therefore "the sale was valid between the parties and all creditors, whether followed by continued change of possession or not." In this the court was in error. The right of exemption is a personal privilege, which, if not claimed, is waived by the debtor. Besides, a part of the property in question would not have been exempt under the statute in the hands of the debtor. Judgment and order reversed and cause remanded for a new trial.

We concur: MCKEE, J.; McKINSTRY, J.

(68 Cal. 18)

PEOPLE v. LARSEN. (No. 20,097.)

Filed November 19, 1885.


Where an information charged the commission of an offense on a day subsequent to the date of its filing, a conviction for murder thereunder would be a nullity, and a plea of once in jeopardy founded thereon would be bad, and could not be sustained.

Department 2. Appeal from superior court, county of Sonoma. W. F. Russell and J. A. Barham, for appellant.

E. C. Marshall, for respondent.

THORNTON, J. The question presented herein as to the defense of once in jeopardy was passed on by this court in bank in People v. Clark, 7 Pac. Rep. 178. The decision in that case was adverse to the contention of defendant's counsel herein. It is true, the defendant in that case was accused of burglary and the defendant in this case of murder. But in our view the rule adopted in Clark's Case applies also to a case of murder. The information in this case was

insufficient, because, as in Clark's Case, it charged an offense committed on a day subsequent to the date of its filing. A conviction upon such an information would have been a nullity, and the party accused would never have been in jeopardy. Judgment and order affirmed.

We concur:

(2 Cal. Unrep. 551)


CRAVEN V. NOLAN. (No. 8,859.)

Filed November 19, 1885.


It is error to grant a nonsuit where the plaintiff gives evidence tending to sustain the issues presented in the complaint.

Department 2. Appeal from superior court, county of Stanislaus. Wright & Hazen, for appellant.

W. E. Turner, for respondent.

BY THE COURT. There was evidence given on behalf of plaintiff tending to sustain the issues presented in the complaint; therefore the court erred in granting the motion for nonsuit. The evidence should have been submitted to the jury. Judgment reversed, and cause remanded for a new trial.

(68 Cal. 27)


(No. 8,312.)

Filed November 20, 1885.


Where a lessor and lessee enter into a verbal agreement by which the terms of a written lease are altered, if such agreement is not acted upon by the lessee until after the lessor had conveyed his estate, it will not be binding upon the grantee of the lessor.

Department 2. Appeal from superior court, county of Marin.
D. H. Whittemore and Geo. W. Towle, Jr., for appellant.
D. M. Seaton, for respondent.

MYRICK, J. Mrs. Velasco leased to Soldati a tract of land, with 60 cows, for the term of from July 11, 1876, to October 1, 1879. In the lease it was agreed that Soldati should not have the right to pasture any stock of any kind on the premises other than the 60 cows, except the necessary horses to use in the dairy business. January 6, 1879, Mrs. Velasco sold the leased property to plaintiff. From January 26 to October 1, 1879, Soldati pastured 25 cows and other animals on the land, other than the 60 cows leased. This action was brought to recover for the pasturage of the extra animals.

The defendant was permitted to prove, against plaintiff's objection, that while Mrs. Velasco was the owner, she and defendant made a verbal agreement by which he might pasture the extra animals; and

the court instructed the jury that such verbal agreement was binding on the plaintiff. This was error. "A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise." Section 1698, Civil Code. The agreement to pasture the extra animals without charge was made while Mrs. Velasco was owner, but was not acted upon until after she conveyed to plaintiff, therefore her verbal agreement would not bind him. The court also instructed the jury that if Mrs. Velasco and Soldati made an agreement by which the latter might pasture the extra cattle without charge, the defendant was entitled to a verdict. For the reasons above given, this was error.

Judgment and order reversed, and cause remanded for a new trial.

We concur: MORRISON, C. J.; THORNTON, J.

(68 Cal. 33)

MCDERMOTT v. SAN FRANCISCO & N. P. R. Co. (No. 8,656.)
Filed November 21, 1885.

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Where, in an action for damages for negligence, the evidence thereof is circumstantial, the jury is the proper tribunal to determine the facts and the inferences therefrom tending to establish the negligence, and their verdict is conclusive, and will not be set aside unless, in the judgment of reasonable men, no such deduction as that expressed in the verdict could be properly drawn from the evidence.

Department 2. Appeal from superior court, county of Marin. E. S. Lippitt and W. S. Woods, for appellant.

Hepburn Wilkins, for respondent.

THORNTON, J. This is an action brought to recover damages for a loss by fire, caused by the negligence of defendant. It is argued that the evidence is insufficient to sustain the verdict, which was in plaintiff's favor. The testimony was of that character which must have been submitted to the jury. The testimony given in this case to prove negligence was circumstantial, and it was the province of the jury to determine the facts, and all proper inferences from them, establishing the negligence alleged. Shafter v. Evans, 53 Cal. 32; Chidester v. Consolidated Ditch Co., 59 Cal. 201; New England Glass Co. v. Lovell, 7 Cush. 321. The above rule we consider settled law in this state. The verdict of the jury on such evidence should not be set aside, unless when, in the judgment of reasonable men, no such deduction as that expressed in the verdict could be properly drawn from the facts in evidence. The rule is so settled with us. See Chidester v. Consolidated Ditch Co., supra; Fernandes v. Sacramento C. Ry. Co., 52 Cal. 45; McKeever v. Market St. R. Co., 59 Cal. 300; Longenecker v. Pennsylvania R. Co., 105 Pa. St. 328; Beach, Neg. § 161, and cases there cited.

We find nothing in this case which induces us to disturb the verdict on the ground of insufficiency of the evidence. There is no error in the record, and the judgment and order denying a new trial must be affirmed.

We concur: MYRICK, J.; MORRISON, C. J.

(2 Cal. Unrep. 552)

PEOPLE v. SULLIVAN. (No. 20,091.)

Filed November 19, 1885.

1. HOMICIDE-MURDER-ADMISSIBILITY OF DECLARATIONS OF DECEASED. In a prosecution for murder, the admission of declarations of deceased, made after receiving the injury, will not warrant a reversal if they are not calculated to prejudice the defendant, although they are not properly dying declarations, nor part of the res gesta.


A witness who testifies that he has had experience with wounds, and is able to tell from seeing them what they were made with, though not a professional expert, may testify as to whether, in his opinion, a wound was inflicted with a dull or sharp instrument.

3. CRIMINAL LAW-TRIAL-REFUSAL OF INSTRUCTIONS SUBSTANTIALLY GIVEN. It is not error to refuse to give an instruction if the same has already been given in other instructions.

Department 2. Appeal from superior court, county of Fresno. Campbell & Hinds, for appellant.

E. C. Marshall, Atty. Gen., for respondent.

MORRISON, C. J. The defendant was convicted of the crime of murder in the second degree, and adjudged to suffer imprisonment therefor for the term of 25 years. On this appeal he makes the fol

lowing points:

(1) The court erred in admitting the declaration of deceased. (2) The court erred in admitting the testimony of II. J. White, who claimed to be an expert, as to whether the wound had been inflicted with a dull or sharp instrument. (3) The court erred in refusing to give an instruction asked by the defendant, upon the hypothesis that his testimony was true.

1. The following is the testimony objected to under the first alleged


"Counsel for the people asked the following questions, upon which the court made the ruling that follows: Question. Did he (deceased) say anything about sending for a doctor while in that condition? Answer. Yes: I will tell you. Q. Just state what he said about sending for a doctor. Mr. Hinds, Counsel for Defendant. We object to it on the ground that it is incompetent and not admissible as a dying declaration, or as a part of the res gesta. Mr. Harris, (for the People.) We want to show that the deceased asked them if they had sent for a doctor, and they said no, but they would; and he said it was no use,-they couldn't do him any good. We want to establish the foundation for introducing other declarations. Does the court admit the question? Court. Yes. Court. Yes. Mr. Hinds. We take an exception. Mr. Harris. State what he said about sending for a doctor, first. A. He asked if we sent for a doctor. He was, told no, but there would be a doctor there as soon as possible. Says he, I don't think it is necessary; I don't think a doctor will do me any good.' Q. Did he say anything else in that conversation? Counsel

for Defendant. We object to any declarations, on the ground that they are incompetent, not dying declarations, or a part of the res gesta. Court. Same ruling and same exception. Q. Go ahead. A. He asked if he was hurt. He was told he was. Q. How he got hurt? A. He was not told how he got hurt, And then he says, 'Have you sent for a doctor?' They said there would be a doctor there as soon as we could get him there. He says, 'I don't think it is necessary, because I don't think he could do me any good;' and then asked if we had any morphine, and they said no. He died about an hour and a half -about two hours, I guess—after he said these words. Q. He asked how he got hurt? A. Yes, sir."

Even if it be conceded that the foregoing testimony was improperly admitted, there is nothing in it calculated to prejudice the defendant, and if error was committed by the court in admitting it, it was error without injury.

2. The second alleged error relates to the testimony of H. J. White. The witness, after fully describing the wounds found on the person of the deceased, and after testifying that he had had experience in seeing very frequently cut wounds, and was well acquainted with wounds made with a sharp instrument, and blunt ones also, said: "I have been here since 1849, and have seen a great deal of this kind of work. From my experience I am competent to tell from seeing a wound what it was made with." He was then asked by the counsel for the people as follows:

"Mr. Harris. Did that wound [meaning a wound he had described] have the appearance of being done by a sharp instrument or a dull instrument? S. J. Hinds, Counsel for Defendant. We object to the testimony on the grounds-First, that he is not shown to be a professional expert on wounds; second, that, granting that he is an expert on wounds, it is incompetent for a man looking at a wound to give his opinion as to how it was caused, whether he speaks professionally or otherwise; he can state the facts, but he can't state his opinion. The Court. The court will overrule the objection. Mr. Hinds. We except."

In answer to the question the witness stated that the wound had the appearance of being done with a dull instrument. The same witness testified to having found blood and gray hairs on the blunt end of the ax found near the place of killing, that is, the hairs were found on what was called the pole of the axe, and the blood on the handle, and the wound, being testified to, was located by witness as having been found on the head of deceased, who had black and gray hair.

We do not see, in view of all the circumstances in evidence in the case, how the defendant could have been injured by the testimony complained of, for he made a full statement of the facts attending the homicide, between which statement and the testimony of White there is no conflict. But we are of opinion that the witness White was a competent witness in respect to the matter on which he testified, and for that reason there was no error in admitting his testimony.

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