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681,689, 1097, 1103, 1104, 1108, 1110, 1111, 1157, 1161, 1162, 1193, 1195, 1197, 1201, 1217, 1218, 1227, 1243, 1271, 1272, 1417, 1418, 1420.

By the first article (section 20) of the constitution it is provided: "No person shall be convicted of treason, unless on the evidence of two witnesses to the same overt act or on confession in open court." We think that as it would be proper to instruct the jury on a trial for treason that they could not convict, unless upon the testimony of two witnesses to the same overt act, the word "convicted" has reference to the verdict of the jury, and not to the sentence pronounced on the defendant. It also refers to the confession in open court, or plea of guilty, prior to the delivery of judgment. There is nothing in the context to show that the word "convicted" is used in any other than its ordinary sense. These words are used with a like meaning in the greater number of the sections above cited from the Penal Code. This we think is true of section 689 of the Penal Code, which is as follows:

"No person can be convicted of a public offense, unless by the verdict of a jury, accepted and recorded by the court, or upon a plea of guilty, or upon judgment against him upon a demurrer in the case mentioned in section 1011, or upon a judgment of a court, a jury having been waived, in a criminal case not amounting to felony."

Of a statute similar in Virginia it was said in Blair's Case that it plainly implies that a person may be convicted in either of these modes. In section 1161, above cited, we find the expression "verdict of conviction" is used, which clearly implies that a verdict is a conviction. In section 1151, supra, it is said "a general verdict upon a plea of not guilty is either guilty or not guilty, which imports a conviction or acquittal of the offense charged in the indictment." It must be the verdict of guilty which imports the conviction, and if it imports a conviction, it means or signifies it. In sections 1217 and 1218, supra, the words "conviction" and "judgment" are both used. There can be little doubt here that the former means a verdict of guilty. It is unnecessary to examine particularly all the sections above cited. We are satisfied that conviction, in the section (1271) above cited, signifies the verdict of guilty pronounced on a trial by the jury. In view of section 1166 of same Code, we cannot see that any other conclusion than the above can be reached. The section is as follows:

"If a general verdict is rendered against the defendant, or a special verdict is given, he must be remanded, if in custody; or, if on bail, he may be committed to the proper officer of the county to await the judgment of the court upon a verdict. When committed, his bail is exonerated, or if money is deposited instead of bail, it must be refunded to the defendant."

It may be conceded that on a conviction by verdict of a felony, not capital, it is in the discretion of the court to order the defendant, when on bail, into the custody of the proper officer. But when the court does so order him into the custody, he orders him there to be kept by the officer until judgment is pronounced, and if there can

be any admission to bail it must be discretionary with the court, and not a matter of right to the defendant. There is nothing in section 1272 in conflict with this. According to that section there is one case which is not bailable after conviction,-that is, after conviction of an offense punishable with death,-one case where, after conviction and appeal taken, bail is allowed as a matter of right, which is the case of an appeal from a judgment imposing a fine only. In all other cases than those above mentioned, where the defendant has been convicted and has appealed from the judgment, bail is allowed at the discretion of the tribunal granting it.

It may be questioned, when reading sections 1166, 1271, 1272, together, and comparing each section with the other, whether bail is allowed in the class of cases last mentioned in section 1272, intermediate the verdict and an appeal. If it is allowable at all, it must be as a matter of discretion. We think it settled law in this state by the judgments of the court in Ex parte Voll, 41 Cal. 29; Ex parte Marks, 49 Cal. 680; Ex parte Smallman, 54 Cal. 35; and People v. Marshall, 59 Cal. 386,-that this court ought not to admit to bail, after a verdict of guilty, unless when circumstances of extraordinary character had intervened since the conviction. No such circumstances are made to appear here.

We add here, in explanation of the foregoing, that there can be conviction in other modes than by the verdict of a jury. Conviction can be by plea of guilty and in the other modes mentioned in section 689 above cited. But in all these modes conviction takes place before judgment, except in the last mode mentioned in section 689; and in that it will be observed that a jury is waived, and the trial is by the court, in a case which does not amount to felony. The words "conviction" and "convicted" may signify either of these modes.

From the foregoing it follows that the defendants should not be admitted to bail, and their application is therefore denied, and they are remanded to the custody of the officer. So ordered.

We concur: MCKEE, J.; Ross, J.; MORRISON, C. J.

(2 Cal. Unrep. 586)

TOOMEY V. REILLY. (No. 9,000.)

Filed December 9, 1885.


Findings held sustained by the evidence.

Department 2. Appeal from superior court, city and county of San Francisco.

Action on a promissory note for $700. After trial the jury found that "plaintiff paid to defendant, and defendant received of plaintiff, a valuable consideration for said promissory note." The evidence on which this finding was based consisted of testimony that said $700 v.8P,no.12-53

note, and another $300 note given at the same time, were executed to plaintiff in consideration of the sum of $300 loaned to defendant by plaintiff, and the interest on said sum, and also as payment for certain services rendered by plaintiff to defendant.

Clement, Osment & Clement, for appellant.

W. C. Burnett and Isaac G. Burnett, for respondent.

BY THE COURT. We have examined the evidence given on the trial of this case, and find it sufficient to sustain the findings as to the consideration of the note.

The judgment and order are affirmed.

(2 Cal. Unrep. 587)

PETERSON V. DoE and others. (No. 9,090.)

Filed December 12, 1885.


Findings held supported by the evidence.

2. SAME-JUDGMENT AFFIRMED-SUBSTANTIAL CONFLICT IN THE EVIDENCE. Where there is a substantial conflict in the evidence, the court will not, on appeal, disturb the findings, but will affirm the judgment.

Department 2. Appeal from superior court, city and county of San Francisco.

Pillsbury & Titus, for appellant.

D. T. Sullivan, for respondent.

MORRISON, C. J. This action was brought for the recovery of $1,040.10 for the wrongful conversion by defendants of certain railroad ties, the property of the plaintiff. The case was tried by the court without the intervention of a jury, and the following are the findings of fact and the conclusions of law upon which judgment was rendered for the plaintiff.

"(1) That the defendants, L. B. Doe, George H. Kimball, and Charles W. Mott, were, at all the times mentioned in the complaint, and still are, copartners, doing business in the city and county of San Francisco, state of California, under the firm name and style of Doe, Kimball & Co.; (2) that on the fourth day of July, 1882, at the said city and county of San Francisco, the plaintiff here was possessed, as of his own property, of said personal property, viz., two thousand and seventy pieces of timber, called railroad ties; (3) that said railroad ties were of the value of eight hundred and ninety and ten-hundredths dollars lawful money of the United States, on said fourth day of July; (4) that while plaintiff was so possessed of said property on said fourth day of July, 1882, the said defendants took, seized, and carried away and converted the same to their own use, without the permission or consent, and against the will, of plaintiff. Wherefore, as conclusions of law from the foregoing findings of facts, the court finds that the plaintiff is entitled to a judgment against the defendant herein for the sum of $890.10, together with interest thereon from the first day of January, 1883, at the rate of 7 per cent. per annum, amounting," etc.

A motion was made for a new trial, which was denied, and this appeal is from the judgment and order.

There is no seriously contested question of law in the case, but the

contention is that some of the findings are not supported by the evidence. A careful examination of the transcript in the case fails to support the contention of the appellants. We think there was sufficient evidence to justify the findings, and on such findings the judgment properly passed for plaintiff. It is sufficient to say that, upon the main points in the case, there was a substantial conflict in the evidence, and in such cases it is the well-settled rule that this court will not interfere with the judgment. Judgment and order affirmed.

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BUTTE Co. v. BOYDSTUN and others. (No. 11,225.)

Filed December 16, 1885.


A notice of appeal must be served by the appellant on all adverse parties or their attorneys; and if a party appeals, and fails to serve his co-plaintiffs or co-defendants whose interests are adverse to him with a notice of appeal, the appeal will be dismissed.

In bank. Appeal from superior court, county of Butte.
T. R. Reardan & Son, for appellant.

John C. Gray, F. C. Lusk, and Hundley & Gale, for respondents. MYRICK, J. The defendants Cartwright, Gray, and Snider petitioned the board of supervisors that a by-road be laid out and established over lands owned respectively by them and the defendant Boydstun, and gave a bond for the payment of the cost of viewing and laying out the road. The petitioners consented to the taking of their lands for the road, but the defendant Boydstun resisted. By order of the board of supervisors this action was brought for the condemnation of the lands for a road. Judgment went for plaintiff, condemning a strip across the lands of all the defendants. The defendant Boydstun filed notice of appeal from the order denying his motion for a new trial, and from the judgment in favor of plaintiff and against him, and the whole thereof, and from the final order of condemnation, and the whole thereof. The notice was not served on the other defendants or their attorney. These defendants, therefore, move that the appeal be dismissed.

According to section 940, Code Civil Proc., a notice of appeal must be served on the adverse party or his attorney." The action was prosecuted on the petition of the defendants not served with the notice. It is true that the government, represented by the county, was in name prosecuting the action, but the defendants now moving were interested in having the judgment stand for the condemnation the whole distance, and in not having it reversed as to the lands of Boydstun. If the judgment of condemnation as to Boydstun should be reversed, it might seriously affect them, as it would leave their lands condemned, with no outlet over the lands of Boydstun. In this view they were parties

averse to him. We think Boydstun should have served his co-defendants with notice of appeal. Appeal dismissed.

We concur: MORRISON, C. J.; Ross, J.; SHARPSTEIN, J.; MCKEE, J.

(2 Cal. Unrep. 588)


Filed December 16, 1885.



Judgment against plaintiff, and findings against sufficiency of consideration of written instrument, held, contrary to the evidence, as the uncontradicted evidence of defendant's witness, instead of overcoming the presumption in favor of the written instrument on which plaintiff based his claim, really showed a sufficient consideration in all respects as foundations for findings in plaintiff's favor.

In bank. Appeal from superior court, county of Placer.
Gray & Haven, for appellant.

R. P. Wright, for respondents.

MYRICK, J. The defendant executed to plaintiff an order in the following words:


MICHIGAN BLUFFS, March 7, 1883.

On June 15, 1883, for value received, please pay Golden State & Miners' Iron-works, or order, at the banking-house of Wells, Fargo & Co., San Francisco, Cal., thirty-six hundred and twenty-eight and sixty-six one hundredths dollars.



To the Weske Consolidated Mining Company. San Francisco, Cal.

The order was presented and not paid, of which defendant had due notice. The first cause of action is on this order. The second cause of action is for goods and machinery sold and delivered by plaintiff to defendant. The defendant executed to plaintiff a mortgage of personal property to secure the payment of the order, and of the amount of the goods and machinery. This action is to foreclose the mortgage.

The answer averred that there had never been any consideration for the instrument above quoted, of March 7, 1883, and denied that the plaintiff sold and delivered to defendant the goods or machinery, or any part thereof; also averred there was no consideration for the mortgage. The findings of the court were that on the seventh of March, 1883, or at any time before that day, defendant was not indebted to plaintiff in any sum; that plaintiff did not sell or deliver the goods or machinery, or any part thereof, mentioned in the complaint, and defendant was not indebted to plaintiff therefor in any sum; and that there was no consideration for the mortgage. Judgment went for defendant.

The appellant urges that the findings are not sufficient as findings of fact, but are conclusions of law merely, and are therefore not suffi

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