counted the money and compared the stubs sold tickets at the prices at which they were of the tickets found in the box at the door to be sold and put the money he received with the money in the drawer, and found the therefrom in the money drawer; that Henry money was short $112.50. The prices at found alout $600 in the drawer when he took which the different tickets were to be sold charge, and the evidence of Henry that when were not placed on the tickets or stubs. he counted the money when the ticket office IIenry testified, over the objection of de- closed there was $902.25 in the drawer and fendant, that at the time, December 5th, he that when he counted the stubs he found made an entry in his account book of the there should have been $1,0 14.75 there. The tickets sold, from the stubs in the box, for tickets were sold at various prices for seats the "Florodora Show," which he testified to in different parts of the theater, so that to be as follows: know the aggregate of money which should have been taken in it would be necessary to 10 seats at $2.00 each.... $ 20 00 32.5 seats at $1.50 each.. 187 :50 know just how many tickets of each kind 193 seats at $1.00 each.. 1.3 00 were sold. This could be ascertained in 48 Box seats at $1.00 each... -18 00) only two ways: (1) To know just the number 247 Balcony circle seats at $.751 each... 18.7 2.3 215 Gallery seats at $.50 each... 107 30 of tickets of each kind in the rack when the 7 admissions at $.50 eacli... 3 30 selling began and then count what remained after the selling closed; and (2) to count the Making a total of.... $1,044 75 stubs of cach kind of ticket found in the box The amount of money in the till or money at the door of the theater and in each case drawer was then but $902.23. Différent taking into account passes issued. Henry prices were indicated by different colored testified that he concluded there was about tickets. Both the unsold tickets and the $600 in the cash drawer when he commenced stubs which Henry says he counted in the selling tickets the afternoon of the 5th, and box at the door of the theater, he destroyed no accurate count was made until the ticket at the end of the performance when he had selling had closed that evening. He then tesmade the count. He also testified from an tified, over the objection of defendant, from entry in a book that he paid the "Floroclora a memorandum he says he made at the time, Co.” $835.SO, 80 per cent. of $1,014.75. that counting the tickets unsold and the The foregoing is the evidence, and the stubs in the box, there should have been $1,only evidence, so far as can be learned from 044.75 in the cash drawer when in fact there the transcript, by which it was sought to was but $902.25. He further says that imshow that defendant collected and had in his mediately upon making the count and setpossession froin the sale of those tickets the tling with the show people, he destroyed the sum of $1,044.75, and the only evidence tend- stubs and the unsold tickets. Henry says he ing to show that he appropriated $142.50 of could not tell how much money was in the till it. In order to make out a case of embezzle- that night when he came to settle with the ment of property by an agent, four things show people without referring to his memomust concur, and each must be proven be- randum. Under all the circumstances shown yond a reasonable doubt: (1) That the de- in this case, we say it was error to permit fendant was such a gent. This fact is admit- Henry to testify from his memorandum. He ted in this case. (2) That the property char- and defendant were both the agents of Hall, ged to have been embezzled must have come both bad soli tickets for that same show that into the hands of the defendant as the prop- day and all the money both received should erty of his employer. (3) That he received it have been in the drawer. Defendant testified in, the course of his employment; and (4) that he put in the money drawer all the that he appropriated it to his own use with money he received from the sale of tickintent to steal it. Pen. Code, $$ 506, 508; ets, and the evidence shows he had previousEx parte Hedley, 31 Cal. 108; People v. Gor- ly borne a good reputation. Henry continued don, 133 Cal. 538, 65 Pac. 746, 85 Am. St. Rer. to sell tickets that afternoon, but he does not 174; 10 Am. & Eng. Ency. of Law, 983 (24 Ed); pretend to say he put all the money he rePullan v. State, 56 Am. Rep. 21. The money v. ceived into the money drawer. Having dereceived for the sale of tickets was to be stroyed the only evidence by which it could distributed as follows: 80 per cent of the be ascertained how much money there should gross receipts to the Floredora Company and have been in the money drawer, if all the 20 per cent of the gross receipts to be re- money to represent the tickets sold had gone tained by Hall, and, until this division was into the money drawer, and he being equally made, the whole of the proceeds of the sale of liable with defendant for this money, he tickets would be the property of Hall, and, should not have been permitted to testify therefore, if defendant received the money he from the memorandum made by him even is charged with embezzling. it was the though made at the time, for, under the cirproperty of Hall as charged so far as the cumstances, it is no more nor less than a purposes of this case are concerned. The self-serving declaration. To further strengthfirst question then, is: Did defendant receive en Henry's position that defendant stole the the $142.50? As has been seen there is no $142.50, he testifies, over defendant's objecdirect or positive evidence that he did, and tion, from what he says is the receipt of the We are simply left to infer he did because he Florodora Company's manager for $835.80, which would be 80 per cent. of $1,044.75, the the officers were looking for him. He remainamount which he says, froin his memoran- ed in San Francisco a few days, and went to dum, should have been in the money drawer, Petaluma, where he remained for two months, but the receipt was not put in evidence. The and then went to Camp Meeker and remainreceipt of Henry Elsner, the manager of the ed in that vicinity—except a few times when Florodora Company, seems from the evidence he went to the city-until his arrest in July, to have consisted merely in signing his name 1903. During all this time he went by the in a book. This was the kind of evidence name of George Hemple, met and talked with denominated “hearsay," and the most danger- officers from San Francisco, and people from ous to a defendant in a criminal case, who Stockton, and knew all the officers and conis entitled to le confronted with the Witness- stables about the places he frequented, knew es against him that he may cross-examine the sheriff of Sonoma county, with whom he them. The prosecution deemed it important did business. That the reason he quit his to show that the Florodora Company bad re- employers in the unceremonious manner he ceived $835.80, which was 80 per cent. of $1,- did was that he had had words with Henry 014.75, in order to support the statement in about his salary; that he wanted $75 a IIenry's memorandum that that sum should month and had been informed he would not have been in the money drawer. IIenry Els- get that, and had then told Henry he would ner, for aught that appears, might have been quit, and thereupon left. There seems to brought into court to have testified. have been no concealment or attempt on the There is absolutely no evidence tending to part of the defendant to keep out of the way show that the defendant ever received more of the officers, and we do not think there was money for the sale of tickets than he left sufficient evidence of his fleeing from the with Henry, except what may be inferred place where the crime is alleged to have been from IIenry's memorandum and from what committed, or that he attempted to conceal le says is Henry Elsner's receipt, and the himself to prevent arrest. But as there was evidence based upon these two instruments some evidence tending to show flight, the jury should have been excluded. It is true that is left to determine the weight. after the cross-examination of Henry and the The court gave eight instructions of its own prosecution took him for redirect examina- motion. Defendant assigns as error all of tion, he testified that he destroyed the stubs these. We have read these instructions over, and unsoldi tickets because it was the custom and see no error in any of them. It is the to do so, and that he did not know they duty of counsel to point out the specific inwould ever be necded. But if there was a struction which he believes does not state the shortage in the money he knew it and had law, so that the appellate court may properly also suspected defendant of stealing it. From test the same. these facts and the further fact that having The next error assigned is that the defendthe same opportunity of taking the money as ant requested two instructions, which the defendant had, he would most naturally have court modified and then gave. The first was Saved the evidence by which the crime might as follows: "To warrant a conviction of the have been fastened upon defendant. The defendant the prosecution must prove so errors here pointed out, we think, entitle the clearly and conclusively to your minds, not defendant to a new trial. only that the defendant actually received the The following testimony was given for and sum of $112.50 in cash over and above the against the theory that the defendant fled: sum left in the drawer at the theater, but Henry testified that when he came to the that he thereafter feloniously, etc." The ticket office between 12 and 1 o'clock of De- court cut out the words italicized in the above cember 5th, defendant was there and that de- instruction, and inserted instead the words fendant said nothing about quitting, but soon "beyond all reasonable doubt.” In the other put on his coat, and went out. Not return- the language offered was as follows: "To ing by the middle of the afternoon, he made warrant a conviction of the defendant, he inquiry for defendant, and got no informa- must be proved to be guilty so clearly and tion as to where he was. Then Henry count- conclusively that there is no reasonable theed the money and concluded the money was ory upon which he can be innocent when all not all there. IIe telephoned for defendant the evidence in the case is considered togethand remained in the office till 6 o'clock. At er." The words italicized were stricken out that time the defendant had four or five days' and the following inserted in their stead: wages due him at $50 per month. When Hen- "beyond all reasonable doubt.” In both of ry did not find the defendant after inquiring these instructions as the court modified the at the newspaper offices, his hotel, and his language, the jury was plainly informed that usual haunts, some time that afternoon he re- if the defendant was guilty the proof must ported to the police. Defendant testified that satisfy their minds beyond all reasonable when he left the ticket office the afternoon of doubt of his guilt or he was entitled to a verDecember 5th, he went to his hotel, laid down dict of acquittal, and it seems to us the lana balf hour, then walked around town, and guage tendered by the defendant could have finally took the afternoon train for San Fran- no greater weight or significance. It amounts cisco, and did not know he was wanted by to but a choice of words in expressing the any one, and never knew until his arrest that same thing. We see no error in this. However, the court should give an instruction re- erty who contends that the mortgage was void, quested by a defendant which clearly express his codefendants, the mortgagors, who executed the notes for the mortgage debt and might bees the law, in the language asked. come personally liable therefor if such contenThe court refused the following instruction, tion were sustained, are adverse parties on which is assigned as error: "I instruct you whom notice of appeal must be served. the defendant George Hemple is the only per' 2. SAME-SERVICE OF NOTICE. Where it appears that the residence of son on trial before you for this alleged of necessary parties to an appeal is in the same fense, and that if you find from a considera- place and was known to the appellants, notice tion of all the evidence that it points as clear- of appeal cannot be served on them by mail, but ly to some other person, as the person who service must be made at their residence, as re quired by Code Civ. Proc. $ 1011, subsec. 2. committed the crime in question as it does to [Ed. Note.-For cases in point, see vol. 2, the defendant, or if, after a fair and full Cent. Dig. Appeal and Error, $$ 2151, 2162consideration of all the evidence, the jury en- 2161.] tertain a reasonable doubt as to whether the Appeal from Superior Court, Los Angeles said George Hemple or some other person is County ; D. K. Trask, Judge. the guilty party, then it is your duty to ac Action by A. S. Koyer against Charles E. quit the defendant." Benedict and others. Judgment for plaintiff, A defendant is entitled to have an instruc and defendant Stull appeals. Appeal distion given when it announces the law. re missed. sponsive to every element of his defense shown by the evidence. The defendant testi Charles S. McKelvey and Gertrude Stull, fied to circumstances and facts that stand for appellant. Will A. Harris and Harris & undisputed which showed that other persons Ilarris, for respondent. than himself had opportunities of—in one instance taking the money from the till, and, in GRAY, P. J. This is an action upon a another-committing the crime of embezzling promissory note and to foreclose a mortgage the same. On the 5th day of December, while given to secure said note. The mortgage and selling tickets at the ticket office, he was also note were executed by Charles E. Benedict engaged in doing other work in another room and his wife, Martha S. Benedict, to the plainacross the entrance from the ticket window. tiff. Summons was duly served upon some 13 This evidence was offered for no other pur defendants, and the defendants so served pose than to show that while defendant was seem to have defaulted, except the defendant attending to other duties away from the draw- Gertrude Stull, who answered the complaint; er where the money was kept, others had at and, judgment having gone against her, she least the opportunity, however slight, of “tap- | appeals from said judgment. ping the till" and stealing the money. Then, The plaintiff moves to dismiss the appeal again, the witness Henry who had testified upon the ground that no proper service of the to having discovered the shortage had the notice of appeal was made upon the Benesame opportunity to appropriate the $142.50 dicts. The Benedicts are interested in the as did defendant. He was but an agent of result of the appeal herein, for the reason Hall himself, and handling Hall's money. that if the judgment should be reversed, and The defendant proved a good character, and the contention of the appellant that the mortbad testified that he sold the tickets at the gage is null and void be sustained on a new proper prices, and put all the money received trial of the case, the Benedicts might be left in the money drawer and that so far as he personally liable on the note, with nothing to knew, it was all there when Henry took be derived from a foreclosure sale to satisfy charge. I think that under the facts appear- any part of that liability. They were, thereing in this case, this instruction should have fore, adverse parties, and it was necessary been given, and it was prejudicial error to that the Benedicts should have been duly have refused it. served with the notice of appeal. Pending There are many errors assigned relating to the hearing of the motion to dismiss the apthe rulings of the court upon the admissibil- peal, appellant obtained leave of this court ity of evidence, but seeing no prejudicial er- to file affidavits showing said service. These ror in any not referred to here, we will not affidavits were subsequently filed, and show set them forth. that service of the notice was attempted to be The order and judgment are reversed. made by mailing the same in Los Angeles, ad dressed to the Benedicts in Los Angeles, "at I concur: CHIPMAN, P. J. the corner of 20th and Barnard Park, * * * I concur in the judgment: MCLAUGHLIN, J. their said place of residence." It appears from this that the residence of the Benedicts was known to the parties making the service; ( ! Cal. App. 48) therefore, the service could not be made by KOYER v. BENEDICT et al. mail, but should have been made "by leaving the notice or other paper at his residence, be(Court of Appeal. Second District, California. July 3, 1906.) tween the hours of 8 in the morning and 6 in the evening, with some person of suitable 1. APPEAL-NECESSARY PARTIES. On appeal from a judgment foreclosing a age and discretion.” Code Civ. Proc. $ 1011, mortgage by a subsequent grantee of the prop- subsec. 2. The affidavits fail to show that the parties "reside or have their offices in different places," so as to bring the case under section 1012 of the Code of Civil Procedure. On the contrary, the affidavits show that both parties reside in Los Angeles. The affidavit of W. J. Ford, as we understand it, relates to a former attempted appeal, which was not perfected and is not before us. The appeal is dismissed. upon. The exhibit shown to the witness for the plaintiff was offered solely for the purpose of affecting his credibility, and was admissible for that purpose. The other errors relied upon do not require consideration. The order is affirmed. We concur: COOPER, J.; HALL, J. We concur: SMITH, J.; ALLEN, J. (4 Cal. App. 158) AHILERS v. BARRETT. (Court of Appeal, First District, California, (7 Cal. Unrep. 288) July 23, 1906.) 1. LANDLORD AND TENANT- UNLAWFUL DE(Court of Appeal, First District, California. TAINER-EVIDENCE-FINDINGS. July 21, 1906.) In an action of unlawful detainer, evidence held insufficient to sustain findings that plainAPPEAL-FINDINGS-CONFLICTINU EVIDENCE tiff was entitled to possession, and for the reREVIEW covery of a specified sum as rent. A verdict based on conflicting evidence and [Ed. Note.-For cases in point, see vol. 32, sustained by the trial court, will not be re Cent. Dig. Landlord and Tenant, $ 1248.] versed. 2. APPEAL-ASSIGNMENTS OF ERROR-INSUFFIAppeal from Superior Court City and CIENCY OF EVIDENCE-SPECIFCATIONS. County of San Francisco; M. C. Sloss, An assignment of error that there was "no" Judge. evidence to sustain, or tending to prove, the allegations of plaintiff's complaint, which the Action by F. J. Graham against A. M. court found to be true, was not objectionable Bryant. From a judgment for defendant, for failure to point out the respects in which plaintiff appeals. Allirmed. the evidence was insufficient. 3. SAME. George D. Collins and A. E. Ball for A specification of error alleged that the appellant. William Cannon, for respond- evidence was insufficient to justify or support ent. the decision and particularly finding No. 4, for the reason that there was no evidence that at the time of the commencement of the action IIARRISON, P. J. Action upon a pron- there was due plaintiff from defendant for rent issory note. The cause was tried before the sum of $150 or any other sum. Another specification recited that the evidence was ina jury, and a verdict rendered in favor of sufficient to support the decision, and particuthe defendant. Plaintiff moved for a new larly finding No. 5, for the reason that there trial upon the grounds that the verdict was no evidence that there was due or owing was not sustained by the evidence, and that plaintiff from defendant for rent of the prem ises described, in addition to the sum named in (ertain errors of law were committed at finding No. 4, the sum of $300, or any other the trial. The motion was denied, and from II eld, that such specifications were suffithis order the plaintiff has appealed. cient. The signing of the note by the defendant Appeal from Superior Court, City and was conceded, and the only issue presented County of San Francisco; J. C. B. IIebbard, to the jury was the want of consideration Judge. for making the same. Upon this issue there Action by Henry Ahlers against Minnie E. was a direct conflict of testimony between Barrett. From a judgment in favor of plainthe defendant and the witness for the plain tiff and from an order denying defendant's tiff with whom the defendant had the trans motion for a new trial, she appeals. Reaction in which the note was signed. It versed. is unnecessary to recount this testimony, since the determination of the jury as to George A. Clough, for appellant. George which of these witnesses was entitled to H. Perry and Frank McGowan, for respondcredit is conclusive. The jury were fully ent. and clearly instructed as to the elements necessary to constitute a consideration for COOPER, J. Appeal from judgment, and the note in view of the evidence before them, order denying defendant's niotion for a new and no exception was taken to these in- trial. structions. The fact, moreover, that the The complaint alleges that about Septemtrial court declined to set the verdict aside ber 1, 1902, Eleanor Sudden and others by is an additional ground for us to hold that verbal lease let to defendant the premises it was fully sustained by the evidence. The known and designated as "103 Eighth street," contract of the defendant in reference to in the city and county of San Francisco, up the prosecution of her claim against the to, but not including, the 1st day of May, Adler estate was properly received in evi- 1903, at the monthly rent of $25 per month, dence as illustrative of the circumstances payable monthly; that defendant entered connected with her signing of the note sued under the lease, and ever since las continued to hold and occupy the premises; that de- a papier shown to her was the contract under fendant holds over and continues in posses- which she went into possession of the premsion without the permission of plaintiff and ises. This is all the evidence in the case. contrary to the terms of the lease; that The plaintiff showed no title or right of plaintiff, on the 30th day of September, 1903, possession in himself. He showed no lease notified the defendant in writing that the between himself and defendant, or anything tenancy of said premises would expire Yo- to show that the relation of landlord and vember 1, 1903, but that defendant continued tenant ever existed between them. He did to hold possession notwithstanding demand not attempt to prove that defendant was in writing was made by plaintiff for the pos- Wrongfully occupying the premises, or that session of the same; that more than three she had made default in the payment of days has elapsed since said demand, and rent. When defendant offered in evidence defendant has ever since failed and neglect- the writing under which she went into posed to deliver up to plaintiff the possession session, the plaintiff objected to it, and the of the said premises; that the monthly rents court sustained the objection. We are at a and profits of the premises is the sum of loss to comprehend the theory upon which $25; that about the 1st day of May, 1903, the plaintiff submitted the case, or upon the said Eleanor Sudden and others leased which the court made the findings. the said premises to plaintiff by a written Plaintiff contends that the evidence canlease for the term of three years from date, not be considered here because the specificaunder, and by virtue of, which plaintiff be- tions of insufficiency are not sufficient in law. came, and still is, entitled to the possession The specifications are sufficient under the of the said premises. There is no allegation liberal rule now followed here. The first one in the complaint that the defendant has ever states that there is no evidence to sustain, failed to pay the rent. Although it is alleged or tending to prove, the allegations of the in the complaint that the verbal lease to de- plaintiff's complaint, which allegations the fendant expired May 1, 1903, it is also al- court found to be true. If there is no evileged that the plaintiff notified defendant dence, that is about all that could be said that her tenancy would expire November 1, about it. It is not necessary to point out 1903. The defendant in her answer denies the respects wherein no evidence is insufthe material allegations of the complaint; ficient to sustain a finding. It is specified denies that on the 1st day of May, or at any that "the evidence is insufficient to justify other time, the said Eleanor Sudden and or support the decision, and particularly others executed or delivered to plaintiff any finding 4, for the reason that there was no lease of said premises for a term of three evidence produced at the trial to prove, or years or for any term; denies that by virtue tending to prove, that at the time of the comof any written lease the plaintiff is, or ever mencement of the action there was due from has been, entitled to the possession of the defendant to plaintiff for rent of the premsaid premises; denies that the term ises described in the amended complaint, the which the premises were leased to her has sum of $150, or any other sum.” It is furexpired; and alleges affirmatively that she ther specified that "the evidence is insufentered into possession of the premises under ficient to justify or support the decision, a written lease from said Eleanor Sudden and particularly finding 5, for the reason and others, which lease is still in force and that there was no evidence offered at the effect, and under which she is still entitled trial proving, or tending to prove, that there to the possession of the premises. The plead is now due or owing plaintiff from defendings were verified. The court found that all ant for rent of the premises described in allegations of the answer are untrue; that the amended complaint, in addition to the the amount of rent due from defendant to sum named in finding 4, the sum of $300, or plaintiff at the time the action was com any other sum.” There are 10 specifications menced was $150; and that the amount that in all, and they certainly called the attenhad accrued after the action was commenced tion of the plaintiff to the fact that defendwas the sum of $300, which said latter sum ant intended to claim that the evidence was should be trebled. Judgment was accord- insufficient as to the material findings. They ingly entered for plaintiff for the possession were in the nature of a notice to plaintiff of the premises and for $1.050 and costs of which must be regarded with liberality. suit. Defendant claims that the evidence American Type, etc., Co. v. Packer, 130 Cal. is insufficient to support the findings, and 459, 62 Pac. 744; Standard Quicksilver Co. the claim must be sustained. The only evi- v. Habishaw, 132 Cal. 124, 64 Pac. 113; dence offered in behalf of plaintiff was his Swift v. Occidental Mining, etc., Co., 141 Cal. own testimony to the effect that he knows 168, 74 Pac. 700; Bell v. Staack, 141 Cal. the defendant, and that she lives on the 186, 74 Pac. 774. premises described. The defendant testified The judgment and order are reversed. that she was occupying the premises, and had been so occupying them since 1900; that We concur: HARRISON, P. J.; HALL, J. |
