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Rilovich and another. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.

Dickerman & Torchiana and Lindsay & Netherton, for appellants. H. C. Wyckoff, for respondent.

HALL, J. Defendants appeal from a judgment in favor of plaintiff and from an order denying defendants' motion for a new trial.

Plaintiff sued for a balance alleged to be owing him from defendants upon a mutual, open, and current account. Defendants. among other matters, pleaded the bar of the statute of limitations, and the only questions involved in this appeal concern the correctness of an instruction given by the court upon the subject of what constitutes a mutual, open, and current account, and the sufficiency of the evidence to justify the finding that the account was mutual, open, and current, necessarily involved in the verdict of the jury. The only testimony given on the trial was that of the plaintiff, from which it appears that the defendants were engaged in the business of packing and shipping fruit, and that he was employed by them as bookkeeper. He loaned the defendants two sums of money ($500 and $1,000), paid for stationery supplies various sums of money, and was allowed a salary of $60 a month; the whole aggregating over $3,000. Against this were various cash payments made to plaintiff by defendants at different periods, and three items of credit relied on by respondent as making a case of mutual account, and which we will particularly notice further on in this discussion. Plaintiff, as the bookkeeper for defendants, kept an account with himself, in which he was credited with the money loaned and paid out for defendants, and was charged with cash paid him. Among the items in this account charged against plaintiff are the three items above referred to, and in the account as kept in defendants' ledger by plaintiff they do not appear to be anything but cash payments. Plaintiff also kept a private or personal account of his own of his transactions with defendants in all respects similar to the account kept in defendants' books, except that the three items relied on to sustain the finding of a mutual account are entered as follows: 1900. Aug. 4, $46.35 sister's clothes,

cash $5.00....

Oct. 12, hat, dress made.. Nov. 15, sister's waist..

$51 35 13.00 3 00

In regard to the item for $13, plaintiff testified: "My sister came out here, and I told Mrs. Martin Rilovich to go with my sister to the dressmaker's to fit her with a dress. She bought her something else that day. It was the hat. The Rilovich Bros. paid $13 to the dressmaker and for my sister's hat. They paid for the hat, and I charged myself with it. Martin Rilovich told me they bought $13 worth for my sister

for the dress and hat. I requested Martin Rilovich to pay it, and told him to tell me how much it is so I will charge it to myself." As to the item "Sister's waist $3.00," he said: "My sister went to the store, and Rilovich Bros. paid for it, and told me to charge myself with it, and so I did." He also said that the item of "$46.35 sister's clothes" was a similar transaction. On cross-examination he testified that he told them (Rilovich Bros.) to buy all the clothes his sister needed, and whenever they spent anything to tell him, and he would put it down and charge it to his account. That at his request they paid $13 for a hat and dress for his sister. "The $46.35 item was a similar transaction. All the other items in the account credited to me or charged against Rilovich Bros. are for cash which they paid me from time to time on account." Under this state of the evidence the court, after giving certain instructions requested by defendants. charged the jury as follows: "But if you believe from the evidence that there are credits on the account which are not payments to plaintiff, but are moneys advanced by defendants to third parties at the request o plaintiff, and upon which demands arose in favor of defendants and against plaintiff, and these moneys so advanced were credited on the account, then I charge you that the account between plaintiff and defendants is a mutual, open, and current account, and the plaintiff's demand would not be barred by the statute of limitations until two years after the time of the last item proved in the account on either side." The jury found a verdict for plaintiff in the amount prayed for, and thus must have found that the account was a mutual, open, and current account, for otherwise a large portion of the account would have been barred.

The real question in controversy was as to whether the three items of credits above referred to constituted payments, or were matters of set-off or counter demands upon which an action would lie against plaintiff in favor of defendants. Charges upon one side and mere payments upon the other do not make an account a mutual account. And payments need not be made in money only, but may be made in merchandise where by agreement the same is taken at a fixed value as payment Mutual accounts are made up of matters of set-off where each party has a demand or right of action against the other. Norton v. Larco, 30 Cal. 127, 89 Am. Dec. 70; Millet v. Bradbury, 109 Cal. 170, 41 Pac. 865; Ross v. Ross, 6 Hun (N. Y.) 80. It is not necessary, to support a mutual account, that there be items of merchandise sold to each party. In Toponce v. Corinne, etc., Co.. 6 Utah, 439, 24 Pac. 534, there were demands on plaintiff's side for services rendered and money paid out, and on defendant's side demands for money received on sales of livestock, money loaned, paid out, and expended for plaintiff, and it was held a mutual ac

count, and not barred. See same case, Corinne, etc., Co. v. Toponce, 152 U. S. 405, 14 Sup. Ct. 632, 38 L. Ed. 493.

Where different conclusions may be reasonably drawn by different minds from the same evidence as to whether an account is a mutual account, the question is one for the jury. Abbott's Civil Trial Evidence, 386; Gunn v. Gunn, 74 Ga. 555, 58 Am. Rep. 447. In the case at bar it may be conceded for the purposes of this decision that the evidence would support a finding that the three items above referred to were matters of payment simply. But, on the other hand, we do not think that the evidence necessarily establishes the proposition that these three items of credit were payments simply, and not matters of set-off upon which a demand arose against plaintiff, in favor of defendants. It may be fairly urged that the evidence discloses, not three items of payment to plaintiff, but rather three items of money paid at his request for which demands at once arose in favor of defendants and against plaintiff. The word "payment" was never used by either party to the transactions. The effect of the evidence may be fairly said to be that the plaintiff authorized the purchase of goods for his sister on his account, and requested defendants to pay for the same for him. This, in connection with the testimony that the items were entered in the accounts kept by each party, would make the account a mutual account.

The difference between a payment of money by a debtor to his creditor, and the payment of money by a debtor to a third party at the request of the creditor, may be technical, but it is nevertheless substantial. While in the first case it is presumed to be a payment on the debt, in the second case it may be a payment on the debt if the parties so agree, or it may be a matter of set-off for which an action would lie. Under the evidence in this case it was for the jury to determine what was intended by the partieswhether the moneys paid to third parties for clothing for plaintiff's sister were intended to be payments to plaintiff, or were matters of set-off to be charged to plaintiff and credited to defendants pending the final settlement of the account.

We are therefore of opinion that the court in its instructions correctly submitted the question to the jury, and that there was sufficient evidence to warrant the verdict of the jury.

The judgment and order are affirmed.

We concur: HARRISON, P. J; COOPER, J.

(4 Cal. App. 213)


(Court of Appeal, Third District, California. Aug. 9, 1906.)


Pen. Code, & 1093, provides that, where a defendant has confessed former conviction, the

clerk, in reading the information, shall omit all that relates thereto. Section 1158 provides that, where defendant is found guilty, the jury must also, "unless the answer of defendant admits the charge," find whether he has been previously convicted. Section 1025, repealed by St. 1880, p. 19, c. 47, provided that, where the indictment alleged a previous conviction, defendant must be asked whether he has suffered such previous conviction. Held, that it could not be said that it was an act in excess of jurisdiction for the court, after the repeal of section 1025, to call upon defendant to plead to the charge of prior conviction contained in the indictment. 2. SAME-APPEAL--IIARMLESS ERROR.

Since defendant would in no event confess the charge of prior conviction if innocent thereof, and since by confession, if guilty, he would derive a positive advantage before the jury by removing such charge from the consideration of the jury, the action of the court in calling upon him to plead to the charge, in the absence of the jury, was at most a harmless irregularity. 3. SAME-REVIEW-CREDIBILITY OF WITNESSES.

Though the character of witnesses may not indicate much moral discrimination, yet, where the jury have accepted their testimony, it is not the province of the Supreme Court to discredit them.



Defendant, about 2 p. m., went to a house occupied by the W. C. T. U., and having inquired for mail, though he had never before received any at such place, shortly thereafter left. A trunk which had been locked at 9 a. m. was standing in the hall. The owner of the trunk left the house about 9 p. m., and, returning about 10 p. m., missed the trunk. About 11 p m. defendant and another took the trunk to their room on another street, entering the house in haste through a narrow alley, broke it open, and appropriated the contents. Held sufficient to support a finding of felonious entry so as to justify a conviction of burglary. [Ed. Note. For cases in point, see vol. 8, Cent. Dig. Burglary, § 97.] 5. CRIMINAL LAW REPETITION.

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It is not error to refuse to give an instruction as to the conviction of crime on suspicion, which is covered by instructions already given.


In a burglary case, an instruction that there was no evidence of any conspiracy between defendant and another would be in violation of Const. art. 6, § 19, forbidding a charge with respect to a matter of fact.




Where, in a prosecution for burglary, there is no evidence on which to base a hypothesis that defendant may have received from another. who had stolen it, property which was proved to have been in defendant's possession a short time after the theft, an instruction is properly refused to find for defendant, unless the evidence excludes the hypothesis that he received the property after its theft by another.

Appeal from Superior Court, City and County of San Francisco; W. P. Lawlor, Judge.

Joseph King was convicted of burglary, and appeals. Affirmed.

Joseph King, in pro. per. U. S. Webb, Atty. Gen., for the People.

CHIPMAN, P. J. Information for burglary alleging also two prior convictions of

burglary of the second degree. Defendant was found guilty by the jury and appeals from the judgment of conviction and from the order denying his motion for a new trial.

The transcript contains the following entries: "October 14th, 1902. Being called upon to plead, the defendant pleaded not guilty as charged in the information. ***" The cause came on for trial October 27, 1902, and out of the hearing of the jury panel the district attorney withdrew one of the two charges of prior conviction. The minutes of the court then show: "Being called upon, the defendant, out of the hearing of the jury panel, pleaded guilty to the prior conviction of felony, to wit, burglary of the second degree. * * * Thereupon the defendant excepts to the order of the court requiring the said defendant to plead as to said prior conviction, upon the grounds alleged in the demurrer herein." Thereafter a jury was formed, and, being complete, "the information herein was read to the jury, no reference being made to the said prior convictions contained in said information when said information was read to the jury, and the plea of the defendant of not guilty as charged in the information was stated to the jury." It is claimed by defendant that it was prejudicial error for the court after arraignment (Pen. Code, § 1003) to call upon defendant to plead to the charge of prior conviction; that the court exceeded its authority. there being no statute authorizing the court to ask the defendant whether or not he had suffered a previous conviction: that the particular offense and the previous conviction constituted one charge, a plea of not guilty to which puts in issue every material allegation therein contained, and that the plea of not guilty, first offered by defendant. was the only one admissible under section 1017 of the Penal Code: and that he had a right to rest upon that plea and could be convicted only by a verdict of a jury that tried him-citing cases. The record fails to disclose the grounds of défendant's objection to pleading to the second conviction when called upon. Indeed the record does not show that he objected. It shows only that he excepted upon the grounds stated in his demurrer to the information, but the record does not contain the demurrer. There is nothing in the record sustaining defendant's contention that he was compelled, over his protest, "to either confess or deny the said prior conviction." So far as appears he voluntarily pleaded guilty when called upon. Waiving the apparent failure of defendant to affirmatively show error, we do not think the court exceeded its authority, or, if it did, that defendant was in any degree prejudiced thereby.

Defendant's argument is constructed chiefly on the fact that section 1025 of the Penal Code was repealed in 1880 (St. 1880, p. 19, c. 47), and that until re-enacted in 1905 (St. 1905, p. 773. c. 574) there was no law provid87 P.-26

ing that the defendant "must be asked" whether he has "suffered such previous conviction." The condition of the statute on the subject is shown in People v. McNeill, 118 Cal. 388, 50 Pac. 538. It was held, in People V. Wheatley, 88 Cal. 114, 26 Pac. 95, that where the defendant has been charged with a prior conviction, and has pleaded not guilty, he may be permitted afterwards, in the discretion of the court, to withdraw his plea as to that charge and enter a plea of guilty thereof; "the object doubtless being to keep from the jury on trial all knowledge of the prior convictions, and thus secure a better chance for an acquittal of the main charge." People v. King, 64 Cal. 338, 30 Pac. 1028, relied on by defendant, has since been overruled. People v. Wheatley, supra. Section 1093. Pen. Code, provides that, where the defendant has confessed the charge of former conviction, the clerk in reading the information to the jury "shall omit therefrom all that relates to such previous conviction." Section 1158 of the same Code provides that, if the jury finds a verdict of guilty of the offense charged, the jury "must also, unless the answer of defendant admits the charge, find whether or not he has suffered such previous conviction." It seems to us that, even after the repeal of section 1025, it was within the power of the court, before the trial, to ascertain whether the defendant adhered to his plea of not guilty to the charge of prior conviction, and to give him an opportunity to "admit the charge" if willing to do so. If he "admits" or "confesses" the charge, the sections above referred to give him protection from any resultant prejudice with the jury, for his admission removes that part of the information from the knowledge of the jury. It is inconceivable that he would confess the charge if innocent of it, and by confession, if guilty, he derives a positive advantage before the jury. jury. It was said, in People v. McNeill, supra: "No doubt it would be better for the record to show that the defendant formally made confession in the form of a plea entered upon the minutes contemporaneously with the making of the confession, but it cannot be said that the Code requires such procedure." But whether or not the court was authorized by any statute to "call upon" the defendant to plead to the charge of prior conviction, in doing so there was the exercise of no power that can be said to be in excess of jurisdiction. At most it was but an irregularity in procedure which plainly, not only worked no prejudice, but was a positive benefit to defendant. Besides the defendant could have stood upon his original plea of not guilty, or he could have again pleaded not guilty to the prior conviction. The re-enactment of section 1025, while not affecting the present case, makes the question no longer of importance, if it ever had a serious aspect.

Upon the facts: There was evidence tending to show that, some time between 2 p. m. and 4 p. m. of April 21, 1902, defendant went

to a house at No. 132 McAllister street, San | him guilty of burglarious entry. People v. Francisco, in which the Woman's Christian Temperance Union had rooms. In going to these rooms he passed through a hall in which was a trunk containing sundry articles and belonging to one Mrs. Sheppard. He inquired at these rooms whether there were any letters for him, though he had never before received any there, and shortly after left the house. The trunk had been in this hall for some time, and its owner testified that she took some articles from it on the morning of the 21st of April and left it locked. She went out of the house about 9 o'clock that night and returned about 10 o'clock and then missed the trunk. The same night about 11 o'clock defendant and one Hamilton, a codefendant, took the trunk to their room, at 835B Howard street, entering the house in the rear by a narrow alley, running from Tehama street to the rear of the premises. The trunk was locked, but defendant opened it with a cold chisel and distributed some of the contents to inmates of the house to whom he said the trunk was his. The circumstances of his bringing the trunk to the house and breaking it open, his conduct two nights later when several police officers went to arrest him, his attempt to evade arrest, the hiding of the cold chisel with which he forced the trunk open, his final arrest in a dark place where he had concealed himself, and other facts tending to show guilty possession of the stolen property, were brought out by the testimony of the police officers and by two women witnesses who occupied part of the IIoward street house.

It is strenuously urged that these women were self-confessedly immoral persons and were accomplices, and the rule as to the latter is invoked against their testimony. We find nothing in the record showing that they were accomplices. Their character for truth and veracity was not assailed, and, while their life was not of a character to indicate the possession of much discrimination as to their companionships or moral conduct, the jury must have accepted their testimony, and it is not the province of this court to discredit them.

It must be admitted that the evidence of a felonious entry to commit larceny is not strong, and the claim is made that there is an entire absence of evidence pointing in that direction. There is evidence, however, that defendant entered the McAllister street house and had an opportunity to steal the trunk and had it in his possession a few hours later under circumstances indicating its theft by him. There was sufficient evidence to justify the jury in its inference that the McAllister street house was entered by defendant with felonious intent. It has been held that, where the defendant entered a dry goods store during business hours, and while there was caught in the act of attempting to steal a garment, the jury were warranted in finding

Brittain, 142 Cal. 8, 75 Pac. 314, 100 Am. St.
Rep. 95. The statute applies to a dwelling.
Pen. Code, § 459. See People v. Flynn, 73
Cal. 511, 15 Pac. 102; People v. Smith, 86
Cal. 238, 24 Pac. 988; People v. Lang, 142
Cal. 482, 76 Pac. 232. The brief of defendant
is signed by himself and purports to be the
work of his own hand. It possesses the pro-
fessional earmarks of the lawyer and is clear-
ly not the work of a layman. We are asked
to scrutinize instructions, requested by de-
fendant and refused by the court, numbered
29, 48, and 49, as "he feels that they should
have been given," though no reasons are giv-
en for thus feeling. Instruction 29 was that
the law does not permit a conviction of crime
on suspicion. This was properly refused as
covered by the other instructions, and par-
ticularly instruction 13 given at defendant's
request. Instruction 48 was that there was
no evidence of any conspiracy between de-
fendant and any other person to commit the
crime charged. This instruction, if given,
would have been charging the jury on the
matter of fact, which is forbidden (Const.
art. 6, § 19), and would not have been respon-
sive to any issue in the case. Instruction 49
was as follows: "If the evidence before you
does not reasonably exclude the hypothesis
that defendant might have received the trunk
and contents after they had been taken by
another from the premises, 132 McAllister
street, then your verdict must be that the
defendant is not guilty, unless the evidence
satisfies your minds beyond all reasonable
doubt that defendant aided and abetted the
person who took the property." Much the
same may be said of this instruction as has
been said of No. 48. There was no evidence
on which to base the theory of theft by any
other person, or that defendant received it
from some other person. The court gave in-
structions 46 and 47, at defendant's request,
with some proper modifications, which were
sufficient to direct the minds of the jury to
the facts proven as to the possession of the
trunk by defendant and their legal effect.
The judgment and order are affirmed.

We concur: BUCKLES, J.; McLAUGHLIN, J.

(7 Cal. Unrep. 297) NOBLE v. LEARNED et al. (Civ. 235.) (Court of Appeal, Third District, California. July 31, 1906.)


A suit to determine title to stock in a building association, to cancel the certificate representing the stock, to restrain the payment of money on account of the certificate, and to require the issuance to plaintiff of a new certificate for the stock, is a suit in equity, and a jury trial is not demandable as of right under Code Civ. Proc. § 592, providing that, in cases other

than actions for the recovery of specific real or personal property, etc., issues of fact must be tried by the court, subject to its power to order issues to be tried by a jury.

[Ed. Note.-Fer cases in point, see vol. 31, Cent. Dig. Jury, §§ 35-47.]



An owner of stock in a building association gave to the secretary thereof a list of the persons to whom she wanted the stock assigned, and assignments were made on the back of the certificates. The secretary was given possession of the certificates subject to the owner's order, and told to hold them until the owner's death, and then deliver them to the assignees. A few months afterwards the owner died. Held, that title did not vest in the assignees, but remained in the owner.

[Ed. Note.-For cases in point, see vol. 24, Cent. Dig. Gifts, §§ 9, 36.]

the San Joaquin Valley Building & Loan Association issue to plaintiff certificates in due form evidencing the ownership of plaintiff to said 39 shares, and also the return of the $100. The San Joaquin Valley Building & Loan Association answered by general denial. D. A. Learned answered by denying specifically, admitting the death of Deborah H. Lee and Gennis H. Learned and the proceedings taken to settle their respective estates, and. further answering, alleges that on October 17, 1902, Deborah H. Lee duly assigned by indorsement all said shares of stock to Gennis H. Learned, and then delivered the same so indorsed to A. M. Noble, to be held by him in trust for the said Gennis H. Learned as long as the said assignor should live, and at her death to me delivered to the said assignee;

Appeal from Superior Court, San Joaquin that said Noble accepted sail trust; that County; F. H. Smith, Judge.

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BUCKLES, J. This action was prosecuted to determine the title to certain stock in the San Joaquin Valley Building & Loan Association, and for the delivery up and cancellation of the certificate representing the same, for an injunction restraining the payment of money on account of said certificates, and for the issuance to plaintiff of certificates of said stock. Judgment was for plaintiff, and the appeal is from the judgment.

The first error assigned is that the court refused the defendants' demand for a jury. Whatever view may be taken of the case as to other matters, it is an equity case, and there was therefore no error in denying the defendants' demand for a jury. Code Civ. Proc. 592; Meek v. De La Tour (Cal. App.) 83 Pac. 300; Ashton v. Heggerty, 130 Cal. 517, 62 Pac. 934. The complaint alleges that Deborah H. Lee died intestate March 12, 1903, and at that time she was the owner and entitled to 40 shares of the capital stock of the San Joaquin Valley Building & Loan Association, in a certificate numbered 465, and that one Gennis H. Learned, upon the death of said Deborah H. Lee, wrongfully and unlawfully took possession of said certificate of stock, had the same canceled and a new certificate issued to her in her own name for 39 shares and received $100 in money for the other shares. That said Gennis H. Learned died testate, and the said certificate of stock is now held by D. A. Learned, the executor of the last will of said Gennis H. Learned. Alleges demand made, and the value of the property to be $4,000. The prayer is that the certificate of stock No. 559 be delivered up by said defendant, that it be canceled and

the said trust was not revoked, and was in force when the said Deborah H. Lee died; that after her death, and on or about the 20th of March, 1903, Noble delivered said certificates of stock to Gennis H. Learned, and she then had said certificate for 40 shares canceled and the new certificate No. 559 issued to her for 39 shares in said association, receiving $100 in money. Prays that the said trust be declared valid, and defendant be adjudged the owner and entitled to the possession of said stock. The court found that Deborah H. Lee never made any gift of said shares of stock to Gennis H. Learned and "never created any trust therein, and never parted with any title, ownership, or control of said property during her lifetime, and the property and the whole thereof was, at the time of her death, the property of the said Deborah H. Lee, deceased, and at the date of her death constituted and still constitutes a part and parcel of the estate of said deceased."

This finding is based upon the testimony of Arthur M. Noble, of whom she purchased the 40 shares of the capital stock of the San Joaquin Valley Building & Loan Association. Mrs. Deborah H. Lee was sick. had about $1.600 which she wanted placed where she could have the income from it and use any part of the principal in case she needed it at any time. In negotiating the purchase of said shares of stock with the witness A. M. Noble, who was the secretary of the San Joaquin Valley Building & Loan Association, she informed him that this was the only money she had, and that she did not want to put it out of her control. This certificate of stock No. 465, with others, was issued to her with the assurance to her by Mr. Noble that she could retain control of them and draw money on them. The certificates were then issued in the name of Deborah H. Lee, and given to her. She assigned them to different persons, assigning No. 465 to Gennis H. Learned. They were then by Mrs. Lee returned to Mr. Noble, who testified in relation thereto as follows: "I left

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