We concur: JAMES, J.; SHAW, J.

UNION LUMBER CO. v. SUNSET ROAD
OIL CO. (Civ. 926.)

ifornia. Nov. 13, 1911.)

1. APPEAL AND ERROR (§ 340*)-APPEAL FROM JUDGMENT TIME.

Mills v. La Verne Land Co., 97 Cal. 254, 32 | to us no prejudicial error, and the judgment Pac. 169, 33 Am. St. Rep. 168, our Supreme and order appealed from are therefore afCourt has said that the lien is perfected by firmed. filing proper notice; that until such notice is filed it is a mere inchoate right personal to the individual; and that until so perfected it has no tangible existence as property. In Spinney v. Griffith, 98 Cal. 151, 32 Pac. 974, it is said that until notice of lien is filed the naked right is without form, and void. The later case, however, of Hampton v. Chris- (District Court of Appeal, Second District, Caltensen, 148 Cal. 737, 84 Pac. 203, we regard as setting at rest the question as to when the lien is perfected, and when the right accrues, and by what authority it exists. The Supreme Court there says, with reference to statutory enactments: "Every provision of the laws which the Legislature may enact must be subordinate to and in consonance with this constitutional provision." And whether we say that the right of lien is personal, or inchoate, or otherwise, it is, nevertheless, a vested, constitutionally guaranteed and existing right, and when, as in this case, the constitutional right is rendered enforceable through the observance of statutory provisions, it is an enforceable right. The allegations with reference to the filing of the notices of lien were only necessary as showing that an injury was caused by the false statements, as this injury could only be worked out through a compliance with the statutory provisions requisite to the enforcement of the right of lien.

[2] There is nothing in the point made by appellant that Mr. Ryon relied upon the representations of attorneys or trust companies; the whole record disclosing that he relied upon the representations of defendant, Moxley. If the false pretenses are among the means by which defendant obtained the money, he has committed the crime, the same as though no other influence combined therewith. People v. Weir, 120 Cal. 279, 52 Pac. 656.

[3] There is no merit in the contention of appellant that the court erred in refusing to give to the jury the instruction marked "Defendant's Instruction No. 6." The language

used therein could only be construed as an instruction that the jury were required to find that Ryon relied upon all of the pretenses made by the defendant. This is not necessary. It is sufficient if he relied upon some of the material misrepresentations.

[4] We see no error in the court instructing the jury that "a person is presumed to do that which he voluntarily and willfully does in fact do, and that he must be presumed to intend the natural, probable, and usual consequences of his own act." We think this is a correct statement of the law, either in this or any other character of criminal prosecution.

Code Civ. Proc. § 939, subd. 1, provides that, where the sufficiency of the evidence to sustain the decision is a matter to which inquiry is pointed, the appeal must be taken withthat, since an appeal from a judgment may be in 60 days after the entry of judgment. Held taken within six months after judgment entered, the effect of a failure to take such an appeal within 60 days is only to prevent a consideration of the sufficiency of the evidence to sustain the decision.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1888; Dec. Dig. 340.*] 2. APPEAL and Error (§ 937*)—MOTION_FOR NEW TRIAL-TIME-ORDER-NOTICE OF FILING.

Code Civ. Proc. § 939, subd. 3, provides that an appeal from an order denying a motion for a new trial must be taken within 60 days after the order is entered in the minutes of the court, or filed with the clerk, but section 941b declares that, in order that the time within which an appeal must be taken shall commence to run, appellant must be given notice of the entry of the judgment or order. Held that, where an appeal is taken from an order denying a motion for a new trial, it will be presumed, in the absence of proof by respondent to the contrary, service of notice on the appellant of the entry that it has been taken within 60 days from of the order, and is therefore in time.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 937.*]

3. SALES (§ 359*)—REASOnable Value—EVIDENCE-FINDINGS.

Where, in an action for the reasonable value of lumber sold, there was evidence that plaintiff furnished defendant written invoices and statements of account made up from its indebtedness claimed, and that so far as the books, with information as to the amount of the value of the lumber was concerned no question was raised at any time, the court was justified therefrom in finding the reasonable value of

the lumber.

[Ed. Note.-For other cases, see Sales, Dec. Dig. § 359.*]

Appeal from Superior Court, Kern County; J. W. Mahon, Judge.

Action by the Union Lumber Company against the Sunset Road Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. L. Foster, for appellant. W. W. Kaye (Alfred Siemon, of counsel), for respondent.

JAMES, J. Appeal is taken from a judgment entered against defendant and from an order denying a new trial. It is suggested in An examination of the record discloses the brief of respondent that both appeals For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes

should be dismissed; that from the judgment the introduction of testimony on behalf of because the notice of appeal was served and filed more than 60 days after the entry of the judgment; and that from the order denying the motion for a new trial because the notice of appeal was filed more than 60 days after such order was entered.

[1] The appeal from the judgment was taken within six months after the judgment was entered, and this appeal, therefore, was in time, except that in a consideration thereof the question as to the sufficiency of the evidence to sustain the decision cannot be inquired into. Subdivision 1 of section 939, Code of Civil Procedure, provides that, where the sufficiency of the evidence to sustain the decision is a matter to which inquiry is pointed, the appeal must be taken within 60 days after the entry of the judgment. However, the appeal from the judgment is effectual for the purpose of securing to appellant a review of any alleged errors of law occurring at the trial.

plaintiff. In the second cause of action set out in plaintiff's complaint, as to which only appellant urges the objections we have referred to, it is alleged that the defendant on a day certain was indebted to plaintiff in the sum of $1,945.98 as a balance of an account for lumber sold and delivered by the plaintiff to defendant. In its answer defendant alleged that lumber was purchased by it from plaintiff for which it agreed to pay the reasonable value, and then, by express allegation, admitted an indebtedness on that account in the sum of $1,587.40.

[3] The trial court by its findings determined that lumber had been sold and delivered to defendant of the reasonable value of $2,358.58, and that defendant was entitled to a credit in the sum of $496.49, leaving a balance, found to be due at the commencement of the action, of the sum of $1,862.09, for which amount judgment was given.

The contention of appellant that there was [2] In subdivision 3 of section 939, Code of no evidence warranting the court in finding Civil Procedure, it is provided that an ap- that the reasonable value of the lumber sold peal from an order denying a motion for a was the sum of $2,358.58 cannot be susnew trial, in order to be regular, must be tained. From the evidence set out in the bill taken within 60 days after the order is made of exceptions, it appears that the custom of and entered in the minutes of the court, or dealing between plaintiff and defendant was filed with the clerk. It appears without that which is usual and ordinary between a question that the notice of appeal from the vendor of merchandise and his vendee; that order was in this case served and filed more from time to time lumber was ordered by dethan 60 days after the order was entered, fendant from plaintiff and statements were and, if the provisions of section 939, above thereupon rendered by the plaintiff to defendreferred to, were the only ones to be con- ant showing the prices at which the lumber sidered in determining the sufficiency of this was charged. If not appearing by express appeal, then it should be held that this ap- statement to that effect, it does appear by peal was taken too late. But our Supreme every reasonable inference to be drawn from Court in the case of Foss v. Johnstone, Jr., et all of the testimony that the understanding al., 158 Cal. 119, 110 Pac. 294, has held that the between plaintiff and defendant was that the provisions of section 941b, dealing with the merchandise furnished was to be charged for alternative method of appeal, are also appli- at the current market price, which, in other cable to an appeal assumed to be taken under words, would be the reasonable value therethe older method, and that, in order that of, and that the account against defendant the time within which an appeal must be was made up upon that basis. There was taken shall be made to commence to run, ap- ample evidence showing that the defendant pellant must be given notice of the entry of by written invoices and statements of acthe judgment or order. In that case it is count made up from the books of the lumfurther held that the burden is upon the ber company was furnished with the inrespondent, in the absence of any evidence formation as to what the indebtedness claimof the fact furnished by the record, to showed to be owing by it to the plaintiff was at that a notice of entry of the judgment or all times, and that, so far as the value of order has been given, and the time thereof. the lumber may be concerned, no question In this case there is nothing in the record from which we can determine whether any notice was ever given of the order of the court denying the appellant's motion for a new trial. For that reason, the appeal must be treated as having been regularly taken, and in time.

Appellant's counsel in his brief argues only questions touching the sufficiency of the evidence to sustain certain, of the findings made by the trial court, and, as an error of law, assigns the ruling of the trial judge denying defendant's motion for judgment of non

was raised as to its price. We feel well satisfied that the findings as made by the trial judge are amply sustained by the evidence. What has been said upon the question of the objections urged to the sufficiency of the evidence to sustain the findings applies equally in answer to the contention of appellant that the court erred in denying its motion for a judgment of nonsuit. Appellant complains that the motion should have been granted for the same reason that it questions the sufficiency of the findings in the particulars above referred to.

be without merit, and the judgment and order are affirmed.

We concur: ALLEN, P. J.; SHAW, J.

PEOPLE v. KELLY. (Cr. 164.) (District Court of Appeal, Third District, California. Nov. 13, 1911.)

1

ter largely within the discretion of the trial court.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.*]

5. CRIMINAL LAW (§ 1186*)-APPEAL-INSTRUCTION-REASONABLE DOUBT - FAILURE TO DEFINE-PREJUDICE.

Proposed amendment No. 26 to the Constitution (St. 1911, p. 1798) provides that no judgment shall be set aside or new trial granted 1. CRIMINAL LAW (§ 547*)-EVIDENCE-PRE-jury or for error as to any matter of pleading in any criminal case for misdirection of the LIMINARY EXAMINATION-OFFICIAL REPOR

TER-QUALIFICATION.

Where an official reporter took down the deposition of a witness at a preliminary examination, it would be presumed that he was duly qualified by his official oath to faithfully discharge his duties, and it was not necessary that he be sworn at the preliminary hearing. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1237-1246; Dec. Dig. 547.*]

2. CRIMINAL LAW (§ 547*)-EVIDENCE TAKEN AT PRELIMINARY EXAMINATION-INTERPRETER-QUALIFICATION OATH.

Pen. Code, § 869, declares that the reporter's transcript of the proceedings in a case shall be regarded as prima facie correct, and section 686 provides that the accused shall be entitled to be confronted with the witnesses against him, except that where the charge has been preliminarily examined before a committing magistrate, and the testimony taken down in the presence of the accused, with opportunity to cross-examine, the deposition of such witness may be read where it is shown that he is dead, insane, or cannot with due diligence be found within the state. Held that, where a witness was examined by means of an interpreter at a preliminary examination, the statute did not require the witness' deposition to show that the interpreter was sworn, though it was the duty of the magistrate to do so; the deposition being taken as prima facie correct.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1237-1246; Dec. Dig. § 547.*]

or procedure, unless the court shall be of the in a miscarriage of justice. The court charged opinion that the error complained of resulted that, if accused in a prosecution for robbery offered an explanation of his possession of the stolen property, it was for the jury to say, under all the evidence, whether such explanation produced in their minds a reasonable doubt, and, if it did produce a reasonable doubt of accused's guilt, then he would be entitled to an acquittal; that a reasonable doubt need not result from the testimony affirmatively produced by accused, but might arise from and be founded on a weakness or defect in the testimony introduced by the prosecution; and that the presumption of innocence remained with accused until the end of the case and until his guilt was proven to a moral certainty and beyond all reasonable doubt. Held, that accused was not prejudiced by the refusal of an instruction defining reasonable doubt.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219; Dec. Dig. § 1186.*]

Appeal from Superior Court, Merced County; E. N. Rector, Judge.

A. B. Kelly was convicted of robbery, and he appeals. Affirmed.

B. F. Fowler, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, for the People.

CHIPMAN, P. J. Defendant was convict3. CRIMINAL Law (§ 543*)—EVIDENCE AT PRE-ed of the crime of robbery, and, upon judgLIMINARY EXAMINATION-ABSENCE OF WIT

NESS-DILIGENCE.

ment of conviction, was sentenced to 12 years in the Folsom prison. He appeals from the judgment and the order denying his motion for a new trial.

In his brief defendant presents but two objections to any of the proceedings had at the trial.

A blacksmith, who had testified at a preliminary examination before leaving the county and going to San Francisco to work, gave his address to the district attorney, who did not think it necessary to detain him, believing he was not a "wandering character." Within a month after the witness left, a sheriff went to San Francisco a few days before the trial with a subpoena to serve on the witness, and went to First. It is claimed that the deposition of the address given, found it to be a blacksmith the prosecuting witness, Grunitz, taken at shop, but failed to find the witness. He visit the preliminary examination, was improped several blacksmith shops in the city in search erly read in evidence by the district attorney of the witness, but without avail. He made previous inquiry in the county where the witness had been living before he went to San Francisco, and subpoenas were sent to neighboring counties shortly before the trial and were returned not found, as was also a subpoena given to the sheriff of the city and county of San Francisco. Held, that sufficient diligence was shown to authorize the admission of the

witness' deposition.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.*]

4. CRIMINAL LAW (§ 543*)—APPEAL-MATTERS OF DISCRETION-REVIEW.

Whether a sufficient foundation was laid for the admission of the deposition of a witness taken at a preliminary examination was a mat

for the following reasons: (1) Because his testimony "was taken through an interpreter in a foreign language and was not taken in conformity with section 869 of the Penal Code"; (2) Because such diligence in securing the attendance of the witness, as is required by subdivision 3, § 686, of the Penal Code,

was not shown.

It appeared that the deposition was taken before the magistrate through the official reporter, reduced to longhand, and filed with the clerk with the reporter's notes, and showed that the witness was duly sworn. It did not appear that either the reporter

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

duty of the magistrate to place him under oath the same as any other witness, but the burden of proving that he was not sworn was on the defendant. Nor does the statute require proof that the reporter was sworn before taking his notes of the testimony as a prerequisite to making the deposition "prima facie correct." Was due diligence shown?

or the interpreter was sworn. The certificate "may be read," where, after due diligence, of the reporter read as follows: "I hereby the witness cannot be found in the state. certify that the within transcript numbered The statute does not require it to be shown from 1 to 15 both inclusive is a full, true at the time the deposition is offered to be and correct transcript of my shorthand read that the intrepreter was sworn at the notes, and a full, true and correct statement preliminary hearing. It was, of course, the of all the testimony given and proceedings had upon the preliminary examination in the justice's court of No. 2 township, county of Merced, state of California, in the case entitled the People of the State of California vs. A. B. Kelly, on Friday, December 10, 1910, before J. J. Griffin, Justice of the Peace in and for No. 2 Township. [Signed] J. T. Conley, Shorthand Reporter." The transcript shows as follows: "Richard Grunitz. [3] Before the deposition was offered, the A witness on behalf of the People, after district attorney submitted his proof of dilibeing duly sworn testified as follows. gence in endeavoring to secure the personal (Through the German Interpreter L. Wag- attendance of the witness. It appeared that ner.)" Then follows the deposition. The the witness had been working in the neightranscript shows that Grunitz was duly

sworn.

[1] It must be presumed that the official reporter had duly qualified by taking his official oath to faithfully discharge his duties. It was not necessary that he be sworn at the preliminary hearing.

*

[2] The question, then, is: Could the deposition be read without proof that the interpreter was sworn? The point was distinctly raised at the time the offer was made and later by motion to strike out. Section 869 of the Penal Code declares that the transcript of the reporter, "when written out in longhand writing, and certified as being a correct statement of such testimony and proceedings in the case, shall be prima facie a correct statement of such testimony and proceedings." Section 686 of the same Code provides that the defendant is entitled to be confronted with the witness against him, "except that where the charge has been preliminarily examined before a committing magistrate and the testimony taken down by question and answer in the presence of the defendant, who has, either in person or by counsel, cross-examined or had an opportunity to cross-examine the witness; * the deposition of such witness may be read, upon its being satisfactorily shown to the court that he is dead or insane or cannot with due diligence be found in the state." In People v. Lewandowski, 143 Cal. 574, 577, 578, 77 Pac. 467, 469, it was held that, under these statutes, the transcript in longhand of the shorthand notes, duly certified and filed, "is placed upon the footing of a deposition." Said the court: "Whether taken through an interpreter or not, it is in each case the original testimony of the witness, in the same sense and to the same extent as is the testimony of the witness present at the trial, given through the medium of an interpreter, his original testimony on the trial, and in the cases provided by law may be read in evidence as such." It thus appears that the deposition is "prima facie

borhood on a ranch, and, it may be inferred from the testimony, as a blacksmith. The case was first tried on February 23 and 24, 1911, and the prosecuting witness testified at that trial. He was then working in the neighborhood. He informed the sheriff not

long after, some time in the early part of March, that he was going to San Francisco to work, and gave the number of the place on Folsom street where he could be found. The district attorney knew that he was intending to go there, but he testified that he did not think it necessary to detain him, and believed he would have no trouble in finding him; that he was not a "wandering character." The sheriff went to San Francisco a few days before the trial, which began on April 10, 1911, taking with him a subpoena to serve upon the witness. He went to the number given by the witness, and found a shop, but did not find the witness. He visited several blacksmith shops in the city in search of the witness without avail. He made previous inquiry in Merced county where witness had been living but did not find him. Subpoenas were sent to neighboring counties shortly before the trial and were returned "not found," as was also a subpoena given to the sheriff of the city and county of San Francisco. We cannot see what more could reasonably have been done to find the witness.

[4] Furthermore, the question whether a sufficient foundation has been laid is largely within the discretion of the trial court. People v. Lederer, 119 Pac. 949. It should be observed that witness Grunitz testified at the first trial and defendant introduced and read to the jury his testimony given at that trial. Just why the defendant made use of this testimony after having endeavored to prevent the reading of the testimony taken at the preliminary hearing is not apparent, unless it was to point out certain conflicting statements which in fact were not very material. In substance, the testimony on both occasions was the same.