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Commissioners' decision. Department 2. , dow at You Kam, inflicting a slight flesh Appeal from superior court, Fresno county; wound on one of his arms. Upon being thus S. A. Holmes, Judge.

wounded, You Kam fell upon the floor, feignAlbert Larsen was convicted of robbery, ing to be dead, and did not arise until after and appeals. Reversed.

the robbers left. Immediately after the shot

was fired, both robbers tied the defendant Frank H. Short and G. C. Freeman, for

and Wong Yee tog er, and one robber appellant Atty. Gen. Hart, for the People. guarded them with a drawn pistol while the

other searched the house for money and othVANCLIEF, C. The defendant and George er portable things of value. This done, they Green were, by information, jointly accused led defendant and Wong Yee out to a barn, of the crime of robbery. They demanded where they left them still tied together, and separate trials, and upon the separate trial departed. Soon after the robbers left, You of the defendant the jury returned a verdict Kam untied defendant and Wong Yee. After of guilty, recommending defendant to the being untied, defendant remained at the store mercy of the court. Thereupon the court about three-quarters of an hour, and then sentenced him to imprisonment in the state left for his home. The robber who was not prison for the term of 40 years. He appeals masked was recognized by the Chinamen as from the judgment, and from an order deny. George Green, who was accused of the crime ing his motion for a new trial.

jointly with the defendant, and had been The princi pal point upon which appellant separately tried before the trial of the derelies for a reversal of the judgment is that fendant, but the masked robber was not recthe only evidence tending to connect him ognized by any of the Chinamen. The fore. with the commission of the crime was the going is the sum and substance of the testitestimony of an accomplice,-one Cliff Ragan, mony of the three Chinamen; and there was --whose testimony was not corroborated as no other witness to the fact of the robbery, required by section 1111 of the Penal Code, except Cliff Ragan, who testified that he was which reads as follows: "A conviction cannot the masked robber; that Green had a mask. be had on the testimony of an accomplice on, but it fell off; the robbery had been: unless he is corroborated by other evidence, planned and concocted by defendant, George which in itself, and without aid of the Green, and himself a week or two before it testimony of the accomplice, tends to con was committed; that the part enacted by nect the defendant with the commission of defendant at the robbery was in accordance the offense, or the circumstances thereof." | with their plan; and that the proceeds of the It appears that the robbery was committed robbery were divided between defendant, at a store owned by a Chinaman named Sun

Green, and himself. It appears that, at the Kee, about 7 o'clock in the evening of April time of the trial of the defendant, Ragan 27, 1892. Sun Kee was absent at the time, was in jail on a separate charge of having and the store was in charge of a Chinaman participated in this robbery, and also on a named You Ka with whom was another charge of an assault to murder, and on the Chinaman, named Wong Yee. Another trial of defendant he testified that he had Chinaman, named Wong Ki, was at his cab-served one term in the state prison for a felin somewhere near the store. The three ony, of which he was convicted in 1888; that Chinamen last named testified to the effect his reason for confessing his guilt of the that they had known the defendant two or crime of robbery in this case was to get three years; that he lived three or four miles through with it, and get off lighter, if he from China store; that he came to the store could; that the district attorney had told him on horseback about 15 minutes before 7

that it would be easier on him if he told all o'clock on the evening of the robbery, while he knew about it, and he might get off with You Kam and Wong Yee were at supper, two or three years, though the district atand told them that he wanted to purchase torney said he had no control over the certain articles from the store; that You Kam amount of the punishment, which depended knew he had traded at the store before, and entirely upon the court. Darwin Lewis teshad an unsettled account there. Thereupon tified that he had seen defendant, Green, and the two Chinamen, You Kam and Wong Yee, Ragan together in defendant's corral, near went with defendant from the kitchen, where his house, about a week or 15 days before they had been eating, into the store, carrying the robbery, where they were castrating a lighted lamp with them; You Kam going colts. William Downey testified that, about behind the counter, and Wong Yee taking a noon on the day of the robbery, he saw deseat in front of the counter. While they

fendant and George Green in the town of were in this position, two robbers armed with Raymond, some two or three miles from the a pistol and a rifle,-one of them masked, residence of defendant,-first saw them tyrushed in. The masked robber, pointing his ing their horses in front of his store; did not pistol at defendant and Wong Yee, drove know they came together; Green came into them into a corner; and the other pointed

witness' store and bought some cartridges; his rifle at You Kam, who ducked under the defendant did not enter his store. James counter.

The masked robber then backed Downey saw Green in Raymond in the afterout of the door, and shot through the win noon of the same day, but does not say he

saw defendant on that day. The foregoing is the substance of all the evidence on the part of the prosecution, and no evidence was introduced by defendant.

We think that, without aid from the testimony of Ragan, the other evidence did not tend to connect the defendant with the coinmission of the robbery, and therefore did not sufficiently corroborate the accomplice. Peo ple v. Thompson, 50 Cal. 480; People v. Ames, 39 Cal. 403. No brief appears to have been filed on the part of the people in this case, but we understand that the attorney general submitted this case on his brief in the case of People v. Green, 34 Pac. Rep. 231. We have examined that brief, but find in it no attempt to answer the point above considered. I think the judgment and order should be reversed, and the cause remanded.

court below to settle a bill of exceptions, and upon the judgment roll, including said bill of exceptions, he now appeals to this court Respondents moved to dismiss the appeal upon the ground that the judgment of the court below, entered in accordance with the diren tions of this court as aforesaid, was final, but the motion to dismiss the appeal was de nied in department, upon the ground that the bill of exceptions presented some ques tions that had not been passed upon at the former appeal. 32 Pac. Rep. 876. The main contention of appellant on this appeal is that the complaint does not state facts sufficient to constitute a cause of action, but that point was clearly and necessarily decided against the appellant's contention on the for. mer appeal. It appears that the demurrer to the complaint was not included in the judgment roll as it came to this court upon the former appeal, but the appellant could easily have supplied it by a suggestion of diminution of the record; and the question of the sufficiency of the complaint to constitute a cause of action was before the court, whether the demurrer was in the record or not. The only other points made by appellant are that the findings are not sustained by the evidence, and that certain deeds were improperly admitted in evidence; but nelther of those contentions can be maintained, and we see nothing in them demanding special notice. The judgment appealed trom is affirmed

We concur: SEARLS, C.; BELCHER, O.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are reversed, and the ause remandal.

KLAUBER et al. v. SAN DIEGO STREET

CAR CO. (No. 19,189.) (Supremo Court of California. Oct. 10, 1893.)

APPEAL-REVERSAL-RES JUDICATA.

On an appeal on the judgment roll by plaintiff from a judgment for defendant, the supreme court reversed and directed the court below to enter a judgment on the findings for plaintiff in accordance with the prayer of the complaint. The court did so, and defendant excepted and appealed. Held,' that the question whether the complaint stated a cause of action was decided on the former appeal, whether the demurrer was in the record or not. 32 Pac. Rep. 876, reversed.

Department 2. Appeal from superior court, San Diego County; George Puterbaugh, Judge.

Action by A. Klauber and others against the San Diego Street-Car Company for specific performance. Judgment for defendant was reversed on appeal. 30 Pac. Rep. 555. Defendant appeals. Motion to dismiss denied. 32 Pac. Rep. 876. Judgment affirmed.

Gibson & Titus, for appellant. Parrish, Mossholder & Lewis and Luce & McDonald, for respondents.

.

CITY AND COUNTY OF SAN FRANCISCO

V. RUSSELL. (No. 15,348.) (Supreme Court of California. Oct, 10, 1896.)

In bank. Appeal from superior court, city and county of San Francisco.

Action by the city and county of San Francisco against J. E. Russell. From a judg. ment for plaintiff, defendant appeals. Dismissed.

Pierson & Mitchell and Horace G. Platt, for respondent.

PER CURIAM. It appearing from the certificate of the clerk of the superior court that appellant herein has not filed his transcript on appeal within the time prescribed by the rules of this court, the appeal herein from the judgment and order denying a motion for a new triai is, on motion of respondent, hereby dismissed.

PER CURIAM. In this case judgment was originally entered in the court below for defendant. An appeal was taken by the plaintiffs to this court from the judgment upon the judgment roll, and this court reversed the judgment, and directed the supe rior court "to enter a judgment upon the findings in favor of plaintiffs, in accordance with the prayer of the complaint.” When the case went back to the superior court Judgment was there entered for plaintiffs in strict pursuance of the said direction of this court. The defendant then procured the

LUCO v. DE TORO. (No. 19,229.) (Supreme Court of California. Oct. 10, 1893.)

APPEAL-REMAND-Obiter Dicta.

The supreme court, in its opinion re versing a case for lack of a cer ain and unem biguous finding on a inaterial question of fact, added that, if the finding could be construed as in favor of respondent, it was enough to say

that in the court's opinion it was not supported by the evidence. Held, that said remark was clearly obiter, and did not preclude the trial court from finding for respondent on substantially the same evidence, strengthening its conclusion by other new findings, based on the evidence, and probative of the main finding.

In Bank. Appeal from superior court, San Diego county; George Puterbaugh, Judge.

Action by Juan M. Luco against Juan de Toro for partition. The facts are recited in the opinion on the former appeal. 27 Pac. Rep. 1082. Judgment for defendant. Plaintiff appeals. Affirmed.

I. N. Thorne and Oliver P. Evans, for appellant. Smith & Winder and Works & Works, for respondent.

HARRISON, J. The appellant's right of recovery depends upon the performance by Hartman of his contract with Olvera to procure the issuance of a patent for the Rancho Ex-Mission of San Diego. This agreement is set forth at length in the opinion of this court rendered upon the former appeal. 91 Cal. 405, 27 Pac. Rep. 1082. Upon that appeal the judgment of the court below was reversed for its failure to make a sufficient finding upon this issue. The finding which it had made was held to be ambiguous and uncertain, inasmuch as in one part thereof the court found that immediately after the execution of the agreement Hartman entered upon the performance of the stipulations therein contained to be performed on his part, and that, in connection with the plaintiff herein, he continued to prosecute them to a final conclusion, while in a subsequent portion of the same finding the court found that there had not been a full and complete or substantial performance of that agreement. It was also said in the opinion that the appellant "was entitled to an unequivocal finding on the question of performance.” Upon the subsequent trial of the cause, from which the present appeal is taken, the court finds that “the said contract was not fully or substantially performed by the said Hartman, nor did the said Hartman procure to be issued the patent for the said rancho," and it also finds as a fact that after the case was sent on to Washington, in 1871, Hartman rendered no services, but abandoned the case. As there was evidence before the court in support of these findings, the findings themselves must be accepted in this court as forming the basis of the judgment, irrespective of any conflict or preponderance of evidence upon which they were made. It is, however, contended by the appellant that, as it was said in the opinion upon the former appeal, after determining that the finding was ambiguous and uncertain, that "if, however, the finding can be construed as a finding in favor of respondent on that subject, it is sufficient to say that in our opinion it is not supported by the evidence," and, as the evidence at the last trial was substantially the

same, the opinion upon the former appeal has become the law of the case, and that the trial court should have made its finding in conformity thereto.

The determination by this court of the rights of the parties in an appeal from the superior court is a final adjudication of those rights, and the questions of law decided by this court become a rule for the guidance of the trial court as well as of this court if the same questions are again presented in that controversy upon a retrial of the issues or upon a subsequent appeal. The principle upon which this rule rests is that the judgment is an estoppel binding upon the parties, and to be enforced by the court. Klauber v. Car Co., 32 Pac. Rep. 876. The rule is not limited to controverted questions of abstract law, but is equally applicable when the point determined upon the appeal is whether the evidence before the trial court was sufficient to justify a decision drawn therefrom, which confers or withholds a legal right for either party. As the principle upon which this rule rests is that of an estoppel by. judgment, it follows that it is only the matters which are actually adjudged or determined as the basis of the judgment of this court that can be considered as the law of the case, and binding upon the parties in its subsequent stages, and that when the judgment or determination is made upon a certain state of facts, it ceases to be of binding force if the facts pre sented at the retrial or upon a subsequent appeal are essentially different. The ground upon which the former judgment of this court was rendered was the failure of the trial court to make a finding upon this issue, and the statement in the opinion that the finding which it had made was ambiguous and uncertain rendered what was subsequently said about the insufficiency of the evidence to support the construction placed upon it by the respondent in his argument merely obiter. As the court had not made a finding upon the issue, there could be no basis for this court to make a determination respecting the sufficiency of the evidence to support that finding. It has been often held that when the trial court has failed to make a finding upon an issue in the case, although the entire evidence is before this court, we have no power to make a finding therefrom, but must remand the cause to the trial court for that purpose; that the act of drawing a conclusion from the evidence is peculiarly the function of the trial court, and that this court, in the exercise of its appellate jurisdiction, has power to correct only errors of law, and cannot correct errors of fact committed by that court. The same principles preclude any opinion which this court may give upon the character of the finding which should be drawn from the evidence in a case from having any binding force upon the trial court to which the case should be remanded, or in the de

termination of any subsequent appeal. See to recover in this action, and the question of Wixson v. Devine, 80 Cal. 385, 22 Pac. Rep. error in the instructions becomes in materi 224.

al. The supreme court of the United States, upon

has the act of

were not made at the former trial, and which, answered every proposition upon which the of course, could not have been considered appellants rely herein. Cameron v. U. S., 148 by this court on the former appeal. In ad U. S. 301, 13 Sup. Ot. Rep. 395. The plaindition to finding that the contract was not tiff has been in the possession, under sanc: fully or substantially performed by Hart tion of a judicial decree, for about 25 years. man, the court also finds that, while he did | Its claim has been made in good faith and render some services in the surveyor gen under color of title, while the defendants are eral's office in this state, yet after the case mere naked trespassers. The case comes was sent to Washington, in the early part of squarely, therefore, within the decision above the year 1971, "no further services were per referred to, and requires no further considerformed by the said Hartman, nor did he ap ation. See, also, U. S. V. Brandestein, 32 pear in the said proceeding before the com

Fed. Rep. 740, and Rourke v. McNally, (Cal.) missioner of the land office or secretary of 33 Pac. Rep. 62. We find no error in the the interior, but the case was wholly aban record. Judgment and order affirmed. doned by him;" and also that the employ. ment of Denver by Olvera was after the abandonment of the case by Hartman, and that the patent was procured to be issued by

Ex parte CARROLL. (No. 21,048.) Denver. The evidence before the court was

(Supreme Court of California. Oct. 12, 1893.) ample to sustain findings, and as probative of

CONTEMPT-COMMITTING OFFICER OF COURT-VAthese facts they are controlling in support of

LIDITY OF JUDGMENT. the ultimate fact found upon the issue of per

A commitment for contempt of court, formance. It follows that the judgment in disobeying an order requiring the persoan and order must be affirmed, and it is so or

committed to restore to the administrator of an (ered.

estate in process of settlement money which be had obtained, as attorney for such administra

tor, by false pretenses, is void, where the judg. We concur: FITZGERALD, J.; McFAR ment on which the commitment issued fails to LAND, J.

show that he was in fact such attorney.

In chambers. Petition in habeas corpus by DE HAVEN, J. I concur in the judgment. John S. Carroll for the release of John F.

Burris from custody on a commitment for
contempt. Petition granted.

John S. Carroll, in pro. per.
LOS ANGELES FARMING & MILLING
CO. v. HOFF et al. (No. 19,180.)

BEATTY, C. J. This is a proceeding upon (Supreme Court of California. Oct. 10, 1893.)

habeas corpus instituted by the petitioner, PUBLIC LANDS-INCLOSURE-COLOR OF TITLE.

Carroll, on behalf of John F. Burris, wbo is A judicial decree, followed by possession under a bona fide claim, is color of title,

alleged to be unlawfully restrained of his within the meaning of Act Cong. Feb. 25, liberty. The return to the writ consists of 1885, prohibiting inclosures of public lands un nothing more than the commitment under less under “claim or color of title made or acquired in good faith," and, such possession hav

which the prisoner is held, which recites ing lasted for 25 years, the holder can main certain proceedings on attachment for an altain ejectment against persons assuming to en leged contempt of court. These recitals show ter on the premises as being "public lands of the United States." Cameron v. U. S., 13

that Burris obtained from the administraSup. Ct. Rep. 595, 148 U. S. 301, followed. trix of an estate in progress of settlement

in the superior court the sum of $108 by In bank. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge.

false pretenses; that he was ordered by the

court to restore the money, and, failing to Ejectment by the Los Angeles Farming &

do so, was committed to the custody of the Milling Company against Hoff and others. Judgment for plaintiff. Defendants appeal.

sheriff, to be confined in jail until he obeyed

the order. The authority of the court to Affirmed.

make such an order is rested upon the sugJ. M. Dameron, for appellants. Graves, gestion that Burris was attorney for the O'Melveny & Shankland and Stephen M. administratrix, and obtained the money from White, for respondent.

her by abuse of his privileges as an officer of

court. It may be that a court has the power PER CURIAM. This is an action of eject to make such an order, and enforce it ment brought against the defendant Hoff against an attorney by process of contempt, and over 100 others, to recover possession but there is nothing in the return to show of the south half of the San Fernando that Burris was an attorney for the adminrancho in Los Angeles county. Upon the istratrix at the time he obtained the money facts shown at the trial we think there can in question, and therefore the order appears be no question as to the right of the plaintiff to be void. Leave has been asked, since the

hearing and submission of the case, to amend McFarlane, and $485.30 for "miles traveled in the return by showing that the complaint hunting for” one McKinney, both of whom in the contempt proceeding alleged that Bur had been charged with the commission of ris was attorney for the administratrix. crime. On January 12, 1891, the board But, even if it were proper to allow such allowed and ordered paid $201 on this amendment at this time, it would not cure claim. On January 30, 1891, plaintiff prethe defect, for the judgment of the court sented to the board of supervisors for allowcopied in the commitment-nowhere finds ance another claim against the county for that Burris was such attorney. It speaks of $690.50. This claim was for services in travhim merely as one John F. Burris, i. e. as eling to places away from the county seat, an entire stranger to the probate proceed and arresting and bringing before justices of ings, and as much beyond the jurisdiction the peace a large number of alleged criminal of the superior court in attachment for con offenders. On March 5, 1891, the board altempt as any other stranger. In contempt lowed and ordered paid $461.50 on this claim. cases the facts necessary to confer jurisdic Plaintiff was not satisfied with the amounts tion should not only be alleged, but found, so allowed, and refused to accept the same, and here they are not found in any form, and thereupon he commenced this action to specific or general. The prisoner is dis recover the full amount of his two claims, charged.

setting out a separate cause of action upon each claim. Attached to the complaint are copies of the claims presented to the board,

duly itemized, and marked respectively "ExOVERALL V. TULARE COUNTY. (No.

hibit A" and "Exhibit B." The gist of the 18,116.)

first cause of action is stated in the com(Supreme Court of California. Oct. 13, 1893.) plaint as follows: "That between the 26th BAERIFF - MILEAGE – UXSUCCESSFUL PURSUIT OF day of November, 1889, and the 1st day of

ESCAPED PRISONERS-SEVERAL AKRESTS AT SAME February, 1890, the plaintiff, as such sheriff, TIME.

necessarily traveled 2,568 miles within said 1. Act March 5, 1870, (St. 1869-70, p.

state in executing warrants in criminal cases; 159,) $ 9, relating to sheriff's fees, provides that the sheriff is entitled to receive, "for

and that thereby said defendant became, and every mile necessarily traveled in going only:

still is, justly indebted to plaintiff in the sum in executing any warrant of arrest,

of $770.40, no part of which has been paid." or for mileage in any criminal case or proceed

And the gist of the second cause of action is ing, * thirty cents." St. 1887, p. 207, $ 211, provides that the fees provided in the

thus stated: “That between the 10th day of act shall be in full compensation, "provided November, 1890, and the 5th day of January, further, that the board of supervisors shall allow to the sheriff his necessary expenses for

1891, defendant became, and still is, justly pursuing criminals or transacting any criminal

indebted to plaintiff for services performed business without the boundaries of his coun as such sheriff, for mileage necessarily travty." Held, that the sheriff was not entitled to eled, and for serving subpoenas and warrants mileage while unsuccessfully hunting for escaped prisoners for whose arrest he had war

in criminal cases to the amount of $689.50, rants. Broughton V. County of Santa Bar

no part of which has been paid." The answer bara, 3 Pac. Rep. 877, 65 Cal. 257, followed. denied all the material averments of the com2. Where a sheriff arrests two or more per

plaint, and upon the issues thus raised the sons at the same time he is not entitled to one mileage at such statutory rate for each personi

case was tried by the court without a jury. arrested.

The court found that the plaintiff was en

titled to recover the full amount claimed, less Department 1. Appeal from superior crurt,

the sum of $27.60, which had been twice Tulare county; Wheaton A. Gray, Judge.

charged in “Exhibit B." Judgment was acAction by D. G. Overall against Tulare

cordingly entered in favor of the plaintiff county to recover for certain fees claimed

for the sum of $1,432.30 and costs of suit. to be due bim as sheriff of such county.

From this judgment, and an order denying From a judgment for plaintiff, and from

its motion for a new trial, the defendant apan order denying its motion for a new trial,

peals. defendant appeals. Reversed.

The law fixing the traveling fees of the Bradley & Farnsworth, for appellant. Chas. sheriff of Tulare county during the time G. Lamberson and W. W. Middlecoff, for plaintiff held that office, is found in section respondent.

9 of the act of March 5, 1870, (St. 1869-70,

p. 159, and see St. 1877–78, p. 559.) The proPER CURIAM. The plaintiff was sheriff vision is as follows: "For every mile necesof Tulare county from January 7, 1889, until sarily traveled in going only, in executing January 5, 1891. During that time no salary any warrant of arrest, subpoena, or venire, was attached to his office, but he was en bringing up a prisoner on habeas corpus, titled to charge and receive for official serv taking prisoners before a magistrate or to ices such fees as were allowed by law. On prison, or for mileage in any criminal case November 29, 1890, he presented to the board or proceeding; provided, that in serving a of supervisors for allowance a claim against subpoena or venire, when two or more juthe county for $770.40. Of this claim $284.70 rors or witnesses live in the same direcwas for "miles traveled hunting for” one tion, but one mileage shall be charged, thirty

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