Pacific Coast Law Journal. VOL. VI. OCTOBER 23, 1880. No. 9. Current Topics. Ir is laid down in 3 Greenleaf, 27, that no evidence in regard to the character of the person on whom the offense was committed is in general admissible, the character being no part of the res gesta. Mr. Wharton, however, in his work on Criminal Law (Vol. 1, Sec. 641), is of opinion that in cases of homicide such testimony would be admissible, and that an exception to Greenleaf's rule should extend to that. A writer in the last number of the Western Jurist thinks the reasoning of Mr. Wharton unanswerable. The question seems to be unsettled in Iowa, and it is not entirely clear that it has been determined in California in its widest sense. It is not the mere question of relevancy and admissibility when the accused relies on self-defense and justification, as in cases of homicide, but goes further than that, and attacks the character of the individual separate and apart from the circumstances attending the commission of the crime. Would it be proper to show that the accused was a violent, ferocious, and bloodthirsty man naturally? Would his character as such give any point to the meaning of his conduct at the time of his killing? Would his natural ferocity indicate present peril, or would a knowledge of his character the more readily lead the accused to believe he would make the threatened attack, or that he would commit a felony? "It would be proper to prove that the deceased was armed with a gun, and why not that he was armed with enormous bodily strength and desperate rage? Specific threats can be put in evidence; why not a general ferocity of temper, which vents itself on all by whom it is crossed, and which spares not life in its fury?" ! Supreme Court of California. IN BANK. [Filed September 22, 1880.] THOMAS KNIGHT, APPELLANT, VS. JAMES ROCHE ET AL., RESPONDENTS. REHEARING. This cause was determined by Department No, 1 upon the theory that there was an appeal from the judgment as well as from the order denying the motion for a new trial, and was so stated in brief of counsel for appellant; but it appears now that there was no appeal from the judgment, hence petition for rehearing granted. INSUFFICIENT FINDINGS. A judgment based upon findings which do not determine all the material issues is a "decision against law," for which a new trial may be had. In such case a re-examination of the facts of the case becomes necessary in order that the issues of fact may be determined. Appeal from the District Court of the Twelfth Judicial District, San Francisco County. B. S. Brooks, for appellant. D. W. Douthitt, for respondents. Ross, J., delivered the opinion of the Court: When this cause was before Department No. 1, it was determined upon the theory that there was an appeal from the judgment as well as from the order denying the motion for a new trial. It was stated in the brief of counsel for appellant that the appeal was taken from the judgment as well as the order, and the cause was argued as if such was the case. The Department was thus led into the error of supposing that there was an appeal from the judgment. On the petition of the respondent for the hearing of the cause by the Court in Bank, this mistake of fact was first made known to us. The petition was granted, and the cause has been again argued. The facts of the case are stated at length in the opinion filed in Department No. 1, and therefore it is not necessary to repeat them here. On behalf of the respondent it is urged that, inasmuch as there is no appeal from the judgment, the sufficiency of the findings cannot be considered. It may be conceded, for the purposes of this case, that where all the issues of fact raised by the pleadings are found upon by the Court, and the findings are not complained of, an erroneous judgment drawn from those facts cannot be corrected by means of a motion for a new trial. In such case it might be contended there would be no question of fact to be re-examined, and no necessity for a new trial. It was so held in Jenkins vs. Frink, 30 Cal. 596; and the cases of Martin vs. Matfield, 49 Cal. 42, and Thompson vs. Hancock, 51 Cal. 110, seem to sustain that view. But it is not necessary for us in this case to express any opinion upon that question, for the case last suggested differs altogether from one where the Court does not find upon all the material issues of fact. A judgment based upon findings which do not determine all such issues is, in our opinion, a "decision against law," for which a new trial may be had. In such case a re-examination of the facts of the case be comes necessary, in order that the issues of fact may be de termined. Section 656 of the Code of Civil Procedure declares a new trial to be "a re-examination of an issue of fact in the same Court, after a trial and decision by a jury, Court, or referee;" and the next section (657) provides that such new trial may be granted upon certain grounds, among others: 6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law.' Whatever else may be meant by the expression "decision against law," we think there is no doubt that it includes a case where the decision is based upon findings which do not determine all of the material issues of fact raised by the pleadings. It becomes necessary, therefore, to inquire whether the findings in the case at bar determine all such issues. The action is ejectment, and the complaint charges that on the 1st of April, 1872, the plaintiff "was the owner and seized in fee, and possessed of and entitled to the possession, and ever since has been, and still is, entitled to the possession" of the land sued for, and then alleges an ouster of plaintiff by defendants on said 1st day of April, 1872, etc. The defendants, by their answer, denied all of the allegations of the complaint, and also set up other matters not now important to be noticed. We have given to the views urged by counsel for the respondent careful consideration, and remain unable to see that there is any finding, one way or the other, as to the plaintiff's alleged ownership or possession of the premises in question, or as to the alleged ouster, or that the probative facts found necessarily determined those issues. It is true, as said by counsel, that, "if defendants were the owners, it necessarily follows that plaintiff was not the owner." But the Court does not find as a fact that defendants were the owners; nor does it find such facts as establish ownership in them, or such facts as show them to have been entitled to the possession of the property at the time of the commencement of the action, or at any time since. There is, of course, no doubt that possession is prima facie evidence of title. On the question of possession the finding is: "That on the 28th day of August, 1868, and long prior thereto, H. F. Williams and his predecessors, were and had been in the actual and peaceable possession of said block of land, claiming to own the same; and that on the said 28th day of August, 1868, the said Williams, by deed duly executed, and for a large consideration, sold and conveyed said block of land to defendants, John Roche and Henry Conroy, and that they thereupon entered into the actual possession thereof, and that they and their grantors have been in the actual possession thereof, except when interrupted by intruders, since that time, and are now in such possession; that about the time above named, R. C. Page, Geo. W. Dent, and Frederick T. Dent conveyed to said Conroy and Roach, and that they claimed some interest in said land." Non constat but that the defendants' possession was "interrupted by intruders" the next day after the making of the deed to them by Williams in 1868, and that they were out of possession from that time until the commencement of this action. Nor does it appear from the findings that Williams, or any of his predecessors, or Page or either of the Dents, ever had any title to or interest in the property. The plaintiff alleged in his complaint that on 1st day of April, 1872, he was "the owner and seized in fee and possessed of and entitled to the possession, and ever since has been, and still is, entitled to the possession" of the land in question; and that on the said 1st day of April, 1872, the defendants ousted him therefrom, and have ever since withheld the premises from him. These averments being denied by the defendants, it was the duty of the trial Court to find upon the issues thus made. It is perfectly obvious that everything stated by the Court in the finding above quoted may be true, and yet the plaintiff have been the owner in fee and entitled to the possession of the premises on the 1st of April, 1872, and so continued up to and including the date of the making of the findings and the entry of the judgment. But the Court below also found as follows: "First. The land in controversy is salt marsh and tide land. That it was known and numbered as 'Potrero Block No. 169 upon the official map of the city as it existed before 1870; and for a long time prior to 1866, and since, was surrounded by streets as delineated upon said map, and the lines thereof were and have been since marked by fencing around said block and adjoining blocks, and the streets are and have been open streets. * * * * * * * * "Third. On September 30, 1871, the Board of Tide Land Commissioners, as constituted according to the provisions of an Act supplementary and amendatory of an Act entitled 'An Act to convey and dispose of certain salt marsh and tide lands belonging to the State of California, approved March 30, 1868,' approved April 1, 1870, for a valuable consideration, sold and conveyed, by deed duly executed, said block of land to the defendants Conroy and Roche, which deed was duly recorded in the Recorder's Office of the City and County of San Francisco, State of California, in Liber 629 of Deeds, page 308, on October 2, 1871. That subsequent thereto, and before the commencement of this suit, the said defendants, Conroy and Roche, conveyed to D. W. Douthitt the undivided one-third interest in said land; and said Henry Conroy sold and conveyed his interest in said land to the defendant, Hugh S. Slicer, on the 8th day of November, 1871. "Sirth. That said land, except a small portion thereof (as described in the decree in the case of Knight vs. Haight et al., as mentioned in the fourth finding), is above the ordinary high water mark, and that said land (except the portion described in said decree) is not included within the boundaries of the red line as indicated upon the red line map, as provided for by the Act of March 26, 1851." In view of these findings, it was held by Department No. 1 that the deed from the Tide Land Commissioners conveyed no title to that portion of the land, at least, situated above the ordinary high water mark. In thus holding, it is contended there was error. It is said that the application of two principles-namely, that the presumptions are in favor of the plaintiff's deed from the Commissioners, and that the findings are to be harmonized, if possible-establish the error. Admitting the correctness of the principles, we do not think the conclusion contended for follows. In the first finding the Court states that the land is "salt marsh and tide land." In the sixth finding it is said that, with the exception of a small portion, the land "is above the ordinary high water mark." |