Abbildungen der Seite
PDF
EPUB

saloon that night; but to what extent they were acquainted is not disclosed. When Davis went into the saloon, as he testified, "there was no introduction; went into the saloon by myself. Hart was there, and said: "There is a live one. Come up and have a drink.'" Dowane did the treating at the Workingman's saloon, and while there exbibited his money. Leaving the Workingman's saloon, the party, consisting of Dowane, the defendant, and Davis and Flood, took in other saloons, and together reached Gabriel's saloon, the last one visited by them on their round. It was after they left this saloon that Dowane was robbed, and as to the occurrence he testified: "Was alone; they all came out of the saloon at the same time. Witness was alone with these three parties. Left the saloon in company with the men witness went there with. One of the men was then in the courtroom, the defendant. Went out the front door of the saloon, or the corner; did not know which. Defendant was one of the men witness went out with. Turned to go up town. There were three with the witness. Defendant was one. Was grabbed from behind when maybe a couple of hundred yards from the saloon. The one who grabbed witness had his hand tied up. Hart, the defendant, was on the left side of witness at the time the man with his hand tied grabbed him. Was right up to witness; that is, the defendant, Hart. * * * Q. Do you know whether or not right at that time he touched your person? A. Well, all he could have done perhaps was kind of to take hold of my pocket like this [showing]. I remember that very well. At that time the little fellow, Davis, was on the right side of witness. Right up close to witness. The man who had his hand wrapped was the one who grabbed witness from behind. From the time left Dempsey's saloon and Debau's saloon, the saloon on the corner, and the one near the levee, during all of that time did not know of it, if he was in company with any one but Hart, Flood and Davis. Had made associates with no one else. Q. Were you traveling with any one excepting the three named? A. I was not." It appeared from Dowane's testimony that Davis took the money from his pocket. He testified on cross-examination: "Q. The defendant never made any effort to take any money from you, did he? A. Never made any effort; no. Q. As a matter of fact, he did not take any money from you, did he? A. No. Q. You do not know whether or not he was in counsel with or advised or connived with anybody to take any money from you, do you? A. Only from observation. Q. What did you observe that would make you believe that? A. Well, it looked to me like that, when they were keeping company together and when I was robbed, this party went away with the others."

After being robbed Dowane went to a sa

*

*

*

loon known as "Wall's" where the party had previously been in making their round that night. Hart and Davis were in the saloon drinking when Dowane came in. As to what occurred after Dowane came in, the barkeeper-Hall-who had been on duty all that evening, testifled: "While they, Hart and Davis, were there, he [Dowane] said he had been robbed, and looked in the crowd at the bar, and pointed to Hart and said he was one of the men. He said: "That is one of the men, and, I want a policeman, if there is any around, and I want one now.' * * Hart and Davis were about 10 feet off when Dowane made the remark that Hart was one of the men who robbed him. * Hart said he had not seen Dowane, had not been with him." On the cross-examination of Hall by counsel for the defendant the witness was asked these questions, after stating that he had been sworn at the preliminary examination of the defendant: "Q. You did not make this statement on the preliminary examination, did you? Q. Why did you not make this statement on the preliminary examination? Q. In your testimony on the preliminary examination did you then and there tell all you knew about the case?" To each of the foregoing questions the court sustained an objection by the district attorney upon the ground that it was "immaterial, irrelevant, and incompetent." The bartender further testified that a few minutes after Dowane made the above statement indicating Hart as one of the parties who had robbed him, and that he wanted a policeman, and Hart denied that he had been with or seen Dowane that night, Hart and Davis went away together, and after they had gone the witness telephoned for the police. An officer came in not long afterwards, and Hart and Davis were arrested together somewhere on the streets of the city. The officer found on Hart $1.60 and on Davis two $20 gold pieces, two $5 gold pieces and some silver.

On behalf of the defense the only testimony offered was that of Davis and one witness who testified favorably to the reputation of the defendant for honesty. Davis testified that he took the money from Dowane; that there was no previous understanding with Hart or Flood, or either of them, of any character, that Dowane should be robbed; that at the time the money was taken by him from Dowane the latter had it in his hand and was apparently about to put it in his pocket; that he (Davis) was standing by his side and grabbed him by the arm. wrenched the money out of his hand, and went across the street; that he took it on the impulse of the moment, and could have done so without the other two knowing anything about it; that Hart was four or five feet away when he took it, and he could easily have taken it away without either knowing whether he had taken it or not; that Hart followed him after he went across the street,

and together they went into a saloon; that after he took the money nothing was ever said about it, nothing as to any division of it being made.

We have stated all the material evidence in the case, so that the main point upon which the claim for a reversal is based may the better be understood. This is that the court erred in sustaining the objections of the prosecution to the questions asked by the defense of the barkeeper, Hall, as to whether he had at the preliminary examination, as he then did on the trial, made the statement concerning what took place in the saloon after the robbery while Dowane, Davis, and Hart | were there.

It is insisted by the people that the rulings were proper because it did not appear, first, that the witness had testified upon any preliminary examination; secondly, that the attorney for defendant had not offered to exhibit to the witness any transcript of his testimony taken at the preliminary examination; and, thirdly, that in any event the ruling was not prejudicial to the defendant. The only claim of the people is that the defense had not laid the proper predicate or adopted the proper form to authorize the questions. But there is clearly no merit in this claim, particularly under the general objections which were interposed. While it is insisted by the prosecution that it was not shown that the witness had testified at the preliminary examination, this claim is not strictly true. The witness answered to a previous inquiry on that subject that he had "been sworn on the preliminary examination." While it is true that this was not proving with legal exactness that he then testified, still it was a statement from which it was to be implied that he had done so, and was sufficient proof of it to require upon the part of the prosecution more specific objection to the inquiries which were being made on the theory that there was such proof than that the questions that were asked were "immaterial, irrelevant and incompetent." Proof

of the fact that he had been sworn was sufficient to raise the implication that he had testified, and, if it was really intended under the general objection interposed by the people to the subsequent inquiries of counsel for defendant to make the special point that no sufficient predicate had been laid because it was directly proven that the witness had testified on the preliminary examination, or that there should have been exhibited to the witness his testimony given at the preliminary examination, it was the duty of the district attorney to have made these specific objections in order to afford the attorney for the defendant an opportunity to obviate them and have the witness answer the questions which were pertinent and otherwise unobjectionable.

As to the further argument of the prosecution that the questions were impeaching ques

tions and therefore that a transcript of the witness' testimony should have first been shown him, it is sufficient to say that these questions were not by way of direct impeachment. In the first place, they were but preliminary in their nature, and, had answers been allowed, the explanations of the witness might have been full, complete, and satisfactory. He might, for example, have said that he did so testify on, preliminary examination, or he might have answered that he was not interrogated upon the subject at all. Only as he answered, and depending upon the character of his answers, would questions by way of direct impeachment have followed. As it was, in sustaining the objection to these questions, the court cut off the right of defendant's counsel to proceed along a legitimate line of cross-examination, while, in addition to this, the questions in and of themselves were pertinent, proper and valuable cross-examination as testing the credibility, memory and fairness of the witness. People v. Manasse, 94 Pac. 92.

No other point urged as error seems to call for specific consideration; but for the reasons above given the judgment and order are reversed, and the cause remanded for a new trial.

We concur: BEATTY, C. J.; HENSHAW, J.; MCFARLAND, J.

(153 Cal. 254) HINER v. HINER. (Sac. 1,576.) (Supreme Court of California. March 16, 1908.) 1. HUSBAND AND WIFE-SEPARATE MAINTENANCE-STATUTES-CONSTRUCTION - REME

DIAL STATUTES.

Civ. Code, § 137, which provides that, when a wife has any cause of action as provided in section 92, declaring the several causes for divorce, she may maintain an action for separate maintenance without applying for a divorce, is remedial in its character, and hence must be liberally construed.

[Ed. Note. For cases in point, see Cent. Dig.. vol. 26, Husband and Wife, §§ 1074, 1075.] 2. SAME-TECHNICAL TERMS.

There is no rule that requires that the term "cause of action," as used in Civ. Code, § 137, shall be given a strict technical construction. 3. SAME.

It was undoubtedly a question for the Legislature to declare under what conditions it should accord the right to a married woman to maintain an action for separate maintenance. [Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 1074, 1075.] 4. SAME JURISDICTION OF ACTION FOR SEPARATE MAINTENANCE-RESIDENCE.

Civ. Code, § 92, provides that a divorce may be had for several causes, among them "willful desertion." Section 128 provides that a divorce must not be granted unless plaintiff has been a resident of the state for a year. Section 137 provides that, when a wife has any cause of action as provided in section 92, she may maintain an action for separate maintenance of herself and children without applying for a divorce. Held, that a nonresident wife may maintain an action against a resident husband for separate maintenance under section 137, when he has

willfully deserted her; section 128 being intended to prevent the state from being made a resort in which to obtain a divorce under a fraudulent claim of residence, and not to apply under section 137 as a basis for preventing a nonresident deserted wife, having a cause of action under section 92, from obtaining the benefit of its provisions.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 1078.]

In Bank. Appeal from Superior Court, Sonoma County; Emmet Seawell, Judge.

Action by Alice E. Hiner against J. E. Hiner. From an order granting plaintiff alimony pendente lite and costs and counsel's fees, defendant appeals. Affirmed.

See 90 Pac. 957.

J. M. Thompson, for appellant. J. W. Oates, for respondent.

months next preceding the commencement of the action." That portion of section 137 pertinent to the question here declares that, "when the wife has any cause of action as provided in section 92 of this Code, she may, without applying for a divorce, maintain in the superior court an action against him for permanent support and maintenance of herself or of herself and children."

The principal point to be considered upon this appeal is as to the meaning of the language used in this latter section. To simplify matters it may be stated that no question is made upon this appeal, but that the complaint states one of the causes for divorcewillful desertion-mentioned in section 92.

The claim of counsel for appellant is that plaintiff could only maintain an action for permanent support under the provisions of section 137 if she had a "cause of action for divorce" against defendant, and that to con

LORIGAN, J. The plaintiff, who is the wife of defendant, brought this action against him in the county of Sonoma to obtain a judg-stitute a cause of action for divorce in this ment for permanent support of herself and minor children under section 137 of the Civil Code without asking for a divorce. The complaint filed on February 9, 1906, alleged the marriage of the parties in 1902; set forth facts constituting desertion of plaintiff by defendant under the laws of this state; alleged that such desertion of plaintiff took place in the state of Washington in October, 1902, that plaintiff is a resident of said state of Wash-. ington, and that defendant, since shortly after October, 1902, has been and now is a bona fide resident of Sonoma county, this state; and by further apt allegations set forth the poverty of plaintiff and the failure of defendant to support her and their minor children since the date of his desertion. The defendant demurred to the complaint, challenging the sufficiency of the facts stated to constitute a cause of action, and questioning the jurisdiction of the court over the subject-matter of the controversy. Before the demurrer was disposed of plaintiff moved the court for alimony pendente lite and for costs and counsel's fees, which, though resisted by defendant, the court granted.

This appeal is taken by defendant from such order of allowance, and the only question presented for consideration is, can a nonresident wife maintain an action in this state against a resident husband for permanent support and maintenance when she has cause for a divorce against him under the law of this state? This is the first time this particular question has arisen in this court, and it is to be solved from an examination of the various provisions of the Code bearing upon the inquiry, and these consist of sections 92, 128 and 137 of our Civil Code. Section 92 declares the several causes for which a divorce may be granted in this state, and enumerates "willful desertion" as one of them. Section 128 provides that "a divorce must not be granted unless the plaintiff has been a resident of this state for one year and of the county in which the action is brought three

state there must, not only exist in her favor one of the "causes for divorce" mentioned in section 92, but she must also have been a resident of the state for the period required by section 128; that sections 92 and 128 must be considered together for the purpose of determining whether plaintiff has a cause of action for divorce or not. We make no question of the accuracy of appellant's claim that residence is an essential element to a cause of action where a divorce itself is sought, because the law so declares; but we cannot agree with his claim that residence was intended by the Legislature as an essential element in the "cause of action" mentioned in section 137. We perceive no impelling reason which calls upon us, in determining what is meant by the cause of action referred to in section 137, to consider in connection with section 92, which is referred to in it, also section 128, which is not. There is certainly no rule of construction that requires us to do so.

Section 128 deals exclusively with divorce, and the object of the Legislature in requiring a residence of one year in this state before a divorce can be obtained is quite apparent. It was intended by requiring a residence of a permanent character to prevent persons who could not obtain divorce in the state or country of their real residence from establishing temporary residence here for the purpose of doing so. The policy of the law is against allowing divorces, and they are only allowed in this state in the enumerated cases in section 92. The spirit of section 128 is to prohibit them entirely from being granted in this state except to bona fide residents thereof. That is its only purpose. The section was never intended by the Legislature to be invoked in the construction of section 137 so as to defeat the right of the wife to enforce against the husband resident here the marital obligation of supporting her and their minor children which that section conferred. The policy of the law, as illustrated by the enactment

of section 137, is to afford the wife, when cause for a divorce exists under section 92, the right to enforce support from her husband, which springs from the marital status, without praying for or requiring a total dissolution of such status. Public policy defends the wisdom of a provision of law requiring that the plaintiff shall be a bona fide resident of the state, the jurisdiction of whose courts is invoked to obtain a divorce. Its purpose is to prevent a fraud upon the law of the state by nonresidents, and is in aid of restricting the dissolution of the marriage status except at the suit of a resident of this state. There

of this Code. The purpose of the amendment was to enlarge the right of action in favor of the wife. It is remedial in its character, and the rule is that remedial statutes are to be liberally construed. Now, considering the remedy which the Legislature by the section intended to afford to the wife, which was the right of separate maintenance without the necessity of suing for divorce, we perceive no reason why the language of the section conferring it should be construed to mean that before she could invoke this particular remedy she should through residence for the statutory period, be able to invoke the

is, however, no possible consideration of pub-remedy for divorce, which she did not desire, lic policy which could be suggested in support of precluding a nonresident wife, or a wife resident here for less than a year, from invoking the aid of our courts to compel support from her husband, who is a bona fide resident of the state. The policy of the present age, following an instinct of humanity and justice, and crystallizing it into legislative enactment, has been to afford facilities to the wife to compel the delinquent husband to discharge his marital duty of support without seeking a divorce, and no one has ever deprecated the justice or wisdom of the provision except the delinquent husband himself. Particularly in this country has the doctrine of our courts and the legislation of the states furthered that right. Under the rule prevailing in the English system a court of equity could not decree a specific performance of the marital obligation on the part of the delinquent husband by requiring him to furnish his wife separate maintenance; that the only remedy was in a court of law by action against the husband in favor of any one who was considerate enough to supply her with the necessaries of life; that the jurisdiction of awarding alimony to the wife rested with the spiritual courts, could only be granted in those courts, and then only as an incident to a decree of divorce.

A more reasonable doctrine early obtained in most of the American courts, and it was held that under its general powers a court of equity was authorized in the case of abandonment of the wife by the husband to award her, at her own suit, a decree for separate maintenance against her husband without any application for a divorce. It was so held in this state before there was any legislation upon the subject. Galland v. Galland, 38 Cal. 265. Subsequently it was provided by section 137, and so stood before the amendment of 1895, which is now under consideration, that the wife might maintain an action for separate maintenance without applying for a divorce "when the husband willfully deserts the wife." This original section extended such right only in cases of willful desertion. In 1895 the present section was passed, which extended the right, not only where there had been willful desertion, but to all cases where the wife has any cause of action for divorce as provided in section 92

*

and which the section declares she need not
apply for. What the Legislature intended
was to accord the wife the right to compel
the husband to discharge his marital obliga-
tion of support, and, while it provided that
this could be enforced without asking for a
divorce when the "wife has any cause of ac-
tion for divorce as provided in section 92 of
this Code," the cause of action referred to
consisted solely of the existence of one of the
"causes for divorce" mentioned in section 92
as affording a basis for divorce. There is no
rule that requires that the term "cause of
action" shall be given a strict technical con-
struction. As is said in 1 Cyc. p. 643: "As
with most legal terms it often becomes neces-
sary, acting upon the well-settled rules of
construction, to depart from the technical
meaning and use of the words 'cause of ac-
tion' when contained in statutes
* * in
order to carry out the intention of the Legis-
lature.
Now, applying this rule
to the further consideration of this question,
section 92 declares what shall constitute
"causes for divorce," and when the Legisla-
ture in section 137 authorized an action by
the wife for separate maintenance where she
had "a cause of action for divorce, as pro-
vided in section 92," the cause of action re-
ferred to was intended to mean the existence
of any of the causes for divorce which were
specified in the latter section; that while, for
the purpose of constituting a cause of action
where dissolution of the marriage relation
was sought, residence according to section
128 was essential, still, for the purpose of
sustaining an action for maintenance with-
out divorce, the existence of "cause for di-
vorce" as provided in section 92 constitutes
the cause of action, and was all that was
necessary or required. We think this is a
reasonable and just construction to be given
to section 137, and is in accord with the lan-
guage used in it. It was undoubtedly a ques-
tion for the Legislature to declare under
what conditions it should accord the right to
a married woman to maintain an action for
separate maintenance. If it had intended
that she should not have that right unless a
resident of the state for a year, it would have
said so plainly. It could have declared it by
referring to section 128, as well as section 92
in enacting section 137; or, if it was intend-

ed that residence should have any application to the right of action referred to in section 137, it could have amended section 128 so as to declare that a divorce or judgment for permanent support shall not be granted unless plaintiff has resided in the state a year. The fact that it neither referred to that section nor amended it, but referred solely and specifically to section 92, is persuasive evidence that the right of a wife to sue for support was to be measured alone by the existence of a cause for divorce, as provided in section 92 referred to, and is the cause of action meant, and that section 128 was not intended to have any application.

Aside from this, effect must be given to all the language used in section 137. It may not be assumed that any words employed in it were used idly. And, if it was not intended by referring to section 92 to declare that the existence of the "cause for divorce" provided therein should constitute the cause of action for separate maintenance, then the reference to that section was idle. If it had been intended by the Legislature that residence for the required period should enter as an element in the cause of action for separate support which it was conferring under section 137, it would have been entirely unnecessary to refer to section 92 at all. If that was the intention, it would have been effectually disclosed by simply providing that, "when the wife has any cause of action for divorce, * she may maintain" such action for support. No reference to section 92 would then have any place or purpose, because there are no other causes for divorce except as stated in that section, and to have referred to causes for divorce generally would have accomplished every purpose, and have left no room for doubt but that residence for the statutory period would have been essential as an element to the cause of action mentioned in section 137.

On the other hand, by referring to section 92, and authorizing suit by the wife for permanent support without divorce when she has a cause of action for divorce as therein provided, the only effect and purpose of the reference to such section must have been to declare that a cause of action for maintenance is complete when any cause or ground for divorce exists in her favor, and that her right to sue is to be measured alone by the existence of any such cause for divorce, and that residence under section 128 was not intended to enter as an essential element to its maintenance. And there is every just reason why this should have been the intention of the Legislature and that such a construction should be put on the language of the section.

Section 128 has reference solely to the dissolution of the marriage; section 137 solely to conferring a right to secure support without applying for a dissolution. The one was intended to prevent a fraudulent use of the courts of this state by temporary residents

to obtain the divorces here which they could not obtain in the states where they properly resided; the other in aid of the right of a wife to compel the husband to fulfill his marital obligation to support her and his minor children. While restricting divorces is a matter of public policy, enforcing the obligations of the husband to support his family is a matter of justice and duty to be exercised as well in favor of a nonresident as a resident wife against a husband who is bona fide a resident of this state. It was undoubtedly in this spirit that the Legislature declared that this obligation might be enforced, and that the right to do so should exist when the wife had a cause of action as declared in section 92. It is not consonant with justice, nor is it warranted by the terms of section 137, to say that the Legislature meant, in addition to the existence of a cause for divorce under section 92, that the plain. tiff should also be a resident for a year before she would be entitled to maintain an action for her support. Happily it is not the law, for, while section 128 is intended to apply solely to actions where a divorce itself is sought, and to prevent this state from being made a resort in which to obtain a divorce by imposition upon our courts under a fraudulent claim of residence, it was not intended to apply under section 137 as a basis for preventing a nonresident deserted wife having a cause of action under section 92 of the Code from obtaining the benefit of its provisions.

We are cited by counsel for appellant to certain decisions from Florida, which he contends sustains the views he urges here. They do to some extent, but the statutes of Florida are so different from our Code provision (section 137) that these cases do not aid us in the construction of our section of the Code. The order appealed from is affirmed.

We concur: HENSHAW, J.; ANGELLOTTI, J.; SLOSS, J.; SHAW, J.

(153 Cal. 245)

NOBLE v. LEARNED et al. (Sac. 1,457.) (Supreme Court of California. March 16, 1908.) 1. TRUSTS-PAROL TRUSTS-VALIDITY.

Under Civ. Code, § 1052, providing that a transfer may be made without writing, when not expressly required by statute, a valid trust in personal property may be created by parol.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 15-24.]

2. SAME-CREATION OF TRUSTS-SUFFICIENCY OF LANGUAge Used.

A trust, whether of realty or personalty, is created as to the trustor and beneficiary by any words or acts of the trustor indicating with reasonable certainty an intention on his part to create a trust, and the subject, purpose, and beneficiary of the trust.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 34-38.] 3. SAME.

Under Civ. Code, §§ 863, 2250, providing that every valid express trust in real property

« ZurückWeiter »