Mahone v. Grimshaw.

ninety-six cents, and to enforce a mechanic's lien for its payment. The plaintiff had judgment in the Justice's Court; but upon appeal to the County Court, judgment was rendered for the defendants.

This Court has no jurisdiction of the case. The appellate jurisdiction of this Court is defined by the Constitution, and is limited, in actions upon demands for money, to cases where the matter in dispute exceeds two hundred dollars, unless the legality of a tax, toll, impost or municipal fine is involved. The fact that the plaintiff may at the same time seek an enforcement of a mechanic's lien or the foreclosure of a mortgage by which the demand is secured, does not affect the question of jurisdiction.

Appeal dismissed.

MAHONE v. GRIMSHAW.

IT is no defense to an action brought for wrongfully taking and detaining personal property, that the property so taken and detained is the separate property of the wife of plaintiff.

The husband is entitled to the management, control and possession of the separate property of the wife during the continuance of the marriage.

If the wife have any just cause to apprehend that her husband will mismanage or waste her separate property, she has her remedy by application to the District Court for the appointment of a trustee to take charge of and manage the same.

APPEAL from the Sixth Judicial District.

The complaint alleges that plaintiff was, on a day named, the owner and possessor of certain cattle of the value of nine hundred dollars; that defendant wrongfully took them from his possession, and still detains them; and prays for restoration of the possession, or if a return cannot be had, for the value.

The answer denies the ownership and possession of plaintiff, and the wrongful taking by defendant; and alleges that the cattle are and were at the time of the alleged taking the separate property of plaintiff's wife; that a portion of them were the separate property of the wife before marriage, and the remaining portion were acquired

Mahone v. Grimshaw.

by her while doing business as a sole trader under the statute; and that defendant took and held the property as agent of the wife, and with her consent.

On the trial, testimony was introduced tending to establish the allegations of the pleadings; and the Court gave to the jury the following charge:

"The question is: Is this the property of the separate estate of Mrs. Mahone, or is the property or any part of it the joint estate of the two? If it is her separate property, she has a right to control it, and it was rightfully in Grimshaw's hands, and he has a right to hold it." To which plaintiff excepted.

The jury returned a verdict for defendant; plaintiff moved for a new trial, and the motion was granted. From the order granting the new trial the appeal is taken.

Wyans & Hyer, for Appellant.

Hereford & Long, for Respondent.

FIELD, C. J. delivered the opinion of the Court-NORTON, J. concurring.

If the cattle, for the possession of which the action is brought, were, as contended by the defendant, the separate property of the wife of the plaintiff, that fact constitutes no defense. The husband, by the express language of the statute, is entitled to the management and control of the separate property of the wife during the continuance of the marriage, and, of course, to its possession. If the wife have any just cause to apprehend that her husband will mismanage or waste her separate property, she has her remedy by application to the District Court for the appointment of a trustee to take charge of and manage the same. (Act defining the Rights of Husband and Wife, of April 17th, 1850, secs. 6 and 8.) Order affirmed.

WHERE an appeal is taken from the judgment and from an order refusing a new trial, and the statement on appeal from the judgment is not prepared within the statutory time, and the statement on appeal from the order refusing a new trial is not agreed to by the parties or their counsel, or settled by the Judge who tried the cause, nothing but the judgment roll will be considered by the appellate Court.

APPEAL from the Fifth Judicial District.

L. Quint, for Appellant.

H. P. Barber, for Respondents.

FIELD, C. J. delivered the opinion of the Court-COPE, J. concurring.

The statement on appeal from the judgment was not prepared within the statutory time. It cannot, therefore, be looked into for the determination of the errors assigned by the appellants. The statement on appeal from the order refusing a new trial is not agreed to by the parties or their counsel, or settled by the Judge who tried the cause. It constitutes, therefore, no part of the record which we can notice. This disposition of the two statements leaves the case to rest upon the judgment roll, and that discloses no error. Judgment affirmed.

THE PEOPLE v. AH KI.

THE ground of the rule excluding confessions obtained by threats from one charged with a crime, is the possibility that the confession may be false; and It does not apply to a confession of the place where stolen property is concealed, when the finding of the property at the place indicated precludes the possibility of the confession being untrue.

Thus, on a trial for larceny, it was not erroneous to allow proof that the accused, under the influence of fear induced by threats and violence, conducted persons to the place where the stolen property was found.

Proof of possession of property recently stolen, is not of Itself sufficient evidence upon which to convict the possessor of the theft.

People v. Chambers (18 Cal. 383) affirmed.

CAL. REP. XX.-12

People v. Ah Kl.

On trial for larceny, the Court instructed the jury that "Where goods, shown to have been feloniously taken from the owner, are, immediately after such felonious taking, found in the possession of a party, the burden of proof is thrown upon the party of explaining such possession and the manner in which he acquired such goods:" Held, that the instruction was erroneous, as conveying the idea that possession, unexplained, was of itself sufficient to authorize a conviction.

APPEAL from the Court of Sessions of Neveda County.

The indictment is as follows: "Ah Ki (Chinaman) is accused by the grand jury of Nevada county, by this indictment, of the crime of grand larceny, committed as follows: The said Ah Ki, on, to wit, the twelfth day of September, A. D. 1861, at the township of State range, in the county of Yuba, in the State of California, and within five hundred yards of the line of the county of Nevada, feloniously did steal, take and carry away, one silver watch of the value of thirty dollars, twenty-five pieces of money of the denomination twenty dollars, in gold coin of the United States of America, in all of the value of five hundred and fifty dollars, of the goods, chattels and property of James Nelson, John Nelson and C. McDonald, contrary to the forms of the statute in such case made and provided."

The first instruction given by the Court is as follows: "When goods, shown to have been feloniously taken from the owner, are, immediately after such felonious taking, found in the possession of a party, the burthen of proof is thrown upon that party of explaining such possession, and the manner in which he acquired such goods."

The following is the third instruction asked by defendant and refused by the Court: "If the jury believe, from the evidence, that all the facts testified to by witnesses in this case were obtained from defendant, by hanging him up by the neck to a limb of a tree, and by threats and menaces used towards defendant by those who had him in custody, before any statement or confession made by defendant, they will acquit the prisoner."

Thomas P. Hawley, for Appellant.

I. The demurrer interposed by defendant to the indictment should have been sustained. The description of property stolen

People v. Ah Ki.

was insufficient, and the facts are not concisely stated. (People v. Peterson, 9 Cal. 315; People v. Lloyd, 9 Id. 55; People v. Ball, 14 Id. 101.)

II. The Court erred in its instructions, given to the jury, as to the presumptions arising from the recent possession of stolen property. The instruction is in direct opposition to recent decisions of this Court. (People v. Chambers, 18 Cal. 383; People v. Levison, 16 Id. 99; 3 Green. on Ev. sec. 31; Best on Presumptions, secs. 224, 226.)

III. The Court also erred in refusing the third instruction asked by defendant's counsel. The principle "that all confessions forced from the mind by the flattery of hope, or torture of fear," cannot be given in evidence in a Court of justice, is well settled. (Rex v. Jones, cited in 3 Philips on Ev. 424.)

Attorney General, for Respondent.

NOPTON, J. delivered the opinion of the Court-COPE, J. concurring.

The demurrer to the indictment was properly overruled. The offense is alleged to have been committed within five hundred yards of the line of the county of Nevada, which shows the case to be within the provisions of section eighty-eight of the Criminal Practice Act, and the description of the stolen property is precise and accurate.

There was no error in refusing the third instruction requested by the defendant. That instruction would have precluded the jury from considering the effect of the defendant having conducted the witnesses to the place where the stolen property was concealed. Although that act was a confession of his knowledge where the property was concealed, and was induced by threats, yet the truth of this confession being established by the finding of the property at the place indicated, precluded the possibility that the confession was false which is the ground of the rule excluding confessions thus obtained. (I Greenleaf's Ev. secs. 231-2.)

But the first instruction given to the jury was crroneous under the ruling in the case of The People v. Chambers (18 Cal. 283.)