it. 2 May, Ins. §§ 468, 469B, 474, 475; Insurance Co. v. Hope, 58 Ill. 78; Jones v. Insurance Co., 36 N. J. Law, 29, at page 38. The fourteenth ground for defendant's motion for a new trial challenges as error the action of the trial court in permitting Samuel Kahn, a witness for plaintiff, to refresh his memory from the schedule of property destroyed, furnished defendant by plaintiff. I think there was no error in this. The witness was the plaintiff's bookkeeper up to the time of the fire. At the fire, the plaintiff's books of account and invoices of purchases were destroyed. After the fire, for the purpose of enabling him to make up a list of the goods on hand at the time of the fire, the plaintiff obtained, from the merchants from whom he had purchased goods, duplicate invoices thereof, and with these invoices, and from recollection of what was on hand and of the condition of the stock of goods, the plaintiff and witness, within three weeks of the fire, made up this schedule. It certainly was desirable that such a schedule should have been made up, as much for the benefit of defendant as of plaintiff. The evidence in no manner whatever impeaches its integrity, or casts any suspicion upon it. On the contrary, it appears to have been made fairly, and in an honest desire to do the right thing, in what seems to me, under the circumstances, the best possible way. Upon the trial the witness was examined and re-examined, and again and again crossexamined, about this matter, and the jury fully apprised of all the facts surrounding it. I am convinced the court was clearly right in permitting the witness, testifying a year after the schedule was made, to refer to it, and refresh his memory from it. 1 Greenl. Ev. §§ 436-439. See note to Insurance Co. v. Weide, Book 20, Lawy. Ed. U. S. 894.

The fifteenth ground in the motion for a new trial alleges error on the part of the court in permitting said witness to read the said schedule to the jury, in response to a question as to the amount of goods in the store at the time of the fire. For the reasons just stated in discussing the fourteenth ground of said motion, I perceive no error in this.

The sixteenth ground of said motion challenges as error the ruling of the court in permitting the said witness to enumerate and state the value of certain articles alleged to have been destroyed by the fire which were not included in the plaintiff's proofs of loss. There was no error in this. The defendant promised to indemnify the plaintiff to the extent of $1,500 for loss upon his stock of goods, not merely those stated in the proofs of loss, but those which he had in his store at the time of the fire.

The seventeenth ground of said motion alleges error in permitting the affidavit and schedule offered as proofs of loss to be read

to the jury. These papers were certainly not competent evidence of the facts therein stated, and the court very properly charged the jury that they were not to be considered as evidence of the quantity and value of the property destroyed. They were, however, competent evidence to show compliance, or attempted compliance, with the requirement of the policy that proofs of loss should be furnished, and there was no error in permitting them to be read to the jury.

The eighteenth ground of said motion alleges error in permitting Mr. Baird, a witness for plaintiff, to testify respecting certain offers of settlement made by the adjuster to plaintiff. The rule with respect to offers of compromise, as stated in 1 Greenl. Ev. § 192, is "that confidential overtures of pacification, and any other offers or propositions between litigating parties, expressly stated to be made without prejudice, are excluded on ground of public policy. An offer of a sum by way of compromise of a claim tacitly admitted is receivable, unless accompanied with a caution that the offer is confidential." Tested by this rule, there can be no question that the evidence was admissible. The adjuster was not here attempting to compromise a disputed claim; so far as can be gathered from anything he did or said, the claim was at least tacitly admitted. The only controversy between him and the assured was as to the amount of the claim, and his offers of settlement did not come within, or even approach, the rule excluding offers of compromise. Besides this, what was said and done by the adjuster was clearly admissible as tending to show a waiver of the additional insurance, (Cleaver v. Insurance Co., 71 Mich. 414, 39 N. W. 571,) and to show a waiver of the proofs of loss. There is nothing in the proposition that there was error in this matter.

It is further urged that the plaintiff was guilty of false swearing with respect to the quantity of goods destroyed and the amount of his loss. The condition of the policy is: "All fraud, or attempt at fraud, by false swearing or otherwise, shall forfeit all claim under this policy." The rule is well settled that, under such provision, to constitute fraud or false swearing there must be false statements, willfully made, with respect to a material matter, with the intention of thereby deceiving the insurer. 7 Amer. & Eng. Enc. Law, p. 1047, and cases cited; 2 May, Ins. (3d Ed.) § 477. With especial regard to this matter of false swearing, I have several times carefully read the entire evidence given upon the trial, and have constantly kept in mind the fact that the trial court saw the witnesses, heard them testify, observed their manner, etc., and consequently had much better opportunity of properly judging the evidence and its effect than I could possibly have; but I have been unable to find any facts in the entire record

which raise a reasonable doubt in my mind as to the good faith of the plaintiff, or any facts or circumstances which would or could have justified the trial court in vacating the verdict upon this ground. It is true that, in the affidavit of plaintiff sent as proof of loss to defendant, it is stated that the stock of insured goods "was burned up and destroyed by fire on the night of the 26th of December, A. D. 1890," and also that the schedule attached to the affidavit was "a statement of each article of property burned up, and opposite thereto the cost price thereof;" and it is also true that, literally speaking, the goods were not actually "burned up and destroyed by fire." In fact, the evidence clearly shows that most of the goods were destroyed by smoke and water, and some few only damaged thereby, and it may be that a few items of the property were only slightly injured; but practically the entire stock of goods was destroyed. A large quantity of the goods were in the cellar situate just beneath the storeroom. A large hole was burned in the floor of the storeroom, so that the fire must have reached the goods in the cellar; besides, the cellar was filled to overflowing with water used by the fire department in endeavoring to extinguish the fire. Under the circumstances with regard to the fire, as disclosed by the evidence, it seems to me that it is altogether improbable that there could have been anything less than a total loss, to all practical intents and purposes, of the goods in the store. Mr. Stitzer, the defendant's agent, visited the place of the fire within six or eight hours after it occurred, in the discharge of his duty, which required him to instruct the assured to take proper care of articles not destroyed, and he testified that at that time he "saw nothing of any consequence which could be saved." The plaintiff, testifying in his own behalf, explained what he meant by the language used in his proofs of loss, viz. "burned up and destroyed by fire," etc.; and in view of the fact that these proofs were made after the property destroyed and damaged, and all the circumstances of the fire, had been fully examined and inquired into by Mr. Stitzer, the defendant's agent, and also by its adjuster, I can perceive no foundation in this matter upon which to base the charge of an attempt at fraud by false swearing or otherwise.

As to the claim that the total amount of loss, as stated in the proof of loss, was four times greater than it actually was, I can find nothing in the evidence to sustain it. On the contrary, the evidence showed that there were many articles of considerable value destroyed which were not included in the proofs. Indeed, defendant alleged as one of the grounds of its motion for a new trial the fact that the court permitted, over its objection, the introduction of testimony to that effect. The defendant alleged this defense in its answer filed six months or more before

the trial. The adjuster, a year before the trial, made the same objection to settling with plaintiff, viz. that plaintiff claimed to have lost more goods than he really had; yet upon the trial the defendant did not offer a scintilla of evidence in support of this, or any other of its defenses. It is incomprehensible that, if the fact had been as alleged by defendant in its defense, it could not, at the trial, have produced some evidence in support thereof.

As to the value of plaintiff's stock of goods at the time of the fire, the testimony was clear and positive that it was from $3,300 to $3,500. It is impossible to gather from the evidence that the damaged goods which remained over after the fire were worth more than $100 or $200 at the outside, and this, too, by including damaged meat, butter, and lard, which some of the witnesses stated might be worth something for what they called "tanking purposes," and which, the proof shows, plaintiff threw away as utterly worthless, to his own damage, if the judg ment of the witnesses was right. It is true that plaintiff, on cross-examination, was not able, without reference to his memorandum or list of goods which he made soon after the fire, to state the quantity and value of the different classes of goods he had in stock. Had he been able to do so, he would have exhibited a very remarkable memory; so remarkable that it would be looked upon with some suspicion. I can very readily understand how a man in the business plaintiff was engaged in would have a very clear and correct idea of the value of his entire stock of goods, and at the same time be wholly unable to state from memory the number of cans of corn and number of mouse traps, etc., which he had on hand. Had the plaintiff in this case attempted to state from recollection the exact number of cans of corn and the exact number of mouse traps, etc., he had on hand, I should be a good deal more disposed to regard his testimony with suspicion than I am. Even if the testimony upon this question had been evenly balanced, it would have been insufficient to establish the defense. A man who alleges fraud must clearly and distinctly prove the fraud he alleges, and the proof must be clear and sufficient to satisfy the mind and conscience of the existence of the fraud. It cannot be pretended that such was the case here.

In conclusion, I am satisfied, from a careful review of this particular matter, that the court did not grant the motion for a new trial upon this ground; and not only this, but, if the court had done so, its action would have been erroneous, and a clear abuse of discretion. Edwards v. O'Brien, 2 Wyo. 496. I am of opinion that the final order entered by the court below should be reversed, and that the cause should be remanded to the district court of Laramie county, with directions to enter up judgment upon the verdict, with interest from the date of its rendition, for

concur.

(100 Cal. 459)

PEOPLE v. WELLS. (No. 21,027.) (Supreme Court of California.

Dec. 22, 1893.) CRIMINAL LAW - MISCONDUCT OF PROSECUTING ATTORNEY-ASKING IMPROPER QUESTIONS. Where, on a prosecution for forgery, the chief evidence against defendant was the testimony of H., the principal in the crime, and in his own behalf his own testimony, a conviction will be reversed where the prosecuting attorney asked defendant if he had not at another time forged his father-in-law's name, and also asked the captain of police (telling him not to answer until defendant had an opportunity to object) if one S. had not come to him and reported about defendant wanting him to tell H. to skip, though the questions are stricken out, since the asking of them was prejudicial and inexcusable, and made evidently for the purpose of taking an unfair advantage of defendant.

Department 2. Appeal from superior court, city and county of San Francisco; James M. Troutt, Judge.

James E. Wells was convicted of forgery, and appeals. Reversed.

Clara Foltz, for appellant. Atty. Gen. Hart, for the People.

MCFARLAND, J. The information charges the defendant, Wells, jointly with Ollie Hutchings, alias Grace Gilbert, with the crime of forgery. Wells was tried separately, was convicted, and appeals from the judgment and from an order denying a new trial.

Appellant contends for a new trial upon several grounds: Because the assistant district attorney, representing the people, in his opening address to the jury made misstatements of facts prejudicial to appellant; because the court, while excluding all other witnesses not under examination, refused to so exclude a policeman who was a witness for and an active participant in the prosecution; because the court refused to strike out certain answers of the witness Leavitt; because one or two of the jurors were guilty of misconduct; because there is newly-discovered evidence material to appellant; and because appellant was prevented from having a fair and impartial trial by reason of the misconduct of the prosecuting attorney in asking a certain question of the witness Lees, and certain questions of the appellant when on the stand as a witness on his own behalf. The last ground of contention is the only one which we deem it necessary to largely discuss. It appeared from the evidence that Ollie Hutchings falsely personated Miss Emma L. Dick, the owner of certain real property in San Francisco; forged the name of Miss Dick to a note and mortgage on said property; acknowledged the

and the said loan to Ollie Hutchings was effected in part by his agency. The prosecution charged that appellant was an accomplice of said Ollie in said false personation and forgery, while appellant claimed that. like the notary and others, he was deceived by her, and believed her to be Miss Dick. It appeared that after the forgery had been discovered appellant made considerable effort to discover the said Ollie, and for that purpose employed one Leavitt and one Staniels, who traveled through a number of the counties and cities of the state to find her. Staniels was put on the stand as a witness for the prosecution. Afterwards, while the captain of the police was being examined as a witness for the people, the prosecuting attorney asked him this question: "I want to ask one leading question, and do not answer it until counsel has an opportunity to object. Is it a fact that, a short time after that, Staniels came to you, and reported about Wells wanting him to tell the woman to skip?" Objection was made by appellant, and, of course, sustained. There was not the slightest excuse for asking this question. In fact, there was injected into it an apology for asking it. What, then, was its purpose? Clearly, to take an unfair advantage of appellant by intimating to the jury something that was either not true, or not capable of being proven in the manner attempted. And the wrong was not remedied because the court sustained an objection to the question. Counsel undoubtedly knew beforehand that the objection would be sustained. The inexcusable asking of the foregoing question would not be, perhaps, of itself, sufficient ground for reversing the judgment; but it is of importance when taken in connection with questions asked the defendant when a witness, as showing the general manner and temper with which the prosecution was conducted. Upon cross-examination of appellant the prosecuting attorney asked him these questions: "Where did you formerly reside? Do you know the Highland National Bank of Newberg, New York? Were you married to your present wife when you came here with her? Did not you admit in a letter to Mr. M. C. Belknap that in November, 1893, you forged your father-in-law's name to a note in New York?" To these questions counsel for appellant objected as incompetent, immaterial, irrelevant, and not in cross-examination; declared that they were unfair to appellant; and asked the court to instruct the district attorney not to ask any more such questions. The record merely shows that after discussion the objections were sustained. The first three of these questions are important mainly as leading up to the last one, the asking of which was utterly inexcusable and reprehensible,

999

Its

It would be an impeachment of the legal learning of the counsel for the people to intimate that he did not know the question to be improper, and wholly unjustifiable. only purpose, therefore, was to get before the jury a statement, in the guise of a question, that would prejudice them against appellant. If counsel had no reason to believe the truth of the matter insinuated by the question, then the artifice was most flagrant; but if he had any reason to believe in its truth, still he knew that it was a matter which the jury had no right to consider. The prosecuting attorney may well be assumed to be a man of fair standing before the jury, and they may well have thought that he would not have asked the question unless he could have proved what it intimated if he had been allowed to do so. He said plainly to the jury what Hamlet did not want his friends to say: “As, 'well we know;' or, 'we could, an if we would;' or, if we list to speak;' or, 'there be, an if there might.' This was an entirely unfair way to try the case; and the mischief was not averted because the court properly sustained the objection,-though we think it should have warned counsel against the course which he was taking,-and instructed the jury specially on the subject. The wrong and the harm was in the asking of the question. Of course, in trials of criminal cases, questions as to the admissibility of evidence will frequently arise about which lawyers and judges may fairly differ in opinion; and in such cases defendants must be satisfied when courts sustain their objections. But where the prosecuting attorney asks a defendant questions which he knows, and every judge and lawyer knows, to be wholly inadmissible and wrong, and where the questions are asked without the expectation of answers, and where the clear purpose is to prejudice the jury against the defendant in a vital matter by the mere asking of the questions, then a judgment against the defendant will be reversed, although objections to the questions were sustained, unless it appears that the questions could not have influenced the verdict.

These views have been substantially announced several times by this court and by courts of sister states. In People v. Devine, 95 Cal. 231, 30 Pac. 378, the court, through Sharpstein, J., say: "We agree with appellant's counsel that 'the statements, questions, and remarks of the district attorney were peculiarly calculated to prejudice the substantial rights of the defendant.' We think what was said by this court in People v. Lee Chuck, 78 Cal. 327, 20 Pac. 719, and People v. Bowers, 79 Cal. 415, 21 Pac. 752, peculiarly applicable to the conduct of the district attorney in this case, and we hope the court may not again have occasion to animadvert upon similar conduct of a prosecuting officer." And in a concurring opinion by De Haven, J., the views heretofore stated are fully expressed, and a number of authori

ties cited to the point. In People v. Ah Len, 92 Cal. 282, 28 Pac. 286, the judgment was reversed for conduct of the prosecuting attorney not more censurable than that in the case at bar; and in that case the trial court warned the jury specially upon the subject. In People v. Bowers, 79 Cal. 415, 21 Pac. 752, the court say: "Still more objectionable was the conduct of the district attorney. It is true the court properly interfered, rebuking the attorney, and instructing the jury to pay no attention to the statements. But the statements were well calculated to influence the jury in a case of this character, and it is impossible for us to say that no injury resulted to the defendant therefrom." In People v. Lee Chuck, 78 Cal. 329, 20 Pac. 719, the court say: "Equally with the court, the district attorney, as the representative of law and justice, should be fair and impartial. He should remember that it is not his sole duty to convict, and that to use his official position to obtain a verdict by illegitimate and unfair means is to bring his office and the courts into distrust." In People v. Mullings, 83 Cal. 138, 23 Pac. 229, the judgment was reversed because certain improper questions were asked the defendant when a witness, and it was contended that no injury was done because they were answered in the negative; but the court said: "It is quite evident that the questions, and not the answers, were what the prosecution thought important. The purpose of the questions clearly was to keep persistently before the jury the assumption of damaging facts which could not be proven, and thus impress upon their minds the probability of the existence of the assumed facts upon which the questions were based. To say that such a course would not be prejudicial to defendant is to ignore human experience and the dictates of common sense." In the foregoing cases the facts were not precisely like those in the case before us; but the principle applied there is equally applicable here. The main difference is that in those cases the statement of the obnoxious matter was in a different form from that employed in the case at bar. The following are some of the cases on the point from other states: Gale v. People, 26 Mich. 161; People v. Cahoon, 88 Mich. 456, 50 N. W. 384; Leahy v. State, 31 Neb. 566, 48 N. W. 390; Tucker v. Henniker, 41 N. H. 317; State v. Trott, 36 Mo. App. 29. In the last case the supreme court of Missouri says: "The state's attorney must have known that the answer called for by the question was inadmissible, and, if he knew it, the putting of such a question to the accused was so unfair and improper that it may well be doubted whether it could be deemed to have been cured by the prompt action which the court took."

The only question, then, is whether or not we can see from the record that the conduct of the prosecuting attorney did not

prejudice the appellant; and we certainly cannot see that it did not. The main evidence in the case was the testimony against appellant of Ollie Hutchings, acknowledged to be not only an accomplice, but the principal in the alleged crime, and the testimony of appellant in his own behalf. Therefore the credibility of appellant was a most important matter in the case, and whatever tended to impair that credibility was material in the highest degree; and that the conduct of the prosecuting attorney so tended is entirely clear. It is too much the habit of prosecuting officers to assume beforehand that a defendant is guilty, and then expect to have the established rules of evidence twisted, and all the features of a fair trial distorted, in order to secure a conviction. If a defendant cannot be fairly convicted, he should not be convicted at all; and to hold otherwise would be to provide ways and means for the conviction of the innocent. There are no other points likely to arise on another trial, although it may be proper to say that appellant's motion to strike out certain answers of the witness Leavitt should have been granted after it had appeared that the declaration of appellant which he swore to was not made to him, but to his partner. Judgment and order reversed, and a new trial ordered.

1. An indictment for robbery, describing the property stolen as "money, jewelry, and hair ornaments," no demurrer or objection to evidence being taken, is good on motion to arrest judgment, under Pen. Code, § 967, providing that, in an indictment for larceny of money, it is enough to allege the larceny to be of money, without specifying the coin, number, denomination, or kind thereof.

2. The parties being Chinese, and the prosecuting witness having testified that the crime took place on a certain Chinese date; that she knew nothing of the American dates, but that it was the day before she made complaint,the district attorney, in order to fix the date, may put in evidence the complaint.

3. Evidence as to the disappearance and present whereabouts of prosecuting witness' daughter, who had left home the day of the robbery, was immaterial, where it appeared that one defendant that day called on prosecuting witness, at her home, and told her that her daughter was at his house; that thereupon witness went with him to his house, and there, as she and others swore, was robbed of her money and jewels. Nor could there be prejudice when another witness testified that he had at that time taken said daughter away to a correct and lawful residence.

Commissioners' decision. Department 1. Appeal from superior court, Kern county; A. R. Conklin, Judge.

Chuey Ying Git, Woo Ah Woy, and Chung Ki Foon, being accused of robbery of Ah Bow, the two latter were convicted, and appeal. Affirmed.

Mahon & Laird and J. A. Haralson, for appellants. W. H. H. Hart, Atty. Gen., for respondent.

SEARLS, C. The appellants were accused by information of the crime of robbery, and, upon a trial, Woo Ah Woy and Chung Ki Foon were convicted. The appeal is prosecuted from the final judgment, and from an order denying a new trial.

The first objection to the judgment is that the court erred in rendering judgment against the defendants in the case "because the information upon which said defendants were tried and convicted did not state facts sufficient to constitute a public offense." The information is in all respects in consonance with the usual form in cases of robbery, except that the only description of the property taken is as follows: "Personal property. to wit, money, jewelry, and hair ornaments." There is no demurrer interposed to the information, no objections to testimony upon the ground of the insufficiency of the information, and no motion in arrest of judgment. All objections appearing upon the face of the indictment must be taken by demurrer, "except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, or after the trial in arrest of judgment." Pen. Code, § 1012. In People v. Swenson, 49 Cal. 3SS, the indictment was as follows: "Of the crime of an assault with intent to commit murder, committed as follows, to wit, the said C. G. T. Swenson, on or about * * *, did assault, with intent to commit murder, one Benjamin Cook.” Defendant failed to demur to the indictment, but did move in arrest of judgment. court held that by failing to demur the defendant had waived the objection, and could not move in arrest of judgment on the ground that the indictment did not conform to the requirements of sections 950, 951, and 952 of the Penal Code, and that, as the indictment contained a sufficient charge of an assault, the judgment could not be arrested on the ground of not stating facts constituting a public offense. "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate présence and against his will, accomplished by means of force or fear." Pen. Code, § 211. It includes larceny, and underthe indictment the defendant may be found guilty of larceny. People v. Jones, 53 Cal. 58. Robbery and grand larceny, when the property is taken from the person of another, or when the property taken is a horse, etc.. do not depend upon the value of the property taken. Pen. Code, § 487. Hence, it

This