Appeal from superior court, Pierce county; F. Campbell, Judge.

E. L. Payne, convicted of grand larceny, appeals from order denying a new trial. Reversed.

Andrew J. Hanlon, for appellant. W. H. Snell, Pros. Atty., and Chas. Bedford, for the State.

ANDERS, J. The appellant and one Arquet were tried, convicted, and sentenced to the penitentiary for a period of seven years upon an information charging them with the crime of grand larceny. The case has heretofore been before this court on motion to dismiss for failure to file a transcript within the prescribed time, and the respondent now moves the court to strike from the transcript the bills of exception, on the grounds that they were signed after the time provided by statute, and after the court had lost jurisdiction to sign and settle the same; that the same were signed without notice to respondent as to the time and place, and without any time being set by the court; and that there are in the record what purports to be bills of exceptions and statement of facts, and the latter revokes and supersedes the former. It appears from the record that a notice containing a statement of the time at which the attorneys for the appellant would apply to the judge to settle and sign the bills of exceptions, which were annexed to the notice, was served on the prosecuting attorney within the time prescribed by section 393 of the Code of Procedure. The prosecuting attorney filed objections, and suggested certain amendments to the same, and they were not settled or signed at the time designated. Before taking any action in the matter, it seems that the judge had occasion to absent himself from the state for some time, but he subsequently settled and signed the bills of exception, embodying therein the amendments proposed by the prosecuting attorney. No new notice of the time of settlement is shown, and no order fixing a time when the bills of exceptions would be signed appears. It does not appear that the appellant re fused or neglected to do anything required of him by law, and the question is, shall he now be deprived of the right to have his case reviewed upon its merits in this court simply because the attorney for the state is not shown by the record to have had notice of the final action of the court in the premises? Under the circumstances, think he should not. It is not claimed or suggested that the bills of exception are not in accordance with the facts, and, having been brought to the attention of the court in proper time, we see no reason why they should not be considered. No statement of facts such as is provided for by statute was filed or settled, but all of the matters for consideration on this appeal are brought up

we

in the form of bills of exception certified by the trial judge. The motion must be denied. Before the commencement of the trial the defendant interposed a challenge to the panel of 24 jurors, on the grounds that the names were not drawn from the jury list certified by the county commissioners by the persons designated by law to draw the same, and that the list as drawn was not properly certified. Although the challenge was not in writing, sworn to, and proved, as required by section 1300 of the Code of Procedure, it was nevertheless entertained and considered by the court. The particular objection to the panel was that the deputy sheriff, instead of the sheriff, assisted the county clerk and auditor in drawing the jury. The statute provides (Code Proc. § 59) that "the clerk of the superior court, or his deputy, and the sheriff and county auditor, shall place ballots prepared from such list in a box, and having thoroughly mixed them, the clerk, or his deputy, being blindfolded, shall draw the requisite number to serve as such petit jurors." And section 61 further provides that "if from any cause the sheriff or auditor, or both, shall not attend and assist the clerk in drawing jurors, as in this chapter provided, the clerk may call to his assistance such other county officer or officers as he may choose, and they shall proceed as is prescribed for the auditor and sheriff." It will be observed that these two sections provide that the deputy clerk may act in the place of the clerk, but there is no provision authorizing the deputy sheriff to act instead of the sheriff, and the clear implication of the language used is that the sheriff must assist in the drawing in person, if at all, and not by deputy. If it had been the intention of the legislature that the deputy sheriff, like the deputy clerk, might act instead of his principal, it seems that they would have said so, and would not have said that if the sheriff shall not attend then the clerk may call to his assistance such other county offi cer as he may choose. But it is claimed by the respondent that, inasmuch as it is provided in section 80 of the Code of Procedure that the deputy sheriff has all the power of the sheriff, and may perform any of the duties prescribed by law to be performed by the sheriff, the deputy sheriff was duly authorized to assist the clerk and auditor in drawing the jury, although not mentioned in the sections of the statute pertaining to the selection of juries above quoted. We appre hend, however, that the duties and powers of deputy sheriffs mentioned in section 80 are such only as are usually incident to the office of sheriff, and are to be performed by him in his official capacity as sheriff, and do not include the execution of duties which are unofficial in character, and which may by law be performed as well by any other county cfficer who may be properly requested to perform them. The sheriff is desig nated by the legislature to perform or as

sist in performing the important duty of drawing the names of those who shall act as jurors, not because he is sheriff, but because he is deemed a proper person to execute a trust which must be confided to some one to perform. It needs no argument to prove the proposition that every person who has a cause to be tried in court has a right to have it submitted to a legal jury,--that is, a jury selected by the persons designated by law. The statutes we are considering were passed long after section 80 became a law, and we cannot escape the conviction that, if the legislature had intended that a sheriff's deputy might be delegated by the sheriff himself to perform this particular duty, they would not have made it the duty of the clerk to select some other county officer in the absence of the sheriff. Such trusts as are conferred upon the sheriff and auditor in this matter are, in our opinion, personal to themselves if accepted, and cannot be delegated by them to others. State v. Newhouse, 29 La. Ann. 824. Mere irregularities in the drawing of the jury are not grounds of challenge under our statute, but we do not deem a drawing by persons not authorized by law to be an irregularity merely, but a departure from the provisions of the law itself. Brazier v. State, 44 Ala. 387. We think, under the provisions of our jury statutes, and conceding for the purposes of this case that the defendant's challenge to the panel was properly presented, that it should have been sustained. The challenge and motion to set aside the special venire of 14 names was properly disallowed, as it is not shown that the venire was not issued for a sufficient

reason.

The challenge on the ground that the sheriff or officer who summoned the jurors by virtue of the special venire did not make a return of his doings thereon until after the commencement of the trial was properly overruled. It was not a sufficient reason for quashing the venire, and the court did right in causing the proper return to be made. Proff. Jury, § 136. The certificate of the officers who assisted in drawing the jury, to the list returned, is open to objection. It should have stated how the drawing was actually done, and not simply that it was conducted fairly, and as provided by law.

Upon the trial the defendant himself testified in his own behalf, and upon cross-examination he was asked the question, "Were you ever confined in the county jail?" And also the further question, "Were you ever convicted of a crime before?" To each of these questions the defendant answered, "No." Afterwards the prosecution introduced the sheriff of the county, whom the court permitted to testify, over the objection of the defendant, that the latter had been in the county jail under a conviction of petit larceny before a justice of the peace. He was also permitted to read to the jury the jail record, and an order of commitment is

sued by the justice of the peace. This was clearly error on the part of the court. When the witness was asked the question, "Were you ever confined in the county jail?." and answered, "No," the state was concluded by the answer, and could not contradict the witness. The matter inquired of was collateral and irrelevant to the issue before the jury, and was therefore irrebuttable. Freirich v. Territory, 2 Wash. St. 358, 26 Pac. Rep. 976; People v. McKeller, 53 Cal. 65; People v. Bell, Id. 119; Coble v. State, 31 Ohio St. 100; Whart. Crim. Ev. (9th Ed.) § 484. If it was competent to show that the appellant had been previously convicted of. a crime, neither the jail record containing the names, description, and term of sentence, etc., of persons confined therein, nor the warrant of commitment, was competent evidence to establish that fact. A conviction can only be shown by the record. A warrant of commitment, or, in other words, a mittimus, is sufficient to authorize and justify the sheriff in receiving and detaining a prisoner in the county jail, but it is not proof of a conviction. That can only be shown by the production of a judgment of a court of competent jurisdiction, founded upon an indictment or other proper accusation. Bartholomew v. People, 104 Ill. 601.

But it is urged on behalf of the appellant that it was error to permit the prosecution to attempt to prove a former conviction of appellant of petit larceny, even for the purpose of affecting his credibility as a witness. It is provided in section 1647, Code Proc., that no person offered as a witness shall be excluded from giving evidence by reason of conviction of crime, but such conviction may be shown to affect his credibility, etc.; but it is claimed that a conviction of a misdemeanor is not such a conviction of crime as is contemplated by the statute, and that only a conviction of a crime styled "infamous" is presumed in law to discredit. At common law, persons convicted of infamous crimes were excluded from testifying as witnesses in courts of justice. Not all crimes were deemed infamous, but treason, felony, and the crimen falsi were classed as such. Whart. Crim. Law, (9th Ed.) § 22a. Our statute provides that a crime shall be deemed infamous which is punishable by death or imprisonment in the penitentiary. 1 Hill's St. & Codes, § 345. And crimes so punishable are felonies, while all other offenses are mere misdemeanors. 2 Hill's St. & Codes, § 1184. Petit larceny is, under our law, not an infamous crime. Is it, then, a crime the conviction of which may be shown to affect the credibility of a witness? In the case of Bartholomew v. People, supra, the supreme court of Illinois, in considering the effect of a statute quite similar to section 1647 of our Code, held that the purpose of such a statute is simply to remove the common-law disability, and to allow witnesses to testify who were thereby excluded, and

that it does not profess to, nor does it by implication, enlarge the class of cases wherein convictions discredit the witness. In further speaking of the design of the statute, the court said: "It could not have been designed to have allowed proof of a conviction for an offense, not legally presumed to affect his credibility, to be given in evidence." And analogous statutes have been similarly interpreted by the courts of other sates. See Coble v. State, 31 Ohio St. 100; Card v. Foot, 57 Conn. 427, 18 Atl. Rep. 713. The convictions, therefore, which are referred to in section 1647 are only convictions of such crimes as before its passage excluded witnesses from testifying on account of infamy, and the crime, a conviction of which was attempted to be shown, was not of that class. It therefore follows that it was not competent to prove, or attempt to prove, it for the purpose of affecting the credibility of the appellant, or for any other purpose; and the charge of the court to the jury upon this point was also er

roneous.

A witness for the prosecution, a member of the police force of the city of Tacoma, testified that he had a conversation with Payne at the jail, and that "he (Payne) told me that he had been wrongfully arrested; that he did not have anything to do with robbing the man, but he knew about it, and helped 'blow in' the money. He said all three went to the lodging house together, and took three beds in one room; that he couldn't sleep, and in a short time he got up, and went down and got the drinks; that Arquet throwed down the twenty dollars, and says, 'How's this?' and after that they went up to Hank Halstead's, and blowed in the biggest part of it." This testimony is referred to as an admission, and also as a confession, on the part of Payne; and, in view of its having been introduced, the defendant requested the court to charge the jury as follows: Second. "A confession made by a defendant that he knew some time after the crime was committed that the crime charged had been committed is not evidence that he actually participated in the commission of the crime charged in the information, but would be evidence tending to show that he was an accessory after the fact, and could not be convicted on that confession as a principal and active participant in the commission of the crime charged." The court declined to so charge the jury, and in so doing, we think, committed error. Nor do we think the error was cured by the instruction which the court did give, which was as follows: "You are instructed that an admission made by a defendant that he knew some time after the crime was committed that the crime charged had been committed would not be evidence that he actually participated in the commission of the crime charged; and such an admission, taken alone, and without other testimony showing that

he actually participated in the commission of the crime charged, would not be sufficient to warrant his conviction of the crime charged." This instruction is inconsistent with itself, and was therefore calculated to confuse and mislead the jury.

The appellant contends that the testimony is insufficient to warrant the verdict, and this raises a question which we approach with no small degree of reluctance. But as insufficiency of the evidence is made a ground for a new trial by statute, it becomes our duty to determine the question thus presented. The testimony in the case is wholly circumstantial, and the facts are briefly these: The defendant, who had been living for some time at Anacortes, came up to Tacoma about the 16th or 17th day of January, 1892, and engaged in selling oysters in the saloons and about the streets at night. On the evening of February 21st, at about 8 or 9 o'clock, the appellant, Arquet, and Cox, whose money is alleged to have been stolen, were together in a saloon, drinking, each treating the others in turn. In this they continued until after 10 o'clock, when Arquet and Cox went together to a variety theater, where they remained until half past 2 o'clock, at which time they returned to the saloon, where they again met Payne, who had put up his "oyster outfit," and come back to the saloon before the others returned from the theater. They again engaged in drinking for a while, and were all more or less intoxicated, and finally went to a cheap lodging house adjoining the saloon, and went to bed; Payne paying for his bed, and Cox paying for his and that of Arquet. They all occupied the same room, but each had a separate bed. Arquet and Payne undressed, but Cox lay down without taking off his clothes, and, as it appears, soon fell asleep, as also did Arquet. After they had been in the room an hour or more, Payne got up, went to the head of the stairs, and called the night clerk, and asked him where he could get a drink. The clerk informed him that he thought the saloon next door was still open, whereupon he went back to his room, and proceeded to dress himself, after which he and Arquet, who awoke in the mean time, again repaired to the saloon, leaving Cox in bed, and the door unlocked, as it had been previously to their getting up. The clerk at the lodging house accompanied Payne and Arquet to the saloon, where he took a drink with them, and returned immediately to the lodging house. About this time a police officer came into the saloon and he and the other two men remained there until 6 or 7 o'clock in the morning, engaged in conversation and drinking, when Payne proposed to return to the lodging house, and go to bed, but, at the suggestion of Arquet, the three went to a restaurant, and took breakfast, for which Payne paid. During the night Payne, in paying for the drinks, gave the bartender a

$20 gold piece, from which the amount due for the drinks was deducted, and the balance returned. This, it appears, was after Payne came back from the lodging house. Cox did not awake until 8 or 9 o'clock in the morning, when, as he testified, he found that his pocketbook, containing a $20 gold piece and some smaller coins, nad been stolen. He met Payne about 11 o'clock, and informed him that his money had been stolen, but did not accuse him of the theft. As before stated, the door of the bedroom was not locked at any time while it was occupied by Cox or by him and the other two men. At what time during the night or morning the money was supposed to have been taken is not shown, but Cox, testified he had it in his pocketbook when he went to bed. There is no evidence showing that Payne ever had Cox's pocketbook, and the circumstance of his having a $20 piece not shown to have been different in appearance from any other such coin is the principal inculpatory evidence against him. It is not shown that he had no money before he met Cox, or at the time he went to the lodging house. In fact the evidence is uncontradicted that he had been spending money before that time, and that he paid for his bed before retiring. He denied having taken any money from Cox, and stated that he got the $20 coin which was changed by the barkeeper and another $20 piece, together with some silver dollars, from a man by the name of Williams, for whom he had been at work. And Williams, being sworn as a witness, testified that at the time Payne left Anacortes he paid him $46, consisting of two $20 pieces and $6 in silver, and that on the previous evening he gave him $6 in silver. If it was incumbent upon the appellant to explain his possession of the $20, which is not shown ever to have been the property of Cox, we think his explanation was a reasonable one. But until the coin had been identified as the property of Cox its possession called for no explanation whatever. It is the possession of property shown to have been stolen that raises a presumption of guilt on the part of the possessor, not the possession of like property merely, and such presumption is destroyed whenever a reasonable explanation is given, and is not shown to be untrue. No man ought to be convicted of a crime upon mere suspicion, or because he may have had an opportunity to commit it, or even because of bad character; and where circumstances are relied on for a conviction they ought to be of such a character as to negative every reasonable hypothesis except that of the defendant's guilt. And a new trial should be granted where a conviction is had on evidence not connecting the de fendant with the crime beyond a reasonable doubt. Williams v. State, (Ga.) 11 S. E. Rep. 859. While we are loth to disturb the verdict of a jury on the ground of insuffiv.34P.no.3-21

ciency of the evidence to justify the verdict, yet where the evidence, as disclosed by the record, is palpably insufficient to warrant the verdict, as we deem it to be in this case, it is our duty to say so, and to award a new trial. There was no error in excluding the testimony of Arquet as to alleged threats made by Nutter against him, similar to those alleged to have been made by him against the appellant, and by reason of which the so-called "confession" was claimed to have been made. For the errors indicated the judgment is reversed, and the cause remanded for a new trial.

SCOTT and STILES, JJ., concur.. DUNBAR, C. J., concurs in the result.

(99 Cal. 636)

SECURITY LOAN & TRUST CO. v. WILLAMETTE STEAM MILLS LUMBERING & MANUF'G CO. et al. (No. 14,903.) (Supreme Court of California. Oct. 7, 1893.) TRADE FIXTURES-WHAT CONSTITUTE-ACTION FOR REMOVAL-EVIDENCE.

1. An owner of land leased it for, and it was used by the lessee as, a lumber yard. By the terms of the lease, part of the land was reserved for use in common by the lessor and lessee. By consent of the former, the latter erected on the reserved part a frame building, used as the lumber office, and as a place for some of the workmen to sleep. The lessee, to give access to the office, also built some bridges of stringers, with plank nailed thereto. Held, that such building and bridges were "trade fixtures," within the meaning of Civil Code, § 1019, which provides that a tenant may remove from the demised premises, during his term, anything affixed thereto for purposes of trade, etc.

2. In an action by the grantee of the lessor against the lessee for damages for removing such building and bridges during the term of the lease, it appeared that, during such term, defendant for a time held the legal title to the premises, but reconveyed them to the lessor and another. Held, that defendant might show that its deed was in fact a mortgage to secure it for money advanced to the lessor's grantor in payment for the premises at the lessor's request, that it never owned the fee, and that it paid rent during the entire term, since defendant's possession under the lease was sufficient to put the lessor's grantee on inquiry as to the real nature of the transaction.

Department 2. Appeal from superior court, Los Angeles county; William P. Wade, Judge.

Action by the Security Loan & Trust Company against the Willamette Steam Mills Lumbering & Manufacturing Company and others to recover damages for entry on plaintiff's land, and forcibly removing therefrom and converting to their own use a certain building and bridges. From a judgment for plaintiff against defendant company only, and from an order denying a motion for a new trial, such defendant appeals. Reversed.

Sheldon Borden, for appellant. Geo. E. Harpham and R. H. Knight, for respondent.

FITZGERALD, J. This is an action brought by plaintiff to recover damages alleged to have been sustained by the entry of defendants upon its lot, and forcibly removing therefrom, against its will, and wrongfully converting to their own use, a certain house, foundations, and bridges, which it is alleged were erected thereon, and attached to the freehold. Defendants in their answer admit the removal of the property from the plaintiff's lot, but aver their right to do so on the ground that they were trade fixtures erected by the defendant corporation during its occupancy of the premises as tenants under a lease from plaintiff's grantor, and that such removal was made before the termination of its tenancy thereunder. The case was tried by the court without a jury, and, upon the issues thus joined, judgment was rendered in favor of plaintiff and against the defendant corporation alone, from which judgment, and the order denying its motion for a new trial, it prosecutes this appeal.

The facts are as follows: On April 1, 1884, Jothan Bixby, then owner of the premises in question, entered into a contract in writing to sell and convey the same to Frank L. Stearns for $6,000, payable on or before April 1, 1887., Stearns entered into possession of the premises under this contract, which was never recorded, and on May 6, 1885, he executed to J. A. Russ a lease of the portion in dispute, for a lumber yard, for the term of five years from June 1, 1885. The lease contained a provision "that the balance of the land from Chavez street shall be used in common," and it was upon this latter portion of the premises that the house referred to was situated. The lease was duly acknowledged and recorded January 11, 1887, and on February 25, 1889, it was assigned by Russ to his principal, the defendant corporation, for whom it appears he acted as agent in the execution thereof. That in October, 1885, the building was erected, upon the suggestion of the lessor, by the defendant corporation, on that part of the premises reserved in the lease for the common use of the parties for office purposes, and was used by it as such in its business as a lumber dealer, for the sale of lumber and the transaction of its business in connection with its yard, and not otherwise, and that the said bridges were built to give access thereto. On the contract of sale from Bixby, to Stearns of the premises in question are the following indorsements: "Deed made to J. A. Russ at request of Stearns for within-described property. Deed dated March 6, 87, and delivered April 1. 1887." This deed was recorded April 2, 1887. On March 3, 1888, Russ conveyed the premises to the defendant corporation. On April 20, 1888, the defendant corporation conveyed the premises to George L. and Frank L. Stearns. On January 6, 1890,

George L. Stearns & Co. conveyed the premises to Frank L. Stearns and Mrs. Snyder, and on March 1, 1890, George L. and Frank L. Stearns, Mrs. E. M. Snyder, and the Stearns Manufacturing Company conveyed the same to plaintiff. That the defendant corporation was in the actual possession of the premises as tenant from the commencement of the lease up to the time of the removal of said property, and that it paid the rent therefor, according to the terms of the lease, up to June 1, 1890. That in 1887 it paid upon the lessor's demand an additional rent of $50 per month for the use of all that part of the land reserved by the terms of the lease to be used in common, and upon which the said building was erected, which rent was paid up to the date of the expiration of the lease, and that the property in controversy was removed by it therefrom prior to that time, and that during the whole of the term of the lease the defendant corporation was in the open, notorious, and exclusive possession of the leased premises.

Upon the facts stated, the important question arises whether the building and bridges were erected by the defendant for the purposes of trade, and were so used, or intended to be used, by it in connection with, and as accessory to, carrying on its business as a lumber dealer on the demised premises. If so, then they were "trade fixtures," within the meaning of section 1019 of the Civil Code,' and as such were removable by the tenant from the leased premises at any time during the continuance of its term, unless they were so physically annexed to the freehold that their removal could not be effected without injury to the premises, or that they, by the manner in which they were affixed, had become an integral part thereof. It is expressly stated in the lease that the premises were leased as a lumber yard, and the evidence shows that they were used as such during the term for which they were leased, and that the building was erected on that part of the land reserved by the terms of the lease to be used in common, with the knowledge and consent of the lessor, as an office for the purpose of carrying on its business as a lumber dealer; that the bridges were built to give access to the premises, and that they were so used from their erection up to the time of their removal. As to the character of the building and bridges, and the manner and purpose of their erection, Stearns, the original lessor and plaintiff's grantor, testified on behalf of plaintiff as follows: "The character of the building was one and

1 Section 1019 provides as follows: "A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises."