Sacramento daily record-union., 1890-09-12
POINTS FOR LAWYERS.
THE SUPREME COURT DECIDES A FEW
KNOTTY ONES.
Extra Duties May be Required of City
Justices-A Plumas Water ApPro-
priation EDjoined.


The following Supreme Court opinion was
filed Wedndesay in the office of the Clerk OF the
Supreme Court in this city
Hewlett (respondent) VS.. Pitcher ct al. This
is a Calaveras county case in when acti9n was
brought by the respondent to foreclose MS mort
gage and Pitcher and Watson were made par
ties defendant. Judgment was rendered 10 tne
plajntiff foreclosing the mortgage, and the de-
fendant Watson appeals from the Judgment
and the order denying him new trial The
Judgment and order are affirmed.
TULARE CASE.
]. Goldman iappellant) VS.. Mary J. Rogers.
This is Tulare case, ana an action Drought py
plaintiff to recover possession OF Two iots IA
Tulare the complaint being in the ordinary
form in eiectment. When the case came on Tor
trial special issues were framed ana suemltIeq
TO a Jury, and verdict was returned IN favor OF
the deie ndant. The Court then mace 1urtner
findings and gave judgment for the defendant,
from which the plaintiff appeals on the Iudg-
ment roll.
Judgment is affirmed.
RIGHTS OF JUSTICES.
The People (respondent) VS.. T. p Ward-a
golsno county case. The defendant was in-
dicted for, and convicted Of, misconduct in his
office of Justice of the Peace, and Judgment was
rendered removing him from office for eau es
stated in the Judgment. He appealed from the
Judgment and an order denying him new
trial. The Supreme Court, among other things,
says; ,,or 1rst,oo 80 .ho poaoo
ct Vacayille township, Solano county, for many
years. and the evidence shows him to have been
man of exceptionally g0od character, for
truth, honesty and integrity. This case arises
out of the prosecution of one Dayton q. True
for the alleged petty ofense OF stealing IS from
one F. C. Chapman, and from certain supposed
conflict of jurisdiction and somewhat unpleas-
ant feeling between the Justices of the Peace OF
said township and a Justice OF the township OF
Suisun And leaving out of view for the pres
ent questions about the slficiency of the indiet-
ment we think the jury were err0neously mis-
led to the prejudice of the defendant by the in
struc ions of the Court on the power of the Dis
trict Attorney in criminal prosecutions. We
think the indictment insufficient and the Judg-
ment and order are reversed with directions 10
the Superior Court to sustain the demurrer to
the accusation
THE JURY GUESSED IT RIGHTLY.
Wilson ct al (respondents) VS.. Morton ct al.
Plaintiffs alleged that defendants agreed to pay
them fifty cents an acre for oil lands in Kern
county which they should examine and advise
defendants to purchase, and which should az
terwards be purchased by defendants; that in
pursuance of the agreement they examined
1920 acres of land and advised defendants to
purchase the same, and all of the said lands
were afterward sold by the defendants, whereby
defendants became indebted to plaintiffs in the
sum of 5000. The jury returned verdict in
favor of plaintiffs for $500. Judgment was
rendered for that amount. \ motion for new
trial was denied. and defendants appealed.
Inc lQQBUiGHt duu Olu6I dlc 4s1ACu JuISc
Patterson ,dissents from the opinion.
A JUDGMENT REVERSED.
Alb. Preston (respondent) VS.. Caroline Knapp,
executrix, etc. This was an action to recover
S493 81. There was judgment for the plaintiff
and an appeal was taken: The Supreme Court
reverses the judgment and grants new trial.
WATER APPRoPRIAToRs RESTRAINED.
McLear (respondent) vs. Hapgood ct ais. This
is Plumas county case, and suit to restrain
defendants from diverting the water of q Ger
tain stream. The trial Court gave judgment for
the plaintiff and the defendant appeals. The
Judgment is affirmed.
EXTRA WORK FOR JUSTICES.
Millner (appellant VS.. Reibenstein e. al. An
application was made to the Superior Court OF
San Joaquin county for writ Of mandate re-
quiring the defendants, the Mayor and Clerk
andController OF the city of Stockton, to issue q
warrant upon the Treasury of that city in favor
of the plaintiff who is City Justice of the Peace
in said city for the sum of 500 as his salary as
Judge Of the M Municipal Court Tor the month OF
December, 1882 Upon hearing OF the case
the Court denied the writ and entered judg-
ment for defendants, from which plaintiff ap-
peals.
is whether or not the plaintiff, who is regularly
drawing and receiving his salary of &, 900 per
annum as City Justice of the Peace, is entitled
TO draw and receive an additional salary of
81 200 per annum as Judge Of the Municipal
Court Until the code is amended the City
Justice of the Peace will be entitled to receive
the Salaiy Oh per year dQu Will uOL De ell
titled to receive other or more by reason of any
added duties that may be imposed upon his
Office"
Chief Justice Beatty dissents. saying: "If this
decision, filed August 4th, is to stand, the judg
ment in this case must be affirmed, for, under
the doctrine there announced, all the pr0vis-
ions of the present charter of Stockton relating
to its Municipal Court are null and void. But,
If the validity of those provisions is assumed,
cannot see how the conclusion can be avoided
that the plaintiff is entitled to the eompensa-
ton provided in the charter. 1t is not increas-
ing his salary as City Justice TO pay him the
salary of another office, the duties OF which are
cast upon him by new appointment.
wITNESsEs' OPINION.
Some time ago a Chinaman named All Own
was convicted in the Superior Court of this
county on a charge of conducting tan game,
and appealed the case to the. Supreme Court.
Wednesday decision was filed in the Supreme
Court Clerks Office here, reversing the judg-
nent and remanding the case for q new trial.
In its review of the circumstances concerning
the trial. the Court takes occasion to remark
that, under the information, it was incumbent
on the prosecution to prove that the defendant
played, carried on, etc., game OF tan The wit
ness, however (the arresting ofhcer), admitted
that he did not see the defendant do anything,
but found him occupying the position, at a
gaming table, OF the banker, the supposed play
ers having all fed.
During the trial the witness gave descrip-
ton of the room; OF the persons in 1t, the sur
roundings, the instruments for playing the
"Could you tell from the position at the table
whether he was the man who received and paid
out the money!
Counsel for defendant objected, as involving
an inference OF witness, but the Court over
ruled the objection, defendant excepted and
witness answered: "Yes, he occupied the posi-
tion OF the man that paid the money"
The District Attorney asked if witness had
seen man in the position occupied by the
banker would he say that the man was a
banker if he did not see the devices used in the
game?
Counsel for defendant objected. The objec-
ton was oyerruled, defendant excepted and
witness answered NO"
The Supreme Court concludes its opinion as
follows: 1T is clear that the Court, by over
ruling the objection TO these two questions, ad
mitted evidence of the opinion of witness upon
facts that were before the jury, and upon which
the Jury was as competent as the witness 70
form an opinion, and a jury should not be in
fluenced by the opinion of any one not more
competent to form one than themselves As a
general rule, the opinion of witnesses is not ad-