Los Angeles herald., 1892-09-06
A BILL OF EXCEPT oNs WAS MISSING.

the declarations OF the deceased.
HARRISON, j,
BILL OF EXCEPT oNs WAS MISSING.
An opinion affirming the judgment
and order of the superior court was also
received in the case of E. F. Spence,
trustee, respondent, vs. Jessup w.
Scott and II. 1. Kowalski, defendants.
IL was an appeal from a judgment of
foreclosure by one of the defendants,
and there was no bill of exceptions. APP
pellant filed an answer in which he set
up various defenses. 1t is claimed that
the court enormously struck out certain
portions of the answer, and this was the
only question he sought to present on
the appeal. The court finds that the
question cannot be presented without
bill of exceptions, and therefore affirms
the judgment.
IT rs UNCONSTITUTIONAL.
Justice Garoutte, in a long concurring
opin ion, says: "While concurring in
the opinion OF Mr.. Justice Paterson, /
deem some of the matters presented by
this appeal to be of such grave import
ance that further consideration of
them will not be labor lost. The case
OF the People vs.. Vernon, So CAL, 81, is
the leading case in this state upon the
question Of res gesta, and it was un-
doubtedly upon the authority Of that
case that the trial court admitted the
evidence of which appellant now COM
plains. Measured by the doctrine there
declared, the ruling. of the court in this
case was correct, but I think that de-
cislon rests upon no sound legal princi-
pie, and it should be expressly 80 de-
clared, in order that the case shall no
longer serve as shining light in the
hands of question, surrounded by
sea of doubt, for the sole purpose of
Leading nisi prius courts upon fatal
rocks of error"
The justice then proceeds to discuss
the proper Interpretation of res geste.
starting out by saying that they are
1.-THE facts OF the transaction, and that
criminal law writers all agree that dec
larations merely narrative of past oc-
currence cannot be received in evidence
as proof of the existence of such occur
renee, upon the principle of res gest@.
He holds that the Vernon case meets no
requirements of the law.
A number of cases are reviewed, the
justice holding that the tendency of the
later decisions of the courts has been to
restrict within narrow limits this species
OF testimony. The officers statement
in this case was narrative OF past
event, in no respect an automatic or
spontaneous incident of the shooting;
no part of the thing done, and should
not have been placed before the jury.
In discussing the denial of the court
OF a challenge for actual bias, Justice
Garoutte discusses at some length the
constitutionality of section Ito OF the
penal code, and concludes as follows:
"As was said in Eason vs.. the State, 6
Tenn, All, we are satisfied that the act
in question violates the constitution,
It follows that section ITO of the penal
defendant the right to take an excep-
ton to the ruling of the court upon the
trial of the issue OF actual bias OF
Juror, is unconstitution al and void.
Justice DeHaven concurs in the opin-
ion with Justice Garoutte.
HE GOT THE MONEY.
An opinion was also received affirm
ing the judgment and order in the case
of Rose, respondent, We. Foord, admin
istrator of Vail, appellant. In Novem-
ber, 1882, the plaintiff and defendants
intestate, N. R. Vail, made an agree
ment in writing by which Vail sold and
promised to deliver to plaintiff, 1880
shares OF stock in mining corporation
about to be formed in the state of New
York; the shares being one-half of the
number Vail claimed he would be en-
titled to on the completion of the incor-
poration. The purchase price, $4,000,
was paid by the plaintiff at the date of
contract. The corporation was formed,
but the issuance of the stock was en-
joined at the suit of third parties, and
the injunction has never been dissolved.
In March, 1883, Vail died, and plaintiff
presented demand to his administra-
tor for repayment of the $4,000, but it
was refused. The findings and iudg
ment OF the superior court, on suit for
the money, were in favor Of plaintiff.
The appellant contends that the superb
or court erred in finding that plaintiff
was purchaser OF stock to be issued,
claiming that he was really purchaser
of an interest in. the mine. But, ad-
mitting that the contract was as the
court found it, appellant still contends
that plaintiff mistook his cause of
action, and that it is barred by the
statute Of limitations. The court holds
against each contention and affirms the