The herald., 1895-09-07
THE COURT OF LAST RESORT
Four Supreme Court Opinions
Received for Filing
TWO SAN DIEGO LAND CASES
The Opinion In the Wong Hane Iiabeas
Corpus Case
Final Decision In the Tuffree Suit to Quiet
Title to Land In the Abel
Stearns Grant
TWO SAN DIEGO LAND CASES

Four supreme court opinions were re.
ceived at the Office Of the clerk in this
city yesterday for filing.
In the case of Maria A. Scott, appel
ant, VS.. A. G. Rhodes ct al, respondents,
the judgment and order OF the lower
court appealed from was affirmed. The
opinion is written by Commissioner
Vanclief. concurred in by Commission
er 'SeaIles and Belcher, and affirmed by
Justices Harrison, Garoutte and Vanfleet.
This IS an action of ejectment to recov-
er possession of the north half of a tract
OF land situated in San Diego county,
described in the complaint by the name
"Rancno Buena VISTA" and not other
wise. The complaint is in the most gen.
ship and possession, and that defendants
elected her therefrom and withhold from
her possession thereof. The defendants
denied plaintiffs s ownership or that they
ever elected her the-efrem. The cause
was tried by the court without o jury,
and the court found that plaintiff was the
owner and entitled to possession of the
land, but further found that neither of
tho defendants ever entered upon or eject
ed the said plaintiff from the said land,
and, as conclusion of law, found THAT
the plaintiff shoul1 take nothing by this
action, and that the defendants are en-
titled to judgment against the plaintiffs
for their costs,'' and rendered judgment
accordingly. The plaintiff appealed from
the Judgment, and from an order deny
81. TO- frsa al
/ In the case of Ysidora B. de Couts. ap.
pellant, VS.. James Lafkin, ct al, re-
spondents. an action to recover possess
sion of land situate in the county of Sah
Diego and described as 1.-THE south half
of Rancho Buena VISTA" the facts are in
every respect identical with that of Scott
vs.. Rhodes, and upon the authority of
that decision the judgment and order ap-
pealed from are affirm ed.
The opinion in the matter of the appli-
cation of Wong Hane for a writ of ha-
beas corpus, heard in bank, was sent
down for examination by attorneys.
This is the case Of the Chinaman con-
victed OF having lottery tickets in his
possession, thereby violating municipal
ordinance, the main points of which were
T.
Thursday morning. After reciting the
ordinance under which the conviction
was had the opinion says: The effect
of this ordinance IS to make proof OF the
mere possession of a lottery ticket mis-
demeanor and to place upon the defend
ant the burden of showing that his pos
session was lawful or innocent. The mere
possession of a lottery tioket does not,
however, necessarily involve the posses.
sor in a crime. The ticket may be in pos
session of the court, or of one of its Off
GERS, to be used as evidence upon the trial
of one charged with selling it. 1t may
be in. ..possessiongof one who purchased it
in a country which recognizes the right
to traffic in lottery tickets and who is
merely passing through the city. The
penal code of this state does not make tho
purchase of a lottery ticket an offense,
the provision of tnat code being directed
against the selling of such tickets. By the
very tcrms of the ordinance under con-
sideration it is assumed that the possess
zion o.. the ticket may be lawful and in
nocent, and that in such case the possess
sor is not guilty of violation of the ordi-
nance. The ordinance, however, throws
upon the defendant the burden of PROV
ing his innocence, and bv its terms, un-
less he shows that his possession is law
full and innocent his mere possession OF
tn tickets renders him liable to punish
ment. If there are any circumst stances un
der which the3posessicn Of a lottery tick
ct may be lawful and innocent a defend
ant who is charged with the offense of hav-
ing such ticket In his possession is en-
titled to the presumption of innocence
and cannot be compelled to tablish his
innocence by affi NATIVE proof. To the
extent that the defendant is required to
establish his innocence the provisions of
the ordinance violate his constitutional
rights. AS we can consider
+hs ord;nanca only in tha forr, -; ,,h;I
it has been enacted we must hold that it
did not authorize the arrest of the petit
TONER. The petitioner is therefore dis
charged" The opIoion is written by JUS
tice Harrison, concurred in by Justices
Garroute, Mcfarland. Henshaw, Van
feet and Temple.
In the case of j. X. Tuffree and Caro-
line B. Tuffree VS.. C. B. Polhemus ct al,
the judgment of the lower court is par
tiallv affirmed. This was an action
brought to quiet title to tract of $40
acres of land. The complaint alleged
that Mrs. Tuffree had been in continuous
and peaceable possession of the land for
over fifteen years. The answer den led
this allegation and alleged that by a
tripartite lndenture executed in 1868 be-
tween Abel Stesrns and wife of the frs t
part, Alfred Robinson of the second part
and Sam Brannan, E. +. Northam. C. B.
Polhemus, Edward Martin and Abel
Eteains of the third part, Stearns and
wife conveyed to Robinson lands includ-
ing the GAO acres involved. The lands
conveyed were Mexicn grants including
400, 600 acres. Robinson was given the
deed in trust to sell and convey in such
quantities as he saw tit with the con-
sentsof the parties of the third part. The
lower court found that the parties of the
third part verbally agreed that each
should make a selection of a section of
land to be owned by the parties selecting
m severalty. the object being to demon.
strate by cultivation the productiveness
0f the soil. Polhemus maze his selection
and then verbally gave the land to his
daughter, Mrs. Tuffree. She and her hus-