The record-union., 1899-01-22
SUPREME COURT DECISIONS.
sYLLAB1.

SUPREME COURT DECISIONS.
SYLLABI.
Is. F., No. 112O = In Bank-FHed
January 13, 1S99.)
Annie O'Donnell, petitioner; Charles
w. Slack, Superior Judge. Certiorari.
Order annulled.
The body of one whose estate is in
probate forms no part of the property
of the estate 1t belongs, by a right
well defined and universally recog-
Inized, to- the next of kin for interment..
In the absence Of an express provision
in the will, the court has no right to
award the body to stranger to the
blood of the decedent, to the exclusion
OF the next of kin.
Grim, No. 426 - Department One
Filed January 13, 1899
People, respondent. James H. Cum
mings, appellant Obtaining promiss-
sorry note by false representations. Af-
firmed.
The rule of caveat emptor affords no
defense against criminal charge. The
guilt of the accused does not depend
upon the degree of folly or credulity Of
the person defrauded.
The note was delivered by the prose-
cutting witnesses. to the defendant in
4 San Francisco. Held, that as the de-
PENDANTS alleged false representations
had final effect and the offense became
complete in San Francisco, the venue
was properly laid in that city.
Grim, No. 465 = Department One
! Filed January 1S, 1897
People, respondent; T. F. A. Skid
more, appellant. Prosecution under
Section 532, Penal Code Affirmed
| Carelessness of the defrauded party
lis not a material element in Grim
tina1 prosecution. The guilty party is
prosecuted in the interest of the people
of the State, not in the interest of the
party defrauded.
There is no merit in the contention
that a pronlissory note<is not property
within the meaning of Section 532 of
the Penal Code See People VS.. Reed.
70 Cal, 529.
Grim, No. 476 = Department One
Filed January 13, 1S99)
People, appellant; Byron Walbridge
and Frank Shaw, respondents. Rob-
berry. Order sustaining demurrer to
Information reversed.
| If money was taken from the person
of the prosecuting witness it must be
presumed that it was in his possession
at the time it was taken The allega-
ton in the information that it was
taken from his person renders the allie
Iga1ion as to possession in him unneces-
sary-
(No. 16,O0s- Department Two-Filed
January 13, 1S999
Lee Sam, appellant; Hume Packing
Company ct al, respondents. Con-
| tract. Affirmed
Where the findings of the court be-
low are supported by the evidence they
will not be disturbed on appeal
Is. F., No. 792-Department Two
Filed January 13. 1899
Frank Clark, respondent; Sanford
Bennett. receiver of San Francisco and
San Mateo Railway Company, appel
liant. Damages for personal injuries.
Affirmed.
In order to find the injured party
guilty of contributory negligence, all
the facts must plainly and inevitably
point to such negligence, leaving no
room for argument or doubt. See Bailey
VS.. Market Street Railway Company,
ITO Cal. 32S. It cannot be said that
a person is guilty of contributory negl-
genee merely because he attempts to
cross a street railway when a car is
approaching The question of negh-
gence depends upon the proximity or
lremoteness of the car and upon all the
other circumstances surrounding the
occurrence. In such a situation the
1trayeler cannot be held to exercise the
livery highest prudence and judgment;
it is sufficient if he exercises that de-
gree of care and prudence and good
sense which men who possess those
luualities in an ordinary or average de-
/ gree exercise.
The street car has, and from the
necessities OF the case must have,
fright Of way upon that portion of the
lstraet upon which alone it can travel,
1 and which it cannot leave, paramount
Ito that of persons in ordinary vehicles.
This superior right, however, is not ex-
elusive and does not prevent Others
lfrom driving or passing across or along
it's tracks at any place or time when
by so doing It will materially inter-
lfere with the progress of its ears In
other words the better right is not the
exclusive right, ana can oniy pe Ell
forced against those who needlessly
Impose obstacles to its force and unre-
Istricted exercise
LIS. f.. No. 1872 - In Bank Filed JAM
uary 16, 1S99.)
Stuparich Manufacturing Company,
petitioner; Superior Court OF San
francisco ct al, respondents. Profi-
1bition. Writ granted.
A person in possession of personal
property under claim of ownership
cannot be summarily deprived thereof
by an order of court based upon the
affidavits of an adverse claimant, but
he has the right to have his title deter-
mined in an appropriate action by the
verdict of a jury Or the findings OF 2,
icourt upon issues framed for that pur-
pose. !
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