SUPREME COURT OF CALIFORNIA.

VAN DAALEN v. CITY AND COUNTY OF SAN FRANCISCO. (No. 8,542.) Filed April 22, 1885.

VERDICT-EVIDENCE-JUDGMENT AFFIRMED.

Evidence held sufficient to justify the verdict; and, on authority of Reardon v. City and County of San Francisco, 6 PAC. REP. 317, judgment and order affirmed.

Department 2. Appeal from the superior court of the city and county of San Francisco.

Action to recover damages for injury caused in the course of grading a street and constructing a sewer therein. The facts and questions involved are the same as in Reardon v. City and County of San Francisco, 6 PAC. REP. 317.

John Lord Love, for appellant.

Leander Quint, for respondent.

BY THE COURT. The evidence was sufficient to justify the verdict. On the authority of Reardon v. City and County of San Francisco, 6 PAC. REP. 317, and for the reasons given in the opinion in that case, (opinion filed March 12, 1885,) the judgment and order are affirmed.

(66 Cal. 577)

MORGANSTERN V. THRIFT and others. (No. 8,493.)

Filed April 16, 1885.

1. Co-TENANCY-PartnerSHIP-POSSESSION.

As between several tenants in common, or several partners, either is entitled to the possession of the common or partnership property.

2. MINING PARTNERSHIP--POSSESSION-LIEN OF PARTNERS.

The lien of a mining partner does not entitle him to a right of possession or the partnership property, to the exclusion of the other partners, though the partnership has ceased. If the partner in possession claims to hold the partnership property against the other, the lien still exists in favor of the partner out of possession in the case specified in the statute. Civil Code, Cal. § 2514.

Department 2. Appeal from the superior court of the county of Calaveras.

Langhorne & Miller, for appellant.

Ira H. Reed, for respondent.

THORNTON, J. The findings 1, 2, 3, and 4 show that defendant Parsons was either a partner with the plaintiff in working the mine, and therefore owning an interest in the property sued for, or a tenant in common with plaintiff in such property. In either case, Parsons was as much entitled to the property sued for as the plaintiff. How, under these circumstances, there can be any contract of sale implied by law, we are unable to see. No facts are found from which a sale can be inferred or implied. No conversion of the property is v.6p,no.10-44

found. The only fact found is that Parsons and Thrift took possession of the property, which Parsons had a right to do, as he was as much entitled to the possession as the plaintiff. Plaintiff's rights are not enlarged because Parsons had Thrift with him and aiding him when he took possession.

The lien of a partner mentioned in section 2514, Civil Code, does not give to either partner a right of possession to the partnership property to the exclusion of the other from such possession. The lien has no connection with the possession. It exists independent of possession. If one partner is in actual possession of the property of the partnership, claiming to hold it against the other, the lien still exists in favor of the other partner out of possession in the case specified in the section above cited. Nor does it make any difference that the partnership has come to an end. One partner is as much entitled to the possession as the other. In any view we can take of the case, the plaintiff and Parsons are equally entitled to the possession.. As to defendant Thrift, conceding that plaintiff is entitled to the possession of his interest in the property of the partnership as against him, he cannot recover it either of Thrift or Parsons in an action for goods sold and delivered, as this is.

The judgment is reversed, and the cause remanded to the court below, with directions to enter judgment for defendants.

(66 Cal. 597)

PEOPLE v. MAYES.

(No. 20,036.)

Filed April 23, 1885.

1. VERDICT-INSUFFICIENCY OF EVIDENCE.

Where evidence is prima facie sufficient, the jury is to determine its weight, and a judgment in a criminal case will not, in such event, be reversed on the ground of its insufficiency to support the verdict.

2. RAPE EVIDENCE OF CONSUMMATION.

The consummation of the crime of rape may be proved by circumstances and surroundings.

3. SAME-INSTRUCTIONS.

In a prosecution for rape, the court, may instruct the jury that as the defendant was the brother-in-law of the prosecutrix, the jury might "consider the relation existing between the parties as tending to show, in some degree, that the prosecutrix had a right to trust herself to the defendant without fear of molestation or harm from him."

4. SAME EVIDENCE, SUFFICIENCY TO MAINTAIN CONVICTION.

The testimony of the prosecutrix alone, may be sufficient to sustain a conviction of rape.

5. SAME SILENCE OF PROSECUTRIX, EVIDENCE TO EXPLAIN.

Evidence is admissible, in a prosecution for rape, to show why prosecutrix did not make immediate complaint against the defendant, for the purpose of rebutting any unfavorable inference from her silence. And she will be permitted to testify as to the fact of the complaint, but not as to the particulars thereof. 6. SAME EVIDENCE OF ABSENCE OF DEFENDANT.

In a prosecution for rape, the absence of defendant, the fact that search was made for him, and that he had fled from his home, are admissible as tending to establish guilt.

In bank. Appeal from the superior court of Los Angeles county.
A. J. King, H. T. Gage, and Howard & Roberts, for appellant.
E. C. Marshall, Atty. Gen., for respondent.

MORRISON, C. J. The defendant was convicted of the crime of rape. The first ground on which the reversal of the judgment is sought, is that the evidence was insufficient to justify the verdict of the jury. The evidence was prima facie sufficient, and it was a question for the jury to determine how far the evidence was worthy of belief; therefore, on this point, we find nothing which would justify us in interfering with the verdict. The court did not err in instructing the jury that the consummation of the offense might be shown by circumstances and the surroundings. Neither was it error to tell the jury that "they had a right to consider the relation existing between the parties as tending, in some degree, to show that the prosecutrix had a right to trust herself to the defendant without fear of molestation or harm from him." If it was a circumstance of any importance in the case, we think the instruction of the court correct. Surely the prosecutrix had a greater right to repose confidence in the husband of her sister than in a stranger. We find no substantial error in that portion of the charge relating to resistance on the part of the prosecutrix. 2 Bish. Crim. Law, 1122; Whart. Amer. Crim. Law, 1141.

The charge on the question of drunkenness seems to us in accord with the law as laid down by the supreme court in several cases, and

was certainly as favorable to the defendant as the established doctrine on that subject would warrant. The court said to the jury:

"While it is the law that the testimony of the prosecutrix should be carefully scanned, still this does not mean that such evidence is never sufficient to convict. If you believe the prosecutrix, it is your duty to render a verdict accordingly."

The prosecutrix had testified to the existence of all the facts essential to the commission of the offense, and if what she swore to was true, there can be no doubt of the defendant's guilt. She was not impeached, and in cases of this character the prosecution must generally rely solely on the uncontradicted evidence of the prosecutrix, as, from the very nature of the offense, it frequently happens that there is no other witness. "The real facts in a case of rape are commonly known only to the defendant and the complaining woman. If she speaks the truth, no completely satisfactory confirmation of her testimony can often be had." 2 Bish. Crim. Proc. § 962. It was competent to show that search was made for the defendant at his home and that he had fled. It was also competent for the prosecution to show why the prosecutrx did not make immediate complaint against the defendant, for the purpose of rebutting any unfavorable inference that might otherwise have been drawn from her silence.

There is another question in this case, and that we deem the most serious one presented by the record, and that relates to the competency of certain evidence admitted by the court and excepted to by the defendant. The learned counsel for the people contends that no exception was made by the defendant, but we think it sufficiently appears by the transcript that exception was duly taken. The prosecutrix was allowed to state, on the direct examination, certain complaints made by her to her sister; shortly after the transaction complained of. She said:

"I told her [meaning her sister] that he was hiding in the bushes like a dog. I also told her that I was afraid, and asked her where I should go. She said, 'Stay here where you are. He will not hurt you where I am.'. When I was crying he said, Hush up your mouth and go to the house. Do you see this pistol? If you tell anybody this I will kill you.'”

The foregoing statements were admitted on the ground, as stated by the court below, that they constituted a part of the res gesta. We will examine a few of the authorities on the point. And, first, Mr. Greenleaf, in his work on Evidence, vol. 3, § 213, says:

"Though the prosecutrix may be asked whether she made complaint of the injury, and when and to whom, and the person to whom she complained is usually called to prove that fact, yet the particular facts which she stated are not admissible in evidence, except when elicited in cross-examination, or by way of confirming her testimony after it has been impeached. On the direct examination the practice has been merely to ask whether she made complaint that such an outrage had been perpetrated upon her, and to receive only a simple yes or no. Indeed, this complaint constitutes no part of the res gesta; it is only a fact corroborative of the testimony of the complainant."

The learned author here states that the complaint constitutes no part of the res gestæ. After a somewhat lengthy consideration of the subject, and an examination of the authorities, the learned author says:

"The true rule is to admit evidence of the fact of complaint in all cases, and in no case to admit anything more. The evidence, when restricted to this extent, is not hearsay, but in the strictest sense original evidence. When, however, these limits are exceeded, it becomes hearsay in a very objectionable form. There is every reason, therefore, why it should be admitted to the extent indicated, and none why it should be admitted further." Roscoe, Crim. Ev. 24.

Another distinguished author on criminal law says:

"It is the usual course in cases of rape to ask the prosecutrix whether she made any complaint, and if so, to whom; and if she mentions a person to whom she made complaint, to call such person to prove that fact; but it has been the invariable practice not to permit either the prosecutrix or the person so called, to state the particulars of the complaint in chief." 1 Russ. Cr. 688.

In the case of People v. McGee, 1 Denio, 19, the supreme court of New York say that "upon the trial of an indictment for rape the declarations of the injured female, made immediately after the alleged offense, are not admissible in evidence for the prosecution to prove the offense committed." To the same effect is the case of Stephen v. State, 11 Ga. 225; and the same doctrine is found in the work of Mr. Wharton on American Criminal Law, § 1150.

.

Many other authorities might be cited, but the foregoing will suffice to show the great weight of authority on this subject. It is true, there are cases the other way; but the text writers, both English and American, concur in these views on the question. We must therefore hold that it was error for the court to admit in evidence, on the examination in chief, the particulars of the complaint made by the prosecutrix to her sister, and for that error the judgment of the court below must be reversed.

As this case will probably be tried again, it is proper for us to call the attention of the court below to the instructions, particularly on the question of resistance, which has been severely criticised by counsel. It seems to us that the instruction in question might be made more certain, and less liable to criticism for uncertainty. Judgment and order reversed, and cause remanded for a new trial.

SHARPSTEIN, J. I concur.

MCKEE, J. I concur in the judgment.

MYRICK, J. I dissent from the judgment of reversal, and from the reasons given therefor.

THORNTON, J. I concur in the judgment, and in what is said in the opinion, with the exception of that portion of it which relates to