had departed on her regular voyage, and would not return for several weeks; and that no other steamer, belonging to the same company, would depart for fifteen days. The agents of the ship refused to receive her till a ship should be ready to leave for China. There was no other ship of any line that would depart for several days. The marshal, upon this state of facts, confined the petitioner in the county jail for safe keeping, until he could execute the order, and, thereupon, she makes this application to be admitted to bail, pending the delay thus necessarily, and unavoidably, occurring. A final order remanding the petitioner having been made, and she, being in custody for the purpose of executing the order, and there being no appeal, the circuit justice is of the opinion that the court has no further jurisdiction, or power, to admit her to bail; and, that, she must continue in the custody of the marshal till the order remanding her can be fully executed. From this ruling, I am compelled to dissent.

When the body of a petitioner is produced in court, on the return to a writ of habeas corpus, the petitioner is in the control of the court. Pending the proceeding to determine her rights, the court can, temporarily and provisionally, commit the petitioner to the party detaining her, if deemed safe and proper to do so; or may commit her to the custody of the marshal, or may admit her to bail. In either case she is in the custody of the law. When an order to remand has been made, and the petitioner placed in the custody of the marshal for the purpose of executing the order to remand, she is still in the custody of the law, and under the control of the court, till the order to remand has been finally executed. The marshal is but the executive arm of the court, and, while the petitioner is still in his custody, by reason of the order to remand not having been fully carried out, both she and the marshal are under the control of the court, and the court, in my judgment, has jurisdiction and authority to admit to bail during any further necessary detention, or any unavoidable delay which prevents an immediate execution of the order to remand. In my judgment, the admission to bail under such circumstances, and for such purposes would not, in contemplation of law, be a landing of the petitioner contrary to the provisions of the Chinese restriction act. As was said in the case of Ah Kee, recently decided, while provisionally taken into the custody of the court, and temporarily removed from the ship, in order that she may not be carried away pending the proceedings to determine the legality of her detention, in contemplation of law, she has not been landed. This being so, she cannot be deemed to have been landed till the court has divested itself of its custody and control of her person, by either discharging her altogether, or fully executing the order to remand her. She is still in the custody and control of the law while lawfully on bail. I therefore dissent from the order denying bail.

Conceding the power of the court to admit the applicant to bail, under the circumstances stated, I think it would be a great

hardship, not to say a gross violation of her personal rights, to refuse it upon security satisfactory to the court. I think she should be admitted to bail. But the statute expressly provides in case of an opposition of opinion between the judges, that a judgment or order shall be made in accordance with the views of the presiding judge. The opinion of the presiding justice must, therefore, prevail till the question shall be finally decided by the supreme court on the certificate of opposition of opinion certified to it by the disagreeing judges for that purpose.

IMPEACHMENT OF WITNESS-CONVICTION, HOW PROVED.-Under section 2,051 of the code of civil procedure, a witness may be impeached by asking him if he has been convicted of a felony. The conviction of a misdemeanor, however, must be proved by the record of conviction.

APPEAL from a judgment of the superior court for the city and county of San Francisco, and from an order denying the defendant a new trial. The opinion states the facts.

John D. Whaley, for the appellant.

Attorney Generul, for the respondent.

MCKEE, J. When the defendant was under cross-examination, as a witness in his own behalf, the district attorney asked him this question: "On the third of May, 1882, was a judgment pronounced against you in the police judges' court of the city and county of San Francisco for the crime of petit larceny, under the name of L. Smith?" Defendant's counsel objected to the question upon several grounds, and among others on the ground that it calls for secondary evidence. The objections were overruled, and the defendant excepted.

By section 2,051, C. C. P., it is allowable to impeach a witness by asking him if he has been convicted of a felony, or the fact may be proved by producing the record of conviction. Proof of such a fact, by oral testimony of the witness, is, however, an exception to the general rule, as it existed before the code. Under that rule the only admissible evidence of the former conviction of a witness of felony was the record of conviction. And the rule is yet applicable to the proof of conviction of an offence other than felony, for the code, which has made an exception to the rule in convictions of felony, declares that a witness cannot be impeached by evidence of particular wrongful acts; these do not fall within the exception, therefore the fact of a former conviction of misdemeanor cannot be

No. 41-3.

proved by the examination of the witness. The record of conviction of misdemeanor is the best evidence of the fact, and it is indispensable: Section 1,863, C. C. P., People vs. Reinhart and People vs. McDonald, 39 Cal., 449, 697.

Judgment reversed and cause remanded for a new trial.
Ross, J., and MCKINSTRY, J., concurred.

No. 9,559.

PEOPLE EX REL. HOY v. ALVORD ET AL.

In Bank. Filed September 30, 1884.

THE POLICE COMMISSIONERS OF THE CITY AND COUNTY OF SAN FRANCISCO are not elective officers.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendants.

Attorney General and John J. Coffey, for the appellant.

Alfred Clarke, for the respondents.

THE COURT. In Staude v. Election Commissioners (10 P. C. L. J., 29) it was held that the police commissioners of the city and county of San Francisco were not elective officers. Upon the authority of that case the judgment in this must be affirmed. It is so ordered.

No. 8,030.

BLAND v. SOUTHERN PACIFIC RAILROAD COMPANY.

Department One. Filed September 30, 1884.

EXPULSION OF PASSENGER FROM CAR-CONFLICT OF EVIDENCE-VERDICT.-As to the fact whether the plaintiff was rightfully expelled from the train of the defendant without unnecessary force, and at a proper place, held that the evidence was conflicting, and that a verdict founded thereon should not be disturbed.

EFFECT OF INJURY EVIDENCE OF BY NON-MEDICAL EXPERT.-A person, not a medical expert, who has been injured through the negligence of a railroad, may testify as to the consequences of the injuries received, as for example that he had lost a leg, with reference to the construction of an artificial leg used by him, and as to the effect upon the stump of a blow or jar. He may also state the consequences immediately following the injury upon other organs of his body.

EXPULSION OF PASSENGER-DUTY OF EXPELLED PASSENGER-CARE AND CAUTION REQUIRED OF.-A passenger expelled from a railroad car is not required to use the utmost care and caution to avoid injury. It is sufficient if he uses such prudent care as is reasonable under the circumstances. Whether it was prudent for a passenger, after his expulsion from a car, during which he received an injury, to walk to a place other than the nearest dwelling house, is a question for the jury. Under section 487 of the civil code the passenger expelled is under no duty to go to the nearest dwelling house.

APPEAL from a judgment of the superior court for Santa Clara county, entered in favor of the plaintiff, and from an order denying the defendant a new trial. The opinion states the facts.

McKissick & Rankin, and Moore, Laine & Johnson, for the appel

lant.

D. M. Delmas, for the respondent.

THE COURT. 1. The first point made by appellant is that the verdict is contrary to the evidence, for the reason that plaintiff was rightfully expelled from the train of defendant, without unnecessary force, and at a proper place.

Appellant contends that evidence proved that the conductor of the train offered to return, and did return, to plaintiff the two dollars paid as and for his fare, before he ejected plaintiff from the car.

The plaintiff testified: "When we got to the platform he put his hand in his pocket and handed me the two dollars, holding me all the time with the other hand. As he gave me the money he shoved me off. The conductor did not return, or offer to return, the two dollars I had paid him, or any portion of it, until he had thus shoved me off." The fare claimed by the conductor was two dollars and twenty cents. There was at least a substantial conflict in the evidence as to the point whether the two dollars, handed by plaintiff to the conductor, were or were not returned before the latter commenced to remove the plaintiff, or stopped the train. The evidence is very different from such as it appeared in the record when the case was here before: Bland vs. S. P. R. R. Co., 55 Cal., 570. We cannot say the verdict, so far as it is based on the question of fact above considered, should have been set aside.

2. Appellant contends the Court below erred in permitting plaintiff to testify, as an expert, to the consequences of the injuries by him sustained.

We can see no impropriety in permitting the plaintiff to testify that he had lost a leg, with reference to the construction of an artificial leg used by him, and as to the effect upon the stump of a blow or jar. The question was put to the witness: "Describe to the jury what effect this injury, this shock produced upon your general system, especially upon your nervous system, your head and spinal column?" This question was answered at length, but no objection was made to the question, nor did defendant move to strike out the answer. Subsequently, the witness was asked what effect "the accident" had upon particular organs. To this question the defendant objected as "irrelevant, immaterial and incompetent."

Of course, the mere fact the plaintiff discovered, that the organs in question had wasted away perceptibly six or eight months after "the accident," and that from thence the atrophy continued, would not necessarily prove that the decline was a consequence of plaintiff's expulsion from the car. In passing upon the admission of such evidence, the court must be careful not to be misled by the fallacy post hoc ergo propter hoc. But unless we can say that no immediately perceptible evil effects could have been produced upon the organs referred to in the question, we cannot say the objections to the question should have been sustained. There are consequences imme

diately following upon every bodily injury, palpable to the senses, and to which the non-expert is competent to testify.

3. No objection was made to the hypothetical question propounded to the medical experts by counsel for plaintiff.

4. Appellant contends that an instruction of the court, permitting the jury to consider the "voluntary walk" of plaintiff as an element of damage, was erroneous.

The question whether the walk to the station at Santa Clara was a prudent act for plaintiff, under the circumstances, was left to the jury. We think the statute (C. C., 487,) does not impose the absolute duty upon a passenger evicted from a car to go to the nearest dwelling-house, there to remain until he can be returned by carriage to his home, or to the station at which he entered the car. Whether the train was stopped "near" a dwelling-house, within the meaning of the code, was itself a matter of fact to be determined by the jury. The direction of section four hundred and eighty-seven of the code to conductors or managers of railroad trains imposes on them a positive duty, not upon the passenger removed. The very highest degree of care and caution is not required of the expelled traveler. It is sufficient if he uses such prudent care as is reasonable under the circumstances, and that matter was submitted to the jury.

The court stated to the jury that plaintiff claimed that concussion of the spine had been produced by his expulsion from the car, and the distance he "was required to walk." And the court said: "It is for you to determine from his evidence whether concussion of the spine has been suffered by plaintiff, and if so, whether it was in consequence of his removal from the car, and the walk which followed upon it, or some other precedent or subsequent cause," etc.

It is not urged by appellant that the jury were led to believe that, in the opinion of the court, it was a prudent and necessary thing for plaintiff to walk back to the station. It is not claimed that the court charged as to a matter of fact (in violation of the constitutional provision), but that the court should have held, as matter of law, that the walk was not necessary, and ought to have refused to charge that any injury, produced by the walk, could be considered in finding damages. We think, however, if a certain necessity to take the walk was imposed on plaintiff by his expulsion from the car-by which is not meant that the walk was indispensible, or the most prudent thing which plaintiff could have done, but that it was that which ordinary prudence and caution dictated as the better course to pursue, in order to avoid more inconvenience or discomfort-the walk became a direct consequence of the expulsion within the rule which allows damages for the direct consequences of any trespass. Judgment and order affirmed.