CORPORATIONS (Continued). 6. CALL BY BANK UPON UNPAID STOCK-LIABILITY OF TRUSTEE.—A trustee of stock, though his name appears on the books of a banking corporation as trustee for a person named, is liable, as the legal owner of the stock, for an assessment duly levied by such corporation upon the shares of its unpaid stock, for calls thereupon. (Union Savings Bank of San Jose v. Willard, 690.) 7. NAMING OF EQUITABLE OWNER NO DEFENSE CONTRACT RELATION. The fact that the equitable owner is named in the certificate of stock held by the trustee is no defense to an action to recover the call for unpaid stock against its legal holder. That fact does not bring the equitable owner into contract relation with the corporation, which relation is held only by the legal owner of its stock. (Id.) 8. STATUTORY LIABILITY OF STOCKHOLDERS-SUBSCRIPTION TO STOCKDISTINCTION. The statutory liability of stockholders to the credi tors of the corporation, provided for in section 322 of the Civil Code, has no application to, and is wholly distinct from, the liability of stockholders to the corporation upon unpaid subscriptions to stock, resting wholly upon contract of the stockholders with the corporation. (Id.) 9. SALE OF SALOON BUSINESS-AUTHORITY OF MANAGER ORAL CONTRACT POSSESSION-RECOVERY OF PRICE.-Where a corporation, in its ordinary business, was engaged in buying and selling saloons, and it appears, without conflict, that its president, as general manager, had authority to sell a saloon business, with its goodwill and license, and he made an oral contract of sale thereof, under which the purchaser took possession, the corporation is entitled to recover the purchase price agreed upon in such oral contract. (Freyberg v. Los Angeles Brewing Co., 403.) 10. BY-LAW AS TO WRITTEN CONTRACTS-POWER OF PRESIDENT AS MANAGER NOT RESTRICTED.-The power of the president of the corporation, as its general manager, to make an oral contract to sell a saloon business, was not restricted by a by-law directing the presi dent and secretary to execute written contracts that may be executed or issued by the corporation, except when otherwise directed by the board of directors. (Id.) 11. ORAL CONTRACT NOT INVALID UNDER STATUTE OF FRAUDS-DELIVERY.-The oral contract of sale of a saloon business and license for the price of $1,300, by the president of the corporation, was not invalid, under subdivision 4 of section 1624 of the Civil Code, where the buyer accepted the saloon license as part delivery, and afterward took possession of the saloon, which was acquiesced in by the corporation plaintiff. (Id.) See Criminal Law, 4-7; Landlord and Tenant, 13; Municipal COSTS. 1. Costs MADE INCIDENT TO JUDGMENT-DISCRETION OF COURT IN EQUITY-AWARD NOT REQUIRED IN FINDINGS.—In a suit in equity, the court bas the discretion to make its award of costs to the prevailing party as an incident to its judgment pronounced in open court; and it is not necessary that an award of costs should be incorporated in the findings or conclusions of law. (Hatton v. Gregg, 542.) 2. SERVING OF COST-BILL.—Where the record shows that a verified cost-bill was both filed and served upon the opposite party, the point that it is not sufficient to serve a mere copy of the verified memorandum filed is not presented for consideration. (Johnson v. Mulcahy, 547.) COUNTY. See Insane Persons. COURTS. See Justice's Court. CRIMINAL LAW. 1. EVIDENCE-TESTIMONY OF ACCOMPLICE-RULE AS TO CORROBORATION. In a prosecution for crime, a conviction cannot be had on the testi. mony of an accomplice, unless he is corroborated by other evidence which in itself, and without the aid of his testimony, tends to connect the defendant with the commission of the crime. The corroborating evidence need not be strong, but must be more than suffi cient to excite mere suspicion. (People v. Sciaroni, 698.) 2. INSUFFICIENT CORROBORATION-EVIDENCE CONSISTENT WITH INNO CENCE.—The corroboration is insufficient where every circumstance relied upon, exclusive of the testimony of the accomplice, is consistent with the innocence of the defendant, and compatible with the theory that the accomplice alone is guilty, or that he was assisted by parties other than the defendants. The corroborating evidence must be viewed in the light of the presumption of innocence. (Id.) 8. PROVINCE OF JURY-RULE OF CORROBORATION NOT INCLUDED—Rights OF CITIZEN.—The province of a jury to judge of the credibility of witnesses, and the weight of evidence, cannot be invoked against the rule of law that to justify a conviction there must be substantial corroboration of the testimony of an accomplice. That rule cannot be ignored without an invasion of the constitutional rights of the citizen. (Id.) 4. VIOLATION OF COUNTY ORDINANCE-REFUSAL OF WATER COMPANY TO DELIVER WATER-MISDEMEANOR—JURISDICTION.—Under a county ordinance, making it a misdemeanor for any person, company or corporation having water to sell, who shall refuse to deliver water to any person tendering therefor in advance for one day's supply, and punishing the same by a fine not exceeding two hundred dol. CRIMINAL LAW (Continued). lars or by imprisonment in the county jail not exceeding one hundred days, or by both such fine and imprisonment, the misdemeanor of a water company in so refusing to deliver water is within the jurisdiction of the justice court, as defined by law, and the superior court has no jurisdiction thereof. (People v. Palermo Land etc. Co., 717.) 5. LIMITS OF JURISDICTION OF SUPERIOR COURT OVER MISDEMEANORS.— The constitutional jurisdiction of the superior court over misdemeanors is limited to "cases of misdemeanor not otherwise provided for." and does not include any misdemeanors whose punishment is otherwise provided for by law. (Id.) 6. OFFENSE BY CORPORATION-MODE OF PROCEDURE JURISDICTION.— The fact that the offense under such ordinance is committed by a corporation engaged in the sale of water cannot affect the jurisdiction of the justice's court over the offense; nor can such jurisdiction be affected by the mode of procedure prescribed against corporations in sections 1392 to 1397 of the Penal Code. The means by which the defendant is brought within the jurisdiction of the court does not affect its right to try the defendant. (Id.) 7. MODE APPLICABLE TO JUSTICE'S AND POLICE COURTS.-Section 1427 of the Penal Code, as amended in 1905 (Stats. 1905, p. 706), furnishes a rule of procedure in case of a corporation charged with a misdemeanor triable in a justice's court or a police court. [By supreme court on petition for rehearing.] (Id.) 8. BURGLARY-EVIDENCE-TIME OF SALE OF FERRY TICKET-REFERENCE TO RECORD STRICKEN OUT.-Where the ferry ticket clerk testified that a ticket shown him, used by the defendant in going from San Francisco to Alameda county, where the burglary was committed, was sold by him after 7 o'clock in the evening, the burglary being discovered at half-past 5 o'clock the following morning, and evidence given by him upon cross-examination that he knew it from the record of the tickets, was stricken out on the ground that the record was not kept by him, such ruling left his evidence in other respects competent, there being nothing to show that he had testified from a record not made by himself, and the court properly overruled a motion to strike out the remainder of his evidence. (People v. Lowrie, 137.) 9. MOTION TO STRIKE OUT TESTIMONY-DISCRETION OF COURT.-In all cases where a motion is made to strike out testimony which was not objected to at the time, much discretion is necessarily vested in the trial court, and for a denial of such motion, reversal cannot be justified, unless there is a plain abuse of discretion in a material (Id.) matter. 10. RECORD OF TICKETS-PRESS COPIES OF REPORTS-REFRESHING MEMORY OF WITNESS.-Where the record of tickets sold was proved by CRIMINAL LAW (Continued). the person in charge thereof, and consisted of letter-press copies of the original reports of the numbers given by the seller of the tickets at the close of each day, the witness to the sale of the tickets may refresh his memory by the duplicate entries so proved, in testifying to tickets sold. (Id.) 11. LARCENY-POSSESSION OF STOLEN PROPERTY.-Where the defendant was charged with burglary with intent to commit larceny, the possession by the defendant of property stolen from the building entered, unexplained, is a potent circumstance tending to show guilt, and where there was evidence tending to show that the works of two watches found in a suit case in defendant's room were part of the property stolen by the party who committed the burglary, and the defendant made no attempt to explain the circumstances, testimony as to the finding of such works was admissible. (Id.) 12. REJECTION OF EVIDENCE-FAILURE TO FIND BURGLAR'S IMPLEMENTS IN ROOM.-It was not error to sustain an objection to a question asked by defendant as to whether or not a witness examined the defendant's room, and whether or not the witness saw any burglar's tools or implements, files or keys around the room. The fact that such tools were not found, if true, would not be competent to prove the defendant innocent. (Id.) 13. REJECTION OF LETTER-REVIEW UPON APPEAL-PRESUMPTION.Where an objection to a letter as hearsay and a self-serving declaration was sustained, error assigned on its rejection is not reviewable upon appeal, where the record does not show its contents nor its substance, nor by whom it was written, and it must be presumed that the ruling of the court was correct. (Id.) 14. INSTRUCTION-BURGLARY IN FIRST DEGREE-ENTRY IN NIGHT-TIME -SUPPORT OF VERDICT QUESTION OF FACT-INFERENCE FROM CIKCUMSTANCES.-It was not error to instruct the jury that, if the evidence warranted it, they might find the defendant guilty of burglary in the first degree, where there was sufficient evidence to sustain an implied finding by the jury that the entry by defendant was in the night-time. As to when the entry was made and the property stolen was a question of fact for the jury, and might be arrived at from all the facts and circumstances. (Id.) "" 15. BURGLARY-PLEA TO FORMER CONVICTION-ERROR IN ACTION OF COURT NOT SHOWN.-Where the only objection of the defendant to being called on by the court, before trial for burglary, out of the hearing of the jury panel to plead to a former conviction, was urged upon the grounds alleged in the demurrer herein,' which demurrer is not part of the record upon appeal, there is nothing in the record to show that defendant was compelled over his protest "to either confess or deny the prior conviction."' So far as appears from the record, he voluntarily pleaded guilty to the prior CRIMINAL LAW (Continued). conviction when called upon to plead thereto. (People v. King, 213.) 16. AUTHORITY OF COURT-REPEAL OF CODE PROVISION-ACTION OF COURT NOT PREJUDICIAL.-Notwithstanding the repeal in 1880 of section 1025 of the Penal Code, which required the court to ask a defendant charged with a prior conviction whether or not he has suffered it, it seems that it was still within the power of the court before trial, under sections 1093 and 1058 of the Penal Code, to ascertain whether he wished to plead guilty to such charge, in order that the prior conviction may be withheld from the jury upon trial of the main charge; but whether the court is authorized by statute or not to "call upon” the defendant to plead to the charge of prior conviction, its action in so doing was not in excess of jurisdiction, but was, at most, a mere irregularity in procedure, which plainly worked no prejudice, but was a positive benefit to the defendant. (Id.) 17. SUFFICIENCY OF EVIDENCE OF BURGLARY.—Where it appeared that defendant entered a dwelling-house, and there had an opportunity to steal a trunk belonging to an inmate thereof, and had it in bis possession a few hours later, under circumstances indicating the theft thereof by him, there was sufficient evidence to justify the jury in inferring that the house was entered by defendant with felonious intent. (Id.) 18. INSTRUCTIONS PROPERLY REFUSED.—Requested instructions covered by other instructions given, or which there is no evidence to support, or which would have been charging the jury as to a matter of fact, were properly refused. (Id.) 19. EMBEZZLEMENT-GIST OF OFFENSE-INSUFFICIENT INFORMATION. The gist of the offense of embezzlement under section 504 of the Penal Code is the appropriation to a use or purpose not in the due and lawful execution of the trust; and an information for embezzlement of money by a servant or agent of an association which does not state the conditions of the trust, nor the object and purpose for which the money came into his possession, nor that defendant appropriated the money for a purpose "not in the due and lawful execution of his trust,” is insufficient, and a demurrer thereto should have been sustained. (People v. McMahill, 225.) 20. EMBEZZLEMENT—CONTINUANCE OF TRUST-SUFFICIENCY OF INFORMA TION.-An information for embezzlement which charges that defendant on a certain day received the money as agent and servant of another, and that he thereafter, on the same day, willfully, unlawfully, feloniously and fraudulently did embezzle, convert and appropriate the same to his own use, and not in the due and law. ful execution of his trust, sufficiently charges the continuance of |