Crim. No. 313. Second Appellate District. January 29, 1914. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. JOE PRINCIEPE and VITO PARISIE, Defendants and Appellants. [1] CRIMINAL LAW-ARSON-BURNING OF INHABITED BUILDING IN NIGHT TIME-EVIDENCE-LACK OF PROOF OF OCCUPANCY AT TIME OF FIRE-DEGREE OF CRIME ERRONEOUS INSTRUCTIONS.-It is prejudicial error to instruct the jury in a prosecution for burning an inhabited building in the night time that they might find the defendants guilty of either degree of the crime charged, where there is a total lack of any proof that there was any human being in the building at the time the fire was kindled. Appeal from the Superior Court of Los Angeles County-Gavin W. Craig, Judge. For Appellants-Antonio Orfila. For Respondent-U. S. Webb, Attorney-General, and George Beebe, Deputy Attorney-General. Defendants were informed against by the district attorney for the crime of arson, the burning being alleged to have been that of a building in which there were at the time human beings and as having occurred in the night-time. The jury returned a verdict finding both defendants guilty of that crime, and determined that it was of the first degree. A judgment directing the imprisonment of defendants for a long period of years followed, and this appeal was taken from that judgment and from an order made denying the motion of defendants for a new trial. The principal contention made by appellants on this appeal is that the evidence was insufficient to warrant the jury in convicting appellants of arson of the first degree. Section 454, Penal Code, provides as follows: "Maliciously burning in the night-time an inhabited building in which there is at the time some human being, is arson in the first degree. All other kinds of arson are of the second degree." It appears from the transcript of the evidence as made by the phonographic reporter that one Trepini occupied the building which was burned, as a dwelling place for himself and family, which consisted of a wife and son; that having received certain "black-hand" letters he employed appellants as watchmen to guard his residence during the night-time, as he in the pursuit of his business was obliged to leave at about 2 o'clock every morning; that upon the night of the 15th of June, 1913, he left the premises at the accustomed hour and saw appellants hoth there in the yard at the time; that later he returned and found his house in ruins. There was other evidence, in its nature circumstantial, which tended to connect appellants with the burning of the building. [1] However, there was a total lack of any evidence showing that after Trepini left the house on the night mentioned any other person remained therein, or that there was any other person therein at the time the fire was kindled. Under this state of the proof, the trial judge instructed the jury that if it determined that the defendants or either of them were guilty, that the degree of the crime should be fixed and the two degrees were by the same instruction defined. Under the proof made the appellants could not properly be convicted of arson of the first degree. The burden was upon the prosecution to affirmatively show, in order to sustain such a verdict, that at the time the fire was kindled there was some human being other than appellants actually within the building. The court erred in giving the instruction which advised the jury that they might find the defendants guilty of either degree of the crime charged, and the evidence did not sustain the verdict. It is contended that the court erred in the matter of refusing to give certain instructions asked for by the defendants, but an examination of those alleged errors does not show that they were sufficient in themselves to warrant the crtitcism as to their prejudicial character. It would have been perhaps better had the court given a fuller instruction as to the presumption of innocence which accompanies a defendant throughout the trial and until his guilt is established beyoud a reasonable doubt, although the very brief instruction as given touching that matter, when properly analyzed, may be said to comprehend the same meaning. Nevertheless, a fuller exposition of the rule might have aided the jury to a better understanding of the effect of it. For the reasons given, the judgment and order are reversed. JAMES, J. We concur: CONREY, P. J. Crim. No. 317. Second Appellate District. February 2, 1914. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. PAUL SANCHEZ, Defendant and Appellant. [1] CRIMINAL LAW-ASSAULT WITH INTENT TO COMMIT RAPEEVIDENCE QUESTION ADDRESSED TO PROSECUTING WITNESS-OVERRULING OF OBJECTION-ABSENCE OF ERROR-FACT PREVIOUSLY ESTABLISHED. It is not error to overrule the defendant's objection to a question propounded by the district attorney to the prosecuting witness in a prosecution for assault with intent to commit rape, where the fact testified to by the witness in response to the question has already been proved by necessary inference from answers previously given and established without conflict as a fact in the case. [2] ID.-APPEAL-ORDER DENYING NEW TRIAL-DEFECT IN INFORMATION MATTER NOT REVIEWABLE.-A defect in the information cannot be considered on an appeal from an order denying a motion for a new trial. Appeal from the Superior Court of Riverside County-F. E. Densmore, Judge. For Appellant-C. W. Benshoof. For Respondent-U. S. Webb, Attorney-General, and George Beebe, Deputy Attorney-General. The defendant having been found "guilty of assault with intent to commit the crime of rape as charged in the information", moved the court for a new trial "on the ground that the court erred in the decision of a question of law arising during the course of the trial". Judgment having been duly entered on the verdict, defendant appeals from the order denying said motion for a new trial. No appeal was taken from the judgment. [1] The reporter's transcript shows only one objection made on behalf of defendant during the course of the trial, and we may assume that the ruling made on that objection constitutes the error to which the defendant's counsel referred. This also appears from his brief on the appeal. By the ruling referred to the court overruled the defendant's objection to a question propounded by the district attorney to the prosecuting witness. As the fact testified to by the witness in response to that question had already been proved by necessary inference from answers previously given, and is established without conflict as a fact in the case, the court's ruling, even if it was wrong, could not be prejudicial error. [2] The suggestion in appellant's brief, of a defect in the information cannot be considered, since there is no appeal from the judgment. (People v. Turner, 39 Cal. 370; Pen. Code, secs. 1012, 1239.) The order denying the motion for a new trial is affirmed. We concur: JAMES, J. CONREY, P. J. Civil No. 1417. First Appellate District. February 3, 1914. JAMES J. RYAN, Appellant, v. WILEY F. CRIST et al., Respondents. [1] CRIMINAL LAW-EXECUTION OF SEARCH WARRANT-PROHIBITION WRIT ALREADY EXECUTED.-A writ of prohibition will not issue to restrain the threatened execution of a search warrant, where the warrant has already been executed and the property taken into the possession of the magistrate before the issuance of the alternative writ, and no showing made of any further attempted judicial action on the part of the magistrate. Appeal from the Superior Court of the City and County of San Francisco F. H. Dunne, Judge. For Appellant-A. S. Newburgh. For Respondents-C. M. Fickert, District Attorney; Maxwell McNutt, Assistant District Attorney. BY THE COURT. ON PETITION FOR REHEARING. The original [1] The petition for rehearing must be denied. application for the writ of prohibition avers the issuance and threatened execution of a search warrant, by which the property of the petitioner will be seized and taken into the possession of the magistrate issuing the process. The record shows that before the alternative writ was issued the search warrant had already been executed and the property taken into the possession of the magistrate. Its office was therefore fulfilled; and there was nothing for the court to prohibit unless it should appear that the magistrate was undertaking to do, or was assuming jurisdiction to do, some further act with reference to the property; but the record affirmatively and conclusively shows that there is no judicial act under the statute relating to search warrants which the magistrate is either assuming to do or can do, except the act of restoring the property to the petitioner upon his demand. He has made no such demand; but if he should do so, and the demand should be refused, it would appear upon the facts stated in the record that he has a plain, speedy and adequate remedy in an action to recover its possession, with damages for its unlawful detention. In the absence of any showing that the writ here sought is desired to prohibit any judicial action on the part of the magistrate except that which had been already consummated before the alternative writ was issued, the court adheres to its view that the matters presented upon this appeal are moot questions, which this court is not called upon to decide. Civil No. 1254. Second Appellate District. February 4, 1914. COULTER DRY GOODS COMPANY, Plaintiff and Appellant, v. M. C. WENTWORTH, Defendant, and WILLIAM H. ALLEN, JR., et al., Defendants and Respondents. [1] CORPORATION LAW-CONTRACT OF SALE OF MERCHANDISE-LIABILITY OF STOCKHOLDER-TIME OF ACCRUAL.-The liability of a stockholder of a corporation on a contract of sale of merchandise to the corporation attaches when the merchandise is delivered and not when the contract is made. Appeal from the Superior Court of Los Angeles County-J. D. Murphey, Judge presiding. For Appellant-Ward Chapman. For Respondents-O'Melveny, Stevens & Millikin, Walter K. Tuller, W. S. Wright. The plaintiff appeals from an order denying its motion for a new trial in this action, and from the whole of the judgment except that portion thereof which was a judgment by default in favor of the plaintiff and against the defendant M. C. Wentworth. The plaintiff herein seeks to recover various amounts, which are specified in the complaint, against the defendants as stockholders of Wentworth Hotel Company, an Arizona corporation, which had a place of business and transacted business within the state of California. The evidence shows, in conformity with the allegations of the complaint, that in June, 1906, that being a time at which respondents were not stockholders, the corporation ordered from the plaintiff certain goods, wares and merchandise which the plaintiff agreed to deliver at specified prices, "net cash". The transaction was an ordinary sale of merchandise, except that certain portions thereof, mostly linens, were specially ordered to be marked by having the words "Wentworth Oak Knoll" worked into the fabrics. The goods specified in said order, together with other articles added thereto at about the time of delivery, were delivered to the corporation late in 1906 and early in 1907 at times when the respondents had acquired stock in the corporation. The principal question presented is whether, upon such facts as those here shown, the stockholder's liability provided by our state constitution and by the Civil Code attaches to stockholders owning stock at the time when the contract of sale was made, or whether it applies solely to those owning stock at the time when the goods are delivered. The liability is based upon article XII, section 3, of the constitution, and section 322 of the Civil Code, which require that each stockholder of a corporation shall be individually liable for a given proportion of all its debts and liabilities "contracted or incurred during the time he was a stockholder". Decisions from other jurisdictions, in which the same or similar questions have been determined, are discussed in the briefs and have been considered by us; but our conclusion is such that it will be sufficient to rely upon the California cases hereinafter mentioned. In Hunt |