of water in the pasture for the horses, such finding must control the general verdict. This finding as to the sufficiency of water in the pasture, however, is limited by a finding made in response to the question: "Was the water in the pasture accessible to the horses described in the complaint as having died for want of water?" to which they replied: "No." The finding therefore as to the sufficiency of water in the pasture is qualified by the further finding that the water so found to be in the pasture was inaccessible to the horses, and hence is entirely consistent with the general verdict.

Some of the testimony given by witness Copeland, called on behalf of plaintiff, was incompetent. No objection, however, was made thereto and he was fully cross-examined thereon. After plaintiff rested his case defendants moved the court, without stating the ground therefor, to strike out all of his testimony, which motion was denied. The ruling was not error for the reason, among others, that since some of the evidence was proper the motion should have been directed to those parts of the testimony to which doubtless an objection would have been sustained had it been interposed.

We find no error in the record. The judgment and order are affirmed.

We concur:

SHAW, J.

CONREY, P. J.
JAMES, J.

Crim. No. 328. Second Appellate District. May 29, 1914. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. W. A. IDEN, Defendant and Appellant.

[1] CRIMINAL LAW-SALE OF MORTGAGED DAIRY Cows-WANT OF NOTICE TO MORTGAGEE-PLEADING-PARTICULAR COWS SOLD-SUFFICIENT INFORMATION.-An information charging the defendant as a mortgagor of twenty-five head of dairy cows of selling and transferring all of the mortgaged personal property without informing the purchasers of the existence of the mortgage or the mortgagee of the intended sale, is not demurrable on the ground of the failure to allege whether the twenty-five cows sold were all or less than all of the cows mortgaged.

[2] ID.—ID.—ID.—EVIDENCE—MEANS OF IDENTIFICATION OF PROPERTY SOLD PROPER TESTIMONY OF MORTGAGEE.-It is not error in such a prosecution to permit testimony of the mortgagee as to the identification of the property sold by marks other than the brand on the left hip of the cows.

[3] ID.-ID.-ID.-ID.-PAYMENT OF MORTGAGE-TRANSACTIONS SUBSEQUENT ΤΟ SALE-PROOF PROPERLY EXCLUDED.-Evidence designed to show that the mortgage was paid by transactions occurring subsequent to the sale, and that ultimately the mortgagee did not lose anything by the defendant's acts, is properly excluded.

[4] ID.-ID.-ID.-ID.-ID. SUBSEQUENT SALE OF COWS BY MORTGAGEE EVIDENCE PROPERLY EXCLUDED. Objection to a question addressed to the mortgagee as to what cattle he was preparing to sell at a time subsequent to the alleged sale by the defendant, is properly sustained.

[5] ID.-ID.-ID.-ID.-ID.-DECLARATION OF MORTGAGEE-ABSENCE

OF LOSS-PROOF PROPERLY EXCLUDED.-Objection to a question addressed to the mortgagee as to a statement made by him that he had not and would not lose anything on the mortgagor is properly sustained.

[6] ID.-ID.-ID.-ID.-ID.-SUBSEQUENT PAYMENT OF MORTGAGE— EFFECT OF.-Payment of the mortgage after the offense is committed does not constitute any defense to the action.

[7] ID. "ACCOMMODATION MORTGAGE"-SALE OF PROPERTY-CODE SECTION APPLICABLE.-The fact that the mortgage was given for "accommodation" implies that the note and mortgage were made to be pledged or otherwise used in some business transaction, and the maker of such a mortgage is no more excused from observing the provisions of the Penal Code than is the maker of any other chattel mortgage.

[8] ID.-CREDIBILITY OF WITNESSES-DEFENDANT AS A WITNESSREFUSAL OF REQUESTED INSTRUCTION-ERROR WITHOUT PREJUDICE.— The failure to give an instruction the principal part of which fol lows the language of section 1847 of the Code of Civil Procedure is without prejudice, where the jury is instructed that to it exclusively belongs the duty of weighing the evidence and determining the credibility of witnesses, and that the defendant was a competent witness in his own behalf.

[9] ID.-CONVICTION OF DEFENDANT INTENT TO DEFRAUD-REFUSAL OF REQUESTED INSTRUCTION NOT ERRONEOUS.-The refusal to instruct the jury, that in order to convict the defendant they must be morally certain not only that the defendant sold to the persons mentioned in the information, and at the time and place therein stated, one or more of the cows described therein, but that they must be satisfied to a moral certainty and beyond a reasonable doubt that the defendant sold and delivered such cows "with the intent in him to defraud the mortgagee named in said mortgage", is not error, although the information sets forth that the acts and omissions of the defendant were with such intent.

[10] ID.-INTENT TO DEFRAUD MORTGAGEE-ELEMENT NOT ESSENTIAL. That part of section 538 of the Penal Code which refers to the selling of mortgaged property does not make the intent with which the act is done an indispensable element of the offense, and when the intent is not made an affirmative element, the law imputes that the act knowingly done was with criminal intent, and it need not be alleged or proven.

Appeal from the Superior Court of Tulare County-J. A. Allen, Judge.

For Appellant J. S. Clack, J. C. Thomas, E. G. Soule, Edwards & Smith; E. J. Fleming, B. F. Woodard.

For Respondent-U. S. Webb, Attorney-General; George Beebe, Deputy Attorney-General; Frank Lamberson, District Attorney; James M. Burke, Deputy District Attorney.

On information filed by the district attorney of Tulare county the defendant was accused of the crime of felony committed as follows: It was charged that the defendant, on or about the 26th day of September, 1912, at said county, was the mortgagor of the following described personal property, to-wit: 25 head of dairy cows, 21 head of which said cows were branded "I" on the left hip, and which said personal property was then and there located on certain real property described in the information; all of which said personal property had been theretofore mortgaged by said W. A. Iden and his wife to one E. A. Stellar by a mortgage dated July 18, 1912, to secure the payment of the sum of $3500

by the mortgagors to the mortgagee, and which said mortgage had been, on August 16, 1912, duly recorded and was on said 26th day of September, 1912, in full force and effect; that on said last named date the defendant at said county did wilfully, etc., and with intent to defraud said Stellar, sell and transfer all of said mortgaged personal property to M. P. Costa and Lucy Seimas, "and the said W. A. Iden did not then or there, or at any other time, or at all, inform said M. P. Costa and Lucy Seimas, or either of them, of the existence of said prior mortgage, and the said W. A. Iden did not then or there, or at any other time or at all, inform said E. A. Stellar, mortgagee as aforesaid of said personal property, in writing, of said intended sale and transfer by giving the name and place of residence, or either of them, of the party to whom said sale and transfer was to be made"; and at the time of said sale the said personal property, to-wit: said cows, were of the value of $47.50 per head, etc. The defendant having been convicted after trial on this information and his plea of not guilty, appeals from the judgment and from an order denying his motion for a new trial.

[1] The first proposition urged in behalf of defendant is that the information does not charge a public offense in that "it fails to charge the offense alleged to have been committed under section 538" of the Penal Code, and that it does not meet the requirements of section 952 of the Penal Code by directly and certainly alleging the particular circumstances of the offense charged. The demurrer to the information stated these objections and especially set forth that "the information nowhere alleges that these were all the cows in the said mortgage, and if not all, it nowhere alleges in said information which cows, nor does it give the description therein alleged to have been made".

The information was sufficient and set forth the particular facts of the offense charged with all necessary certainty. The mortgage was referred to in such terms that the defendant could not be at any disadvantage in knowing whether it was the mortgage which had been made by him. If he had not made it, that fact alone would be his complete defense. If he had made the mortgage, then he would know whether 25 cows were all or less than all of the mortgaged cows. If the mortgage described more than 25 cows, then under this information he was not told which ones of the total number mortgaged he was charged with having unlawfully sold. But this was an item of evidence and not an essential element in description of the offense charged. The case is appropriate for application of the rule stated in People v. Platt, 67 Cal. 21, where the court said: "We think the defendant is sufficiently apprised by the information of the charge which he must be prepared to meet on the trial. If innocent, there is no more danger of his being convicted than there would be if the property had been described with the greatest minuteness, although his chance of escape, if guilty, might have been much better if it had been so described."

The first and principal witness for the prosecution was the mortgagee, E. A. Stellar. The mortgage was received in evidence

and in it the cows and heifers are separately described and are consecutively listed by numbers from 1 to 116. There appear to have been 73 cows and 43 heifers. The note and mortgage are dated July 18, 1912, and the note by its terms was to mature July 18, 1913. The affidavit to the mortgage was subscribed and sworn to by all the parties on July 19th, and was acknowledged by the mortgagors before a notary on July 19, 1912. There was also a form of acknowledgment before the notary by E. A. Stellar on August 10, 1912, and the mortgage was recorded in Tulare county on August 16, 1912.

The witness Stellar testified that on August 3, 1912, he went with the defendant to a place known as the Sherman Ranch, and an adjacent 80 acres which had been leased by Stellar to the defendant, there being a road between the two places; he took the mortgage and compared the stock that were described in the mortgage with the stock that he viewed; that about 100 of the animals were in one field and the others were on the leased land above mentioned; that he saw the cattle there and that he and the defendant both saw them and discussed them there together. Stellar further testified that afterwards, on the 10th of August, 1913, he saw on the ranch of Mrs. Lucy Seimas in Kings county 28 of the cattle that were placed under that mortgage; that he identified them by the description contained in a certified copy of the mortgage which he had with him. The witness then gave the numbers as given in the mortgage, of 22 of these cattle, and gave testimony in detail concerning the marks thereon. He further stated that he did not, on the 26th day of September, 1912, or at any time, receive any notice in writing or otherwise from the defendant or any other person of any intended sale of any cattle named in that mortgage, or of the name and place of residence of any person to whom they were to be sold.

It was admitted by the defendant that on September 26, 1912, he sold 30 cows to M. P. Costa and Lucy Seimas, but denied that any of them were cows that had been included in the mortgage. It was proved by the testimony of Costa that the defendant did not give to Costa or Seimas any information of the existence of a prior mortgage on the cattle sold to them. In addition to the defendant's denial that those cattle were covered by the Stellar mortgage, the defendant claims that he had a right to make sales of the mortgaged cattle without giving the notices required by the Penal Code, first, because at the time of the sale defendant did not owe Stellar anything on the mortgage, and also because Stellar gave him an oral permission to do so. The numerous specifications of error set forth in the briefs for appellant relate almost entirely to rulings by which the court limited the cross-examination of Stellar and the direct examination of the defendant by his counsel upon matters which they claimed were relevant to these lines of defense.

[2] The defendant objected to the introduction of testimony by which Stellar described the cattle that he saw on the Seimas place and identified them by other marks in addition to the "I"

on the left hip. Defendant claims that the overruling of this objection was a flagrant error, but we are unable to perceive any reason why the court should have refused to receive any testimony descriptive of the property, by which the witness was enabled to say that it was the same which he had previously identified in connection with the making of the mortgage. The objection is without merit.

[3] It is contended by appellant that the court erred in refusing to permit him to introduce evidence showing that the mortgage debt had been paid, but the pages of the transcript cited in the brief contain nothing that relates to the point suggested. We are not under obligation to search through 750 pages of transcript to find something which might prove the alleged error. We do find, however, that the court did several times assure defendant's counsel that if they had any evidence showing that the mortgage was paid, or that the defendant was authorized to sell the property, they might present such evidence. The difficulty experienced by the defendant in the introduction of his testimony along this line arose out of the fact that his counsel persistently offered questions designed to show that the mortgage was paid by transactions subsequent to September 26, 1912, and that ultimately the mortgagee did not lose anything by reason of defendant's acts in diminishing the security.

[4] On defendant's cross-examination of the mortgagee (the wit-. ness Stellar) the court sustained the objection made to a question in which the witness was asked to state what cattle those were which in answer to the next preceding question he had said that he was preparing to sell in August, 1913. The ruling was correct. The charge against the defendant was that on September 26, 1912, the defendant had sold a part of the mortgaged cattle without giving the information required by the statute. Even if in August, 1913, the mortgagee undertook to sell the same cows which the defendant was charged with selling wrongfully in 1912, such proceeding by the mortgagee would have no bearing upon the truth of the facts charged against the defendant, or the guilt or innocence of the defendant. And if the object was to show that ultimately the mortgagee obtained full payment of the debt, that also was immaterial. The case against the defendant was to be determined by two facts, both relating to September 26, 1912, namely: whether the mortgage debt was unpaid and whether the defendant sold some of the mortgaged cows in the manner and under the circumstances charged in the information.

The record does not sustain appellant's claim that the court erred in refusing to hear evidence about partnership transactions between Stellar and defendant Iden. Counsel for defendant say they would have shown that the mortgage was only an "accommodation mortgage". The court, while declining to allow "extended examination or hearing of evidence as to partnership deals", further said: "If you have any special transaction which shows that the mortgage was paid, or that the defendant was authorized to sell the property, you can do so." This gave the