before the court. It also relieves the court from determining whether the complaint states a cause of action.

We think the defendant stockholders had such interest as entitled them to make the motion. Plaintiff alleged that the company had made certain conveyances of its said property to these stockholders, and these transfers were made before the judgment was entered. These defendants were not only successors in interest of the property involved, but were liable as stockholders for any valid judgment against the corporation. As stockholders they were made parties defendant, to recover from them a judgment covering the same liability for which the corporation was sued. If this judgment should stand, we do not see why, under some circumstances, it might not fix by that much the stockholders' liability; and, if this be true, they were directly interested in the judgment. But it has been held by this court that one who succeeds to property that is subject to a judgment may appear to have it vacated, though he was not party to the judgment. People v. Mullan, 65 Cal. 396, 4 Pac. 348; Dorland v. Smith, 93 Cal. 120, 28 Pac. 812; Molane v. Mining Co., 93 Cal. 384, 28 Pac. 1063.

The order should be affirmed.

shall be the truth, the whole truth, and nothing but the truth, so help you God." As amended, the section is the same as before, except that the invocation of God's help is omitted. Held, that an oath administered to a witness in a criminal case, the form of wh ch was in conformity with section 2094 as amended, was in substantial conformity with such section before amendment, and was sufficient, though the amendment was thereafter declared unconstitutional.

2. Under Code Civ. Proc. § 1880, providing that children under 10 years of age, "who appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly," cannot be witnesses, where it did not appear in a criminal case that the court, in admitting the testimony of the prosecuting witness, who was only 6 years old, abused the discretion with which it was vested under the statute, its decision could not be disturbed on appeal.

3. On a prosecution for an assault upon a boy with intent to commit the infamous crime against nature, it was admissible to show that

the boy made complaint to his mother, and that the complaint related to matter under investigation, but not that he complained of somebody having done something to him.

4. The boy having testified, without objection, to what he had told his mother, the admission of the mother's testimony, in answer, but not responsive, to a proper question, that the boy "said somebody" had done something to him (describing it),- -no motion being made to strike out such answer,-would not, on appeal, be held prejudicial.

5. On a prosecution for an assault on a boy with intent to commit the infamous crime against nature, the boy's mother was competent to testify as to what the substance found on his clothing was, though she was not shown to be an expert.

6. The testimony of a physician, who examined the clothing after it was dry, that he was unable to determine positively what the substance was, might have tended to weaken the mother's testimony, but did not render it incompetent.

7. Where, on a prosecution, under Pen. Code, § 220, for assault with intent to commit the infamous crime against nature. there was evidence that defendant was guilty of the crime charged, an instruction that the jury could find one of two verdicts, to wit, guilty of "an assault, with intent to commit the infamous crime against nature," or, "Not guilty," was not erroneous, though it excluded a verdict of simple assault.

Commissioners' decision. Department 1. Appeal from superior court, San Joaquin county; Edward I. Jones, Judge.

John Swist was convicted of crime, and appeals. Affirmed.

A. V. Scanian, for appellant. Tirey L. Ford, Atty. Gen., and A. A. Moore, Jr., Dep. Atty. Gen., for respondent.

CHIPMAN, C. Defendant was convicted of an assault, with intent to commit the infamous crime against nature. He appeals from the judgment, and from the order denying his motion for a new trial.

1. It is first objected that the court was without jurisdiction, for the reason that the oath administered to the witnesses was in accordance with the provisions of section 2094, Code Civ. Proc., as amended March 8, 1901, since declared by this court to be unconstitutional. Lewis v. Dunne (Cal.) 66 Pac. 478. Waiving the question whether the point can be raised as ground for a motion for a new trial, we have this to say in reply. The form of oath prescribed by section 2094 is as follows: "You do solemnly swear (or afirm, as the case may be,) that the evidence you shall give in this issue (or matter), pending between and shall be the truth, the whole truth, and nothing but the truth, so help you God." The oath administered to the witnesses during the trial was as follows: "You solemnly swear that the evidence you shall give in the issue now pending, wherein the people of the state of California is plaintiff, and John Doe Swist is defendant, will be the truth, the whole truth, and nothing but the truth." Except the invocation for God's help, the form of the oath administered is essentially the same

as the form prescribed by the unamended Code. No objection was made at the trial to the form used. We do not doubt that false testimony, material to the issue, given under the form of oath as administered, would constitute perjury. In our opinion, the two forms of oath are substantially the

same.

2. It is next contended that the verdict is contrary to the evidence. This claim rests on the alleged incompetency of the child victim of the assault, by reason of his youth, without whose testimony there was not sufficient evidence to convict. The prosecuting witness was six years old. He was examined by the judge and by counsel, without the hearing of the jury, at considerable length, to test his intelligence and competency to testify. Nothing short of embodying the entire preliminary examination and the examination before the jury would fairly indicate whether the ruling of the court was correct in allowing the witness to testify. It would too greatly extend the opinion to quote all of this examination. We have given it careful consideration, however, and have reached the conclusion that it was not error to allow the testimony of the boy. It appeared that he had never attended school, and some questions he answered incorrectly which it might reasonably have been expected he would answer correctly, while as to others he showed ordinary intelligence for one of his age, and his answers were so ingenuous and artless as to show entire candor. He seemed to have a very clear perception as to his duty to speak the truth and not to falsify. He testified that the act was consummated, while a physician, who made an examination of his person some hours after the act was committed, testified that, in his opinion, the act was not consummated. It is urged that this circumstance not only discredited the witness, but was strong evidence of his incompetency to testify at all. We can well conceive, from the circumstances narrated, that the boy believed what he testified to, and yet was mistaken as to the full extent of the assault. That he was assaulted in the manner testified to by him is corroborated by the testimony of the mother, to whom he complained shortly after the act was committed, and who examined his person and clothing. A decent respect for propriety forbids our stating in an opinion the testimony of the boy and his mother. It was held in an early case here that the competency of a witness is to be determined, not by his age, but by the degree of his understanding and knowledge. People v. Bernal, 10 Cal. 66. See, also, People v. Craig, 111 Cal. 469, 44 Pac. 186. Section 1880, Code Civ. Proc., declares that it is only children under 10 years of age, "who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly," who cannot be witness

And

what was done to him, and to relate it truly. It has been held here that this section implies that it must appear to the trial judge that the child is incompetent for the reasons named in the section, and that it is for the trial judge also to determine whether the child has capacity to receive just impressions of the facts, and to relate them truly. People v. Craig, 111 Cal. 469, 44 Pac. 186. it was further held that the determination of the judge "is not a matter of review, any more than is his ruling upon the capacity of an adult who may be offered as a witness"; and it was added: "The fact that the testimony of the child differed from that of other witnesses is not even prima facie evidence of his incapacity. Such difference is frequently found in the testimony of adult witnesses." See, also, People v. Baldwin, 117 Cal. 244, 49 Pac. 186. We cannot say that the trial court abused the discretion with which it was clothed in this matter.

3. It is urged, also, that the court erred in permitting the mother of the boy to testify relative to a complaint made by him to her. What occurred was as follows: "Mr. Norton [deputy district attorney]: Q. State whether or not, when the little boy came to you, he made any complaint to you? A. He did. Q. How soon after he came to you did he make the complaint? A. Immediately. Q. What kind of a complaint did he make? [The objection was here interposed.] Mr. Norton: I don't propose to ask for the conversation or the details. I think we are within the line, though, in asking the question. The Court: Objection overruled to the question. Mr. Scanlan [attorney for defendant]: We will take an exception. The Court: I will state to the witness: You must not state anything he said about any person; must not mention any person." The answer was, "He said somebody *" using an ex

pression which would be unintelligible except for the fact that the prosecuting witness used it on the witness stand, and explained its meaning. The answer was not responsive to the question, and was given in violation of the avowed purpose of the district attorney, and the express caution of the trial judge. It should have been stricken out, and, no doubt, would have been, had defendant made a motion to have the court so order. It was admissible to show that a complaint was made. People v. Figueroa (Cal.) 66 Pac. 202; People v. Baldwin, supra. And we think it was competent to show at least that the complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject. The boy had already been permitted to testify, without objection, to what he told his mother. Counsel for defendant ought to have moved to strike out the answer, and not having done so, and in view of what occurred, we do not think the error such as can be now held prejudicial.

4. The boy's mother examined his clothing, and testified to its appearance and also testi

fied to the appearance of the substance she found on the clothing, and what this substance was. To the question, "What was the substance?" defendant objected as incompetent "unless this defendant [meaning the witness, no doubt], is shown to be an expert." The witness was a married woman and a mother, and presumably had the knowledge she testified she had. If she had not, the defendant could have so shown by crossexamination, or by asking to test her knowledge in advance of her testifying. He did neither. We cannot say the question necessarily involved expert knowledge, such as would require qualification to be first shown by the prosecution. The fact that Dr. Maddox, some hours later, and after the clothing was dry, was unable positively to determine what this substance was, does not affect the question, though it may have tended to weaken the testimony of the mother. But he testified that "some specimens were found resembling spermatozoa," though he could not say positively what they were.

not

5. It is complained that the court erred in giving the instruction marked "XIII." It was a direction to the jury that they could find one of two verdicts, to wit: (1) * * an assault with intent to commit the infamous crime against nature;" (2) "** ** guilty." Defendant claims that the defendant was prosecuted under section 220 of the Penal Code, and that the court has decided that "a simple assault is a necessary element in the offense named in said section 220"; citing People v. Hickey, 109 Cal. 275, 41 Pac. 1027. The evidence tended to show that defendant was guilty of the crime charged, and as was said in People v. Lopez (Cal.) 66 Pac. 965: "If the defendant committed any crime at all, it was certainly of greater magnitude than simple assault; and an instruction that the jury might find him guilty of an assault, merely, would have been entirely unwarranted by the evidence. The instruction as given was proper, under the circumstances." See cases cited in the Lopez Case, and the cases referred to in those decisions. It was said in People v. McNutt, 93 Cal. 658, 29 Pac. 243, referring to People v. Madden, 76 Cal. 521, 18 Pac. 402, and other cases, that "these decisions of the court are not in conflict with section 1159 of the Penal Code; for that section contemplates the conviction of a defendant for a lesser offense when the evidence is insufficient to justify a conviction for the greater offense charged." As to the instruction marked "VIII" offered by defendant, we think the court rightly refused it for the reason given by the court namely, "So far as proper and not confusing, given elsewhere." The judgment and order should be affirmed.

We concur: COOPER, C.; GRAY, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order are affirmed.

69 P.-15

(136 Cal. 525)

BAY CITY BUILDING & LOAN ASS'N v. BROAD. (S. F. 2,206.)

(Supreme Court of California. June 11, 1902.) BUILDING AND LOAN ASSOCIATIONS-ULTRA VIRES ACTS-LOANS TO OTHERS THAN MEMBERS COLLATERAL ATTACK - ESTOPPELMORTGAGES - FORECLOSURE - COMMUNITY PROPERTY-DECEDENTS' HOMESTEADS.

1. Whether a loan made by a building association organized under Civ. Code, §§ 6336482, to one who is not a member is, under section 637, providing that the money of such associations shall be loaned "to the member who shall bid the highest premium, or may be loaned at such premium as may be fixed," etc., an unauthorized exercise of its corporate powers, can be raised only in a direct action by the state against the association.

2. Where the purchaser of land covered by a building and loan mortgage secured a release of the mortgage by giving his note for the amount due thereon, secured by a mortgage on other land, in a suit to foreclose the second mortgage he was estopped from claiming that the building and loan company's act in accepting his note and mortgage was ultra vires.

3. Where a husband, without the joinder of his wife, executed a mortgage on community property, and the wife thereafter filed a declaration of homestead upon such property, in proceedings to foreclose the mortgage commenced after the wife's death, wherein it did not appear that any administration had ever been had upon her estate or that she had any estate at the time of her death, Code Civ. Proc. § 1475, requiring claims against homestead property of a decedent to be presented against decedent's other estate before they can be enforced against the homestead, had no application, and plaintiff's failure to present his claim against the wife's estate was no defense.

Department 1. Appeal from superior court, city and county of San Francisco; J. M. Seawell, Judge.

Suit by the Bay City Building & Loan Association against Charles E. Broad. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Chas. E. Broad and Jones & O'Donnell, for appellant. E. H. Rixford, for respondent.

HARRISON, J. The plaintiff is a corporation organized under the provisions of sections 633-648% of the Civil Code, as amended in 1891. St. 1891, p. 252. In the year 1893 Hu Jones was a member of the plaintiff and the owner of certain shares of its capital stock, and on March 22d of that year borrowed from it the sum of $2,400, for which he gave his promissory note, and for the purpose of securing its payment executed to the plaintiff a pledge of his said shares of its capital stock and also a mortgage upon certain land. He afterwards conveyed the land to the appellant, subject to said mortgage, and for a while thereafter the appellant made the payments which were specified in the note of Jones. On February 11, 1896, the appellant requested the plaintiff to release said mortgage and to accept from him a mortgage upon other land to secure the indebtedness secured by the mortgage of Jones. The plaintiff accepted this proposition, and thereupon the ap

pellant executed to the plaintiff the note and mortgage set forth in the complaint herein. Upon his default in making the payments required by said note, plaintiff instituted the present action. Judgment was rendered in its favor for the foreclosure and sale of the land described in the defendant's mortgage, and the defendant has appealed.

1. Section 637 of the Civil Code provides: "The moneys in the hands of the treasurer, and such sums as may be borrowed by the corporation for the purpose, shall be loaned out in open meeting to the member who shall bid the highest premium, or may be loaned at such premium as may be fixed from time to time by the board of directors." The appellant never became a stockholder or member of the plaintiff corporation, and he alleges in his answer to the complaint, and also urges in support of his appeal herein, that the note and mortgage executed by him to the plaintiff are illegal and void upon the ground that under the provisions of the above section the plaintiff is not authorized to loan money to any person other than its members or stockholders. Whether a loan of its money by the plaintiff to one who is not one of its members or stockholders is an unauthorized exercise of corporate powers is a question which cannot be raised collaterally by individuals, but can be presented for determination only in a direct action by the state against the corporation. The appellant is not at liberty to make such defense to the claim of the plaintiff herein. Having dealt with the plaintiff and executed to it his note and mortgage upon a sufficient consideration therefor, he is estopped from setting up, as a defense to an action thereon, that the act of the plaintiff in taking his note and mortgage was ultra vires. Union Water Co. v. Murphy's Flat Fluming Co., 22 Cal. 620; Association v. Clark, 67 Cal. 634, 8 Pac. 445; Camp v. Land, 122 Cal. 167, 54 Pac. 839.

2. After the execution of the note and mortgage the wife of the appellant filed a declaration of homestead upon the land described in the mortgage, and died before the commencement of the present action. It is contended by the appellant that the plaintiff cannot maintain an action for the foreclosure of the mortgage until after the presentation of a claim therefor against the estate of the wife, and that as it does not appear that such claim was ever presented its action must fail. It is not shown that any administration was ever had upon the estate of the wife; neither is it shown that the wife had any estate at the time of her death. She did not sign the note to the plaintiff, and there was no claim against her estate which could have been presented, even if she had left an estate. The property described in the mortgage was the community property of the husband and wife, and upon her death vested in the husband as the survivor both of the community and of the homestead. Under such a state of facts the provisions of section

PEOPLE v. LAPIQUE. (Supreme Court of California.

(136 Cal. 503) (Cr. 793.)

June 7, 1902.) FORGERY OF NOTE-EVIDENCE-NEW TRIALNEWLY DISCOVERED EVIDENCE-INSTRUCTIONS-PREJUDICIAL ERROR.

1. To sustain a conviction of forgery the testimony was conflicting and unsatisfactory, and testimony for defendant showing that the prosecuting witness signed the note in question himself consisted of defendant's own testimony and that of the notary who protested it. Each swore to declarations of the witness to that effect, but the notary's testimony showed that it was doubtful whether he understood the witness. Held, that a new trial for newly discovered evidence should have been granted on a positive affidavit that the prosecuting witness informed affiant that he signed the note without consideration.

2. In a prosecution for forging a note, evidence of the financial condition of the prosecuting witness is inadmissible.

3. In a prosecution for forging a note, an instruction not in the abstract erroneous, but so given that it may have been taken to intimate that defendant signed the note, which he denied, and leaving to the jury only the question whether or not he was authorized to do so, is prejudicial.

In banc. On rehearing. Opinion in department (67 Pac. 14) reversed.

MCFARLAND, J. The defendant was charged with, and convicted of, the crime of forgery. He appeals from the judgment, and from an order denying his motion for a new trial. After a careful consideration of the case, we are of the opinion that the conviction should not be allowed to stand.

The appellant was charged with forging the name of the prosecuting witness, Philip Maysounave, to a certain promissory note, dated November 15, 1898, purporting to have been made by said Maysounave, and payable to the order of Louise Lagarde. Maysounave testified that he did not sign the note, or authorize any one to sign it; but, although he was intimately acquainted with appellant, he did not say that the signature to the note was made by appellant, or resembled his handwriting. The only evidence tending to connect appellant with the signature was the testimony of an expert in handwriting, and he did not undertake to say that the signature was written by appellant. He testified that, in his opinion, the signature to the note was not in the same handwriting as the admittedly genuine signature of Maysounave to a certain instrument in writing introduced in evidence, marked "Exhibit 2"; and he based his opinion upon his belief that the signature to the note was a tracing of the signature on Exhibit 2, or that the writer of the signature had the exhibit before him, and

endeavored to closely copy it. It appeared, however, from oral and documentary evidence which we can hardly see any valid excuse for disregarding, that the note had been made and copied by witnesses long before Exhibit 2 was in existence, and therefore could not have been traced from the latter. There was also some testimony to the point that the prosecuting witness had admitted that he had signed the note, but that he had received no consideration from the woman who was payee therein, and that therefore he should not be called upon to pay it. The only testimony of this expert witness which tended to connect appellant with the alleged forgery was that the genuine handwriting of appellant and the disputed signature to the note showed some "similar characteristics." There was conflicting evidence on this point, and one witness, in particular, testified that he was well acquainted with appellant's handwriting, and had great experience in examining signatures, and that the signature to the note was not that of appellant, nor in his handwriting. There was other evidence introduced by appellant greatly conflicting with that of the prosecution, which need not be here stated in detail. The foregoing presents substantially the evidence in the case. It is not necessary to determine judicially whether or not this evidence, as a matter of law, is insufficient to sustain a conviction of a high felony. It is apparent, however, that it is not only strongly conflicting, but that the evidence on the part of the prosecution-leaving out of view that of the appellant-is extremely slight and unsatisfactory. Under such circumstances, matters which in ordinary cases might be disregarded should be closely examined.

We think that the court should have granted a new trial on the ground of newly discovered evidence presented by the affidavit of Charles W. Smyth, in which he swears that the prosecuting witness had told him that he himself had signed the note alleged to have been forged. There is no contention that this evidence was not new, or that it could, with reasonable diligence, have been discovered before the trial. It is contended, however, that it was merely cumulative, and was there fore no basis for a new trial. It was, no doubt, in a sense, cumulative, because there had been some evidence introduced at the trial on that general subject; but it is not the law that newly discovered evidence is not ground for a new trial merely because it comes within the category of "cumulative." It is, no doubt, the general rule that such evidence, when merely an addition to a mass of evidence of the same import and effect, differing in no way in its character and significance, would not warrant a new trial. Each case must depend upon its own circumstances. For instance, to put an extreme case, a mass of highly important newly discovered evidence should not be disregarded because there had been some slight, insignifi

cant, and inconclusive evidence introduced at the trial on the same subject. Now, in the case at bar only two witnesses testified to the declarations of the prosecuting witness that he had signed the note. One of these witnesses was the defendant himself, and, of course, the testimony of a defendant in a criminal case is always taken by a jury with many grains of allowance. The other was the notary who protested the note, and although he was an unbiased witness, and stated quite strongly in one part of his testimony that Maysounave admitted that he signed the note, still his testimony, taken altogether, leaves doubt as to whether or not he thoroughly understood what Maysounave said. But the affidavit of Smyth leaves no doubt on the subject. In his affidavit, after stating' that Maysounave had informed him that he "had either signed said note at the request of said Louise Lagarde after the body of the instrument had been written, or that she had presented a blank piece of paper to him, to which he attached his signature at her request, and that thereafter the body of the instrument, purporting to be a promissory note, had been written over his signature," he proceeds as follows: "While affiant is not willing to swear positively to which one of these statements said Philip Maysounave made to him, he is almost confident that he informed him the body of the note had been written at the time the note was signed. Affiant, however, is positive, and therefore states positively, that the said Philip Maysounave then and there informed him that the signature appended to said promissory note so held by said Lapique, and which was made payable to Louise Lagarde, was actually signed by him at the request of said Louise Lagarde, but that said Philip Maysounave stated that there was no consideration for the note, which fact Lapique knew, and for that reason he did not think Lapique was acting fairly towards him in holding it against him." Under these circumstances, and considering the slightness of the evidence against the appellant, we think that justice demands that he should have the benefit of this evidence. No one can say that, if introduced at the trial, it would not have changed a verdict, the correctness of which is so doubtful.

Under the above views, it is not necessary to examine very closely the alleged errors committed by the court during the progress of the trial. It is clear, however, that an error was committed in admitting evidence of the financial condition of the prosecuting witness. The general rule is that such evidence is inadmissible, and we do not think that this case is within any of the exceptions to the rule; and, while in many cases such a ruling might be disregarded as unimportant, we cannot say that in so closely a balanced case as the one at bar it was not prejudicial. The jury may also have been improperly influ enced by the charge of the court to the jury that if the prosecution had not shown, be