peal from the judgment, if settled and filed in time, did not extend the time for perfecting the appeal from the judgment beyond 40 days after such settlement. In this case the bill of exceptions had been settled more than 40 days before notice of the motion was given, and the appellant was clearly in default. To obviate the necessity of printing two transcripts, one for each appeal, when one record would have served for both, this court has often extended the time for filing the transcript on the appeal from the judgment. No sufficient excuse for the delay appears, and the appeal from the judgment is dismissed. (137 Cal. 13) PEOPLE v. SEELEY. (Cr. 859.)1 (Supreme Court of California. July 8, 1902.) PUBLIC OFFICERS-AGREEMENT TO RECEIVE BRIBE-SUFFICIENCY OF INDICTMENT-INTENT-ALLEGATION OF VALUE-REPEAL BY IMPLICATION-RECEIPT OF BRIBE. 1. Under the rule of construction required by Pol. Code, § 4480, providing that the Penal and Political Codes must be construed together, as if parts of the same statute passed at the same time, Pol. Code, art. 21, § 1879, making the receipt of a bribe by a public officer a misdemeanor, does not repeal Pen. Code, § 68, making an agreement by such officer to accept a bribe a felony, but each statute provides for a sepa rate and distinct offense. 2. Under Pen. Code, § 68, making it a felony for a public officer to ask or to agree to accept a bribe in relation to any official act, an indictment alleging that a public officer willfully, unlawfully, and feloniously asked and agreed to receive a certain bribe, on an agreement that his action on a certain matter pending before him should be influenced thereby, sufficiently charges corrupt intent. 3. In an indictment under Pen. Code, § 68, making an agreement by a public officer to agree to accept a bribe a felony, it is unnecessary to allege that a bribe, described as a certain sum of coin of the United States of America, is something of value. Commissioners' decision. Department 1. Appeal from superior court, Marin county; Wm. P. Lawler, Judge. Joseph B. Seeley, a public officer, was indicted for agreeing to receive a bribe. From an order sustaining a demurrer to the indictment, the people appeal. Reversed. Hugh J. McIsaac, Dist. Atty. Tirey L. Ford, Atty. Gen., and A. A. Moore, Jr., Dep. Atty. Gen., for the People. Lennon & Hawkins, for respondent. COOPER, C. The court below sustained a demurrer to the information on the ground that the facts stated do not constitute a public offense, and that the court had no jurisdiction of the offense charged, and ordered judgment for defendant, and that he be discharged. This appeal is from the judgment, 1 Rehearing denied August 6, 1902. and presents the sole question as to the correctness of the order sustaining the demurrer. The information alleges as follows: "Joseph B. Seeley is accused by Hugh J. MeIsaac, district attorney of the county of Marin, state of California, by this information. of the crime of felony, to wit, asking and agreeing to receive a bribe, committed as follows, to wit: The said Joseph B. Seeley on or about the 10th day of December, A. D. nineteen hundred, at and in the county of Marin, state of California, then and there being an executive officer, namely, a school trustee of Tiburon school district, of Marin county, in said state, did willfully, unlawfully, and feloniously ask and agree to receive a bribe, to wit, two hundred dollars, coin of the United States of America, from one Frederick O. Waite, upon the agreement and understanding that his, said Joseph B. Seeley's, vote, opinion, and action as such school trustee upon the matter of accepting a school building for said school district, which said matter was at said time pending before the school trustees of said district, should be influenced thereby." The information was evidently drawn with intent to charge a violation of section 68 of the Penal Code, which reads as follows: "Every executive officer, or person elected or appointed to an executive office, who asks, receives, or agrees to receive, any bribe, upon any agreement or understanding that his vote, opinion, or action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in the state prison not less than one nor more than fourteen years; and, in addition thereto, forfeits his office, and is forever disqualified from holding any office in this state." The above section has been in the Penal Code since its adoption, but defendant claims that it is repealed by implication by reason of section 1879, found in the Political Code, in article 21, under the heading, "Miscellaneous Provisions Relating to the Public Schools," enacted in March, 1893, which reads as follows: "The offering of any valuable thing to any member of a board of education, or board of school trustees, with the intent thereby to influence his action in regard to the granting of any teacher's certificate, the appointment of any teacher, superintendent, or other officer or employee, the adoption of any text-book, or the making of any contract to which the board of education of which he is a member shall be a party, or the acceptance by any member of a board of education or board of school trustees of any valuable thing, with corrupt intent, shall be a misdemeanor, punishable as by law provid. ed." The Codes must be read and construed together, and full effect given to every section if it can be done. Pol. Code, § 4480. The different sections must be read together, and that interpretation should be placed upon the language which will, if possible, give effect to each section, and make it compatible with common sense and the plain dictates of justice. Cullerton v. Mead, 22 Cal. 98; People v. Waterman, 31 Cal. 415. Whether a statute is repealed by implication is a question of intention, to be gathered from the language used and the subject-matter. Repeals by implication are not favored. Suth. St. Const. § 138; Capron v. Hitchcock, 98 Cal. 432, 33 Pac. 431. Applying the above rules, we do not think section 68 of the Penal Code, as to agreeing to receive a bribe by an executive officer upon an understanding that his vote, opinion, or action upon a matter pending before him in his official capacity shall be influenced thereby, is repealed by the section of the Political Code. The section of the Political Code does not make an agreement to receive a bribe any offense. It does make the acceptance of a bribe a misdemeanor, and therefore leaves the offense of agreeing to receive such bribe a felony under the Penal Code. We cannot see the reason why the legislature should make the agreement to receive a bribe a felony, and the actual receiving of it a misdemeanor; but it has clearly done so, whether there was any reason for it or not. It may be that in the opinion of the legislature the acceptance of a bribe is not accompanied with the same deliberation and premeditation as the agreement to accept; but, however that may be, we are bound by the language used, and cannot substitute our views as to what the law should be, instead of what it is. It is clear that the offense charged is a violation of section 68 of the Penal Code, and is not a violation of section 1879 of the Political Code. It is claimed by defendant that the information does not charge an offense, for the reason that it does not allege that the agreement was made with corrupt intent. The information follows the language of the statute, and is sufficient. It states that defendant unlawfully and feloniously asked and agreed to receive $200 upon the agreement that his vote, opinion, and action upon the matter of accepting a school building should be influenced thereby. The agreement to unlawfully and feloniously receive the money for the purpose of influencing his vote is equivalent, in the meaning of the statute, to corruptly agreeing to receive it for the purpose of influencing his vote. If his vote should be feloniously influenced by money, it would be corruptly influenced. It is usually held that an information is sufficient if its allegations are substantially in the language of the statute. People v. Edson, 68 Cal. 550, 10 Pac. 192; People v. Markham, 64 Cal. 157, 30 Pac. 620, 49 Am. Rep. 700. In the latter case the information alleged that defendant "did ask, receive, and agree to receive, a bribe, to wit, fifteen standard dollars, lawful coin of the United States of America, upon an understanding and agreement that he would not arrest persons engaged in violating section 330 of the Penal Code." It was here held sufficient, and that it stated facts sufficient to constitute a public offense. In this case the information charges the agreement to have been unlawfully and feloniously made, and therefore is less obnoxious to the objections made than was the case in People v. Markham. A person of common understanding, by reading the information in this case, would know what is intended. The contention that the information should allege that the "$200, coin of the United States of America," was something of value, is entirely without merit. The information alleges the agreement to receive a bribe, and a description of the bribe. The judgment should be reversed, and the court below directed to overrule the demurrer to the information. We concur: GRAY, C.; CHIPMAN, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment is reversed, and the court below directed to overrule the demurrer to the information. (6 Cal. Unrep. 953) GREEN v. LOS ANGELES TERMINAL RY. CO. (L. A. 1,056.)1 (Supreme Court of California. July 8, 1902.) RAILROADS-ACCIDENT AT CROSSING-CONTRIBUTORY NEGLIGENCE-FINDING -WHEN DISTURBED. 1. Deceased, when within 30 feet of the railroad, stopped, looked up the track, and found it clear for a space of 800 feet. She then, without again stopping or looking up or down the track, proceeded to cross, and was struck by a train running between 25 and 30 miles an hour. Held, that deceased was not guilty of contributory negligence as a matter of law. 2. In an action against a railroad for an accident causing death, a finding that there was no contributory negligence on the part of deceased will not be set aside unless such negligence affirmatively appears as a conclusion of law from the undisputed facts. Commissioners' decision. Department 1. Appeal from superior court, Los Angeles county; M. T. Allen, Judge. Action by Joseph Green against the Los Angeles Terminal Railway Company for damages for the death of his wife. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed. Gibbon, Thomas & Halsted and Goodrich & McCutchen, for appellant. R. A. Ling and Edwin A. Meserve, for respondent. SMITH, C. This is a suit brought by the plain..iff to recover damages for the death of his wife, alleged to have been the result of the negligent operation of the defendant's railroad. The plaintiff recovered judgment for the sum of $5,000 and costs; and the appeal is from the judgment, and from an order denying the defendant's motion for new trial. It is found by the court that at the time1 Reversed in banc. See 76 Pac. 719, 143 Cal. 31. of the accident the defendant's train "was being run and operated in a very dangerous and grossly negligent and careless manner, as to its rate of speed and failure to sound ordinary signals of warning," and that the accident to the deceased was the result of the negligence of the defendant and its employés; "that before crossing or attempting to cross the defendant's railroad track [the deceased] used ordinary care, and did what an ordinarily prudent person would have done under the circumstances"; and that she "did not by her own carelessness or negligence in any way contribute to said accident." But it is claimed by the appellant, in effect, that these are inconsistent with the more specific findings, and that upon the latter the conclusions of the court and the judgment should have been different. The case, as presented by the specific findings, is as follows: The defendant's railroad runs easterly along Humboldt street, in Los Angeles city, crossing at right angles Avenues 21 to 26, inclusive, and from the last crossing leaving the street by a sharp curve to the northward. Humboldt street, between Avenues 22 and 23, is crossed at an angle of 30° by "a wide, hard-beaten path, regularly traveled by pedestrians." which runs from a point on Avenue 23 south of Humboldt street, northwesterly, across vacant lots, to Avenue 22, in the vicinity of the house where the plaintiff and deceased lived. The distance along the path from its intersection with the south line of Humboldt street to its intersection with the railroad track is about 30 feet; and from the former point, looking easterly, one can see the track to the curve at Avenue 25, a distance of about 800 feet, but not beyond. The deceased was killed at the intersection of the path above described with the railroad in the afternoon of November 15, 1899, while it was still light, by a train coming from the east. She was then passing along the path to her home; and when she came to Humboldt street, and had entered thereon, "she looked up defendant's track in the direction from which the train *** was coming," and "there was [then] no train on the defendant's track in sight from where she was." The deceased then, without again stopping or looking up or down the track, proceeded to cross the street and railroad, following the path, and as she stepped upon the track was struck by the engine of defendant's train coming from the east, and fatally hurt. The tre at the time of the accident was running down grade, without using steam, and making but little noise,-"at an excessively high and dangerous rate of speed" (between 25 and 30 miles per hour). No whistle was blown on the engine from the time it passed a point beyond the curve, out of sight of the deceased, until within 10 or 15 feet of her, and just as the engine was about to strike her; nor was the bell rung before or while crossing any of the streets until just above where the accident occurred. As the train rounded * * * did not slacken or lessen the speed of said train, or attempt to give [deceased] warning of its approach, * until the train was within 10 or 15 feet of the point of the accident," though it is found he could have stopped the train within 200 feet after starting to do so. The above facts are not disputed by the appellant's counsel, except as to the rate of speed, the failure of the engineer to sound the signals required of him, and his failure to slacken speed until within 10 or 15 feet of the deceased. But on the last point the engineer's own testimony is explicit to the same effect as stated in the finding, and as to the others it is admitted that the evidence is conflicting. The facts found must therefore be taken as established. We do not understand that this is disputed by the appellant; but the point made is that the deceased, after stopping at the south line of the street and looking up the track for an approaching train, should have again looked and listened for the approaching train, and that, as a matter of law, her failure to do so in itself constituted negligence. But it is difficult to imagine on what principle this contention could be sustained, or, if it could, how it could be material. On the question of contributory negligence the burden of proof is on the defendant; and here there was absolutely no evidence of such negligence, except that she did not look up the track for an approaching train in passing from the south line of the street to the track. Certainly we cannot say that the inference of negligence from these facts is irresistible, or, as a matter of law, that they constituted negligence; and, unless this can be said, the contention must fail. For, to set aside the finding of the court that there was no contributory negligence on the part of the plaintiff, "such negligence must affirmatively appear as a conclusion of law from the undisputed facts." Schneider v. Railway Co., 134 Cal. 482, 487, 66 Pac. 734 et seq. Indeed, in this case the evidence tended to show that the deceased took all the care to avoid danger required of her. When she looked up the track and found it clear for the space of 800 feet, she was near enough to cross with safety, had the train been running at any but an excessive rate of speed. I advise that the judgment and order appealed from be affirmed. We concur: CHIPMAN, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed. (6 Cal. Unrep. 957) PEOPLE v. KLEE. (Cr. 899.) (Supreme Court of California. July 9, 1902.) EMBEZZLEMENT BY BAILEE-EVIDENCE-SUF FICIENCY-INSTRUCTIONS-HARM- 1. Pen. Code, § 507, makes it embezzlement for one to convert property intrusted to him as bailee. Section 511 provides that, on any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and under a bona fide claim of title, though such claim is untenable. On a prosecution for the embezzlement of a mare sold by defendant while in his possession, prosecutor testified that he intrusted her to defendant to have her for her keep until demanded; that prosecutor stated a price that he would sell the mare for, but that, in answer to a statement by defendant that he might buy the mare, prosecutor said that that would be "an after consideration." Defendant testified that prosecutor stated that he might buy the mare at any time for $55. Defendant did not inform prosecutor of the sale of the mare, or remit any of the alleged price. Held, that the evidence was sufficient to sustain a conviction. 2. On a prosecution under Pen. Code, § 507, making it embezzlement for one to convert property intrusted to him as a bailee, the question whether it was error to fail to instruct that defendant must have "feloniously" intended to appropriate the property was immaterial on appeal; the jury having been instructed that the test to be applied for determining the guilt or innocence of defendant was whether he intended to permanently deprive prosecutor of his property. 3. On a prosecution under Pen. Code, § 507, for the embezzlement of property by a bailee, the court instructed substantially in the language of Civ. Code, § 1572, which defines "fraud." Held, that though the section defines "fraud" within the meaning of the chapter relative to contracts, and had no application, there was no prejudice to defendant; the instruction being followed by one stating that the question was whether defendant intended permanently to deprive the owner of his property. Commissioners' decision. Department 1. Appeal from superior court, Ventura county; B. T. Williams, Judge. Louis Klee was convicted of embezzlement, and he appeals. Affirmed. W. E. Shepherd, for appellant. Tirey L. Ford, Atty. Gen., and A. A. Moore, Jr., Dep. Atty. Gen., for the People. HAYNES, C. The defendant was tried upon an information for embezzlement, was gound guilty, and appeals from the judgment and the order denying a new trial. The property alleged to have been embezzled was a gray mare, the property of one J. C. Hickey, which had been intrusted to defendant on the 18th of October, 1901, "to use and care for as a bailee." A brief preliminary statement of facts is to the effect that the defendant was engaged in selling paper bags, twine, etc., through the country, carrying his stock in a covered delivery wagon, with one horse, and wished to get a second horse "for its keep"; that he obtained from the prosecuting witness, J. C. Hickey, in the city of Los Angeles, a gray mare, which he drove with his own horse, and at or near Saticoy, in Ventura county, traded her to one Willis for another horse, paying $25 "to boot," and continued on northerly, intending to go to Oakland, and was detained at Niles, in Alameda county, by a constable, upon information from Los Angeles. Defendant's contention is that he had an option to purchase the mare at a stated price, and was therefore authorized to dispose of her. The prosecuting witness, J. C. Hickey, testified that. he was "engaged in buying and selling horses, keeping a sale stable"; that defendant advertised that he wanted a horse for its feed; that he went to see him, but he was absent; that he came to his stable that evening, looked at the mare, and seemed to like her. and an agreement was made that he should have her for her feed, to be redelivered at any time he saw proper to make a demand upon him, "in three to five days, maybe a week, or longer," and wanted to know what territory he expected to go over; that he said he had just come back from a trip through the southern part of Los Angeles county and Orange county, and was going back over the same territory; that the mare was worth from $60 to $65, and defendant said he would take her; that nothing was said about purchasing the mare, "except he said, 'If this mare suits me after having driven her, I will buy her, as I have got to buy a horse.' I said, "That will be an after consideration;' that there was no conversation with reference to selling the mare to him, or as to the matter of price; that he saw defendant driving the mare two days afterwards, but did not see him again until he saw him in San Francisco, some three weeks afterwards; that he went to Niles on the 7th of November, and caused his arrest in San Francisco on the 13th of November. Upon cross-examination he testified that defendant said: "If I like the mare after having driven her, what will be your price?" and that he replied, "That will be an after consideration. Q. The price you made upon her was $65? A. $60 or $65,-I don't remember,-I told him; I don't remember what I said about it. Q. She was worth it? A. I considered her worth $65. Q. Either $55, $60, or $65, or thereabouts? A. I don't think I said anything about $55." He further testified that he got his mare back through information obtained by the sheriff from Mr. Willis, of West Saticoy, on November 8th; that he got the mare back about November 23d, and sold her for $62.50. On redirect examination Mr. Hickey testified: "Klee said, 'I may want to buy this mare if I like her after having driven her.' I said, "That will be an after consideration.' There was something as regards price; that is, his buying her. I told him that would be an after consideration. I think that was the purport of it. There was no understanding or agreement between us, in any regard, in reference to the sale of the mare." L. E. Willis, with whom defendant traded the mare, testified that he met defendant near West Saticoy, and was asked whether he had a horse to trade. Defendant said he was working for a paper firm at Los Angeles, and that the team belonged to them; that he asked defendant if they had authorized him to trade and to give boot, and he said they had, and the trade was made, the defendant paying $25 to boot; that he did not remember the name of the firm; that he said he was selling paper goods, and asked the road to Montalvo, and that he came from Los Angeles; that he surrendered the mare to Mr. Hickey, and got his horse from Niles. He said he would be back in four or five weeks or months, witness was not sure which. The defendant testified in his own behalf: That he told Mr. Hickey his business was that of selling paper bags. That he traveled in the country, north and south, and stayed out as long as his bags lasted. That Mr. Hickey showed him the mare, and said he sold her to a brick mason a few weeks before, and he took her back. "I said, 'If you say she will do my work, I will use her; but, before we go any further, I want to know the price that horse will be, in case I want to buy her, or if something should happen to her on the road.' He said, "That is an after consideration.' I said, 'Mr. Hickey, I don't do business that way. I must know what the horse will cost, or I don't want her. What will the price be?' He said, "If that horse suits you, at any time you can buy her for $55.'" That on this understanding he started out on October 22d. That about 10 miles east of Saticoy, where the sand was, she would not pull a pound, and stopped, and when he tried to get her to go she commenced to kick the sorrel horse, and that his horse pulled the load clear into Saticoy. That when he would hit her she would kick over the singletree. That he was on his way to Oakland, and expected to return in six or seven weeks with Mr. Hanson. a manufacturer of face lotions, with whom he had corresponded, and that he wanted to see his two little ones, and to arrange to send his oldest child to his father, in New York. That the horse he got from Mr. Willis was worth $25 more than the mare, and that he had not received that money back. That Mr. Hickey never made any statement to him as to the value of the mare, other than $55. That there was no secrecy in his movements at Saticoy. That he told Mr. Willis the mare did not belong to him, but, under the claim that he had a right to buy the mare at $55, he traded her, without any intention of defrauding anybody, and intending when he got to Oakland to send Mr. Hickey the money. Upon crossexamination, defendant said he told Mr. Hickey that he was going up north, wherever he could sell paper; that he intended to go to Oakland, but did not say so; that he heard Mr. Hickey's statement that he was to have the mare from three to six days, until he demanded her, but that was not true; that he wanted the horse for six or seven weeks; that Hickey said, "I may want to make a demand on you," and that he replied, "You can have her at any time if she does not suit me." Mr. Hanson, called by defendant, testified to a conversation with Mr. Hickey at Niles in which the latter denied that he said the price of the mare was $55, and said it was $70, and that witness offered to settle at that price, and that he was authorized to do so. Mr. Hickey was called by the defendant in rebuttal, and testified that he did not hear everything that was said unless people speak pretty loud, but he made it a point to know what was said. Defendant's motion for a new trial was based upon the grounds: (1) That the evidence was not sufficient to justify the verdict; (2) that the court erred in its instructions to the jury; and (3) that the verdict is against law. The evidence is brought up by bill of exceptions. The act of the defendant upon which the information is based was the trading of the mare to Mr. Willis, and the statute under which it was framed is section 507 of the Penal Code, which relates to embezzlement by a bailee. Defendant calls our attention to section 511 of the same code, which provides as follows: "Upon any indictment for embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable. But this provision does not excuse the unlawful retention of the property of another to offset or pay demands held against him." This section was embodied in an instruction requested by the defendant, and given to the jury, and presented the ultimate fact to be determined. It would be sufficient here to say that the evidence was materially conflicting, and that in such case the verdict of the jury should not be disturbed. In view, however, of the very earnest contention of counsel for defendant, we will briefly call attention to some of the facts which we think fully justified the conclusion embodied in the verdict. It may be conceded that the mare was for sale, and that Mr. Hickey stated a price that he would accept for her; but there was no agreement to sell her, nor any color of authority given to the defendant to dispose of her while out upon his trip. Defendant was a stranger to Mr. Hickey, and there was no intimation that he would sell otherwise than upon payment in cash. There was nothing said from which the defendant could possibly infer that he might dispose of her and pay at some future time. It would seem well-nigh impossible that he could "in good faith" suppose or believe that he had a right to dispose of her as he did. But there are other facts which strengthen the conclusion reached by the jury. He was asked by Mr. Hickey where he was going, and said he had just returned from the southern part of Los Angeles county and Orange county, and was going back over the same |