[Crim. No. 475.

Third Appellate District.-June 30, 1919.]

THE PEOPLE, Respondent, v. B. C. PATTERSON,

Appellant.

AND

[1] CRIMINAL LAW- UTTERING DELIVERING CHECK WITHOUT FUNDS-PROOF OF CORPORATE CHARACTER OF BANK-WAIVER OF OBJECTIONS. In a prosecution for uttering and delivering a bank check drawn on a banking corporation without sufficient funds in the bank to pay the same, if no objection is made to the admission of parol evidence to prove the corporate character of the bank, such objection may not be urged on appeal.

[2] ID.-CORPORATE CHARACTER SUFFICIENCY OF PROOF. In such cases it is sufficient to prove the de facto existence of the corporation, and its corporate character may also be proved by parol.

APPEAL from a judgment of the Superior Court of Sacramento County. Malcolm C. Glenn, Judge. Affirmed. The facts are stated in the opinion of the court.

Charles L. Gilmore for Appellant.

U. S. Webb, Attorney-General, and J. Chas. Jones, Deputy Attorney-General, for Respondent.

BURNETT, J.-Defendant was charged by information with the crime of uttering and delivering a certain bank check for $15 to one George Carlton, it being alleged that the check was drawn November 11, 1918, upon the California National Bank of Sacramento, a banking corporation existing under the laws of the United States, and that at the time of the uttering of said check defendant had neither funds nor credit in said bank.

No attack is made upon the information, the instructions or any of the rulings of the court. The only contention is that the evidence is insufficient to support the verdict in two particulars, that is, as to the bank being a corporation, and that defendant had insufficient funds in the bank at or about the time the check was uttered and presented for payment. Appellant is, however, totally in error in this contention, as will be seen from the following quotation from the testimony of Charles S. King, the assistant cashier of

the California National Bank of Sacramento: "Q. The California National Bank of Sacramento is a corporation organized and existing under the laws of the United States? A. Yes, sir. Q. And it has its principal place of business in the city of Sacramento, state of California? A. Yes, sir." After stating how long he had been assistant cashier of said institution and that an account was opened with B. C. Patterson on October 16, 1918, with a deposit of $20 to his credit, and that the largest balance he had to his credit during November and December, 1918, was $3, he further testified that at no time during the said month of November did the defendant have any arrangements with the bank for credit.

But appellant contends that said evidence was incompetent, especially as to the incorporation of the bank, the claim being that the articles of incorporation should have been introduced. [1] As to this, it may be said in the first place that no objection was made to the introduction of the evidence and it is now too late to urge the point. [2] Again, in such cases it is sufficient to prove the de facto existence of the corporation, and its corporate character may also be proved by parol.

In People v. Barric, 49 Cal. 342, the defendant was convicted of stealing certain property of a corporation and the supreme court said: "The prosecution proved by the witness Rondel that the company known by the name given in the indictment was a corporation de facto, doing business as such. This was sufficient. (People v. Frank, 28 Cal. 507; People v. Hughes, 29 Cal. 257; People v. Ah Sam, 41 Cal. 645.)"

In the Ah Sam case it was held that proof of the bank being a corporation may be made by "general reputation, and by showing that the bank was known and acted as an incorporated company and as such issued bank bills. There are many cases to the same effect but we need cite no further. Indeed, there seems to be no merit in the appeal. The evidence is abundantly sufficient to support the verdict and the defendant had a fair and impartial trial.

The judgment is affirmed.

Hart, J., and Chipman, P. J., concurred.

[Civ. No. 1969. Third Appellate District.-July 1, 1919.] DOUBLE EAGLE MINING CO. (a Corporation), et al., Respondents, v. J. D. HUBBARD et al., Appellants.

[1] PUBLIC LANDS-CANCELLATION OF PATENT RESTORATION OF LAND TO PUBLIC DOMAIN-EFFECT OF RIGHT TO APPEAL.-When the patent to the Central Pacific Railroad Company, the effect of which was to withdraw the lands embraced therein from public entry, was by a decree of the circuit court of the United States canceled, the land was restored to the public domain as of the date of the decree; and the Railroad Company not having availed itself of the right to appeal from such decree within one year, it became final as of its date.

[2] ID.-DATE WHEN OPEN TO MINERAL LOCATION-FORMAL PROCLAMATION NOT NECESSARY.-Where the patent to the Central Pacific Railroad Company was canceled by a decree of the circuit court of the United States and the land returned to the public domain, such land was immediately thereupon open to mineral location. Formal proclamation or order by the Land Department at Washington declaring the land so open, or notice thereof to the local land office, was not necessary.

[3] ID. RULES OF LAND DEPARTMENT APPLICATION ΤΟ MINING CLAIMS.-Rules 51, 52, and 53 of the Land Department of the United States refer only to contests arising out of entries of land initiated in a local land office and in which the contest also originated in that office, and have no application to mining claims. [4] ID.-ISSUANCE OF PATENT EVIDENCE OF VALIDITY OF SIMILAR LOCATIONS. The action of the Land Department of the United States in issuing a patent to a mining claim, particularly without contest, is not conclusive that the location of another claim, being a part of the same section and located under similar circumstances, is regular and authorized.

APPEAL from a judgment of the Superior Court of Los Angeles County. H. D. Gregory, Judge. Affirmed.

The facts are stated in the opinion of the court.

Lon Bond and Deirup & Deirup for Appellants.

Niles E. Wretman for Respondents.

1. Conclusiveness of decision of the Land Department canceling a patent, note, L. R. A. 1918D, 634.

CHIPMAN, P. J.-The action arises over conflicting claims to mining property. Plaintiffs had judgment that they were entitled to the possession of the premises in controversy, and the appeal is by defendants from said judgment.

The points urged by appellants for a reversal of the judg ment are: That respondents failed to do their assessment work for the years 1913 and 1914; and "that at the time of location by the predecessors of respondents said land was not open to location."

1. The court found that plaintiffs and their predecessors have in all respects complied with the laws "relating to the performance of assessment work upon said claims." While there was a conflict in the evidence upon this point there was, in our opinion, sufficient justification for said finding and, under the well-known rule, we must decline to enter upon a discussion of this point.

2. The contention that the land was not open for location is based upon the following facts:

On March 17, 1875, a patent was issued to the Central Pacific Railroad Company to land which included the mining claims in controversy. Said patent was canceled by a decree entered in the circuit court of the United States on January 11, 1898.

On July 23, 1898, the predecessors of plaintiffs posted a notice of location of a placer mining claim upon the land now claimed by them, and said notice was recorded on August 20, 1898.

On September 24, 1900, the commissioner of the general land office wrote to the register and receiver at Marysville, reciting the fact of the entry of said decree, stating that said decision had never been appealed from, and directing said register and receiver "to make proper notation on your records as to the cancellation of the patent as to said tract." Defendants located a portion of said land on November 11, 1914, and another portion on May 3, 1915.

The contention of appellants is that the making of said decree by the circuit court "did not have the effect of restoring the land to the public domain, but that the effect of the decree was merely to return the land to the proper executive officers . . . for such disposition as they should make of it according to law" and, consequently, that the

location by plaintiffs' predecessors was premature, and, therefore, invalid.

[1] The effect of the patent to the Railroad Company was to withdraw the land from public entry. When the patent was canceled by decree of the court the land was restored to the public domain as of the date of the decree. The Railroad Company had under the statute one year within which to appeal, but as it did not avail itself of that right, the decree remained unaffected and became final as of its date.

[2] The position of appellant is that the land was not open to a mineral location after the patent was canceled until the Land Department at Washington, by some formal proclamation or order, had so declared and notice thereof had been given to the local land office at Marysville. The only action of the Land Department in the matter, so far as appears, took the form of the letter of the commissioner of the general land office above stated nearly three years after the patent was canceled. It did not purport to restore the land to entry nor did it in any wise affect the status of the land. It simply found it and left it as the effect of the decree left it, namely, as part of the public domain subject to disposition under congressional enactments pertaining to the mineral land in the several states. Appellant's contention that preceding any location of a mining claim after the decree it was necessary that some proclamation that the land was open to entry should have been given, would mean that the land to this day is reserved from location, for no such proclamation has ever been made. It would seem to us that leaving the land to the operation of the decree and the general land laws without further action by the government justifies the inference that in the opinion of the Land Department no further action after the decree was entered was necessary to open the land to location as mineral land. As tending to refute this view of the case appellant cites an act of Congress restoring part of an Indian reservation to the public domain. Kendall v. San Juan Milling Co., 144 U. S. 658, [36 L. Ed. 583, 12 Sup. Ct. Rep. 779, see, also, Rose's U. S. Notes], is cited, where it was held that the restored portion of the reservation was not open to mineral location in advance of the proclamation. of the President, any more than to any other kind of entry.