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being made that the person whose deposition it is, is absent from the state. Sections 685 and 639 Penal Code are constitutional. People v. Oiler, 66 Cal. 101.
A defendant in a criminal action cannot be crossexamined or questioned upon matters upon which he was not examined in chief. There is no power in the court to compel a defendant to take the stand. Section 1323 Penal Code. People v. O'Brien, 66 Cal. 602, McKee and Thornton JJ. dissenting, hold that the privilege of not testifying may be waived, and when a defendant testifies in his own behalf he becomes a witness in the case, subject to be examined and cross-examined as any other wit
The provision for public trial is not violated by the court excluding from the room all persons except the judge, jurors, witnesses and persons connected with the trial. People v. Swafford, 65 Cal. 223. Contra, People v. Hartman, opinion filed June 26, 1894.
Where defendant was convicted upon a defective information for murder and procures a reversal on appeal with directions for further proceedings, and the action is dismissed and a new information filed, he cannot plead former jeopardy or conviction. People v. Schmidt, 64 Cal. 260.
Where a person is charged by information with a prior conviction of a similar offense, he is not thereby placed twice in jeopardy for the same offense. People v. Lewis, 64 Cal. 401.
The act of March 25, 1868, (Stats. p. 316) for the protection of certain lands in Sutter county from overflow, is unconstitutional, in that it does not provide due process of law for the taking of private property. Moulton v. Parks, 64 Cal. 166.
The act of April 1, 1876, (Stats. p. 653) authorizing the city of Oakland to construct a bridge across the estuary of San Antonio, and declaring that the costs should be assessed upon certain specified lands therein declared to be benefited, in proportion to such benefits, and providing for a commission to apportion costs, is constitutional. Pacific Bridge Co. v. Kirkham, 64 Cal. 519.
The constitution does not prohibit the legislature from providing for the taking of depositions by defendant in every class of criminal cases. People i'. Hurtado, 63 Cal. 288.
While a demurrer to a criminal information was under consideration by the court, another information against the defendant, for the same offense, was filed. Subsequently the demurrer was sustained, but no order was made or requested permitting a new information to be filed, nor any opinion expressed to the effect that the defect could be cured by a new information. Held, the judgment on demurrer was a bar to a prosecution under the second information. (Penal Code, Sec. 1008.) People v. Jordan, 63 Cal. 219.
Section 1206, 0.C.P., giving a preference to certain labor claims in cases of attachment, provides also for sufficient notice, and is not unconstitutional, as taking property withont due process of law; neither is it special legislation. Mohle v. Tschirch, 63 Cal. 381.
Sections 284, 285, 0. C. P., relating to the substitution of attorneys, have no application to criminal cases, where a defendant is entitled to appear in person and with counsel. Ex parte Clarke, 62 Cal. 491.
In construing provisions of Political Code (Secs. 3449 to 3459) relating to the assessment of lands within reclamation districts, it is lield, that no assessment against land can be enforced except by action to which the owner must be made a party; it is immaterial whether he has notice before the assessment, if in the subsequent proceeding he has his day in court with full opportunity to contest the charge before it is declared a lien upon his land or a judgment to be collected out of his property. Reclamation Dist. No. 108 v. Evans, 61 Cal. 104.
So much of section 636, Penal Code, as authorized the seizing and selling or destroying of nets, etc., employed in unlawful fishing, as said section read in 1878, is unconstitutional, as authorizing the taking of private property without due process of law. Ieck v. Anderson, 57 Cal. 251.
Due process of law, as used in the constitution of the United States and in state constitutions, convey the same meaning as "the law of the land”in Magna Charta; and in the usual acceptation, are to be regarded as meaning general public laws binding all the members of the community under similar circumstances, and not partial or private laws affecting individuals. Kalloch v. Superior Court, 56 Cal. 229.
The constitutional guarantee of the right to appear and defend in person and with counsel does not extend to a person who has been convicted and escaped from custody the right to be represented in the appellate cor rt by counsel while he remains at liberty, and in such case the Supreme Court will order his appeal to stand dismissed unless defendant returns to custody within a specified time. People v. Redinger, 55 Cal. 290.
Question as to constitutionality of sections 686, 869, Penal Code, as to introducing upon the trial depositions of witnesses taken before committing magistrate, not decided. People v. Morine, 54 Cal. 575.
here the reporter's notes are offered in evidence in case of perjury to show what the defendant swore to at the preliminary examination of another person, his testimony at that time having been taken through an interpreter, Held, in the absence of the reporter and the interpreter, and no showing accounting for their absence, the notes are not admissible. The provision of the code making reporters' notes prima facie evidence is not applicable where an interpreter was employed. People v. Lee Fat, 54 Cal. 531.
SECTION 14. Private property shall not be taken or damaged for public use without just compensation havin: beeu first made to, or paid into court, for the owner, and no right of way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil cases in a court of record, as shall be prescribed by law.
Const. 1849, Art. I, last clause Sec. 8.
Where a culvert or drain is placed across a street in a city, sufficient for ordin ary seasons, damage thereafter occasioned to adjoining property by reason of extraordinary flood which could not have been reasonably foreseen, does not give right of action for such damage, and does not constitute a taking or damage to private property for public use within the purview of this clause of the constitution. Los Angeles Cemetery Association v. City of L. A. Opinion filed July 31, 1894.
A municipal corporation is liable for such special consequential damage as an adjoining proprietor sustains over and above the common injury to the other abutters on the street, or the general public, caused by street improvement done by the city. Reardon v. San Francisco, 66 Cal. 492.
The rule prevailing under the former constitution that persons appointed or authorized by law to make or improve public streets are not answerable for consequential damages, if they act within their jurisdiction, and with care and skill, is changed under this provision that private property shall not be taken or damaged for public use without just compensation having been first made, and approving Reardon v. San Francisco, supra, judgment against the contractor for damages peculiar to the property of plaintiff, is affirmed. De Long v. Warren, 36 Pac. Rep. 1009. And see the suggestion of McKinstry, J., in concurring opinion in Green v. State, 73 Cal. 40. Compare Butler v. Ashworth. Opinion filed June 9, 1894. (Repair of sewer.)
Costs should be allowed owner who makes bona fide defense in proceedings to condemn land for street, notwithstanding section 1255, Ç. C. P., provides that in such proceedings costs may be allowed or not, or may be apportioned between the parties. City and Co. S. F. v. Collins, 98 Cal. 259.
An act to condemn land for widening Mission street in San Francisco (acts of 1863, Stats. p. 560; 1889, p. 70; 1863-4, p. 347; 1867-8, p. 555) and other street improvement acts; also section 19, article XI, constitution as adopted in 1879, are construed and,
Held, defendant was not deprived of any right secured by section 14, article I. City and Co. of S. F. v. Kiernan, 98 Cal. 614.
In an action to condemn land for railway purposes, it is not proper to receive evidence to show that the land not taken will be benefited by the reason that the road would render crops raised on the land more accessible to market; and it is proper to admit evidence to show that the construction of the road would render it more difficult and expensive to irrigate the land not taken, although the land had never yet been under cultivation, and no system for the irrigation of it was yet under contemplation-the land being adapted to cultivation. Also, the court properly instructed the jury as follows: "In fixing the amount of damages to that portion of the tract of each defendant not sought to be condemned, which may accrue by reason of the running of the road through their premises, the jury must ascertain and fix the amount, irrespective of any benefit which may result to the defendants from the proposed railroad." San Bernardino & E. Ry. v. Haven et als., 94 Cal. 489, (affirming Pac. C. Ry. Co. v. Porter, 74 Cal. 261; Muller v. Ry. Co., 83 Cal. 245. See also S. J., etc., R. R. Co. v. Mayne, 83 Cal. 569.)
The question of the liability of a receiver of an insolvent street railway company properly belongs to the court by whom the receiver was appointed in the exercise of its jurisdiction in equity. The right of trial by jury as an absolute right does not extend to cases of equity jurisdiction. The right of a street railroad company to use tracks or roadway of another company already operating such railway in streets of a city, does not involve the taking of private property, nor any exercise of the right of eminent domain. When the first company accepted its franchise, it did so under the provisions of section 499, C. C., then in force, and thus with the understanding-in effect, express stipulation--that any other company might use the track jointly with itself. Pac. Ry. Co. v. Wade, 91 Cal. 454.
The right of eminent domain is inherent in the