The accused person rely alone upon his

conversation to be received in evidence. cannot be expected to continue long to denial. If innocent, he will follow the accusation with instant repudiation and will be satisfied to so leave the matter for a brief interval; but, even if innocent, his mind will quickly go to matters which will justify and sustain the denial before the world. Denial is not proof, and he will almost immediately begin to think of proof; and it will not be strange if his statements reflect the condition of his mind. We are satisfied that the point is ruled by People v. Teshara, and not by the other two cases. Not only the disposition of the motion to strike Kemp's testimony depends upon what we have just said, but also the motions to strike the testimony of Burch, Cummings, and Cleveland. They all testified before Kemp, and there was a motion to strike the testimony of each concerning the bedside accusation as that testimony was given by each, but counsel for defendant himself asked that a ruling on all the motions be reserved, and he did not finally insist upon them until Kemp had testified and the prosecution was about to rest its case.

After Cummings had testified to the occurrences at Ming's bedside the district attorney asked him if, up to that time, he had been informed that Vogel was under suspicion for having shot Ming. The question was objected to but the objection was overruled. Cummings answered that he had. He was then asked who had made the statement to him and, over an objection to the question, he was permitted to answer that it was Zeno Burch. These rulings were both erroneous. The questions called for nothing but hearsay evidence and should have been ruled out for that reason. This error was most damaging to the appellant's case, as there is nothing in the record, except the testimony of Cummings on this point, which fastens any suspicion whatever upon Vogel before the time of the conversation at the bedside of Ming.

The witness Kemp had examined the bore of the rifle already mentioned, testified to its condition and also testified, from the odor of burnt powder about the weapon, that it had been fired, in his opinion, within a period of thirty minutes or an hour preceding the time of his examination of it. The period mentioned by him would cover the time of the shooting of Ming. The defense sought to impeach this opinion evidence of Kemp by showing expert testimony given

by him in another action upon the question as to how long the odor of burnt powder would remain in a gun after its discharge. When he was on the stand Kemp was asked whether or not he had testified in the other action "that the odor of a discharged weapon would last as long or longer than twelve hours," and he answered that he had not. In the present action, the court reporter who had taken Kemp's testimony in the other case was examined and was asked whether he had then testified that the smell of burnt powder could be detected in a discharged weapon twenty-four hours after the discharge. An objection to the question was sustained and the ruling was correct, as the time fixed by the inquiry was different from that embraced in the impeaching question which had been addressed to Kemp. The court, however, appears to have sustained the objection for a wrong reason and, while that fact does not affect the propriety of the ruling, the circumstance is necessary to be stated in order to explain what followed. The district attorney had objected to the question on the general grounds, adding the specific objection that the record was the best evidence. When the objection was sustained the appellant's counsel asked the reporter to produce her record. She asked whether it was her notes or the transcribed testimony that was wanted. The district attorney responded that it made no difference to him, and counsel for appellant then asked the reporter to produce the transcript; whereupon the district attorney objected to "any testimony along this line, for the reason that there was no foundation laid; that the exact question and answer, which the defendant seeks to have read to the jury" had not been previously read to Kemp. After some argument, during which appellant's counsel stated, in effect, that he expected to show by the reporter, with the transcript to refresh her recollection, that Kemp had testified in the earlier case that the odor of a discharged gun would remain in it more than twelve hours, the court sustained the district attorney's very general objection on the ground that what the transcript showed by way of question and answer had not been exhibited to Kemp. Not only that, but he examined the transcript himself and stated to the jury that "the evidence in the transcript which has been produced, I do not consider as impeachment." Counsel for appellant then offered to prove by the court reporter, she to use her stenographic notes or

the written transcript to refresh her recollection; that Kemp had testified in the previous action that the odor would remain in a gun more than twelve hours after its discharge. There was no objection to the offer, but the court, evidently understanding that one had been made, said that he would sustain the objection, and the evidence was not received. These various rulings were erroneous. The court reporter was a proper witness to testify to statements made by Kemp at the trial at which she had acted as reporter, and she could have used her stenographic notes to refresh her recollection, as notes or memoranda made by her at the time to which her testimony related. (Code Civ. Proc., sec. 2047; People v. Ammerman, 118 Cal. 23, [50 Pac. 15]; People v. Sexton, 132 Cal. 37, [64 Pac. 107].) Further, under the statement of the district attorney that it made no difference to him whether she produced her original notes or the transcript made from them, she could have refreshed her recollection from the transcript. We have pointed out the error into which the trial. court fell in its rulings upon this question, but, in addition, we are impelled to direct attention to the action of the court in stating, after he had examined the reporter's transcript, that he found nothing in it to impeach the testimony of Kemp. His action in that regard was uncalled for. It was no more within his province to pass judgment upon the effect of the matter contained in the transcript than it would be for him to take the same attitude concerning any private memorandum which any witness was about to use for the purpose of refreshing his recollection under the terms of section 2047 of the Code of Civil Procedure. His statement was distinctly prejudicial to the rights of the appellant.

There are many other errors which the appellant contends were committed by the trial court, but we have not found it necessary to determine whether the contentions be well founded.

We have made a careful examination of the entire cause, including all the evidence, in order to determine, under the language of seation 41⁄2 of article VI of the constitution, if it can be said that the errors above pointed out have not resulted in a miscarriage of justice. We have above made an unusually full statement of the facts of the case in order to furnish a background for the consideration of this question. We are impelled to say, from our examination of the

record, that a miscarriage of justice has resulted from the errors of the trial court.

The judgment and order are reversed and the cause is remanded.

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 9, 1918.

[Civ. No. 2189. First Appellate District.-February 8, 1918.] A. SKINKLE, Respondent, v. THE AMERICAN NATIONAL BANK OF SAN FRANCISCO (a Corporation), Appellant.

GUARANTY-PAYMENT OF RENTS UNDER LEASE-CONTEMPORANEOUS ASSIGNMENT RIGHTS OF ASSIGNEE.-An agreement guaranteeing the payment of rents under a lease does not cover rents due and unpaid at the time of the execution of the guaranty, where by express terms the guaranty is to operate prospectively, and the assignee of the lease under an assignment executed contemporaneously with the guaranty cannot recover prior rents from the guarantor, although the assignment expressly included such rents.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Geo. E. Crothers, Judge. The facts are stated in the opinion of the court.

Carter P. Pomeroy, for Appellant.

Houghton & Houghton, for Respondent.

KERRIGAN, J.-This is an appeal from the judgment rendered herein on the judgment-roll alone. The sole question involved is the proper construction of a guaranty agreement.

The facts as disclosed by the pleadings and findings are as follows: On the third day of August, 1915, one Thomas W. Butcher, being then the owner of certain real property sit

36 Cal. App.-15

uated in the city and county of San Francisco, conveyed the same on said day to the Cutting Packing Company, a corporation. At the time of the conveyance the property was subject to a lease for a period of five years from the first day of December, 1914, and the rent thereunder at the time of the conveyance and until the expiration thereof was five hundred dollars a month. By a written instrument executed at the same time as the deed, Butcher formally assigned to his grantee the rents due under the lease that had accrued subsequent to July 1, 1915. On the date of the sale and assignment, installments of rent accruing on the first day of July and on the first day of August, 1915, aggregating the sum of one thousand dollars, were due and unpaid, and the right thereto passed by the assignment to the grantee named. Contemporaneously with the execution of these instruments, one George Downing, the assignor of the plaintiff herein, executed and delivered to the Cutting Packing Company a written guaranty in respect to certain rents due under this lease. This instrument recited at length the terms of the lease and the assignment thereof, the extent of the liability thereunder, and also provided for the deposit of the sum of six thousand dollars with the American National Bank as security for the fulfillment of its terms, and authorized the bank upon receiving written notice from the lessor that any installment of rent was due from the lessees, to pay the same out of the moneys so deposited with it. Thereafter on the third day of November, 1915, the Cutting Packing Company notified the bank by a written communication that the installments of rent due under the lease for the months of July, August, September and October, 1915, were in default, and demanded payment of the same out of the said sum of six thousand dollars so deposited with it, and the bank thereupon paid the amount to the Packing Company. The present action was brought by the plaintiff as assignee of Downing, the guarantor, against the bank to recover one thousand dollars, being a portion of the amount so paid by the bank on account of the installments of rent for the months of July and August, 1915.

The action proceeds on the theory that the guaranty by its terms was only intended to cover installments of rent that might become in default under the terms of the said lease subsequent to the third day of August, 1915, the day of the