[Crim. No. 597. Second Appellate District.-March 13, 1918.]

In the Matter of the Application of ALEXIS M. SCHWITALLA, for a Writ of Habeas Corpus.

CRIMINAL LAW-PRELIMINARY EXAMINATION-PROBABLE CAUSE-EVIDENCE-UNCORROBORATED TESTIMONY OF ACCOMPLICE.-While a defendant cannot be convicted upon the uncorroborated testimony of an accomplice, the testimony of an accomplice is admissible and proper to be considered on the preliminary examination of the defendant, and may be sufficient to establish probable cause for holding him to answer for trial in the superior court.

APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District to secure discharge from custody under a commitment upon alleged insufficient evidence.

The facts are stated in the opinion of the court.

Harry A. Chamberlin, for Petitioner.

Thomas Lee Woolwine, District Attorney, and Asa Keyes, Deputy District Attorney, for Respondent.

JAMES, J.-Habeas corpus. Petitioner asks to be discharged from the custody of the sheriff of Los Angeles County, to which he was heretofore committed by a magistrate. A complaint in sufficient form, charging defendant with the crime of arson, was filed before the magistrate and after examination had, at which testimony was taken, the order holding defendant to answer for trial to the superior court was made and commitment issued. One contention urged is that the evidence was insufficient to establish probable cause for the holding of the defendant. The principal evidence against the defendant was furnished by an accomplice in the alleged crime. This accomplice very fully narrated the acts which the defendant did and which were participated in by the witness, all of which showed that the fire was the result of a deliberate plan of the defendant. There was the further testimony of a witness who was not an accomplice, wherein it was shown that the defendant, some months prior to the time the building was burned, solicited

cause.

the co-operation of that witness to the end that the building which was ultimately destroyed should be set fire to. We are not prepared to concede, notwithstanding the holding made by the supreme court of Nevada in Ex parte Oxley, 38 Nev. 379, [149 Pac. 992], that the uncorroborated testimony of an accomplice may not be sufficient to establish probable We think that it may be sufficient. While a defendant cannot be convicted upon the uncorroborated testimony of an accomplice, the testimony of an accomplice is admissible, and is proper to be considered, and we think is sufficient to make it appear that there is a "probability" that a defendant has been guilty of the offense charged against him. Our supreme court, in People v. Cokahnour, 120 Cal. 253, [52 Pac. 505], held that the unsworn written confession of a defendant, which constituted the entire evidence submitted to the committing magistrate, was sufficient to justify an order determining that probable cause existed upon which the defendant was held to answer. (See, also, Ex parte Heacock, 8 Cal. App. 420, [97 Pac. 77].) And we may add that, to our minds, the testimony of the independent witness who gave evidence of the plan of the defendant to burn the building several months prior to the time the fire actually occurred furnished some corroboration, slight though it was, of the testimony of the accomplice.

The writ is discharged and petitioner remanded to the custody of the sheriff of Los Angeles County.

Conrey, P. J., and Works, J., pro tem., concurred.

[Crim. No. 599. Second Appellate District.-March 14, 1918.] In the Matter of the Application in Behalf of JOSE CORREA, for a Writ of Habeas Corpus.

PLAINT. Under section 311 of the Penal Code, which provides that every person who willfully and lewdly exposes his person or the private parts thereof in any public place, or in any place where there are other persons to be offended or annoyed, is guilty of a misdemeanor, a complaint charging that the defendant at the time

and place named did "willfully and unlawfully expose his person," etc., fails to charge the offense, since it fails to allege that the acts were done "lewdly."

APPLICATION for a Writ of Habeas Corpus originally made to the District Court of Appeal for the Second Appellate District for discharge from custody under commitment upon an alleged insufficient complaint.

The facts are stated in the opinion of the court.

N. D. Meyer, for Petitioner.

L. A. West, District Attorney, and Arthur E. Koepsel, Deputy District Attorney, for Respondent.

THE COURT.-Habeas corpus. Jose Correa is in the custody of the sheriff of the county of Orange under a commitment issued out of the justice's court of Anaheim Township, Orange County. In that court Correa was convicted of an alleged misdemeanor pursuant to a complaint which charged that the defendant at the time and place named did "willfully and unlawfully expose his person," etc. It is admitted that by the complaint it was attempted to charge the offense described in section 311 of the Penal Code. That section, so far as applicable to this case, is as follows: "Every person who willfully and lewdly, either: One. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; . . . is guilty of a misdemeanor."

It is manifest, upon an inspection of the complaint, that it failed to charge the offense described in the statute. It was not alleged that the acts described were done "lewdly," nor were any words of equivalent meaning used in the complaint. An essential element of the crime being thus omitted, the complaint did not state a public offense.

It is ordered that the prisoner, the said Jose Correa, be discharged from custody.

86 Cal. App.-33

[Civ. No. 1781. Third Appellate District.-March 15, 1918.] SAMUEL C. HAIGHT, Executor, etc., et al., Appellants, v. W. H. STEWART et al., Respondents.

JUDGMENT SCOPE OF PLEADINGS.-A party is not only entitled to any and all relief which is appropriately within the scope of his pleading, but may be awarded such relief upon any substantial legal or equitable ground coming within the fair and reasonable import of the averments of his pleading.

URE

LD. RESCISSION OF CONTRACT-EXCHANGE OF REAL PROPERTIES-FAILOF CONSIDERATION-JUDGMENT WITHIN PLEADINGS.-In an action to rescind a contract for the exchange of a tract of land for the interest of the other exchanging party in certain other lands and for corporation bonds, where the complaint alleged that defendant had no title to the lands and that the bonds were worthless, a judgment based upon failure of consideration could properly be rendered within the pleadings, if supported by the evidence, notwithstanding allegations of fraudulent representations and weakened mental capacity of the plaintiff.

ID. INADEQUACY OF CONSIDERATION-CANCELLATION OF CONTRACT.— Where parties to a contract for an exchange of real properties have full and equal opportunity for an independent and thorough investigation of the facts, and each exercises and relies upon his own independent judgment in negotiating and consummating the transaction, mere inadequacy of consideration, where it is not so gross as to shock the conscience, is not of itself sufficient ground for cancellation of the contract.

APPEAL from a judgment of the Superior Court of Glenn County, and from an order denying a new trial. Wm. M. Finch, Judge.

The facts are stated in the opinion of the court.

Leon Martin, and Keyes & Horne, for Appellants.

Duard F. Geis, for Respondents.

HART, J.-George W. Haight and his wife, Mary Setchel Haight, commenced the action for the purpose of having rescinded a certain contract between the plaintiff, George W. Haight, and the defendant, W. H. Stewart, and to have declared null and void two certain deeds of conveyance. After

the trial of the case, and before judgment was entered, George W. Haight died and his executor, Samuel C. Haight, was substituted as one of the plaintiffs.

The complaint shows that during the month of November, 1911, George W. Haight and W. K. Stewart were negotiating for an exchange of certain properties. On the 22d of November, they entered into a written agreement by which said Haight agreed to convey to Stewart a tract of land situated in Glenn County, consisting of 760 acres, and Stewart agreed to convey to Haight his interest in certain lands. in Mendocino County, subject to certain specified encumbrances, and also to deliver to him twenty-seven bonds of the par value of one thousand dollars each of the Western Consolidated Coal, Gas, and Electric Company (hereinafter called "the bonds"). The transaction was consummated on the twenty-seventh day of November, 1911, by the delivery to defendant, Myrtle J. Stewart, wife of W. H. Stewart, of a deed, executed by George W. Haight and his wife, conveying the Glenn County lands, and by the execution and delivery by said Stewart to George W. Haight of an assignment of all his right, title, and interest in and to the certificate of purchase of the Mendocino County lands, subject to certain encumbrances therein specified, and by the delivery to said Haight of twenty-seven bonds of said corporation.

On December 18, 1911, defendants, Myrtle J. Stewart and W. H. Stewart, conveyed the Glenn County lands to J. L. Stewart, the father of W. H. Stewart.

It is charged in the complaint that the above-described transaction was brought about by and through the false statements and representations of and representations of W. H. Stewart to George W. Haight; that said Stewart represented to said. Haight that he had title to the Mendocino County lands, whereas, the title to said lands was never at any time vested in Stewart, but that the same was, at the time of the transfer, and still is, in the United States government; that Stewart stated and represented to said Haight that the bonds. were of the actual value of six hundred dollars each and that he (said Stewart) had a short time previously to the transaction involved herein sold some of said bonds at that price; that said bonds were then "and now" of no value whatever and are wholly worthless for any purpose. It is alleged that said Haight, believing, accepting, and relying