ferent meanings. The criticism is highly hypercritical. The information charges in the portion preceding the quoted clause that the instrument was false and fictitious. The statement that there was no such person "then" in existence is very comprehensive, and certainly if there was no such person in existence on the twentieth day of May, 1909, there was no such person "there" in the city and county of San Francisco. The information was sufficient to enable the defendant or any person of common understanding to know what was intended, and it sets forth the acts charged with such degree of certainty as to enable the court to pronounce judgment upon conviction.

There was no error committed by the court in allowing the district attorney to ask of prospective jurors the questions pointed out in appellant's brief as to the jurors being personally acquainted with certain persons therein named. The juror Lemmon was asked by the district attorney if he knew one Mr. Tompkins, who used to be the warden at San Quentin, and also if he knew a man named Dan Sullivan, who was in some way connected with the county clerk's office. The juror replied that he did not know either of them. The juror Blanchfield, in answer to a question by the district attorney, said he knew Dan Sullivan. The principal complaint is made as to the examination of the juror Rulfs. In answer to a question by the district attorney in direct examination, Rulfs testified that he did not know Dan Sullivan, but that he did know one A. Jacobs. In cross-examination of the juror by defendant's counsel, it was shown that the juror had read some account of the matter in the newspapers; that he remembered "about a prisoner over there getting acquainted with the warden's wife, something like that; that is all I remember about it." This is said by defendant's counsel to have reference to the fact that the defendant had before been in San Quentin for a prior offense. It is sufficient to say that we cannot determine from the record what prisoner the juror referred to. We cannot presume that the reference was to this defendant; and even if the answer raised a suspicion that the prisoner referred to was the defendant, the matter was elicited in answer to questions asked by defendant's own counsel in cross-examination. There was no motion to strike

out, and the juror further stated that he was not in any way prejudiced by what he had read.

The admission of the written instrument in evidence without showing that it had been placed in a bank for collection was not error, nor was it necessary to have the draft sent through a bank for collection. If the draft was false and fictitious as alleged in the information, it would not have been paid, and would have been returned by the bank. Hence it was not necessary to do a vain and useless thing.

It is stated that the court committed error of the most prejudicial character in admitting in evidence over defendant's objection a document marked "People's Exhibit B." It appears that the exhibit was a letter, and was offered and admitted in evidence merely for the purpose of the "physical appearance of the paper and the handwriting," and evidently for the purpose of comparison. Prior to the time the letter was offered one Riggs had been called as a witness for the prosecution, and testified that about April 10th of 1909, the defendant came to his place of business with a man claiming to be W. C. Watson, whom defendant introduced to the witness as W. C. Watson; that the person purporting to be W. C. Watson signed a written order to the witness for an encyclopedia that the witness appears to have been agent for, and that the order was signed in the presence of the witness "W. C. Watson, 103 Natoma street." The witness Riggs was further examined, and identified a paper marked "People's Exhibit A" (which appears to be the instrument described in the information). The witness testified that he received the letter "Exhibit B" by mail on the twelfth day of April, 1909; that it had been in his possession ever since. The letter "Exhibit B" was a request to Riggs not to deliver the encyclopedia, as the writer of the letter would not receive it, and was signed "W. C. Watson." The witness further testified that he compared the signature of the letter with the signature on the written order that he saw signed in the defendant's presence by the man purporting to be W. C. Watson, and that they appeared to be the same. Now, the only object of admitting the letter in evidence on the testimony of Riggs was for the purpose of the physical appearance of the letter and the handwriting for comparison. The court did not err in admitting it for the purposes named. The

facts preceding it, to wit, that the defendant had gone with the party W. C. Watson to the place of business of Riggs and introduced him to Riggs, and that an order was then signed by said party, W. C. Watson, for an encyclopedia, on which defendant received a commission from Riggs; that the said Watson never took or paid for the encyclopedia, tend at least in some degree to show guilty knowledge on the part of defendant. The witness Riggs having seen the purported Watson sign his name to the order for the encyclopedia, and having received in due course of mail a letter countermanding the order so signed "W. C. Watson," stated that he had compared the signature to the letter with the signature to the order, and that they appeared very much alike. The code provides (Code Civ. Proc., sec. 1943): "The handwriting of a person may be proved by anyone who believes it to be his and who has seen him write or has seen writings purporting to be his on which he has acted or been charged, and who has thus acquired a knowledge of his handwriting." The witness Riggs had seen the man who claimed to be W. C. Watson write, and had acted upon the writing so made by the man purporting to be said W. C. Watson, and the effect of his testimony is that he believed the letter to be in the same handwriting. While the evidence was not as convincing as in many cases, we cannot say, as matter of law, that it was not sufficient to prove to the satisfaction of the trial judge that the letter was written by the same man who wrote the order for the encyclopedia.

It is claimed that the court erred in refusing the defendant's requested instruction as follows: "The nonexistence of the individual H. C. Watson mentioned in the information, like all the other essential elements which go to make the offense for which this defendant is being tried, is one of the material issues involved in the case. The nonexistence of the said H. C. Watson must be proved by the prosecution beyond and to the exclusion of all reasonable doubt, and to a moral certainty, and if there be any reasonable doubt in your minds as to whether or not there was in existence anywhere in the world such an individual as H. C. Watson on the twentieth day of May, 1909, you must resolve that doubt in favor of the defendant, and find a verdict of not guilty."

The instruction was properly refused. The prosecution certainly was not required to prove, nor were the jury required to believe, beyond a reasonable doubt, that there was no such person in the world as H. C. Watson at the time the writing was signed.

It was only necessary to show to a common certainty that there was no such person in existence in the vicinity of, and connected with, the particular acts charged in the place and county where jurisdiction accrued. (People v. Eppinger, 105 Cal. 36, [38 Pac. 538]; People v. Terrill, 133 Cal. 120, [65 Pac. 303].) If the proposition contended for in the instruction be the law, it would be impossible in any case to prove beyond a reasonable doubt that there was no such particular person in the world.

The instruction of the court as to evidence covering another transaction between defendant and H. C. Watson and the witness Riggs was evidently an inadvertence as to the use of the initials "H. C." instead of "W. C." This is plain from what follows, wherein the jury are told that that was offered as "tending to show a connection between the defendant and said H. C. Watson, whom the people claim to be the maker of the draft in question." The jury evidently understood that the court referred to the transaction where the order for the encyclopedia was signed by the man purporting to be "W. C. Watson." We do not think the court intended to lead the jury to believe, nor could the jury have believed from the language used by the court, that the court was charging them, as a matter of fact, that the writer of the draft was the same W. C. Watson referred to by Riggs as giving the order for the encyclopedia.

We have examined the instructions as a whole, and we think that they fairly and fully instructed the jury as to the questions of law bearing upon the issues before them. It is not for imaginary errors, or errors in regard to getting one initial wrong in an instruction, or in some other part of the record, that the court will reverse a case that appears to have been fairly tried; and in regard to other errors which are claimed to have occurred in rulings on testimony, we have examined them, and we do not find any of sufficient importance to justify a reversal of the case.

The judgment and order are affirmed.

Kerrigan, J., and Hall, J., concurred.

[Crim. No. 252. First Appellate District.-June 28, 1910.]

THE PEOPLE, Respondent, v. ERNEST BOERO, Appellant.

CRIMINAL LAW-RAPE-SEXUAL INTERCOURSE WITH YOUNG GIRLSUPPORT OF VERDICT.-Held, that, in this prosecution for rape committed by the defendant in having sexual intercourse with a young girl under the age of sixteen years, it was for the jury to determine as to the truth of the testimony for the prosecution, in the first instance, and where the judge of the trial court, who also heard and saw the witnesses, has approved of the verdict for conviction, this court cannot say, as matter of law, that the verdict is not supported by the evidence. LD.-EVIDENCE-PREVIOUS ACTS OF INTERCOURSE.-Upon the trial of such prosecution, the court properly admitted evidence of other acts of sexual intercourse between the defendant and the prosecutrix, occurring before the act relied upon for a conviction. Id.—General RULE AS TO OTHER ACTS.—In prosecutions for adultery, incest and rape (especially when committed by consent upon persons under the age of consent), other acts of sexual intercourse between the same persons may be proven as showing an adulterous disposition, and thus corroborating the evidence of the substantive charge.

ID. CONFLICT IN AUTHORITIES AS TO TIME OF OTHER ACTS.-There is some conflict in the authorities as to the right to give evidence of acts of sexual intercourse occurring after the act upon which the indictment is based, but acts occurring prior thereto are well within the rule allowing such evidence.

ID. CASE QUALIFIED.-The case of People v. Ah Lean, 7 Cal. App. 628, is qualified on the subject of the admissibility of prior acts of sexual intercourse.

ID.-DEFECTIVE RECORD AS TO TIME OF IMPRISONMENT— -AMENDMENT UPON NOTICE AND HEARING.-The objection that the judgment in the record is defective in not showing the time of imprisonment has been removed upon suggestion of diminution of the record which shows that after notice and hearing the word "years" has been inserted after the figure "20" by amendment of the judgment.

ID. FAILURE OF JUDGMENT-ROLL TO SHOW PRESENCE OF DEFENDANT— ERROR NOT PRESUMED.-The mere failure of the judgment-roll to show that defendant was present during the trial on a specified afternoon is immaterial where it does not show that he was not present. All intendments are in favor of the judgment; and error will not be presumed, but must be affirmatively shown by the appellant.