(225 P.) [2] It is evident from the record that the [ it may be said that he utterly failed to testify district attorney believed in the utmost good to anything at all. Therefore, neither the faith that Mrs. Hughes, one of the alibi affidavit nor the transcript in question could witnesses for the defense, had been guilty of be resorted to for impeachment purposes as signaling to Mrs. Champion, another witness provided in sections 2049 and 2052 of the Code for the defense, while the latter was upon of Civil Procedure. People v. Creeks, 141 the stand testifying. Immediately after Mrs. Cal. 532, 75 Pac. 101; People v. Cook, 148 Champion retired from the witness stand Cal. 334, 83 Pac. 43; People v. Spencer, 58 the district attorney called Mrs. Hughes to Cal. App. 197, 225, 208 Pac. 380. the stand and asked her: "It is a fact, is it not, a moment ago just preceding the time that I jumped up that you were shaking your head to the witness upon the stand." The witness denied that she had been communicating with the witness upon the stand and explained that she had been talking to her other aunt, who was likewise a spectator. She did not positively deny, however, that she had shaken her head. What she did deny was that she had any intention of making any impression upon the witness who was upon the stand, and this was shown by her answer. The district attorney having asked her if she had not been looking at the witness on the stand at the time she was shaking her head, her reply was: "Well, if I was, I didn't know it. Certainly I didn't intend to have any impression on her." In the interest of justice, the district attorney was entitled to an explanation of the conduct of the witness sitting in the courtroom, and if, as the district attorney evidently believed, the witness was attempting to communicate with a witness testifying upon the stand, he was not required to sit passive and permit such communication. Having acted in good faith, he cannot be charged with misconduct, even though he failed to fully substantiate the claim that the witness sitting in the courtroom was willfully signaling to the witness upon the stand. [3] The court did not err in sustaining the objection of the prosecution to the defendant's attempt to read in evidence the affidavit of a witness for the defense, one Harry A. Smith (referred to in the record as Harry A. Smith No. 1) used upon extradition proceedings, nor did the court err in refusing to permit the defense to read in evidence the transcript of the testimony given by said witness at the preliminary examination of the defendant. The entire testimony of this witness as given upon the trial of the instant case, was confined to statements made in response to questions propounded by the defense, which were substantially that he did not know or could not remember anything concerning the making and signing of the affidavit used for extradition purposes and that he did not know whether or not he had testified at the preliminary examination of the defendant. Nothing material or immaterial, favorable or unfavorable, to the defendant's case was elicited from the witness. In short, [4] There was no error in the ruling of the court permitting the reopening of the case during the closing argument of the district attorney in order to permit the introduction in evidence of the testimony of Dr. Parkin, a medical expert. The record shows that the objection to the reopening of the case for the purpose of permitting Dr. Parkin to testify was expressly waived by the defense. [5, 6] It was error, however, for the trial court to admit, over the objection of the defense, the testimony of Dr. Parkin. Apparently it was the theory of the trial court that the testimony of the witness was admissible for the purpose of assailing the credibility of the witness Harry A. Smith No. 1. This was the announced purpose of the district attorney. The testimony of Dr. Parkin was to the effect that the witness was not insane at the time he was called to the witness stand, and the major portion of the doctor's testimony tended to show no more than that the witness was possessed of a weak and uncertain memory. A witness not affected by mental disease or mental derangement may be impeached only in the manner and for the reasons provided in sections 2051 and 2052 of the Code of Civil Procedure. People v. Harrison, 18 Cal. App. 288, 296, 123 Pac. 200. His testimony may not be impaired by the opinion of other witnesses that he is afflicted with a weak memory. That fact, if it be a fact, may and perhaps must be done by crossexamination. Ah Tong v. Earle Fruit Co., 112 Cal. 679, 682, 45 Pac. 7. Conceding the error in this behalf, the defendant could not have been prejudiced thereby because the witness Harry A. Smith No. 1, as previously indicated herein, had not testified to a single fact material to any issue in the case. Therefore, Dr. Parkin's testimony as to the weakened and uncertain memory of the witness could not have harmed the defendant. [7] Conceding, without deciding, that it was error to require Hale Day, a witness for the prosecution and an attorney at law, to testify against the defendant, still the error, if any, was without prejudice to the defendant. It is doubtful whether the fact that Day was the attorney for the defendant at the time in question was sufficiently shown in evidence. In one breath he said that he was the attorney for the defendant at that time and in the next breath he said that he was not. In such a situation there was a conflict in the evidence as to the fact of the existence of the relationship, and therefore the ruling of the trial court made at one stage H A reading of the entire record convinces us that there has been no miscarriage of justice. Judgment affirmed. We concur: MYERS, J.; SEAWELL, J.; On Petition for Rehearing. PER CURIAM. [10, 11] In the petition for a rehearing in this case the point is urged for the first time that a certain instruction requested by the people and given by the trial court erroneously stated the rule relating to the measure of proof required for the establishment of an alibi which was the defendant's defense. No mention was made of this point in the original briefs presented in support of the appeal, and therefore the point was not discussed in the opinion affirming the judgment. Ordinarily we pay no attention to points presented for the first time upon a petition for a rehearing, but in view of the fact that the judgment affirmed in this case involves the death penalty we feel constrained to notice the point, and say that the instruction complained of contained an erroneous statement of the law. of the case as to the nonexistence of the re-, fusing what was practically a duplicate in- [9] The refusal of the court to give an instruction requested by the defense to the effect that the burden was upon the prosecution to prove the corpus delicti was not error, inasmuch as the record shows that the court did give another instruction at the request of the defendant which was substantially the same as that requested which was refused. Furthermore, the trial court gave full and complete instructions at the request of the people upon the subject of corpus delicti. The trial court did not, therefore, err in re The instruction should not have been requested by the district attorney and should not have been given by the trial court. If that instruction had been permitted to stand alone, it may well have constituted prejudicial error. The record, however, shows that immediately following the instruction complained of the trial court, at the request of the counsel for the defendant, gave two separate, particular, and pertinent instructions, which clearly and correctly stated and reiterated the law, relative to the degree of proof required to establish the defense of alibi, and when the instruction complained of is read, as it must be, in conjunction with the two instructions immediately following it, it cannot be said that the jury was not fully informed of the law which covered and controlled the defendant's defense of an alibi. It was doubtless for that reason that the instruction now complained of in the petition for a rehearing was not complained of and commented on in the briefs filed upon the original hearing. The rehearing is denied. (225 P.) OF SAN DIEGO. (Civ. 4002.) (District Court of Appeal, Second District, Division 1, California. Feb. 29, 1924. Hearing Denied by Supreme Court April 28, 1924.) Municipal corporations 918(4)-Bond issue defeated unless two-thirds of those voting on Court has decided the identical question in. LOWRY V. COMMON COUNCIL OF CITY volved herein in the case of the City of Pasadena v. Chamberlain (Cal. Sup.) 219 Pac. 965. was written by The opinion in this case Chief Justice Wilbur, and was concurred in by all the other justices, and we think it conclusive upon the subject. The court in this case followed Law v. San Francisco, 144 Cal. 384, 77 Pac. 1014, and City of Long Beach v. Boynton, 17 Cal. App. 290, 119 Pac. 677, and held several.bond issues voted for such issue. Where several bond issues are submitted at a special election, each proposed issue must receive two-thirds of all those voting at the election, under Deering's Gen. Laws 1915, No. 2371. "That under this statute, where two bond issues were submitted at the same election, a separate proposed bond issue was defeated, unless two-thirds of all of those voting at the Appeal from Superior Court, San Diego special election voted for the particular bond County; C. N. Andrews, Judge. issue in question." Action by Mary Clarke Lowry against the Common Council of the City of San Diego. Judgment for plaintiff, and defendants appeal. Reversed. S. J. Higgins, City Atty., and Arthur F. H. Wright, Deputy City Atty., both of San Diego, for appellants. C. C. Pease, of San Diego, for respondent. The statute referred to in this opinion is the statute of 1901, as amended in 1915 (Deering's Stats. 1915, p. 1151), and is the same statute under which the common council of the city of San Diego proceeded in the calling and holding of the special bond election, out of which this action arose. In the Pasadena Case four bond propositions were submitted to the voters of said city at a special bond election, which special bond election had been consolidated with the Bond proposigeneral municipal election. tion No. 4, at such election, received a twothirds majority of all the votes cast on said proposition, but failed to receive two-thirds of all the votes cast at said special election, and the Supreme Court held that it was de feated. It follows that the judgment in this action should be reversed, and it is so ordered. CURTIS, J. With the general municipal election held in the city of San Diego on the 5th day of April, 1921, the common council of said city consolidated a special election, at which there were submitted to the voters of the city of San Diego six bond issues. Five of said issues received a two-thirds majority of all the votes cast at said special election, and were declared carried by said common council, but the other bond issue, known as "Proposition Six," while it received a twothirds majority of all the votes cast upon said proposition six, failed to receive twothirds of all the votes cast at said special election. The common council for this reason declared that proposition 6 was defeated, and refused to issue or sell the bonds therein provided for. The plaintiff, as a taxpayer of said city, instituted this proceeding for a peremptory writ of mandate, directed to said common council, to compel them to issue and (District Court of Appeal, Third District, Cal sell the bonds called for in said proposition six. The trial court gave judgment in favor of plaintiff, and defendants have appealed therefrom. There is but one question involved in this appeal, and that is, Was it necessary, in order to carry said proposition 6, that two-thirds of all the voters voting at said special election should vote in favor of said proposition, or was it sufficient, in order to carry said proposition, for two-thirds of all the voters voting on said proposition to vote in favor thereof? Counsel on each side of this controversy have ably presented their respective views in their exhaustive briefs filed in this court. At the time of the filing of these briefs, this question was no doubt open to debate. Since that time, however, the Supreme We concur: CONREY, P. J.; HOUSER, J. In re WILSON'S ESTATE. DOOLITTLE et al. v. McCONNELL et al. (Civ. 2646.) ifornia. Feb. 21, 1924. Rehearing Denied March 22, 1924. Hearing Denied by Supreme Court April 21, 1924.) 1. Wills 506 (2)-Distribution among heirs "as provided by the laws of the state" construed to mean laws as existing at time of execution of will. Provision that, upon death of life tenant without issue, property should be distributed "among my heirs, as provided by the laws of the state of California, the same as if I had died intestate," held to refer to laws in force at time of execution of will and not as changed ing blood relatives of a deceased spouse her some years later, before testatrix's death, makheirs as regards separate property of the deceased spouse, especially in view of rule that court should prefer a lesser degree of uncertainty to a greater degree of uncertainty un For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes der the law as she knew it to be at the time of the execution of her will were her heirs as less language is clearly to contrary, and should, tingent bounty that class of persons who unaccept as beneficiaries of a contingent estate those who are so designated by a lesser contingency, and in view of Civ. Code, § 1327, and notwithstanding section 1336. [Ed. Note. For other definitions, see Words and Phrases, As Provided by Law.] 2. Wills 493-Rule stated for ascertaining devisee of contingent estate. Where an estate is given to a person described by relation either to testator or to other devisees on contingency that may or may not happen, and a person is in being at time of execution of will to whom on happening of the contingency description would apply, it is a safe general rule to hold such person as intended to be the devisee. 3. Wills 452-Interpretation of law adopted which prefers those of the blood. Where law is capable of two interpretations, one should be adopted which prefers those of blood of testator to strangers, intent of testator being doubtful. 4. Wills 493-Rule stated for ascertaining identity of beneficiaries. Where there is any doubt as to identity of beneficiary or class of beneficiaries, intent of testator should be interpreted in light of known conditions surrounding him and presumably influencing him at time he executed will. 5. Wills 493-Identity of beneficiaries determined in light of law pertaining to them at time of execution of will. Where there is an ambiguity of expression by testator as to identity of objects of his bounty, his real intent and meaning will be sought for in light of the law pertaining to such objects in force and existing at time testator formed and expressed his intent. Appeal from Superior Court, Sacramento County; Charles O. Busick, Judge. In the matter of the estate of Ellen M. Wilson, deceased. From a decree of distribution in favor of Thomas McConnell and others as against E. Phoebe Doolittle and others, the latter appeal. Reversed, with directions. Grove L. Johnson, Butler & Van Dyke, Ben P. Tabor, and George Hinsdale & Pigott, all of Sacramento, for appellants. White, Miller, Needham & Harber, Irving D. Gibson, and Elliott & Atkinson, all of Sacramento, for respondents. BUCK, Judge pro tem. This is an appeal from a decree of distribution involving the construction of a will and the ascertainment of the intention of the testatrix as expressed in her will regarding which of two classes of persons should be the beneficiary of a certain contingent remainder created by the will. On behalf of the appellants who comprise 19 nieces and nephews of the testatrix it is contended that it was the intent of the testatrix to designate as the objects of her con provided by law in the event of intestacy and the failure of issue, while on behalf of the respondents who are the collateral relatives of her predeceased husband it is contended that it was the intent and purpose of the testatrix as disclosed by her will to have her property go to that class who would be her heirs in the event of intestacy under the law as the law might be at the time of the vesting of the contingent remainder. By her will dated April 30, 1896, which was prepared by "an attorney of recognized standing and ability throughout the state of California," the testatrix provided as follows: "All the real property of which I may die seized, and all in which I may at the time of my death have any interest, wheresoever situated, I give and devise unto my said son, to have and to hold the same for and during the term of his life; and at his death the same shall go and be the property of his then living children,-it being my intention to devise unto him a life estate in the whole of said realty, with remainder over at his death, to his then living children; and if he leaves no issue, then upon his death, all of such real property shall the laws of the state of California, the same be distributed among my heirs, as provided by as if I had died intestate." "If my said son shall die before me, leaving issue, then all my property and estate, of every kind, shall go to such issue, to whom I hereby give, devise and bequeath the same; but if he shall die before me without issue, then I give, devise and bequeath the whole of my property, and estate, of whatsoever kind and wheresoever situated, unto my heirs-the same to be distributed among them according to the California laws of succession in cases of intestacy." The son was designated as executor without bonds. The first codicil, dated February 14, 1898, which was not prepared by the attorney referred to, gave $4,000 and a diamond ring to her "beloved niece," Carrie Doolittle. On June 2, 1899, she executed a second codicil which merely revoked the legacy of $4,000 to Carrie Doolittle, the amount of the same having been given her that day in money, and confirmed and ratified her previously executed will in other respects. At the time of the execution of the will the deceased was a widow 60 years of age and had then living several brothers and sisters and numerous nieces and nephews. In 1861 she had married one Thaddeus McConnell, who died intestate in 1863, leaving property of the value of $24,661, all of which was his separate property and one-half of which was distributed to the testatrix and the other one-half to her infant son Thaddeus. At the time of her death the value of her estate For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) cept the words "in so far as the record before us shows." After the rendition of this decision in the Supreme Court the respondents petitioned the superior court for distribution of the estate to them, claiming that the estate left by the testatrix, being the proceeds of the separate property of her predeceased spouse who died in 1863, was by her will devised and bequeathed to them by virtue of the contingent remainder provided for in the will. And that it was her intention, as expressed in her will made in 1896, that the beneficiaries of the contingent remainder should be not the class indicated by the statute in effect in 1896, but should be the class to be indicated by whatever statute might be in effect upon the vesting of this contingent remainder. was $94,822, a greater portion of which was, import was a part of the original opinion exfound by the court to be the proceeds of the separate property of her deceased husband distributed to her from his estate. After the death of her husband, Thaddeus McConnell, the testatrix married one William T. Wilson, whom she subsequently divorced. At the time of her death in 1907 she left as her sole heir her son, Thaddeus McConnell. She also left surviving her a brother and numerous nieces and nephews. Subsequent to her death her brother and one of her nieces, Ellen Flanagan Purchase, died, leaving certain heirs at law. On April 10, 1919, her son, Thaddeus McConnell, died testate without living issue and left as his sole heir at law and devisee his widow, Etta McConnell. In 1896, at the time testatrix made her will, it was provided by law that the property of a person, irrespective of the source from which it may have been derived, should, in the event of intestacy, and the failure of issue, spouse, or parent, go upon his death to his brothers and sisters and the children of deceased brothers and sisters. Not only at the time the testatrix made her will, but from time to which the memory of man runneth not to the contrary, it had been in substance so provided by law. But in 1905, two years before her heath and nine years after she made her will, the statute of succession of this state was amended to provide that, upon the death of an intestate without spouse, or issue, that portion of his estate which had been the separate property of a predeceased spouse would go to the relatives of the predeceased spouse. After the death of her son without issue in 1919, the appellants herein and the widow of the son Thaddeus each claimed to be entitled to the estate of the testatrix herein and opposing petitions for distribution were filed. And in the lower court the property was ordered to be distributed to the widow, but upon appeal to the Supreme Court by the appellants herein this order was reversed. Estate of Wilson, 184 Cal. 63, 193 Pac. 581. Respondents and appellants herein each rely in their respective behalfs upon different language in the opinion rendered by the Supreme Court on the previous appeal as conclusive of the present controversy. But the only suggestion made in the opinion that the court had before it any facts indicating the origin or nature of Mrs. Wilson's estate appears from the following language in the opinion: "Mrs. Wilson's estate consisted entirely of the property derived from her first husband's estate and additional property acquired through her own subsequent investments." But it does not appear that the court at the time of the filing of this opinion had any knowledge from the record that Mrs. Wilson's first husband had left any relatives or that such relatives were making any claim as against the appellants or any one to any of the property in her estate "derived from her first husband's estate." The court, however, in construing the will, did mention the following fact which was evidently a potent surrounding circumstance when she executed the will: "At the date of the execution of the will she had several brothers and sisters still living, and numerous nieces and nephews and the relations between her and her relatives were very friendly." The respondents herein filed no petition for distribution in the lower court and made no appearance in the Supreme Court until after the opinion of the court was filed. Then one of them applied to the Supreme Court for a In this connection the court stated thatmodification of the language of the opinion "in order that he and others similarly related the intention of the testatrix as disclosed by "The question presented is, of course, as to may not be prejudiced by anything stated in the language she has used in her will, taking the opinion," and the opinion was accord-into view, in case of any uncertainty arising ingly amended to read as follows: "If the heirs are to be determined as of the date of the termination of the life estate as we think is the proper construction of the will, in so far as the record before us shows such claimants constitute the whole of the heirs to whom such realty is given." By "claimants" the court referred to the appellants herein. All of the foregoing amendment and some other language of like upon the face of the will, the circumstances under which it was made, exclusive of her oral declarations." And in its conclusion the court used the following language, upon the first portion of which the appellants herein especially rely and upon the latter portion of which the respondents rely: "Considering the will in its entirety, the scheme of the testatrix is perfectly clear to |