fied, the object being to corroborate her testimony by that important fact. . . . Defendant had a clear right to discredit her testimony by showing on cross-examination whether her pregnancy was due to her relations with defendant or might not have been caused by some other person." The defendant could have no better right to show that the prosecutrix became pregnant and that some other person than defendant was responsible for such pregnancy, than to have shown the mere fact of her intercourse with other men if there had been no subsequent pregnancy.

It is contended that the court erred in refusing to give to the jury certain instructions requested by the defendant. Several of these instructions, though not in the precise words requested, were included in other instructions given by the court. When, under these circumstances, counsel impose upon this court the duty of considering alleged error in the refusal of an instruction, the argument should not be urged without reference to the instructions given on the same proposition, nor as if no such instructions had been given. This is a difficulty that we have to meet in our consideration of many of the appeals presented here in criminal cases, where a little more industry and candor would aid in the proper disposition of cases, and many of the objections that we have to consider as to the refusal of instructions would not be presented at all. For example, it was stipulated that the defendant's reputation for truth, honesty, and integrity in the community where he resides, is good. Defendant's counsel complain because the court refused a certain proposed instruction that this fact stipulated must be found as true. After considering this point, and the authority cited, we at last discover among the many instructions given, one wherein the court instructed the jury directly with respect to that stipulation, and did so in language more strongly favorable to the defendant than was asked for by him.

The court did not err in refusing to give an instruction separately designating the testimony of police officers and detectives who testified "on behalf of the state, and stating a rule of greater strictness in weighing their testimony than in weighing the testimony of other witnesses. The court did not err in refusing a proffered instruction setting forth defendant's theory that the prosecution was a trumped-up charge, the outgrowth of a conspiracy against him. The pro

posed instruction stated no rule of law other than that the evidence concerning this claim should be considered as part of the evidence in the case and that the burden of proof as to defendant's guilt remains with the prosecution all through the case. The law on this question was entirely covered by the instructions given by the court to the jury. It is contended that the court should have granted defendant's motion for a new trial on the ground of newly-discovered evidence. This newly-discovered evidence is set forth in an affidavit of the defendant and has reference to a statement made by the prosecutrix to the district attorney about one month before the case was tried. Affiant says that this typewritten statement came to his hands on May 27, 1914, which was nine days after rendition of the verdict. He says that "not until after the trial of said cause had been concluded did affiant ever see said statement or know its contents, nor did affiant have access thereto during said trial or before said trial." So far as this shows, defendant may have known that a written statement had been made by the prosecutrix at the time mentioned. If he or his counsel had that knowledge during or before the trial, they had the same right then to have it produced for use in court as they would have for the purposes of a second trial. In their reply brief, counsel for defendant admit that they procured this statement after the prosecution had rested its case. This implies that they had it during the remainder of the trial; yet they did not ask permission to recall the prosecutrix for further cross-examination. Looking at the contents of the statement, we find that the principal use that could have been made of it would have been to show thereby that prosecutrix said that her first act of sexual intercourse with defendant was after the death of his sister Lucy, which death occurred in February, 1913, and that this was inconsistent with her testimony at the trial wherein she said that her illicit relations with the defendant first occurred nearly two years before that time. Motions for new trial are addressed to the sound discretion of the trial court and its action will not be disturbed unless the record shows an abuse of this discretion, the presumption being that the discretion was properly exercised. "The question as to whether the evidence produced on the motion is such as to render a different result probable is one peculiarly addressed to the discretion of the trial judge, who, in the

light of the knowledge afforded by presiding at the trial, is especially qualified to determine as to the probable effect of such evidence." (People v. Feld, 149 Cal. 464, 474, [86 Pac. 1100].) In the trial of this case it was shown that there were some inconsistencies between the testimony given by the prosecutrix at the trial and some statements previously made by her. Connected with these same matters, the court might well have been of the opinion that the additional circumstance referred to in this affidavit on motion for new trial would not be sufficient to materially affect the weight that would be given to her testimony by the jury; in other words, that the jury was authorized to believe the essential facts to have been as she stated them to be, and that the inconsistent statement made by her in her statement to Mr. Ford was not likely to throw any new light upon her character and reliability as a witness. However this may be, the failure of appellant to avail himself of his opportunity to use the statement when he discovered it, while the case was still open for evidence, is alone a sufficient reason for denying a new trial, so far as that ground of the motion (and no other was presented) is concerned.

The judgment and order denying motion for a new trial are affirmed.

James, J., and Shaw, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on April 20, 1915, and 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 May 20, 1915.

[Civ. No. 1480. First Appellate District.-March 23, 1915.] JESSIE B. AGNEW et al., Respondents, v. J. M. NELSON et al., Appellants.

CONTRACTS-SALE OF REAL ESTATE-ACTION TO RECOVER DEPOSIT-DEFECTIVE TITLE-FINDINGS.-In an action to recover from a real estate broker a deposit received by him from the purchaser under a contract of sale of real estate which provided that if plaintiff's title to the property did not prove good, the deposit should be returned to the purchaser, on appeal from the judgment on the judgment-roll alone, without the evidence, it must be assumed that the findings of the trial court to the effect that objections to the title to the property had no foundation in fact were correct. ID.-SUFFICIENCY OF FINDINGS-TITLE FREE FROM OBJECTIONS.-In such a case a finding that objections to the title were not "good or valid" must be construed in connection with the further finding that "the said title to the said property was good and merchantable," and so construed it means that the plaintiff's title was in fact free from valid existing objections.

ID. "MERCHANTABLE" TITLE-MEANING OF.-The word "merchantable" is usually, if not exclusively, employed in mercantile contracts and strictly speaking signifies the salability of merchandise with regard to quality or medium quality of goodness. The word "merchantable" used in such findings is synonymous with the word "marketable" as used in reference to title to real property, and means a good and perfect title free from any reasonable objection.

APPEAL from a judgment of the Superior Court of Santa Clara County. P. F. Gosbey, Judge.

The facts are stated in the opinion of the court.

Robert R. Syer, C. L. Witten, Owen D. Richardson, and P. A. Bergerot, for Appellants.

Fry & Jenkins, for Respondents.

THE COURT.-This action was instituted by the plaintiffs against the defendant Nelson to recover the sum of one thousand dollars. The plaintiffs' cause of action rested upon a common count for moneys had and received. The defendant Nelson by his answer denied having received any money for the use and benefit of the plaintiffs; and pleaded as a

further defense the execution of a contract by himself, as the agent of the plaintiffs, with one B. Cassou for the purchase and sale of certain real estate for an agreed price, under the terms of which the defendant received from Cassou the sum of one thousand dollars as a deposit and as part payment on the purchase price of the property. The defendant's answer further alleged that the contract of purchase and sale provided that if the plaintiffs' title to the property which was the subject-matter of the contract did not prove good the deposit and part payment of one thousand dollars was to be returned to Cassou; that the plaintiffs' title to the property was found to be defective, and that therefore Cassou demanded of the said defendant the return of the one thousand dollars. Because of these facts the answer of the defendant Nelson averred that the rights of all of the parties to the transaction in suit could not be fully and rightfully determined without the presence of Cassou as a party to the action. Accordingly Cassou was made a party defendant.

The defendant Nelson counterclaimed against Cassou in the sum of one thousand dollars for services alleged to have been rendered the latter.

Cassou, answering the plaintiffs' complaint and the crosscomplaint of the defendant Nelson, averred that under the terms and conditions of the contract of purchase and sale he was entitled to a return of the one thousand dollars paid by him to the defendant Nelson because of certain defects in the plaintiffs' title to the property, which defects, it was alleged, had been in writing specifically called to the attention of the plaintiff's. Incidentally Cassou counterclaimed against the defendant Nelson, but inasmuch as the issues raised as between these defendants by their respective pleadings are not involved upon this appeal they need not be narrated.

It will be noted that of the several objections alleged to have been originally made to the plaintiffs' title to the property by Cassou only two were alleged in his answer to be in actual existence and not removed at the time of the commencement of the action. The trial court found that these two objections were not "good or valid, and that the said title to said property was good and merchantable."

Judgment was entered for the plaintiffs and against the defendant Nelson for the sum of one thousand dollars. The judgment declared that "the claim of the defendant Cassou.