
    Appellate Department, Superior Court, San Bernardino
    [Crim A. No. 16.
    Nov. 30, 1953.]
    THE PEOPLE, Respondent, v. WILLIAM CAMPBELL DALZELL, Appellant.
    
      . William Campbell Dalzell in pro. per., for Appellant.
    Lowell B. Lathrop, District Attorney (San Bernardino), for Respondent.
   THE COURT.

The complaint in this matter charges the defendant with “violation of Sec. 577, Vehicle Code.” It is further alleged that the defendant drove “upon a public highway in the City of Upland, to-wit: 19th Street and Euclid Avenue, West Drive, a vehicle . . . said Highway was then and there sign posted with a sign located at and near the entrance to said highway, having the word ‘Stop’ printed thereon in the manner prescribed by law, and that said defendant did wilfully and unlawfully fail and neglect to stop such vehicle at said sign before entering and crossing said highway and intersection.”

The following statement appears in the docket maintained by the judge of the trial court:

“Defendant admits under oath, the fact that he did not stop at the West Drive of Euclid Avenue and Nineteenth Street and contends that the sign is not placed according to law, if placed pursuant to a City Ordinance and that Euclid Avenue is but one highway.”

The court found the defendant “guilty as charged.”

Section 577 of the Vehicle Code provides:

“The driver of any vehicle upon approaching any entrance of a highway or intersection . . . signposted with a stop sign . . . shall stop:
“(a) Before entering the cross walk on the near side of the intersection or, if none, then at a limit line when marked, otherwise before entering such highway or intersection.” From the statement contained in the docket it is apparent that the only stop which the defendant failed to make was that required by a stop sign directing traffic going easterly along 19th Street at its intersection with the west roadway of Euclid Avenue.

Euclid Avenue consists of two roadways but is only one highway. The boundaries of an intersecting highway constitute the boundary of the intersection contemplated by the Vehicle Code. (Blanton v. Curry, 20 Cal.2d 793 [129 P.2d 1].)

Under the law, as applied to the facts in this case, when the defendant, traveling west on 19th Street, arrived at the west roadway of Euclid Avenue he already was within the intersection and his failure to stop at some point within the intersection cannot be held to constitute a violation of Vehicle Code, section 577, which contemplates a failure to stop before entering the intersection.

Under the circumstances, there is no reason to determine whether or not the stop sign which was placed within the intersection but immediately east of the west roadway of Euclid Avenue was validly ■ placed and required motorists intending to cross the west roadway to stop before doing so.

Assuming that the stop sign under consideration was validly placed and that the defendant’s failure to stop before entering the west roadway of Euclid Avenue constituted a violation of Ordinance 354 of the city of Upland, the fact remains that the defendant was not charged with violating said ordinance and, under the complaint filed against him, could not be found guilty of such a violation.

The judgment is reversed.

INDEX [References are to pages where headnotes appear. Figures in brackets refer to headnote numbers.] ACCOUNTS Action for Accounting—Judgment, 247 [5] Trial—Findings, 247 [4] ACTIONS Cause of Action, 479 [5] Classification—Determination of Nature, 729 [2] ADVERSE POSSESSION Burden of Proof, 481 [16], [17] Elements, 480 [8] Evidence—Boundaries, 267 [3] Payment of Taxes, 267 [2] Hostility—Relationship of Parties— Cotenants, 479 [6], 480 [9], [12], [13], [14]," [15] ANIMALS Dogs—Liability for Injuries by Dogs, 379 [3] Pleading, 379 [2] Evidence, 379 [1] Police Regulations, 379 [5], [6] APPEAL Briefs—Pointing Out Errors, 162 [6], 711 [4] Stating Points Separately, 661 [4] Decisions Appealable, 76 [7], [8], 684 [1] Change of Venue, 682 [1] Orders Relating to Judgment, 833 [1] Discretion of Lower Court, 281 [8] Dismissal—Determination of Merits, 738 [3] Evidence, 276 [1] Harmless and Reversible Error—Argument of Counsel— Cure by Instruction to Jury, 692 [6] Findings, 328 [26] Instructions, 387 [2] « Misconduct of Counsel, 145 [2] Redirect Examination, 3 [11] Rulings as to Witnesses, 692 [8], [9] Imposition of Damages for Frivolous Appeals, 766 [7] Making Additional Findings, 777 [3] Notice of Appeal—Description of Judgment, 737 [1], [2] (877)

878 Index—121 C.A.2d APPEAL—Continued Objections, 167 [3] Adherence to Issues Presented, 33 [3] Application of Buie, 870 [3] Conduct of Judge, 802 [20] Evidence, 800 [7] Pleading, 870 [2] Presenting New Claim for Belief, 33 [2] Theory of Case, 153 [6], 168 [5], 185 [3] Verdict, 367 [3] Presumptions—Orders, 276 [1] Orders on Motion for New Trial, 392 [4] Sufficiency of Evidence, 247 [2] Questions of Law and Fact—Authority of Court, 711 [7] Consideration of Evidence, 745 [2] Evidence Inherently Improbable, 98 [2], [3] Orders on Motion for New Trial, 802 [23] Substantial Evidence Buie, 237 [1], 280 [3], 711 [6], 745 [1] Sufficiency of Evidence, 95 [2] Beeord—Findings—Omission to Find on Issue, 247 [3] Judgment Boll—Matters Beviewable, 247 [1] Opinion of Trial Judge, 281 [6] Beporter’s Transcript—Partial Transcript, 168 [4] Eight to Allege Error—Estoppel, 185 [2], 801 [9] invited Error, 145 [2] Instructions, 801 [16] Waiver, 800 [8] Scope of Beview—Findings, 374 [3] Incompetent Evidence, 353 [5] Taking Additional Evidence, 162 [7] Time to Appeal—Effect of Premature Notice of Appeal, 765 [5] Necessity for Bendition of Judgment, 765 [3], [4] ABBITBATION Appeal—Beview, 492 [7] Award—Construction, 491 [6] Costs, 492 [9] Modification or Vacation, 491 [1], [3] Presumptions, 491 [5] Bequisites—Certainty, 491 [2] Finality—Determining All Matters, 492 [8] Proceedings—Consultation with Outsiders, 491 [4] A.BBEST By Private Person, 211 [1], [2] ATTOENEYS Belation to Client—Assumption of Adverse Position, 617 [5] Substitution of Attorneys, 59 [2], [3], [4]

Index—121 C.A.2d 879 AUTOMOBILES Appeal—-Inherent Improbability of Evidence, 98 [1] Driving Near Bight-hand Side, 505 [1], [2], [3], 506 [4], [5] Evidence—Collisions, 352 [1] Last Clear Chance, 353 [4] Negligence of Drivers, 280 [1] Stopping Vehicle—Location of Plaintiff, 280 [2] Indemnity Insurance—Evidence, 206 [1] Use of Other Automobiles—Medical Payments, 856 [5] Instructions—Conduct of Person Injured, 506 [7] Intersections, 874 [1] Last Clear Chance, 353 [6], [7] Offenses Driving While Intoxicated—Appeal—Harmless Error, 55 [2] Evidence—Admissions, 55 [1] Intoxicated Driving Besulting in Injury, 717 [1] Presumptions, 506 [6] Province of Court and Jury—Contributory Negligence, 145 [1] Stopping Before Entering Highway, 874 [2] BOUND ABIES Establishment—By Acquiescence—Effect of Mistake, 267 [1] Evidence, 267 [4] BBOKEBS Compensation—As Dependent on Consummation of Transaction, 851 [1] Pleading, 136 [6] Befusal of Owner to Consummate Sale, 136 [4] Bight of Action and Defenses, 136 [5] Duties, 85 [6] Licenses—Persons Bequired to be Licensed, '84 [1] Bevocation, 85 [7] Hearing, 85 [4] Judicial Beview, 84 [2], 85 [3], [5] BUBGLABY Evidence, 595 [1] Accomplices and Corroboration, 595 [2] Identity, 466 [3] Possession of Deadly Weapon, 596 [3] Province of Court and Jury—Identity, 466 [2] CANCELLATION Mistake, 666 [5] CIVIL SEE VICE Discharge and Dismissal—Judicial Beview, 813 [2]

880 Index—121 C.A.2d CONSPIRACY Civil—Instructions, 522 [6] Liability of Parties—Exoneration, 521 [1] Criminal—Elements, 17 [2], [3] Evidence, 17 [1], [4], [5], [6] CONSTITUTIONAL LAW Classification—Legislative Discretion, 308 [1], 309 [8] Constitutionality of Statutes—Presumptions as to Constitutionality, 308 [7] General and Special Laws, 308 [4] Limitations, 308 [6] Raising Constitutional Questions—Waiver, 534 [4] CONTRACTS Actions—Contract for Benefit of Third Person, 242 [3] Findings, 272 [2] Agreement to Make Future Contract, 72 [2] Certainty, 303 [3] Extinguishment, 758 [1] Incomplete Instruments, 303 [2] Interpretation—Construction of Entire Contract, 855 [3] Meaning of Words, 242 [5], 855 [2] Purpose, 604 [12] Reasonableness, 604 [13] Written and Printed Matter, 72 [5] Modification, 758 [2] Performance—Excuses for Nonperformance, 851 [2] Act of God, 474 [3] Quasi Contracts or Contracts Implied in Law, 328 [21], [22] CONTRIBUTION Persons Entitled, 328 [24] CORPORATIONS Creation, 218 [1] Dissolution, 218 [2] Effect, 218 [3] Winding Up Affairs, 218 [1] Powers and Duties of Trustee, 218 [4] Foreign Corporations—Doing Business in State, 790 [1], [2], [3] Seal—Effect of Failure to Use Seal, 327 [14], [16] Presumption from Use of Seal, 327 [15] Transfers of Stock Sales—Option, 102 [1], [2], [3], 103 [4] Specific Performance of Option Agreement, 103 [6] COSTS Right to Costs—Rule in Case of Partial Success, 730 [6]

Index—121 C.A.2d 881 COTENANCY Action to Determine Adverse Claims—Notice of Hostile Intent, 480 [10], [11] Joint Tenancy, 185 [6] Actions, 185 [1] Dissolution, 185 [5] Leases, 675 [3] Relations Between Cotenants, 675 [2] COUNTIES Employees—Civil Service—Services Excepted, 407 [1] Retirement and Death Benefits, 176 [1] COURTS Inherent Powers, 766 [6] Jurisdiction—Necessity, 497 [6] Opinions, 95 [3] Sessions—Places, 288 [12] CRIMINAL LAW Appeal Harmless and Reversible Error—Instructions—Refusal to Instruct, 566 [12] Misconduct of Prosecuting Attorney, 347 [1], 840 [11], [12] Objections—Indictment or Information, 533 [3], 567 [19] Verdict, 567 [20] Witnesses, 839 [9] Presumptions, 651 [1] Questions of Law and Fact, 322 [6], 323 [7], [8], 466 [4], 651 [5], 686 [3] Reasonable Doubt, 322 [2] Testimony Inherently Improbable, 322 [3], [4] Where Evidence is Circumstantial, 794 [3] Review—Scope, 298 [4] Arraignment, 298 [1] Defenses—Entrapment, 173 [4], [5] Evidence—Accomplices and Corroboration, 511 [1], [2] Alibi, 596 [4] Identity, 466 [1], [3] Presumptions, 18 [12], [13] Weight and Sufficiency, 652 [6] Former Jeopardy, 755 [6], [7] Different Offenses in Same Transaction, 750 [2], [4] When Jeopardy Attaches, 140 [2], [3] Instructions, 19 [19] Degree of Proof—Reasonable Doubt, 566 [14] Failure of Defendant to Testify, 566 [13] Necessity for Request, 566 [10] Refusal of Request Covered by Other Instructions, 565 [9] Plea, 298 [2], [3]

882 Index—121 C.A.2d CRIMINAL LAW—Continued Province of Court and Jury—Cautionary Instructions, 819 [5] Comment on Evidence, 288 [10] Invasion of Province of Jury, 288 [9] Rights of Accused—Aid of Counsel—Waiver, 651 [3], [4] Right to Be Confronted by Witnesses—Waiver, 301 [1] Statutes of Limitation, 750 [5] Trial—Remedies for Delay—Time for Objection or Motion, 534 [6] Speedy Trial, 534 [5] Striking Evidence, 120 [3] Verdict—Where There is Joinder of Counts, 323 [9] Writ of Error Coram Nobis, 531 [1], [2] Applicant’s Attendance, 548 [1], 652 [9] Diligence, 652 [8] Showing of Diligence, 549 [6], [8] Grounds, 652 [7], 754 [1], [2] Nature of Proceeding, 548 [2], [3] Proceedings, 548 [4], 549 [7] Purpose of Proceeding, 549 [5] Sufficiency of Petition, 754 [3], 755 [4], [5] DAMAGES Evidence, 745 [4] Excessive Damages, 371 [1] Personal Injuries, 692 [10], 693 [11], [12] Interest, 618 [13] Liquidated Damages—Real Estate Transactions, 326 [6] DECEDENTS’ ESTATES Accounting—Appeal—Who May Appeal, 765 [1] Who May Contest, 765 [2] Actions—Venue, 720 [1], [2], [3] Administrators—Powers-—Compromise and Settlement, 402 [1], [2] Claims—Actions—Evidence, 116 [1] Presentation, 153 [8] Jurisdiction—Exclusiveness, 682 [2] Sales—Personal Property—Confirmation—Acceptance of Higher Bid, 181 [1] DEEDS Evidence—Undue Influence, 185 [4] Interpretation—Construction as a Whole, 479 [2] Construction by Parties, 479 [1] DELINQUENT CHILDREN Correction—Jurisdiction of Juvenile Courts, 276 [3] Proceedings—Appeal, 276 [2] Evidence, 277 [7] Findings, 277 [4] Judgment, 277 [5] Nature, 140 [4], 277 [6] Purpose of Juvenile Court Law, 140 [1]

Index—121 C.A.2d 883 DISMISSAL Failure to Prosecute—Discretion of Court, 370 [1] Motion for Nonsuit-—-Inferences and Presumptions, 262 [6] When Granted, 262 [5], [7] Order of Judgment, 197 [2] Questions Relating to Parties, 497 [7] DIVORCE Custody of Children—Appeal—Effect, 598 [1] Extraterritorial Effect of Judgment, 633 [2] Jurisdiction, 633 [1] Modification of Award—Changed Conditions, 602 [1], [2] Hearing, 603 [3], [4], [5], [6], [7], [8], [9] Review, 12 [1], [2], 707 [1] Counsel Pees and Costs, 604 [11], [15] Discretion of Court, 661 [5] Effect of Agreements Between Spouses, 604 [14] Disposition of Property—Appeal, 229 [1] Extreme Cruelty—Evidence, 95 [1] Permanent Alimony—Modification of Allowance, 603 [10] Questions of Law and Pact—Cruelty, 95 [4] Support of Children—Extraterritorial Effect of Decree, 633 [3] Modification of Allowance, 633 [4] Willful Desertion—Evidence, 661 [1] ELECTION OP REMEDIES Effect of Election, 76 [5], [6] EMBEZZLEMENT ■ ■ Appeal—Harmless and Reversible Error—Instructions, 19 [21], 515 [1] Elements—Appropriation of Property—Trust Relation, 515 [21 Evidence, 19 [18] Instructions, 19 [17] EQUITY Decree, 537 [4] Laches—Determination—Discretion, 481 [19] Prejudice to Another, 481 [18] Multiplicity of Actions, 497 [5] ESCROWS Delivery to Depositary, 327 [18] ESTOPPEL Equitable Estoppel—Elements, 778 [4] Reliance on Conduct, 778 [5]

884 Index—121 C.A.2d EVIDENCE Burden of Proof, 280 [4] Shifting of Burden, 280 [5] Extrinsic Evidence—Contracts for Sale of Realty, 72 [6] Hearsay—Pedigree, 3 [12] Judicial Notice—Geography, 308 [3], 661 [3] Opinion Evidence—Physical Condition, 800 [2] EXCHANGE OP PROPERTY Appeal—Conclusiveness of Findings, 710 [2] FALSE IMPRISONMENT _ ' Evidence, 211 [3] Imprisonment, 211 [4] FRAUD Concealment, 665 [3] Duty to Disclose Facts, 665 [2] Constructive Fraud—Confidential Relations, 152 [2] Intent, 665 [3] FRAUDS, STATUTE OF Estoppel to Assert Statute, 433 [18] Memorandum—Sufficiency for Sale of Land, 72 [3] FRAUDULENT CONVEYANCES Evidence, 65 [10] GRAND JURY Proceedings—Evidence, 564 [1] GUARDIAN AND WARD Employment of Attorney—Fees, 242 [8] Judicial Appointment—Appointment of Parent as Against Nonparent, 646 [3] Proceedings—Findings, 646 [2] Selection of Guardian, 646 [1] HOMICIDE Appeal—Harmless Error—Instructions, 566 [16] Defenses—Negligence in Medical Treatment, 566 [11] Indictment—Charging Manslaughter, 567 [18] Instructions—Causal Connection Between Act and Death, 565 [6] Manslaughter—Involuntary Manslaughter, 564 [3], 565 [5], [8] Manslaughter—Evidence, 564 [2] Involuntary Manslaughter, 565 [4], [7], 567 [17] HOSPITALS Liability for Injuries—Evidence, 745 [3]

Index—121 C.A.2d 885 HUSBAND AND WIFE Actions—Evidence, 318 [1], [2] Property—Community or Separate, 130 [2], [3], 131 [4] Determination of Character—Evidence, 225 [1] Property Settlement Agreements—Effect of Death, 303 [4] Interpretation, 176 [3], [4] Validity, 303 [1] Transactions Inter Se—Fraud and Undue Influence, 152 [1], [3], [4] Gifts, 152 [5] ILLEGITIMACY Issues of Paternity—Appeal—Harmless Error, 3 [13] Burden of Proof, 1 [1] Evidence, 1 [2], [4], 2 [5] IMPBOVEMENTS-PBIVATE Compensation for, 328 [23], [25] INDICTMENT AND INFOBMATION Charging Offense—Negativing Exceptions, 861 [2] Defects and Objections—Waiver, 651 [2] Waiver by Failure to Move to Set Aside, 533 [1], [2] Joinder of Counts, 750 [3] Different Offenses of Same Class, 120 [2] INJUNCTIONS Appeal—Presumptions, 537 [3] Be viewing Exercise of Discretion of Lower Court, 34 [9] . Matters Controllable—Trespass, 194 [1] Modification, 33 [5] Preliminary Injunction—Discretion of Court, 34 [8] Effect of Order, 34 [7] Hearing, 33 [6] INSUEANCE Assignment of Policy, 242 [4] Beneficiaries, 242 [6] Change of Beneficiary, 242 [2] Persons Entitled to Proceeds—Trustees, 242 [7] Vested Interest of Beneficiary, 241 [1] Contract Interpretation—Against Insurer, 856 [4] Intention of Parties, 855 [1] Insurable Interest, 176 [2] JOINT ADVENTUBEBS Creation, 432 [1] Sharing Losses, 433 [10]

886 Index—121 C.A.2d JUDGES Disqualification—Bias and Prejudice, 396 [1] Special or Substitute Judges, 288 [14] Judges Pro Tempore, 288 [13] JUDGMENTS Construction, 190 [2], 191 [5], [6] Bes Judicata, 76 [12], [13] _ Action on Different Cause or- Claim, 103 [5] Summary Judgments—Affidavits, 75 [2], [3] Authorization of Procedure, 833 [5], [6] Hearing and Determination, 76 [4], [9], [10], [11], 77 [14] Issues Precluding, 75 [1] When Allowable, 834 [7] LABOB Boycotts, 45 [3] Evidence, 45 [1] Picketing, 45 [2] Unions, 45 [4] LANDLOBD AND TENANT Assignment, 675 [1] Notice to Quit—Notice for Nonpayment of Bent, 833 [3] Bemedies of Tenant, 522 [5] Unlawful Detainer—Amount of Beeovery, 833 [2] Nature of Proceeding, 833 [4] LABCENT Evidence, 17 [7], 19 [18] Instructions, 19 [17] Verdict, 19 [20] LEWDNESS Evidence, 287 [5] Instructions, 288 [11] Beview of Evidence, 838 [1] LIMITATION OF ACTIONS Period of Limitation—Actions Involving Beal Property, 479 [4], 480 [7] Mistake, 479 [3] Obligations Not Founded on Written Instruments, 237 [2] Suspension of Statute, 642 [2] MALICIOUS PEOSEOUTION Appeal, 64 [3] Burden of Proof, 64 [4] Damages, 65 [8] Definition, 522 [3] Evidence, 65 [9] ' ■ Want of Probable Cause, 64 [1]

Index—121 C.A.2d 887 MALICIOUS PROSECUTION—Continued Instructions—Probable Cause, 522 [7] Nature of Original Proceeding, 522 [4] Necessity for Arrest or Attachment, 64 [5] Questions of Law and Fact—Probable Cause, 64 [2] Want of Probable Cause, 65 [6], [7] MANDAMUS Petition-—Requisites, 813 [1] MASTER AND SERVANT Compensation, 238 [3], [4] MECHANICS' LIENS Application of Payments, 415 [5] MINES Mining Partnership—Creation and Existence, 433 [8] Partners' Rights and Liabilities, 432 [4] Partnership Property, 432 [5] Sale—Judgment, 432 [6] MONEY RECEIVED Defenses, 168 [6] Money Obtained by Fraud, 167 [1] Rescission, 167 [2] MONOPOLIES Cartwright Act—Combinations Prohibited, 45 [5], 46 [6], [7] MUNICIPAL CORPORATIONS Disineorporation, 637 [1] NEGLIGENCE Appeal—Harmless and Reversible Error—Instructions, 387 [3] Assumption of Risk, 692 [5] Burden of Proof, 362 [5] Care Toward Invitees—Business Invitees, 362 [1], [2] Knowledge of Danger, 261 [1] Evidence—Cause of Injury, 825 [2] Knowledge of Danger, 261 [3] Inferences, 362 [4] Instructions—Contributory Negligence, 387 [4], 388 [5] Last Clear Chance, 352 [2], 353 [3] Nonsuit, 362 [3] Presumptions, 387 [1], [4] Questions of Law and Fact, 261 [2], 262 [4], 387 [1] Contributory Negligence, 691 [4] Proximate Cause, 825 [3] Res Ipsa Loquitur—Control of Instrumentality, 691 [3] Violation of Statute, 379 [4]

888 Index—121 C.A.2d NEW TBIAL Affidavits—Filing—Time for, 2 [6] Authority of Judge Not Hearing Evidence, 392 [1], [3] Construction, 2 [7] Cumulative Evidence, 281 [9] Insufficiency of Evidence—Discretion—Beview, 392 [5] Verdict Against Weight of Evidence, 392 [2] Newly Discovered Evidence—Contradictory Evidence, 281 [9] Discretion of Trial Court, 281 [10] Impeaching Evidence, 2 [8], 3 [9] Probable Effect of Evidence, 281 [11] Notice of Intention to Move—Service on Adverse Party, 748 [1], 749 [2] Trial—Vérdiet—Impeachment, 2 [7] NOTICE Facts Constituting Knowledge or Compelling Inquiry, 665 [4] PABENT AND CHILD Support of Child, 633 [5] PABTIES Bringing in New Parties—Code Provision as Mandatory, 497 [3] Discretion of Court, 497 [4] Effect of Prior Dismissal of Complaint as to Party, 777 [1] Necessary Parties, 497 [2] PABTITION Property Subject, 432 [3] Sale—Order of Sale, 190 [1], 191 [3], [4] PABTNEBSHIP Definition, 433 [9] Elements, 400 [1] Formation, 432 [1] Capital Contribution, 433 [13] Necessary for Writing, 433 [7], [17] Objects, 433 [11] Sharing Losses, 433 [10] Sharing Profits, 433 [12] Intention of Parties, 400 [2] Pleading, 433 [16] Proof of Partnership, 400 [3] Property, 432 [2] Leases, 433 [15] Buie in Equity, 433 [14]

Index—121 C.A.2d 889 PAYMENT Application of Payments—By Court/416 [11] By Creditor, 415 [3], [6], [7] Rights of Third Persons, 416 [12] Burden of Proof, 415 [1] Application of Payments, 415 [2], 416 [8], [9] Evidence, 415 [4] Application of Payments, 416 [10] PHYSICIANS Corporate Practice of Medicine, 407 [2], [3] Malpractice—Appeal—Harmless Error, 802 [24] Evidence, 800 [1], [3] Instructions, 801 [17] PLEADING Amendment—New Cause of Action, 303 [5] Time to Amend, 661 [2] To Conform to Proof, 710 [1] Demurrer—Amendment After Demurrer Sustained, 729 [4], 730 [5] Determination, 729 [1] Hearing, 729 [3] Denial of Written Instrument, 197 [1], 198 [4] Judgment on Pleading—Matters to Be Considered, 136 [3] Motion as Admission, 136 [2] Motion by Plaintiff, 136 [1] POISONS Offenses—Appeal—Harmless Error, 687 [6], [7] Expert Evidence, 686 [5] Furnishing Heroin to Minor, 686 [1], [2], [4] Furnishing Marijuana—Appeal, 322 [1] Knowledge of Presence of Heroin, 816 [1] Persons Punishable, 816 [2] Possession of Narcotics, 144 [1], 173 [1], [2], [3], 794 [1], [2] Possession of Heroin, 679 [1], 798 [1], [2] PROCESS Motion to to Quash, 790 [4] Notices and Papers—On Whom Served, 59 [1] PHBLIC OFFICERS Liability—Actions—Filing Claim as Condition Precedent, 642 [1] Time for Filing Claim, 642 [2] PUBLIC WORKS Contracts—Interpretation—Liability of Parties, 449 [2] Terms and Conditions Affecting—“Changes” Clause, 450 [9], [10] Changes in Plans, 450 [5] “Disputes” Clause, 450 [6], [7], [8], 451 [11] Jury Questions, 449 [3], 450 [4] Remedies for Materialmen—Contractor’s Bond, 416 [13]

890 Index—121 C.A.2d RAPE Assault with Intent to Commit Rape—Evidence, 750 [1] RELEASE Direction of Verdict, 761 [1] Effect—Rights or Claims Released, 666 [6] RESTITUTION Accounting, 616 [2], [4] Credits and Charges, 617 [6], [7], [8], [9], [10] Judgment Subsequently Reversed, 616 [1], [3], 617 [11], [12] ROBBERY Evidence—Identity of Accused, 511 [3] Participation in Offense, 512 [4] SALES Actions—Evidence of Warranty, 870 [1] Contract—Modification, 758 [3] Performance—Quality of Goods Delivered—Conformity to Specifications, 272 [1] Seller’s Remedies—Action for Price—Evidence, 502 [1] SCHOOLS Parents and Pupils Attendance—Exemptions, 863 [12] Home Instruction, 862 [10], 863 [13] Pleading Exemptions, 861 [1] Power of State, 861 [5] Private Schools, 862 [11] Regulation by State, 862 [6], [7] Validity of Statute, 861 [3], [4], 862 [8], [9] Tort Liability—Evidence, 555 [6] Injuries to Pupils, 554 [1], 555 [5] Liability of District, 554 [2], 555 [4], 738 [5] Nonsuit, 342 [1] Officers and Employees, 555 [3] Pleading, 738 [4] Questions of Law and Fact, 555 [7] Transportation of Pupils, 738 [6], [7] SPECIFIC PERFORMANCE Contract—Certainty, 374 [1], [2] STATUTES Construction—Codes, 637 [2]

Index—121 C.A.2d 891 STREET RAILWAYS Injuries from Operation—Instructions, 723 [1] STREETS Improvement Act of 1911—Construction of Statute, 474 [2] Improvement Contracts—Construction of Contract, 473 [1] Injuries Caused by Defects—Defects Involving Liability, 825 [5] Evidence, 825 [1], 826 [7] Liability of Public Agency—Notice, 826 [8] Questions of Fact, 825 [4], 826 [6] TAXATION Priority of Liens, 735 [1] TELEGRAPHS AND TELEPHONES Telephone Directories—Actions—Parties, 497 [1] TENDER Objections and Waiver Thereof, 325 [2] TORTS Disturbing Utterances, 521 [2] Joint and Several Liability, 761 [2] Questions of Law and Fact, 761 [3] TRIAL Admitting Evidence Subject to Motion to Strike, 95 [5] Argument of Counsel—Opening Statement—-Time Allowed, 801 [18] Time Allowed, 802 [22] By Court—-Decision, 281 [7] Conduct of Counsel—Objection and Waiver, 692 [7] Use of Blackboard, 802 [21] Direction of Verdict—Review, 449 [1] Findings—Implied Findings, 247 [6] Reference to Pleadings, 778 [6] Instructions—Construction as a Whole, 161 [3], 801 [14] Formula Instructions, 801 [12], [13] Refusal, 162 [5] Requisites, 801 [15] Introduction of Evidence—Cumulative Evidence, 801 [11] Objections and Motions to Strike, 800 [5] Directing Motion to Objectionable Matter, 800 [6] Order of Procedure—Disposition of Issues, 197 [3], 198 [5] Order of Proof—Evidence in Rebuttal, 801 [10] Remarks and Conduct of Judge, 229 [1], 711 [3], [5], 801 [19] Verdict—Amendment, 367 [2] Construction, 367 [1] Impeachment, 2 [7]

892 Index—121 C.A.2d TRUSTS Accounting by Trustee—Attorneys’ Fees, 253 [6], [8], [9], [10], [11] Expenditures, 253 [12] Appeal—Objections, 253 [7] Constructive Trusts Breach of Oral Agreement of Grantee, 131 [8] Relationship Between Parties, 469 [1] Effect of Statute of Frauds, 469 [2] Existence of Relationship—Appeal—Conclusiveness of Findings, 665 [1] Good Faith of Trustee, 252 [1], [2], [3], [4] Removal of Trustee, 252 [5] Resulting Trusts—Burden of Proof, 131 [7] Evidence, 131 [1] Furnishing Consideration for Purchase, 131 [5], [6] Questions of Law and Fact, 131 [9] VENDOR AND PURCHASER Actions—Questions of Law and Fact, 327 [17] Contract—Certainty, 71 [1] Requisites, 72 [4] Forfeiture of Purchaser’s Interest, 327 [19] Relief from Forfeiture, 326 [3], [4], [5], 327 [12] Retention of Purchase Money, 326 [7], [11], 327 [20] Rights of Vendor, 325 [1] Performance of Contract, 327 [13] Vendor’s Remedies—Damages, 326 [8], [9], [10] WAIVER Pleading, 168 [7] Questions of Fact—Appeal, 168 [8] WAREHOUSES Liability of Warehousemen—Liability for Unauthorized Delivery, 202 [1] WATERS Flood Control Districts, 308 [2], [5], 309 [9], [10], [11] Acts Inconsistent with Flood Control Plans, 537 [1] Injunctive Relief, 537 [2] WEAPONS Possession of Deadly Weapon by Prisoner—Evidence, 120 [1] Possession of Firearms by Felon, 124 [1], [2], [3], 125 [4] WILLS Contest—Instructions—Testamentary Capacity—Delusions, 162 [4] Testamentary Capacity—Burden and Degree of Proof, 161 [1] Evidence, 161 [2]

Index—121 C.A.2d 893 WITNESSES Competency—Infants, 287 [1], [2], [3], [4], 819 [1], [2], [3], [4], 838 [2] [3], [4], 839 [5], [6], [7], [8], [10] Credibility—Determination of Credibility—Uneontradieted Testimony, 566 [15] Disregarding Part of Testimony of Witness, 322 [5] Tests and Determining Factors, 1 [3] Cross-examination, 287 [6], [7], 288 [8] Impeachment—Conviction of Crime, 18 [8], [9], [10], [11], [14], [15], [16] Questions—Answers—Responsiveness, 800 [4] Redirect Examination, 3 [10], [11] WORK AND LABOR Effect of Express Contract, 116 [4] Evidence, 116 [3], 777 [2] Implied Obligation, 116 [2] Relationship of Parties—Meretricious Relationship, 153 [7] Time to Sue, 116 [4] WORKMEN'S COMPENSATION Actions Against Employers—Burden of Proof, 691 [1] Evidence, 691 [2] Insurance—Actions—Injunctive Relief, 33 [1], 34 [10] State Rate Supervision—Hearing, 33 [4] Persons Liable—Former Employers, 656 [3] Liability as Confined to Employer, 656 [2] Successive Employers—-Apportionment, 656 [1] ZONING Enlargement of Nonconforming Use, 442 [1], 443 [4] Existing Nonconfirming Uses, 443 [2], [3]  