scribed into the minute book, and when the minutes are written up, the original minutes are in many instances cast aside as being no longer useful, and if that had been done in the present case, no one would contend that there had been any irregularity in the proceeding. There are other provisions in the Code, however, a reference to which will remove all doubt on the point under consideration. Section 1404 of the Penal Code provides that "neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right;" and Section 1258 of the same Code provides that "after hearing the appeal, the Court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties." By Section 1093 of the same Code, which regulates the order of trial in a criminal case, it is provided that "if the indictment be for a felony, the clerk must read it and state the plea of the defendant to the jury." On the trial of one Sprague for the crime of murder, this form of procedure was omitted, and speaking of its effect upon the case the Supreme Court says: "The departure from the form or mode of presenting the issue prescribed by the statute did not prejudice or tend to prejudice the defendant in respect to a substantial right, and it is, therefore, the duty of this Court to give judgment without reference to an irregularity-the result of such departure.' (The People vs. Sprague, 53 Cal. 494.) The above principle and reasoning apply with full force to the case now under consideration; and to hold that the omission complained of affected the validity of the judgment would be to set aside and totally disregard Sections 1258 and 1404 of the Penal Code. The verdict, although not very artistically worded, is sufficient in substance. (People vs. Leehey, No. 10,394, 4 Pacific Coast Law Journal, 75.) Judgment and order affirmed. We concur: Thornton, J., Myrick, J., McKinstry, J. DISSENTING OPINION. I dissent. It is conceded that the Court, by discharging the jury before the verdict had been recorded, committed an But it is classified as a technical error which did not affect the substantial rights of the parties, nor tend to the error. defendant's prejudice in respect to such a right. And Sections 1258 and 1404 of the Penal Code are cited to prove that it is an error which should be disregarded. The case of People vs. Rodondo, 44 Cal. 538, is also cited in support of that position. In that case it was held that the omission to call the names of the jurors before receiving the verdict was not a fatal error. The reason for so holding in that case is not wholly satisfactory to me. The Court said: The Court said: "Undoubtedly it was an irregularity to receive the verdict without first calling the names of the jurors; but if all were in fact present, and declared the verdict, it was. an irregularity which in no way prejudiced the defendant." As the sole object of having the names called is to ascertain whether all the jurors are, in fact, present, it would seem to follow that the omission to call them would be a grave error, unless some other method equally well adapted for the ascertainment of the fact were resorted to, because, "if all do not appear (upon the call of their names), the rest shall be discharged without giving a verdict. (Pen. C., 1147.) But the Court in that case seems to have assumed that all were present because it was not shown that they were not. A call of their names would have disclosed whether they were or not, and probably no method more simple and efficacious than this could be devised. But in that case, one of the safeguards provided by the Legislature for the protection of both parties was removed, and in this case we are asked to remove another. And we may safely predict that "the end is not yet." There is a provision which requires the jury to be present in Court when the verdict is rendered. A failure to comply with that provision would not necessarily prejudice a defendant any more than the omissions which this Court has sanctioned. If a jury, after agreeing upon a verdict, should sign it in the jury room, and hand it to an officer of the Court, and then disperse without going through the form of being present when the verdict was received and recorded, it would in almost every case be impossible for the defendant to prove that the verdict would have been different in fact, if all the forms prescribed by law had been complied with. And unless he could show that, it seems to me that, under the doctrine of the case of The People vs. Rodondo, supra, which is approved in this case, the verdict could not be disturbed for so wide a departure from the form prescribed as that, even. But I am inclined to believe that a construction more in consonance with sound reason may be given to Sections 1258 and 1404 of the Penal Code without doing violence to the language of those provisions. When it cannot be seen that a defendant could possibly be prejudiced by an error committed by the Court below, such error may and should be disregarded. But I cannot view the error complained of in this case in that light. After the verdict was rendered, and before it was recorded, the defendant had a right to request that the jury be polled. (Pen. C., Sec. 1163.) After the verdict was recorded, he had a right to have it read to the jury, and to have them asked whether it was their verdict, and if any one disagreed to it, to have "the jury again sent out." (Pen. C., Sec. 1164.) And it was not until after the verdict was recorded, and the jury were asked whether it was their verdict, and all agreed to it, that it became complete. And then, and not till then, could the jury be legally discharged. Such is the language of the Code, and I am fully persuaded that it is a mistake to sanction any substantial departure from the mode pointed out in the law, unless it be apparent that no substantial right of a defendant could be prejudicially affected thereby. I do not think that trial by jury is surrounded by too many safeguards at present, and if it is, the Legislature, in my judgment, is the proper tribunal to lop off the superfluous ones. For these reasons I think that the judgment of the Court below should be reversed. Sharpstein, J. IN BANK. [Filed December 28, 1880.] ALFRED BOREL, RESPONDENT, VS. A. G. BOGG, APPELLANT. BOUNDARY LINE BETWEEN SONOMA AND NAPA COUNTIES. The survey of the boundary line between Sonoma and Napa counties by the SurveyorGeneral under authority of Section 3972 of the Political Code was final and conclusive. POLITICAL CODE, SEC. 3972-POWERS OF SUrveyor-GenerAL. Section 3972 of the Political Code, making surveys by the Surveyor-General of certain county boundary lines and corners final and conclusive, does not confer judicial functions upon the Surveyor-General, and is not unconstitutional. Appeal from Superior Court of Napa County. Stanley, Stoney & Hayes, for appellant. W. D. Bliss, for respondent. By the COURT: The question in this case is as to the conclusiveness of the survey of the boundary line between Sonoma and Napa Counties, as approved by the Surveyor-General of this State. The Court below held that it was conclusive, and refused to receive evidence to contradict the survey. Sec. 3972, Pol. Code reads: "All surveys finally approved under the provisions of this chapter are conclusive ascertainments of lines and corners included therein." Either the above section is unconstitutional or the survey is conclusive. It is claimed that the section is unconstitutional, in that it attempts to confer on the Surveyor-General judicial functions. We do not think that the functions exercised by him are judicial in their character; he is not, under that section, to decide what is the law. The Legislature had already, in regard to the boundary between the two counties, fixed the law, viz., that the summit of the dividing ridge should be the dividing line. We think it was competent for the Legislature to direct its officer to go upon the ground and run his lines along that ridge; and in doing so he was acting more in a ministerial capacity; and we think that it was competent for the Legislature to declare that the lines so run, that is, the location of the boundary line upon the ground, should be thereby defined and fixed. No question is presented of improper action on the part of the Surveyor-General. Judgment affirmed. IN BANK. [Filed January 4, 1881.] No. 10,581. EX PARTE WILLIAM CLARKE, ON HABEAS CORPUS. Petition for writ of habeas corpus. McKissach & Rankin, for petitioner. By the COURT: Upon the authority of Ex parte Clarke, No. 10,581 (two), ordered that petitioner be admitted to bail in the sum of $800, the bond to be approved by the Judge of the Superior Court of Monterey County. DEPARTMENT No. 1. [Filed January 3, 1881.] WILLIAM BUTCHER, RESPONDENT, VS. VACA VALLEY AND CLEAR LAKE RAILROAD COMPANY, APPELLANT. CODE OF CIVIL PROCEDURE, SECTION 1870-TESTIMONY OF WITNESS ON FORMER TRIAL MEANING OF "OUT OF THE JURISDICTION." Where, on the sec ond trial of a cause in Solano County, a witness who had given oral testimony on the first trial was shown to be in San Francisco and more than thirty miles distant; and her testimony on the former trial was allowed against objection to be read from the reporter's notes, on the ground that she was out of the jurisdiction within the meaning of Section 1870 of the Code of Civil Procedure: Held, that the witness was not "out of the jurisdiction" within the meaning of the statute; that her deposition might have been taken, and that the ruling allowing her testimony on the former trial to be read against objection, was error. Appeal from the District Court of the Seventh Judicial District, Solano County. Joseph McKenna, for appellant. Walter Van Dyke and George S. Lamont, for respondent. Ross, J., delivered the opinion of the Court: On the former trial of this cause one Mrs. Taylor was examined as a witness on behalf of the plaintiff. On the last trial in the Court below it was shown on the part of the plaintiff that Mrs. Taylor was not then in the county in which the trial was had, but was at her residence in the City of San Francisco, more than thirty miles distant from the place of trial; and thereupon the plaintiff, against the objections of the defendant, was permitted to read in evidence the testimony given by Mrs. Taylor on the former trial, as taken down by the short hand reporter, to all of which the defendant duly excepted. In support of the action of the Court below in this particular, the respondent relies upon Section 1989 of the Code of Civil Procedure, and subdivision 8 of Section 1870 of the same Code. Section 1989 is as follows: "A witness is not obliged to attend as a witness before any Court, Judge, Justice or any other officer out of the county in which he resides, unless the distance be less than thirty miles from his place of residence to the place of trial." And subdivision 8 of Section 1870: "In conformity with the preceding provisions, evidence may be given upon a trial of the following |