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reach said hotel and said mines of the Shas- was false and forged, the information should be ta Electric Golden Copper Company from

construed as alleging that the word "(Signed)"

was a portion of the original instrument, and any public road is by passing over the road

hence the information did not show that the inway hereinbefore described," but this is far strument set out therein was a mere copy, which from saying that another road to the mines could not have damaged the person receiving it. and buildings cannot be constructed over

[Ed. Note.For cases in point, see vol. 23, said defendant's lands. Of course, it is very

Cent. Dig. Forgery, 88 66-76.] convenient to use a road already constructed

3. SAME-VARIANCE-MATERIALITY.

In a prosecution for forgery of a check, in order to reach land along its route, but a

the instrument set out in the declaration conway of necessity cannot exist unless there is tained the word "(Signed)” before the name of “no other way.” For aught that appears

the drawer. The check offered in evidence was from this record, the defendants might easily

identical in form with that set out in the infor

mation, except that the word "(Signed)” was not construct a road on their own land which

written thereon. Held, that such word was imwould enable wagons and teams to reach material to the instrument, and that the varitheir hotel and mines. In the absence of .

ance was therefore harmless. evidence or findings to the contrary, the

[Ed. Note. For cases in point, see vol. 23,

Cent. Dig. Forgery, § 93.] contention that appellants are entitled to use

4. SAME-EVIDEXCE. this road as a way from necessity cannot

In a prosecution for forgery of a check albe sustained.

leged to have been signed by H. as trustee of The order is affirmed.

an estate, eridence as to whether H. had an

account in the drawee bank during the month We concur: CHIPMAN, P. J.; BUCK

in which the check was drawn was admissible. LES, J.

5. SAME-MATERIALITY.

Evidence as to whether H., as trustee, haa drawn checks payable to defendant was immaterial.

6. CRIMINAL LAW-APPEAL-EVIDENCE-PREJBULLY HILL COPPER MINING & SMELT- UDICE. ING CO. V. BRUSON et al.

In a prosecution for forgery of a check, evi(Court of Appeal, Third District, California.

dence that the person who purported to be

drawer of the forged check had at different July 28, 1906. Rehearing Denied by Su

times paid defendant his salary in checks was preme Court Sept. 26, 1906.)

not prejudicial to defendant. Appeal from Superior Court, Shasta Coun- | 7. SAME-INSTRUCTIONS-DUTY OF JURY. ty; C. M. Head, Judge.

It was not error in a criminal case for the Action by Bully Hill Copper Mining &

court to charge that the jury should accept the

law as given to them by court. Smelting Company against W. C. Bruson

[Ed. Note. For cases in point, see vol. 14, and others. Judgment for plaintiff. De

Cent. Dig. Criminal Law, $8 1797, 1798.] fendants appeal. Affirmed.

8. SAME-DEFINITION OF OFFENSE-READING C. B. Sessions and Guy Shoup, for ap- STATUTE. pellants. Reed & Dozier, for respondent.

In a prosecution for forgery, it was not error for the court, in instructing the jury on

the law applicable to the case, to read to them MCLAUGHLIN, J. On the authority of Pen. Code, $ 470, defining forgery. Bully Hill Copper Mining & Smelting Com- [Ed. Note.—For cases in point, see vol. 14, pany v. W. C. Bruson et al. (No. 276, this day Cent. Dig. Criminal Law, 88 1811, 1812.] decided in this court) 87 Pac. 237, the judg. 9. FORGERY - INSTRUCTIONS-UTTERING FORment is hereby affirmed.

GED INSTRUMENT.

In a prosecution for forgery, an instruc:

tion that the uttering of a forged instrument by We concur; BUCKLES, J.; CHIPMAN, J.

defendant as true and genuine with knowledge that it was a forgery and with intent to defraud

would constitute forgery as fully as a forgery (4 Cal. App. 142)

of the instrument itself, was proper. PEOPLE v. CRANE.

[Ed. Note.—For cases in point, see vol. 23,

Cent. Dig. Forgery, 88 51-53, 128.] (Court of Appeal, First District, California. July 19, 1906.)

Appeal from Superior Court, Alameda 1. INFORMATION-DEMURRER.

County. Where, on demurrer to an information be- Arthur Crane was convicted of forgery, cause the facts stated therein did not constitute a public offense, and because it did not state

and he appeals. Affirmed. the particular circumstances of the offense, no W. Lair Hill, for appellant. U. S. Webb, suggestion was made that any circumstances connected with the offense other than those

Atty. Gen., for the People. stated were "necessary to constitute a complete offense,” as required by Pen. Code, $ 952, the HARRISON, P. J. The information heredemurrer was properly overruled.

in filed against the appellant charges him [Ed. Note.--For cases in point, see vol. 27, Cent. Dig. Indictment and Information, $$ 490

with having willfully and feloniously utter495.]

ed and passed to Charles E. Noyes a certain 2. FORGERY - INFORMATION-DESCRIPTION false, forged, and counterfeit check as the INSTRUMENTS.

true and genuine check of the purported Where an information for forgery of a

maker thereof, knowing the same to be false, check described it as containing the word “(Signed)” before the name of the drawer, and

forged, and counterfeit, with the intent to charged that the entire instrument so set out defraud the said Noyes, "which said check is

in the words and figures as follows, to wit: 'Central Bank. Savings and Commercial, No. 90. Oakland, Cal., June 3rd, 1907. Pay to Arthur Crane or bearer $18 eighteen dollars. [Signed] D. J. IIall, Trustee Ilutchinson Estate,' and which was indorsed on the back thereof as follows: 'Arthur Crane.'' Upon the trial thereof the defendant was convicted of the crime of forgery, and has appealed from the judgment thereon and from an order denying a new trial.

1. The defendant demurred to the information on the ground that the facts stated therein do not constitute a public offense, and that it does not state the particular circumstances of the alleged offense charged. No suggestion is made that any circumstances connected with the offense other than those stated are "necessary to constitute a complete offense"; and, unless such is the fact, the information is not demurrable under the provisions of section 952 (2), Pen. Code.

It is urged, however, by the appellant that, as the information states that the instrument charged to have been uttered by him and passed to Noyes had the word "Signed" prefixed to the name of D. J. Ilall, it appears upon its face that it was not the true and genuine check of Hall, but only a copy of the check purporting to have been made by him, and therefore that Noyes could not have been damaged or prejudiced by receiving it. It is without question a very unusual mode of drawing a check for the maker thereof to prefix his signature with the word "Signed"; but as it cannot be said that a check could not be drawn in this form, or that if so drawn such prefix would in any respect qualify the liability of the drawer, it cannot be assumed, as a matter of law, that the prefix did not purport to have been written by him before its delivery. Under the charge in the information that the entire instrument as set forth therein was false and forged, and that the defendant passed the same well knowing that it was false and forged, it must be held that the word "Signed" was included in the information as being a portion of the written instrument which the defendant is charged with having passed as the true and genuine check of IIall. The demurrer was therefore properly overruled.

2. At the trial the prosecution offered in evidence in support of the charge a check identical in form with that set forth in the information, except that the word "Signed" was not written thereon. The defendant objected to its introduction upon the ground that it was not the same instrument which is charged in the information to have been uttered by him. The court overruled this objection, and allowed the check to be read to the jury, to which ruling the defendant excepted. There was no error in this ruling. The rule which in early days prevailed in

prosecutions for forgery, that the instrument set forth in the indictment must be an exact copy of that offered in support of the charge, has been in modern days relaxed to the extent that, unless the variance is such that the defendant may have been prejudiced in making his defense, or exposed to the danger of being again put in jeopardy for the saine offense, it will be held to be immaterial. See People v. Phillips, 70 Cal. 61, 11 Pac. 493. The requirement that the instrument offered in evidence must conform to that laid in the indictment has reference to its identity and the manner in which it is described. If its identity is so apparent that a conviction or acquittal of the defendant would be a bar to any further prosecution for the same of fense, the variance will be insufficient to justify its exclusion. The presence or absence of unimportant words which do not affect the sense of the instrument, or change its identity in any material respect, will not constitute a material variance. In Wilson v. People, 5 Parker, Cr. R.

. , (N. Y.) 178, upon a trial for the forgery of a promissory note, the note offered in evidence had upon its face the words "Countersigned and registered in the Bank Department," with the signature of the register, A. D. Ward, which were not upon the copy set forth in the indictment. The variance was held immaterial on the ground that those words formed no part of the note. In Alexander v. State, 28 Tex. App. 186, 12 S. W. 5.95, the instrument set forth in the indictment was as follows, viz. : “Mrs. A. C. Neal. Please send me my diploma by this young man (meaning T. S. Alexander). (Signed) W. W. Wolfe." The instrument offered in evidence did not contain the words included in the parentheses; but the court held that those words, inserted by way of inuendo, did not constitute a material variance. In Cross v. People, 47 Ill. 1.32, 95 Am. Dec. 474, the defendant was indicted for the forgery of a check purporting to have been made by C. II. Beckwith. The check offered in evidence was signed "C. H. Beckwith" with the word “Randolph” underneath. The variance was held to be immaterial upon the ground that the word Randolph did not explain itself, and might be a check word, or the name of the street in which Beckwith did business. In Trask v. People. 151 Ill. 523, 38 N. E. 248, the indictment for the forgery of a draft set forth a copy of the instrument purporting to have been drawn upon "C. C. Burt & Co., 115 Broadway.'' The instrument offered in evidence purported to have been drawn upon "C. C. Burt & Co., Broadway, New York." The court held the variance to be immaterial, upon the ground that those words were only a mere description of the drawee's residence, and not a part of the instrument. See, also, People v. Cummings. 57 Cal. 88: Paige v. People, 6 Parker, Cr. R. (N. Y.) 683; Lang

dale v. People, 100 111. 203; Sutton F. Com

(4 Cal. App. 43) nonwealth, 97 Ky. 305, 30 S. W. 651: Smith CITY OF LOS ANGELES v. GLASSELL et al. V. State, 29 Fla. 408. 10 South. 891. This

(Court of Appeal, Second District, California. subject was quite fully discussed in People v.

June 30, 1906.) Phillips, 70 Cal. 61, 11 Pac. 493, and in

1. MUNICIPAL CORPORATIONS - ACTIONS TO People v. Terrill, 132 Cal. 497, 64 Pac. 894,

RECOVER TAXES-PLEADING AND EVIDENCE. and many authorities are there cited in sup- St. 1880, p. 136, c. 123, relating to actions port of the proposition. In People v. Phil- by counties and cities for the collection of taxes, lips, the court say: "We think the true rule

prescribing the form of complaint, etc., is con

stitutional, and where the complaint in an acis that, if the variance does not change the tion by a city, whose charter provides that sense in any way, it is not material"; and "the mode and manner of collecting such muagain: “When in the indictment a word

nicipal taxes and enforcing such tax lien and

the proceedings thereafter shall substantially be found in the instrument proved is omitted

the same as the mode and manner at the time from the instrument as recited, or when a prescribed by the law for the collection of state word is inserted in the instrument described and county taxes in said county,” conforms to which is not in the instrument prored, and

the requirements of such statute, it is sufficient,

and under said provisions, also, the tax roll is the change in no manner or for any purpose made prima facie evidence of plaintiffs' right alters the signification, the variauce is un- to recover. important." The identity of the check in 2. SAJE. question with that laid in the indictment

In an action by a city against executors to

recover taxes assessed and levied on personal is so apparent that the court was fully jus

property of the estate, which it is alleged detified in receiving it in evidence. If the fendants, as such executors, had in their posword "Signed" had been in fact written as a

session and control in said city on the day when prefix to the name of Hall in the instrument

the same became assessable, it is not necessary

to allege that the testator died in such city. which was passed by the defendant, it would

3. TAXATION - OVERVALUATION OF PROPERTY not have changed the character of the in- -REMEDY OF OWNER. strument, or in any respect varied its legal The remedy for an overvalu:ltion of propimport or the apparent obligation of the

erty in assessment is by appeal to the board of maker.

equalization, failing in which the owner is cor

cluded, and cannot set up such overvaluation 3. The several objections of the defendant as a defense pro tanto to an action to recover to the evidence as it was offered on the the taxes. ground that the indictment stated no offense,

Ed. Yote-For cases in point, see vol. 45,

Cent. Dig. Taxation, $ 1199.] require no further consideration. The objection to the question asked of the witness Appeal from Superior Court, Los Angeles D. J. Hall, whether he had an account in the County; D. K. Trask, Judge. Central Bank of Oakland during the month 'Action by the city of Los Angeles against of June, 1905, on the ground that it was Hugh Glassell and Andrew Glassell, execu"incompetent," was properly overruled. The tors. Judgment for plaintiff, and defendants question asked of the same witness, whether appeal. Affirmed. he, as trustee of the Hutchinson estate, had

McNutt & Hannon, for appellants. W. B. drawn a check payable to the defendant,

Mathews and Hartley Shaw, for respondent. was immaterial, and should have been sustained by the court; but it is very evident

WILBUR, Special Judge. This is an acthat the answer of the witness, that he had

tion brought by the city of Los Angeles, a at different times paid him his salary in

municipal corporation, for the recovery of checks, could in no respect have been prej

$1.335.18, taxes, with penaltieslevied by udicial to the defendant, especially in view

said municipality upon the property of Anof the testimony that the defendant, after

drew Glassell, deceased. The superior court his arrest, admitted that the check offered

gave judgment for the full amount claimed. in evidence was forged by him.

and the defendants appeal from the judg4. It was not error to inform the jury that

ment and from an order denying a motion they were to accept the law as given to them

for a new trial. by the court, or, in instructing then upon

The complaint is very briet. After al the law applicable to the case, to read to

leging the death of Andrew Glassell on Janthem the provisions of section 470, Pen. ('ode,

uary 28, 1901, in the city of Los Angeles, defining forgery. It was proper that they

the appointment, on February 19, 1901, of the should be instructed that the uttering of a defendants as executors of his last will, and forged instrument by the defendant as true

their qualification as such, it is further al. and genuine, with the knowledge that it was

leged: “That said Hugh Glassell and Ana forgery and with the intent to defraud,

drew Glassell, as executors of the last will would constitute the crime of forgery as and testament of said Andrew Glassell, defully as would a forgery itself of the in- ceased, are indebted to the plaintiff in the strument.

sum of $1.335.18, with 10 per cent. penalty The judgment and order are affirmed. added thereto for nonpayment thereof, and

interest thereon at the rate of ? per cent. We concur: COOPER, J.; HALL, J. per month from December 1, 1901, which

87 P.-16

said taxes were duly assessed and levied by question, enacted' subsequent to the Codes, said city of Los Angeles for the fiscal year and in form an independent statute, is not 1901-02, upon personal property which then embarrassed by that consideration. The and there belonged to and was part of the complaint at bar, however, in addition to estate of said Andrew Glassell, deceased, the allegations required by the statutory and which said defendants, as such executors, form of complaint, contains a description of had in their possession and control in said the property assessed, and an allegation that city of Los Angeles at 12 o'clock, noon, on said taxes were "duly assessed and levied the first Monday in March, 1901. That said * *

upon personal property which then personal property so assessed consisted of

and there belonged to and was part of the solvent credits in the amount of $101,605, estate of Andrew Glassell,

* * which bonds in the amount of $5,000, and money said defendants, as such executors, had in in the amount of $210." The defendants their possession and control in said city of deny the allegations of the complaint, and Los Angeles at 12 o'clock, noon, on the first allege that they were nonresidents of the

Monday in March, 1901.” In San Francisco v. city of Los Angeles on the first Monday in

Pennie, 93 Cal. 465, 29 Pac. 66, a similar comMarch, 1901, admit the ownership of the plaint was held sufficient as against a general bonds and money described in the complaint, demurrer. On the authority of that case, it but deny the ownership of the solvent

must be held that the complaint at bar sufficredits. The finding of the court in regard ciently states a cause of action. It is claimed to' solvent credits was that the defendants that, as the complaint fails to state that Anas executors had in their possession and con

drew Glassell, deceased, died in the city trol in the city of Los Angeles, solvent cred

of Los Angeles, it fails to show that the its amounting to the sum of $71,756, and no

property was within the jurisdiction of the more, at 12 o'clock m., on the first Monday

said city, as the personal property of a dein March, 1901.

cedent is taxable at his place of death. But Three questions are raised upon the appeal: the complaint does show that the defendants First, whether the complaint states a cause had the property taxed in their possession and of action; second, whether the production of

control in the city of Los Angeles at 12 the assessment book in evidence was suffi

o'clock, noon, on the first Monday in March. cient prima facie proof of all facts essential This is the ultimate fact to prove which it to recovery; and, third, whether or not a

may have been necessary to show in eyirecovery should be had for the full amount

dence that the said decedent died in said of taxes when the solvent credits actually

city. owned were of less value than the amount

The ordinance of the city of Los Angeles assessed.

with reference to the levy and collection First. It is contended by the appellants

of taxes was introduced in evidence in the that the complaint fails to state a cause of

court below. Section 64 thereof provides action for the reason that all of the proceed

for the collection by suit of taxes amounting ings leading up to the levy of the tax are

to $300 or more. This section corresponds not alleged in detail, that it is not alleged

in its language to section 3899 of the Politin the complaint that the property taxed was

ical Code, and was evidently intended as an within the city of Los Angeles, and that no

adaptation of that section to the proper authority is alleged on the part of the city

city officials. It has been held that the remcouncil for the bringing of this action, as

edy given by the statute of 1880, above menis required by the provisions of section 64

tioned, is independent and distinct from of the ordinance of the city regulating the

the remedy provided by section 3899 of the levy and collection of taxes. The respondent Political Code. Los Angeles v. Ballerino, 99 claims, that the complaint is in the form Cal. 593, 32 Pac. 581, 34 Pac. 329. If, thereprescribed by statute as the form of com

fore, the above-mentioned statute of 1880 plaint in actions for the recovery of taxes. applies to actions brought by the city of St. 1880, p. 136, c. 123. The constitutionality Los Angeles, a similar determination must be of this statute, however, is attacked by ap- reached. This statute by its terms applies pellants upon the authority of People v. only to counties and cities and counties. The Central Pacific R. R. Co., 83 Cal. 393. 23

charter of the city of Los Angeles, however, Pac. 303, in which a similar statute was contains the following provision: “The mode held unconstitutional. This case was over- and manner of collecting such municipal ruled and discredited to such an extent by taxes and enforcing such tax lien, and the the Supreme Court in the later case of People proceedings thereafter, shall substantially be V. Central Pacific R. R. Co., 105 Cal. 576, the same as the mode and manner at the 38 Pac. 905, that it can hardly be considered time prescribed by the law for the collection as an authority upon the question involved of state and county taxes in said county." in this case, particularly as the earlier deci- This provision is sufficient to authorize the sion was brought about in part by an effort bringing of the suit in question in the same to harmonize conflicting provisions in the manner as such suit might be maintained Code of Civil Procedure and the Political by a county. Code, while the construction of the statute in Second. The sufficiency of the proof in this case is questioned in many particulars, but gage to a trustee, creating a distinct and conthe respondent relies upon the assessment

tinuing obligation by the makers to reimburse roll introduced in evidence as sufficient prima

the plaintiffs for all sums expended as sureties

on the official bond of one of the makers, and facie proof of its right to recover. It is

allowing plaintiffs to pay off incumbrances and provided in the statute of 1880 (page 136, protect by suit the title to the property, and by c. 123), above referred to, that the assess

which the trustee obligated himself, if possible,

to obtain notes secured by mortgage from other ment roll "shall be prima facie evidence of

sureties, which were to be heid in trust for the plaintiff's right to recover.” A similar plaintiffs, the plaintiffs, on the trustee's refusal provision is contained in the Political Code to execute the trust, could maintain a suit in

equity to have the respective rights of the par(section 3789). These provisions, we think,

ties adjusted and the property sold. are made applicable by the provision of the

[Ed. Note. For cases in point, see vol. 17, charter of the city of Los Angeles above Cent. Dig. Trusts, $$ 497, 554.] quoted to actions for the recovery of the 2. SAME-NATURE OF ACTION-PLEADING. municipal taxes.

In such case the use of the formula, “barThird. The plaintiff sued for taxes upon

red and foreclosed of and from the equity of

redemption," in the prayer of the complaint $101,605, solvent credits. The court found

and in the judgment, does not conclusively esthe solvent credits subject to taxation to be tablish the nature of the action nor impair the $71,756, and no more. The question present

validity of the judgment. ed, therefore, is whether the remedy of the

Appeal from Superior Court, Madera Countaxpayer is by an appeal to the board of

ty; W. M. Conley, Judge. equalization for a reduction of the amount

Bill by C. Curtin and others against L. W. of assessment, failing in which he is liable

Krolin and others. From a judgment for for the full amount, or whether he can raise

plaintiffs, defendants appeal. Aftirmed. this question as a defense to an action to recover the tax. The determination of the

Raleigh E. Rhodes, for appellants. G. J. board of equalization with reference to all

Hely, for respondents. matters upon which they are competent as a board to pass, and within their jurisdic- MCLAUGHLIN, J. The recitals in the comtion as such board, is final and conclusive, plaint show that on June 3, 1898, the deand where a remedy is given by an applica- fendants L. W., W. J., H. A., and Louisa tion to this board, that is ordinarily the only Krohn were indebted to the plaintiffs in the remedy, and a failure to follow that remedy sum of $7,000, and to secure the payment of concludes the property holder. In People the same

the same executed their promissory note v. Dunn, 59 Cal. 340, it was held by the Su-to the defendant Commercial Bank of Madera, preme Court that while money could not be reciting therein that said bank was a trustee, assessed at more than its face value, solvent and was to pay all moneys paid on the trust credits might properly be assessed at a high- | note to the plaintiffs in certain designated er valuation than the face of the obligation. proportions. At the same time and place It would therefore follow that the case at the promisors executed an instrument, dehar presents a case of overvaluation rather nominated a trust deed, conveying certain than of the assessment of nonexisting prop- | realty, and notes secured by mortgage, to erty, and that the remedy was an appeal the said bank under conditions, and for purto the board of equalization, failing in which poses therein specifically mentioned. In this the party cannot now complain. Columbia instrument the Krohns are designated parSavings Bank v. Los Angeles, 137 Cal. 167, ties of the first part, the bank, party of the 70 Pac. 308; Henne v. Los Angeles County, second part, and plaintiffs, parties of the 129 Cal. 297, 61 Pac. 1081.

third part. It contains a succinct history The views hereinbefore expressed render of the circumstances under which the inimmaterial the question as to the admissi- debtedness of the Krohns to plaintiffs acbility of the inventory, and other questions crued, specifically fixes the sums due to each raised with reference to the introduction of of the plaintiffs, and the proportion in which evidence. They, therefore, need not be con- payments made on the note are to be dissidered.

tributed to them. It distinctly provides that The judgment and order denying a new the parties of the first part shall be, and retrial are affirmed.

main, liable to the parties of the third part

until the latter are fully compensated for all We concur: GRAY, P. J.; ALLEN, J. | money paid or advanced by them as sureties

on the official bond of L. W. Krohn as tax

collector of Madera county. In this con(1 Cal. App. 131)

nection it was agreed that the second party, CURTIN et al. v. KROHN et al. if possible, would secure notes from other (Court of Appeal, Third District, California. sureties on said bond; that the third parties July 18, 1906. Rehearing Denied by Su- would have an interest in any notes so obpreme Court September 13, 1906.)

tained; and the collection thereof and ap1. TRUSTS-ENFORCEMENT-REFUSAL OF TRUS- plication of payments made thereon is proTEE TO FORECLOSE TRUST DEED--ACTION.

vided for in detail. The performance of asWhere the makers of a note executed ain instrument, denominated a trust deed, convey

sessment work on certain mines, and the dising certain realty and notes secured by mort- tribution of gross profits therefrom, is also

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