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(149 Cal. 702)

In re NIGRO'S ESTATE. (S. F. 4,602.) (Supreme Court of California. Sept. 19, 1906.) COURTS-STARE DECISIS-RULES OF PROPERTY.

The decision that, under Civ. Code, $ 1386, subds. 2 and 5, as existing prior to the amendment of 1905 by providing that where a decedent leaves a surviving husband or wife and neither issue, father, mother, brother, nor sister, the whole estate goes to the surviving husband or wife, etc., nieces and nephews of a decedent dying intestate, leaving surviving a widow, but neither father, mother, brother nor sister, do not succeed to any part of his estate is a rule of property, and will be followed.

[Ed. Note.-lor cases in point, see vol. 13, C'ent. Dis. Courts, $$ 336–339.]

In Bank. Appeal from Superior Court, Alameda County; F. B. Ogden, Judge.

In the matter of the estate of one Nigro, (leieased. From a decree of partial distribution, nieces and nephews of the decedent appeal. On motion to dismiss appeal. Appeal clismissed.

Samuel M. Shortridge and Walter H. Linforth, for appellants. Sullivan & Sullivan and Theo. J. Roche, for respondent.

(4 Cal. App. 63) PEOPLE V. CHADWICK. (Crim. 28.) (Court of Appeal, First District, California. July 9, 1906. Rehearing Denied by Su

preme Court Aug. 31, 1906.) 1. PERJURY-INSTRUCTIONS.

In a prosecution for perjury, the jury were charged that in order to convict they must determine whether defendant gave the testimony "which the indictment charges he did give"; that it was for the jury to determine whether defendant swore to the testimony alleged in the indictment to be false, whether such testimony was false, whether defendant at the time he swore to such testimony knew it to be false, and whether the testimony so alleged to be false was material to the issue then before the court. Held, that such instruction was not objectionable, as misleading the jury to consider any testimony given by defendant on a previous hearing other than that laid in the indictment, and to convict him if they found that any portion of such testimony was false. 2. SAJE-MATERIALITY-QUESTION FOR COURT.

In a prosecution for perjury, the materiality of the testimony to the issue is a question of law for the court.

[Ed. Xote.-For cases in point, see vol. 39, Cent. Dig. Perjury, $ 133.] 3. SAME-PROOF OF PERJURY-DIRECT EVIDENCE.

Where perjury was assigned on defendant's testimony that he had written certain telegrams while in a ceil in Ogden, Utah, and immediately gave them to S., evidence of two police officers that before reaching the police station, after defendant was arrested at Ogden, S. took one of the telegrams from her hat, and handed it to one of the officers, and that the other was found in defendant's grip, which the officer took charge of when defendant was arrested, and searched immediately after reaching the police station, and before defendant was taken to his cell, constituted "direct" evidence of the falsity of defendant's testimony, under Code Civ. Proc. $ 1881, defining "direct evidence" as that which proves the fact in dispute without inference or presumption, and which, in itself, if true, conclusively establishes the fact. 4. SAME-INFORMATION-SUFFICIENCY.

Where defendant was informed against for sending a forged telegram, and the court held such information sufficient, defendant could not again object that the information was insufficient in a subsequent prosecution for perjury committed on the trial for sending such telegram. 5. SAME-MATERIALITY OF

TESTIMONY-INSTRUCTIONS.

Where defendant was charged with perjury committed in a prosecution against him for sending a forged telegram, an instruction that, as it was shown on the trial of the former prosecution for sending such telegram that defendant did not in fact actually send the telegraphic message, but merely furnished the message to the operator to be sent by telegraph, it was not material when and where the telegrams with reference to which the forgery was assigned were' written, was properly denied. 6. INDICTMENT - PLURALITY OF OFFENSESREMEDY-DEMURRER.

An objection that an indictment for perjury charged two offenses, which appeared on the face of the indictment, must be raised by demurrer, as provided by Pen. Code, $ 1004, subd. 3.

[Ed. Note. For cases in point, see vol. 27, Cent. Dig. Indictment and Information, $ 468.) 7. SAME-WAIVER.

Where an objection that an indictment for perjury charged two offenses was not taken by

III NSHAW, J. This is a motion. to dismiss an appeal from a decree of partial distribution. The deceased died intestate leavins surviving him a widow, no father, no mother, no brother, no sister, but nieces and nephews. The nieces and nephews appeal, and the motion to dismiss is based upon the ground that, having no interest in the estate, they are not parties in interest so as to be entitled to appeal. It is conceded by the attorneys for the appellant that, if this court adheres to its decisions in Estate of Ingram, 78 Cal. 586, 21 Pac. 435, 12 Am. St. Rep. So, and Estate of Carmody, 88 Cal. 616, 26 Pac. 373, the appellants in this case have no standing, and the appeal should be dismissed. The conclusion that, under section 1386, subdivisions 2 and 5, Civil Code, as they stood before the amendment of 1905, nephews and nieces, where there was no surviving brother or sister, did not succeed to any portion of the estate of the deceased, was reached first in department in the Ingram Case, and afterward the decision in the Ingram Case was advisedly adopted by this court in bank. Such interpretation of the law has, therefore, become å rule of property which should be and is hereby adhered to.

The appeal is therefore dismissed.

We concur: BEATTY, C. J.; SHAW, J.; ANGELLOTTI, J.; SLOSS, J.; LORIGAN, J.; McFARLAND, J.

demurrer, it was waived, as provided by Pen. 1. The court gave the jury the following Code, $ 1012.

instruction, viz.: “You have heard the testi[Ed. Note. For cases in point, see vol. 27, Cent. Dig. Indictment and Information, $ 501.)

mony in this case, and it is for you to de

termine: * * Fourth. That the defend. 8. WITNESSES-HUSBAND AND WIFE_DECLA

ant swore to the testimony alleged in the inRATIONS. Code Civ. Proc. $ 1881, subd. 1, and Pen.

dictment to be false. That is a question of Code, $ 1322, prohibiting a husband or wife fact for you to determine, whether he gave from being examined as a witness for or against the testimony which the indictment charges the other except with the consent of both, does not preclude the people, in a criminal proceed

he did give, or whether he gave any portion ing against either of the spouses, from proving of it. Fifth. That such testimony was false; the statements or declarations of the other, if that is, whatever testimony he gave in that otherwise admissible by the testimony of a

action, if he gave it, and if you find there witness who heard them. [Ed. Note.--I'or cases in point, see vol. 50,

was such an action, and if he gave any of such Cent. Dig. Witnesses, 88 710, 7441.)

testimony. that the testimony that he did 9. CRIMINAL LAW-PRIOR CONVICTION-Evi

give, or some portion of it, was false. Sixth. DEXC'E.

That the defendant, at the time he swore to In a prosecution for perjury, evidence hold such testimony, knew it to be false. That is insufficient to establish that defendant had been

a question of fact for you to determine, bearpreviously convicted of a felony. 10. SANE-ADMISSIONS.

ing in mind the rule of law that an unqualiEvidence of accused, in a prior prosecution

fied statement of that which one does not for sending a forged telegram, that he had been know to be true is equivalent to a statement previously convicted of a felony was il mere of that which one knows to be false. Seventh. extrajudicial statement, and insufficient, of itself, to establish an allegation of prior con

That the testimony so alleged to be false viction in a subsequent prosecution for perjury.

was material to the issue then before the [Ed. Note.-For cases in point, see vol. 14,

court." Cent. Dig. Criminal Law, $ 1867.]

It is urged by the appellant that, as evi11. CRIMINAL LAW-APPEAL-PRESUMPTIONS dence of any false testimony for which the -REVERSAL.

defendant could be convicted is limited to In a prosecution for perjury, accused was also charged with having been previously con

that laid in the indictment, it was error for victed of a felony, and was convicted on both

the court to thus permit the jury to consider charges. He was sentenced to imprisonment any testimony given by him at the previous for the shortest term for which he could be im trial other than that laid in the indictment. prisoned if the charge of prior conviction had been established. Held, that it would not be

and to convirt him if they should find that presumed on appeal that the court would have any portion thereof was false. We are of imposed the same sentence if accused had been the opinion, however, that the above lanmerely convicted of perjury, and, the evidence being insufficient to establish the charge of prior

guage of the court will not admit of this conviction, the judgment should be reversed.

construction, and that from the whole in[Ed. Note.For cases in point, see vol. 15,

struction given them the jury could not have Cent. Dig. Criminal Law, $ 3035.]

understood that they could convict the deAppeal from Superior Court. San Francisco

fendant for any false testimony other thart County ; Carroll Cook, Judge.

that which is charged in the indictment. Ernest Moore Chadwick was convicted of

They were told that in order to convict the perjury, and he appeals. Reversed and re.

defendant they must determine whether he manded.

gave the testimony "which the indictment

charges he did give"; and, by being told E. M. Chadwick, in pro. per. Attorney Gen

in direct connection with this that they must eral U. S. Webb, for the People.

find "that such testimony was false," they HARRISON, P. J. Upon an indictment

were expressly limited to the testimony laid charging the appellant with the crime of per

in the indictment. The clause "whatever jury, in having willfully and falsely testi

testimony he did give in that action," which fied at a trial of himself under the charge of

is relied upon by the appellant, is by its conforgery that two certain telegrams, purport

nective "that is" placed in direct apposition ing to have been signed by Marie Schneider,

with the clause "that such testimony was which were introduced in evidence at that

false," and is to be construed as an explanatrial, were written by him on or about the 1st tion thereof, and with the same limitation. day of March, 1901, in a cell or room of the

The further direction to determine whether police station in the city of Ogden, in the "any of such testimony" which he gave in state of Utah, after he had been arrested at the prior action was false limited their conthe said city of Ogden, and while he was de

sideration to "such" of the testimony laid in tained and imprisoned in said cell or room the indictment as they should find had been under said arrest, and that the said tele given by him, and is to be read as a continuagrams were at said time and place delivered tion of, and in connection with, the prior by him to one Norine Schneider, he was tried portion of the instruction. The frequent and convicted before a jury in the superior

limitation of their consideration to "such tescourt in and for the city and county of San timony" must have been understood by the Francisco, and has appealed from the judg. jury as referring simply to whatever testiment rendered thereon and from an order mony of that charged in the indictment they (lenying him a new trial.

should find was given by him. 37 P.-25

2. In direct connection with the last sen contrary, and is as I have stated. In pertence of the above-quoted portion of the in jury cases, in order that the evidence may be struction, the court told the jury that "wheth deemed sufficient, there must be positive teser the testimony alleged to be false was or timony to a contrary state of facts to that was not material is a question of law which sworn to by the defendant at the previous it is for the court to determine, and not for trial; that testimony must either be by two the jury; the question of the materiality of witnesses, or by one witness and corroboratevidence, no matter when and how it may ing circumstances." arise, is always one of law for the court, and Section 1968 of the Code of Civil Procedure not of fact for the jury; that in rendering declares: “Perjury and treason must be a verdict in criminal cases the jury "only proved by testimony of more than one withas the right to find the facts, and apply to ness; treason by the testimony of two witthem the law as given by the court, and on a nesses to the same overt act; and perjury trial for perjury it is the duty of the court by the testimony of two witnesses, or one to instruct the jury as to what facts would witness and corroborating circumstances.” show the testimony to be material”; and The above instruction, it will be seen, in said to the jury that if they found certain addition to stating the provisions of section facts to be as alleged, the testimony, charged 1968 of the Code of Civil Procedure, told the in the indictment herein to have been given jury that the guilt of the defendant must also by the defendant, was material to the issues be shown by the “positive and direct” testiin the former action.

mony of two witnesses, or the "positive and There was no error in thus instructing the direct” testimony of one witness and corjury. Whether testimony given upon the roborating circumstances. As the instruction trial of a cause is material to the issues then in this respect was favorable to the appelbefore the court is a question of law to be lant, he does not claim that it was erroneous. determined by the court; but, as is some but contends that there was no “direct” testitimes the case, especially upon a trial for mony of the guilt of the defendant; that perjury, the materiality of testimony will de “there was no witness who was present at pend upon the existence of certain other said cell, and swore that the defendant did facts, and if these facts are controverted not there write said telegrams, and did not detheir existence must be determined by the

liver them to Norine Schneider"; his counsel jury. The instruction to them that the ex saying, also, in the brief filed in his behalf, istence of these facts would, as a matter of

that “if it were sought to prove the defendlaw, render the testimony material, and that ant guilty of the crime charged in the inthey must so find, is in entire harmony with dictment by direct testimony, the prosecution the instruction that, for the purpose of reach

would have to produce at least one witness ing a verdict, they must determine whether who was in the cell with the defendant all it is material. In being permitted to deter the time during his incarceration at Ogden, mine the existence of these facts, the determi and such witness would have to testify that nation of the materiality of the testimony the defendant did not during such incarcerawas left with the jury. A jury is at all

tion write said telegram, and did not then and times required in rendering their verdict to there deliver the same to Norine Schneider. apply the facts shown in evidence in accord Such direct evidence was not produced, and ance with the rules of law given them by the the jury did not follow the instruction of the court; but in so doing the verdict is none court in finding the defendant guilty.” It was the less rendered by the jury. See People v. clearly shown at the trial herein that at the Lem You, 97 Cal. 224, 32 Pac. 11; Ball v.

trial of the former action the defendant did Rawles, 93 Cal. 228, 28 Pac. 937, 27 Am. St. give the testimony charged in the indictment Rep. 174; Pen. Code, $ 1126.

to have been then given by him; that at 3. The court also instructed the jury as

that time he testified that he was arrested follows: "Before the defendant can be con at Ogden in the nighttime, and on the same victed of the offense charged in the indict night was taken to the police station in that ment, his guilt must be shown by the positive city, and confined in a cell or room upstairs and direct testimony of two witnesses, or by in the building; that at some time during the positive and direct testimony of one wit the morning of the next day after his arrest, ness and corroborating circumstances; in and while he was still confined in that room, other words, the law prescribes a different he wrote the two telegrams in question, and rule of evidence in perjury cases than pre

in the afternoon of that day, while still vails in ordinary cases, both as to the kind confined in the room, delivered them to and amount of testimony required to con Norine Schneider. For the purpose of showvict. The rule is different as to the kind of ing the falsity of this testimony the prosecuevidence, for positive testimony is absolutely tion called as a witness James F. Pender, necessary in a perjury case, and circumstan who testified that he was the officer who, in tial evidence, standing alone, is never suffi company with the chief of police, arrested cient. Again, for nearly all violations of the the defendant at Ogden, and took him from law the evidence of one credible witness is the hotel where he was arrested to the police sufficient to support a conviction, but in pros station; that Norine Schneider was with the ecutions for perjury, the rule is clearly the defendant when he was arrested, and accom

panied them from the hotel to the police ten before the arrest of the defendant. In station; that while they were on the way the language of the instruction, it was "posifrom the hotel to the police station, and be tive testimony to a contrary state of facts fore they reached it, Miss Schneider took one from that sworn to by the defendant at the of the telegrams from her hat, and handed previous trial.” See People v. Wells, supra. it to the witness; that at the time the de The verdict of the jury shows that they acfendant was arrested he had a grip, which cepted the testimony of these two witnesses the witness took along with them, and search as true, and that the testimony of the deed after they reached the police station and fendant to the contrary was false. before the defendant was taken upstairs to 4. The court properly refused the instructhe cell or room in which he was confined; tion asked by the defendant to the effect that upon so searching the grip they found that the information in the prior action was and took from it the other telegram. Similar defective, and did not charge a crime, for testimony was given by the chief of police. that reason that it fails to state that the mesThe perjury with which the defendant is sage was sent "by telegraph," and that the charged is that, upon the trial in the former

testimony of the defendant was therefore action, he falsely testified that the telegrams not material. Whether that information was set forth in the indictment herein were writ defective or not was a question to be deterten and delivered by him to Norine Schneider mined by the court in which that trial was in his cell at Ogden, and after his arrest in had. That court held it to be sufficient, and that city. That he gave such testimony fully its action in this respect was sustained by the appears, as above shown, and in fact is not

Supreme Court. People v. Chadwick, 143 disputed. The fact in dispute at the trial Cal. 116, 76 Pac. 894. herein, and upon which the falsity or truth Upon the same grounds, the court properly of his testimony depended, was whether the refused to give the instruction asked by the telegrams had been written and delivered defendant to the effect that, inasmuch as it to her before his arrest, or whether he had was shown at the trial of the former action written and delivered them in his cell after that the defendant did not in fact actually his arrest. If they were written before he send the telegraphic message, but merely furwas arrested, his testimony that he wrote nished the message to the operator to be sent them after his arrest, and while confined in by telegraph, it was not material to know his cell under such arrest, was false. Any when and where the telegrams herein conevidence, therefore, sufficient to establish as sidered were written. a fact that the telegrams had been written The further objection that the indictment before his arrest would establish the plıysical charges two offenses—a perjury committed impossibility of their having been written by in swearing falsely that the telegrams were him in his cell after his arrest, and thus written in Ogden, and another perjury comdemonstrate the falsity of his testimony. mitted by swearing that they were delivered

"Direct evidence" is declared in section to Norine Schneider at the same place1831 of the Code of Civil Procedure to be arises upon the face of the indictment, and "that which proves the fact in dispute di

whether well taken or not should have been rectly without an inference or presumption, presented by demurrer. Pen. Code, $ 1004 (3). and which in itself, if true, conclusively estab It is unnecessary to determine whether such lishes that fact." Upon a trial for perjury, objection is well taken or not, but, as it apdirect evidence is not limited to a denial in pears upon the face of the indictment, it ipsissimis verbis of the testimony given by was waived by failing to make the objection the defendant, but includes any positive testi. by demurrer. Pen. Code, $ 1012. mony of a contrary state of facts from that 5. It is urged by the appellant that, inassworn to by him at the former trial, or which much as Norine Schneider was the wife of is absolutely incompatible with his evidence, the defendant, the court erred in permitting or physically inconsistent with the facts so her to testify in behalf of the people without testified to by him. People v. Green, 54 Cal. first obtaining the consent of the defendant. 592; People v. Barry, 63 Cal. 62; People v. This objection, as well as the facts upon Wells, 103 Cal. 631, 37 Pac. 529; People v. which the objection is urged, is not sustained Porter, 104 Cal. 415, 38 Pac. 88. The testi by the record. It is recited in the minutes mony of the witness Pender was direct and of the trial under the date of July 28, 1902.. positive that he had the telegrams in his pos "Thereupon Norine Schneider was duly sworn session before the defendant was placed in and examined for the people and excused." his cell; that one was given to him by Miss The bill of exceptions does not show the charSchneider before he was taken to the police acter or extent of the examination, or that station, and that he found the other in the she gave any testimony in the case; and it defendant's grip, which the witness took pos is perfectly consistent with this recital that session of at the time he arrested the defend she was "excused" from testifying upon the ant. These facts do not depend upon infer. ground that it appeared that she was the ence or presumption, but were directly testi wife of the defendant. His testimony, which fied to by Pender and the other witness, and is set forth in the bill of exceptions, was not such testimony, if true, directly established given by her as a witness at the trial herein, the physical fact that the telegrams were writ but is merely the testimony of the witness

Elderkin, the official stenographer, that upon element of the charge made against him in the trial of the former action she gave such the indictment, and the defendant has the testimony. The provisions of the Code (Code right to insist that the prosecution shall esCiv. Proc. § 1881 [1]; Pen. Code, 8 1322) pro tablish the existence of that element by hibiting a husband or a wife from being ex

competent evidence before he can be convictamined as a witness for or against the other, ed thereof. While the testimony of the witexcept with the consent of both, does not ness that such admission was made during preclude the people, in a criminal proceeding the former trial was corroborated by his against either of the spouses, from proving testimony that he entered it in his stenthe statements or declarations of the other, ographic notes of the trial at the time it was if otherwise admissible, by the testimony of made, and afterwards made a transcript in a witness who heard them. The Code merely

longhand of those notes, from which he read makes either spouse incompetent as a witness the statement at the trial herein, it was in in an action or proceeding against the other, legal effect only the parol statement of the but does not render their statements else

witness that he had heard the defendant make where given privileged against being shown such admission. The rule is clearly estalıby competent testimony.

lished in this state that the extrajudicial 6. The indictment against the defendant

statements or admissions of a defendant, in also charges him with a previous conviction the absence of other evidence of the commisof a felony, and the jury so found. The ap sion of the crime charged against him, are pellant contends that there was no evidence insufficient to establish his guilt (People v. in support of this portion of the verdict, and

Jones, 31 Cal. 565; People v. Simonsen, 107 we are of the opinion that this contention Cal. 345, 40 Pac. 410); and they are equally must be sustained.

insufficient to establish the existence of any In support of the issue upon this portion of substantive or essential element of a crime the indictment, the bill of exceptions states charged against the defendant. The admisthat the prosecution offered in evidence "the

sion of the defendant to which the witness judginent roll in case No. 11,906, in the Mat

testified was none the less extrajudicial for ter of the People of the State of California

having been given under oath during the vs. Harry Westwood Cooper, Department No.

trial of the charge of forgery against him. 12 of the Superior Court; judgment roll filed

It was not an admission of any fact conJan. 14, 1898," together with testimony that

nected with the transaction for which he "the party mentioned therein is the defend

was then prosecuted, or for which he is ant at the bar, Ernest Moore Chadwick."

prosecuted hereir. or made with any referThe judgment roll thus offered is not set

ence to the charge contained in the present forth in the bill of exceptions, nor is there

indictment. As there was no evidence of any recital therein of the character of the

any fact showing that a felony had been proceeding; whether the judgment was ren committed, or connecting him with any facts dered in a civil or in a criminal proceeding, constituting a felony, his naked admission or, if the latter, whether the defendant was

that he had been convicted of a felony was convicted of a felony or of a misdemeanor.

insufficient to establish that element of the In the absence of any showing of the char

present indictment. acter of the judgment, the jury were not au

7. Although this portion of the verdict was thorized to find therefrom that the defendant

unauthorized, it does not follow that a new had suffered a prior conviction of a felony. trial must be granted. The verdict that the The only other evidence bearing upon this

defendant had suffered a prior conviction is issue is the following: At the trial herein severable from that portion finding him guilthe prosecution called as a witness the official ty of perjury, and, as we have seen that the reporter of the trial of the defendant upon

latter portion of the verdict is sustained by the charge of forgery, who read in evidence

the evidence, the verdict of a prior convicthe testimony given by him at that trial.

tion may be disregarded, and judgment enUpon his cross-examination therein the de.

tered against the defendant upon that porfendant was asked by the district attorney tion of the verdict which was sustained by the following question, viz., “Were you on

the evidence. In the judgment rendered by the 14th day of June of the year 1898 con

the court the defendant was sentenced to victed of a felony"? to which he answered,

imprisonment in the state prison for the term "I was; yes, sir.” This evidence merely

of 10 years. This is the shortest term for showed that the defendant, upon a certain which he could be imprisoned if the charge occasion prior to the indictment herein, had of prior conviction had been established; admitted that at the designated date (June and, although the court might have sentenced 14, 1898) he had been convicted of a felony. him to imprisonment for the same term upon It will be observed that this inquiry and a verdict merely finding him guilty of perstatement were directed to a different date jury, it cannot be assumed that the court from that laid in the indictment, that being disregarded any portion of the verdict in by a judgment which bears date on the 14th fixing the term of imprisonment, and its day of January, A. D. 1898.

judgment in that respect cannot, therefore, The fact that the defendant had been pre be sustained. See People v. Eppinger, 109 viously convicted of a felony was a distinct Cal. 294, 41 Pac. 1037.

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