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(230 P.)

PEOPLE v. POO ON. (Cr. 794.) (District Court of Appeal, Third District, California. Sept. 24, 1924.)

Physicians and surgeons 6(10)—Evidence held to sustain conviction of practicing without license.

Evidence held to show accused was practicing medicine without a license, rather than merely selling herbs.

Appeal from Superior Court, Stanislaus County; J. C. Needham, Judge.

Poo On was convicted of practicing medicine without a license, and he appeals. Affirmed.

L. J. Maddux, of Modesto, for appellant. U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.

FINCH, P. J. The defendant was convicted of the offense of practicing medicine without a license. This appeal is from the judgment of conviction and the order denying his motion for a new trial. The cause is submitted on the appellant's opening brief.

The only ground urged for a reversal is that the evidence does not show that the

defendant was engaged in the practice of medicine, but only that he was engaged in the sale of herbs. Several persons who had been treated by the defendant for various ailments testified for the prosecution. The following excerpts from the testimony of the first witness examined shows the character of proof presented:

"Q. Whom did you see when you went to the office of Poo On? A. Dr. Poo On, himself, and the office girl. * * Q. Just what was said, now, as near as you can recall? A. Well, I don't know as I could repeat all that was said. I visited him in regard to medical treatment. I don't know as you would call it medical treatment in the way he treats, but I went for the purpose of getting his herbs. *

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PEOPLE v. ARNAREZ. (Cr. 790.) (District Court of Appeal, Third District, California. Sept. 16, 1924. Rehearing Denied Oct. 16, 1924.)

1. Indictment and information 191 (2)-Defendant cannot be convicted of possessing, in prosecution for manufacturing.

Supp. 1923, § 101384 et seq.), penal proviUnder Volstead Act (U. S. Comp. St. Ann. sions of which were incorporated in Wright Act, offense of unlawful possession of intoxicating liquors is separate and distinct from that of manufacture and sale for beverage purposes, and hence not included offense, for which defendant may be convicted under Pen. Code, § 1159, in prosecution for manufacturing.

2. Criminal law 881 (2)-Verdict must be responsive to offense charged.

Verdict must be responsive to offense charged in information.

3. Criminal law

782(9), 805(2)—Instruction held erroneous as permitting conviction of lesser offense on weaker evidence, and referring to instructions not given.

Instruction to acquit of offense charged, if jury had reasonable doubt as to defendant's guilt, but that they might find him guilty of lesser offenses, "as herein otherwise instructer," if they found him guilty of lesser offense contained in that charged, held erroneous as not advising jury of degree of proof required to sustain conviction for lesser offenses, and referring to instructions not given.

Q. Now, how did you arrive at what kind of medicine you were to get, or what herbs you were to get? A. Well, I don't know as I know what kind of herbs I got. I got the herbs that he gave me just through stating my case to him. Through stating my case to him, why, he gave me herbs; * I stated my case. * And he answered the questions back; that is, he told me what he thought. Q. And did he ask you after you had stated your case, then, with reference to any particular symptoms 4. Intoxicating liquors 236 (62)-Jury not of trouble or disease? And then, after that, did he state with reference to what particular disease you were af- Jury may properly infer from proof of posflicted with? A. I think he did name in a session of intoxicating liquors and circumstancway what he thought was ailing me. Q. What es concerning it that defendant had it for undid he say? A. He said he thought it was gas- lawful purposes, as defined in Volstead' Act tric trouble, and to my knowledge I think that (U. S. Comp. St. Ann. Supp. 1923, § 101381⁄4, was the only thing he did state. Q. et seq.), but is not bound, as matter of law, Well now, when you went to him, did you ask to bring in such verdict on mere proof of poshim for a particular brand of herbs? A. I did session, only penalties of such act having been not. Q. Or medicine? A. I did not. Q. Who | adopted by Wright Act.

* A. Yes.

*

* Q.

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bound to convict of unlawful possession on mere proof of possession.

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 230 P.-13

On Petition for Rehearing.

5. Criminal law 1189-Verdict and judgment of possessing intoxicating liquors held nullities, requiring reversal without remand.

Judgment on verdict of guilty of possessing intoxicating liquors for unlawful purposes, in prosecution for manufacturing such liquor, and sentence or judgment thereon, held mere nullities, requiring reversal without remand for retrial of such issue.

6. Criminal law 290, 1189-Plea of former jeopardy personal and appellate court cannot enter plea.

Plea of once in jeopardy being personal privilege to be set up by defendant in trial court when placed on trial, Pen. Code, § 1140, cannot be applied by appellate court to subsequent proceedings on information for manufacturing intoxicating liquors, after reversal of judgment on verdict of guilty of unlawful possession, and hence defendant is not entitled, upon such reversal, to order directing his discharge, rather than remanding for new trial.

Appeal from Superior Court, Sacramento County; Charles O. Busick, Judge.

Gean Arnarez was convicted of possess ing intoxicating liquor, and appeals. Reversed.

H. W. Zagoren, of Sacramento, for appel

lant.

U. S. Webb, Atty. Gen., and J. Charles Jones, Deputy Atty. Gen., for the People.

PLUMMER, J. By an information filed in the superior court on the 9th day of January, 1924, the defendant was charged with the offense of unlawfully and knowingly manufacturing intoxicating liquor for beverage purposes, contrary to the form, force, and effect of the statute in such cases made and provided. Thereafter the trial was had on the information, and upon the conclusion thereof the jury returned the following verdict:

"We, the jury in the above-entitled cause, find the defendant Gean Arnarez guilty of the crime of unlawfully having in his possession intoxicating liquor, included within said charge of unlawfully manufacturing intoxicating liqor in violation of the Wright Act (St. 1921, p. 79) as charged in the information."

The matter is now before this court upon the defendant's appeal from an order deny

the procedure admissible to be followed and ordinarily followed in the federal courts, said offenses are set forth in distinct and separate counts, and the jury authorized to find the defendant guilty upon the particular count or counts sustained by the evidence. See Fassolla v. U. S. (C. C. A.) 285 F. 378, in which the defendant was prosecuted under a count charging unlawful sales, and under a count charging unlawful possession. Though not supported by any brief on file in this case, the prosecution appears to have relied upon section 1159 of the Penal Code, which reads:

"The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense."

It would appear from a reading of the Volstead Act (U. S. Comp. St. Ann. Supp. 1923, § 101384 et seq.) that the lesser offense included within the charge of manufacturing is the having in one's possession of the materials and supplies with the intent and purpose of manufacturing intoxicating liquors for beverage purposes. The offense of unlawful possession and the crime of unlawful manufacture are separately and distinctly defined in the Volstead Act, and separate and distinct penalties for the separate offenses fixed and particularly set forth. We see no difference in the application of the principle concerning distinct offenses in this case from that which was applied by the federal court in the cases of Bell v. U. S. (C. C. A.) 285 F. 145; Massey v. U. S. (C. C. A.) 281 F. 293; Singer v. U. S. (C. C. A.) 288 F. 695, and Page v. U. S. (C. C. A.) 278 F. 41, where it was held, as set forth in 33 C. J. 617, that:

"The offense of unlawfully possessing liquor is a distinct offense from that of the unlawful transportation of liquor, and the offense of unlawfully possessing liquor is a distinct offense from that of maintaining a nuisance for the unlawful sale of liquor."

[2] As stated by the appellant, it is elementary law that the verdict must be responsive to the offense charged in the information. 16 Corp. Jur. 1103; 8 Cal. Juris. 204; People v. Murat, 45 Cal. 281, and Peo§ 431; People v. Arnett, 126 Cal. 680, 59 P.

ing his motion for a new trial and the judg-ple v. Akens, 25 Cal. App. 373, 143 P. 795. ment of conviction pronounced in pursuance court gave the jury the following instruc[3] At the conclusion of the testimony the

of the verdict herein set forth.

tion:

[1] A reference to the Volstead Act, the penal provisions of which were incorporated "After February 1, 1920, the possession of into the laws of this state, shows that the liquors by any person not legally permitted unoffense of unlawful possession of intoxicat- der this title to possess liquor shall be prima facie evidence that such liquor is kept for the ing liquors and the manufacture of intoxicat-purpose of being sold, bartered, exchanged, giving liquors or sale for beverage purposes en away, furnished, or otherwise disposed of are separate and distinct offenses, even in violation of the provisions of this title, and though they are so connected that, under the burden of proof shall be upon the posses

(230 P.)

sor in any action concerning the same to prove | Silva (Cal. App.) 227 P. 976, and a number that such liquor was lawfully acquired, pos- of additional authorities cited in support of sessed, and used," and further: "The court such holding. That the jury may properly charges the jury that if they have a reasoninfer from proof of possession of intoxicatable doubt after considering all of the evidence in the case, as to whether or not the defending liquor and the circumstances concernant is guilty of the offense charged, then the jury must find the defendant 'not guilty' of the offense charged in the information, but you may find him guilty of the lesser offenses, as herein otherwise instructed, if you find defend. ant guilty of such lesser offense contained within the offense charged in the indictment, as herein instructed."

So far as the lesser offense is concerned, there seems to be no instruction whatever save and except that contained in the one informing the jury as to the kind of verdict which they might return, and which included the form of verdict which we have heretofore set forth in full. The portion of the instruction just quoted relating to the lesser offense was added to the instruction by the trial court and, as it is worded, even if applicable to this case, is not a correct statement of the law, as it informs the jury that in the first instance, in order to find the defendant guilty of the offense charged in the information, they must first be satisfied, of the defendant's guilt beyond a reasonable doubt, but that as to the lesser offense they were not advised of the degree of proof required, and were. at liberty to find the defendant guilty upon much weaker testimony. The instruction is also misleading in that it refers to instructions elsewhere given which were not in fact given.

[4] This court in the case of People v. Mattos (Cal. App.) 227 P. 974, had occasion to express its views as to the portion of the Volstead Act incorporated into our laws by what is popularly known as and called the Wright Act. We there said:

"At the request of the people the court gave to the jury the following instruction: After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title, and the burden of proof shall be upon the possessor in any action concerning the same to prove that such liquor was lawfully acquired, possessed, and used.' "This instruction should not have been given. The act of the Legislature commonly known as the Wright Act adopted only the penalties of the act of Congress commonly

known as the Volstead Law.

* The in

ing the possession that the defendant has it for unlawful purposes, as defined in the Volstead Act, and might find the defendant guilty upon such proof without further testimony, is an entirely different matter from stating to the jury that, under mere proof of possession, the jury is bound as a matter of law to bring in a verdict of possession for unlawful purposes. But, be this as it may, the question of possession was not involved in this action, and we refer to this instruction only for the purpose of aiding the trial court in any future proceedings that may be had in this case. order and judgment appealed from in this case are reversed, and the cause remanded for a new trial.

We concur:

The

FINCH, P. J.; HART, J.

On Petition for Rehearing. PER CURIAM. [5] The appellant in this action petitions for a rehearing herein, also, for a reconsideration of its judgment in this action, and for an order directing the lower court to discharge the defendant in lieu of remanding the cause for a new trial. This contention is based upon the theory that the defendant has been once placed in jeopardy and cannot again be retried.

[6] It is evident from what we have said in our former opinion in this case that the verdict of the jury and the sentence or judgment of the court pronounced thereupon are mere nullities, and there can be no retrial of the issue attempted to be decided by such verdict and judgment, and that the order of this court should have read and is hereby amended to read "judgment and order appealed from reversed." This, however, does not dispose of the information still on file with the trial court charging the appellant with the offense of unlawfully manufacturing intoxicating liquors. The record in this. case now before us would lead to the conclusion that the jury was discharged after rendering the verdict to which our original opinion has been directed, without any consent on the part of the defendant, and that the provisions of section 1140 of the Penal Code would apply to any subsequent proceeding upon the information filed against the defendant in this cause. The applica

struction above given is to all intents and purposes a literal wording of one of the sections tion of that section, however, cannot ba of the Volstead Act in relation to procedure made by this court at this time, for the in federal courts. It was not adopted into our simple reason that the plea of once in jeoparsystem of procedure by the Wright Act, and dy is a personal privilege to be set up by is not a correct statement of the law of this the defendant in the trial court whenever he is placed upon trial upon an information The ruling of this court in the Mattos or an indictment charging him with a pubCase was approved in the case of People v. lic offense. We cannot assume in advance

state."

In the matter of the petition of Walter J. Petersen against the Civil Service Board of the City of Oakland and others, respondents. On petitioner's appeal, judgment was reversed. 227 P. 238. On respondents' motion for order to recall remittitur. Motion denied. Hearing denied by Supreme Court; Myers,

that the defendant will make such a plea,
or that the trial court will not sustain such
plea, if set up by the defendant. The case
of People v. Arnett, 129 Cal. 306, 61 P. 930,
shows that the plea of once in jeopardy
must be set up by the defendant in the
trial court, and that it came up for consid-
eration in the Supreme Court after having | C. J., dissenting.
been passed upon by the court below.

Cedric W. Petersen, of Oakland, for petitioner.

KNIGHT, J. Motion by respondents for an order to recall the remittitur issued herein on June 30, 1924, and to strike therefrom the words "the appellant to recover costs of this appeal."

The plea of once in jeopardy not being before us, and that plea being a personal privilege belonging to the defendant, which may or may not be waived by him upon subsequent proceedings had in this cause in the trial court, we have no authority to enter the plea of once in jeopardy for the defendant on this appeal, and then treat the cause as though it were presented to us for determination. For the reasons stated this proceeding in certiorari in the supered above, the order of this court remanding said cause will be modified as above stated, and the petition for a rehearing and for the discharge of the defendant will be, and the same is hereby, denied.

PETERSEN v. CIVIL SERVICE BOARD OF CITY OF OAKLAND et al. (Civ. 4811.) (District Court of Appeal, First District, Division 1, California. Sept. 24, 1924. Hearing denied by Supreme Court Nov. 17, 1924.)

1. Costs 244-Entry on record, and insertion in remittitur that appellant recover appeal costs, held proper.

Where judgment was reversed without order being made as to costs, clerk of Court of Appeals properly entered upon the record and inserted in remittitur a judgment that appellant recover costs of appeal in view of Code Civ. Proc. § 1027, Supreme Court Rule 23. 2. Costs 244-Costs not eliminated by mere correction of remittitur.

Where judgment was reversed without order as to costs, which clerk accordingly included in judgment, costs could not be eliminated by recalling remittitur and striking therefrom ob'jectionable provision as to costs, but a judicial determination by appellate court that appellant was not legally entitled to costs, and a modification of judgment on appeal by adding an order to that effect, was necessary.

3. Appeal and error 1218-Going down of remittitur deprives appellate court of jurisdiction except in case of mistake, fraud, or imposition upon court.

When remittitur has been duly and regularly issued, the appellate court loses jurisdiction of the cause, and cannot recall the remittitur except in case of mistake, fraud, or imposition practiced upon court.

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The appellant Walter J. Petersen commenc

ior court of Alameda county for the purpose of reviewing and annulling certain proceedings of the civil service board of the city of Oakland in regard to the reinstatement of the

appellant as a member of the Oakland police department. After issue was joined and a trial had upon the merits, the trial court confirmed the order of the said civil service board, dismissed said writ of review, and allowed respondents their costs. Petersen ap pealed from the judgment of said trial court. and on April 30, 1924, said judgment was reversed. Petersen v. Civil Service Board et al. (Cal. App.).227 P. 238.

The respondents then petitioned for a hearing before the Supreme Court, and their petiPetersen tion was denied on June 26, 1924. v. Civil Service Commission (Cal. App.) 227 P. 238. Thereafter on June 30, 1924, the remittitur was issued by the clerk of this court and was filed in the office of the clerk of the trial court on July 1, 1924.

Respondents contend that a certiorari proceeding is not one of those proceedings included within the provisions of section 1027 of the Code of Civil Procedure, which allows costs to a prevailing party on appeal; that in the instant case the decision of the civil service board sought to be annulled was rendered by said board while sitting in a judicial capacity; and that therefore neither the civil service board nor the individual members thereof, nor the city of Oakland, are liable for costs; that because said judgment on appeal, by its terms, made no allowance for costs, it was improper to insert in the remittitur an order for the recovery thereof. In support of their contentions respondents cite and rely principally upon the cases of Platnauer v. Superior Court, 33 Cal. App. 394, 165 P. 41; City of Oakland v. Pacific Coast Lumber, etc., Co., 172 Cal. 332, 156 P. 468. Ann. Cas. 1917E, 259.

[1] It must be borne in mind, however, that the proceeding before us was not an Appeal from Superior Court, Alameda original application to this court for a writ County; T. W. Harris, Judge. of review, but was a direct appeal from a

PEOPLE v DE VERRE
(230 P.)

197

The

judgment of the superior court rendered after [ merits of the motion it comes too late.
trial upon the merits. The terms of the judg-remittitur was regularly issued on September
ment rendered upon appeal were that the 6, 1895, and this motion was not noticed until
judgment of the superior court be reversed
and no order was made as to costs. Section
1027 of the Code of Civil Procedure provides:
"The prevailing party on appeal shall be en-
titled to his costs excepting when judgment is
modified, and in that event the matter of costs
is within the discretion of the appellate court.

Rule 23 of the Supreme Court reads:

"In all cases in which the judgment or or der appealed from is reversed or modified, and

the order of reversal or modification contains no directions as to the costs of appeal, the clerk will enter upon the record and insert in the remittitur a judgment that the appellant recover the costs of appeal. * #

Therefore, in view of the fact that the judgment was reversed without an order being made as to costs, the clerk of this court very properly, in obedience to said Code section and said rule, entered upon the record and inserted in the remittitur a judgment that appellant recover the costs of appeal.

[2, 3] Assuming, however, as respondents contend, that it now appears that, owing to the nature of the proceeding, appellant was not as a matter of law entitled to a judgment for the recovery of costs on appeal, a point we do not find it necessary to determine, the error complained of cannot be corrected merely by recalling the remittitur and striking therefrom the objectionable provision as to costs; but it will require, first, a judicial determination by this court that appellant is not legally entitled to costs, and, secondly, a modification of the judgment on appeal by adding thereto an order to that effect. this late date we have no power to do either, for the reason that at the time the motion under consideration was filed the judgment on appeal had long since become final and this court had lost jurisdiction. shaw Bros. v. Southern Pacific, 42 Cal. App. In Cren44, 183 P. 208, it was held as follows:

At

"The Supreme Court in Granger v. Sheriff, 140 Cal. 190, 195 (73 Pac. 816, 818), said: 'Under the Constitution by the lapse of time, and the issuance of the remittitur, the judgment has become a finality beyond the power of the court to modify or amend (Martin v. Wagner, 124 Cal. 204, 56 Pac. 1023), and the jurisdiction of the Supreme (Herrlich v. McDonald, 83 Cal. 505, 23 Pac. Court ends. 710; In re Levinson, 108 Cal. 450, 41 Pac. 483, 42 Pac. 479.) When the remittitur is filed with the clerk with whom the judgment roll is filed the jurisdiction of the superior court

attaches.'

October 18th following. If respondent desired
the proper application should have been made
a modification of the judgment in any respect,
before the going down of the remittitur. (Gray
has been duly and regularly issued, without
v. Palmer, 11 Cal. 341.) When the remittitur
inadvertence, we have no power to recall it.
This court therefore loses jurisdiction of the
cause, except in a case of mistake, or fraud
or imposition practiced upon the court, nei-
Kreyenhagen, 24 Cal. 52)'
ther of which elements appear in this case.
Trumpler, 123 Cal. 248, 55 Pac. 1008."
(People v. Sprague, 57 Cal. 147; Rowland v.
See Trumpler v.

The motion is denied.

We concur: TYLER, P. J.; ST. SURE, J.

PEOPLE v. DE VERRE.

(Cr. 789.)

(District Court of Appeal, Third District, Cal-
ifornia. Sept. 23, 1924.)

1. Criminal law 1172(7)-Verdict of rob-
bery in lesser degree than authorized by tes-
timony held not ground for reversal for mis-
leading instructions.

gree robbery, though testimony would have
That jurors returned verdict of second de-
sustained verdict of first degree robbery, held
sion that jury was misled by reading of Code
not ground for reversal, as authorizing conclu-
sections defining robbery in each degree, though
curately define difference between them.
a few jurors might have been unable to ac-

2. Robbery 26-Weight and credibility of
evidence for jury.

Weight of evidence of defendant's guilt and
prosecution.
truth of his story held for jury in robbery

3. Criminal law 887-Jury's failure to liter-
ally follow instructions held no reason for
holding them misleading.

instructions in returning verdict of robbery in
That jury did not literally follow court's
for holding instructions misleading.
second, instead of first, degree, held no reason

4. Criminal law 8082-Not error to read
Code section defining offense and different de-
grees thereof exactly as written.

Pen. Code, § 211a, defining robbery and its
different degrees, is law of state, and it is not
definition or not.
error for trial court to read it just as writ-
ten, whether as clear as any other possible

Appeal from Superior Court, Sacramento
County; Charles O. Busick, Judge.

gree robbery, and appeals. Affirmed.
S. G. De Verre was convicted of second de-

In the case, In re Levinson, supra, a motion was made to recall the remittitur for the purpose of securing a modification of the direction made therein for the payment of the costs of the appeal. The court said Markham Johnston, Howe, Hibbitt & John459, 42 Pac. 479): Without reference to the for appellant. (108 Cal.ston, and O. F. Meldon, all of Sacramento,

CFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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