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determined what kind of medicine that you PEOPLE v. POO ON. (Cr. 794.) should take? A. He did. I didn't know what

I was to take until I got it." (District Court of Appeal, Third District, California. Sept. 24, 1924.)

The witness further testified that on the Physicians and surgeons om 6(10)–Evidence first visit she paid the defendant $15; on

held to sustain conviction of practicing with the second $6, and on the third $8. Other out license.

witnesses gave similar testimony. Evidence held to show accused was prac Counsel for appellant has not pointed out ticing medicine without a license, rather than wherein the defendant's practice differs, in merely selling herbs.

legal effect from that of duly licensed Appeal from Superior Court, Stanislaus physicians, and the court is unable to dis

cover any difference. County; J. C. Needham, Judge.

The judgment and the order are affirmed. Poo On was convicted of practicing medicine without a license, and he appeals. Af

We concur: PLUMMER, J.; HART, J. firmed.

L. J. Maddux, of Modesto, for appellant.

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

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PEOPLE V. ARNAREZ. (Cr. 790.) FINCH, P. J. The defendant was convicted of the offense of practicing medicine (District Court of Appeal, Third District, Calwithout a license. This appeal is from the ifornia. Sept. 16, 1924. Rehearing Dejudgment of conviction and the order deny.

nied Oct. 16, 1924.) ing his motion for a new trial. The cause is submitted on the appellant's opening brief.

1. Indictment and information om 191(1/2)-De

fendant cannot be convicted of possessing, in The only ground urged for a reversal is

prosecution for manufacturing. that the evidence does not show that the defendant was engaged in the practice of Supp. 1923. § 1013844 et seq.), penal provi

Under Volstead Act (U. S. Comp. St. Ann. medicine, but only that he was engaged in sions of which were incorporated in Wright the sale of herbs. Several persons who had | Act, offense of unlawful possession of intoxibeen treated by the defendant for various cating liquors is separate and distinct from ailments testified for the prosecution. The that of manufacture and sale for beverage purfollowing excerpts' from the testimony of the poses, and hence not included offense, for which first witness examined shows the character defendant may be convicted under Pen. Code, $

1159, in prosecution for manufacturing. of proof presented:

"Q. Whom did you see when you went to | 2. Criminal law ww881 (2)–Verdict must be
the office of Poo On? A. Dr. Poo On, himself, responsive to offense charged.
and the office girl. * Q. Just what was

Verdict must be responsive to offense charg-
said, now, as near as you can recall? A. Well, ed in information.
I don't know as I could repeat all that was
said. I visited him in regard to medical treat- 3. Criminal law www782(9), 805(2)-Instruc-
ment. I don't know as you would call it medi-

tion held erroneous as permitting conviction cal treatment in the way he treats, but I went

of lesser offense on weaker evidence, and refor the purpose of getting his herbs.

ferring to instructions not given. Q. Now, how did you arrive at what kind of Instruction to acquit of offense charged, if medicine you were to get, or what herbs you jury had reasonable doubt as to defendant's were to get? A. Well, I don't know as I know guilt, bu that they might find him guilty of what kind of herbs I got. I got the herbs | lesser offenses, "as herein otherwise instructthat he gave me just through stating my case er,” if they found him guilty of lesser offense to him. Through stating my case to him, why, contained in that charged, held erroneous he gave me herbs; * I stated my case.

not advising jury of degree of proof required And he answered the questions back; to sustain conviction for lesser offenses, and that is, he told me what he thought. Q. And referring to instructions not given. did he ask you after you had stated your case, then, with reference to any particular symptoms 4. Intoxicating liquors Em 236(6/2)-Jury not of trouble or disease? A. Yes.

Q.

bound to convict of unlawful possession on And then, after that, did he state with ref mere proof of possession, erence 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, § 1013814, was the only thing he did state.

Q. I 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.

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

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On Petition for Rehearing.

the procedure admissible to be followed and 5. Criminal law Omo 1189–Verdict and judgment ordinarily followed in the federal courts,

of possessing intoxicating liquors held nulo said offenses are set forth in distinct and lities, requiring reversal without remand. separate counts, and the jury authorized to

Judgment on verdict of guilty of possessing find the defendant guilty upon the particular intoxicating liquors for unlawful purposes, in count or counts sustained by the evidence. prosecution for manufacturing such liquor, and See Fassolla v. U. S. (C. C. A.) 285 F. 378, sentence or judgment thereon, held mere nul- in which the defendant was prosecuted lities, requiring reversal without remand for under a count charging unlawful sales, and retrial of such issue.

under a count charging unlawful possession. 6. Criminal law em 290, 1189-Plea of former Though not supported by any brief on file

jeopardy personal and appellate court cannot in this case, the prosecution appears to enter plea.

have relied upon section 1159 of the Penal Plea of once in jeopardy being personal Code, which reads: privilege to be set up by defendant in trial court when placed on trial, Pen. Code, § 1140, “The jury may find the defendant guilty of cannot be applied by appellate court to sub' any offense, the commission of which is necessequent proceedings on information for manu- sarily included in that with which he is charged, facturing intoxicating liquors, after reversal or of an attempt to commit the fense." of judgment on verdict of guilty of unlawful possession, and hence defendant is not entitled, It would appear from a reading of the upon such reversal, to order directing his dis- Volstead Act (U. S. Comp. St. Ann. Supp. charge, rather than remanding for new trial. 1923, § 1013844 et seq.) that the lesser of

fense included within the charge of manufacAppeal from Superior Court, Sacramento turing is the having in one's possession of County; Charles O. Busick, Judge.

the materials and supplies with the intent Gean Arnarez was convicted of possess- and purpose of manufacturing intoxicating ing intoxicating liquor, and appeals. Re- liquors for beverage purposes. The offense versed.

of unlawful possession and the crime of H. W. Zagoren, of Sacramento, for appel- unlawful manufacture, are separately and lant.

distinctly defined in the Volstead Act, and U. S. Webb, Atty. Gen., and J. Charles separate and distinct penalties for the sepJones, Deputy Atty. Gen., for the People. arate offenses fixed and particularly set

forth. We see no difference in the applicaPLUMMER, J. By an information filed tion of the principle concerning distinct in the superior court on the 9th day of offenses in this case from that which was January, 1924, the defendant was charged applied by the federal court in the cases with the offense of unlawfully and know- of Bell v. U. S. (C. C. A.) 285 F. 145; Masingly manufacturing intoxicating liquor for sey v. U. S. (C. C. A.) 281 F. 293; Singer beverage purposes, contrary to the form, v. U. S. (C. C. A.) 288 F. 695, and Page v. force, and effect of the statute in such U. S. (C. C. A.) 278 F. 41, where it was held,

as set forth in 33 C. J. 617, that: cases made and provided. Thereafter the trial was had on the information, and upon "The offense of unlawfully possessing liquor the conclusion thereof the jury returned the is a distinct offense from that of the unlawful following verdict:

transportation of liquor, and the offense of un

lawfully possessing liquor is a distinct offense "We, the jury in the above-entitled cause, from that of maintaining a nuisance for the find the defendant Gean Arnarez guilty of the unlawful sale of liquor." crime of unlawfully having in his possession intoxicating liquor, included within said charge [2] As stated by the appellant, it is eleof unlawfully manufacturing intoxicating liq-mentary law that the verdict must be reor in violation of the Wright Act (St. 1921, sponsive to the offense charged in the inp. 79) as charged in the information."

formation. 16 Corp. Jur. 1103; 8 Cal. Juris. The matter is now before this court upon 201; People v. Murat, 45 Cal. 281, and Peo

§ 431; People v. Arnett, 126 Cal. 680, 59 P. the defendant's appeal from an order deny. 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

[3] At the conclusion of the testimony the

court gave the jury the following instrucof 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 ing liquors and the manufacture of intoxicat- facie evidence that such liquor is kept for the

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

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

cient jaus

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195
(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 reason-

infer from proof of possession of intoxicat-
able doubt after considering all of the evidence
in the case, as to whether or not the defend-

ing liquor and the circumstances concern-
ant is guilty of the offense charged, then the ing the possession that the defendant has
jury must find the defendant 'not guilty' of it for unlawful purposes, as defined in the
the offense charged in the information, but you Volstead Act, and might find the defendant
may find him guilty of the lesser offenses, as guilty upon such proof without further testi-
herein otherwise instructed, if you find defend. mony, is an entirely different matter from
ant guilty of such lesser offense contained with stating to the jury that, under mere proof
in the offense charged in the indictment, as
herein instructed."

of possession, the jury is bound as a mat

ter of law to bring in a verdict of posses-
So far as the lesser offense is concerned, sion for unlawful purposes. But, be this
there seems to be no instruction whatever as it may, the question of possession was
save and except that contained in the one not involved in this action, and we refer
informing the jury as to the kind of ver-

to this instruction only for the purpose of
dict which they might return, and which aiding the trial court in any future pro-
included the form of verdict which we have ceedings that may be had in this case. The
heretofore set forth in full. The portion order and judgment appealed from in this
of the instruction just quoted relating to case are reversed, and the cause remanded
the lesser offense was added to the instruc- for a new trial.
tion by the trial court and, as it is worded,
even if applicable to this case, is not a

We concur: FINCH, P. J.; HART, J.
correct statement of the law, as it informs

On Petition for Rehearing.
the jury that in the first instance, in order
to find the defendant guilty of the offense PER CURIAM. [5] The appellant in this
charged in the information, they must first action petitions for a rehearing herein, also,
be satisfied, of the defendant's guilt beyond for a reconsideration of its judgment in
a reasonable doubt, but that as to the lesser this action, and for an order directing the
offense they were not advised of the degree lower court to discharge the defendant in
of proof required, and were, at liberty to lieu of remanding the cause for a new trial.
find the defendant guilty upon much weak- This contention is based upon the theory
er testimony. The instruction is also mis- that the defendant has been once placed
leading in that it refers to instructions else in jeopardy and cannot again be retried.
where given which were not in fact given. [6] It is evident from what we have said

[4] This court in the case of People v. in our former opinion in this case that the
Mattos (Cal. App.) 227 P. 974, had occasion verdict of the jury and the sentence or judg-
to express its views as to the portion of the ment of the court pronounced thereupon are
Volstead Act incorporated into our laws by mere nullities, and there can be no retrial of
what is popularly known as and called the the issue attempted to be decided by such
Wright Act. We there said:

verdict and judgment, and that the order of “At the request of the people the court gave

this court should have read and is hereby
to the jury the following instruction: "After amended to read “judgment and order ap-
February 1, 1920, the possession of liquors by pealed from reversed.” This, however, does
any person not legally permitted under this title not dispose of the information still on file
to possess liquor shall be prima facie evidence with the trial court charging the appellant
that such liquor is kept for the purpose of being with the offense of unlawfully manufactur-
sold, bartered, exchanged, given away, furnish- ing intoxicating liquors. The record in this.
ed, or otherwise disposed of in violation of the

case now before us would lead to the con-
provisions of this title, and the burden of proof clusion that the jury was discharged after
shall be upon the possessor in any action con-
cerning the same to prove that such liquor rendering the verdict to which our original
was lawfully acquired, possessed, and used.' opinion has been directed, without any con-

"This instruction should not have been given. sent on the part of the defendant, and that
The act of the Legislature commonly known the provisions of section 1140 of the Penal
as the Wright Act

adopted only the Code would apply to any subsequent pro-
penalties of the act of Congress commonly
known as the Volstead Law.
The in- ceeding upon the information filed against

The applica.
struction above given is to all intents and pur- the defendant in this cause.
poses a literal wording of one of the sections tion of that section, however, cannot be
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 jeopar-
system 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
state."

he is placed upon trial upon an information
The ruling of this court in the Mattos or an indictment charging him with a pub-
Case was approved in the case of People v. lic offense. We cannot assume in advance

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that the defendant will make such a plea, In the matter of the petition of Walter J. or that the trial court will not sustain such Petersen against the Civil Service Board of plea, if set up by the defendant. The case the City of Oakland and others, respondents. of People v. Arnett, 129 Cal. 306, 61 P. 930, On petitioner's appeal, judgment was reversshows that the plea of once in jeopardy ed. 227 P. 238. On respondents' motion for must be set up by the defendant in the order to recall remittitur. Motion denied. trial court, and that it came up for consid Hearing denied by Supreme Court; Myers, eration in the Supreme Court after having C. J., dissenting. been passed upon by the court below.

Cedric W. Petersen, of Oakland, for peThe plea of once in jeopardy not being

titioner. before us, and that plea being a personal privilege belonging to the defendant, which may or may not be waived by him upon

KNIGHT, J. Motion by respondents for an subsequent proceedings had in this cause in order to recall the remittitur issued herein the trial court, we have no authority to on June 30, 1924, and to strike therefrom the enter the plea of once in jeopardy for the words “the appellant to recover costs of this defendant on this appeal, and then treat

appeal.” the cause as though it were presented to

The appellant Walter J. Petersen commencus for determination. For the reasons stat- ed this proceeding in certiorari in the supered above, the order of this court remanding ior court of Alameda county for the purpose said cause will be modified as above stated, of reviewing and annulling certain proceedand the petition for a rehearing and for ings of the civil service board of the city of the discharge of the defendant will be, and Oakland in regard to the reinstatement of the the same is hereby, denied.

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 al

lowed respondents their costs. Petersen ap PETERSEN v. CIVIL SERVICE BOARD OF CITY OF OAKLAND et al. (Civ. 4811.)

pealed from the judgment of said trial court.

and on April 30, 1924, said judgment was re(District Court of Appeal, First District, Divi- versed. Petersen v. Civil Service Board et

sion 1, California. Sept. 24, 1924. Hear- al. (Cal. App.) 227 P. 238. ing denied by Supreme Court Nov. 17,

The respondents then petitioned for a hear1924.)

ing before the Supreme Court, and their peti1. Costs @ww244—Entry on record, and inser- tion was denied on June 26, 1924. Petersen tion in remittitur that appellant recover ap. v. Civil Service Commission (Cal. App.) 227 peal costs, held proper.

P. 238. Thereafter on June 30, 1924, the reWhere judgment was reversed without or- mittitur was issued by the clerk of this court der being made as to costs, clerk of Court of and was filed in the office of the clerk of the Appeals properly entered upon the record and trial court on July 1, 1924. inserted in remittitur a judgment that appel Respondents contend that a certiorari prolant recover costs of appeal in view of Code ceeding is not one of those proceedings inCiv. Proc. § 1027, Supreme Court Rule 23.

cluded within the provisions of section 1027 2. Costs Ca 244-Costs not eliminated by mere of the Code of Civil Procedure, which allows correction of remittitur.

costs to a prevailing party on appeal; that in Where judgment was reversed without or the instant case the decision of the civil seryder as to costs, which clerk accordingly included ice board sought to be annulled was rendered in judgment, costs could not be eliminated by, by said board while sitting in a judicial carecalliug remittitur and striking therefrom ob- pacity; and that therefore neither the civil jectionable provision as to costs, but a judi- service board nor the individual members cial determination by appellate court that appellant was not legally entitled to costs, and thereof, nor the city of Oakland, are liable a modification of judgment on appeal by add- for costs; that because said judgment on aping an order to that effect, was necessary.

peal, by its terms, made no allowance for

costs, it was improper to insert in the remit3. Appeal and error 1218—Going down of titur an order for the recovery thereof. In remittitur deprives appellate court of juris. support of their contentions respondents cite diction except in case of mistake, fraud, or and rely principally upon the cases of Platimposition upon court.

nauer v. Superior Court, 33 Cal. App. 394, When remittitur has been duly and regu- 165 P. 41; City of Oakland v. Pacific Coast larly issued, the appellate court loses jurisdiction of the cause, and cannot recall the remit- Lumber, etc., Co., 172 Cal. 332, 156 P. 468, titur except in case of mistake,' fraud, or im- Ann. Cas. 1917E, 259. position practiced upon court.

[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 For otber cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Cal.)
PEOPLE V DE VERRE

197
(230 P.)
judgment of the superior court rendered after / merits of the motion it comes too late. The
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 October 18th following. If respondent desired
and no order was made as to costs. Section the proper application should have been made

a modification of the judgment in any respect, 1027 of the Code of Civil Procedure provides: before the going down of the remittitur. (Gray

“The prevailing party on appeal shall be en v. Palmer, 11 Cal. 341.) When the remittitur titled to his costs excepting when judgment is has been duly and regularly issued, without moditied, and in that event the matter of costs inadvertence, we have no power to recall it. is within the discretion of the appellate court. This court therefore loses jurisdiction of the

cause, except in a case of mistake, or fraud

or imposition practiced upon the court, neiRule 23 of the Supreme Court reads: ther of which elements appear in this case. "In all cases in which the judgment or or; Kreyenhagen, 24 Cal. 52) See Trumpler v.

(People v. Sprague, 57 Cal, 147; Rowland v. der appealed from is reversed or modified, and the order of reversal or modification contains Trumpler, 123 Cal. 248, 55 Pac. 1008.”' no directions as to the costs of appeal, the

The motion is denied. clerk will enter upon the record and insert in the remittitur a judgment that the appellant recover the costs of appeal.

We concur: TYLER, P. J.; ST. SURE, J. Therefore, in view of the fact that the judgment was reversed without an order being made as to costs, the clerk of this court PEOPLE v. DE VERRE. (Cr. 789.) very properly, in obedience to said Code sec

(District Court of Appeal, Third District, Caltion and said rule, entered upon the record

ifornia. Sept. 23, 1924.) and inserted in the remittitur a judgment that appellant recover the costs of appeal. 1. Criminal law Om 1172(7)–Verdict of rob.

[2, 3] Assuming, however, as respondents bery in lesser degree than authorized by tes. contend, that it now appears that, owing to

timony held not ground for reversal for misthe nature of the proceeding, appellant was

leading instructions. not as a matter of law entitled to a judgment

That jurors returned verdict of second defor the recovery of costs on appeal, a point gree robbery, though testimony would have we do not find it necessary to determine, the sustained verdict of first degree robbery, held

not ground for reversal, as authorizing concluerror complained of cannot be corrected sion that jury was misled by reading of Code merely by recalling the remittitur and strik- sections defining robbery in each degree, though ing therefrom the objectionable provision as a few jurors might have been unable to acto costs; but it will require, first, judicial curately define difference between them. determination by this court that appellant is 2. Robbery am 26Weight and credibility of not legally entitled to costs, and, secondly, a

evidence for jury. modification of the judgment on appeal by

Weight of evidence of defendant's guilt and adding thereto an order to that effect. At truth of his .story held for jury in robbery this late date we have no power to do either, prosecution. for the reason that at the time the motion

3. Criminal law 887-Jury's failure to literunder consideration was filed the judgment

ally follow instructions held no reason for on appeal had long since become final and

holding them misleading. this court had lost jurisdiction. In Cren

That jury did not literally follow court's shaw Bros. V. Southern Pacific, 42 Cal. App. instructions in returning verdict of robbery in 44, 183 P, 208, it was held as follows:

second, instead of first, degree, held no reason "The Supreme Court in Granger v. Sheriff, for holding instructions misleading. 140 Cal. 190, 195 (73 Pac. 816, 818), said: 4. Criminal law w 8081/2-Not error to read ‘Under the Constitution by the lapse of time, Code section defining offense and different deand the issuance of the remittitur, the judg grees thereof exactiy as written. ment has become a finality beyond the power Pen. Code, $ 211a, defining robbery and its of the court to modify or amend (Martin v. different degrees, is law of state, and it is not Wagner, 124 Cal. 201, 56 Pac. 1023), and the

error for trial court to read it just as writjurisdiction of the Supreme Court ends. (Herrlich v. McDonald, 83 Cal. 505, 23 Pac. definition or not.

ten, whether as clear as any other possible 710; In re Levinson, 108 Cal. 4.50, 41 Pac. 483, 42 Pac. 479.) When the remittitur is filed with the clerk with whom the judgment roll County; Charles 0. Busick, Judge.

Appeal from Superior Court, Sacramento is filed the jurisdiction of the superior court attaches. In the case, In re Levinson, supra, S. G. De Verre was convicted of second dea motion was made to recall the remittitur for gree robbery, and appeals. Aflirmed. the purpose of securing a modification of the direction made therein for the payment of the i

Markham Johnston, Ilowe, Hibbitt & Johncosts of the appeal. The court said (108 Cal. ston, and 0. F. Meldon, all of Sacramento, 459, 42 Pac. 479): “Without reference to the for appellant.

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

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