(193 P.) for admission to practice and not as an appli- "That said order was made without notice to cation to vacate the order of disbarment, and the accuser in said disbarment proceedings or as such it must be addressed to the court hav- any of the attorneys who prosecuted said proing jurisdiction to admit an attorney to practice, ceedings, that said order was inadvertently and and cannot be addressed to the superior court. improvidently made; that at the time of the making of said order said Danford had been 5. Attorney and client 3 Superior court without jurisdiction to admit attorney to had been sentenced to a term in the penitenconvicted in said superior court of a felony and practice. tiary of three years, and which sentence at the time of making said order had not expired, and that said court had no jurisdiction or power to reinstate or admit said Danford as an attorney at law to said superior or any other court in the state of California." Since the amendment in 1895 of Code Civ. Proc. § 276, the superior court is without jurisdiction to admit an attorney to practice in any court of the state, and hence cannot entertain an application for restoration after disbarment by it. 6. Contempt 34-Superior court has jurisdiction to entertain contempt proceedings against attorney. Where an attorney was disbarred, and, after the order had become final, a judge of the superior court had attempted to reinstate him, another judge of the superior court had power to entertain contempt proceedings against such attorney, who was holding himself out as qualified to practice. Application by William J. Danford for writ of prohibition prayed to be directed to the Superior Court, City and County of San Francisco, and Honorable George E. Crothers, Judge thereof, to restrain action in a proceeding for contempt of court. Writ denied. W. J. Danford, of San Francisco, in pro. per. Douglas Brookman and W. M. Simmons, both of San Francisco, for respondents. NOURSE, J. Petitioner seeks a writ of prohibition to restrain the superior court from entertaining proceedings instituted against petitioner charging him with contempt of court. The affidavit upon which the contempt proceedings are based alleges that on March 1, 1909, petitioner, who theretofore had been an attorney licensed to practice law, was disbarred from practice in all courts of the state by an order of the superior court in Los Angeles county in accord with proceedings duly instituted for that purpose. About 31⁄2 years thereafter the judge who had made the order of disbarment, acting upon his own motion, ordered the petitioner reinstated to the practice of the law in the superior court and recommended full reinstatement to practice in all courts of the state by the District Court of Appeal. In accord with this order, petitioner took the oath to support the Constitution of the United States and of this state, and to faithfully discharge the duties of attorney and counselor at law. On March 24, 1913, another judge sitting in the superior court in Los Angeles county set aside the order of reinstatement on motion of an attorney representing the Bar Association of Los Angeles county upon the grounds, as recited in the later order: The affidavit then alleges that "at the present time, and for a considerable period of time, * * * said Wm. J. Danford has advertised and held himself out as practicing and entitled to practice law in the courts of this state;" that he maintains an office for that purpose in the city and county of San Francisco; that, on September 5, 1919, he filed an appearance in a certain action then pending in the superior court in San Francisco; that, thereafter, and until the 5th day of March, 1920, he frequently appeared in said superior court as attorney for the defendant in said action. The orders of the superior court in Los Angeles county which are made the basis of the claim that petitioner was not entitled to practice in the superior court in San Francisco are incorporated in the accusatory affidavit. In his application for a writ of prohibition petitioner assigns numerous grounds upon which it is claimed that respondent is without jurisdiction to entertain the contempt proceedings. It is not necessary to discuss all the grounds urged because if it appears from the accusatory affidavit that petitioner was legally disbarred from practice and has not been restored by a court of competent jurisdiction, the respondent is not exceeding its jurisdiction. [1-3] Petitioner attacks the original order of disbarment because it fails to show the grounds upon which he was disbarred, in that it recites merely that he "has violated the oath taken by him upon his admission as an attorney and counselor and that he has violated his duties as such attorney and counselor." But section 299, Code of Civil Procedure, which prescribes the form of judgment in disbarment proceedings, does not require a statement of the grounds of disbarment. These proceedings are peculiar to themselves and are governed by the statutes relating to them. It was so held by the Supreme Court in Matter of Danford, 157 Cal. 425, 430, 108 Pac. 322, in affirming the judgment of disbarment here under attack. It is also argued that the superior court was without jurisdiction to make the order, but such jurisdiction is specially conferred upon the superior court by section 287, Code of Civil Procedure. This power is purely stat For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes utory and is not subject to any constitutional objection. [4] Assuming the power to disbar, the order of disbarment became final upon its affirmance by the supreme court. Thereafter no court had power to modify or set aside the order either upon motion or otherwise. An application for reinstatement of an attorney disbarred by a judgment of a court of competent jurisdiction, made after the order of disbarment has become final, must be treated as an application for admission to practice and not as an application to vacate the order of disbarment. As such it must be addressed to the court having jurisdiction to admit an attorney to practice. In re Mash, 179 Pac. 898. [5] Since the amendment to section 276, Code of Civil Procedure, in 1895, the superior court is without jurisdiction to admit an attorney to practice in any court of the state. That power, at the time the order purporting to reinstate the petitioner was made, was, and now is, conferred exclusively upon the District Courts of Appeal. Hence the superior court in Los Angeles, being without jurisdiction to admit petitioner to practice, could not entertain an application for restoration after disbarment. That the court acted upon the assumption that it had such power is apparent from the order, which reads: "That the above-named Wm. J. Danford is hereby reinstated and hereby admitted to the bar of the superior court." In the case of In re Wharton, 130 Cal. 486, 62 Pac. 741, there is language intimating that where the disbarment took place in the superior court the motion for reinstatement should be made in that court, but the error of the ruling in that case is that the court treated the motion for reinstate ment as a motion to modify the judgment of disbarment rather than a motion for admission to the bar. In view of the decision of the Supreme Court in Re Mash, supra, the Wharton Case is not controlling. Treating the motion for reinstatement as a motion for admission to the bar, as it must be treated, it necessarily follows that such motion must be addressed to a court which has jurisdiction to admit to the bar. As the superior court had no power to admit petitioner to practice in any court, there can be no doubt that the order in question is void on its face for want of jurisdiction in the court. [6] Such being the case, the respondent is not exceeding its jurisdiction in entertaining the contempt proceedings, and the application for prohibition should be denied. So ordered. (49 Cal. App. 336) PEOPLE v. ZENTGRAF. (Cr. 522.) (District Court of Appeal, Third District, California. Sept. 20, 1920.) 1. Criminal law 683 (3)-Evidence of proceedings on arraignment admissible to rebut defense of insanity. In a prosecution for burglary, defended on the ground of insanity, evidence that defendant had pleaded guilty with the expectation that he would be granted probation, but, it being refused, withdrew the plea by consent of court, and entered plea of not guilty, was admissible to rebut the defense of insanity. 2. Witnesses 277 (4)-Testimony of defendant, on cross-examination, that he had left bank because short in his collections, admissible on question of sanity. In prosecution for burglary, defended on the ground of insanity, though defendant had previous employment at a bank, his direct not been interrogated specifically about his examination having taken a wide range to show his mental condition, it opened the door to inquiry as to other circumstances included within the same period, as the fact that he had left the bank, and that he had been discovered short in his collections. 3. Criminal law 825 (4) Defendant must request more explicit instruction to limit evidence. Where defendant did not request a more tain evidence only as bearing on defendant's direct and explicit instruction to consider cersanity, he cannot complain that such instruction was not given. 4. Criminal law 859-Court not required to read testimony, in absence of disagreement of jurors. jurors as to the testimony of certain experts Where there was no disagreement among on insanity, but they were merely not clear as to the difference between medical and legal insanity, the trial court was not required by statute to read to them the testimony involved. 5. Criminal law 1174(1)-Failure to read testimony on request of jury harmless to defendant. the ground of insanity, any error in failing to In a prosecution for burglary, defended on comply with the jury's request to have certain expert testimony on insanity read held harmless to defendant. 6. Criminal law 1169(1)-Testimony harm less to defendant, charged with burglary. that at the time the witness heard a voice, In a prosecution for burglary, testimony coming from the direction of the burglarized store, saying, "Here, take this," held harmless to defendant. 7. Criminal law 730 (1)—Error in argument cured by direction to disregard. Any possible injury to defendant in the argument of the district attorney was cured We concur: WASTE, Presiding Judge pro by the trial court's direction to the jury to tem.; BRITTAIN, J. disregard the argument. (193 P.) 8. Criminal law 1037(2)—Defendant cannot thereof consisting of the testimony of two phycomplain of argument, in absence of request for direction to disregard. Where there was no request that the trial court direct the jury to disregard criticized statements in the district attorney's argument, defendant cannot complain of such statements on appeal. sician experts based upon hypothetical questions. No doubt, the jury might legally have concluded from the showing made that defendant was irresponsible; but a careful reading of the whole record can hardly fail to produce the conviction that the verdict is entirely just and should be upheld. Indeed, 9. Criminal law 570 (2)-Insanity must be it is not disputed that the evidence warrants established by preponderance of evidence. the verdict; but appellant claims that certain If the jury, trying a charge of burglary, en-grave errors of sufficient moment to demand a tertained a reasonable doubt concerning the reversal were committed at the trial. proof of any material issue, it was under duty to give defendant the benefit of the doubt and acquit him, unless the issue was that of his insanity; as to such issue a reasonable doubt is not sufficient to justify acquittal, but the jury must be convinced that the defense is established by a preponderance of the evidence. 10. Criminal law 810-Instructions on proof as to insanity not inconsistent. [1] Of these the first relates to the action of the court in permitting evidence of the proceedings at the arraignment of the defendant. It thus appeared that the defendant had pleaded guilty with the expectation that he would be granted probation; but, it being rethe court and entered a plea of not guilty. fused, he withdrew the plea by consent of This evidence was admissible to rebut the time the goods were taken by him. The showtheory of appellant that he was insane at the In a prosecution for burglary, instruction that the defense of insanity need not be proved beyond a reasonable doubt, to entitle defendant to an acquittal, held not in conflicting for the defense extended over a long pewith an instruction that a reasonable doubt on the issue of insanity was not sufficient to justify acquittal, but must be established by a preponderance of evidence. riod of time, including said date, and according to the familiar rule, it was proper for the people to meet this evidence by showing that his conduct and declarations were those that characterize the normal mind. That he pleaded guilty and asked for probation, and upon its denial concluded that he would stand trial, George M. Zentgraf was convicted of bur- would seem to be some evidence that he unglary of the first degree, and from the judg-derstood the nature and probable consement, and an order denying his motion for new trial he appeals. Affirmed. Appeal from Superior Court, El Dorado County; George H. Thompson, Judge. quences of the charge against him. We think there is a distinction between such case and the one wherein the defendant does not claim to be insane. An instance of the latter is found in People v. Ryan, 82 Cal. 617, 23 Pac. 121, wherein it was held to be error for the U. S. Webb, Atty. Gen., and J. Chas. Jones, court to allow the plea of guilty to be put in Deputy Atty. Gen., for the People. E. Fitzgerald, of Placerville, and Eugene S. Wachhorst and Donald E. Wachhorst, both of Sacramento, for appellant. BURNETT, J. Defendant was convicted of burglary in the first degree, and the appeal is from the judgment and order denying his motion for a new trial. evidence, where it had been withdrawn and the plea of not guilty substituted. A peculiar feature, also, of that case, was that without said evidence the defendant could not have been legally convicted. In view of that fact the Supreme Court said: "We do not think that the Legislature, in passing the law under which the defendant was allowed to nullify and render functus officio his plea of guilty, by substituting or putting in place of it a plea of not guilty, intended to say that, notwithstanding such substitution and doing away with the first plea, it may be given in evidence and sometimes serve as the only conclusive proof of a man's guilt under the plea of not guilty." That defendant at night entered the store of Heusner Bros. at Shingle Springs, El Dorado county, and took therefrom a large quantity of personal property, is not disputed. He was apprehended therein about midnight with some of the property in his hands; many articles of various kinds having been loaded into his machine, which he had driven and left near the store. Thereupon defendant admitted that he had unlocked the door and gone inside; he stated why he had stolen the property, implying that his motive was that of revenge; and he promised his captors a large sum of money if they would release and not prosecute him. The facts as thus detailed proper to have this considered as the act of by the witnesses for the people are not contro- a mind subject to the ordinary motives that verted, but the defense of insanity was inter-influence human conduct. posed by appellant, and it was upon that [2, 3] Appellant claims that ground an acquittal was sought. There is some support for that theory; the principal element Herein, of course, the important part of the evidence was that relative to the change of plea after probation was refused. It was "The next serious error is the ruling of the court in permitting the prosecution to intro For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes court thereupon stated: "I will again read the instructions I have read." This was done, and the jury was again sent out. Section 1138 of the Penal Code provides: "After the jury have retired for deliberation, if there be any disagreement between to be informed on any point of law arising in them as to the testimony, or if they desired the cause, they must require the officer to conduct them into court. into court, the information required must be Upon being brought given in the presence of, or after notice to the district attorney, and the defendant or his counsel, or after they have been called." The only objection to the question was the general one and that it was not cross-examination. The court based its ruling upon The court and the attorneys seem to have the proposition that the only defense was in- understood that it was a question of law sanity, and since the defendant had testified about which the confusion existed, and, takto matters covering a long period of time that ing the whole colloquy into consideration, had a tendency to show a defective memory that is probably not an unreasonable inand impaired reasoning power, this was prop-ference, notwithstanding one of the jurors er cross-examination, and also pertinent to did say that they would like to hear the testhe inquiry as to the mental status of the de-timony of the two specialists. At any rate, fendant. It is true that he had not been the attorney who was representing the deinterrogated specifically about his employ- fendant, if he desired to have such testimony ment at the bank, but the direct examination read, should have made the matter plain to had taken a wide range for the purpose of the court. We must assume, of course, that showing his mental condition, and it opened the trial judge was acting in good faith and the door for an inquiry as to other circumstances included within the same period. People v. Mammilato, 168 Cal. 207, 142 Pac. 58. We may add that from the remarks of the court the jury must have understood that the evidence was to be considered as only bearing upon the sanity of the defendant. agreement, but only that they were not clear Since defendant did not request it, he cannot complain that a more direct and explicit instruction to that effect was not given. [4, 5] The next point is that the court erred in failing to comply with the request of the jury to have certain testimony read. After having been out for a long time they came into court and one of the jurors said: "The jury would like to know-would like to hear the testimony of those two specialists, Hoisholt and Matthews; we got kind of mixed up on that question." had no disposition to withhold from the jury anything that they were entitled to. Moreover, the statute provides that only when there is a disagreement among the jurors as to the testimony must it be read to them. It does not appear that there was such dis as to the difference between medical and legal insanity. This called particularly for the reading of the instructions, rather than the testimony of the specialists. Indeed, the testimony of the experts threw no light upon this subject, and its repetition would not have aided the jury. While they were subjected to a long and searching examination, the testimony amounted simply to an opinion that, assuming the facts to be as stated by defendant's counsel, appellant was insane, and incapable of distinguishing between right and wrong; whereas the question was left in doubt by reason of other facts detailed in the cross-examination. It is quite apparent that no prejudice was suffered by defendant, conceding for the sake of the point that such testimony should have been read. Then Juror Frost said: "We would like to know whether he was legally sane or insane at the time of the act." Then Juror Mrs. Eskew: "Or medically insane." It seems that the court understood that the jurors desired to have the instructions on the [6] Mrs. Roxy Burke, a witness for the subject re-read and stated: "In answer to people, testified in rebuttal that about the the question, the instructions heretofore time of the burglary she heard a voice, comgiven will be read in these particulars." ing from the direction of the store, saying, After reading them the court said: "Does "Here, take this." She could not identify the that answer the question?" And Juror voice, but the contention of the prosecution Frost replied: "Yes sir." It is true that was that, since the defendant's only plea was thereafter one of the jurors said, "I believe that "he was there in a dream and didn't the information wanted is the testimony of know what he was doing," the voice would those two doctors, if I may make clear the indicate the presence of another person and information we want;" and in reply to the thus eliminate the theory of a dream. The court's inquiry, "On what point?" he answer- argument is rather fanciful, we think; but ed, "As to his sanity, legal or medical, at the the matter is of too little consequence to jus (193 P.) ing was right or wrong, it could hardly have | influenced the verdict. The judgment and order denying the motion for a new trial are affirmed. We concur: NICOL, Presiding Judge pro [7, 8] Some objection is made to certain portions of the argument of the district attorney; but we find no error therein. Speak- tem. ing generally, it may be said that he did not transcend the bounds of legitimate discussion. Furthermore, one statement, to which objection was made, the court directed the jury to disregard, and hence any possible injury was cured. People v. Amer, 8 Cal. App. 137, 96 Pac. 401; People v. Ward, 134 Cal. 301, 66 Pac. 372. As to the other criticized state ments there was no request that the court direct the jury to disregard them, and hence appellant cannot now complain. People v. Shears, 133 Cal. 154, 65 Pac. 295; People v. Yee Foo, 4 Cal. App. 730, 89 Pac. 450. [9, 10] The only other complaint is that two instructions given by the court are inconsistent and misleading. The first of these is: "The jury are instructed that the law of the state of California is this: 'If the jury entertain a reasonable doubt concerning the proof of any material issue in a criminal case, it must give the defendant the benefit of that doubt and acquit him, unless the particular issue is that of the insanity of the defendant; and as to such issue of the insanity of the defendant a reasonable doubt is not sufficient to justify an acquittal at the hands of the jury, but they must be convinced that the said defense of insanity is established by a preponderance of the evidence.'" That this instruction stated the law correctly cannot be doubted. People v. Miller, 171 Cal. 649, 154 Pac. 468. Nor can we see anything inconsistent therewith in the following instruction: "The defense of insanity need not be proved beyond a reasonable doubt, to entitle the defendant to an acquittal; it is sufficient for the defense to be proved by a preponderance of evidence, to entitle the defendant to a verdict of not guilty. If therefore, you believe that the preponderance of the evidence introduced in this case shows that Mr. Zentgraf, the defendant, was either insane, or deprived of reason, or unconscious of what he was doing at the time of the commission of the act charged, you must acquit him." The difficulty in the Miller Case, supra, was that the trial court went further, and gave an erroneous and misleading definition of "preponderance of evidence." No such criticism can be made here. Finally, it may be said, the record contains such persuasive and convincing evidence that the defendant understood the nature of the act which he perpetrated, and was therefore responsible for his conduct, that, notwithstanding the supposititious opinion of said experts, it should be held that any other verdict would be unjust, and that, if any error was committed, it should be disregarded. (49 Cal. App. 186) McGEHEE et al. v. CURRAN et al. (District Court of Appeal, First District, Di- 1. Judgment 441-Fraud, warranting setting aside, must be extrinsic. A former judgment or decree may be set aside and annulled for fraud, but it must be a fraud extrinsic or collateral to the questions examined and determined in the action. 2. Appeal and error 909(1)—Assumed that controversy was fairly submitted in action to set aside judgment. In an action to set aside a judgment, in the absence of any showing to the contrary, it will be assumed that the former controversy was fairly submitted. 3. Judgment 460 (6)-Facts to be alleged to set aside former judgment for fraud. In an action to set aside a former judgment as being procured by fraud, it is incumbent upon the plaintiffs, not only to show by their complaints the facts constituting the fraud, but also that they have a defense to the original action upon the merits, and that they are able to present to the court the evidence constituting that defense, and such matters must be alleged, not as ultimate facts, but the facts themselves constituting the defense must appear. 4. Trusts 43(3)-No express trust raised by proof of parol agreement by grantee in absolute deed. Under Code Civ. Proc. § 1971 (Civ. Code, § 852), where land was conveyed by an absolute deed, no express trust in favor of the grantor can be raised by proof of a parol agreement by the grantee to hold the property in trust or reconvey it. 5. Trusts 44 (3)-Oral testimony to show absolute deed created trust must be clear. To justify a court in determining from oral testimony that a deed absolute on its face was intended to be a trust, the testimony must be clear, convincing, and conclusive. 6. Trusts 89(1)-Resulting trust held not sufficiently shown. In an action to have a resulting trust declared in land conveyed by a deed absolute on its face, evidence relied upon by plaintiffs held not of sufficient compelling force to establish a resulting trust. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |