author: WASTE, C. J.

text:
    [L. A. No. 16599.
    In Bank.
    August 22, 1938.]
    In the Matter of the Estate of ELNORA GARRIE SMEAD, Deceased. IRVIN C. LOUIS, as Trustee, Respondent, v. PHILLIP SMEAD BIRD et al., Appellants. In the Matter of the Estate of A. AMELIA SMEAD, Deceased. IRVIN C. LOUIS, as Trustee, Respondent, v. PHILLIP SMEAD BIRD et al., Appellants.
    [L. A. No. 16600.
    In Bank.
    August 22, 1938.]

      Joseph D. Taylor for Appellants.
    Harold B. Pool for Respondent.
   WASTE, C. J.

Motions have been made to dismiss the several appeals in each of the above-entitled proceedings. The facts underlying the litigation are involved and we shall recite only such as are necessary to a consideration of the motions now before us. It appears that in the course of the administration of the estate of each of the above-named decedents, the probate court, pursuant to the terms of a testamentary trust provided for in the will of each decedent, appointed the respondent, who was also executor, trustee of each of said trusts. Subsequently, the life beneficiaries died and the corpus of the trusts vested in the remaindermen, who were the same in each instance, subject to final accounting of the trustee. In due course, the trustee presented his first and final account with petition for distribution of each trust and for trustee’s and attorney’s fees. The remainder-men advanced certain objections to the accounts as submitted and the court, after hearing, entered a consolidated decree on December 16, 1936, settling both accounts, allowing certain compensation to the trustee and to his attorney, and directing distribution of the net corpus of each trust to the remaindermen. The decree likewise specifically determined that the remaindermen should have judgment against the trustee for several thousand dollars for losses- suffered by the trusts and found to be chargeable to the trustee. On February 5, 1937, the trustee filed a notice of intent to move for new trial or for an order vacating and modifying the consolidated decree. The motion was based on five of the seven grounds specified in section 657 of the Code of Civil Procedure as grounds for new trial. Pending disposition of this motion, the remaindermen on March 16, 1937, filed in each proceeding their notice of appeal to this court from the consolidated decree settling the trustee’s final accounts.

The trustee now moves this court to dismiss the appeals from the consolidated decree settling his final accounts on the ground that they were prematurely taken during the pendency of new trial proceedings, and upon the further ground that the consolidated decree is not the final decree in the proceedings and is therefore not appealable. We are of the view that said appeals must be dismissed, but not for the reasons advanced by the movant. The latter ground of the motion is patently without merit for section 1240 of the Probate Code expressly declares that an appeal may be taken from an order settling an account of a trustee. Nor can we find merit in the contention advanced as the first ground of the motion to dismiss, that the appeals were prematurely taken because of the pendency of new trial proceedings. On the contrary, we are of the view that the appeals from the consolidated decree settling the accounts of the trustee were not taken within time and must be dismissed for that reason. This result follows because of our conclusion that new trial proceedings are inapplicable to a decree or order of the probate court settling a testamentary trustee’s final account and that the purported new trial proceedings herein did not, therefore, as is customarily the case, serve to extend the time for appeal and the notices of appeal from the consolidated decree settling the trustee’s final accounts having been filed on March 16, 1937, more than sixty days after the entry of such consolidated decree on December 16, 1936, were tardily filed and are abortive for all purposes.

It is significant to note that the respondent remaindermen, in their opposition to the motions to dismiss, are in accord with our determination that new trial proceedings are inapplicable to the situation here presented. Their concession in this respect is addressed to another phase of the litigation, viz., that the inapplicability of such new trial proceedings deprived the court below of jurisdiction to vacate the original consolidated decree and amended the same as it subsequently purported to do apparently under the authority of section 662 of the Code of Civil Procedure, a matter to which we shall more particularly address ourselves at a later point in this opinion. However, in so arguing and conceding the inapplicability of new trial proceedings, the respondent remaindermen have failed to appreciate that they thereby expose the fatal defect in their appeals from the consolidated decree settling the trustee’s accounts.

We do not base our conclusion as to the inapplicability of new trial proceedings herein upon the concession of respondents to that effect but rather are we of the view that the statutes and decided cases suggest, if not dictate, such conclusion. Preliminarily, it should be stated that the court below in hearing and settling the accounts of the testamentary trustee herein was engaged in the exercise of its special and limited probate jurisdiction as distinguished from its general law and equity jurisdiction. (Sec. 1120, Prob. Code; Estate of McLellan, 8 Cal. (2d) 49, 55, 56 [63 Pac. (2d) 1120]; Security-First Nat. Bank v. Superior Court, 1 Cal. (2d) 749, 753-758 [37 Pac. (2d) 69]; Thomas v. Superior Court, 17 Cal. App. (2d) 40, 41 [61 Pac. (2d) 496]; Estate of Smith, 4 Cal. App. (2d) 548, 552 [41 Pac. (2d) 565].) In the last cited case wherein this court denied a hearing, it is declared that “We believe the language employed in the present section [1120] of the Probate Code was intended to broaden the jurisdiction of the probate court so as to give that court jurisdiction over practically all controversies which might arise between the trustees and those claiming to be beneficiaries under the trust. This view is strengthened by a consideration of section 1240 of the Probate Code, which provides for an appeal from an order settling an account of a trustee, from an order instructing a trustee, from an order determining heirship or the persons to whom distribution should be made or trust property should pass’, and from an order refusing to make any of said orders. ’ ’

It is obvious, therefore, that the court below in settling the accounts of the testamentary trustee was acting in the exercise of its probate jurisdiction. This being so, we must now ascertain whether new trial proceedings are applicable to the issues determined upon such settlement. Section 1231 of the Probate Code provides that “A motion for a new trial in probate proceedings can be made only in cases of contests of wills, either before or after probate, in proceedings to determine heirship and interests in estates, and in those cases where the issues of fact, of which a new trial is sought, were of such character as to entitle the parties to have them tried by a jury, whether or .not they were so tried.”

In Estate of England, 214 Cal. 298, 300, 301 [5 Pac. (2d) 428], this court held that new trial proceedings were inapplicable to an order settling the final account of an administrator and directing distribution. We perceive no material, or any, distinction between the exercise of such jurisdiction by the probate court and the exercise of its jurisdiction, above shown to exist, in settling the final account of a testamentary trustee and directing distribution. New trial proceedings, in our opinion, are inapplicable to its action in either situation. Consequently, and as we have already pointed out, the notices of appeal from the consolidated order or decree settling the accounts of the respondent trustee and directing distribution, having been filed more than sixty days after entry of such decree, were not within time and said appeals must be dismissed.

If, as urged by the respective parties, certain provisions of the decree, which has since become final, are void and beyond the jurisdiction of the court below, a point we do not decide, it is sufficient to say that if the fatal defect is apparent from an inspection of the judgment roll it may be urged upon either direct or collateral attack and the asserted void portions may be lopped off as dead branches upon the judicial tree. (People v. Davis, 143 Cal. 673, 675, 676 [77 Pac. 651]; People v. Greene, 74 Cal. 400, 405 [16 Pac. 199, 5 Am. St. Rep. 448].)

We turn our attention now to two other appeals herein which the respondent trustee seeks to have dismissed. Following the filing of the notices of appeal by the remaindermen from the consolidated decree settling the trustee’s accounts, which appeals we have just disposed of, the court below, on March 26, 1937, entered a modified consolidated decree, in response to the trustee’s motion mentioned above, in which it was recited, in substance, that the motion was denied in so far as it requested a new trial of the issues but granted as to a modification of the consolidated decree settling the accounts. A modified consolidated decree was accordingly entered, in one proceeding on March 26, 1937, and in the other proceeding on March 27, 1937. As indicated earlier in this opinion, the motion of the respondent trustee in the court below was based on five of the grounds specified in section 657 of the Code of Civil Procedure as grounds for new trial. The order and decree granting a portion thereof and modifying the consolidated decree originally entered, was apparently based upon the provisions of section 662 of the same code to the effect that in ruling on a motion for new trial, in a cause tried without a jury, the court may vacate the judgment in whole or in part or modify the same in whole or in part. However, inasmuch as we have determined that new trial proceedings were inapplicable to the consolidated decree settling the trustee’s accounts, it necessarily follows that the court below was without power or jurisdiction in denying the purported new trial proceedings to vacate and modify the consolidated decree. (Estate of England, supi'a, 301.) Its action in this connection was a nullity and while the remaindermen failed to appeal therefrom, and it is settled that a void judgment or decree is appealable, the purported modified consolidated decree being a nullity may be disregarded whenever and wherever relied on. (Authorities, supra.)

The remaindermen did, however, attempt to overcome the effect of the court’s action by moving in each proceeding, though unsuccessfully, to strike out the notice of intent to move for new trial and the modified consolidated decree settling the accounts. They noticed appeals to this court from the orders denying the motions. The respondent trustee also moves to dismiss these appeals upon the ground the orders are nonappealable. The motions to dismiss must be granted. Section 1240 of the Probate Code enumerates the appealable probate orders and nowhere therein do we find any reference to an order denying a motion to strike. The matters sought to be reviewed upon these latter appeals should have been attacked by an appeal from the purported modified and consolidated decree settling the accounts which, as we have already stated, was appealable even if void and beyond the jurisdiction of the court to make and enter. No such appeal was taken.

In conjunction with and as part of their notices of appeal from the respective orders denying motions to strike, the remaindermen likewise noticed appeals from orders authorizing the trustee to sell certain of the trust property. An order “directing or authorizing the sale or conveyance or confirming the sale of property” is appealable under section 1240, supra. The motions to dismiss these latter appeals must therefore be denied.

To recapitulate: The motions to dismiss the appeals from the consolidated decree settling trustee’s accounts, entered December 16, 1936, and to dismiss the appeals from the orders denying motions to strike are, and each is, granted and said appeals are hereby dismissed. The motions to dismiss the appeals from the orders authorizing a sale of property are, and each is, hereby denied.

Shenk, J., Houser, J., Curtis, J., Edmonds, J., Langdon, J., and Seawell, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    [Crim. No. 4127.
    In Bank.
    August 23, 1938.]
    THE PEOPLE, Respondent, v. ALLAN D. BOGGS, Appellant.

      Stanford G. Smith, W. E. Foley, John D. Foley and James W. Foley for Appellant.
    U. S. Webb, Attorney-General, Wilmer M. Morse, Deputy Attorney-General, and Benj. B. Knight, District Attorney, for Respondent.
   WASTE, C. J.

In an information filed by the district attorney of Santa Cruz County, the defendant was charged with the murder of Sally Boggs, his wife. He entered a dual plea of not guilty and not guilty by reason of insanity. Upon the conclusion of the trial on the general issue, the jury returned a verdict finding defendant guilty of murder of the first degree, without recommendation. Trial was then had on the issue of defendant’s sanity at the time of the commission of the homicide, which issue the jury likewise resolved against him. Defendant was sentenced to pay the extreme penalty, whereupon he noticed this appeal from the judgment and order denying a new trial.

Nowhere in his briefs does the defendant challenge the sufficiency of the evidence on either issue. In fact, the briefs, including those filed on behalf of the People, are singularly free of even a summary of the facts and circumstances surrounding the commission of the homicide. Obviously, the state of the evidence has a material bearing upon whether prejudice resulted from any errors that may be found to have been committed during the trial. However, in our consideration of defendant’s several grounds of appeal having to do with the giving and refusing of instructions on each issue and asserted errors in rulings on the evidence during the trial of the sanity issue, the entire transcript, including the evidence and the instructions, has been examined. We do not find therein anything approximating prejudicial error such as is contemplated by section 4½ of article VI of the Constitution to warrant a reversal. On the contrary, the record discloses an abundance of substantial evidence supporting the jury’s implied findings that the defendant was the perpetrator of a cold-blooded, premeditated murder committed at a time when he was fully capable of distinguishing between right and wrong—the established test in this state of legal sanity. True, there are conflicts in the evidence, but these the jury has resolved against the defendant.

Briefly, the evidence discloses that the defendant had some discussion in the nature of a slight quarrel with his wife during the early part of the day preceding the day of the homicide over her refusal to remain at home and entertain guests he had brought there. She, instead, went on a shopping tour and at the end of the day repaired to a friend’s home, ivhere she had dinner and planned to remain overnight. During the course of the evening, there were telephone conversations between defendant, his wife and her hostess, which apparently were not of a friendly or pleasant character. Later in the evening, and after his guests had retired for the night, the defendant left his home and went to a hotel bar, where he imbibed intoxicating liquor. While there he borrowed a pistol and four shells from the bartender. Shortly thereafter he appeared at the home of his wife’s hostess. The gate to the grounds being closed, he climbed or jumped over the fence that surrounded the premises. He then entered the house by way of the kitchen and, contrary to the wishes of the butler, whom he first met, he proceeded through the house, passing through or near the occupied bedroom of the hostess and other guests until he arrived at the door of the bedroom then being occupied by his wife and her twelve-year-old son by a former marriage. Defendant was apparently unaware that her son had been brought to the house. After demanding to know who was using the room with her, the defendant fired four shots at his wife, some of which struck their mark and proved fatal. The shooting occurred between 1 and 2 o’clock in the morning. Defendant then apparently attempted to shoot himself but the entire contents of the gun had been discharged at the decedent. He then immediately departed the scene of the shooting and was arrested later in the morning as he slept in a hotel room.

While on the stand in his own defense, defendant testified that he did not shoot the decedent but that the gun was first accidentally discharged in a scuffle with her over its possession and that it was again accidentally twice discharged as his attention was arrested by other guests. This version of the shooting is diametrically opposed to the defendant's statements freely and voluntarily made at the time of his arrest and later in the office of the district attorney. Upon each of these occasions he definitely stated that he deliberately shot at the decedent. To the arresting officer he declared: “I went up there to kill her and I killed her and that’s that. She had it coming for a long time ...” That defendant intentionally and deliberately shot his wife at a time when there was no scuffling for the gun, is borne out by the testimony of the butler and other persons in the house at the time who were eye-witnesses to the entire episode.

As already indicated, we are satisfied from an examination of the entire evidence that defendant perpetrated a deliberate, premeditated homicide at a time when he was fully capable of appreciating the nature and character of his act. In view of this, and our further conclusion that none of the asserted errors present anything of a prejudicial character, we do not intend to discuss in minute detail the many assignments of error advanced by the defendant.

Defendant first challenges part of instruction number 34 having to do with manslaughter. The language complained of is but part of a long instruction wherein the court, for the guidance of the jury, repeated substantially verbatim the provisions of sections 187, 189 and 192 of the Penal Code wherein are defined the offenses of murder of the first and second degree and manslaughter. The latter portion of the instruction, even if inaccurate, could not have prejudiced the defendant. Particularly is this so, in view of the jury’s verdict finding him guilty of murder of the first degree. (People v. O’Neal, 67 Cal. 378 [7 Pac. 790]; People v. Ferugia, 95 Cal. App. 711, 718 [273 Pac. 99].) In other words, judging from its verdict, the jury was satisfied beyond a reasonable doubt that the prosecution had established the essentials of murder of the first degree, which essentials were correctly set forth in the instructions. In People v. Hampton, 96 Cal. App. 157 [273 Pac. 854], relied on by the defendant, the jury found the defendant guilty of the offense as to which the asserted erroneous instruction was given. Prejudice under such circumstances may well be imagined. In People v. Carrillo, 104 Cal. App. 586, 591 [286 Pac. 493], and People v. Semone, 140 Cal. App. 318 [35 Pac. (2d) 379], language similar to that complained of in the instruction here given was approved.

It. is next urged that another portion of the same instruction precluded the jury from considering the asserted intoxication of the defendant at the time of the commission of the offense. Obviously, one instruction may not encompass all matters upon which the jury should be informed. Instructions number 37 and 38 properly informed the jury that evidence of intoxication could be considered in connection with a determination of the intent with which an act is perpetrated. Moreover, the language complained of constituted but a repetition of the provisions of section 21 of the Penal Code. In People v. Vernal, 40 Cal. App. 358, 361 [180 Pac. 825], it was held not to be error to read the section to the jury.

We find no merit in defendant’s assault upon another portion of instruction number 34 to the effect that it failed to inform the jury of the necessity for the presence of malice, express or implied, to constitute the crime murder in the first degree. As stated above, the jury was elsewhere fully and correctly instructed on the essentials of first and second degree murder and that portion of the instruction here complained of could not have misled them.

Instruction number 38 having to do with intoxication and its effect upon the act and intent of a person is not subject to the criticism leveled at it. As already intimated, it correctly informed the jury on the subject. A somewhat similar instruction was approved as early as 1869 in People v. Lewis, 36 Cal. 531, and as late as 1935 in People v. De Moss, 4 Cal. (2d) 469, 474 [50 Pac. (2d) 1031].

Obviously, no prejudice could have resulted to the defendant from instruction number 9 in which the jury was merely informed of the right of court and counsel to comment on the evidence or the failure of defendant to explain or deny any portion thereof adverse to him. The instruction was undoubtedly based upon section 13, article I, section 19, article VI of the state Constitution and section 1439 of the Penal Code.

Defendant criticizes instruction 46, having to do with the burden on defendant of proving mitigating circumstances following proof by the prosecution of the commission of a homicide. We cannot agree with the defendant that this instruction is capable of an interpretation relieving the prosecution of the burden of proving malice as an essential of murder of the first degree. In effect, it properly informed the jury that when any offense of any degree was proved by the prosecution, as required by law and under the instructions, then the burden of proving mitigating circumstances was upon the defendant. Defendant’s further contention in connection with this same instruction that it fails to require or specify proof of the commission of the homicide by the defendant, is specious and lacking in merit. (People v. Madison, 3 Cal. (2d) 668, 677 [46 Pac. (2d) 159].) We must attribute some reasoning power to a jury. In People v. Post, 208 Cal. 433 [281 Pac. 618], cited by defendant, the instruction there involved was found to be prejudicial on a ground other than that here urged. (People v. Madison, supra.)

The defendant’s next main contention has to do with the asserted erroneous refusal of the court below to give several requested instructions addressed to the trial of the general issue. We find no error in the refusal to give the three having to do with the effect of intoxication upon the act and intent of the perpetrator of an offense. As mentioned above, this subject was sufficiently covered in the instructions given. In addition, our examination of the record satisfies us that it amply supports the implied finding of the jury that defendant was not so intoxicated at the time of the commission of the act as to preclude the entertainment by him of a specific intent to take the decedent’s life. Defendant’s vivid recollection of the circumstances surrounding the homicide attests to the clarity of his mind at the time rather than to a bewildered mental state resulting from intoxication. Therefore, even an improper refusal to give the instructions could not have been prejudicial.

Nor do we think the court erred in refusing the requested instruction on excusable homicide. The subject was sufficiently covered by instruction number 41 given to the jury wherein section 195 of the Penal Code, defining excusable homicide, was read. Here, again, we must ascribe some intelligence to the jury who may reasonably be assumed to know that a verdict of acquittal should follow a finding by them of excusable homicide.

No prejudice resulted from the refusal to give the requested instruction on reasonable doubt. The subject was adequately covered in the trial court’s charge to the jury. The jury was instructed on the presumption of innocence, and the definition of reasonable doubt, as it appears in section 1096 of the Penal Code, was read to them. When it is considered that the court also informed the jury as to the essentials of murder of the first and of the second degree, it is not unreasonable to assume that the jury could and would ascertain and know from the charge as a whole that either offense, of the greater or of the lesser degree, would have to be established by the prosecution beyond a reasonable doubt. Any other construction would import but little intelligence to the jury.

The subject of the refused instruction as to the effect of intoxication was, as indicated above, sufficiently covered by the court and further comment thereon is unnecessary.

Defendant also urges that the court below erred in the giving and refusing of certain instructions on the trial of the sanity issue, to which assignment we now direct our attention. It is first argued that the court erred in informing the jury that while the defense of insanity, if established to their satisfaction, should commend itself to their sense of humanity and justice, nevertheless such defense should be examined “with care lest an ingenious counterfeit of this mental infirmity shall furnish immunity to guilt”. Though such an instruction was approved in some of the earlier cases (People v. Dennis, 39 Cal. 625, 637), the later decisions have frowned upon it. (People v. McCarthy, 115 Cal. 255, 265 [46 Pac. 1073]; People v. Ford, 138 Cal. 140, 142 [70 Pac. 1075].) This the attorney-general concedes. However, no case has been called to our attention, and our research has failed to reveal any, wherein the giving of such an instruction has been held to be prejudicially erroneous. In 8 California Jurisprudence, 304, section 358, the subject is summarized as follows: “While this instruction may well be omitted altogether, as the jury may take it as an intimation by the judge of his opinion of the case on trial, it has been so frequently given and approved, that it is now established that it is not prejudicially erroneous.” To the same effect see People v. Sloper, 198 Cal. 238, 248-250 [244 Pac. 362], Nor do we think that a separation of the trial of the two issues under our present procedure calls for any different result. (People v. Young, 140 Cal. App. 456, 458 [35 Pac. (2d) 354].) In our opinion, the preponderance of substantial evidence in the record points to the sanity of the defendant. The alienists appointed by the court testified that in their opinion the defendant was of sound mind.

It is next contended that the cause was not tried on the theory of irresistible impulse or moral insanity and that it was therefore prejudicially erroneous for the court below to instruct thereon. The two instructions contained correct statements of the law. It has been held that the giving of inapplicable instructions, correct in the abstract, is not ground for a reversal. (People v. Lawson, 178 Cal. 722, 729, 730 [174 Pac. 885]; People v. Romero, 143 Cal. 458, 459 [77 Pac. 163].)

We find no error in the instruction having to do with intent. With a few embellishments, it merely reiterated the language of section 21 of the Penal Code. We do not think it capable of the dire consequences attributed to it by the defendant.

Nor do we think any prejudice resulted from the trial court’s reading of section 2167a of the Political Code, having to do with the appointment and certification of county medical examiners. While the reading of such section was unnecessary, we do not believe it had the effect, as urged by defendant, of impliedly informing the jury that the testimony of such medical examiners had the support of the court as against the testimony of other experts not so appointed.

During the trial, defendant produced evidence of his long-continued use of intoxicating liquor and now contends that it was prejudicial error for the trial court to refuse to give three requested instructions on settled insanity produced by long-continued intoxication. While we are of the view that instructions on the subject might have been given without harm to either side, we are not of the view that the refusal to give them prejudiced the defendant. As stated above, the preponderance of the evidence points to the sanity of the defendant at the time of the homicide. Nor do we find therein any substantial evidence of a settled insanity resulting from the continued use of intoxicants. True, as already mentioned, defendant produced witnesses who testified to his heavy drinking over the years and an expert who testified that the defendant was suffering from a deranged condition of mind and an amnesia, total or partial, produced in part by long use of intoxicants. But, as we have already stated, the preponderance of the evidence, in our opinion, points to his sanity. In addition, the jury was fully and correctly instructed on the subject of insanity generally. Among other things, they were told that insanity “means such a diseased and deranged condition of the mental faculties as to render the person incapable of distinguishing between right and wrong in relation to the act with which he is charged.” Other similar charges were given to the jury. Such instructions necessarily include any and all forms of insanity or deranged mental condition, regardless of the inducing cause, which preclude a person from distinguishing between right and wrong. In People v. Keyes, 178 Cal. 794, 797, 798 [175 Pac. 6], it is declared that “the court gave the jury full instructions on the subject of the defense of insanity from whatever cause proved. It was not required to designate any particular phase of insanity”. There, as here, it was urged that prejudicial error resulted from the failure to instruct on settled insanity resulting from continued use of intoxicants.

Under his next general assignment, the defendant urges that the trial court erred in certain decisions of law during the trial of the sanity issue. His first point is that the court below erred in excluding from evidence the opinions given by five witnesses, whose depositions were taken in the state of Michigan and produced upon the trial, as to the sanity - of the defendant. The opinions were excluded on the ground that they invaded the province of the jury. A liberal ruling would have permitted the introduction of the answers or opinions in evidence. However, there are several circumstances that militate against any prejudice resulting therefrom. Most of the persons had not seen defendant for some time prior to the commission of the homicide and his mental condition at that time was the issue before the jury. In People v. Overacker, 15 Cal. App. 620, 630 [115 Pac. 756], it is said that “the court had discretion to exclude testimony which was remote in point of time from the date of the homicide”. Moreover, practically the entire deposition of each of the five persons was admitted in evidence wherein were detailed by the deponents the circumstances they could recall in connection with defendant’s conduct. It frequently has been held that the opinion of an intimate acquaintance has no greater evidentiary value than the reasons underlying it (People v. Coen, 205 Cal. 596, 614 [271 Pac. 1074]), and inasmuch as the reasons were here before the jury, the failure to permit the opinions in the evidence could not have been damaging. In addition, and by way of final disposition of this point, it appears, as matter of fact, that the opinion of each of the deponents as to defendant’s sanity was in some manner brought out before the jury, either in answer to some other question or on cross-examination. The deponent McSweeney stated in one place that defendant “acted and spoke in a manner which were not the speech and actions of a man in a sane mental condition”. Again, that defendant’s “mentality in that respect had definitely faded”. On cross-examination the witness answered “yes” to a statement that he had “related several incidents here from which you draw the conclusion that Mr. Boggs is insane, is that correct?”

The deponent Buekheimer stated in one part of his deposition that the defendant was “irresponsible” and that “there was something screwy in his mind”.

Among other things, the deponent McCauley stated that defendant “was not of normal mentality”.

The deponent Carney stated on cross-examination that defendant “wasn’t acting normal” and that he did not think defendant appreciated the difference between right and wrong.

On cross-examination, the deponent Kuhn declared that he thought the defendant “was crazy”. For the foregoing several reasons we conclude that no prejudice could have resulted from the rulings above mentioned.

We find no error in the ruling of the trial court permitting the jailer to testify as to defendant’s conduct and mental condition. The witness testified he knew the defendant for at least two years. Whether one is an intimate acquaintance and competent to discuss the sanity of another is a matter for the trial court to determine in the exercise of a sound discretion. (People v. Niino, 183 Cal. 126, 130 [190 Pac. 626]; People v. Carskaddon, 123 Cal. App. 177, 181 [11 Pac. (2d) 38].)

We do not find any error in the ruling which permitted the prosecution during the cross-examination of a defense expert witness to introduce testimony given by the defendant in a negligent homicide case pending against him, and which arose subsequent to the homicide here involved. The same was admitted under the rule “that it is ‘competent to prove the acts, conduct and declarations of the defendant, not only at the time of, but also within a reasonable time before and after, the commission of the alleged criminal act, if they appear to have any tendency to show his mental condition when the crime was committed’ ”. (People v. Kimball, 5 Cal. (2d) 608, 610 [55 Pac. (2d) 483], citing 8 Cal. Jur., p. 51, see. 162.) It would also serve to test and, if possible, to break down the testimony of the expert witness then under cross-examination.

In conclusion, we do not find that the court below or the district attorney were guilty of prejudicial misconduct in the two respects assigned by defendant. Moreover, in the absence of objection or request for admonition to the jury at the time, the errors, if such, may not now. be urged. (People v. Harris, 219 Cal. 727, 731 [28 Pac. (2d) 906]; People v. Weeks, 104 Cal. App. 708, 713 [286 Pac. 514]; 8 Cal. Jur. 510, sec. 522.)

Other points not mentioned herein do not call for discussion. Our examination of the cause and the authorities has failed to reveal anything requiring a reversal.

The judgment and order are, and each is, affirmed.

Seawell, J., Shenk, J., Curtis, J., Edmonds, J., Houser,. J., and Langdon, J., concurred.

Rehearing denied. Houser, J., voted for a rehearing.


author: EDMONDS, J.

text:
    [Crim. No. 4151.
    In Bank.
    August 24, 1938.]
    THE PEOPLE, Respondent, v. WESLEY E. EUDY et al., Appellants.

      Elvin F. Sheehy, Ben D. Frantz, Archibald D. McDougall, Horace E. Dunning and Daniel E. Weyand for Appellants.
    U. S. Webb, Attorney-General, and Gordon S. Hughes, Deputy Attorney-General, for Respondent.
   EDMONDS, J.

The five defendants in this ease were jointly charged with the crime of murder. One of them, Robert Lee Cannon, pleaded not guilty; the four others pleaded not guilty and also not guilty by reason of insanity. The issues joined by the pleas of not guilty were presented to a jury in a trial of all defendants. The jury found each of them guilty. Thereafter each of the four who pleaded not guilty by reason of insanity moved the court for a separate trial upon that issue. This motion was denied and upon trial each was found sane at the time of the commission of the offense. The defendants have appealed from an order denying them a new trial and also from the judgment subsequently entered imposing the death penalty.

The crime of which the defendants stand convicted was committed on September 19, 1,937. All of them were then inmates of Folsom State Prison. Clarence Larkin, the warden of the institution was in his office, located just off the prison yard, for the purpose of interviewing prisoners who wished to see him. Each convict waiting to see the warden was allowed to enter this office as his turn came. When the defendant Eudy entered, six other convicts bearing knives and a pistol rushed into the office from the yard. They overpowered the warden and the captain of 'the guard, who were both unarmed, and marched them into the yard as hostages in an attempt to escape. There two of the convicts were shot and killed by guards in towers on the prison wall. Warden Larkin was then fatally stabbed by the five remaining prisoners ; and in a melée between guards and prisoners, in which the latter were subdued, a guard also received injuries from which he died.

The defendants’ first point upon which they rely for reversal is that the trial court erred in disallowing certain challenges for cause made by them during the voir dire examination of jurors and in later refusing additional peremptory challenges. The record shows that after the defendants had used all of their peremptory challenges they requested three additional ones to replace those which had been exercised in excusing jurors challenged for cause. The court allowed one additional peremptory challenge, and then, on its own motion, excused the one remaining juror whom the defendants had challenged for cause. Two more jurors were then examined and accepted without objection.

The defendants complain that the jury as then constituted was unsatisfactory to them because it included one juror who would have been excused had the court granted additional peremptory challenges and two jurors whom the defendants could not remove in the absence of evidence showing facts upon which a challenge for cause would lie. They insist that each of the five jurors who was unsuccessfully challenged for cause disclosed a state of mind which would have prevented him “from acting with entire impartiality and without prejudice to the substantial rights of either party”. (Sec. 1073, Pen. Code.) However, the record shows that although the prospective jurors admitted that they had read of or heard about the death of Warden Larkin and believed that the convicts concerned had entered into a conspiracy to escape from prison, each said with positiveness that he could and would decide the case solely upon the evidence introduced in the trial.

One who has formed or expressed an opinion upon the merits of a criminal ease is not thereby disqualified from serving as a juror in the trial of the defendant “provided, it appear to the court, upon his declaration under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him”. (Sec. 1076, Pen. Code.) Whether the challenged person met the requirements of the law was a question for the decision of the trial judge. The fact that all of the answers of each person under examination were not entirely consistent only raised a conflict in the evidence concerning the state of mind of the prospective juror. Upon such a conflict the determination of the trial judge is conclusive upon an appellate court. (People v. Craig, 196 Cal. 19, 25 [235 Pac. 721]; People v. Edwards, 163 Cal. 752, 757 [127 Pac. 58].)

Another point raised by the defendants is that the court erred in denying their motions for separate trials on the issue of insanity. They say that it was difficult, if not impossible, for the jurors and the trial judge to keep the evidence concerning each defendant separate in thought from that relating to the others. Their counsel concede that where several defendants are jointly tried upon their pleas of not guilty, there is no statutory provision or judicial authority for severance of trial upon their pleas of not guilty by reason of insanity. They rely, however, upon the English case of Rex v. Lonsdale, 47 Times L. Rep. 80, in which the court held that a defendant charged with being an habitual criminal should be tried separately upon that issue and not with any other person.

In this state, the court in its discretion may order a separate trial of one or more defendants charged with a public offense. (See. 1098, Pen. Code.) But a separate trial is not a matter .of right. (People v. Rocco, 209 Cal. 68 [285 Pac. 704]; People v. Tinnin, 136 Cal. App. 301 [28 Pac. (2d) 951].) Even where it appears that evidence will be admissible against one of several defendants which the jury cannot consider as against the others the law does not require separate trials upon demand therefor. (People v. Perry, 195 Cal. 623 [234 Pac. 890]; People v. Booth, 72 Cal. App. 160 [236 Pac. 987]; People v. Erno, 195 Cal. 272 [232 Pac. 710].)

The defendants in this case acted together in attacking the officers of the prison. Apparently, they had carefully planned what each should do. What was said and done at that time was evidence for the jury to consider in determining the sanity of each of the defendants. All of them had been inmates of the institution for some time and had been under the same prison discipline. Although the mental and social background of each of them was different, issues of much greater complexity are commonly submitted to a jury. The determination whether a motion for severance of trial should be granted always rests within the sound discretion of the trial judge. There can be no clearly defined rule for determining when a defendant is entitled to a separate trial because the exercise of discretion means that the decision must be based upon a just and proper consideration of the particular circumstances which are presented to the court in each case. Only where an abuse of discretion is shown will the ruling of the trial court be disturbed upon appeal. (People v. Perry, supra; People v. Tinnin, supra.)

In the present case the defendants have failed to show any inconsiderate action. Furthermore, when the motion for severance was made no facts were stated in support of it and, so far as the record shows, the trial judge was not apprised of the nature or extent of the evidence that each defendant expected to offer to prove insanity. An appellate court, in determining the propriety of a ruling upon a motion for severance of trial, will look only to the facts presented to the court at the time the motion was made and not to events that occurred afterward. (People v. Erno, supra; People v. Friday, 18 Cal. App. (2d) 197 [63 Pac. (2d) 303]; People v. Pierson, 139 Cal. App. 734 [34 Pac. (2d) 755].) The record fully supports the order which was made.

The defendants next contend that the trial judge committed prejudicial error when he made a statement concerning the defense of insanity which, it is claimed, exceeded the bounds of fair comment. Although he told the jurors that an ingenious counterfeit of mental infirmity should never furnish immunity to guilt he also said that the defense of insanity should be weighed fully, fairly and justly. As a part of his remarks he admonished the jurors that you “are the sole judges of all questions of fact and credibility of the witnesses; you are not to consider any comment of the Court upon the evidence and credibility of witnesses as binding upon you or necessarily to be followed by you. The Court does not intend that the judgment of the Court should be substituted for that of the Jury and you should not consider yourselves bound or influenced against your own judgment by any comment of the Court. Your verdict must represent and reflect your own independent judgment.”

Taken as a whole the statement amounts to nothing more than fair and general comment which a trial judge is now authorized to make. (Art. VI, see. 19, Cal. Const.) Although such remarks should be temperate and unemotional in tenor, he is not confined to specific comments. The right may be exercised in the manner which the judge deems “necessary for the proper determination of the case”, and is not confined to a colorless recital of facts. (People v. De Moss, 4 Cal. (2d) 469 [50 Pac. (2d) 1031]; People v. Ottey, 5 Cal. (2d) 714 [56 Pac. (2d) 193]; People v. Gosden, 6 Cal. (2d) 14 [56 Pac. (2d) 211].) Even an expression of his opinion concerning the guilt or innocence of a defendant has been held to be within the scope of comment which may be made, provided the province of the jury is not invaded.

The defendant Kessell also urges that the evidence was insufficient to support the verdict that he was sane at the time of the offense and that the court erred in its rulings on certain evidence pertaining to his sanity. This defendant produced eleven witnesses, all fellow-convicts, who testified concerning his conduct during several months preceding the attempted prison break. Against this evidence was not only the presumption of sanity but also the testimony of five medical experts, each of whom stated that in his opinion the defendant was legally sane at the time he committed the offense. It is true that in answer to a hypothetical question embodying the facts testified to by Kessell’s fellow-convicts, these experts testified that if a man had such characteristics he would be considered insane. However, the jury was at liberty to refuse credence to the testimony of the lay witnesses. The doctors made careful clinical examinations of the defendant after the crime was committed and none of them found the symptoms referred to by the prisoners who testified in behalf of Kessell.

Several rulings of the trial court concerning the introduction of evidence have also been assigned as error. These have been examined and considered but they do not require detailed discussion. While some of them may be open to question none presents points which would justify a reversal of the judgment. The trial as a whole was conducted with fairness and impartiality, and all counsel were allowed full latitude in the examination of witnesses.

The judgment and the order denying a new trial are, and each of them is, affirmed.

Curtis, J., Shenk, J., Waste, C. J., Seawell, J., and Langdon, J., concurred.


author: CURTIS, J.

text:
    [S. F. No. 16033.
    In Bank.
    August 24, 1938.]
    RAILROAD COMMISSION OF THE STATE OF CALIFORNIA, Petitioner, v. HARRY B. RILEY, as State Controller, etc., Respondent.

      Ira H. Rowell, Roderick B. Cassidy and George E. Howard for Petitioner.
    U. S. Webb, Attorney-General, and W. R. Augustine, Deputy Attorney-General, for Respondent.
   CURTIS, J.

Pursuant to the provisions of section 34 of article IV of the Constitution of the state of California, the governor of the state submitted to the 52d session of the legislature, the state budget for the biennium commencing July 1, 1937, and ending June 30, 1939, accompanied by an appropriation bill itemizing proposed state expenditures for such biennium, known as the budget bill, which included item No. 35 pertaining to support for the Railroad Commission of said state. Said budget bill originally contained the following words and figures relating to said item No. 35:

“Item 35—For Support of Railroad Commission of the State of California, eight hundred fifty-seven thousand six hundred one dollars ..........$857,601.00”

The legislature, after making various changes, passed said bill, which was thereupon submitted to the governor for consideration. Said budget bill, as amended by the assembly and passed by the legislature, contained the following words and figures pertaining to item No. 35:

“Item 35—For support of the Railroad Commission of the State of California, eight hundred fifty-seven thousand six hundred one dollars, of which the amount of thirty-four thousand one hundred sixty dollars shall be expended for support of the Safety Section of the Railroad Commission of the State of California..........$857,601.00”

Pursuant to the power vested in the governor by sections 16 and 34 of article IV of the Constitution, the governor signed said budget bill as passed by the legislature and appended thereto a statement of the items therein contained to which he objected, together with his reasons therefor. Reference was made in said statement to said item 35 in the following language:

“1. I object to and eliminate the item on pages 6 and 7, under the heading, ‘Administrative’, reading as follows: ‘of which the amount of thirty-four thousand one hundred sixty dollars shall be expended for support of the Safety Section of the Railroad Commission of the State of California,’ for the reason that I consider the Railroad Commission of the State of California and the Department of Finance better equipped to make such allocations, and vested with ample authority to provide through fiscal year budgets, for the needs, when known, of such functions.”

Thereafter the assembly reconsidered the budget and appropriation bill, taking up separately each of the items objected to by the governor, but failed to override the governor’s objection to item No. 35, wherein the legislature had provided that of the sum of $857,601, appropriated to the support of the Railroad Commission, $34,160 of said sum should be expended for the support of the safety section of the Railroad Commission of the state.

On the 22d of March, 1938, petitioner made demand upon respondent, Harry B. Riley, the controller of the state of California, to set up on the books of his department the sum of $857,601 for the support of the Railroad Commission for the fiscal years of said biennium, that is to say, for the 89th and 90th fiscal years, but respondent refused and still refuses to comply with said demand, and refuses to set up on the books of his department for the support of the Railroad Commission for said fiscal years any greater amount than the sum of $857,601, less the sum of $34,160, or the sum of $823,441.

Petitioner contends that the correct amount to be set up on respondent’s boobs for the support of the Railroad Commission for each of said fiscal years is the sum of $428,800.50, or one-half of said sum of $857,601, while respondent has only set up for said purposes on his books the sum of $411,-720.50 for each of said fiscal years, said sum of $411,720.50, being one-half of said sum of $823,441. In its petition, petitioner prays for a writ of mandate to be issued out of this court directed to respondent as such controller commanding him to make available upon the accounting records of his department for the support of the Railroad Commission the sum of $428,800.50 for each of said fiscal years, constituting the total sum of $857,601 for such biennium. On the filing of said petition, an alternative writ of mandate was issued, the same having been prayed for in said petition. The respondent has appeared and filed a general demurrer to the petition.

The legal questions presented by the petition herein do not differ in any respect from those which we considered and decided in the case of Reardon v. Riley, 10 Cal. (2d) 531 [76 Pac. (2d) 101], In that ease the governor in his budget and budget bill provided for an appropriation of $1,297,185 for the support of the department of industrial relations for the 89th and 90th fiscal years. The legislature increased this appropriation to the sum of $1,625,185 and provided that $348,000 of said appropriation should be used for two certain specified purposes. The governor signed the bill, but objected to that portion of the bill which provided that said sum of $348,000 should be used for special purposes on the ground that the state officials charged with the duty of disbursing said funds were best qualified to direct these expenditures. He, however, reduced the appropriation from $1,625,-185 to the sum of $1,397,185. The bill with his objections was then sent to the assembly, and that body failed to pass the same over the governor’s veto. It was then claimed by the respondent controller that the amount thus appropriated was the sum of $1,625,185, less the sum of $348,000, or $1,277,185. The respondent in that case argued, as he does now, that the amount of the appropriation as fixed by the bill as originally passed by the legislature was reduced by the amount of the items to which the governor objected. If that argument had prevailed, then the amount of the appropriation would have been $1,277,185. But the court declined to accept that argument and held that the amount of the appropriation in the bill passed by the legislature, that is the sum of $1,625,185 was not reduced by the amount of these two eliminated items, and was only reduced by the action of the governor in cutting the appropriation from $1,625,185 to $1,397,185. That this is a correct interpretation of the decision in Reardon v. Riley, supra, we think plainly appears from the express language of the court used at that time which we will proceed to quote. In considering the problem then before the court, it was stated that three possible results were suggested under the facts before it. The second of these results was stated as follows: “That the action of the governor reduced the sum of $1,625,185.00 originally fixed by the legislature, by the aggregate of the ‘eliminated’ items ($328,000 plus $20,000 or $348,-000), leaving the sum of $1,277,185—the total amount claimed by the respondent controller to be available to the department of industrial relations.” As to this second result, the court held: “We are not inclined to accept the second result above indicated, and contended for by the respondent controller, as the applicable solution of this proceeding. In support thereof he contends that by the ‘elimination’ of the specific and included items of $328,000 and $20,000 respectively, the governor ipso facto reduced the general or gross appropriation to the department of industrial relations by the aggregate of said ‘eliminated’ specific items, or to $1,277,185, and that the governor could not then increase the ‘reduced’ general appropriation by $120,000 (the amount here in dispute) without prior legislative action. The result contended for by the respondent controller is required neither by law nor reason. It stultifies and improperly restricts the power vested in the governor by sections 16 and 34 of the Constitution, which sections authorize the governor to ‘reduce or eliminate any one or more items of appropriation of money while approving other portions of the bill. . . . ’ In other words, the second result above suggested, and here contended for by the respondent controller, would permit the governor to ‘reduce or eliminate’ the specific and included items of further ‘appropriation’ but would preclude him from ‘approving’, as authorized, such other portion of the bill as contained the general ‘appropriation’ for the department and would likewise preclude the governor from ‘reducing’, as was his obvious intention here, the general appropriation by an amount less than the aggregate of the ‘eliminated’ specific and included items. Such a result is not to be favored. ’ ’

The court accordingly rejected the second proposed result, and approved the third result which was stated by the court as follows: “That the action of the governor eliminated’ the specific and included items of $328,000 and $20,000, but did not affect the general appropriation of $1,625,185 for said department,' which latter item was affected only by the express reduction thereof by the governor to $1,397,185—the amount claimed by petitioner for his department, and conceded by the respondent director of finance as being available therefor. ’ ’

Applying the language thus used by the court to our present problem, our conclusion is that the action of the governor eliminated the specific item of $34,160, but did not affect the general appropriation of $857,601 for the support of the Railroad Commission, which last stated amount is available to the commission for the 89th and 90th fiscal years.

Respondent concedes that the decision in the Reardon ease holds that the governor may eliminate the specific and included items without affecting the general or main item in which the specific item is included, but contends that such holding was not necessary to the decision of that case for the reason that the governor in his message reduced the main appropriation from $1,625,185 to $1,397,185, which latter amount was all that petitioner was seeking. But it was not all that the respondent was seeking. Respondent contended that the main appropriation of $1,625,185 was reduced by the two eliminated items amounting to an aggregate of $348,000 which would have left only $1,277,185, as the appropriation for the department for said biennium. The court rejected this contention and it was necessary for it to do so in order for it to arrive at the amount of $1,397,185 as the amount appropriated. This same contention is now made the sole claim of respondent in justification of his refusal to set up on his books of account the sum of $857,601 as the appropriation for petitioner’s support for the present biennium. Upon the authority of the ease of Reardon v. Riley, supra, this contention cannot be sustained. In view of this former decision of this court upon the very question here involved, it becomes unnecessary for us to consider much of the argument of respondent, which attempts to show that our former decision was erroneous.

Let the peremptory writ issue as prayed.

Waste, C. J., Langdon, J., Houser, J., Shenk, J., and Seawell, J., concurred.


author: THE COURT.

text:
    [Sac. No. 5105.
    In Bank.
    August 24, 1938.]
    P. J. SCHWARTZLER, Respondent, v. M. LEMAS et al., Defendants; M. C. VIERRA, Appellant.

      Hjelm & Hjelm for Appellant.
    George L. Klug for Respondent.
   THE COURT.

This is an appeal by the intervener Vierra from a judgment in favor of the plaintiff foreclosing a chattel mortgage on dairy cattle and equipment. The trial court found that the intervener had agreed to purchase a one-half interest in the property covered by the mortgage and had become a partner of the owners in the conduct of the dairy business, but that the intervener’s interest was so acquired after the execution of the chattel mortgage and before a renewal thereof, and was subject and subordinate to the plaintiff’s right of foreclosure. Judgment was accordingly entered against the defendants Lemas decreeing- a foreclosure with a deficiency, if any, against said defendants. No personal judgment was rendered against the intervener, the court merely adjudging that he acquired his interest subject to the existing debt.

This is a second appeal in the same action. The former judgment determined that the intervener’s interest was subject to the existing debt and was reversed for the principal reason that it could not be ascertained from the record whether the personal property included in the original mortgage was the same as that included in the renewal mortgage, inferentially holding, and we think properly, that if it should appear on a retrial that the property included in both mortgages was the same, the intervener’s interest would be subject to the existing debt. (Schwartzler v. Lemas, 11 Cal. App. (2d) 442 [53 Pac. (2d) 1039].) On the retrial it was stipulated that said property was and is the same.

It is insisted By the intervener that by his contract of purchase he became a partner in the dairy business and that the findings and judgment on the second trial to the effect that the partnership property is charged with the mortgage debt is not supported by the evidence, and that in any event he is not personally liable on the mortgage note.

This appeal was before the District Court of Appeal of the Third District, and a judgment of affirmance rendered. A hearing in this court was granted, mainly for the reason that it was indicated therein that a personal judgment had been rendered against the intervener-appellant, when such was not the case. The appellant was not a party to and had not assumed the obligation either directly or indirectly. The other points involved on the appeal are correctly determined in the following portions of the opinion of the District Court of Appeal which are hereby adopted, to wit:

“Prior to September, 1924, M. Lemas and wife owned the dairy cattle and equipment which are involved in this action. September 11, 1924, M. Lemas executed a chattel mortgage on their forty head of cattle and dairy equipment to secure the payment of two promissory notes due in six months, one for $1,500 and the other for $3,317. The intervener, M. C. Vierra, lived in the Lemas home and was employed by them in the dairy business. Vierra had knowledge of the first chattel mortgage. January 1, 1925, the owners of the cattle and dairy equipment executed a written contract agreeing to sell to Vierra ‘ one-half interest in the said dairy business and personal property’, which, it is conceded, are the same business and property involved in this action. The contract provided for payment of the purchase price of $3,500 in instalments ‘on or before the 1st day of January, 1929’. The entire purchase price of the property was fully paid prior to 1928. The original chattel mortgage was never foreclosed. January 20, 1928, Mr. and Mrs. Lemas executed to the plaintiff, Schwartzler, a chattel mortgage on the same dairy cattle and equipment which were involved in the first transaction to renew the promissory note for $3,317, which was included in the first mortgage. This note became due in two years from the date of the second mortgage. At the time of the execution of the second chattel mortgage Mr. and Mrs. Lemas and Vierra were in joint possession of the property, and were engaged in operating the dairy. The plaintiff knew of the interest of Vierra in the dairy business and property which was mortgaged. The $3,317 note for which the second chattel mortgage was given, was the same note which was included in the original mortgage. The second mortgage was, therefore, given to renew and secure the payment of one of the notes for which the first mortgage was executed. Only about $700 was thereafter paid on this last secured note. December 6, 1933, this suit was commenced against Mr. and Mrs. Lemas to foreclose the last-mentioned chattel mortgage. By permission of court, M. C. Vierra intervened in that action. The cause was tried, and the court adopted findings in favor of the plaintiff and thereupon rendered judgment against the defendants for the foreclosure and sale of the mortgaged property to pay the obligation due to plaintiff. From that judgment, the defendants appealed. On that previous appeal this court affirmed the judgment as to all the defendants except Vierra. For the reason that it could not be determined from the record whether the second mortgage dated January 20, 1928, covered the same property which was mortgaged September 11, 1924, the judgment was reversed with respect to the intervener, Vierra. This court then determined the following facts which became the law of this case:
“ ‘As to the intervener, Vierra, as we have shown, the uncontradicted testimony shows the execution of the agreement; shows that the intervener, together with Lemas, remained in possession of the property from the date of the execution of the agreement; also, shows knowledge of the interest of the intervener on the part of the plaintiff, and that this knowledge was possessed by the plaintiff prior to the execution of the second mortgage.’
“This court determined on the former appeal that the mere making of the executory contract by the mortgagors agreeing to sell to this appellant an interest in the mortgaged property, contrary to the provisions of section 538 of the Penal Code, ‘would not affect the title of the intervener Vierra.’
“The first judgment was reversed as to Vierra only because the record failed to disclose the fact that the second mortgage created a lien on the same property which was covered by the first mortgage. The opinion reads in that regard:
"‘The record shows, as we have stated, that the interest of the intervener Yierra includes only a portion of the property described in the second mortgage, which may properly be determined upon a retrial of this cause. ’

“The judgment of foreclosure was affirmed as to the mortgagors. To that extent the former decision of this court became the law of this case and is controlling on this appeal. The former judgment was reversed as to this appellant for the reason above stated. Upon retrial of the cause it was stipulated that the second mortgage covered all of the equipment and dairy property covered in the first mortgage, including the natural increase of cattle. There is now no question that the second mortgage covers all of the property which was included in the first mortgage.

“It thus appears as the law of this case that the intervener, Yierra, became the owner of an undivided one-half interest in the dairy business, stock and equipment of the mortgagors after the execution of the original chattel mortgage. It was also determined that the mortgagee had knowledge of Yierra’s joint interest in the property before the execution of the renewal mortgage. It was not specifically determined on the previous appeal that Yierra’s interest in the business and property was subject to the lien which was created by the first chattel mortgage. It necessarily follows as a matter of law that, since the lien to secure the payment of the mortgagors’ debt vested before the undivided one-half interest in the property was acquired by Vierra, he took title subject to that lien. (11 C. J. 623, sees. 338 and 341; Jones on Chattel Mortgages, (4th ed.) 517, sec. 454; Ilf eld v. Ziegler, 40 Colo. 401 [91 Pac. 825].) In 11 Corpus Juris, supra, it is said:

“ ‘In the absence of a stipulation to the contrary a mortgagor rightfully in possession may, before a default has occurred in the condition of the mortgage, sell the mortgaged property, but the purchaser takes subject to the mortgage lien.’
“To the same effect as the last-quoted authority is the text in Jones on Chattel Mortgages, supra. We therefore assume that Yierra took title to his undivided one-half interest in the dairy business, stock and equipment subject to the lien
created by the original chattel mortgage to secure the two promissory notes. The evidence supports the finding of the trial court to the effect that the original lien was not extinguished. One of the notes, to-wit, the $3,317 note, for the security of which the original chattel mortgage was executed, was not paid, and the second mortgage was given to renew the mortgage to secure that note. In spite of the fact that the mortgage was renewed with knowledge on the part of the mortgagee of the intervening sale to Vierra of the undivided interest in the business and property, the renewal of the mortgage created no new obligation. On the contrary, it merely perpetuated the existing lien on the cattle and equipment as continuing security for the payment of the $3,317 note, together with accrued interest and counsel fees as provided by the terms of the original note. Under the circumstances of this case the lien created by the first mortgage was never extinguished. The second mortgage therefore did not abridge the rights acquired by Vierra in his purchase of the property for the reason that he took title subject to that very lien to secure the payment of the identical note which was secured by the renewal mortgage. There is substantial proof that the mortgage of January 20, 1928, was executed to renew the original $3,317 note which was secured by the first mortgage, and that the original lien was therefore not extinguished. . . . The second transaction, therefore, constituted a mere renewal of the mortgage and a continuation of the existing lien, and not an extinguishment of the obligation. (2 Jones on Mortgages, (8th ed.), p. 663, secs. 1186, 1187.) In the authority last cited it is said at page 664, section 1187:
“ ‘A mortgage does not lose its priority by taking a renewal mortgage when the debt is the same and the property is not released from the lien. ’

“ The appellant contends that since he became a partner with the mortgagors in their dairy business and a joint owner of the cattle and equipment incident thereto, Mr. and Mrs. Lemas had no legal authority to mortgage partnership property or abridge his interest therein, to secure the payment of their individual debt. It is ordinarily true that a mortgage executed against partnership property by one partner only to secure his individual debt, and without the consent of his associate partners, conveys no title and creates no lien upon the property of the partnership or against nonconsenting partners. (47 C. J., p. 858, sec. 330; 20 R. C. L., p. 910, secs. 123, 124; 50 A. L. R., p. 441, note; 54 A. L. R., p. 554, note; 1 Rowley’s Modern Law of Partnership, p. 538, sec. 441.) In 47 Corpus Juris, supra, it is said:

‘‘ ‘Since a partner cannot, without consent, apply partnership property to the payment of his individual debts, he cannot abridge the rights of firm creditors or of his partners by giving an unauthorized mortgage of partnership chattels as security of such debts; . . . the mortgagee of such share takes subject to all the equities of the nonassenting partners. ’
“But in this ease the mortgagor did not mortgage the partnership property to secure his individual debt. He mortgaged the property when he and his wife were the exclusive owners thereof and before Vierra became a partner in the business. When the property was mortgaged no partnership existed. Vierra bought his interest in that property subject to the lien which was previously created, and of which chattel mortgage the purchaser had knowledge. All that the mortgagors accomplished by renewing the mortgage was to extend the lien which then existed. ...
“It seems equitable and in accordance with law that the property which was mortgaged to secure a specific obligation prior to the disposal of one-half interest therein should be charged with the satisfaction of that debt in accordance with the terms of the chattel mortgage, so long as the lien thereon exists, independently of any subsequent interests which may have been acquired either as a purchaser thereof or as a partner in the business. There is nothing in the former decision of this court to the contrary. ’ ’

The judgment is affirmed.

Rehearing denied.


text:
    [S. F. No. 16101.
    In Bank.
    August 31, 1938.]
    SIDNEY R. EPPERSON, Petitioner, v. FRANK C. JORDAN, Secretary of State, etc., Respondent. EDWARD S. KORNMANN, Petitioner, v. FRANK C. JORDAN, Secretary of State, etc., Respondent.
    [S. F. No. 16098.
    In Bank.
    August 31, 1938.]

      Jesse H. Steinhart, B. J. Feigenbaum and S. L. Ladar for Petitioner in S. F. No. 16101.
    Wallace Sheehan and Fred M. Cross for Petitioner in S. F. No. 16098.
    U. S. Webb, Attorney-General and Robert W. Harrison, Chief Deputy Attorney-General, for Respondent.
    O. K. Cushing and Ben C. Duniway, as Amici Curiae, on Behalf of Respondent.
   THE COURT.

Petitioners, qualified electors and taxpayers of the state, by separate applications, seek writs of mandate directed to the Secretary of State commanding him (1) to refrain from submitting a certain purported initiative measure to the electors of the state, and (2) not to certify ithe measure to the registrars of voters and county clerks of the state. After the issuance of the alternative writs the respondent, by way of answer and return, filed general demurrers to the petitions. Inasmuch as the two petitions involve substantially the same contentions both will be disposed of in this one opinion.

The proposal which petitioners seek to keep from being submitted to the voters at the next general election is a constitutional amendment proposed under the initiative provisions of the state Constitution. It is signed by the requisite number of qualified electors of the state and has been filed with the Secretary of State within the time entitling it to be submitted at the November election.

Petitioners’ main contention is that such proposal should be kept from the ballot because the circulation title of the measure appearing upon each page of the initiative petition whereon signatures appear, does not contain a “summary of the chief purpose and points” of the proposed constitutional amendment as required by the provisions of article IV, section 1, of the Constitution and section 1197b of the Political Code.

At the outset of our consideration of the problems here presented we are met by the contention of amici curiae, representing the proponents of the measure, that this court has no jurisdiction to consider the petitions for the reasons that: (1) Article IV of the Constitution reserves to the people the power to propose laws and amendments to the Constitution by the initiative process; that the Constitution itself sets up the steps for exercising this reserved power; that one of these constitutional steps is the preparation of a title and summary by the attorney-general; that under the separation of powers provided for by article III of the Constitution the initiative process must be held free from interference by the courts; and (2) that section 1197 of the Political Code provides the sole and exclusive method of objecting to the title' prepared by the attorney-general, that is by review by a statutory board of title commissioners.

Neither of these contentions is sound. The first contention is basically unsound in that the petitions filed herein do not seek judicial interference with a legislative function, but seek a determination as to whether the provisions of the Constitution and statutes have been followed. The petitioners are not seeking to control the actions of any legislative officer, but those of the Secretary of State—an administrative officer. This court frequently has exercised the power here invoked. (Boyd v. Jordan, 1 Cal. (2d) 468 [35 Pac. (2d) 533]; Clark v. Jordan, 7 Cal. (2d) 248 [60 Pac. (2d) 457, 106 A. L. R. 549].)

The second contention equally lacks merit. It is predicated upon the provisions of sections 1197 (3) and 1197a of the Political Code. By these sections “any person who is dissatisfied” with the attorney-general’s ballot or circulation titles to an initiative measure, may file his objections with the Secretary of State, who shall then transmit copies of the initiative measure, the attorney-general’s title, and the objections thereto to “the Board of Title Commissioners, which board shall consist of the three justices of the District Court of Appeal ... in and for the third appellate district, who shall be ex officio title commissioners for the purposes of this act and which board is hereby created”. This board is then required to hold a hearing and prepare a proper title, .and its determination “shall be final and conclusive”. Obviously these sections purport to provide a method for passing upon the correctness of the attorney-general’s title. If such sections were valid it is quite possible that the method therein provided was intended to be the sole method of passing upon the correctness of such titles. However, it is quite clear that these sections, inasmuch as they purport to confer non judicial duties on the appellate justices, are unconstitutional. This point need not be discussed at length. The principles involved have recently and exhaustively been considered by this court in Abbott v. McNutt, 218 Cal. 225 [22 Pac. (2d) 510, 89 A. L. R 1109].) On the authority of that case and the cases and constitutional provisions therein cited, sections 1197 (3) and 1197a in so far as they provide for the creation of said board of title commissioners must be held to be unconstitutional.

Before discussing the sufficiency of the title here challenged, some reference should be made to the constitutional and statutory provisions involved. Article IV, section 1, of the Constitution, as amended in 1932', is the section dealing with the initiative, and the method of its exercise. Among other things it.provides: “Prior to the circulation of any initiative or referendum petition for signatures thereof, a draft of the said petition shall be submitted to the Attorney-General with a written request that he prepare a title, and summary of the chief purpose and points of said proposed measure, said title and summary not to exceed one hundred words in all . . . Any initiative or referendum petition may be presented in sections, but each section shall contain a full and correct copy of the title and text of the proposed measure ...” Until 1937 this one hundred word title appeared only on the first page of each section of the initiative petition. Prior to 1937 on each page of each section of the petition there was required to be printed under the provisions of section 1197a of the Political Code a so-called “short title” in not to exceed twenty words, showing the “nature of the petition and the subject to which it relates”. It was these short titles, prepared by the proponents of the measures, that were held legally insufficient in Boyd v. Jordan and Clark v. Jordan, supra. In 1937 the legislature amended sections 1197a and b of the Political Code so as to abolish the requirement of the short twenty word title on each page and to provide that the one hundred word title prepared by the attorney-general should appear not only on the first page of each section of the petition as required by the Constitution, but also across the top of each page of the petition on which signatures appear. Section 1197b of the Political Code as amended in 1937 provides: “The proponents of any proposed initiative measure shall prior to its circulation, place on each section of the petition in relation thereto above the text of the measure, and across the top of each page thereof whereon signatures are to appear, the title and summary referred to in the Constitution and in section 1197a of the Political Code ...”

These 1937 amendments worked an important change in the law by legislative mandate and have modified to some extent the rule of the Boyd and Clark eases, so strongly relied upon by petitioners. In those cases the titles therein challenged were the short titles prepared by the proponents of the measures. Although the title must contain a “summary of the chief purpose and points of said proposed measure” it need not be a catalogue or index to all of the provisions of the measure. In approaching the question as to whether the title so prepared is a proper one all legitimate presumptions should be indulged in favor of the propriety of the attorney-general’s actions. Only in a clear case should a title so prepared be held insufficient. Stated another way, if reasonable minds may differ as to the sufficiency of the title, the title should be held to be sufficient. These rules of construction are in accord with the fundamental concept that provisions relating to the initiative should be liberally construed to permit, if possible, the exercise by the electors of this most important privilege.

Keeping these rules in mind, we turn to a consideration of the provisions of this proposed constitutional amendment and to the title prepared by the attorney-general. We are called upon to determine whether that title contains a “summary of the chief purpose and points of said proposed measure”.

The main purposes of the proposed amendment are clear— they are, to repeal existing constitutional tax limitations on real property, to progressively abolish taxes on tangible personal property and improvements, to repeal provisions of the Constitution which now prohibit this, and to abolish certain existing taxes, chief of which is the sales tax.

To accomplish these main purposes the proposal is divided into three parts. First, that portion of article IV, section 34a, of the Constitution providing that not more than 25 per cent of the total appropriations from all funds of the state shall be raised by taxes on real and personal property is repealed.

Second, a new section—section 5—is added to article XIII of the Constitution to provide:

(a) that for the first year after the adoption of this amendment taxation of improvements and tangible personal property levied by the state or other taxing power shall not exceed 90 per cent of the rate levied on land for the same year; that annually thereafter the rate on improvements and tangible personal property shall be reduced an additional 10 per cent less than the rate levied on land; that after ten years, improvements and tangible personal property shall be exempt from taxation; that the present assessed value of improvements and tangible personal property shall not be increased; that existing limitations of the tax rate of county, city and county, municipality or district, shall become inoperative proportionately to the extent necessary to offset the reduced taxation of tangible personal property and improvements required by this article.
(b) that improvements on land occupied by the owner as a home are exempt to the extent of $1,000.
(c) that no existing or future tax moratorium or extension of time for the payment of taxes shall extend to any class of property except improved property in one parcel and ownership, of an assessed value not to exceed $5,000.
(d) In this subdivision the words “improvements,” “tangible personal property” and “land” are defined.

Third, a new section—section 5.5—is added to article XIII to provide:

(a) that on July 1st after the adoption of the amendment the Retail Sales Tax Act of 1933, The Use Tax Act of 193'5, the Automobile License Tax Act of 1935 and the Private Car Tax Act of 1937, and all acts amendatory or supplementary thereto are repealed, subject to the right of the state to collect accrued taxes.
(b) that “except for police or regulatory purposes”, no tax, license fee or excise shall hereafter be levied upon the privilege of selling, storing, or consuming tangible personal property or which is based upon or measured by the value of tangible personal property or improvements.
(e) that nothing in the proposal shall be construed as repealing or affecting the Motor Vehicle Fuel License Tax Act or the Use Fuel Tax Act, nor, except as specifically provided, shall anything in the proposal be construed as repealing, modifying or otherwise affecting or prohibiting the continuation or reenactment of existing license taxes or fees, corporation taxes, inheritance taxes, or income taxes, or existing constitutional tax exemptions, or as forbidding the imposition of severance taxes.
(d) that the proposal shall not affect the obligations of any county, city and county, municipality or district, and shall be deemed inoperative to the extent that any bonds or other outstanding obligations specifically require the imposition of taxes upon tangible personal property or improvements.
(e) that this amendment does not repeal or modify that provision of section 15 of this article requiring that out of state revenues there shall be first set aside the moneys for the support of the public school system and state university.
(f) that the provisions of the proposal shall control in any case of conflict with any other provision of the Constitution.

The circulation title, prepared by the attorney-general, and challenged in these proceedings reads as follows: “TAXATION'. Initiative Constitutional Amendment. Repeal limitation on ad valorem property taxes for State appropriations. Prohibits increasing present assessed valuation of improvements and tangible personal property; annually reduces tax rate thereon and exempts same from taxation in nine years, except for regulation; existing tax rate limitations becoming inoperative proportionately as necessary to offset such reductions. Exempts from taxation $1000.00 of assessed improvements on land occupied by owner as home. Limits tax moratoriums to improved property in one parcel and ownership having assessed valuation not exceeding $5000.00. Repeals specified Sales, Use and Private Car Taxes.”

In the Kornmann petition it is alleged that the proposed initiative measure is violative of the Constitution in that it does not present a single, comprehensive measure to be voted upon by the electors, but contains several proposed amendments and the repeal of four general laws which cannot be voted on separately by the electors. It is contended that the provisions of article XVIII, section 1, of the Constitution providing that in the case of constitutional amendments proposed by the legislature that ‘ ‘ Should more amendments than one be submitted at the same election, they shall be so prepared and distinguished, by numbers or otherwise, that each can be voted on separately” are applicable to amendments proposed under the initiative process. Little need be said in reference to this contention. The point has heretofore been fully considered by this court, and decided adversely to the contentions of petitioner. (Wright v. Jordan, 192 Cal. 704, 711 [221 Pac. 915].) That case expressly held that the provisions of article IV, section 1, relating to the initiative were not limited by the provisions of article XVIII, section 1. The argument of petitioner that that case should be overruled is not convincing. We are satisfied with the correctness of the prior decision.

The other contentions of both petitioners are that the title is fatally defective in that:

1. It fails to disclose that the proposal not only repeals certain tax statutes, but places in the Constitution a prohibition against the levying in the future for revenue purposes of any tax, excise, or license fee upon the privilege of selling, storing, using, or consuming tangible personal property or which is measured by the value of tangible personal property or improvements.
2. It fails to disclose that the proposal repeals the Motor Vehicle License Fee Act and prohibits its reenactment.
3. It fails to disclose that other taxes are indirectly repealed.
4. In that the title states that the tax rate on improvements and tangible personal property is to be “annually reduced” for nine years—that this statement is untrue; that no annual reduction is in fact granted; that all that is granted is an adjustment of such tax rate in relation to the rate on land.
5. In that the proposal not only limits the granting of tax moratoriums to certain property, as disclosed by the title, but provides that no extension of time for the payment of taxes shall extend to any class of property except improved property in one parcel and ownership of an assessed value not exceeding $5,000.
6. In that the title fails to disclose that the proposal contains definitions of certain terms.
7. In that the title fails to disclose that the proposed measure shall control if in conflict with any other provisions of the Constitution.
8. In that the title fails to disclose that the provisions of the proposed measure vitally affect the taxing power of every county, city and county, municipality and district, in the state.
9. In that the title fails to disclose that the chief purpose of the measure is to tax land to the exemption of personal property and improvements.

We do not find it necessary to take up each of the-above objections seriatim in order to demonstrate why the failure to mention them in the title does not render the title defective. It must be remembered that all the Constitution or Political Code require is that the title shall be a ‘‘ summary of the chief purpose and points of said proposed measure”. A substantial compliance with this section is all that is required. (California Teachers’ Assn. v. Collins, 1 Cal. (2d) 202 [34 Pac. (2d) 134].) For the preparation of this title and summary the only rule provided by law is that it must not exceed one hundred words. What the “chief purpose” or “points” of a measure is obviously many times a question of opinion. If reasonable minds can differ as to whether a particular provision is or is not a “chief point” of the measure the determination of the attorney-general should be accepted.

In reading over the proposed measure it is obvious that its “chief purpose and points” are to repeal existing constitutional tax limitations on real property, to progressively abolish taxes on tangible personal property and improvements, to repeal provisions of the Constitution which now prohibit this, and to repeal certain taxes, chief of which is the sales tax. The other provisions of the proposal are subsidiary or auxiliary to this chief purpose and to these points. In reading over the title here challenged it is obvious that the chief purpose and points above mentioned are fully set forth. The title also includes many other references to various provisions of the proposal. Evidently the attorney-general believed they were important. It might well be that the title as drafted includes references to some provisions which to some might seem subsidiary and auxiliary, and that it fails to mention other matters which to others might seem of considerable importance. However, we are not permitted to keep this proposal from the ballot upon any such ground. We are called upon to decide simply whether within reasonable and fair limits, so as to protect the electorate from imposition, the title discloses the chief purpose and points of the proposed measure. As we have seen the title does this. The fact that it includes some matters which are auxiliary and subsidiary, and fails to mention others of the same character does not render the title fatally defective. A mere reading of the many objections to the title raised by petitioners indicates that it is their belief that the title must include a complete index of all of the provisions of the proposal regardless of whether such provisions are main provisions or are auxiliary and subsidiary thereto. To do this within the limits of one hundred words would be palpably impossible. We have carefully read each of the nine objections raised by petitioners to the present title and while several of these embody some very important matters, we think that all of them are subsidiary and auxiliary to the chief purpose and points of the proposal as heretofore set forth. No useful purpose would be served by considering each of them separately.

For the foregoing reasons the alternative writ heretofore issued is discharged, and the peremptory writ is denied.


text:
    [S. F. No. 16112.
    In Bank.
    August 31, 1938.]
    EDWARD D. VANDELEUR, Petitioner, v. FRANK C. JORDAN, Secretary of State, etc., Respondent.

      Clarence E. Todd and Henry C. Todd for Petitioner.
    U. S. Webb, Attorney-General, and Robert W. Harrison, Chief Deputy Attorney-General, for Respondent.
    Darwin Bryan for Intervener.
   THE COURT.

Petitioner, a qualified elector and taxpayer of the city and county of San Francisco, seeks a writ of mandate directed to the Secretary of State commanding him (1) to refrain from submitting a certain purported initiative measure to the electors of the state, and (2) not to certify the measure to the registrars of voters and county clerks of the state. Proponents of the proposal, pursuant to permission of the court, have intervened in the proceeding.

The measure which petitioner seeks to keep from being submitted to the voters at the next general election is a proposed initiative act. It is signed by the requisite number of qualified electors of the state and has been filed with the Secretary of State within the time entitling it to be submitted at the November election.

Petitioner’s sole contention is that the proposed statute should be kept from the ballot because the circulation title of the measure appearing upon each page of the initiative petition whereon signatures appear, does not contain a summary of the chief purpose and points” of the proposed law as required by the provisions of article IV, section 1 of the Constitution and section 1197b of the Political Code.

In the cases of Kornmann v. Jordan, S. F. No. 16098, ante, p. 61, and Epperson v. Jordan, S. F. No. 16101, ante, p. 61 [82 Pac. (2d) 445], this day decided we had occasion to review the constitutional and statutory provisions here involved. In that decision it was held that in passing upon the legal sufficiency of the attorney-general’s title, all presumptions are in favor of the propriety of his actions and that if reasonable minds may differ as to whether the title contains a “summary of the chief purpose and points” of the proposal, the title so prepared must be held to be legally sufficient. Auxiliary and subsidiary matters need not be included in the title.

The proposed statute here involved is quite long. Its provisions cover four and one-half legal size pages single spaced. No useful purpose would be served in analyzing in detail each of its provisions. Section 1 states, in detail, the proponents’ analysis of the existing labor problem, and the proponents’ views as to the abuses now existing in reference thereto. Section 2 defines some 13 different terms, including the terms “labor organization”, “coerce” or “coercion”, and “intimidate” and “intimidation”. Sections 3, 4 and 5 prohibit certain types of picketing as fully set forth in these sections. Section 6 permits a defined type of picketing under the circumstances set forth in the section. Section 7 prohibits the display of banners under certain defined circumstances, while section 8 prohibits the utterance of certain language as set forth in this section. Section 9 prohibits conspiracies or agreements between two or more persons affecting the disposition of another’s goods, while section 10 contains certain exceptions to section 9. Section 11 makes it a just cause for dismissal for any employee to refuse to work for the reason, in whole or in part, that an industrial controversy exists. Section 12 makes it unlawful for any employee or labor organization to intimidate or coerce any other person to join or refrain from joining, or to remain, or to cease to remain a member of any labor organization, and makes certain other acts unlawful. Section 13 states that the act does not prevent employees from voluntarily striking, or otherwise terminating their employment. Section 14 makes it unlawful to block or impede any public place or lawful access thereto or any exit or approach to any place of business so as to interfere with any person entering or leaving such places. Section 15 makes it' unlawful for any person to cause the driver of any vehicle to slow down or stop with intent to induce the driver of such vehicle to refrain from entering or leaving any place of business, or from seeking and leaving employment, etc. Section 16 prohibits the seizure of any piúvate property as a means of forcing a settlement of a labor dispute. Section 17 prohibits conspiracies to violate certain provisions of the act, while section 18 makes violation of certain provisions of the act a crime. Section 19 gives any person injured by a violation of the act a civil action for damages. Section 20 confers jurisdiction upon the superior courts to prevent and restrain violations of the act and confers certain powers and duties upon the district attorneys in connection with enforcement of the act, while sections 21-24 regulate the circumstances under which preliminary restraining orders and injunctions shall be granted, and what shall be done in ease of violations of such orders. Section 25 repeals all statutes or portions of statutes in conflict with the proposal, while section 26 contains the usual severability clause, with a specific provision that certain enumerated sections are intended to be severable.

The circulation title prepared by the attorney-general, and here challenged, is as follows: “LABOR, Initiative. Defines what constitutes lawful and unlawful picketing, boycotting and display of banners. Prohibits seizure of private property, coercion, intimidation, obstruction or interference with use of public highways, streets, wharves, docks, and other public places, use of abusive or misleading statements or threats of violence, and certain other acts in connection with labor disputes and other industrial controversies. Recognizes the right of employees to strike and bargain collectively. Provides for civil damages and prescribes criminal punishments and penalties for and judicial procedure to prevent and enjoin violations thereof. Repeals all laws conflicting therewith.”

Petitioner challenges this title solely on the grounds that it fails to disclose that the terms “labor organizations”, “coerce” and “coercion”, “intimidate” and “intimidation”, are defined in the act, and that the definitions there contained are “new” and “revolutionary”. It is quite obvious from a reading of the title that it does set forth with clarity, considering the length and complexity of the measure, a “summary of the chief purpose and points” of the proposed statute. The fact that The title fails to indicate that certain terms are defined in the act, even though those definitions may be “new” definitions, in no way detracts from the legal sufficiency of the title. Such definitions are clearly auxiliary and subsidiary to the chief purpose and points of the proposal. What was said in the Kornmann and Epperson decisions, supra, concerning the legal sufficiency of the title there involved, is equally applicable here. On the authority of that decision, and for the reasons therein stated, it is held that the title here involved is legally sufficient.

For the foregoing reasons the alternative writ is discharged and the peremptory writ is denied.