text:
    [L. A. No. 17024.
    In Bank.
    August 3, 1939.]
    FRANCES E. LENAHAN et al., Appellants, v. THE CITY OF LOS ANGELES (a Municipal Corporation) et al., Respondents.

      Becker & Becker, Emanuel Becker and Abraham Becker for Appellants.
    Ray L. Chesebro, City Attorney, Leon T. David and Frederick von Schrader, Assistant City Attorneys, and Robert ■W. Anderson and Bourke J ones, Deputies City Attorney, for Respondents.
   SHENK, J.

This is a motion to dismiss an appeal on the ground that the same has become moot.

On the 14th day of July, 1938, there was filed in the office of the city clerk of the city of Los Angeles a recall petition containing approximately 120,000 signatures and demanding the submission to the electors of the city of Los Angeles of the question whether Frank L. Shaw, the mayor of said city, should be removed from his office and, if recalled, his successor be elected. Pursuant to the duties imposed upon him by the city charter, the city clerk examined the recall petition and ascertained and declared that it contained more than the requisite number of signatures of qualified electors of the city to require that the question be submitted to a vote of the people of the city. Under date of July 26, 1938, he filed a certificate to that effect with the city council. On August 23, 1938, the city council passed an ordinance calling a special election for September 16, 1938. The election was held on that day, resulting in a vote of 236,525 for, and 129,245 against the recall. The vote for the successor was 233,427 in favor of Fletcher Bowron, and 122,692 for Frank L. Shaw. Upon a canvass of the returns the city council, at its meeting of September 23, 1938, declared Frank L. Shaw recalled and Fletcher Bowron elected as mayor.

On August 23, 1938, the plaintiffs brought this action to enjoin the defendant city officials from calling or conducting the recall election. On August 31st, the city attorney, on behalf of the defendants, moved the trial court to strike the complaint from the files and quash the service of summons on the ground that the court had no jurisdiction of the subject-matter of the action. The motion was granted. On September 6, 1938, the plaintiffs herein applied to this court for the writ of mandamus to compel the superior court to assume jurisdiction of, or proceed with, the injunction suit. The application was denied on September 8, 1938, for the obvious reason that the election would be held long before final action could be taken in the mandamus proceeding. (Lenahan et al. v. Superior Court, S. F. No. 16119.) The plaintiffs appeal from the order granting the motion to strike and to quash, and, by bill of exceptions settled and filed on November 23, 1938, assign error on the part of the trial court in granting the motion.

The plaintiffs sought to enjoin the election on the grounds: 1.—That some of the sections of the recall petition did not have attached thereto the affidavit of the circulator that the signatures thereon were obtained in his presence; that the sheets of some sections were not fastened together at the time the signatures were appended thereto; that the clerk certified signatures of signers who- were not qualified electors of the city; that signatures were obtained by persons other than the ones making the required affidavits; that persons were induced to sign by reason of alleged false statements of those obtaining such signatures, and that many of the signatures were forgeries. 2.—That signatures on said recall petition were obtained pursuant to contracts made with persons who contracted to secure signatures for compensation, and that this method of obtaining signatures is against public policy and rendered the petition invalid. 3.—That the clerk was guilty of a dereliction of duty in that he employed incompetent and unreliable help in checking the recall petition ; that the clerk was guilty of arbitrary rulings in passing upon questioned signatures; that dates of signatures were not affixed at the time of signing, and that signatures were obtained more than six' months prior to the date of filing the recall petition. All of the foregoing was alleged to have been contrary to the requirements of the law governing the action of the city authorities in the premises. By a fourth count an attempt was made to set forth a cause of action for declaratory relief. But the declaratory relief provided for in section 1060 of the Code of Civil Procedure does not apply to a situation such as here presented. (Dietz v. Zimmer, 231 Ky. 546 [21 S. W. (2d) 999].)

The trial court entered an order in its minutes granting the motion of the defendants to strike the complaint, to quash the service of summons and to quash an order to take depositions. No judgment for costs or otherwise was entered.

The defendants suggest that the order granting their motion ' is not an appealable order, but they do not urge the point. For present purposes only it will be deemed a sufficient final disposition of the cause to justify the appeal sought to be dismissed.

It appears beyond question that every act sought to be enjoined has actually taken place. The election has been '"held and it is not even intimated that any of the alleged 1 deficiencies or irregularities in the presentation and certification of the recall petition prevented a full and fair vote at the recall election. The result of the election was duly canvassed and declared. The elected mayor assumed his office and has since been functioning as such. A reversal of the order would vest the trial court with no justiciable controversy in this action for the reason that what was sought to be enjoined has already been done. The nature of the action was such that when the injunetive< relief therein sought was rendered inappropriate and ineffective, any further consideration of the cause as an action in injunction would be unavailing. In other words, when the event which it was sought to enjoin, that is, the election, had taken place, the remedies of the plaintiffs were removed from the field of injunctive relief and were relegated to such remedies, if any, as they might have and avail themselves of subsequent to the election. Certainly they may not, after the election has been held, still urge a court to stop it.

The foregoing conclusions are in harmony with the provisions of the Los Angeles city charter, and are supported by authorities in this state and elsewhere.

The recall of elective officers of the city of Los Angeles is provided for in sections 290 to 299 of the city charter. (Stats. 1925, p. 1117 et seq.) Subdivision (b) of section 290 provides: “The provisions of this article [article XXVII] relating to the form and to the mode of signing initiative petitions, and to the filing, examination, certification and amendment thereof, and to the presentation of the same to the Council, shall apply to any petition filed with the City Clerk under this section, which petition shall be designated as a recall petition. The sufficiency or insufficiency of any recall petition shall not be subject to review by the Council.” Section 273 of the same article provides for the form and the mode of signing initiative petitions, and to the filing, examination, certification and amendment thereof and to the presentation of the same to the council. That section also provides that the sufficiency or insufficiency of such initiative petitions shall not be subject to review by the council. It also contains the following provision: “After an election based on any initiative petition, the sufficiency of such petition in any respect shall not be subject to judicial review or be otherwise questioned. ’ ’

There would seem to be every reason for the incorporation by reference of the sentence last quoted into the recall provisions of the charter. Whether this is done from the standpoint of strict construction may be questioned. However, the law generally supplies the reason and the authority for applying the same rule to a recall election as is applicable to an election under the initiative provisions of the charter.

In this state the case of Bradley v. Voorsanger, 143 Cal. 214 [76 Pac. 1031], would seem to be directly in point. There, as here, a taxpayer sued to enjoin the holding of an election. The defendants had judgment and the plaintiff appealed. Pending the appeal the election was held. A motion to dismiss the appeal on the ground that there was then no substantial controversy between the parties and that the appeal presented merely a moot question was' granted. It was held that no judgment which could be rendered upon the appeal would afford the plaintiff any relief. (See, also, Campbell v. Superior Court, 126 Cal. App. 652 [14 Pac. (2d) 925].) In Johnson v. Dosland, 103 Minn. 147 [114 N. W. 465], an appeal was taken from a judgment in favor of the eontestee candidate. The election was held and the eontestee was declared elected. The court on its own motion dismissed the appeal on the ground that a reversal of the judgment would avail the appellant nothing, and that, since the election had been held, the questions presented by the appeal had become moot. (See, also, State v. Duncan, 333 Mo. 673 [63 S. W. (2d) 135] ; People v. Emmerson, 333 Ill. 606 [165 N. E. 217].)

The plaintiffs contend that the question is not moot because a consideration of the merits of the appeal would be of value to the litigants and particularly because it would tend to insure adherence to legal procedure hereafter. It is also insisted that a dismissal would be equivalent to an affirmance of the judgment. A sufficient answer would seem to be that the time of the court should not be engaged in resolving abstract questions not directly affecting the rights of the parties, and, secondly, that there is no judgment on the merits on which a dismissal of the appeal would operate as an affirmance. The merits of the plaintiffs’ alleged causes of action were not passed upon by the trial court, nor are the merits thereof determined here. A dismissal of the appeal in no way places the stamp of approval on the alleged infractions of asserted requirements of the law in bringing about the election. All that is now decided is that the controversy which the plaintiffs attempted to raise by the filing of their complaint for an injunction has, by reason of the subsequent election, faded into insubstantiality.

The motion is granted and the appeal is dismissed.

Ourtis, J., Houser, J., Nourse, J., pro tem., and Waste, C. J., concurred.

Rehearing denied.


source: Caselaw Access Project

author: SHENK, J.

license: Public Domain

text:
    [L. A. No. 17043.
    In Bank.
    August 3, 1939.]
    In the Matter of the Estate and Guardianship of BARTOLOMEO MORRO, an Incompetent Person. MARTHA MORRO et al., Appellants, v. DOMINIC MORRO et al., Guardians, etc., Respondents.

      Dan M. Critchley and J. M. Hodgson for Appellants.
    Ralph W. Evans and Alan G. Campbell for Respondents.
   SHENK, J.

This is a petition for a writ of supersedeas to stay the enforcement of an order directing execution and delivery by the appellants of a certain grant deed pending appeal from said order.

On September 30, 1937, Dominic Morro applied to the Superior Court in Los Angeles County for the appointment of himself as guardian of the person and estate of Bartolomeo Morro, an alleged incompetent. His petition showed that the alleged incompetent’s estate consisted of two parcels of land in the county of Los Angeles and one parcel in Tulare County, title to which was held in the name of Martha Morro, a daughter of the incompetent, and that said Martha Morro also had in her possession the sum of $3,250 belonging to the incompetent; that there were pending in the Superior Court of Los Angeles County two actions, Nos. 420565 and 420568, brought by Bartolomeo Morro as plaintiff against Martha Morro, whereby he sought to recover title to the real property and a judgment for the moneys hereinabove mentioned.

Martha Morro and another daughter, Madeline Rowe, contested the appointment sought by Dominie Morro. The matter was heard before the court sitting in probate.

On October 25, 1937, a minute order was entered declaring Bartolomeo Morro incompetent and the owner of the real and personal property referred to, and appointing Mrs. Madeline Rowe and Albert Morro guardians of the estate of the incompetent, and Dominic Morro guardian of his person. Pursuant to stipulation the court also ordered guardians Madeline Rowe and Albert Morro to accept on behalf of the incompetent an offer to transfer $2,400 cash and deeds to the three parcels of real property to be executed by Martha Morro and Madeline Rowe.

On December 23, 1937, an order appointing the persons named as guardians was entered. That order incorporated the foregoing provisions of the minute order and directed conveyance of the real property and delivery of the sum of $2,400 by Martha Morro and Madeline Rowe.

Subsequently, Martha Morro moved to set aside the order of December 23, 1937; but the motion was denied on the ground that the order was a consent decree.

On June 2, 1938, the court granted the application of Dominic Morro and Albert Morro as guardians for an order compelling compliance with the order of December 23, 1937. Finally, upon application of the guardians, the court on September 29, 1938, made its order directing the manner of compliance with its order of December 23, 1937, namely, that said Martha Morro and Madeline Rowe execute a grant deed of the property involved running to “Bartolomeo Morro, an incompetent”, as sole grantee, and that they deliver the same to Albert Morro as guardian of the incompetent’s estate. Martha Morro and Madeline Rowe have appealed from the order of September 29, 1938, on the ground that the court had no power to compel compliance with its order of December 23, 1937, which, it is contended, was beyond its jurisdiction and void.

Subsequently and in December, 1938, upon the application of Albert Morro, the superior court issued its order directing Martha Morro and Madeline Rowe to show cause why a commissioner should not be appointed to execute the grant deed conveying said real property to the incompetent and deliver the same to Albert Morro as such guardian. It is the foregoing order which the appellants are seeking to have stayed pending their appeal from the order of September 29, 1938.

The appellants have not complied with section 944 of the Code of Civil Procedure which provides: “If the judgment or order appealed from, direct the execution of a conveyance or other instrument, the execution of the judgment or order cannot be stayed by the appeal until the instrument is executed and deposited with the clerk with whom the judgment or order is entered, to abide the judgment of the appellate court.”

The question of the validity of the order of September 29, 1938, or of the order of December 23, 1937, is not of concern on this application. That question will be considered with the merits of the appeal.

The appellants have presented no good reason why they have not complied with the requirements of said section 944. The writ of supersedeas will issue only where a stay is not provided by statute, or, if a statutory stay be provided, sufficient reason appears why the appellants have not perfected the stay in accordance therewith. (Segarini v. Bargagliotti, 193 Cal. 538 [226 Pac. 2] ; Foster v. Fernandes, 200 Cal. 274 [252 Pac. 726] ; Rosenfeld v. Miller, 216 Cal. 560 [15 Pac. (2d) 161] ; Julian v. Schwartz, 2 Cal. (2d) 280 [40 Pac. (2d) 818].) In this case the appellants’ failure to comply with the applicable statutory requirement is not shown to be excusable. In such a case the writ will be denied. (Willis v. Paul, 116 Cal. App. 733 [3 Pac. (2d) 339].)

The writ is denied and the order to show cause heretofore issued is discharged.

Edmonds, J., Curtis, J., and Houser, J., concurred.


author: YORK, J., pro tem.

text:
    [Crim. No. 4224.
    In Bank.
    August 3, 1939.]
    THE PEOPLE, Respondent, v. VIRGILIO SPINELLI, Appellant.

      A. P. Coviello for Appellant.
    Earl Warren, Attorney-General, and Eugene M. Elson, Deputy Attorney-General, for Respondent.
   YORK, J., pro tem.

The appellant, Virgilio Spinelli, also known as William Spinelli, was charged in an information filed by the district attorney of Los Angeles County with the crime of murder, the charge being that on or about December 12, 1938, he did “wilfully, unlawfully and feloniously and with malice aforethought murder one Rose Spinelli, a human being”.

Appellant entered a plea of “not guilty” to the charge, as well as a plea of “not guilty by reason of insanity”. He was thereafter tried by a jury which returned its verdict finding appellant guilty of murder, as charged in the information, and finding the offense to be murder in the first degree without any recommendation for mercy. Trial was then had upon the issue of insanity, the jury duly returning its verdict finding appellant sane at the time of the commission of the offense charged in the information. Motion for new trial was made and denied, and judgment was thereafter pronounced and appellant sentenced to the state’s prison to be there put to death in the lethal gas chamber.

This cause comes to this court upon an automatic appeal from such judgment, as well as from the order by which appellant’s motion for a new trial was denied. The briefs filed herein are appellant’s opening brief and respondent’s reply thereto, no closing brief having been filed on behalf of appellant, but the matter was argued before the court.

Appellant raises three points upon this appeal, namely: (1) Alleged insufficiency of the evidence to support the judgment; (2) Alleged error of the court in instructing the jury; (3) Alleged error by the court in the admission and rejection of evidence.

Appellant raises no question as to the propriety of the jury’s finding as to his sanity upon his plea of “not guilty by reason of insanity”.

The evidence adduced at the trial, omitting some of the more sordid details the recital of which would serve no useful purpose upon this appeal, shows the following facts: On December 12, 1938, and for about twenty years prior thereto, appellant and his wife owned and lived upon the property known as 305 North Mountain View Avenue in the city of Los Angeles, and during several years prior to that date had been having serious domestic difficulties, appellant and his wife occupying rooms in different ends of the house upon the said property. On the said date, and for about three weeks immediately prior thereto, appellant and his wife together with their son, William Spinelli, Jr., were the sole occupants of this house. There were five children the issue of this marriage, three girls and two boys, and it is admitted that one of the causes of the trouble between appellant and his wife was the incestuous relations between appellant and at least one of his daughters.

The deceased met her death on the morning of December 12, 1938, and on or about the twenty-first day of the same month, appellant was arrested and charged with her murder.

Appellant in his opening brief makes the point that he “gave a confession or statement to the police in which he admitted striking the deceased two blows in the head with a hatchet, as a result of which she died. He further stated that while he was lying on his bed in his front bedroom the deceased came into the room and struck at his head with the hatchet, inflicting a three-inch wound on his forehead. He partially parried the blow with his hand and at the same time kicked out and struck her in the chest or stomach, causing her. to fall over backward in a sitting position. That he then snatched the hatchet from her and struck her in the head twice.” It is the contention of appellant that this statement which he made to the police officers soon after his arrest on December 21, 1938, discloses a justifiable homicide.

Said statement, as it appears in the record, is in part as follows: “I laid down on the bed and she hit me over here (indicating head). I threw up my hands and I grabbed for the hatchet and I kicked her in the stomach and she fell down and I got up and hit her two times in the head. Q. With what1? A. With the hatchet. I hit her two times in the head while she was laying down. I hit her two times and she was on her face like that and I went back to the bed and I was plenty blood, no use to lie. ’ ’ He then stated that he left the house and had the wound in his forehead dressed by a doctor, secured some food for himself and returned home where he dismembered the body and reduced it to ashes by piling portions of it with wood in a ditch which had been dug in the back yard and used as an incinerator. Such remains were thereafter strewn by appellant in deep ruts in the driveway leading into the said property, where certain dental bridgework, a wedding ring and some fragments of bone were later found. There was therefore no way of finding out by an examination of the body of deceased what actually caused her death.

For a long period of time appellant had done nothing toward the support of himself, his said wife or his family, and so far as the record reveals, he was entirely supported by his wife, who was employed doing housework for one of the neighbors, together with some assistance from his children.

The only point made by appellant that is worthy of consideration is that the facts in evidence bring this case within a certain quoted portion of the opinion written by Mr. Chief Justice Waste in People v. Howard, 211 Cal. 322 [295 Pac. 333, 71 A. L. R. 1385], at 329, it being the contention of appellant that the only evidence before the jury was that the decedent was the aggressor in a quarrel which led up to the homicide, and that there remains no evidence from which it might reasonably be deduced that the killing was the result of a wilful, deliberate and premeditated intent to kill, appellant contending, as in the cited case, that there is a dearth of evidence tending to show conditions as they existed at the time of the homicide and from which it might reasonably be held that the murder was, in fact, wilful, premeditated and intentional.

Although it is true that appellant was the only witness to the crime, nevertheless, under all the facts and circumstances disclosed by the record, the circumstantial, if not the direct, evidence is sufficient to justify the jury in determining that the murder was premeditated, wilful and intentional. It is quite improbable that appellant would have used the terrible means he did in disposing of his wife’s body, unless he had actually intended to murder her, and unless the act was wilful and premeditated; in fact, she may not have been actually killed until appellant cut off her head. Appellant destroyed all physical evidence as to the exact manner in which he accomplished the death of his wife, but both his acts and his statements which were made after he killed her were sufficient to justify the jury in finding that the crime was murder in the first degree. His attempt to besmirch her character by stating that she had gone off with another man, and his act-in getting his son to write a letter to that effect, which appellant thereafter sought to pass off as his wife’s handwriting, together with the brutal dismembering and destruction of his wife’s body, are all wholly inconsistent with his contention that he acted only in self-defense. The jury was completely justified in believing that he murdered his wife maliciously and that his malice against her continued long after her death.

It is also appellant’s theory that he could be found guilty of no greater crime than that of voluntary manslaughter, because all of the evidence tends to prove the decedent was the aggressor in the fatal affray. The evidence of the relations which existed between the husband and wife constitutes a sufficient basis for the jury’s determination that the murder was in fact wilful, premeditated and intentional. The testimony of appellant alone completely repudiates the theory or belief that the killing was committed by him in self-defense. He admits that he killed his wife while she was lying upon the floor in an unconscious condition by hitting her on the back of the head in at least two places. The fact that he was a small man and she was a large woman would be inadequate as a justification for the deliberate killing as testified to by appellant himself.

A similar situation was before this court in People v. Johnson, 203 Cal. 153, where it is stated at page 164 [263 Pac. 524] : “As to the argument that no malice on the part of the defendant, which is a necessary element or ingredient of murder of the first degree, was shown by the case presented and, therefore, the penalty fixed by the jury cannot stand, it is sufficient to say, that the duty of affixing the penalty in murder cases of the first degree is, by section 190 of the Penal Code, committed to the sound discretion of the jury trying the case. Malice, as defined by section 188 of the Penal Code, may be express or implied. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. Again these are questions which it is the province of the jury to determine. The ruthless disposition of the body of the deceased, following the killing, certainly is some evidence as to an abandoned or malignant heart upon the part of the slayer. However this may be, section 1105 of the Penal Code provides that ‘the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable’. The defendant offered no proof to meet the burden which the law casts upon him and as there was no claim of justification or excuse offered for the killing of decedent or pretense that the proof tended-to show that the crime committed only amounted to manslaughter, the crime was murder of the first degree.”

Appellant contends that the trial court “committed prejudicial error in instructing the jury that if an assailant has fallen to the floor and the danger of great bodily injury to the defendant has been removed, if the defendant thereafter strike a fatal blow upon his assailant such blow is not justified”; urging that this was an instruction as to a matter of fact and as such was an invasion of the province of the jury. An analysis of the instruction complained of discloses that it contains a qualifying clause, and that it is only ‘1 where the circumstances are such as to justify a defendant in striking his assailant in self-defense and such assailant has fallen to the floor and the danger of great bodily injury to the defendant has been removed”, that the defendant is guilty of felonious homicide if he thereafter strikes a fatal blow upon the body of his adversary. It is perfectly obvious that there is nothing objectionable in the wording of this instruction. The rights of appellant were fully protected by the trial court, and the particular instruction hereinbefore referred to, together with the other instructions which were given upon the subject of self-defense, correctly stated the law of the case.

Appellant finally urges that the verdict was the result of passion and prejudice, contending that “the incestuous relations could not possibly have been the motive for the killing, and that the only purpose which any and all remarks or testimony produced on the part of the district attorney in connection with the said alleged incest was for the purpose of creating prejudice and bias in the minds of the jury”.

There is ho merit in this contention. It was a necessary fact to show the real reason for the commission of the murder. The statement or confession of appellant himself discloses that many of the quarrels between appellant and decedent resulted from the fact that decedent knew that appellant was having an incestuous relationship with one of the daughters.

All of the facts and circumstances disclosed by the record in this case show a vicious, wanton and wilful murder of decedent by appellant. The jury was not only justified in bringing in its verdict of murder in the first degree without recommendation as to clemency, but it could hardly have brought in any other verdict.

Both the judgment and the order appealed from are affirmed.

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


author: THE COURT.

text:
    [L. A. No. 16511.
    In Bank.
    August 7, 1939.]
    MARTIN E. GEIBEL, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
    [L. A. No. 16510.
    In Bank.
    August 7, 1939.]
    CHARLES R. MORFOOT, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

      Charles R. Morfoot and Martin E. Geibel, in pro. per., and Joseph L. Lewinson, Morris E. Cohn and Franklin P. Bull for Petitioners.
    Philbrook McCoy for Respondent.
   THE COURT.

Petitioners Martin E. Geibel and Charles R. Morfoot seek to set aside our final judgment suspending them from the practice of the law. (Geibel v. State Bar, 11 Cal. (2d) 412 [79 Pac. (2d) 1073].) Their joint “Motion to Vacate and Set Aside Judgment” was ordered placed on the calendar and is now before us after oral argument. The contention is that all proceedings against them should be dismissed with prejudice for the reason that the recommendation of suspension made by the Board of Governors to this court was not by a majority vote of the entire board, as required by rule 34, Rules of Procedure of The State Bar (213 Cal. cxix), in that Alfred L. Bartlett, then president of The State Bar, was disqualified on the ground of interest.

Of the fifteen members composing the board, twelve were present when the charges against petitioners were considered. Eight, including Bartlett, voted that petitioner Geibel be suspended for three years, with the result that if Bartlett’s vote is not counted, the recommendation is not by the required majority of the entire board. Nine members, including Bartlett, voted for suspension of Morfoot for one year. But Morfoot contends that the proceeding is also defective as to him for the reason that the resolution of the board adopting the findings of fact made by the local committee as the findings of the board was by an eight to four vote, including the affirmative vote of Bartlett.

Rules 27 and 34, Rules of Procedure of The State Bar, when considered together, provide for disqualification of a member of the Board of Governors on the ground of interest. Although the provision is for challenge before introduction of evidence upon a hearing, it may well be contended that disqualification may be raised on discovery. (Cadenasso v. Bank of Italy, 214 Cal. 562, 570 [6 Pac. (2d) 944].) But as will hereafter appear the claim that Bartlett was disqualified by reason of the facts set forth in the present application has already been passed upon adversely to petitioners’ contention by this court on prior' applications relying on the same grounds of disqualification. As to Geibel, the present petition is the third urging disqualification. As to Morfoot, it is the second.

It should be remarked that the alleged disqualification, even if found, would not require a dismissal of all charges against petitioners, with prejudice. The disqualification of a member of the Board of Governors would not invalidate the prior proceedings before the local committee, nor require a further hearing before it, much less a dismissal of all charges. The most the petitioners could claim would be a remand to the board for a new recommendation by qualified members.

On May 25, 1938, this court, adhering to the recommendation of the Board of Governors, suspended petitioner Geibel from practice for three years, petitioner Morfoot for one year, and a third petitioner, Shelley, for one year. All three filed petitions for rehearing. Geibel also filed an affidavit on June 13, 1938, in which he averred that on June 11, 1938, he had discovered the disqualifying interest of Bartlett. In passing upon the petitions for rehearing on June 23, 1938, we reduced the period of suspension to one year for Geibel, and ninety days for Morfoot and Shelley. Shelley has not participated in the further proceedings and his period of suspension has long since expired. Execution of the order of suspension has been stayed as to Geibel and Morfoot.

On July 15, 1938, Geibel and Morfoot each filed a “Petition to Set Aside Judgment and Stay’’, attacking the qualification of Bartlett on the same grounds relied on in the present motion. These petitions were denied on July 21, 1938. On December 12, 1938, the Supreme Court of the United States denied petitions of Geibel and Morfoot for a writ of certiorari. (Geibel v. State Bar, 305 U. S. 653, 676 [59 Sup. Ct. 248, 361, 83 L. Ed. 423, 438].) Our order of denial was a determination contrary to petitioners’ contention that the judgment of suspension should be set aside by reason of the alleged disqualification of Bartlett. Said decision constitutes an adjudication that Bartlett was not disqualified. A determination as to the validity of a former adjudication is res judicata in a subsequent proceeding attacking it. (Lake v. Bonynge, 161 Cal. 120 [118 Pac. 535] ; Peterson v. Weissbein, 80 Cal. 38 [22 Pac. 56] ; 2 Freeman on Judgments, 5th ed., 1498; 15 Cal. Jur. 77, 103, 147.)

The action of this court taken by means of an order of denial is res judicata although no written opinion is filed. In Napa Valley Elec. Co. v. Railroad Com., 251 U. S. 366 [40 Sup. Ct. 174, 64 L. Ed. 310], the Supreme Court of the United States considered the effect of our order denying without written opinion a petition for writ of review upon a decision of the railroad commission. It was contended that since no writ of review had issued, the court “instead of hearing, refused' to hear, instead of adjudicating, refused to adjudicate, and that from this negation of action or decision there cannot be an assertion of action or decision with the estopping force of res judicata . . . ”. The opinion rejected this contention and held that the order of denial was the exercise of the judicial power of the court. By this decision the United States Supreme Court affirmed the judgment of the District Court (257 Fed. 197), wherein that court said:

“The contention by plaintiff that the ruling of the state court is not a proper predicate for invoking the doctrine of res judicata in that it is not a judgment ‘on the merits’, but purely a negative determination or refusal to assume jurisdiction, is unsound. We are bound to assume, if we accept the averments of the bill, that the petition put that court in full and complete possession of all the facts upon which it relies here . . . ; and that being true, the denial of the petition was necessarily a final judicial determination . . . based on the identical rights asserted in this court, and it was between the same parties. Such a determination is as effectual as an estoppel as would have been a formal judgment upon issues of fact. . . . Nor is it material that the reasons for the conclusion reached by the court are not given. ’ ’

In Southern California Edison Co. v. Railroad Com., 6 Cal. (2d) 737, 747 [59 Pac. (2d) 808], we referred to the effect to be attributed to our orders denying a writ of review without written opinion, citing the Napa Valley Electric Company case. The same effect must be attributed to our order denying the petitions to set aside judgment in the instant case.

Petitioners urge that since the orders entered following the filing of Geibel’s affidavit of June 13, 1938, and the petitions of July 15, 1938, were in terms orders denying rehearing, it must be presumed that the claim of disqualification was not passed on, in view of our rule that points may not be raised for the first time on petition for rehearing. The applications filed by Geibel and Morfoot on July 15, 1938, as brought to this court, were each entitled “Petition to Set Aside Judgment and Stay”, and were based squarely on the same claim of disqualification relied on in the petition now before us. The claims made in the affidavit of June 13, 1938, and in the petitions of July 15, 1938, were in fact considered, and our orders of June 23, 1938, and July 21, 1938, although in terms orders denying rehearing, completely and finally disposed of the claim of disqualification.

Since the oral argument on their motion based on disqualification petitioners have filed a “Supplemental Affidavit” in which they contend that the proceedings are void ab initio for the reason that the complaint against them was filed with The State Bar by Bussell B. Seymour, as trustee in bankruptcy of the estate of Frazier McIntosh, and Thomas S. Tobin, as attorney for said trustee. Their contention is that the order of the federal court adjudicating McIntosh a bankrupt is vpid, with the result that the order appointing the trustee is void, and the trustee and his attorney were without right to file the complaint with The State Bar.

This contention, if established, would not invalidate the proceedings before the local committee. If Seymour and Tobin had knowledge of acts requiring disciplinary action they could file a complaint as private citizens without reference to the validity of the order appointing the trustee in the bankruptcy proceeding. The local committee, of its own motion, without the filing of a complaint, may undertake an investigation of an attorney’s conduct. (Sec. 34, State Bar Act, 1 Deering’s Gen. Laws, (1937) 185.) The committee in all cases conducts a preliminary investigation and only thereafter issues an order to show cause upon which hearing is held. (Herron v. State Bar, 212 Cal. 196, 200 [298 Pac. 474].)

Furthermore, the matter which Geibel and Morfoot rely on as invalidating the adjudication of bankruptcy, and consequently the order appointing the trustee, clearly would not have that effect. It is contended that the adjudication is void for the reason that the petition of the creditor upon which it was based was insufficient. The creditor who filed the petition set forth indebtedness of McIntosh to it arising from McIntosh’s guaranty of notes held by it. Said petition did not allege directly that the notes remained' unpaid. The failure thus to allege clearly would not warrant a collateral attack, such as here made, on the entire bankruptcy proceeding. This was a mere omission in the petition which no doubt was supplied by evidence upon the hearing leading to the adjudication.

The motion to vacate and set aside judgment is denied.

Rehearing denied.


author: THE COURT. CURTIS, J. and EDMONDS, J., Dissenting.

text:
    [S. F. No. 16097.
    In Bank.
    August 7, 1939.]
    WILLARD D. PAINE, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

      Harry J. Bias, W. A. Deans and Bert B. Snyder for Petitioner.
    J. E. Gardner, Philip T. Boyle, Harry M. Parker, A. W. Sans, Gilbert B. Perry, Holland T. Maher, Anthony J. Franich, C. B. Taylor, Boy M. Sayre, Stanford G. Smith, John PI. Leonard, Paul W. Murray, Emmet L. Bittenhouse, Donald Younger, Benj. B. Knight, Francis B. Hall, Paul E. Cole-grove, James J. Scoppettone, Simon M. Collins, J. Frank Murphy, Geo. G. Graham, Lew W. Collins, Emmet C. Bitten-house, J. L. Johnston, J. L. McCarthy, B. H. Hudson and J. A. Wyckoff, as Amici Curiae, on Behalf of Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

On a reconsideration of this matter, we cannot conclude that the petitioner should be absolved from all discipline, as is so earnestly sought on petition for rehearing. On the record presented the petitioner should be subjected to some substantial discipline. We are persuaded, however, that the ends of justice will be subserved by the reduction of the period of suspension from two years to six months. Accordingly, the following portion of the opinion heretofore rendered is adopted and the period of suspension reduced as indicated:

“This is a petition to review a recommendation of the board of governors of The State Bar that petitioner be suspended from practice for two years.
“ The charges against petitioner were the making of false allegations in a petition to the probate court for compromise of a claim, and the procuring of a conveyance of property of the estate to another client without adequate consideration. The facts advanced in support of these charges were as follows: The decedent, Louis C. Bapetta, died intestate in 1934. His son and only heir at law, Clement S. Bapetta, received letters of administration. Petitioner was attorney for the administrator. The major part of the estate consisted of real property in Santa Cruz county, a certain parcel of which was a dairy ranch. This ranch had been mortgaged in 1931 to Harry Yon Bargen to secure a two-year note for $3,700. It was past due at the time of the decedent’s death.
“Shortly after the issuance of letters of administration, Yon Bargen called on petitioner to discuss the obligation. Petitioner asserts that the mortgagee demanded payment, though Yon Bargen denies this. Petitioner thereafter consulted another client, Mrs. Theresa Mattei, and advised her that the mortgage on the Eapetta property would be a good investment for her. Petitioner then states that he communicated with Yon Bargen requesting that he place the note and mortgage in escrow preparatory to Mrs. Mattel’s purchase of it; this Yon Bargen also denies.
“On October 29, 1934, petitioner prepared and filed a petition by the administrator to compromise a claim against the estate. In it he stated that Mrs. Mattei was the holder of the Yon Bargen note and mortgage; that she had made demand for payment; and that a compromise had been agreed upon whereby the property would be deeded to her in satisfaction of the mortgage. These statements were not true, for at that time Yon Bargen still owned the note and mortgage. The petition also contained a description of the property which included a small parcel not actually included in the mortgaged parcel. The petition was heard, its allegations found true, and the court ordered the execution of a deed of the property described to Mrs. Mattei as prayed. This was done. Some time later, O. D. Stocking, a real estate broker, informed Yon Bargen of the sale, and shortly thereafter petitioner paid Yon Bargen the money due him from the funds furnished by Mrs. Mattei.
“Charges were filed against petitioner before the local administrative committee by Stocking and Yon Bargen. The first letter to petitioner by the secretary of the committee, dated July 26,1935, declares that the substance of the charges was that the court’s order was made upon misrepresentations in the petition, and that ‘ attempts of C. D. Stocking to purchase said property as a real estate broker prior to said proceedings in said estate were frustrated by you’. After a preliminary hearing the matter was dropped. On October 27, 1937, more than two years later, a notice to show cause was issued by the committee, setting forth the same charges in more detail. Stocking and Yon Bargen were again the complainants. Another hearing was had. The report of the committee recites that Stocking 1 claimed to have been deprived of the privilege of bidding on the property or finding a purchaser therefor, stating that the property was worth much more than the amount of. the mortgage’. After reviewing the facts in detail, the committee found that petitioner was guilty of the false statements in the petition to compromise, and that the probate court had relied on them in making its order authorizing compromise; and ‘that the effect of the proceeding was to obtain for Theresa Mattei title to the real property without following the procedure prescribed by law applicable to sales in probate, thus depriving the estate of the safeguards provided by law relating to competitive bidding’. The committee concluded that he was guilty of professional misconduct and recommended a ‘public reproval’ by the board of governors. The proceeding came before the board of governors, and that body recommended that petitioner be suspended from practice for a period of two years.
“Throughout the proceedings petitioner conceded that, strictly speaking, the statements in the petition concerning the ownership of the note and mortgage were not true, but stated his belief that they were substantially true. He refers vaguely to the transaction as an ‘escrow’ in the sense that the negotiations were going forward under which Mrs. Mattei would pay the money and become the ‘equitable’ owner of the mortgage; and points out further that the facts were all known to the administrator and sole heir, and the transaction was entered into with his approval. With respect to the additional property deeded to Mrs. Mattei, petitioner contends that though it may not have been described in the mortgage it was considered by all parties to be a part of the mortgaged tract, and contained a water right appurtenant thereto. We need not dwell on these defenses because it seems clear that petitioner as a reasonably competent attorney must have known that these statements in the petition were not true. The specific charge of misleading the court by a false document was proved, and discipline was therefore warranted.
“There remains for consideration the extent of the disciplinary measures to be taken. Petitioner contends in his defense that the complainants in the proceedings had no legitimate interest in the matter; that the parties in interest made no complaint; that petitioner was not- shown to have benefited by the transaction; and that no one suffered any real injury. The local committee found: ‘Apparently no one has suffered any financial loss by reason of the transaction. The administrator who is also the son and only heir appeared in court at the time of final distribution and stated that he approved all acts of the respondent done in his behalf. C. D. Stocking brought the transaction to his attention, by letter, immediately after the order was made authorizing the compromise, but the communication was referred by Rapetta to the respondent. Rapetta has not made known any complaint which he might have. ’
“Nevertheless, the plan conceived by petitioner was unworthy of an ethical practitioner. Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense. ’ ’

It is ordered that the petitioner be suspended from the practice of the law for a period of six months from the date of the filing of this opinion and order.

CURTIS, J. and EDMONDS, J., Dissenting.

We dissent from that part of said order fixing the petitioner’s term of suspension at six months instead of two years as provided in our previous decision. The record in this case shows the petitioner to be guilty of a most serious offense. A suspension of two years as recommended by the Board of Governors of The State Bar cannot, under all the circumstances of this case, be considered too severe a penalty to be imposed for such an offense.


author: HOUSER, J.

text:
    [Crim. No. 4222.
    In Bank.
    August 15, 1939.]
    THE PEOPLE, Respondent, v. JOHN ADAMS, Appellant.

      R. H. Cantillon, John E. Glover and Gladys Towles Root for Appellant.
    Earl Warren, Attorney-General, and Prank Richards, Deputy Attorney-General, for Respondent.
   HOUSER, J.

From each of two judgments which were rendered against defendant pursuant to several verdicts by a jury to the effect that defendant was guilty of a violation of the provisions of section 288 of the Penal Code, defendant has caused to be presented to this court his appeal which originally was decided by the District Court of Appeal. Specifically, it was charged in the information upon which he was tried that defendant did “lewdly commit a lewd and lascivious act upon and with the body, members and private parts thereof, of one Cornelia-, who was then and there a female child ... of the age of five years ...” Defendant also appeals from the order by which his motion for a new trial was denied.

Although the child testified in great detail concerning the commission of the offense, an examination of her testimony, as it a/ppears in the reporter’s transcript thereof, reveals many discrepancies, inconsistencies and improbable statements in her story. Indeed, in various respects, her several incidental statements are directly contradicted by different apparently disinterested witnesses. In no essential particulars was the testimony of the child directly corroborated; and when the fact is considered that defendant emphatically denied each of the accusatory statements which was made by the little girl, the asserted errors that have been urged by appellant on this appeal, as constituting reasons that impel a reversal of the judgment that was rendered against him, assume a greater magnitude and present a most serious aspect.

The first complaint that is made by appellant relates to erroneous admission of evidence against defendant. It appears that in the redirect examination of the mother of the child, she was permitted to repeat 'the substance of an asserted conversation which had taken place between her and the child relative to former similar conduct toward the child by defendant, which assertedly had occurred about two years prior to the alleged commission of the instant offense, at a time when the child was only three years old. That incident of the trial is disclosed by the following excerpt from the record, to wit:

“Q. By Mr. Ferguson: Will you tell us what, if anything, Cornelia told you on a prior occasion? A. Cornelia was so small; I was sitting her on the toilet in the bathroom and she said that John Adams had taken his hand and put it on her body, as she called her privates. And I asked her how John was dressed and she said he was in his pyjamas. But Cornelia wasn’t more than three years old at the time and I just—children always follow you around the house and into the bath room, and I paid no further attention to it.”

When the child was on the witness stand, she expressed her inability to remember any such occurrence. It is obvious that to permit the mother to repeat either the details or the substance of such a narrative constituted the admission of asserted facts which were most damaging to defendant, and which were hearsay in character. That such evidence was detrimental in character, and that it was admitted in violation of the rule which ordinarily obtains with relation to criminal actions, require the citation of no authority to sustain the claim of prejudicial error. However, in the case of People v. Ewing, 71 Cal. App. 138, 142 [234 Pac. 917], the defendant was charged with the offense denounced by section 288 of the Penal Code. There also the mother testified to the alleged misconduct of the defendant which she said had been related to her by her child, shortly after the alleged offense had taken place. The court there said: 1 ‘ The rule is that in prosecutions of this character proof of complaint of the act while it is recent may be shown by the prosecutrix and also by the person to whom the complaint was made. While such evidence is in the nature of hearsay, its admission is justified upon the ground that in such cases, when restricted to the fact of complaint alone, it is in the strictest sense original evidence. The rule also applies to complaint on the part of one under legal age, there being no distinction between cases where there was actual resistance and those in which nonconsent is inferred (People v. Baldwin, 117 Cal. 244, 251 [49 Pac. 186] ; People v. Wilmot, 139 Cal. 103 [72 Pac. 838].) Here, however, the original statement made to the mother was one not in the nature of a complaint, but was elicited from the child only after a spanking had been administered to her, and later, and after the mother had interviewed defendant, the further declaration was made by the child inculpating him. ’ ’ The court proceeded to say: “This is not the character of complaint contemplated by the rule. It is purely hearsay, and the rule does not extend to the details of the acts complained of. The cross-examination of Mrs. Wells upon this subject did not justify the admission of this incompetent evidence, and it was no more admissible on redirect examination than it would have been in chief. (Wagner v. People, 30 Mich. 384; State v. McDonough, 232 Mo. 219 [134 8. W. 545]; People v. Flaherty, 162 N. Y. 532 [57 N. E. 73] ; 4 Wigmore on Evidence, sec. 2119.) The error is even more apparent when it is considered that the child was not sworn, she being incompetent as a witness. Hearsay evidence cannot be given of the declarations of a child who has not the capacity to be sworn, nor can such child be examined in court without oath. (4 Blackstone’s Commentaries, c. 15, sec. 3.) There can be no doubt but what the admission of this evidence constituted. error; ...” (Emphasis added.) See, also, to the same effect: People v. Mayes, 66 Cal. 597, 599 [6 Pac. 691, 56 Am. Rep. 126]. In the case entitled People v. Guiterez, 126 Cal. App. 526, 529 [14 Pac. (2d) 838], it also was said: “It is conceded that the person to whom a child, who is too young to become a competent witness, has made complaint concerning a recent assault upon her, may testify regarding the fact that such complaint was made . . . But this rule does not authorize the hearsay statement of circumstances concerning the attack which may have been related by the child. It is said in the Ewing case, supra : ‘ The rule does not extend to the details of the acts complained of.’ In the present case the statement which was related by the mother of the child does include circumstances and details which, under a proper objection, would be inadmissible.” (Emphasis added.) Again, in the ease entitled People v. Wilmot, 139 Cal. 103, 105 [72 Pac. 838], it was said: “The rule enunciated by the authorities generally, and by all the decisions in this state, is in all eases to admit evidence of the fact of complaint, and in no case to admit anything more (People v. Mayes, 66 Cal. 597 [6 Pac. 691, 56 Am. Rep. 126] ; People v. Tierney, 67 Cal. [54] 55 [7 Pac. 37] ; People v. Snyder, 75 Cal. 323 [17 Pac. 208]; People v. Stewart, 97 Cal. 238, 241 [32 Pac. 8] ; People v. Barney, 114 Cal. 554 [47 Pac. 41] ; People v. Baldwin, 117 Cal. [244] 251 [49 Pac. 186]; People v. Lambert, 120 Cal. [170] 171 [52 Pac. 307]); for, as said by Greenleaf ‘The evidence when restricted to this extent is not hearsay, but in the strictest sense original evidence. When, however, these limits are exceeded, it becomes hearsay in a very objectionable form’. It is clear that to allow any mere statement of the prosecutrix as to the details of the affair, or as to the name of the person accused by her, to be given in evidence would be to allow hearsay evidence to prove the offense. (See People v. Lambert, 120 Cal. [170] 171 [52 Pac. 307].) ...”

It would seem clear in the instant case that, for several reasons, the evidence related by the mother of the prosecutrix to the effect that, at a time some two years prior to the time of trial, when the child was but three years of age, the latter had told her of the alleged actions of defendant at or about that time, erroneously was admitted. In the light of the cases just cited, not only was the purported “complaint” of the child as to the acts of the defendant not “recent” in relation to the alleged offense for which defendant was on trial in the instant action (within the rule set forth in the Ewing case), but the asserted “complaint” of the child, as purportedly was related to the mother, contained the “circumstance concerning the attack”, which testimony was specifically denounced in the Wilmot case as being “hearsay in a very objectionable form”. The evidence was purely hearsay. In that regard the language of the court in the case of Englebretson v. Industrial Acc. Com., 170 Cal. 793, at page 798 [151 Pac. 421], employed in a discussion with regard to the hearsay evidence rule, is pertinent: “The unreliability of a relation by one person of statements made to him by another is so well known that it has become customary and is considered necessary for courts, in cases where oral admissions of a party are proved against him, to instruct the jury that they must view such admissions with caution, because of the tendency of witnesses to make perverted or inaccurate reports. We have many decisions of courts of the highest standing declaring the importance and substantial character of the rule against hearsay testimony. It has been said that the fact ‘that this species of testimony supposes some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover combine to support the rule that hearsay evidence is totally inadmissible. . . . The danger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well-established rule, the value of which is felt and acknowledged by all. . . . ’ ”

The next assignment of error relates to asserted misconduct of Mr. Ferguson, the deputy district attorney, who was in charge of the prosecution of the action. The incident regarding which complaint is made occurred near the beginning of the opening argument to the jury. In substance, Mr. Ferguson drew attention to the fact that the ordinary citizen was loath to believe in the existence of the happening of the episodes such as that to which the child had testified; and then said: “ ... If there is any woman upon this jury who has any such a thought as that, I will ask you to just remember back to the things you have heard about in this city of ours and adjoining communities during the last several years. ...” Immediately thereafter the following colloquy occurred: “Mr. Cantillon: Just a moment. If your Honor please, I am going to object to that as being improper argument, inflammatory in character and assign it as misconduct and ask that the jury be instructed to disregard it. . . . Mr. Ferguson: I think it is legitimate argument, your Honor. The Court: Objection overruled. Mr. Ferguson : You remember the Dyer case, the Northeott case—. Mr. Cantillon: I am going to object to that as improper argument, inflammatory and ask that it be stricken from the record and the jury instructed to disregard it. Mr. Ferguson: I am willing that should be done, your Honor. The Court: Very well. The last remark, whatever it was, is stricken. Mr. Cantillon: I move that the jury be instructed to disregard it, your Honor. He just mentioned the Dyer case, your Honor. Mr. Ferguson: Please forget the Dyer case. I don’t claim it is proper in this case. I am not silly and I know none of you men and women are silly.” A few minutes thereafter, Mr. Ferguson made the further statement that: “ ... I don’t seek to inflame your minds against this defendant as an individual. O'n the contrary, I ask you to view the evidence calmly and dispassionately and render a verdict such as you will be proud of and can adhere to in the days to come, not to be led away by any passion against the defendant because of the terrible nature of the accusations against him, but yet, on the other hand, don’t believe for a moment that these things don’t occur in this metropolitan area of ours, in this modern life we are living, because they do occur—they occur time and again without number. So I am merely asking you to take this evidence as it is and base your verdict upon the evidence as it is and upon the law as given to you by the court, and that was my only purpose in making the very brief reference I made a few moments ago, to other things you know of, you know of by your own knowledge as having occurred in this city of ours and adjoining communities”. (Emphasis added.) Counsel for defendant objected to the foregoing remarks and moved the court to strike,—which objection was overruled by the trial court.

In connection with the Northeott and Dyer cases, to which the deputy district attorney had referred, it need only be said that they were not only the most outrageous in character, but also were the most notorious that have occurred within the State of California in recent years. Each of them received so much newspaper publicity and were so much the subject of general conversation that it would have been unbelievable that any person who had read the newspapers at all, or who had indulged in ordinary conversation with his neighbors or friends, was not made familiar with the details of the atrocities perpetrated in each of those eases. It is charged by the appellant herein, and it is not entirely improbable of belief, that the purpose of the deputy district attorney in making reference to those cases was not confined to that of assuring and reminding the jurors that occurrences of the nature of that involved in the instant case were not uncommon,—but that, by recalling the Northcott and the Dyer cases to the minds of the jurors, they might entertain a feeling of hostility toward defendant and thereby engender a hatred of him, with the consequence, as Mr. Ferguson suggested, that they would “render a verdict such as you will be proud of and can adhere to in the days to come”. No conclusion other than that the remarks were inflammatory and most objectionable may reasonably be reached. Nor by the expedient of attempting to withdraw the remarks was it possible to erase from the minds of the jurors the suggestions originally made. Jurors are human, and it is not within human possibility to forget so easily outstanding facts or situations pertaining to other cases which have been brought to their attention and which are similar to those of the case on trial before them. The damage had been done. It was irreparable. That the remarks objected to may. have influenced the verdict that was rendered against defendant is not at all improbable; and if such influence prevailed, in that respect defendant was deprived of the benefit of a fair trial.

The third assignment of error presented by the appeal consists of the refusal by the trial court to give to the jury the following instruction which was requested by defendant:

“By reason of the fact that charges of the nature involved in this case can easily be made and are often not easy to disprove, I instruct you that it is your duty to treat with great care and caution the testimony of the prosecutrix Cornelia -. You are not to be moved by passion, sympathy or prejudice to find a verdict of guilty on any count of the information and unless you are convinced beyond a reasonable doubt from the evidence that the defendant is guilty as charged on one or more of the several counts of the information, you should find the defendant not guilty.”

In that connection, and with particular reference to the certain inability of any accused man to produce evidence sufficient either to create in the minds of the jurors a reasonable doubt respecting his guilt, or to disprove a charge of the nature of that here involved, the language employed by this court in the case of People v. Benson, 6 Cal. 221, 223 [65 Am. Dec. 506], is interesting. It was there said: “There is no class of prosecutions attended with so much danger, or which afford so ample an opportunity for the free play of malice and private vengeance. In such cases the accused is almost defenceless, and Courts, in view of the facility with which charges of this character may be invented and maintained, have been strict in laying down the rule which should govern the jury in their finding. From the days of Lord Hale to the present time, no case has ever gone to the jury, upon the sole testimony of the prosecutrix, unsustained by facts and circumstances corroborating it, without the Court warning them of the danger of a conviction on such testimony.”

The question also received careful consideration in the case of People v. Vaughan, 131 Cal. App. 265, 273 [21 Pac. (2d) 438], where the court said: “The learned trial judge at the time he denied defendant’s motion for a new trial stated as his reason for refusing to give these instructions that they were cautionary, evidently viewing them as prohibited by section 1.9, article VI of the Constitution, providing that judges shall not charge juries with respect to matters of fact. There is authority for this position. (People v. Anthony, 185 Cal. 152, 160 [196 Pac. 47].) However, a review of cases of this type would indicate that the courts generally have been reluctant, where testimony of the complaining witness is uncorroborated, to disregard the observation made by Chief Justice Murray in deciding the Benson case [People v. Benson], 6 Cal. 221 [65 Am. Dec. 506], involving a child of thirteen years: ‘From the days of Lord Hale to the present time, no case has ever gone to the jury, upon the sole testimony of the prosecutrix, unsustained by facts and circumstances corroborating it, without the court warning them of the danger of a conviction on such testimony.’ For example, we find the following in People v. Caldwell, 55 Cal. App. 280, 298 [203 Pac. 440, 448]: ‘Cautionary instructions of this character are proper in rape eases, under many decisions, either when the prosecutrix is a child of tender years or when her testimony is uncorroborated. ’ And in the case of People v. Scott, 24 Cal. App. 440 [141 Pac. 945, 947], involving a moral offense against a girl about fourteen years old, the court says: ‘For reasons readily suggested it is entirely proper for the court to caution the jury to weigh the testimony of the prosecutrix with the utmost care that no wrong be done the defendant.' ... ” To like effect, see the case of People v. Garrett, 27 Cal. App. (2d) 249 [81 Pac. (2d) 241].

However, the conclusions announced in the foregoing authorities may have been somewhat weakened by the decision that was rendered by this court in the ease of People v. Anthony, 185 Cal. 152 [197 Pac. 83], where it was declared (syllabus) that it was not error “to refuse an instruction embodying the statements that it is particularly difficult for a defendant to clear himself of such a charge, that no charge is more easily made or more difficult to disprove, and that the two parties are usually the only witnesses to the act, as the same are statements of fact, not of law”.

Notwithstanding the seeming conflict which thus appears in the several decisions by the courts of this state, no great difficulty is presented in the instant case for the reason that this court is of the opinion that the rights of defendant in the premises were carefully guarded and fully protected by the giving to the jury, at the request of the prosecution, the following instruction:

“That a charge of this nature is particularly difficult for a defendant to clear himself of. No charge can be more easily made, and none more difficult to disprove. From the nature of the case, the complaining witness and the defendant are generally the only witnesses. The law does not require in this character of case that the prosecuting witness be supported by another witness or other corroborating circumstances, but does require that you examine her testimony with caution.”

In addition thereto the jury was generally instructed that in reaching a verdict, the jury should be ‘ ‘ governed therefore solely by the evidence introduced in this trial and the law as given you by the Court. The law will not permit jurors to be governed by mere sentiment, conjectures, sympathy, passion or prejudice, public opinion or public feeling. . . . that you will carefully and dispassionately weigh and consider the evidence and the law of the case and give to each your conscientious judgment; and that you will reach a verdict that will be just to both sides, regardless of what the consequences may be, and which will express the individual opinion of each juror.”

But, as has been suggested by appellant, a more serious situation was developed with respect to the question whether defendant was accorded a fair trial,—which becomes implicit from the following facts: When the child prosecutrix was on the witness stand, she testified in voluble detail with respect to acts and conduct of defendant on an occasion when not only the said child, but also her friend Janet— (who, like the prosecutrix, was 5 years of age) was an asserted victim of defendant’s misconduct. No complaint respecting the admissibility of such testimony has been registered by appellant. However, it appears that when Janet was called as a witness, she was unable to qualify as such. In consequence of that situation, defendant offered for the guidance of the jury—but the trial court refused to give to it—the following instruction:

“That you are not to draw any inference whatsoever from the fact that the Court ruled as a matter of law that the witness Janet . . . was not competent to testify in this case. This fact has no place whatsoever in your deliberations as to the guilt or innocence of the defendant, and you shall not surmise as to whether what the child’s testimony might have been had she been allowed to testify in the case.”

It is clear that the jury should have been so instructed. A review of the questions that were propounded to Janet on her voir dire examination to test her qualifications as a witness, and the answers thereto, leaves no doubt as to the correctness of the conclusion by the trial court regarding her eligibility as a witness. Moreover, with respect to such little knowledge of pertinent facts as she did display, it was most apparent that she had been “coached”. Considering the patent inability of the child to grasp, intelligently, the purport of simple qualifying questions and appropriately to respond thereto, together with the assumed fact that the deputy district attorney must have been aware of that situation before the child was called as a proposed witness,—the fact that, in such circumstances, the child was deliberately offered as a witness borders on prejudicial misconduct. However, whether dereliction of duty on the part of the deputy district attorney is a proper question for consideration herein is not essential to a determination of this case. But, at any rate, the appearance of the child on the witness stand constituted in itself an implied assurance on the part of the prosecution that if permitted to testify, in some measure she would corroborate the testimony which already had been given by Cornelia respecting the particular misconduct of defendant; at least such an inference was readily deducible by the jury, and its conclusion may have been influenced thereby. In such circumstances, the refusal of the trial court to give the proffered instruction to the jury, and thus to disabuse the minds of the respective jurors with respect to any detrimental inference regarding the testimony which the child might have given, was in disregard of the rights of defendant and prevented him from having a fair trial.

From all that may be discerned in the record regarding the question of whether defendant had been accorded the fair trial impliedly guaranteed to him by constitutional provision, taken as a whole, the trial was unsatisfactory. On the one hand, the child prosecutrix displayed an intelligence far beyond her years. However, her testimony to the effect that she had “talked a good deal with her mamma and daddy about it”; also “to Mr. Ferguson here about it”; and that her mother wanted her “to remember good”, and that the reason she thought her mother wanted her to remember it well was because her mother kept telling it “over and over” to her,—suggests the conclusion that the child had been carefully “coached” in her entire story. Notwithstanding the superior intelligence which was possessed by the child, it is beyond question that at the age of five years, or thereabouts, most children are particularly and peculiarly impressionable. The effect and influence upon them at that age by the conduct and conversation of their elders are most marked. In the instant matter, therefore, the fact that the mother—undoubtedly with proper or even laudable motives—repeated the details of the story to the child ‘ ‘ over and over ’ ’, in some probability at least, may have had the effect of substituting in the child’s mind the mother’s version for that of the incidents which actually occurred. And although as a matter of law it cannot be declared that the story, as told, in its essentials is inherently untrue, nevertheless, in performance or execution, some of its more sordid details are most improbable of occurrence.

With respect to this kind of case, when it is remembered that ‘ ‘ There is no class of prosecutions attended with so much danger, or which afford so ample an opportunity for the free play of malice and private vengeance,” and that “In such cases the accused is almost defenseless, ’ ’ it certainly behooves the courts of last resort rigorously to insist upon the observance of those salutary rules regarding the admission of evidence and the trial of actions in general, which for centuries have been in practice to the end that an accused may be assured of a fair trial. As frequently has been said regarding cases of the instant character, “No charge can be more easily made, and none more difficult to disprove.” As a matter of practical observation to many judges who have presided over trials of this nature, it is plainly recognized that, notwithstanding the salutary rule that an accused is presumed to be innocent until his guilt has been established beyond a reasonable doubt, nevertheless, to the mind of the average citizen or juror, the mere fact that a person has been accused of the commission of such an offense seems to constitute sufficient evidence to warrant a verdict of “guilty”; and that— instead of its being necessary for the prosecution to prove his guilt beyond a reasonable doubt—in order to secure an acquittal of the charge, it becomes incumbent upon the accused to completely establish his innocence, and to accomplish that result not only by a preponderance of the evidence but beyond a reasonable doubt. In such a situation, the only defense available, ordinarily, to the accused is his own denial of any asserted misconduct, together with evidence of a former good reputation; otherwise, he is utterly defenseless and at the mercy of a jury which probably is very much prejudiced. In at least a majority of such prosecutions, over the emphatic and categorical denial by the defendant of the incident or incidents testified to by the prosecutrix, the accused is found “guilty” on evidence that, because of the nature of the asserted offense, rarely is possible of corroboration; and it is not at all improbable that at the instigation of either over-suspicious or misinformed mothers, who may entertain malice or personal prejudice toward the accused, miscarriages of justice often result,—with the consequence that innocent men are or have been humiliated, ruined in character and good reputation, and caused to suffer ignominiously for the alleged commission by them of offenses of which they were or are not guilty. It is because of the recognized existence of the ease with which convictions of men, even those of unblemished reputation, may be secured in cases of the instant kind that courts are at pains to insist upon fair trials in all respects being accorded to the accused. Errors committed either by the prosecution or by the court in the course of the trial, which ordinarily might be considered trivial and as of no material consequence from a standpoint of adverse effect upon the rights of a defendant, may become of great importance when committed in a case of the character of that here involved.

It is ordered that the judgments, and the order by which the motion for a new trial was denied, be, and they are, reversed and the cause remanded for new trial.

Shenk, J., Pullen, J., pro tem., and Curtis, J., concurred.

Edmonds, J., concurred in the judgment.


text:
    [L. A. No. 17164.
    In Bank.
    August 15, 1939.]
    OLIVE WRIGHT, Respondent, v. LOS ANGELES RAILWAY CORPORATION (a Corporation) et al., Appellants.

      Gibson, Dunn & Crutcher and E. H. Chapman for Appellants.
    W. I. Gilbert, Jr., E. E. Bennett, Frank Karr, E. E. Morris, C. W. Cornell and O. 0. Collins, as Amici Curiae on Behalf of Appellants.
    Ira J. McDonald for Respondent.
   THE COURT.

In this action plaintiff sought to recover a judgment for damages alleged to have been suffered by her when an automobile which she was driving in the city of Huntington Park was struck by a streetcar owned by the defendant railway corporation and operated by defendant Sherman.

It was alleged in the complaint that the proximate cause of the collision was the negligent operation of the streetcar by the defendants. By the answer the charge of negligence was denied and the issue of contributory negligence of plaintiff was specifically raised. At the close of plaintiff’s case, and again at the close of the trial, the defendants’ motions for a nonsuit and for a directed verdict, respectively, were denied. The jury returned a verdict in plaintiff’s favor in the sum of $7,500, and the defendants have appealed from the judgment entered thereon.

At the time of the accident here concerned, there was in effect an ordinance of the City of Huntington Park, by the provisions of which it was made unlawful for any streetcar to be operated at a speed greater than 15 miles per hour in a business or a school district. The accident happened early in the afternoon of October 12, 1936, at the intersection of Pacific Boulevard and Fifty-seventh Street, which latter thoroughfare runs east and west in said city. The district along Pacific Boulevard from Fifty-sixth Street southward to Fifty-seventh Street is a business district; from Fifty-seventh Street to Fifty-eighth Street is a school zone, and there is a “school crossing” sign on the south side of the intersection of Pacific Boulevard and Fifty-seventh Street. On the day of the accident the defendant corporation owned and, through defendant Sherman, was operating an electric streetcar upon its right of way, which extended upon- and along the center of Pacific Boulevard in a northerly and southerly direction. Shortly before the accident happened, the streetcar was being operated in a southerly direction in the block immediately north of the intersection of the boulevard and Fifty-seventh Street. At the same time, plaintiff was operating her automobile in a southerly direction along the west side of Pacific Boulevard, on a portion of the street which runs parallel with the streetcar tracks. When plaintiff reached Fifty-seventh Street she assertedly stopped at the south end of the safety zone, after which she turned her automobile in an easterly direction across the southbound tracks of the electric railway, at which point the collision occurred,—the left side of the automobile having been struck by the streetcar.

The record shows that the evidence was substantially conflicting in each of several respects. The version given by defendant Sherman as to the speed and position of the respective vehicles, and of his acts as well as those of plaintiff, immediately prior to and at the time of the accident, differs in several material respects from the recital of plaintiff in that regard. The former testified that when the streetcar was about half a block north of Fifty-seventh Street he saw the automobile traveling south on Pacific Boulevard midway of a safety zone which was located near the intersection of Fifty-seventh Street; that at that time the streetcar was traveling at a speed of about 20 miles per hour and that the automobile was moving very slowly; that from the time he first saw the automobile until it reached the intersection he was watching it “to see what move it ivas going to make”;-that plaintiff gave no signal that she was about to make a left turn, and that he “didn’t think she [the plaintiff] was going to whirl right around in front of the street car, . . . which was done”; and that when he observed the automobile on the track in front of the streetcar, he threw off the power and “tried to stop as soon as he could”. He also testified that he rang the bell continuously from the time he first saw the automobile until he reached the intersection, but that he did not slacken the speed of the streetcar from the time he first saw the automobile until the streetcar had reached the intersection where the accident oc-. curred. On the other hand, plaintiff testified as follows: “ . . . when I was about half a block north of 57th street I gave a signal with my left hand to turn. Prom that time I dropped my hand to stop at the intersection. When I stopped my front wheels were about even with the end of the loading zone. ... I shifted into low gear and made a signal for a left-hand turn and looked back alongside the automobile and by that time I had started into the intersection. When I looked back I saw the street car. It hadn’t entered the intersection of 56th [an entire block to the north]. I proceeded into the intersection, making a signal for a left-hand turn, and then I took my hand in and shifted to second gear and then made the left-hand signal and proceeded to make the left-hand turn across the tracks.....I had almost crossed the track and the rear wheels were just about in the center when I heard a bell ring. . . . When I heard the bell I looked around and saw the street ear. It was just a few feet from my automobile. There wasn’t time to do anything” then, as it was just an instant until the streetcar struck the automobile. She also testified that, from the time she stopped until she started to make the left turn across the tracks,—except when she shifted gears of the automobile and looked backward—she was observing a northbound streetcar which was nearing the intersection of Fifty-seventh Street.

There was evidence adduced with respect to the position and speed of the respective vehicles, which in part tended to support the version of the accident as related by defendant Sherman, as well as evidence which in part supported that given by plaintiff. Two witnesses testified that, while it was traversing the block between Fifty-sixth and Fifty-seventh Streets, the speed of the streetcar was 30 miles an hour,—although, at a former time, one of those witnesses had stated that he had not noticed the speed of the respective vehicles at or about the time of the accident. The testimony of four of the witnesses, as well as that of defendant Sherman, was that the speed of the streetcar was greater than 15 miles per hour. There was also testimony offered by the defendants to the effect that the automobile had been traveling “parallel” with the streetcar at the time it was approximately midway of the block north of the intersection where the collision occurred.

The principal contention of the appellants is that plaintiff was contributorily negligent. Or, otherwise stated, they contend that, at or about the time of the accident, the conduct of plaintiff was not that of an ordinarily prudent person, under the same circumstances. However, it is generally conceded that, on approaching an intersecting street, the duties of a streetcar motorman and those of the driver of an automobile which is about to cross the streetcar tracks at such intersection, are reciprocal and that each is required to approach the intersection with due regard for the rights of the other. (Smith v. Southern Pac. Co., 201 Cal. 57 [255 Pac. 500] ; Shipley v. San Diego Elec. Ry. Co., 106 Cal. App. 659 [289 Pac. 662].) In that regard it was said in the case entitled Aungst v. Central California Traction Co., 115 Cal. App. 113, 116 [1 Pac. (2d) 56]: “ . . . ‘that where both street car companies and automobiles have the right to use the public street, the right of each must be exercised with due regard to the rights of the other, and in such a manner as not unreasonably to infringe upon the rights of the other’. ‘While street cars must run upon the tracks provided for them, they have no absolute or pre-eminent right of way over intersections, but must use the same with due regard to the safety and rights of the general public.’ (O’Connor v. United Railroads, 168 Cal. 43 [141 Pac. 809].) ” (Emphasis added.)

In support of her contention that, as a matter of law, her conduct in the premises could not properly be declared to constitute contributory negligence, respondent directs attention to that which was said in the case entitled Scott v. San Bernardino Valley etc. Co., 152 Cal. 604, 611 [93 Pac. 677], as follows: “ ‘It cannot be said that a person is guilty of contributory negligence merely because he attempts to cross a street-railway when a car is approaching. If that were so, he could never attempt to cross such a track in the crowded parts of a city where there is practically always an approaching car; and in such case, as street-cars go at a comparatively low rate of speed and are quickly stopped, the question of negligence would depend on the proximity or remoteness of the car, and upon all the other circumstance surrounding the occurrence. In such a situation the traveler cannot be held to exercise the very highest prudence and judgment; it is sufficient if he exercises that degree of care and prudence and good sense which men who possess those qualities in an ordinary or average degree exercise. ’ ...”

The case entitled Bate v. Los Angeles Ry. Corp., 30 Cal. App. (2d) 604 [86 Pac. (2d) 856], involved an accident which occurred between a streetcar and an automobile at an intersection in a business district. There, also, according to his testimony, the plaintiff, who was traveling in a northerly direction, made a left turn across the streetcar tracks, after he had seen a southbound streetcar approaching about two-thirds of a block away, and where there was other traffic at the intersection which called for the attention of the driver of the automobile. In that case the court said:

“The issue of alleged contributory negligence of the driver of an automobile is ordinarily to be left to the determination of the jury and it may not be taken from the jury by the court if the circumstances in evidence are such that reasonable minds might differ on the issue. Mr. Bate entered the intersection first and he had the right to assume that the motorman of the street car would obey the law and operate the car in a proper manner. The law permitted him [Mr. Bate] to make a left turn if he could do so ‘with reasonable safety’ (Vehicle Code, sec. 544) . . . The jury might reasonably have concluded that an ordinarily prudent driver would have made the turn as did Mr. Bate. He noticed nothing unusual about the operation of the car but even if he had noticed its undue speed, as stated in Runnels v. United Railroads, 175 Cal. 528, 532 [166 Pac. 18], ‘he was not in law bound to believe that the car though traveling at undue speed when he saw it one-half a block or more away, would continue to violate the law and not check its speed as it drew near an intersecting street’. . . . We know of no rule which makes the act of the driver of an automobile in going in front of an approaching car negligence as a matter of law regardless of the attendant circumstances. On the contrary it has been frequently held that in such cases the issue of negligence of the operator of the automobile ordinarily should be submitted to the jury. (Scott v. San Bernardino Valley etc. Co., 152 Cal. 604 [93 Pac. 677] ; Bresee v. Los Angeles Traction Co., 149 Cal. 131 [85 Pac. 152, 5 L. R. A. (N. S.) 1059]; Cowan v. Market Street Ry. Co., 8 Cal. App. (2d) 642, [47 Pac. (2d) 752]; Hoff v. Los Angeles Pac. Co., 158 Cal. 596 [112 Pac. 53] ; Ring v. Los Angeles Ry. Corp., 116 Cal. App. 93 [2 Pac. (2d) 404]; Commonwealth Bonding etc. Co. v. Pacific Railway Co., 42 Cal. App. 573 [184 Pac. 29].) The words of the court in Ross v. San Francisco-Oakland T. Railways Co., 47 Cal. App. 753, 759 [191 Pac. 703], are appropriate in the present situation: ‘But a traveler may cross an electric street railway track in front of an approaching car which he sees and hears and not be negligent. If in view of his distance from the car, the rate of its speed, and all other circumstances of the event, a reasonably prudent man would accept the hazard and undertake to cross the highway, a traveler may do so) and the propriety of his conduct is ordinarily a question for the jury.’ ...” (Emphasis added.)

In the instant case, as in the Bate case, plaintiff was traveling at a moderate rate of speed. If, in accordance with her testimony, it was true-—and the jury believed it was— that a very short time before she attempted to make the turn into the intersection, she had observed the streetcar a block away from her, she could not have been charged with the knowledge that it might travel the length of the next block at a high or unlawful rate of speed. Under the facts of this ease, the jury might well have found that plaintiff reasonably could have relied on the belief that the streetcar was traveling at a lawful rate of speed, and that there was no danger to be expected from a streetcar which was a block away at the time when plaintiff was preparing to make the left turn. Whether she acted reasonably under those circumstances was a question of fact for the jury.

As was said in the ease entitled Seller v. Market-Street Ry. Co., 139 Cal. 268, 271 [72 Pac. 1006], it is rarely that a set of circumstances is presented which enables a court to say, as a matter of law, that negligence has been shown. And it frequently has been declared by the appellate courts of this state that negligence is a question of fact for the jury even where there is no conflict in the evidence, if reasonable men might differ on the question whether the particular acts and circumstances shown to have been present in the case did in fact constitute negligence. (Jansson v. National Steamship Co., 189 Cal. 187 [208 Pac. 90] ; Wahlgren v. Market Street Ry. Co., 132 Cal. 656 [62 Pac. 308, 64 Pac. 993]; Carlson v. Cucamonga Water Co., 7 Cal. App. 382 [94 Pac. 399]; Burr v. United Railroads, 163 Cal. 663 [126 Pac. 873] ; Kimic v. San Jose-Los Gatos etc. Ry. Co., 156 Cal. 379 [104 Pac. 986].)

But, as hereinbefore has been indicated, in the instant case, the evidence was conflicting in each of several material particulars and the jury was entitled to believe either the evidence adduced on behalf of the defendants, or that which was offered by plaintiff. (Hinkle v. Southern Pac. Co., 12 Cal. (2d) 691 [87 Pac. (2d) 349].) If the jury believed that defendant Sherman was traveling at a rate of speed in excess of 15 miles an hour,—and according to his own testimony he was so traveling—the defendants’ negligence was established. The violation of an ordinance or statute is negligence per se. (Hurtel v. Albert Cohn, Inc., 5 Cal. (2d) 145 [52 Pac. (2d) 922] ; Kellner v. Witte, 133 Cal. App. 231 [23 Pac. (2d) 1045].) Not only did defendant Sherman testify that the streetcar was traveling at a rate of speed which, it was evident, was prohibited by the ordinance, but also that he was watching the automobile from the time he first saw it to “see what move it was going to make”, and that he did not slacken the speed of the streetcar while he was watching the automobile,—although it was shown that during that time he was operating the streetcar through a business district of the city, and was about to approach an intersection, immediately beyond which was a school zone.

The record herein shows that the trial court denied the motion for a directed verdict on the ground that there was a sufficient conflict in the evidence for the case to go to the jury. There was no error in that ruling. On the other hand, what was said by this court in the recent case entitled Hinkle v. Southern Pac. Co., 12 Cal. (2d) 691 [87 Pac. (2d) 349], is applicable here: “As often happens in cases of this character, the evidence with reference to the accident was sharply conflicting and the testimony of the witnesses for the appellant, not being reconcilable with the testimony of the respondents and their witnesses, it was necessary for the jury as triers of fact, to determine which of the contrary versions of the accident should be accepted as true. It is self-evident that the jury accepted as true the testimony of the respondents, and necessarily rejected a portion, at least, of the evidence proffered by appellant. It follows that it is incumbent upon this court upon appeal to accept as true the evidence in favor of respondents and to resolve all conflicts in the evidence in their favor.”

The appellants also contend that the trial court erred in instructing the jury that the provisions of the city ordinance were applicable to a streetcar operated by appellant corporation upon its own private right of way. In that regard, it may be noted that in the case entitled Simoneau v. Pacific Elec. Ry. Co., 166 Cal. 264, 269 [136 Pac. 544, 49 L. R. A. (N. S.) 737], it was said: “It is, of course, well settled that a city may by a general municipal ordinance prescribe reasonable conditions and regulations under which street railroad companies shall operate their cars over or across the streets of a city, including the rate of speed, ...” (Emphasis added.) Ordinances regulating the speed of trains and streetcars within city limits are proper police regulations, made in the interests of the general welfare. (See Switzler v. Atchison etc. Ry. Co., 104 Cal. App. 138, 152 [285 Pac. 918].)

Appellants make the further contention that the streetcar tracks herein concerned are utilized for “interurban” streetcar service and that since the right of way on which they are laid is unpaved (except at street intersections) and therefore is open to other vehicular traffic only at such intersections, the “stop, look and listen” rule of caution pertaining to a steam railroad should have been applicable to respondent herein. Although the streetcar was operated between the city of Los Angeles and the city of Huntington Park, it appears to have been operated as an ordinary streetcar which made local stops while traveling through the city. However, the question whether the rule was applicable does not become material, in the instant case, in view of the fact that, according to her testimony, when plaintiff reached the intersection and was about to make the left turn, she did stop and look, and that at that time she saw the streetcar (a block away). Plaintiff further testified that after she had given the signal for a left turn, her attention was taken up with traffic approaching from the opposite direction. As was said in Collet v. Central California etc. Co., 36 Cal. App. 240, 246 [171 Pac. 984] : “ ‘The fact that the driver of such [a] vehicle, after looking back and not seeing any approaching car, failed to again look back during an interval in which he drove a distance of about 500 feet, did not constitute negligence per se.’ ” And in the case entitled Hansen v. Market Street Ry. Co., 64 Cal. App. 426, 431 [221 Pac. 955], it was said that “ ‘The failure of a person to look or listen for an approaching car before crossing a street ear track in a city is not always, and under all circumstances an act of negligence. ’ ” (Emphasis added.) Again, in the case entitled Hamlin v. Pacific Elec. Ry. Co., 150 Cal. 776, 780 [89 Pac. 1109], the court said: “Manifestly it is impossible for one driving a vehicle along a street to look in both directions at once, and it should ordinarily be left to the jury to determine, under the circumstances of each particular case, what amount of vigilance was requisite in order to constitute due care. ” (See, also, Babcock v. Pacific Gas etc. Co., 120 Cal. App. 218, 222 [7 Pac. (2d) 736].) Obviously, the purpose of the rule—that is, to cause plaintiff to become aware of any possible danger which might exist from the fact that an interurban ear or train was approaching and in close proximity to her—was completely accomplished through the fact that after stopping her, automobile and looking in the direction from which the streetcar of the defendant was approaching the intersection, she not only saw the streetcar, but also at the same time made an estimate of its distance from the intersection and the rate of speed at which it was traveling. In other words, plaintiff’s error, if any, consisted not in a failure to observe that the streetcar was approaching the intersection, but in the making of a poor estimate as to its speed and distance.

The final contention made by appellants is that the court erred in instructing the jury on the doctrine of “last clear chance”. It is not improper to instruct the jury on the doctrine of “last clear chance” when, on any valid theory, there is substantial evidence to support the application of that principle. (Gardini v. Arakelian, 18 Cal. App. (2d) 424, 430 [64 Pac. (2d) 181].) In the case entitled Wheeler v. Buerkle, 14 Cal. App. (2d) 368, 373 [58 Pac. (2d) 230], it was said that “if the facts of a case do not bring the doctrine into play the court must so decide”, and if the facts be such that the doctrine mm¡ be applied, it is the duty of a trial judge to submit it to a jury by proper instructions, or to find upon it in the absence of a jury. Upon the state of the record herein presented, it cannot properly be said that the trial court erred in instructing the jury thereon. As was said in the case entitled Keena v. United Railroads of S. F., 57 Cal. App. 124, 129 [207 Pac. 35], wherein it was contended that instructions on the doctrine should not have been given: “There was a conflict in the evidence and the jury were entitled to be advised as to the law and then to believe the plaintiff’s witness, or witnesses, or to believe the defendant’s witness.”

We find no error in the record with respect to either the giving of certain instructions objected to by the appellants, or in the refusal to give certain others requested by them.

The judgment is affirmed.

Rehearing denied.