author: WASTE, C. J.

text:
    [Crim. No. 4116.
    In Bank.
    November 26, 1937.]
    THE PEOPLE, Respondent, v. R. L. RANKIN et al., Defendants; WILLIAM A. BYRNE et al., Appellants.

      Clarence W. Hull, Sherman & Sherman, Charles A. Thomasset, R. E. Parsons, Jerome O. Hughes, Abe Richman and Anna Zacsek for Appellants.
    U. S. Webb, Attorney-General, Bayard Rhone, Deputy Attorney-General, Buron Fitts, District Attorney, Verne L. Ferguson, Deputy District Attorney, for Respondent.
   WASTE, C. J.

This cause was taken over after decision in the District Court of Appeal of the Second Appellate District, Division Two, in order that we might more fully examine the record and certain issues raised upon the appeal. An examination of the evidence, covering 1742 pages of the reporter’s transcript, compels us to agree with the conclusion of the Appellate Court that as to the appellants Beggs, Ross and St. John there is a dearth of corroborating evidence within the meaning of section 1111 of the Penal Code as interpreted in People v. Kempley, 205 Cal. 441 [271 Pac. 478], and People v. Davis, 210 Cal. 540 [293 Pac. 32]. However, we cannot accept the conclusion announced by that court with reference to the contention of the appellant Byrne directed against count VII of the indictment. This point will be discussed later.

Therefore, with such additional comment as shall hereinafter appear, we adopt the following portions of the opinion of Mr. Justice McComb as and for the decision of this court:

“Defendants were accused by the grand jury of the county of Los Angeles of the crime of conspiracy to violate section 274 of the Penal Code, a felony, and in eight separate counts of having committed abortions. Defendants were tried jointly before a jury, whose verdicts were:
“(1)
“(2)
Guilty:
R. L. Rankin George E. Watts J. 0. Shinn William A. Byrne Grace Moore Lillian Wilson James Beggs Jesse C. Ross
Counts I, II, V, VII and IX
Counts I and V ■Counts I, II and V
John A. Creeth ) Valentine St. John \ Violette Pellegrini <- Not guilty:
Jessie Radcliffe)
J. C. Perry }-All counts
“Defendants H. L. Houston, Bessie McCarthy, and Beatrice Bole were not apprehended and defendant W. Norman Powers entered a plea of guilty to count I of the indictment and testified on behalf of the state.
“Defendants James Beggs, William A. Byrne, R. L. Rankin, Jesse C. Ross, and Valentine St. John alone appeal from the judgments and orders denying their motions for a new. trial.
“The appeal of defendant R. L. Rankin has heretofore been dismissed at his request.
“Viewing the evidence most favorable to the prosecution (.People v. Dukes, 90 Cal. App. 657, 659 [266 Pac. 558]), the facts in the instant case are:
“Defendants R. L. Rankin and George E. Watts owned, operated, and directed a series of offices, extending from Seattle, Washington, to San Diego, California, for the purpose of illegally performing abortions. The remaining defendants, with the exception of those who were acquitted by the jury, were employed by them in various capacities in connection with the conduct of their illegal business. In the course of their business and in pursuance of their conspiracy abortions were performed upon Gladys Duckworth, Peggy Nowell, and Josephine Peacock as alleged in counts II, V, and IX of the indictment.

“A.

“Each appellant urges reversal of the judgments on ground that there is no substantial corroboration of the testimony of his accomplices to show his participation in or connection with any of the crimes of which he ivas convicted.

“The law is settled in California that a conviction cannot be sustained upon the testimony of an accomplice, unless it be corroborated by other evidence which tends to connect defendant with the commission of the offense charged in the indictment (sec. 1111, Pen. Code), and it is equally clear that the corroborative evidence necessary to comply with this requirement must of itself without the aid of the accomplice’s testimony connect or tend to connect defendant with the commission of the offense charged. (People v. Kempley, 205 Cal. 441, 455 [271 Pac. 478]; People v. Janssen, 74 Cal. App. 402, 406 [240 Pac. 799]; People v. Rokes, 18 Cal. App. (2d) 689 [64 Pac. (2d) 746].)

“Applying the foregoing rules to the instant case, we find with reference to the appellants Beggs, Ross, and St. John, that, after eliminating entirely the testimony of their accomplices, the record is completely devoid of any evidence even slight, which connects or tends to connect any of them with any of the crimes of which they were convicted. Since the judgments as to these appellants must be reversed for the foregoing reason, it is unnecessary for us to consider the other contentions which they have advanced.

“With reference to appellant William A. Byrne, we find a different situation. An examination of the record discloses that, after eliminating the testimony of his accomplices, there was substantial evidence considered in connection with such inferences as the jury may have reasonably drawn therefrom to connect him with the commission of the offense charged, thus furnishing the necessary corroboration to the testimony of his accomplices. One example of such corroborative evidence is found in the testimony of Geraldine Gerding, secretary to the manager of the Ocean Center Building in Long Beach, who it is conceded was not an accomplice, to the effect that appellant Byrne, about July 29, 1936, paid rent for rooms used by some of his coconspirators in that city for the purpose of performing abortions. There is ample evidence of a similar nature; however, since no useful purpose would be subserved by setting the same forth in extenso, we refrain from further discussion of it. {Thatch v. Livingston, 13 Cal. App. (2d) 202 [56 Pac. (2d) 549]; Koeberle v. Hotchkiss, 8 Cal. App. (2d) 634 [48 Pac. (2d) 104]; Leavens v. Pinkham & McKevitt, 164 Cal. 242, 245 [128 Pac. 399].)

“B.

“Appellant Byrne relies for reversal of the judgments upon these additional propositions:

“First: Count VII of the indictment did not charge a public ofense.
“Second: Section 274 of the Penal Code is unconstitutional in that it fails to inform a person charged thereunder with reasonable certainty as to what acts or actions are prohibited by it. . . .

“Appellant Byrne’s final proposition is untenable. His entire argument is directed to the point that the words ‘procure the miscarriage of such woman ’ do not convey a definite and certain meaning. ‘Miscarriage’ is thus defined in Bouvier’s Law Dictionary, volume II, page 2221:

“ ‘The expulsion of the ovum or embryo from the uterus within the first six weeks after conception. Between that time, and before the expiration of the sixth month, when the child may possibly live, it is termed abortion. When the delivery takes place soon after the sixth month, it is denominated premature labor. But the criminal act of destroying the foetus at any time before birth is termed, in law, procuring miscarriage. ’
“An almost identical definition will be found in Cyclopedic Law Dictionary, page 662, and substantially the same definition is given in each of the modern dictionaries of the English language. It is therefore evident that the phrase as used in the statute was sufficiently explicit to inform persons of common intelligence and understanding of the acts which were prohibited. ’ ’

Even if we concede for present purposes that count VII of the indictment, as urged by the appellant Byrne, is deficient because of its failure to charge the aborting of a “pregnant” woman, we are of the opinion that no prejudice resulted therefrom inasmuch as the evidence adduced upon the trial established the pregnancy of the woman involved. Therefore, under section 4% of article VI of the Constitution the assumed defect is insufficient to warrant a reversal of the judgment. {People v. Bonfanti, 40 Cal. App. 614 [181 Pac. 80]; People v. Buttulia, 70 Cal. App. 444 [233 Pac. 401].) In the Bonfanti case, supra, the defendant ivas charged with assault with intent to commit rape, but the information failed to allege, as specified in section 261 of the Penal Code, that the woman whom the defendant had assaulted was not his wife. The evidence, however, definitely indicated that she was not his wife. Under the circumstances, it was held that the defect in the information was not prejudicial in the light of section 4%, supra. The reasoning of that case is applicable here and the contention of the appellant Byrne with respect to count VII of the indictment does not call for a reversa! of the judgment thereon.

The judgment and orders denying the motions for neAV trial relative to the appellants James Beggs, Jesse C. Ross and Valentine St. John are and each is reversed, and a new trial is ordered.

The judgments and orders relative to William A. Byrne on counts I, II, V, VII and IX are and each is affirmed.

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

Rehearing denied.


source: Caselaw Access Project

author: SEAWELL, J.

license: Public Domain

text:
    [L. A. No. 15529.
    In Bank.
    November 26, 1937.]
    MOTHER COBB'S CHICKEN TURNOVERS, INC. (a Corporation), Respondent, v. HARVEY FOX, Appellant.

      Sol R. Simon and Aaron B. Rosenthal for Appellant.
    Horowitz & McCloskey and Fred Horowitz for Respondent.
   SEAWELL, J.

Plaintiff corporation brought this action to enjoin alleged unfair competition of defendants and to secure damages, compensatory and exemplary, by reason of the alleged unfair practices of defendants. Plaintiff sells chicken turnovers or pies under the name of Mother Cobb’s Chicken Turnovers, Inc. Defendants, according to the complaint and findings, opened a place of business selling a turnover or pie under the name Mother Karl’s Chicken Pies, Inc. Defendants, Harvey Fox and Mrs. Harvey Fox, his wife, stipulated that an injunction might be entered against them as prayed for. It is stated that they had abandoned the use of the name Mother Karl’s Chicken Pies, Inc. The court found that plaintiff had suffered no actual damages but awarded it judgment against defendant Harvey Fox alone for $500 exemplary damages. From this judgment Fox appeals on the judgment roll. He contends that having denied compensatory damages, the court was without right to award exemplary damages.

According to the findings, which follow the allegations of the complaint, defendant Harvey Fox called at plaintiff’s plant on February 18, 1935, and upon his representation that he might be interested in purchasing an interest in plaintiff’s business, he was given all details of the business, including the ingredients used in plaintiff’s turnovers and the names of many of plaintiff’s customers. On March 3, 1935, upon plaintiff’s refusal to accede to defendant’s request to assign him a certain territory to sell plaintiff’s products, he threatened to open a place of business of his own. On March 7, 1935, “with the avowed purpose of unfairly competing with plaintiff and to take from plaintiff the customers who would normally transact business with plaintiff”, defendant Harvey Fox “opened a place of business, calling it ‘Mother Karl’s Chicken Pies, Inc.’, and selling a turnover which is of the same size, and shape and containing substantially the same type of ingredients as the turnovers of plaintiff, and which turnover to all external appearances is identical with plaintiff’s product and which turnover is packed in a glassine envelope of the same size and shape as plaintiff’s”. The defendants’ envelope is marked “Mother Karl’s”.

The court found that the use of the word “Mother” and “Mother Karl’s” is so similar to the use of the trade name of plaintiff, “as to be, and it is so misleading to the public”. The court further found, following the allegations of the complaint, that defendant Harvey Fox opened his place of business under the name Mother Karl’s with the avowed purpose of unfairly competing with plaintiff and to cause confusion in the minds of the purchasing public. But in finding VIII as to the purpose of defendant Harvey Fox to cause confusion in the minds of the public, a line is drawn through the words “and it does cause”, thereby deleting said words.

Having made the above finding as to the acts and intent of Fox, the court made the following finding as to actual damages: “It is not true that by reason of the acts aforesaid the plaintiff had suffered actual damages, ether than seminal damages.”- This is an express finding that plaintiff has not suffered any actual damages. In view of this finding, the court was without right to award exemplary damages. The rule is stated in QiTham v. Devereaux, 67 Mont. 75 [214 Pac. 606, 33 A. L. R 381], with annotation at page 384, as follows: “The foundation for the recovery of punitive or exemplary damages rests upon the fact that substantial damages have been sustained by the plaintiff. Punitive damages are not given as a matter of right, nor can they be made the basis of recovery independent of a showing which would entitle the plaintiff to an award of actual damages. Actual damages must be found as a predicate for exemplary damages. This is the rule announced in many authorities. ...” This case lias been cited with approval in this state in Clark v. McClurg, 215 Cal. 279 [9 Pac. (2d) 505, 81 A. L. R 908], Haydel v. Morton, 8 Cal. App. (2d) 730 [48 Pac. (2d) 709], and in Chavez v. Times-Mirror Co., 72 Cal. App. 694, 697 [237 Pac. 1085]. In Haydel v. Morton, supra, the most recent of the cited eases, the jury returned a verdict for plaintiff in an action for slander in the following form: “We the jury find a verdict for the plaintiff and against the defendant on said count and assess the compensatory damages in the sum of $00; we assess the exemplary damages at $10,000; making a total verdict for the plaintiff in the sum of $10,000.” The appellate court reversed the judgment based on this verdict, citing Gilham v. Devereaux, supra, and Clark v. MeClurg, supra.

A different rule is not to be applied in this ease because the court, on stipulation of defendants, granted an injunction against their use of the name “Mother Karl’s”. Notwithstanding the consent injunction decree the rule applicable is, as declared frequently, that punitive damages are never more than an incident to a cause of action for actual damages, and, when allowed, are allowed only in addition to recovered actual damages.

We know of no rule of law that would authorize the imposition of a penalty upon competition, even though the competitor was actuated by spiteful motives to engage in competition against another, where no damage, as here, resulted from said competition. The acts complained of, though actuated by spiteful or resentful motives, did not, as expressly found, result in any damage to plaintiff. Evil thoughts or acts, barren of result, are not the subject of exemplary damages.

We are not concerned with the question as to whether the acts complained of were sufficient to entitle the plaintiff to injunctive relief, inasmuch as defendants stipulated that the injunction might issue against them.

The judgment for exemplary damages is reversed.

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


author: LANGDON, J.

text:
    [L. A. No. 15740.
    In Bank.
    November 26, 1937.]
    BEN BOYAR, Appellant, v. WARREN W. KRECH, Respondent.
    Ben C. Cohen, Martin Gang and Robert E. Kopp for Appellant.
    Sherman & Sherman and W. B. Thomas for Respondent.
   LANGDON, J.

This action was brought for a declaration of rights under an agency contract.

In Í931, defendant, an actor on the New York legitimate stage, was desirous of entering moving pictures. On March 14, 1931, he entered into a contract with plaintiff, a theatrical agent, by the terms of which defendant engaged plaintiff to act as his manager and personal representative. The agreed compensation was 10 per cent of money received by the actor for any engagements during the term of the agreement. The specified term was one year, but an additional provision read as follows:

“It is further agreed between the parties hereto that should the Artist be under contract to a motion picture company, as a result of options accruing from an original contract and such options or contractual periods extend beyond the life of this contract, that all the terms of this contract shall be in force through all such optional or contractual periods.”

On March 12, 1931, two days prior to the execution of the said agency contract, plaintiff had secured an engagement for defendant with Warner Bros. Pictures Corporation. In his previous stage work, defendant had been earning a salary of about $650 per week; under the Warner contract, in the standard form of motion picture contract, his salary commenced at $750 per week for an original period of 26 weeks, commencing March 23, 1931, with a number of options in the studio to extend the employment for additional 26-week periods at increased compensation. Defendant’s first pictures were unsuccessful, and’ the first option was not exercised at the stipulated rate of $1,000 per week, but an agreed reduction to $850 per week was adopted. Other options were eventually exercised until some time in 1933.

In the early part of 1932, however, defendant was dissatisfied with his compensation. Plaintiff’s activities in California were conducted through the William Morris Agency, his western representative, and defendant took up the matter of modification of the Warner contract with Mr. Feil of this agency. He was advised that because of depressed conditions the action was not desirable. In March, 1933, shortly after the national bank holiday, the motion picture studios proposed a general waiver of one-half salary to their employees, and defendant signed a waiver agreement in accordance with the terms of the “Emergency Bulletin” of the Academy of Motion Picture Arts and Sciences. This agreement was dated March 14, 1933, and provided for waiver during an eight weeks' period beginning March 6, 1933, and ending April 30, 1933. Warner Bros, studio paid salaries at the reduced rate, but a dispute arose with the emergency committee of the academy, as a result of which the committee decided that back salaries withheld under the waivers should be paid. About this time, defendant thought it possible to secure a release from the Warner contract, and consulted Mr. Feil and the attorney for the agency. On April 18, 1933, a letter drawn by said attorney and signed by defendant was sent to Warner Bros., stating that because of the studio’s failure to comply with the terms of the Emergency Bulletin, and because of lack of consideration, the defendant did not consider himself bound by the waiver agreement, and accordingly demanded payment of the sums withheld. The studio, however, sent the unpaid sum dating only from April 10th.

Subsequently, defendant consulted other counsel, and engaged M. C. Levee, another agent, to negotiate for him. Under instructions of his counsel, on May 2, 1933, defendant sent another letter to Warner Bros, demanding payment of the money withheld by May 6, 1933, and advising the studio that on refusal the defendant would consider the Warner contract void. The object of the letter was coneededly to terminate the contract, if possible, in order that defendant might be free to negotiate with the studio or others for better terms. The studio at this time notified defendant that under the terms of his contract it had loaned his services to Columbia Pictures Corporation for a new picture, and that he should be ready to serve. Defendant’s counsel replied that defendant would not comply with this order, because the Warner contract had terminated on May 6, 1933. The letter suggested that if a new contract was desired, defendant would be willing to discuss terms. Negotiations followed, and on May 9, 1933, a new contract was entered into between defendant and Warner Bros, for one year, commencing at a salary of $1750 per week, with four additional yearly options at increased salary. The contract referred to the previous Warner contract, and declared that such contract and all former agreements and understandings “shall be deemed to be terminated and at an end”. A few hours before the signing of this new agreement, defendant wired plaintiff: “I have not secured representation by you while in California and as oxir agreement has expired I no longer want you to represent me or act in my behalf.” On June 6, 1933, the new agreement of May 9th was replaced by a more detailed instrument substantially similar in terms, and declaring that as of the date of May 9th, it should be deemed to supersede and cancel all prior agreements, particularly the original contract of March 6, 1931.

The present action was thereafter brought by plaintiff. The prayer of the complaint requests a declaratory judgment on the rights of the parties under the agency contract of March 14, 1931, and also asks for costs- and for “such other and further relief as to the Court seems meet and proper ’ ’.

Plaintiff’s theory was that his one-year agency contract with defendant, made on March 14, 1931, did not expire at the end of the year; but continued under the extension provision as the various options were exercised under defendant’s Warner Bros, contract; and that the new agreements with Warner Bros, made on May 9, 1933, and June 6, 1933, grew out of and were “a result of” options under the original Warner contract, and hence, like these options, continued in force the agency contract between plaintiff and defendant.

The court’s findings and conclusions of law were that defendant’s telegram of May 9, 1933, stating that he no longer desired plaintiff’s representation, operated to discharge and terminate the agency contract on said date; that defendant’s original contract of March 12, 1931, with Warner Bros, terminated on May 6, 1933; that the Warner Bros, contracts of May 9, 1933, and June 6, 1933, were entirely new agreements, with different terms, and having no connection with the original Warner Bros, contract and neither of the 1933 contracts was entered into as a result of options accruing from the original 1931 contract.

The court further concluded that “defendant is entitled to 'a judgment that plaintiff take nothing by way of his complaint, and that defendant recover his costs expended herein. ’ ’

The first contention made by plaintiff on this appeal is that the judgment of the court that ‘ ‘ plaintiff take nothing by way of his complaint” was improper, since the complaint sought only a declaration of rights and no affirmative relief; and that such judgment was, in fact, a refusal by the court to entertain the complaint for declaratory relief, and a refusal to declare the rights of the parties. Plaintiff’s own complaint would seem to be a simple answer to this contention, for it demands costs and general relief; but we deem it unnecessary to discuss this point, for at best it constitutes a criticism of the form of a portion of the court’s judgment, and raises no issue of substance. Disregarding the criticised statement, the balance of the court’s findings and conclusions of law fully declare the rights of the parties under the contract, and are entirely responsive to the issues raised at the trial.

The other contention of plaintiff attacks the -court’s conclusion on the merits. It is argued that the waiver agreement entered into by defendant with Warner Bros, was supported by consideration and was binding upon defendant; that consequently defendant had no valid ground upon which to terminate his original Warner Bros, contract; that even if Warner Bros, was guilty of a breach in withholding salary due, the amount was small and the withholding was in good faith in reliance upon the waiver agreement, and therefore could not constitute a material breach. Plaintiff concludes that since defendant had no legal ground of termination of his Warner Bros, contract, and was under obligation to plaintiff as long as the Warner Bros, contract continued in force, defendant could not justifiably enter into any voluntary arrangement with Warner Bros, to cancel their agreement and thus destroy plaintiff’s rights under the agency contract.

The above argument, however, proceeds upon certain assumptions of fact and law, concerning which different inferences and conclusions are possible. In the first place, there is no satisfactory evidence in the record to show that the so-called waiver agreement was actually signed on behalf of Warner Bros. Secondly, there is evidence of a serious dispute between the emergency committee and the studio as to whether the studio complied with its obligations under the waiver agreement, as a result of which the committee took the view that the studio had failed to perform and that consequently the agreement was not binding. Under this view, defendant was legally justified in declaring a termination of the original Warner Bros, contract, for breach of its terms requiring salary payments, and such breach, following a period of negotiations and two separate demands for payment, might well be considered a material one. Thirdly, irrespective of the actual legal rights of the parties, there was undoubtedly a serious and bona fide dispute between defendant and Warner Bros, as to whether defendant was bound by the terms of Ms contract, and whether he was entitled to back salary payments. This dispute could be compromised by the cancellation of such contract and the execution of a new agreement with different terms. The fact that the new agreement was made at a considerable increase in salary, and with numerous terms beneficial to defendant which were not in the original contract, is an indication that Warner Bros, conceded that the binding effect of the original contract was at least doubtful.

The above discussion sufficiently shows the soundness of the conclusion of the trial court, and it is unnecessary to discuss various other objections to plaintiff’s action raised by defendant.

The judgment is affirmed.

Edmonds, J., Curtis, J., Shenk, J., Seawell, J., Houser, J,, and Waste, C. J., concurred.

Rehearing denied.


author: CURTIS, J.

text:
    [L. A. No. 16346.
    In Bank.
    November 26, 1937.]
    GEORGE C. JOHNSON, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

      George C. Johnson, in pro. per., for Petitioner.
    Philbrick McCoy for Respondent.
   CURTIS, J.

This is a proceeding to review an order of the Board of Governors of The State Bar, adopting the findings of one of its local administrative committees, and recommending to this court that petitioner be disbarred from further practice of law in this state.

We have examined the record with care, and are satisfied that the evidence adduced at the hearing before the local administrative committee is sufficient to support the findings of said committee and to justify its conclusion that petitioner has been guilty of conduct involving moral turpitude and should be disbarred. The gravamen of the charge against petitioner is that he made a false statement in a sworn declaration of candidacy for the office of judge of the Superior Court of Los Angeles County, to the effect that his occupation for the past three years had been that of practicing lawyer whereas in fact he was then and had been under suspension for almost five months prior thereto. Petitioner was admitted to practice in California in 1927 upon motion, having previously practiced in Illinois and Texas. On December 23, 1935, by order of this court, petitioner was suspended from practice for a period of three years upon two separate charges, said suspension to commence thirty days from the date of the filing of said order of suspension. (Johnson v. State Bar, 4 Cal. (2d) 744 [52 Pac. (2d) 928].) On June 20, 1936, the petitioner presented to the registrar of voters in the county of Los Angeles his sworn declaration of candidacy for the nomination to the office of superior judge of Los Angeles County, to be voted for at the primary election to be held on the 25th of August, 1936. The form for such declaration is specifically set forth in the Direct Primary Law. (Stats. 1933, pp. 358, 362, 363.) In said sworn declaration of candidacy, petitioner described his “occupation for the past three years” as follows: “Lawyer, practicing, and admitted to practice since 1927 in California”, and described his “present occupation” as “Lawyer”. The registrar refused to accept the said declaration of candidacy for filing and returned the filing fee. The document was, however, retained by the registrar of voters, who stated to petitioner that he would seek further legal advice as to whether he should file it. Several days later he notified petitioner that he had been authorized not to accept it for filing, but did not return the document to petitioner. On July 2, 1936, petitioner filed in this court a petition for a writ of mandate praying this court to issue a writ of mandate directed to the registrar of voters of Los Angeles County requiring said registrar to declare said petitioner a duly qualified and eligible candidate for judge of the superior court. Said petition was denied by this court on July 10, 1936. On July 15, 1936, petitioner filed in the Superior Court of the County of Los Angeles a verified petition for a writ of mandate seeking the same action by the superior court as had been sought by him in this court, and failing to show by affidavit, or otherwise, that he had theretofore made a similar application in this court. For such failure, petitioner in the Superior Court of Los Angeles County was found guilty of contempt in accordance with the provisions of section 1008 of the Code of Civil Procedure. Thereafter petitioner was served with an order to show cause why he should not be disciplined for professional misconduct by reason of the facts hereinabove set forth.

In Townsend v. State Bar, 4 Cal. (2d) 619 [51 Pac. (2d) 879], an almost identical situation arose. In that case the petitioner therein was charged with having filed, on two occasions, sworn declarations of candidacy for election to the superior court wherein he stated that he had been in active practice of the law during the preceding three years, when in fact he had been under suspension during a portion of that time. The local administrative committee found that said false statement was made with intent to deceive the registrar of voters, or persons entitled to inspect and rely upon the statement, and the board of bar governors recommended a suspension for- six months. In accordance with such recommendation, this court suspended the attorney for said period. Petitioner attempts to distinguish his case from the Townsend case by pointing out that in the Townsend case the attorney therein could not truthfully state that he had practiced law during the preceding three years inasmuch as he had appeared in court only in propria persona, whereas he, the petitioner herein, had during his period of suspension been representing a client in the federal court, and could truthfully aver that his occupation was that of a practicing lawyer. It may be admitted that, if the statement of petitioner with reference to his occupation be taken away from the context in which it was used, and entirely divorced from the purpose for which it was uttered and the result intended to be accomplished by its use, then the argument may seem plausible that the sworn statement was not a misstatement. But when said statement is considered in connection with the surrounding situation, and in conjunction with the fact that it was made in a sworn declaration of candidacy for nomination to the position of a judge of the superior court of this state, it is obvious that the statement was deceptive, dishonest, and untruthful, and was deliberately made with the intention of giving an impression which was not correct. Article VI, section 23, of the California Constitution provides that, “No person shall be eligible to the office of ... a judge of a superior court . . . unless he shall have been admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election or appointment to such office. ’ ’ It follows that no one is eligible to hold the office of superior judge who has not been an admitted practitioner before the Supreme Court of this state for a period of five consecutive years immediately preceding his election or appointment to such office. Certainly an attorney who has been suspended from the practice of law during this period cannot successfully claim to be eligible. (State v. Monfort, 93 Wash. 4 [L. R. A. 1917B, 801, 159 Pac. 889].) It is self-evident, we think, that said provision requires as a fundamental qualification for the office of superior judge, that the candidate for such position be qualified as an attorney actually entitled to practice in the state courts, and when petitioner in his sworn declaration of candidacy for such position made under oath the statement that his occupation was that of “lawyer” and his occupation for the three years immediately preceding was that of “lawyer, practicing, and admitted to practice since 1927”, there cannot be the slightest doubt that he intended thereby to convey the idea that he was in fact a lawyer legally entitled to practice in the state courts. These statements of petitioner, considered in their context as they necessarily must be, were false and were undoubtedly made with the intent to deceive. Clearly, the local administrative committee was justified in so finding.

Some stress is laid by petitioner upon the fact that in the Townsend case, the attorney therein actually filed the declaration of candidacy containing the false statements, whereas in the instant proceeding petitioner was prevented from filing said declaration by the refusal of the registrar to accept said document for filing. Petitioner did everything which he possibly could do to bring about the filing of the document, even to the extent of seeking a writ of mandate from this court and from the Superior Court of Los Angeles County. The fact that petitioner was unable to accomplish his purpose of filing the document does not minimize in the slightest degree the moral turpitude involved in the making of the false statement under oath. Disciplinary proceedings are instituted, not to punish the attorney, but to protect the public, the courts, and the legal profession, and the fact that the attorney was prevented by some factor out. of his control from actually accomplishing a dishonest act, cannot constitute a defense in his behalf.

It is not necessary to discuss the other arguments advanced by the petitioner, that this court has no jurisdiction of this proceeding, that the State Bar Act is unconstitutional, that each member of this court is disqualified because of his relation to The State Bar as “a member and stockholder”, that petitioner is entitled to a jury trial, and that the right to practice law is a valuable property right of which he may not be deprived without due process of law, for the reason that these same contentions were made in the former disciplinary proceeding wherein petitioner was suspended for three years, and were fully and adequately dealt with in the opinion in that case. (Johnson v. State Bar, supra.)

The penalty of disbarment may seem unduly harsh in view of the nature of the charge made against petitioner, but having in mind that the petitioner has heretofore been suspended for three years on two separate charges, that he was found guilty of contempt with reference to matters involving the same subject-matter as the charge here made, together with the fact that petitioner seems to be utterly incapable of realizing that his conduct in the instant case is in the slightest degree blameworthy, we are of the opinion that the recommendation of the board of bar governors should be followed, and the petitioner disbarred from the practice of law in this state.

It is ordered that petitioner be disbarred from the practice of law in all the courts of this state and that his name be stricken from the roll of attorneys, effective thirty days after this order becomes final.

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


text:
    [L. A. No. 15744.
    In Bank.
    November 26, 1937.]
    CORPORATION OF AMERICA (a Corporation), Appellant, v. WALTER B. MARKS et al., Respondents.
    Edmund Nelson, Howard Waterman, Preston & Files, Ralph E. Lewis and Louis Ferrari for Appellant.
    H. L. Bearing for Respondents.
   SEAWELL, J.

Plaintiff prosecutes this appeal from a judgment of dismissal entered after sustaining of defendants’ general demurrer to the third amended complaint without leave to amend.

The complaint is entitled Third Amended Complaint to Enforce and Foreclose Judgment Liens. It appears therefrom that plaintiff corporation procured two judgments against F. O. Marks in the Municipal Court of San Francisco for the aggregate sum of $1129.56. It caused abstracts of said judgments to be recorded in Orange County, and thereby secured a judgment lien upon the real property which is the subject of this action. F. 0. Marks, the judgment debtor. subsequently died, and his estate was probated in Orange County. Said estate had been finally settled and closed and the executor discharged prior to filing of the third amended complaint. The date of filing of the original complaint does not appear, but from the fact that the executor of the estate was originally named as defendant, and the devisees were thereafter substituted in his place, it is to be inferred that when the original complaint was filed the estate had not been finally closed by discharge of the executor. The real property which is the subject of this action was distributed to Walter V. Marks, Albert J. Marks and Rebecca Marks Penn, residuary legatees, who are the defendants herein.

Plaintiff alleges that it did not file any claim against the estate of P. 0. Marks, deceased, and that it had no knowledge of his death until after the time for filing claims had expired. The sole question presented is whether a judgment creditor who does not learn of the death of his debtor until after the time for filing claims has expired, and who fails to take steps to secure payment of his claim in the course of administration, may thereafter, within five years of the entry of judgment, bring an equitable action to foreclose a judgment lien against those to whom the estate has been distributed.

Section 732, Probate Code (formerly sec. 1505, Code Civ. Proe.), provides that “a judgment against the decedent for the recovery of money must be filed or presented in the same manner as other claims”. The section also terminates the judgment creditor’s right to execution levy and sale upon the death of the judgment debtor, except where execution has been levied on the debtor’s property prior to his death, in which event a sale may be had thereafter. Plaintiff contends that the above section means only that if the judgment creditor would enforce his judgment and judgment lien through the administration proceedings he must file a claim.

Under section 716, Probate Code (formerly sec. 1500, Code Civ. Proe.), plaintiff contends, a judgment lien creditor may bring an independent equitable action to foreclose his judgment lien where he waives recourse against other property of the decedent. Said section provides: “No holder of a claim against an estate shall maintain an action thereon, unless the claim is first filed with the clerk or presented to the executor or administrator, except in the following case: An action may be brought by the holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint; but no counsel fees shall be recovered in such action unless the claim was filed or presented as aforesaid.” (Italics ours.)

The rule as to mortgage liens is well settled. An action to foreclose a mortgage, waiving recourse against other property, may be brought during the course of administration proceedings or after the estate has been distributed. (Dreyfuss v. Giles, 79 Cal. 409 [21 Pac. 840]; German Sav. & L. Soc. v. Fisher, 92 Cal. 502 [28 Pac. 591]; Visalia Sav. Bank v. Curtis, 135 Cal. 350 [67 Pac. 329].)

During the lifetime of the debtor the usual and ordinary method of enforcement of a judgment lien is by execution sale. The judgment lien is designed to secure the priority of the judgment creditor over third persons who may acquire rights in the property between the creation of the judgment lien and the sale of the property upon execution in satisfaction of the judgment. An equitable action to foreclose the judgment lien is not required. (Lisenbee v. Lisenbee, 42 Cal. App. 567, 569 [183 Pac. 862]: 2 Freeman on Judgments, p. 2122.)

Section 732, Probate Code, terminates on the death of the debtor the right of the judgment lien creditor to enforce his lien by levy of execution and sale thereunder. But the death of the debtor does not terminate the judgment lien. (Morton v. Adams, 124 Cal. 229 [56 Pac. 1038, 71 Am. St. Rep. 53]; Estate of Wiley, 138 Cal. 301 [71 Pac. 441]; Hibernia Sav. & Loan, Soc. v. London etc. Ins. Co., 138 Cal. 257 [71 Pac. 334]; Nordstrom v. Corona City Water Co., 155 Cal. 206 [100 Pac. 242, 132 Am. St. Rep. 81].) Said lien continues for five years from the entry of judgment unless sooner satisfied or discharged. (Sec. 674, Code Civ. Proc.) The judgment lien creditor, like the holder of a mortgage lien, may file a claim, and in such event the priority of his lien will be protected in the administration proceeding (see. 950, subd. 7; sec. 762 [formerly 789], Prob. Code), and he will have a claim for any deficiency against the general estate of the decedent.

Defendants contend that enforcement of the judgment lien in the course of the administration proceeding is the exclusive remedy of the judgment lien creditor upon the death of the debtor prior to levy of execution. If a judgment lien is enforceable only through the probate»proceeding, and upon the filing of a claim in that proceeding, it alone is singled out from all other liens. Other liens, by virtue of the provisions of section 716, Probate Code, may be enforced against the property subject to the lien, waiving recourse against other property, notwithstanding the time for filing a claim thereon has expired and the estate has been closed. (Dreyfuss v. Giles, supra; German Sav. & L. Soc. v. Fisher, supra; Visalia Sav. Bank v. Curtis, supra.) The heirs and distributees take subject to such liens. We can perceive of no reason why the legislature should wish to single out judgment liens for separate, less favorable treatment. “A judgment lien has always been regarded as the highest form of security.” (Morton v. Adams, 124 Cal. 229, 231 [56 Pac. 1038, 71 Am. St. Rep. 53].) It is a matter of public record.

We are of the view that section 716, Probate Code, applies to judgment liens, and recognizes a right in the judgment lien creditor to bring an equitable action to foreclose his lien on the death of the judgment debtor. The language of said section is broad. It applies to “mortgages or liens”. As in the case of a mortgage lien, such an action may be brought during the course of the administration proceeding or after the estate has been distributed against those who have succeeded to the property subject to the lien, recourse against other property being waived. Section 732, Probate Code, terminates the right to levy execution upon property subject to the lien, but we find nothing in said section excluding enforcement of a judgment lien through an equitable action brought to foreclose it, which right is recognized as to mortgages and other liens generally by section 716. There is a difference between an execution levy and sale by the sheriff without prior court order, and a foreclosure sale held pursuant to order of the court in an equitable action for foreclosure.

In this analysis, the requirement of section 732, Probate Code, that “a judgment against the decedent for recovery of money must be filed or presented in the same manner as other claims”, means that if the judgment lien creditor would obtain payment of his judgment through the administration proceeding, with a right to a deficiency in the event the property subject to the lie'n is insufficient to pay him in full, he must file a claim notwithstanding his debt has already been reduced to judgment. This is the rule which applies to mortgages and other iiens.

In Hibernia Sav. & Loan Soc. v. London etc. Soc., supra, the judgment debtor before her death conveyed the property subject to the judgment lien to her daughter. The conveyance to the daughter did not, of course, extinguish the judgment lien. The death of the mother terminated the creditor’s right to execution sale. Since the property had been conveyed before death and constituted no part of the mother’s estate, the creditor could not enforce its lien in the course of the administration proceeding upon the mother’s estate. In a suit brought by the holder of the first mortgage lien on the property it was held that the holder of the judgment lien, which was a junior incumbrance, could by cross-complaint enforce said lien. (See, also, Everett v. Hayes, 94 Cal. App. 31 [270 Pac. 458].) In the instant case the judgment lien creditor had the remedy of enforcement in the probate proceeding, since the property subject to the lien was part of the estate of the judgment debtor. But said decision is an illustration of the principle that in a proper case a judgment lien may be enforced through an equitable decree for foreclosure. By virtue of the provisions of section 716, Probate Code, we are of the view that such an action lies in the instant case, and that enforcement through the probate proceeding, upon a claim filed, was not an exclusive remedy.

The judgment is reversed.

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


text:
    [Crim. No. 4129.
    In Bank.
    November 26, 1937.]
    THE PEOPLE, Respondent, v. FRANCISCO CANCINO, Appellant.

      Frederic H. Vercoe, Public Defender, John J. Hill, Deputy Public Defender, for Appellant.
    U. S. Webb, Attorney-General, John 0. Palstine, Deputy Attorney-General, Buron Fitts, District Attorney, and A. H. Van Cott, Deputy District Attorney, for Respondent.
   SEAWELL, J.

The defendant was duly convicted in the Superior Court of the County of Los Angeles of murder of the first degree. The information filed against him charged him with having, on or about March 17, 1937, in said county, murdered one Mrs. Olga Valle. The jury having refused to exercise its discretion in his favor, as it was empowered to do by the provisions of section 190, Penal Code, and relieve the defendant of the infliction of the extreme penalty of the law, the court in obedience to the command of the law adjudged that, as the penalty for his crime, he should suffer death, as provided by law.

The appeal is presented by the public defender from the order denying defendant’s motion for a new trial, and from the judgment thus pronounced and entered against him.

The crime is the outgrowth of the sordid life led by all of the parties who were in anywise linked to it. We have read the entire transcript of the testimony taken at the trial which exceeds two hundred pages of typewritten matter. The story of the homicide as related by the witnesses and corroborated by the defendant’s confession draws down the curtain on the last act of the illicit relations which had existed between- the unfortunate woman who was slain and the defendant who was urged by a jealous frenzy to take her life.

On the evening of March 16, 1937, at about the hour of 6 o’clock, Mrs. Olga Valle, who was described as a woman of German origin, came to the home of Charles Green, 1529 E. 57th Street, a rendezvous where liquors were illegally dispensed. She was well known to Green, who said she had acted as his nurse during times when he was indisposed. Green was a colored man and his place seems to have been one frequented indiscriminately by men and women of his race and others. She had not been there long before a colored man named Louis Logan arrived. She and Logan soon left for a hospital where they went to call on a mutual friend who was interned at the hospital. Shortly after they had left Green's place the defendant, who is a Mexican, appeared. He inquired of Green as to the presence of Mrs. Valle and Green informed him that she and Logan had gone to the hospital and they were going from there to Chinatown to get some food and they would not return before 10 o’clock P. M. The defendant, according to his statement, had formerly sustained sexual relations with Mrs. Valle but this relationship had been interrupted for some time past.

Some minutes after 10 o’clock, Mrs. Valle, Logan and another colored man named Herbert Lewis arrived at Green's place. The defendant was then in the main room awaiting the arrival of Mrs. Valle. In the meantime two other women were added to the number then in Green’s sitting or living room. Upon the arrival of Mrs. Valle in company with the two persons above named the defendant addressed her and said he wanted to talk with her. Both went into the kitchen. They talked some few minutes but their conversation was inaudible to the persons occupying the sitting room. As they returned to the sitting room the defendant said: “Olga, you don’t love me no more.” She replied: “I don't love you no more, I am through.” The defendant then said: “You can't quit me. I love you. I will kill you—I will kill myself. ’ ’ They were both standing glaring at each other. The brother of the deceased who incidentally was a new arrival, said to the defendant: “Frank, let my sister alone, don’t bother her.” The defendant said: “All right, Jack.” They then stepped out onto the front porch ^and engaged in friendly conversation. As they returned Mrs. Valle had left the house through a back door. Defendant asked Green where Mrs. Valle had gone and when told that he did not know he insisted that he did know and demanded that he bring her in. The defendant began looking for her and while he was outside she returned to the room. The defendant also returned within a few minutes. The couple again went to the kitchen for further conversation at defendant’s request. Their voices could be heard but the only words distinctly heard by the persons in the sitting room were spoken by Mrs. Valle, to the effect, “Frank, I don’t know nothing about it. I haven’t got it.” No one knew the significance of those words. Both came out and sat in the room. The defendant appeared to be in a sullen mood. They were talking in a quarrelsome manner until about 1:30 A. M. He again said he would kill her and kill himself. Finally, Mrs. Valle, who appeared to fear him, slipped out of the room into Green’s bedroom and locked the door. Jim Turner, an Indian, had also arrived at the place and was in the room during a good part of the evening. Mrs. Valle called from the room and asked if Jim Turner would drive her home. On being assured that he would she returned to the sitting room and as she and Turner went down the steps she called to Herbert Lewis to come with them as she was afraid to go home. Lewis complied with the request and Mrs. Valle left in Turner’s car accompanied by- Turner and Lewis. The defendant left the premises some ten minutes later and was not seen until immediately before the commission of the crime, some hours thereafter. Green said that defendant appeared to be in a morose mood and said very little, if anything, to those present except Mrs. Valle. When he departed for the evening he said to Green that he would see him again.

Lewis, Turner and Mrs. Valle drove to her home and found that she had lost or misplaced the key to her house and they then went back to Green’s place in quest of the key but found it closed. Returning from Logan’s house where they had gone in search of the key, to Mrs. Valle’s home, they stopped and bought some food. Upon arriving at Mrs. Valle’s home, No. 5737 South Durate Street, they found the door locked. They forced the lock and entered. This was at about 2 o’clock A. M., March 17th. Turner remained about ten minutes, leaving Lewis and Mrs. Valle at the house. Lewis testified that he was frying eggs for Mrs. Valle in the preparation of a sandwich he was making for her. She was in the bedroom in her night robe lying on the bed. He said that while he was in her room near the foot of her bed he heard the back door crash and in came the defendant with a large dagger in his hand and he made a desperate lunge at him. Lewis by timely bodily maneuvers succeeded in avoiding defendant’s knife thrusts and was closely pursued by defendant as he made a hasty retreat down the front steps. As he paused in the yard for a moment he heard four screams coming from Mrs. Valle’s bedroom. The first and second were very loud; the third not so loud and the fourth was very feeble. The defendant then left the house by the rear door and in leaving the premises he passed near the badly frightened Lewis. Neither spoke a word. After a few minutes Lewis entered the house and discovered the body of the deceased in a corner of the room partially under the bed. The floor and walls were bespattered with blood and he thought she was dead at the time he entered. He notified the sheriff’s office and the officers arrived within a short time thereafter.

Manuel Bodriguez lived with his family in a house which was but fifteen or twenty feet from the house occupied by Mrs. Valle. He was awakened at about 3:30 on the morning of March 17th by the screams of a woman. The screams were several seconds apart, and emanated from Mrs. Valle’s room. The first was very loud; the second not quite so loud; the third much weaker and the fourth was quite faint. As he opened his bedroom window he heard a door slam, and saw the defendant leaving the premises. The defendant ran into an obstruction and changed his course. In strong language he commanded him to stop. The defendant momentarily halted and raised his face toward Bodriguez's window. Ho muttered some expletive, “Oh my," or “I," bent over and ran from the premises and was afterwards apprehended and lodged for a time in the Santa Ana county jail.

The report of the autopsy physician made on the body of the deceased was admitted in evidence on the stipulation of the attorney for the defense. The report stated that twenty wounds were visible on the chest and left arm and forearm of the deceased. Two penetrated the right lung. Two penetrated the right ventricle of the heart. Some of the other wounds were deep and others were superficial. There existed no question as to the cause of death. The defendant did not take the witness chair in his defense but he made a statement or confession as to the commission of the crime which in all material respects agrees with the testimony adduced at the trial. Evidently he had gone to the home of the deceased and awaited her expected arrival with Lewis. From without he had observed his action in relation to Mrs. Valle. He said he broke through the door when he saw Lewis preparing to go to bed with Mrs. Valle. His statement in this respect under the circumstances of the situation is very persuasive. He attributed his act to jealousy. He gave his age as forty-nine years. He also said that his blood was impure. There was no evidence as to mental irresponsibility and he said that he had drunk four or five glasses of beer during the evening but that he was sober. While it is true that the abandonment of all sense of moral duty on the part of the unfortunate woman was exhibited in a shocking degree, the law will not justify or excuse the putting to death of such person unless in so doing it is necessary for the protection of the life or limb of the one who kills. No legal reason whatever is offered in extenuation of the crime admittedly committed by the accused. The defendant admitted that he had threatened to kill her on other occasions. He claimed that she had tricked him in some unexplained manner. Premeditation and deliberation extending over a period of four or five hours clearly appear. The knife which defendant used was described by him as “one of those long handled knives with a long blade”. He said the blade was more than four inches in length. He did not claim that the woman made any attempt to strike him and the inference, from his statement as to the merciless assault, is that she fell to the floor wounded very early after he reentered her bedroom.

Appellant in his brief frankly concedes the proposition that no question is presented as to the guilt of the defendant, and that the sole question presented is as to whether the jury was adequately instructed as to the degrees of murder, particularly as to murder of the second degree and also as to the discretion reposed in the jury to relieve the defendant of the extreme penalty prescribed by the statute.

Appellant, in his brief, takes the position, as stated by him, that the question is “not whether the evidence in the case will sustain a verdict of guilty but whether a different verdict than the one the jury rendered would have been returned if no errors had been committed”. No errors are claimed as to the admission or rejection of evidence, but the sole claim of error is placed upon the rejection of certain instructions offered by defendant as to the law of murder of the second degree and the inadequacy of the instructions which were given by the court as to the elements which must necessarily appear to constitute murder of the first degree. As to the latter degree, it is also contended that the jury was not as fully instructed in the exercise of its discretion as is usual in cases involving the death penalty.

Most, if not all of the instructions, offered by defendant were refused. He complains that certain instructions given by the court were sketchy and inadequate. As to the subjects above noted he cites and quotes from People v. Cook, 148 Cal. 334-347 [83 Pac. 43], wherein this court reversed the judgment for the reason that a proffered instruction requested by the defendant was refused. It is there said, former Chief Justice Beatty, writing the opinion: ‘‘The court, however, refused the instruction and its refusal is justified on the ground that another instruction framed on the same point was given. It is true that the instruction given stated the law correctly; but it was brief, general, and colorless in comparison with the instruction asked, and had the effect of minimizing the importance of a consideration which could not have been stated with too much emphasis. The instruction as asked, should have been given.”

The court in the instant case gave to the jury the definition of murder as set forth in section 187, Penal Code; also the definition of malice and the degrees of murder, as defined in sections 188 and 189, respectively of said code. Section 189 does not specifically describe murder of the second degree. After describing murder of the first degree it closes the subject with the clause, ‘‘and all other kinds of murder are of the second degree ’ ’. The court gave an instruction which did somewhat amplify the concluding clause of section 189, Penal Code. In distinguishing the two degrees it instructed the jury that to constitute murder of the first degree the ‘‘unlawful killing must be accompanied with a deliberate and clear intent to take life in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation. It must be formed upon a preexisting reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation.” Again the jury was told that if the circumstances show an abandoned heart it is murder of the second degree, unless the evidence proved the existence in the mind of the slayer of the specific intent to take life. While several instructions offered by the defendant and refused by the court were more elaborate, and perhaps would have given the jury a clearer understanding of the law as to murder of the second degree than the abstract definitions given by the court, we cannot say that they fail to meet the requirements of the law. Appellant also complains of the court’s refusal to give approved instructions founded on basic principles of criminal law and the substitution of others which were weakened by phraseology, by modification or eliminations, while the prosecution’s instructions were couched in strong and virile language. As a ground of complaint he cites the instruction as to the discretion which the law reposes in the jury to relieve the accused of the extreme penalty of the law. We agree that it would be more satisfactory in death penalty eases if the court would instruct the jurors that if they entertain a reasonable doubt as to which one of two or more punishments should be imposed, it is their duty to impose the lesser. This rule should prevail in every case where the punishment is divided into degrees and the jury is given discretion as to the punishment. We feel, however, that the jury was fully informed as to its discretion by the last instruction given in the case, as follows: “. . . It is entirely for the jury to determine which of the two penalties is to be inflicted in ease of murder in the first degree, the death penalty or confinement in the state prison for life. If the jury should fix the penalty at confinement in the state prison for life, you will so indicate in your verdict. If, however, you fix the penalty at death, you will say nothing on this subject in your verdict, nor will you specify the death penalty in your verdict. In the exercise of your discretion as to which judgment shall be inflicted you are entirely free to act according to your judgment.” The foregoing language clearly informed the jury that it had the discretion of relieving the defendant of the death penalty.

There was no semblance of manslaughter in the ease and the defendant was not legally entitled to an instruction as to manslaughter unless such an instruction was rendered material by the instruction given by the court as to the shifting of the burden of proof (see. 1105, Pen. Code), wherein it is provided that the homicide being proved and the proof offered on the part of the prosecution to establish the homicide tended to show that the crime committed amounted to manslaughter or that the defendant was justifiable or excusable. The proof incontrovertibly showed the crime to be one of murder of the first degree.

We state here, and we do not mean to confine our observations solely to the instant ease, that there seems to be an expanding tendency, on the part of trial courts particularly in aggravated cases of homicide, to curtail and limit the instructions by qualification and selection of phraseology, which have to do with the cardinal principles of criminal law to such an extent as to give basis of complaints which are too frequently presented to our appellate courts for review. Any attempt to improve on the pronouncements of the law of homicide which are the product of our most profound minds in the study of criminology and its relation to sociology is attended with dangers of overstepping the age-old axioms which have long stood as the measure by which human responsibility has been appraised.

We have, in our reports, a long approved thesis on the law of homicide in the case of People v. Iams, 57 Cal. 115. In that case the definition of murder in its different degrees is set forth in logical sequence and gives to the jury a complete understanding of the subject of homicide and the definition of reasonable doubt which has been carried into section 1096, Penal Code. We do not mean to say that in exceptional cases there may not be need for the court to meet a new or extraordinary situation by special instructions, but we do say that the cardinal rules there set forth as to the law of homicide furnish a safe and complete guide as to the subjects of which they treat. This court, in affirming the judgment in the lams case, in commenting on the instructions felt that it was “obliged to say, in justice to the learned judge who presided at the trial, that the charge to the jury is a very clear and able statement of the law of homicide”.

Returning to the instant case, it may be said in consideration of the evidence and the statement made by the defendant, a plea of guilty would not have given additional strength to the conclusive character of the case made against him as to first degree murder. In justice to his defense it may be added that he did say in his statement that the relations which he witnessed as about to be entered into between his former amour and Lewis so stirred him with a feeling of outrage and indignation that he completely lost control of himself and he was thereby impelled by force of such mental perturbation to commit the acts which resulted in immediate death.

We must assume that the jury considered this feature of the case in determining whether the acts were the result of a sudden heat of passion and the motivating cause was sufficient to cause a reasonable person to act as he acted, and it determined, under all the circumstances of the case, that there did not appear sufficient reason to relieve the defendant of the extreme penalty of the law or to reduce the crime to second degree murder.

We find nothing in the record that would justify this court in interfering with the judgment.

The order and judgment are accordingly affirmed.

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

Edmonds, J., concurred in the judgment.