author: THE COURT.

text:
    [S. F. No. 16202.
    In Bank.
    June 29, 1939.]
    PETER P. McDONOUGH et al., Petitioners, v. REX B. GOODCELL, as Insurance Commissioner, etc., Respondent.

      Leon Samuels and Charles H. Brennan for Petitioners.
    U. S. Webb, Attorney-General, Earl Warren, Attorney-General, Neil Cunningham, Deputy Attorney-General, and Walter K. Olds, Deputy Attorney-General, for Respondents.
   THE COURT.

This is an application for the writ of mandamus to compel the respondent Insurance Commissioner to issue to the petitioners a permit to conduct a bail bond business in San Francisco.

The petitioners are copartners and as such had for many years conducted a bail bond business in San Francisco. In 1937 the legislature enacted the Bail Bond Regulatory Act (Stats. 1937, p. 1797), the purpose of which was to regulate the business commonly known as the bail bond business. This statute was enacted as an amendment to the Insurance Code and is incorporated in sections 1830 to 1830.42, both inclusive of that Code. Section 1880.20 provides that no person shall write or furnish bail, bonds for compensation or engage in the bail bond business in the state without first securing a permit to do so from the Insurance Commissioner. The law went into effect on August 27, 1937.

In due form the petitioners filed their application with the Insurance Commissioner for a permit to conduct a bail bond business. By section 1830.24 of the act it is provided: “The commissioner may issue a written permit to any person wishing to engage in the bail bond business upon application therefor accompanied by proof that the applicant is a fit and proper person to engage in such business.”

Obviously for the purpose of obtaining information of the facts concerning the fitness of the applicants to receive the requested permit the commissioner held public hearings at which the petitioners and all other parties interested were afforded full opportunity to be heard. The hearing commenced on October 6, 1937, and was concluded on October 23, 1937. More than forty witnesses were called and examined. Many documents were introduced in evidence. The transcript of the testimony taken at the hearing contains nearly one thousand pages. ' Numerous witnesses testified before the commission that the petitioners were of good moral character and numerous witnesses testified that their moral character was bad. After the hearing the commissioner denied the application on the ground that the petitioners were not persons of good moral character and that they were not fit and proper persons to engage in the bail bond business. The petitioners then sought to test the lawfulness of the order of denial by injunction proceedings and by habeas corpus proceedings, the decision in the latter being found in Ex parte McDonough, 27 Cal. App. (2d) 155 [80 Pac. (2d) 485.] Being unsuccessful in both of those proceedings, and some nine months after the application for the permit was denied, the petitioners commenced the present proceedings in the District Court of Appeal. Upon the return to the alternative writ the matter .was submitted on the petition and the answer and upon the transcript of the testimony taken and documents received at the hearing before the commissioner. By a divided court the District Court of Appeal entered an order granting the peremptory writ as prayed. A petition for hearing in this court was granted and after hearing and argument the matter is submitted to this court on the same record that was before the District Court of Appeal.

A question of procedure will first be disposed of. The petitioners contend- that in an original mmdamus proceeding in that court, the District Court of Appeal is the trial court, and that when evidence is there presented and the court on conflicting evidence has announced a conclusion thereon, such conclusion is binding on this court. In other words it is contended that in such a proceeding the District Court of Appeal is the trial court and this court the reviewing court, and that the same rules should apply to such a review as are applicable on an appeal from the superior court. There is no merit in the contention. The practice is too well settled to require extended notice. When an order of transfer from the District Court of Appeal to the Supreme Court is made the decision of the District Court of Appeal is set aside and the matter is then pending in this court the same as if originally lodged here. As applied to an original proceeding such as the present one a quotation from the case of Rockridge Place Co. v. City Council, 178 Cal. 58, 60 [172 Pac. 1110], will be sufficient. It was there stated: “When such an order is made within the time prescribed in the constitution the decision of the district court of appeal is vacated and the matter is transferred to this court for determination of all the material questions involved therein, to the same extent as if originally instituted in this court. It is also immaterial that the opinion of the district court of appeal may not show any error upon its face, when considered without regard to the record. The practice established by our decisions (People v. Davis, 147 Cal. 346 [81 Pac. 718]; Burke v. Maze, 10 Cal. App. 206, 215 [101 Pac. 438, 440]; Rauer’s Law etc. Co. v. Berthiaume, 21 Cal. App. 670, 675 [132 Pac. 596, 833]), to the effect that in considering petitions for a hearing in this court of appeals required by our constitution to be taken to a district court of appeal, we will consider only the opinion of that court and will not look into the record, is confined to appeals, and has never been extended to original proceedings instituted in such courts. There are material differences between the two classes of matters, which, to our minds, preclude any such extension of the practice, or, at least, render it inadvisable to declare any such rule as to original proceedings instituted in a district court of appeal. There is no question of power involved in this regard. The power exists as to all matters, and has been exercised in this particular matter, with the result that the proceeding is now here for determination on its merits.” (See, also, Estate of Stierlen, 199 Cal. 140 [248 Pac. 509].)

Coming to the merits of the present application for the writ it must first be said without hesitation, that the conduct of a bail bond business is such a business as is subject to reasonable regulation under the police power of the state. The legislature has properly determined that abuses have arisen or may arise which make it necessary or desirable that there be some public supervision of that business. A contrary contention is entirely without merit. Also it may properly be concluded that one of the reasonable regulations which may be imposed is that a permit from some duly constituted authority be obtained as a condition to the transaction of such business, and that a permit may be denied to any person found not to be a fit and proper person to engage in such busifiess. Section 1830.24 above quoted would seem, to be sufficient authority to refuse a permit to. a person who is not a fit and proper person to engage in the bail bond business. But to remove all doubt on that subject the legislature has provided in section 1830.28 as follows: ' ‘ The commissioner may refuse to issue any permit applied for unless it is made to appear that the applicant therefor is of good moral character and a fit and proper person to engage in the bail bond business.”

When the question arises a? to who is to determine whether the applicant is a fit and proper person to engage in-such business we necessarily look first to the statute and find that in this case it is the Insurance Commissioner. There can be no doubt of the power of the legislature to confer upon such an administrative officer the authority to ascertain the prerequisite facts. In Whitten v. California State Board of Optometry, 8 Cal. (2d) 444 [65 Pac. (2d) 1296, 115 A. L. R 1], it was said: “Agencies engaged in making administrative determinations, unlike courts, have the power and facilities to investigate and initiate action and, more or less informally, find the facts which under the law justify a course of action. They cannot and do not declare the law but perform the whole duty of ascertainment.”

The legislature has the power to vest in a public officer the discretion to deny an application for a permit to engage in a business subject to regulation when prerequisite facts do not exist. But such a discretion must be exercised within legal bounds. Those bounds are generally that the discretion of the administrative officer or board may not be exercised arbitrarily, capriciously, fraudulently, or without a factual basis sufficient to justify the refusal.

Numerous instances may be noted where the legislature has vested discretion in an administrative board or officer to ascertain the facts and in accordance with. those facts, to grant or deny a permit to engage in a business which is so subject to regulation. In Riley v. Chambers, 181 Cal. 589 [185 Pac. 855, 8 A. L. R 418], the discretionary power vested in the Real Estate Commissioner was under attack. That act authorized the commissioner to refuse a license if he was not satisfied that the applicant was “honest, truthful and of good reputation”. It was said (p. 595): “But it may be said that the power of the commissioner to refuse a license if he is not satisfied as to the character of the applicant practically gives him arbitrary power as he alone can determine whether he is satisfied or not. This, however, is not true. While the commissioner has the power to refuse a license if he is not satisfied as to the character of the applicant, his discretion is not arbitrary. There must exist facts which reasonably justify his conclusion that the applicant is not of good character and reputation. If such facts do not exist, it is his duty to issue the license and this duty can be enforced by the courts.” (See, also, Ex parte McManus, 151 Cal. 331 [90 Pac. 702]; Tarpey v. McClure, 190 Cal. 593 [213 Pac. 983]; Doble Steam Motors Corp. v. Daugherty, 195 Cal. 158 [232 Pac. 140]; People v. Monterey Fish Products Co., 195 Cal. 548 [234 Pac. 398, 38 A. L. R. 1186]; Dominguez Land Corp. v. Daugherty, 196 Cal. 468 [238 Pac. 703]; Bank of Italy v. Johnson, 200 Cal. 1 [251 Pac. 784] ; People v. Globe Grain & Milling Co., 211 Cal. 121 [294 Pac. 3]; In re Halck, 215 Cal. 500 [11 Pac. (2d) 389]; Cranford v. Jordan, 7 Cal. (2d) 465 [61 Pac. (2d) 45]; Gundling v. Chicago, 177 U. S. 183 [20 Sup. Ct. 633, 44 L. Ed. 725]; Hall v. Geiger-Jones Co., 242 U. S. 539 [37 Sup. Ct. 217, 61 L. Ed. 480, Ann. Cas. 1917C, 643, L. R. A. 1917F, 514] ; Douglas v. Noble, 216 U. S. 165 [43 Sup. Ct. 303, 67 L. Ed. 590]; Porter v. Investors Syndicate, 286 U. S. 461 [52 Sup. Ct. 617, 76 L. Ed. 1226].)

In People v. Monterey Fish Co., supra, this court said (p. 558) : “The legislature may, without violating any rule or principle of the Constitution, confer upon an administrative board or officer a large measure of discretion, provided the exercise thereof is guided and controlled by rules prescribed therefor.

The Personal Property Brokers Act was involved in In re Halck, supra. The statute required the issuance of the license if the commissioner should find that “the financial responsibility, experience, character and general fitness” of the applicant were “such as to command the confidence of the community”. This court said on pages 503, 504, in that case: “This means no more than that the commissioner-may decline to license a person or entity, if, on the showing made, there is a reasonable ground for the conclusion that the applicant would not operate his business honestly, fairly or efficiently.' This confers no arbitrary power. If the commissioner acts to the prejudice of an applicant, capriciously, arbitrarily, or solely without basis of right, his act may be supervised and controlled by the courts. The language complained of means no more than similar language construed in the following cases: Riley v. Chambers, 181 Cal. 589 [8 A. L. R. 418, 185 Pac. 855] ; Tarpey v. McClure, 190 Cal. 593 [213 Pac. 983] ; People v. Globe Grain & Milling Co., 211 Cal. 121 [294 Pac. 3] ; Hall v. Geiger-Jones Co., 242 U. S. 539 [Ann. Cas. 1917C, 643, L. R. A. 1917F, 514, 61 L. Ed. 480, 37 Sup. Ct. 217].)”

A survey of the foregoing authorities discloses that it is the settled general rule of law in this state that where the legislature has by statute clothed an administrative officer with power to ascertain die facts with, reference to the fitness of an applicant for a permit to engage in a business subject to regulation under the police power and has vested in such officer the discretion, based on the facts ascertained, to grant or deny a permit to engage in such business the courts will not interfere with the exercise of such discretion except in the case of an abuse thereof. There may be modifications of this general rule under special circumstances not here present, as will hereinafter be noted.

The question here is whether the commissioner abused his discretion in denying the permit to the petitioners. Such abuse of discretion would appear if he acted arbitrarily, capriciously, or fraudulently. No claim can properly be made that he acted capriciously or fraudulently. And he acted arbitrarily only in the event there was no sufficient factual basis for his conclusions.

The testimony before the commissioner was voluminous and highly conflicting. It would serve no useful purpose to set it forth in detail. Many witnesses testified to the good moral character and fitness of the petitioners and many witnesses testified directly to the contrary. Among the latter were the District Attorney of the City and County of Sail Francisco, two assistant district attorneys, the Chief of Police of said city, a deputy attorney-general of the state, the foreman of the grand jury, the president of the Junior Chamber, of Commerce, a former president of the Police Commission of said city, and many others.

Unquestionably the testimony before the commissioner would sustain a conclusion either way upon the issue of the good moral character and fitness of the petitioners to engage in the bail bond business in San Francisco. If the trial had been before a court the evidence was sufficient to support findings either way or was sufficient to support a verdict either way on the issue. With this state of the record our inquiry on this phase of the ease is at an end, for it cannot be said that there was not a sufficient factual basis for the conclusion of the commissioner and therefore he did not act arbitrarily or otherwise abuse his discretionary power in denying the permit.

The petitioners attack the statements made by some of the witnesses who testified against them on the ground that they formed their conclusions as to the general reputation and fitness of the petitioners from the fact that one of them had recently theretofore refused to testify before the grand jury upon the ground that his testimony might tend to incriminate him. But it does not appear that the testimony of those witnesses was based solely on that ground. In any event their testimony was admissible on the issue of character and it was immaterial to consider the reasons why the petitioners had- attained a bad general reputation if, in fact, they had acquired such a reputation, as the witnesses testified.

The contention is made that many of the acts of the petitioners upon which some of the witnesses based their opinion that the petitioners were not men of good moral character occurred prior to the enactment of the bail bond statute and that this evidence was improperly admitted and considered by the commissioner. There is no merit in the point. A person’s general reputation is made up of what his neighbors and acquaintances think of him, basing their opinion on what they have observed or heard regarding his conduct in the past. The enactment of the statute had nothing whatever to do with the reputation of the petitioners. Their reputation, good or bad, existed at the time the statute was passed, and when they attempted to qualify under the statute that reputation when proved was a material factor respecting their right to a permit to transact business pursuant to the provisions of the statute. The respondent asserts that the showing of the bad reputation of the petitioners dated back to the connection of one of them with the disbarment proceedings culminating in In the Matter of the Accusation of the Bar Association of San Francisco v. Sullivan, 185 Cal. 621 [198 Pac. 7], and In the Matter of the Accusation of the San Francisco Bar Association v. Oppenheim, 186 Cal. 75 [198 Pac. 1069]. While the petitioners were not parties to those proceedings it cannot be said that the conduct of one of them with the accused and there subjected to public scrutiny and criticism could not form at least one of the predicates for the opinions expressed by some of the witnesses.

The petitioners’ contention that the bail bond legislation is ex post facto is likewise without merit. The statute does not purport to prescribe a penalty' for past delinquencies. It acts in futuro. (See Foster v. Board of Police Commrs., 102 Cal. 483 [37 Pac. 763, 41 Am. St. Rep. 194].) The fact that the petitioners are denied certain privileges under the act by reason of their present existing inability to meet the conditions imposed by it in nowise affects its operation.

It is contended by the petitioners that, since they owned and conducted a lucrative bail bond business before the statute was passed, the enactment of the statute and the order of the commissioner herein deprived them of their property without due process of law. But this is not so. The fact that the petitioners enjoyed for many years the unregulated right to conduct a bail bond business would in nowise prevent the legislature from enacting a statute immediately effective as to them provided their business be one that is subject to reasonable regulation under the police power of the state. As above stated the business of the petitioners is of such a nature that the requirement of a permit to conduct the business only upon a showing of fitness is unquestionably a reasonable one. The enactment operated immediately upon their status as bail bond brokers. From that time forward the conduct of their business was unlawful except under the conditions imposed and which they have been unable to meet. The enactment of reasonable regulations under the police power results in no deprivation of property without due process of law. The fact that a valuable business was built up without such regulation is no obstacle in the way of proper regulatory legislation immediately effective on all engaged in the theretofore unregulated business. Said legislation does not invade any constitutional right.

It is insisted that the bail bond statute fails to provide for notice and a hearing; that since this is so the statute is invalid, and that therefore the hearing conducted by the commissioner was entirely ineffectual to afford due process. The answer is that the notice and hearing which it is insisted the statute fails to provide for could in any event be only such notice and hearing as would afford due process when it is contemplated that some constitutional right is claimed to be invaded. Here, the hearing was not for the purpose of affording the petitioners an opportunity to resist an invasion of a constitutional- right but was for the purpose of enabling the commissioner fairly and intelligently to determine whether a right should be granted to the petitioners, namely, a.right to engage in a business the conduct of which, without a permit, was unlawful.

Nor did the order of the commissioner denying the permit deprive the petitioners of their property without due process. True, the statute had the effect of terminating their right to do business without a permit, but owing to the nature of the business, the legislature had the right to so terminate it conditionally, under its constitutional power to regulate such business. “Where the purpose"of the. statute is to protect the public from unfit persons, it is constitutional, although it disqualifies a person, by reason of past acts, from continuing in the practice of his profession, or from remaining in his business. ’' (12 Corpus Juris, p. 1106, sec. 815, and cases there cited.)

Since the argument in this proceeding, and on March 16, 1939, this court decided the case of Drummey v. State Board of Funeral Directors & Embalmers, 13 Cal. (2d) 75 [87 Pac. (2d) 848]. In a brief filed after the decision in that case the petitioners insist that the former and well-established rule with reference to the control by the courts of the discretionary power of an administrative officer has been so modified by that decision as in effect to require this court to weigh the evidence, judge of the credibility of the witnesses, exercise an independent judgment on the evidence and render its decision accordingly. In other words it is contended that under the ruling in the Drummey case this court should, in this mandamus proceeding, substitute its discretion for that of the commissioner and thus to that extent take over the administrative functions of the commissioner.

Prom a reading of the Drummey case it is obvious that the holding therein authorized an extension of the traditional functions of a proceeding in mandamus in the superior court. It i,s noted that "the petitioners in that case were possessed of licenses to engage in the business of funeral directors and embalmers, which were recognized to •be valuable property rights. The state board, respondent in that proceeding, had ordered the licenses of the petitioners suspended for alleged unlawful soliciting of dead bodies. It was held- that the superior court in such a proceeding had the power to exercise an independent judgment on the facts presented to it and thus inquire into and determine the question of the lawfulness of the order of the board, and that the petitioners had the right to require that the trial court conduct what would be in substance and effect a trial de novo in the course of which the parties would not be limited to the record made before the board. The ruling in the Drummey ease constitutes an exception to the general rule which is decisive of the present matter, and the occasion for establishing such an exception "was brought about by recent holdings of the Supreme Court of the United States, particularly in St. Joseph Stock Yards Co. v. United States, 298 U. S. 38 [56 Sup. Ct. 720, 80 L. Ed. 1033]. That decision appeared to make it mandatory to afford a hearing before a court or some other duly constituted body exercising judicial- functions to a party dissatisfied with the determination of a state-wide administrative board or officer when constitutional rights were involved. It was therefore considered that since numerous state-wide administrative boards and officers were of statutory creation and the jurisdiction of the superior court in such matters was within the control of the legislature under section 5 of Article VI of the Constitution, it would be competent for the legislature to provide, as it had in numerous statutes creating such administrative boards and officers, for a hearing de novo in the superior court, and that even in the absence of such a statutory provision due process’ required that a party aggrieved by reason of a ruling of the officer or board involving a constitutional right be accorded an opportunity to resort to a judicial tribunal for redress. The ruling in the Drummey case should be limited to the situation therein appearing, and as an exception to the general rule in mandamus proceedings in the superior court is not to be applicable otherwise. The Drummey ease involved an order the effect of which, if unlawful or otherwise unjustified from a judicial viewpoint, would be to deprive the aggrieved party of a constitutional right without due process of law. To avoid this result it was held that the aggrieved party should there have the opportunity of a judicial hearing on the merits of his case.

We conclude that the petitioners herein have not made a sufficient showing to justify this court in disturbing the order of the Insurance Commissioner denying their application for a permit to conduct a bail bond business.

Accordingly the alternative writ is discharged and the peremptory writ is denied.

Rehearing denied.


source: Caselaw Access Project

license: Public Domain

text:
    [Sac. No. 5085.
    In Bank.
    June 30, 1939.]
    LENA LONGLEY, as Executrix, etc., et al., Appellants, v. EMERY E. BROOKS, Respondent.

      Keyes & Erskine, W. B. Ryder and J. Benton Tulley for Appellants.
    Brown & Chamberlain for Respondent.
   THE COURT.

This was an action to quiet title to certain real property located in Stanislaus County, referred to by the parties herein as the “Newman Ranch”. Prior to August 5, 1929, the undisputed title to the property was in Marcia Brooks (now deceased), who at that time was the wife of defendant Emery Brooks. The latter claimed title to the land by virtue of a deed executed in his favor on said August 5, 1.929, by his then wife, the said Marcia Brooks. The plaintiffs herein are, respectively, the two sisters and a brother of Marcia Brooks, all of whom claimed title to the property as respective residuary legatees under the will of Marcia Brooks.

The trial court found in favor of defendant on all material issues, and in accordance therewith rendered its decree quieting the title to the property in favor of defendant herein. The plaintiffs have appealed from the judgment, their principal contention being that there was no “delivery” of the deed to respondent by his wifé, and, consequently, that the findings of the trial court are without support in the evidence.

The record herein shows that respondent and Marcia Brooks intermarried on September 27, 1928, and lived together as husband and wife until the death of the latter in October, 1933; that Marcia Brooks was the owner of considerable real property at the time of her marriage to the respondent herein; that prior to the marriage the spouses had mutually agreed that all money acquired by either of them would be deposited in a joint bank account, and that the wife would give the husband a parcel of her real property as a home, in consideration of his taking over the management, control and improvement of the said properties. Pursuant to that agreement, and during the marriage, the husband deposited $700 or more of his own funds in the joint account, and devoted the greater part of his time to the management and operation of his wife’s properties.

Concerning the circumstances surrounding the alleged delivery of the deed, the trial court found substantially as follows: That on or about August 1, 1929, at a time when one of the plaintiffs herein, Frances McGovern, was visiting at the home of Marcia and Emery Brooks, in Sonoma County, and in the presence of the said Frances McGovern, Marcia Brooks made the statement to her husband, Emery Brooks, that during the visit of Frances McGovern, “she, the said Marcia Brooks, was going in [to the City of Santa Rosa] and fix up some papers ’ and that she was going to give said Emery Brooks some property for a home . . . and asked said Emery Brooks which one [of the properties] he would prefer, that is, the Santa Rosa ranch upon which Emery Brooks and Marcia Brooks were then residing ... or the ‘Newman ranch ’ that being the real property located in the County of Stanislaus, . . . [and that] said Emery Brooks stated that he desired the said ‘Newman ranch’, . . . That thereupon said Marcia Brooks said ‘All right’ ”; that the two women then proceeded to the city of Santa Rosa, where, at the office of J. W. Ford, the attorney for Marcia Brooks, she instructed him to prepare a deed to each of three parcels of her properties, and also to prepare her will; that Marcia Brooks and Frances McGovern then went to the Bank of America, in Santa Rosa, where, in writing, Marcia Brooks authorized the bank to permit Frances McGovern to have the joint use of and access to a safety deposit box which theretofore had been accessible only to Marcia Brooks; that in granting the joint use of the safety deposit box to her sister, Marcia Brooks intended the said Frances McGovern to have the right to the control and possession of the deeds prepared or to be prepared by Mr. Ford on behalf of Marcia Brooks. It was further found that on the 5th day of August, 1929, Marcia Brooks and her husband, Emery Brooks, went to the city of Santa Rosa; that upon their arrival there the former called at the office of said Mr. Ford and at that time and place executed and acknowledged each of the three deeds (one of which was the deed herein concerned) which had been prepared, by Mr. Ford in accordance with the request of Marcia Brooks; also, that at that time and place she executed her last will; that at the request of Marcia Brooks, Mr. Ford “enclosed said deeds in an envelope and partially or wholly sealed the same and delivered the envelope and its contents to said Marcia Brooks ’ ’ (emphasis added); that immeditely thereafter the latter left the office of her attorney and joined her husband; that the two proceeded to the Bank of America “to place in the safety deposit box . . . the said deeds so executed”; that previously it had been agreed between husband and wife that at all times the husband should have the use of said safety deposit box as a depositary for “papers” belonging to him; that upon their arrival ■ at the bank on said August 5th, Marcia Brooks “opened said envelope containing said deeds and then and there exhibited to said Emery E. Brooks the deed which she had just executed, conveying to him the real property located in Stanislaus County . . . and then and there delivered to him the actual, manual custody and control thereof and informed him that she had deeded the said property to him” (emphasis added); that thereupon said Emery Brooks placed the deed with certain papers belonging to him “and then and there delivered the same and all thereof, together with said deed to said Marcia Brooks for the purpose of safe-keeping and for no other purpose”; that Marcia Brooks then placed the papers, including the deed which had been handed to her by her husband, in the safety deposit box. The findings further recite that “it was then and there the purpose and intention of said Marcia Brooks to make ... a full, complete and actual delivers'- of said deed to said Emery Brooks with the intention ... of conveying to said Emery Brooks the full legal title to said real property . . . and that said delivery should be irrevocable”. It was also found that all of the acts and transactions of said Marcia Brooks—beginning with the conversation had on the morning of August 1st, when, in the presence of Frances McGovern, she asked, her husband which ranch he preferred, and ending with the placing of his “papers” (including the deed) in the safety deposit box— constituted one entire transaction; and that those acts and transactions were intended by Marcia Brooks to constitute an immediately effective conveyance to said Emery Brooks of the real property here involved. The trial court further found that later in the year 1929, on an occasion when Marcia Brooks and Frances McGovern were again at the bank hereinabove mentioned, Marcia Brooks showed the latter a certain envelope containing the three deeds and told Frances McGovern (whom she had appointed executrix of her will) that “those were the deeds” and that in ease anything happened to her (Marcia Brooks) the said Frances McGovern would find the deeds either in the safety deposit box or at the office of Mr. Ford.

After the death of Marcia Brooks, the three deeds were found in the safety deposit box and, according to some of the testimony, they were in the same envelope in which they had been placed originally by Mr. Ford,—and when so found the envelope which contained them was sealed, and there was a conspicuous “dirty smudge” on the outside of the flap of the envelope.

In accordance with well-established law, it is clear that if the findings relating to the delivery of the deed to the respondent are substantially supported by the evidence, or if there is a substantial conflict in the evidence upon which the findings are made to rest, the resulting judgment may not be disturbed. The appellants contend, however, that there is not sufficient evidentiary support for the finding as to the delivery of the deed. They call attention to testimony of the witness Ford to the effect that at the time the deeds were executed, and at the request of Marcia Brooks, he placed them in an envelope and sealed the envelope—and point out that there was evidence to show that after the death of Marcia Brooks the three deeds were found in a sealed envelope, which was conceded to be the same envelope in which the deeds originally had been placed by Mr. Ford. From a consideration of these two circumstances, appellants contend that the only inference that could be drawn therefrom was that the envelope had not been opened subsequent to the time it left Mr. Ford’s possession and until after the death of Marcia Brooks, and that, as a consequence thereof, the testimony of respondent to the effect that on August 5th, while he and his wife were at the bank, she exhibited and delivered to him the deed, was inherently improbable—and could form no basis for the finding of the trial court that on the occasion last mentioned the deed was in fact delivered to respondent. However, as stated hereinbefore, the trial court found that when Mr. Ford handed the deeds to Marcia Brooks, he sealed or partially sealed” (emphasis added) the envelope in which the deeds were placed,—and that when Marcia and Emery Brooks were at the bank, the former “opened” the envelope and delivered the deed into her husband’s hands. Had the envelope been only “partially” sealed by Mr. Ford—as the trial court found might have been the case—-the finding of the subsequent “opening” of the envelope by Marcia Brooks, at the time when (presumably) she made the delivery, would have been entirely consistent with and supported by the positive testimony of Emery Brooks as to the delivery of the deed to him by his wife on the said August 5th. From the fact, as found by the trial court, that Marcia Brooks did open the envelope on that occasion, the inference may well have been drawn that she sealed the envelope thereafter—and that it was her act in that regard, and not Mr. Ford’s act, that accounted for the sealed and soiled condition of the envelope when it was found after her death. Also, the respondent contends that Mr. Ford’s positive testimony that he sealed the envelope at the time it left his possession is weakened by the fact that his testimony in that regard was unsupported, since the only witness to the alleged incident (Marcia Brooks) is now deceased; also, that the “dirty smudge” which was found to be on the outside of the envelope, along the flap thereof, at the time it was opened after the death of Marcia Brooks—when viewed in the light of Mr. Ford’s testimony that the envelope in which he placed the deeds was an “unused” envelope and that he (Mr. Ford) had not noticed such a “smudge” mark on the outside thereof at the time he handed it to Marcia Brooks—was an additional circumstance from which the inference might have been drawn that the envelope had been opened on the occasion when respondent testified the deed was delivered into his hands, and that the “smudge” might have been caused by the re-sealing of the envelope thereafter. Of course, as frequently may be observed, the mucilage on the inside of the flap on the envelope may have been only inappreciably moistened, with the result that the sealing at that time may have been very slight. In any event, the weight to be given the testimony as to the sealing of the envelope, as well as that of all the other testimony bearing on the question of the delivery of the deed, presented a question of fact for determination by the trial court.

In further support of their contention that there was no evidence showing delivery of the deed by Marcia Brooks to the respondent herein, the appellants rely upon the testimony of the witness, Frances McGovern, in effect, that some months after August 5, 1929, she had asked Marcia Brooks if she had shown the deed to her husband, and that she replied that she had not done so; that the witness, then had asked her why she had not, and Marcia Brooks had replied: “Well, for several good reasons, ... he would lose all interest in the Santa Rosa ranch ’ ’, and “ ... he still corresponds with his second [former] wife”.

As opposed to the testimony last above recited in support of appellants’ contention that there was no delivery of the deed, the respondent’s testimony was substantially as follows: that on August 5th, at the time when his wife and he were together at the bank and while he was looking at his insurance papers, his wife said to him: ‘I want to show my husband what a good wife he has got’, and [she] presented me the deed. . . . Q. She handed you the deed then? A. Yes, sir, gave me the deed. Q. Did you look at the deed? A. Yes, sir. Q. What deed was that ? A. I opened up the deed and read, it was—it stated on it this Orestimba Rancho of Newman. . . . Q. After you read that deed, or examined it, what did you then do with it? A. I laid it down on top of this pink [automobile] slip and insurance papers. . . . Q. What was then done with those? A. My wife picked them up. . . . Q. Did you say anything to your wife after your wife handed you the deed? A. Yes sir, I looked at it and read which place it was, what I wanted, and I thanked my wife ... Q. Was that [deed] placed in your wife’s safe deposit box with your consent? A. Yes, sir. . . . Q. And for what purpose ? A. For safe keeping. ’ ’

A question as to the delivery of a deed is one of fact (Williams v. Kidd, 170 Cal. 631 [151 Pac. 1, Ann. Cas. 1916E, 703]); and a finding made by a trial court on such a question, based on conflicting evidence, will not be disturbed on appeal. (Haralson v. Bank of America etc. Assn., 15 Cal. App. (2d) 620 [ 59 Pac. (2d) 885] ; to the same effect, see Duffy v. Duffy, 71 Cal. App. 251 [235 Pac. 62]; Donahue v. Sweeney, 171 Cal. 388 [153 Pac. 708]; and Blackledge v. McIntosh, 85 Cal. App. 475 [259 Pac. 770].) It therefore becomes apparent that the testimony of Frances McGovern that, some time after the alleged delivery of the deed, Marcia Brooks had stated to her that she (Marcia Brooks) had not shown the deed to respondent, and the testimony of Emery Brooks in respect to the delivery of the deed to him, as above recited, are squarely conflicting one with the other. Notwithstanding such conflict, however, the respondent contends that there was ample evidence to support the findings, and that in weighing the evidence the trial court did not err in rejecting the testimony of Frances McGovern to the effect that Marcia Brooks had told her she had not shown the deed to respondent,—and asserts in that regard that the improbability of the testimony of Frances McGovern, particularly that relating to the respondent and his former wife, is demonstrated by the fact that, although as testified to by respondent, he had previously been married and had children by the former marriage, the record is devoid of any evidence whatever that might or did show that the husband and wife herein did not live together in amicable relations up to the time of the death of Marcia Brooks in 1933. The merit of such contentions must be conceded. Furthermore, not only was there evidence to show that prior to the marriage the parties had agreed that Emery Brooks would be given one of the properties owned by Marcia Brooks in return for certain services he was to perform in and about the ranches, which services the evidence indicates he did perform, but the undisputed fact is established by the evidence, including the testimony of appellant Frances McGovern, that—in consonance with the prior agreement of Marcia Brooks to give one of her properties to said Emery Brooks—on the morning of August 1, 1929, his wife asked him which of her properties he preferred, and upon receiving his answer thereto she immediately took steps to have a deed to the property drawn in his favor, which deed was executed a few days later in the presence of her attorney. In view of those circumstances, the testimony of respondent that Ms wife delivered the deed to him almost immediately after its execution cannot be said to be inherently improbable.

The appellants also contend that, assuming there was manual delivery of the deed to respondent on August 5, 1929, there was no intention on the part of the grantor to convey title to the property, in that, after the alleged delivery of the deed, the acts of the grantor showed she had reserved the right of dominion and control over both the deed and the property.

In answer to such contention, it may be said that the mere retention by a grantor of the custody of a deed after delivery thereof is not necessarily inconsistent with an intention to convey a present title to the property described in the deed. (Stone v. Daily, 181 Cal. 571, 581 [185 Pac. 665]; Goodman v. Goodman, 212 Cal. 730 [300 Pac. 449] ; King v. Fragley, 19 Cal. App. 735 [127 Pac. 813].) Although, in the instant ease, the deed was placed in a safety deposit box after the purported delivery thereof and, technically at least, thereafter it was in the joint possession of both Frances McGovern and Marcia Brooks, the respondent testified that it was placed therein with his consent, and for safe-keeping; and the trial court so found. The evidence showed no act on the part of Marcia Brooks thereafter that was inconsistent with the theory that she was keeping the deed for and on behalf of the respondent. It was shown that Marcia Brooks had permitted Frances McGovern, as executrix under her will, to have joint access to all the papers placed in the box in order that upon her death they would be available to said Frances McGovern. Whether it be considered that the deeds were left for safe-keeping with Marcia Brooks, or by her placed in the custody of Frances McGovern, as executrix of her will, or otherwise, would be immaterial, since, based upon substantial evidence to that effect, the trial court found that a valid delivery of the deed to respondent had taken place.

Neither can it be said there is merit in the contention of appellants that after the asserted delivery of the deed, certain acts of the grantor allegedly showing an exercise by her of dominion or control over the property conclusively negatived an intent on her part to have transferred title to the ranch by the delivery of the deed. In view of the many circumstances which showed an intention on the part of Marcia Brooks to part with title to the land, neither the fact that after the alleged delivery of the deed to Emery Brooks the taxes on the property continued to be assessed to her, nor that, personally, she rented tire property and collected the rentals therefrom, and personally attended to other business matters relating to the property, is sufficient to overcome an inference of delivery of the deed and consequent transfer of title which was deducible from other evidence. In this regard, see: Stewart v. Silva, 192 Cal. 405, 410 [221 Pac. 191]; Follmer v. Rohrer, 158 Cal. 755 [112 Pac. 544] ; and Blackledge v. McIntosh, 85 Cal. App. 475 [259 Pac. 770]. In the last two cases cited it was held that a showing of such circumstances merely raised a conflict in the evidence on the question of the sufficiency of the delivery of the deed. In the instant case, also, there was evidence to the effect that, prior to their intermarriage, the husband and wife had agreed that the wife would handle all the business matters relating to the properties; and the evidence showed that the proceeds from the ranches were deposited in a joint bank account, and most of the expenses connected with the operation of the ranches were paid from that account. Considering the established relationship which existed between the husband and the wife, the fact that on occasion the wife may have used some of her separate funds for the payment of expenses connected with the property described in the deed to the husband, it cannot be said that, under the circumstances existing here, such fact indicated an intention on her part to have retained title to the said property.

Nor is there merit in the contention that the deed was intended to be a testamentary disposition of the property. The will was made at the same time the deeds were executed. It made no mention of the property disposed of by the deeds. In view of all the facts and circumstances shown to be present, it is evident that the deed here involved was made for the specific purpose of taking the real property therein described entirely out of the testamentary disposition.

Likewise, the contention of the appellants that the findings are inconsistent one with the other, or the others, may not be upheld. When read as a whole, the findings are not thus conflicting in any substantial particular, and are adequate support for the judgment.

Bearing in mind the ruling by this court with reference to the merits of the cause, which hereinbefore has been indicated, the final contention of the appellants to the effect that the finding that they were estopped from maintaining the present action is not supported by the evidence, becomes immaterial. However, in that regard, the record shows that after the death of Marcia Brooks the deed here concerned was delivered to respondent by Mr. Ford, in the presence of the executrix, Frances McGovern. Thereafter respondent recorded the deed. It was found that at all times during the pendency of the probate proceedings, the appellants were aware of the existence of the deed to respondent, and that they knew he was performing labor and making expenditures on the property in reliance on the effectiveness of the conveyance to him. Nevertheless, during the probate proceedings neither they, nor any of them, asserted an adverse claim to the property, nor made any effort to exercise control over it. At the time the estate was closed, appellants accepted distribution of the personal property bequeathed to them by the terms of the will; but after distribution had been made, and at a time less than two weeks after the decree of distribution had been entered—for the first time, as residuary devisees under the will, they asserted a right to the ranch involved herein. The respondent contends that by the foregoing acts on the part of the appellants during the probate proceedings, he was deprived of the right to defend against an attack on the validity of his deed—which should have been made during that time, if at all—or to assert by the filing of a claim therefor, or otherwise, any other right against the estate which might have been then open to him. The trial court found in favor of the respondent on that issue. There was ample evidence to sustain the finding. -

The judgment is affirmed.


text:
    [Crim. No. 4166.
    In Bank.
    April 10, 1939.]
    THE PEOPLE, Respondent, v. LUCELO YALO, Appellant.
    Gladys Towles Root and Morris Lavine for Appellant.
    U. S. Webb, Attorney-General, and James S. Howie, Deputy Attorney-General, for Respondent.
   THE COURT.

The defendant herein pleaded guilty to the charge of contributing to the delinquency of a minor. Application for probation was denied and he was sentenced to serve a term of eighteen months in the county jail as a punishment for said offense. His appeal is from the judgment and sentence, appellant contending that the provisions of section 19a of the Penal Code limit the period of imprisonment to one year in the county jail.

Upon stipulation of the parties the District Court of Appeal, Second District, Division One, court of original appellate jurisdiction, ordered that the instant case be considered and determined on the same brief which was filed in People v. Lewis, Crim. No. 4167 (ante, p. 280 [89 Pac. (2d) 388]).

The same question was raised and disposed of in the opinion this day filed in People v. William Hoyt Lewis, Crim. No. 4167 (ante, p. 280 [89 Pac. (2d) 388]), and for the reasons set forth in said opinion, and on the grounds therein stated, it is ordered that the judgment entered herein be reversed with directions to the court in which the appeal originated to enter a judgment against the appellant not in excess of the term of imprisonment prescribed by section 19a, Penal Code, as of the day on which said judgment was pronounced, giving due credits for such time as appellant may have served, if any, under the judgment from which this appeal is taken. The attempted appeal from the “sentence” is dismissed.

The cause is remanded to the court in which it originated for such further proceedings as are consistent with the directions herein set forth. ,

It is so ordered.

Houser, J., dissented.

EDMONDS, J.—As this case has become moot, the appeal should be dismissed.


author: EDMONDS, J.

text:
    [Crim. No. 4230.
    In Bank.
    July 8, 1939.]
    THE PEOPLE, Respondent, v. GEORGE BRAUN, Appellant.

      Morris Lavine for Appellant.
    Earl Warren, Attorney-General, U. S. Webb, Attorney-General, and Burdette J. Daniels, Deputy Attorney-General, for Respondent.
   EDMONDS, J.

At about 4:30 on a January morning, three men, armed with deadly weapons, entered the office of the United Independent Dairies in the city of Los Angeles and held up the three employees then on duty, obtaining a small amount of money and some personal property. Kenneth Weston, one of the victims of the crime, testified that he was sitting in the office of the dairy company dozing, with his head down on the desk before him, when a man, later identified as Harry Groves, hit him on the head saying, “This is a stickup”. Groves, who carried a pistol, told him to lie down on the floor and then jerked out the cords connecting the telephone and desk lamp. At this point another man came in the door, carrying a rifle. Weston was not then prone on the floor but on his hands and knees facing the door. He observed that this second man, whom he identified as the defendant, had on a tweed overcoat, a dark hat and a grayish muffler, the muffler covering the lower part of his face, leaving the portion from his upper lip to his eyebrows exposed. Gray hair above his temples could also be seen.

This witness also testified that the defendant came over and stood about three feet from him while Groves and the third robber, later identified as John Robles, went into the back room and brought the two other employees into the office, where they were forced to lie on the floor. The three gunmen were there for about 15 minutes, during which time they 'robbed the three employees and made Weston get up several times to try to open the company safe. Weston testified that on these occasions he had a better opportunity to look at the defendant, but that Braun did not say anything which he heard.

Weston’s first identification of the defendant was made some time after the crime when, at the police station, he picked out his picture from among those of 30 or 40 persons who were then under suspicion. At the trial he was very positive that Braun was the man with the rifle. When asked whether on the night of the holdup he noticed anything in particular about the defendant which made him positive of his identity he replied: “Yes, his size and his gray hair around-the temples and at the time . . . well, after the holdup, I kept thinking that there was something that I should remember about him. I couldn’t just think what it was though, and in the meantime the deputy sheriff had been showing me numerous pictures of suspects, and as soon as they showed me the pictures, why I picked it out right away because he had a scar on his nose, and I felt sure that that was what I should have remembered about it.”

Groves and Robles, who admitted their complicity in the crime, were also identified by Weston, but at the preliminary hearing he felt least positive that Braun was one of the three who had held him up. After the crime, the record shows, Weston told the investigating officers that one of the robbers, wearing a tweed coat, dark hat and gray scarf, was a dark eomplexioned man—“possibly a Filipino, age about 40 years, and weight 155 pounds, five foot eight” or possibly taller. It does not appear that he mentioned a scar on any of the three men. At that time he was not certain about the description but stated that he could positively identify the men if he saw them.

The two other employees of the dairy company were also called as witnesses at the trial and at that time each was fairly sure that Braun was a participant in the crime. However, at the preliminary hearing one of these witnesses was not able to identify him “beyond a reasonable doubt”; the other “couldn’t say for sure” whether he saw either Braun, Robles or Groves at the time of the holdup.

Groves and Robles were both called as witnesses in behalf of the defendant. Groves testified that he, Robles, and a Spaniard whom he referred to as “Pancho” committed the robbery in question; that he did not even know Braun at that time and did not make his acquaintance until a month and a half after the robbery. Robles also testified that he did not meet Braun until about the same time.

The defendant also took the witness stand. He was then a man about 46 years of age, over six feet tall, weighing about 190 pounds and not having a dark complexion. He denied any knowledge of or complicity in the robbery. He testified that he spent the evening of January 30th with a Mrs. Gerber. She did not appear at the trial, but as a witness upon defendant’s motion for a new trial she fully corroboratéd the defendant’s alibi.

It is a familiar rule that in reviewing the correctness of factual determinations, the function of an appellate court is limited to the question whether there is any substantial evidence in the record to support the judgment. To entitle a reviewing court to set aside a jury’s finding of guilt, the evidence of identity must be so weak as to constitute practically no evidence at all. (People v. Farrington, 213 Cal. 459 [2 Pac. (2d) 814] ; People v. Friday, 18 Cal. App. (2d.) 197 [63 Pac. (2d) 303].) In a case such as the present one, where there is positive direct testimony that the defendant was one of the perpetrators of the crime, it is incumbent upon him to show that the testimony is inherently unbelievable in order to prevail. “A statement, to bear upon its face the brand of improbability, or which may be said to be unbelievable, per se, must involve, we think, a claim that something has been done that it would not seem possible could be done under the circumstances described, or involve conduct that no one but a person of a seriously calentured mentality would be likely to do.” (People v. Haydon, 18 Cal. App. 543, 553 [123 Pac. 1102].)

It must be conceded that the evidence tending to connect this defendant with the crime is not entirely convincing. Certainly the victims had only a very limited opportunity to observe their assailants. Moreover, the statements and testimony of each of them present substantial inconsistencies which are difficult to reconcile. On the other hand, these witnesses were presumably disinterested and had no reason to fabricate testimony in order to obtain the conviction of the defendant. The jury was not obliged to believe the testimony of Robles, Groves, and the defendant, each of whom at the time of the trial had been previously convicted of a felony. Considering all of the evidence, it cannot be said, as a matter of law, that the testimony of the three employees of the dairy company was so improbable as to be unworthy of all belief.

Upon the point that the district attorney was guilty of prejudicial misconduct during the trial of the case, the record discloses that he asked the defendant: “Isn’t it a fact, Mr. Braun, that you have been convicted of the crime of murder, arising out of a robbery at the Bee Hive Cafe?” Upon objection this question was reframed as follows: “Isn’t it a fact that in the last part of July of this year you were convicted of the crime of murder?” The defendant replied, “I will not know until I hear from my appeal”. He later admitted, in response to other questions, that he had been convicted of the crime of murder in the first degree and, also, of the crime of attempted murder.

The defendant points out that his conviction in the murder case has since been reversed upon appeal (People v. Braun, 31 Cal. App. (2d) 593 [88 Pac. (2d) 728]), and claims that the district attorney’s reference to this conviction was not a proper impeachment question because the appeal was pending at that time. However, it has been held that a witness, for the purpose of impeachment, may properly be asked upon cross-examination whether he has been convicted of a felony, even though an appeal from the judgment of conviction is then pending and undecided. (People v. Rogers, 112 Cal. App. 615, 620 [297 Pac. 924].) There was, therefore, no error in allowing the fact of these convictions to be presented to the jury.

But the defendant also properly complains that one of the questions asked him included the details of the crime for which he suffered a previous conviction. This inquiry went beyond that allowed by law, for a cross-examiner’s question must be limited to the fact of conviction and the nature of the crime; he may not go into the details or circumstances surrounding the crime. (People v. David, 12 Cal. (2d) 639 [86 Pac. (2d) 811] ; People v. Chin Hane, 108 Cal. 597 [41 Pac. 697]; People v. Muchupoff, 79 Cal. App. 306 [249 Pac. 240].) No request to admonish the jury was made by defendant’s counsel and if this question were the only misconduct of the district attorney, it would not be a sufficient ground for a reversal of the judgment.

However, the defendant points out that the cumulative effect of this question should be considered in connection with other asserted misconduct of the district attorney. It appears that during the cross-examination of the defendant he was asked: “Mr. Braun you spent the day of the 31st of January with Mrs. Kessler, is that right?” Upon receiving an affirmative reply, the inquiry was continued with the question, “And she runs the Spanish Kitchen on Bast 1st Street?” “She did at one time”, answered the defendant. “And that is a hang-out for ex-convicts?” asked the district attorney. An objection to this question was sustained and the court admonished the jury to disregard it.

Whether the misconduct of a prosecuting attorney has prejudiced the substantial rights of a defendant must rest largely upon the facts of each case. An appellate court may only reverse the judgment when it appears from all the facts that there has been a miscarriage of justice. (Const., sec. 4% art. VI.) Obviously, conduct of a prosecutor which would amount to prejudicial misconduct in one case might not result in a miscarriage of justice in another case. In other words, there is no definite rule by which asserted misconduct may be measured for the purpose of determining whether it prevented the defendant from having that fair and impartial trial which the law requires for every person charged with a crime.

In the present case the defendant was convicted of a felony upon testimony concerning identification which, although measuring up to the requirement of substantial evidence leaves considerable doubt in the mind of one who reads it in connection with the defendant’s positive denials, the corroboration of his alibi, and the statements of those originally charged as co-defendants with him that he was not present. For many persons, positive identification is difficult, even where one is observed under normal conditions. Considering the time when the robbers came to the dairy company’s office, the masks which they wore, the positions the employees were forced to take, and the excitement of the moment, it would be surprising if any one of the victims could describe the robbers with accuracy. Unquestionably the witnesses testified to their best recollection, and under ordinary circumstances a verdict resting upon their testimony and the other facts in the case should be upheld as supported by the evidence.

But to what extent, if at all, the jury was influenced by the questions of the district attorney which the defendant asserts amounted to misconduct no one may say with certainty. The testimony of the prosecution’s witnesses does not point unerringly to the defendant’s guilt, and when weighed by the jury as against that offered by the defendant, the scales of justice would undoubtedly be somewhat evenly balanced in the mind of the ordinary person. Under such circumstances, the information that the crime of which the defendant had been previously convicted was murder arising out of a cafe robbery and the inference that he associated with ex-convicts undoubtedly weighed heavily against him and may have been the deciding factors which brought about his conviction. The misconduct of the district attorney,' therefore, resulted in a miscarriage of justice entitling the defendant to a new trial. (People v. MacPhee, 26 Cal. App. 218 [146 Pac. 522]; People v. Podwys, 6 Cal. App. (2d) 71 [44 Pac. (2d) 377].)

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

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


text:
    [Sac. No. 5236.
    In Bank.
    July 10, 1939.]
    PACIFIC COAST JOINT STOCK LAND BANK OF SAN FRANCISCO (a Corporation), Plaintiff and Respondent, v. C. LEE JONES et al., Defendants and Respondents; PACIFIC BROOM CORN COMPANY (a Corporation) et al., Appellants.

      Klein & Clarke and R. C. Ramsay for Appellants.
    Johnson & Harmon for Plaintiff and Respondent.
    F. M. Brack for Defendants and Respondents Legare.
    No appearance for Defendant and Respondent Jones.
   EDMONDS, J.

The controversy presented by this appeal concerns conflicting claims to a crop of broom corn which had been mortgaged by C. Lee Jones and S. C. Legare to the respondent bank during the time they were vendees in possession of the land on which it was grown. The bank’s right to foreclose this mortgage was challenged by the appellants, all of whom had advanced money or services for the purpose of growing the crop. James Ryan, who farmed the land, and Jones and Legare, although defendants in the action, did not appeal from the decree of foreclosure in favor of the bank.

In 1935 Jones and Legare were in possession of a 1000-acre tract of farming land in Stanislaus County under an agreement to purchase it from the bank. They were then some $15,000 in arrears in their instalment payments on the purchase price, and in September of that year respondent required them to execute a mortgage “on all crops . . . now standing, planted or growing, or that may hereafter during the continuance hereof be standing, planted or growing” on the land. This mortgage was recorded-, but nothing was realized by the bank from the 1935 crops.

The next year Jones and Legare, as a means of relieving their financial burden, decided to lease a portion of the land, and with this purpose in mind Jones in April, 1936, entered into oral negotiations with the Pacific Broom Corn Company, through its agents and one Clarke, its president. It developed that the company was interested in about 600 acres on which broom corn could be grown. According to Jones’ testimony, in several conversations with them he explained that he and Legare were in financial straits, that they had given a crop mortgage, and that no lease could be made except upon the condition that the rent be paid in advance or be properly guaranteed. Jones also said that when he asked about the financial status of the company, one of its agents informed him that “all financial responsibilities of the Pacific Broom Company were assumed by Liberman and Rosenerantz”. Inquiries which Jones subsequently made at a San Francisco bank indicated that Liberman and Rosenerantz were financially responsible.

Jones and Legare did not wish to farm the property, and it became necessary to obtain someone to undertake this work. As a part of the plan then being considered, Ryan, a farmer living in the vicinity, was engaged by the company which agreed with him to finance his operations and to buy the crop produced.

Negotiations having reached this stage, Clarke then had a lease prepared. This lease was by Jones and Legare, as lessors, to Ryan, as lessee, for a cash rental to be paid by the lessee out of the money realized from the sale of the crop to the company. Clarke first secured the signature of Ryan, and then presented it to Legare at his residence on the tract, Jones being away at the time. According to Legare, when he asked Clarke where the guarantee was, the latter handed him an order executed by Iiyan directing the company to pay the rent from the proceeds of the crops after deduction of all production costs advanced. Legare remarked that this did not amount to a guarantee of rent and refused to sign the lease, but he retained it to show to his partner, Jones. He also testified that until the lease was presented, they believed that it would run to the company as lessee.

However, as the season was late, the next day, at Clarke’s suggestion, Ryan went on the land and began preparing it for planting. A week or so later Ryan asked Legare if the lease had been signed. Legare answered in the negative, explaining that they had not received the guarantee which had been promised, but that Jones was trying to get the matter straightened out. Planting and irrigation of the crop followed and several months later Ryan again inquired about the lease. He was told that the lease had not yet been signed because of the failure to deliver the guarantee. Eventually, the lease was signed by Legare and given to Jones, who never signed it because the promised guarantee by Liberman and Rosencrantz was not delivered, and it remained in his possession.

Because Ryan had not grown broom corn before, he took directions with regard to preparing the land, and planting, cultivating, and harvesting the crop from the company. Production expenses were advanced by Liberman and Rosencrantz for the account of the company. The crop ripened in September and harvesting was commenced. As the broom corn was threshed and baled, the company and Liberman and Rosencrantz began hauling it away. At this time Legare approached Clarke, who was supervising operations, and asked him what his intentions were with regard to rent. Clarke told him that he had satisfied the bank. Undoubtedly, this was the first time Legare knew that the company did not intend to deliver the guarantee, for he immediately stopped Clarke from removing any more corn and told Ryan’s foreman that no more of it could be taken from the property.

Jones and Legare then notified the bank that the crop was being removed. It asked the company and Liberman and Rosencrantz what their intentions were and was told that the bank had no right to the crop, for the reason that the corn had been grown by Ryan, whom they referred to as “our man”. This action was then commenced and a receiver appointed to take possession of the crop. About two-thirds of the corn had been cut and was being dried on the ground.

From these facts the trial court determined that Ryan was not a lessee either by parol or by estoppel, but a licensee; that the license was revoked at the time Legare stopped the removal of the corn and that the lien of the mortgage attached to the unsevered portion of the crop as the property of the mortgagors, Jones and Legare. It also found that the bank had no right to the corn which had been cut at the time the receiver took possession.

The respondent relies upon the rule that an owner who ejects a trespasser from his land is entitled to any crop which is standing upon it. (Huerstal v. Muir, 64 Cal. 450, 453 [2 Pac. 33]; Imperial Farming Co. v. Van Horn, 107 Cal. App. 717 [290 Pac. 1077] ; see annotation, 39 A. L. R. 948.) According to this principle of law, by analogy, Jones and Legare, as purchasers of the land, were entitled to the standing crop if the appellants’ rights amounted only to a license to occupy the land. A chattel mortgage on future crops is valid under the common law doctrine of potential possession (Arques v. Wasson, 51 Cal. 620 [21 Am. Rep. 718]), but the lien of a continuing crop mortgage does not attach to a crop planted and produced by a third party to whom the mortgagor has conveyed an estate in the property. (First Nat. Bank v. Brashear, 200 Cal. 389 [253 Pac. 143].) Thus, in the ease at bar if, by virtue of the facts shown, Ryan or the appellants acquired a leasehold interest in the land, their claim to the entire crop is paramount. If, on the other hand, the corn was planted and grown under a mere license, the respondent’s lien attached and is entitled to priority. Therefore, the answer to the principal question for decision depends upon the relationship created by the conduct of the parties.

The appellants have divided their argument relating to various aspects of the evidence and findings under a number of headings. Convenience and clarity will be served by consolidating several of these points for discussion.

First, they contend that the evidence and findings do not support the trial court’s conclusion that they were mere licensees; on the contrary the undisputed facts compel the conclusion that a tenancy-at-will was created. Undoubtedly, although the usual lease, like any other contract requires the express or implied mutual assent of the parties, the relationship of landlord and tenant may come into existence by operation of law although no enforceable agreement has ever been entered into by the parties. Thus, it has been held that a tenancy-at-will results where one enters and occupies land with permission of the owner under an oral contract which is invalid under the statute of frauds. (Carteri v. Roberts, 140 Cal. 164 [73 Pac. 818] ; Goodwin v. Perkins, 334 Cal. 564 [66 Pac. 793]) ; or under a proposed written lease which is never executed (Linnard v. Sonnenschein, 94 Cal. App. 729 [272 Pac. 315]) ; or under an ineffective conveyance or agreement to convey (Hayden v. Collins, 1 Cal. App. 259 [81 Pac. 1120].) It has likewise been held that mere permissive occupancy where no rent is reserved and no term agreed upon gives rise to a tenancy-at-will. (Jones v. Shay, 50 Cal. 508.)

But these cases, on which the appellants rely, are not precisely in point under the facts here presented. The trial court found that in their oral negotiations the parties agreed to enter into a lease provided the rental should be guaranteed by Liberman and Rosencrantz and that all persons involved in the negotiations were informed of the requirement concerning such guaranty as a condition precedent to the execution of any lease. These findings have clear and substantial support, not only in the testimony of Jones and Legare but also in the testimony of an agent of the company. Moreover, on the day before Ryan and appellants started farming operations on the land, Legare, in the presence of Clarke and Ryan, refused to sign the proposed lease upon the ground that the promised guaranty had not been delivered. Twice later Ryan was informed that this was the reason for the subsequent refusals of Jones and Legare to execute the lease. The situation presented, therefore, is one where the proposed lessors positively and persistently refused to enter into a contract creating the relation of landlord and tenant because, as they contended, a condition required by them had not been met.

Under such circumstances the law will not imply the relationship of landlord and tenant. The principle is akin to the rule of contracts that if the parties contemplate a reduction to writing of an agreement reached in preliminary oral negotiations, there is no contract until the writing is signed. (Toms v. Hellman, 115 Cal. App. 74 [1 Pac. (2d) 31]; Spinney v. Downing, 108 Cal. 666 [41 Pac. 797].) This rule has been applied in the case where a proposed lessee went into possession and made improvements pending negotiations for a written lease which was never executed, the court holding that because of the owner’s express refusal to enter into a verbal lease, the occupancy by the proposed lessee vested no estate in him. (Potter v. Mercer, 53 Cal. 667.) Applying that principle to the facts of the present ease, the occupancy of the land by Ryan and the appellants with the tacit permission of Jones and Legare amounted to no more than a license to occupy. Appellants’ contention that the findings are vulnerable because they fail to state that Ryan was a licensee has no merit. That was a legal deduction drawn from the facts found and, as such, was properly included in the court’s conclusions of law.

The appellants also attack the court’s conclusion that the license was revoked because, they say, it is not supported by the evidence. But the record shows that on or about the 14th of September, when the crop was being harvested, Legare ordered Clarke, Ryan and Ryan’s foreman to stop hauling the corn away and that he then became involved in a fist fight with Clarke over the matter. These acts certainly amounted to a legal revocation of the license.

Construing the findings and conclusions in their entirety, there is no fatal inconsistency between the finding that Jones and Legare were in possession of the land “at all times herein referred to” and the conclusion that at the time of the revocation of the license Jones and Legare “went into possession and repossessed the said land”. The evidence and findings as a whole are consistent with the legal fact of continued possession of the land by Jones and Legare. Legare and his wife lived on the land, and Ryan’s permissive occupancy did not constitute legal possession. The language used by the court in describing Ryan’s ouster certainly cannot be held to vitiate the judgment.

Appellants argue that assuming Ryan was a mere licensee, the license was irrevocable by reason of the expenditure of money and the performance of labor that took place during his occupancy, citing the case of Stoner v. Zucker, 148 Cal. 516 [83 Pac. 808, 113 Am. St. Rep. 301, 7 Ann. Cas. 704], which holds that one who permitted another to enter upon his land and construct an irrigation ditch at a cost of $7,000 could not thereafter revoke the license. But that decision was grounded upon the principle of estoppel, which is inapplicable to the facts of the instant case. True, under other circumstances the tacit acquiescence of Jones and Legare in appellants’ entry and conduct of farming operations might have been a sufficient representation on which to base an estoppel, but the acquiescence here was induced by and was referable to appellants’ representations and assurances concerning rent. Jones and Legare demanded that the rent be guaranteed in order that payment of their obligation to the respondent bank might be assured, and the evidence shows that Clarke and his associates were keenly aware of this; indeed, as late as the day before Legare stopped the removal of the crop, Clarke told him not to worry about the rent; that the rent had been “fixed up with the bank”. And it is uncontradieted that appellants entered upon the land in the face of Legare’s express refusal to sign the lease because the guaranty had not been obtained.

Appellants’ final contention is based upon the doctrine of marshalling. It is said that even if respondent had a lien upon the crop, it should have been required to resort first to the real property described in the contract of sale in order to satify its debt, so that appellants as junior lien-holders could satisfy their claims out of the crop. (Civ. Code, secs. 2899, 3433.) This argument is untenable under the conclusions reached, because it assumes that appellants had a lien upon the standing crop. As licensees whose license had been effectively revoked, appellants had no interest in or lien upon the corn which stood unsevered at the time the receiver was. appointed. Jones and Legare were entitled to it as owners of the land, and by its crop mortgage the respondent bank acquired a lien which it was entitled to foreclose.

The judgment is affirmed.

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

Rehearing denied.


author: SHENK, J.

text:
    [Crim. No. 4215.
    In Bank.
    July 11, 1939.]
    THE PEOPLE, Respondent, v. EVERETT GILBERT PARMAN, Appellant.

      Thomas F. Sargent for Appellant.
    Earl Warren, Attorney-General, and J. Q. Brown, Deputy Attorney-General, for Kespondent.
   SHENK, J.

The defendant was indicted by the grand jury of Placer County on two counts: (1) the murder of George McElroy in that county on July 16, 1938; (2) the violation of the Concealed Weapon Act (sec. 5, Stats. 1923, p. 696, as amended) as connected with the murder charge. He was also charged with the prior conviction on December 22, 1938, in New Mexico, of the violation of the National Motor Vehicle Theft Act, title 18, section 408, United States Criminal Code, a felony, and with having served a term therefor in a penal institution.

The defendant pleaded not guilty and not guilty by reason of insanity to the first charge. He entered a plea of guilty to the charge contained in count 2, and admitted the prior conviction. The trial on the plea of not guilty to the first count resulted in a verdict of guilty of murder in the first degree without recommendation. On a separate trial of the issue of sanity the defendant was found to have been sane at the time of the commission of the homicide. Sentence of death was imposed in accordance with law. The defendant appealed from the judgment of conviction.

Prior to the commencement of the trial proceedings, the defendant moved to quash the venire and entered a challenge to the jury panel on the ground that the board of supervisors of Placer County in selecting the jury list for the year 1938 had selected men only and had intentionally omitted all women. It was contended that the direction of section 204 of the Code of Civil Procedure requiring that the selection and listings of jurors should “be made of men and women suitable and competent to serve as jurors” was mandatory. The trial court denied the defendant’s motion and the trial proceeded by selection of jurors from the venire composed exclusively of men.

The defendant now urges that the systematic exclusion of women from jury service in Placer County precluded him from having a trial by an impartial jury and was a denial of due process of law. Actual failure of impartiality in the jury selected is not argued. The defendant is content to rest upon the theory that absence of women from the jury lists, as matter of law, presumes some prejudice to his rights, because, forsooth, women may not be as likely to impose the death penalty.

The point has been decided adversely to the defendant’s contentions. (People v. Shannon, 203 Cal. 139 [263 Pac. 522].) The cited case involved a conviction of murder in the first degree with the imposition of the death penalty. The trial had taken place in Amador County. The same conditions existed here as were stated in the opinion in that case, namely, that women were not included in the jury lists because of absence of accommodations which would serve the needs of a mixed jury in the event it became necessary in the trial of a criminal action to house the jury overnight. The same contention was made there as here. In disposing of the point the court stated: “ . . . there is nothing in the state or federal constitutions, or in any statute, which guarantees one accused of a crime a trial by a jury composed of men and women, or of only men, or of only women, or of any definite proportion of either sex. His right is to a fair and impartial jury, and not to a jury composed of any particular individuals. (People v. Durrant, 116 Cal. 179, 199 [48 Pac. 75].) He cannot complain if he is tried by an impartial jury, and can demand nothing more. (Brown v. New Jersey, 175 U. S. 172, 175 [44 L. Ed. 119, 20 Sup. Ct. 77], see, also, Rose’s U. S. Notes.) ” Also to the same effect is the decision in People v. Manuel, 41 Cal. App. 153 [182 Pac. 306], where the defendant, a woman, was on trial and the, jury panel consisted exclusively of women. The defendant relies especially on People v. Hines, 12 Cal. (2d) 535 [86 Pac. (2d) 92], wherein a negro was convicted by a jury from which members of his own race were arbitrarily excluded. On appeal the judgment was reversed. Such cases are not controlling. The defendant in the present case was not tried by a jury from which all members of his own race were arbitrarily excluded.

The provisions of the code sections relied upon are directory and not mandatory. (People v. Durrant, 116 Cal. 179, 194 [48 Pac. 75].) Failure of substantial compliance therewith has not been shown nor does any prejudice to the rights of the defendant appear.

On the evening of July 16, 1938, Margaret Brusso entered her home in Roseville, California, in a bruised and hysterical condition. Later and about 8 o’clock that same evening, her sister, Ruth MeElroy, with the latter’s husband, George Me-Elroy, leaving Margaret at home, started out to find and identify a laundry truck driver who allegedly had attacked Margaret. They went to Zeller’s confectionery in Roseville. They found no one there answering the description given by Margaret. Soon, however, the defendant entered and the McElroys asked him if he was “Gordon Tillot”. He countered with, “Where is Margaret?’’ On further conversation he denied that he worked for the laundry, stated that he was from Chicago, that he was hot, that he was tough, that George McElroy was a young man and if he wanted to stay young and valued his life they had better let him alone. The three walked to the front of Zeller’s and along the street. Others stopped and listened to their conversation. At no time did the McElroys make any specific accusation. Ruth McElroy asked the defendant to roll up his sleeve so that she could observe any tattoo marks. The defendant evaded the request. They asked him if he was the chap who had brought Margaret down from Auburn earlier in the day, which he denied. He kept his right hand inside his jacket. He repeated his statement to George McElroy that if he valued his life he had better let him alone, that he was a pretty young man to die. Asked if he would walk to their home to see Margaret, he suggested that the McElroys go for her and bring her back. When they refused to leave him and after some further conversation and an attempt by George McElroy to borrow from a friend and bystander a car in which to go for Margaret, the defendant said, “Well, come on.” The three started walking down the street in the direction of Margaret’s home. The defendant was walking inside next the buildings, George McElroy in the middle and his wife on his right. They proceeded quietly without conversation for a few paces when suddenly the defendant turned, faced George McElroy, whipped a gun from inside his jacket and fired one shot at him with fatal effect.

The defendant testified that McElroy took hold of his coat collar as though in a threatening manner, and that he intended to use his gun only to frighten him away; that he was unfamiliar with the mechanism of the gun and that it was discharged unintentionally. But there is credible testimony, which the jury obviously believed, that when the shot was fired the gun was held out at arm’s length at a distance of about three and one-half feet from the victim who had his arms down at his side. From this evidence the jury was justified in concluding that the shot was intentional and in cold blood.

While Ruth McElroy went to her husband’s assistance the defendant escaped into the darkness. That same night a Ford roadster was stolen in Rocklin, California. On August 1, 1938, it was recognized by highway patrol officers at Eureka, California, as it was being driven along the highway. The car was stopped. The defendant was in it and was ordered out for questioning. He attempted to escape. At a command to “Halt!" and a gun charge fired into the air by one of the officers, he aimed several shots at the officers from the same gun which killed George McElroy. The discharges missed their mark and he was captured and disarmed.

The defendant assigns prejudicial error in the admission over his objection of a record of conviction in 1930 of an escape from a federal reformatory in Ohio, a felony. This conviction was not included in the indictment. The alleged purpose of admitting it in evidence was to show motive ; that is, that the defendant having been previously convicted of a felony was aware that his apprehension while carrying a loaded gun concealed upon his person would result in the conviction of a felony, and that he preferred to “shoot his way out". Another alleged purpose of the evidence was to prove that the carrying of a concealed loaded weapon amounted to a felony and that a homicide perpetrated while committing such felony amounted to possible second degree murder. (Sec. 189, Pen. Code.)

By the provisions of sections 1025 and 1093, subdivision (1), of the Penal Code the prior conviction charged in the indictment and admitted by the defendant could not be read to the jury nor alluded to on the trial. The prosecution contends, however, that the evidence of a prior conviction, whether of one charged and admitted or of one not charged, is admissible when such prior conviction is an essential element of the offense charged, or is pertinent to prove motive.

The case of People v. Oppenheimer, 156 Cal. 733 [106 Pac. 74], relied on by the prosecution, is not comparable on the facts. There the defendant was undergoing a life sentence in San Quentin when he committed an assault with a deadly weapon. Section 246 of the Penal Code prescribes the death penalty when such an assault is committed by a life convict. Pertinently the court observed that proof of the prior conviction could not be avoided when it was an essential element of the crime charged. In the present case the prior conviction did not have to be proved to establish any element or degree of the crime of murder. Section 189 of the Penal Code does not define every homicide other than first degree murder as murder of the second degree. In the present case the question for the jury was whether the homicide was first degree murder, as defined in said section 189, or was accidental or in self-defense.

However, where the shooting was, as here, claimed to have been accidental, the court could properly determine that the prior conviction had some bearing upon a possible motive to shoot with deliberation, which the defendant might have entertained. (People v. Pool, 27 Cal. 572, 573; People v. Brown, 53 Cal. App. 664 [200 Pac. 727].) Whether the evidence had sufficient weight to that end, or whether the introduction was sought merely to prove that the defendant was a man of vicious tendencies and therefore likely to have committed the homicide intentionally, were questions primarily for the trial court to determine. In any event, we observe no prejudice because of the introduction of such evidence. The defendant was condemned by the undisputed evidence of his own conduct at, immediately prior to, and following the shooting of George McBlroy. It cannot be said that the same or another jury, without the evidence objected to, would have returned a different verdict.

The defendant also assigns as error the refusal of the trial court to permit him to cross-examine Ruth McBlroy fully as to the purported events involving the assault upon Margaret Brusso. He contends that such cross-examination was offered, not as proof of the facts to be adduced, but as tending to prove that the decedent was the aggressor and that the shooting was in self-defense. It is obvious from the facts stated that the court permitted sufficient evidence of the purpose of the McElroys ’ visit to the confectionery store, and of their questioning the defendant, to accomplish the end desired by him. The trial court properly concluded that further cross-examination would serve no relevant purpose and might confuse the issues.

The defendant had a full and fair trial by an impartial jury, and nothing prejudicial to his rights .is disclosed.

The judgment is affirmed.

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


author: CURTIS, J.

text:
    [L. A. No. 17051.
    In Bank.
    July 11, 1939.]
    ISRAEL FEINBERG et al., Respondents, v. ONE DOE COMPANY (a Corporation) et al., Defendants; LEO S. VOGEL et al., Appellants.

      David L. Sefman, Jerome D. Rosenfield and Fred Vogel for Appellants.
    J. IT. O’Connor, County Counsel, Douglas De Coster, Assistant County Counsel, Charles J. Katz and Alfred Gitelson for Respondents.
   CURTIS, J.

Application for writ of supersedeas.

In this controversy between representatives of the International Ladies’ Garment Workers Union, a voluntary unincorporated association, and the defendants, engaged in the manufacturing of ladies’ coats and suits, and doing business as copartners under the firm name of Evelyn Coats, and also “Vogel Bros.” an award was made by an arbiter, officially designated in a written agreement between the International Ladies’ Garment Workers Union, and the Los Angeles Coat and Manufacturing Association, as the “Impartial Chairman”. This agreement which had been entered into by the respective parties for the purpose of securing general stabilization of the cloak and suit industry, contained, in addition to certain provisions relative to hours, wages, and working conditions, a method for the arbitration of any difficulties arising between the different factors of the industry. This plan provided that if, following a presentation of a grievance, no adjustment could be amicably reached by the executive director of the Manufacturers’ Association, and the manager of the union, the question should be submitted to a joint committee consisting of two persons designated by the Manufacturers’ Association and two persons designated by the union. If the joint committee could not agree upon a proper settlement or adjustment of such dispute by a majority of three out of four persons, then the matter should be decided by an impartial chairman whose decision should be final and binding upon all the parties to said agreement. A controversy arose over the continuance in employment by the defendants of an employee named Amelia Greenwood, a former member of one of the local unions comprising the International Ladies ’ Garment Workers Union, but who had been expelled for participation in the organization of an independent rival union. The arbiter in his award held that the defendants had signed said agreement and were bound by the terms thereof which required the firm to employ only union members in good standing in the International Ladies’ Garment Workers Union, that Amelia Greenwood was not a member of the union, having been expelled on August 3, 1938, and directed said defendant, Evelyn Coat & Suit Company, “to release Amelia Greenwood from further employment”, within forty-eight hours. The defendant company failed to comply with said award and failed to release Amelia Greenwood from their employ. The representatives of the International Ladies’ Garment Workers Union thereupon sought and secured in the Superior Court in and for the County of Los Angeles an order confirming the award of the arbiter and enjoining and restraining the defendants, “from employing, or continuing to employ, or hereafter employing the said Amelia Greenwood while she is not a member in good standing of said International Ladies’ Garment Workers Union”. An appeal from said judgment and order confirming the award of the arbiter was duly perfected by said defendants to this court. Thereafter an order to show cause why they should not be punished for contempt in refusing and failing to obey the order of said court to discharge the said Amelia Greenwood as an employee was issued out of said superior court and served upon defendants. The defendants, as petitioners, then made application to this court for a writ of supersedeas to restrain the attempted enforcement by the trial court of said order until the affirmance or reversal of the judgment on appeal. This application is now before us.

The question of the correctness of the decision of the trial court affirming the award of the arbiter is not here involved. The sole question decided is whether the order appealed from was in fact a mandatory injunction, an appeal from which acted as a statutory supersedeas, entitling petitioners as a matter of right to the issuance of a writ of supersedeas to restrain the superior court from finding defendants guilty of contempt and punishing them therefor.

We are satisfied that such a writ should issue. Although the form of the order appealed from purports to be prohibitive in that defendants are enjoined and restrained “from employing, and continuing to employ, or hereafter employing Amelia Greenwood while she is not a member in good standing of said International Ladies’ Garment Workers Union”, it is quite obvious that said order is in its essence and effect a mandatory injunction. It is an order compelling affirmative action on the part of the defendants. Inasmuch as Amelia Greenwood at the time of the issuance of the order was already in the employ of the defendants, and the very controversy arose out of the continuance in employment of said Amelia Greenwood, it is apparent that the result intended to be accomplished by the issuance of said order was the compulsory release of said Amelia Greenwood from employment by the defendants. In short, the order directed and commanded the defendants to discharge said employee. This conclusion is strongly fortified by the fact that the award of the arbiter which the judgment confirmed did not contain the prohibitive language enjoining and restraining defendants “from employing ... or hereafter employing”, Amelia Greenwood, but only contained the definite mandate, couched in affirmative language, directing the defendants “to release Amelia Greenwood from further employment”. It is, of course, elementary that this court will not be bound by the form of the order but will look to its substance to determine its real nature. (Clute v. Superior Court, 155 Cal. 15 [99 Pac. 362, 132 Am. St. Rep. 54]; Mark v. Superior Court, 129 Cal. 1 [61 Pac. 436]; Ohaver v. Fenech, 206 Cal. 118 [273 Pac. 555].) It is equally well established that a mandatory injunction is automatically stayed by the perfecting of an appeal and that thereafter the lower court is without jurisdiction to compel obedience to the order from which the appeal has been taken. (Ohaver v. Fenech, supra.) In view of the fact that the gist of the whole controversy in the instant case was the continuance or noncontinuance of said employee in the employment of defendants, and in view of the fact that the order appealed from was directed solely to this issue, no contention may be legitimately made that the order although mandatory was only ancillary to or subsidiary to another or main order which was prohibitive and therefore not automatically stayed by the perfecting of the appeal.

The writ herein sought is the writ of supersedeas, and we are satisfied that this is the proper writ to be issued in the instant ease. There would, of course, be no need for the issuance of any writ if the lower court was not mistakenly attempting to enforce obedience to the order appealed from. (Foster v. Foster, 5 Cal. (2d) 669 [55 Pac. (2d) 1175]; Joerger v. Mt. Shasta Potver Corp., 214 Cal. 630 [7 Pac. (2d) 706].) But the ground of the application to this court for the writ of supersedeas is the fact that the lower court has already issued an order to show cause why appellants should not be found guilty of contempt for refusal to comply with the order appealed from.

Respondents oppose the issuance of this particular writ upon the ground that the writ of supersedeas being limited in its scope and effect to a restraint of official action, and the improper use of the court’s process, such writ is not the proper remedy to restrain a proposed contempt proceeding based upon a judgment which is self-executing. It is argued that no process is required for the enforcement of the order appealed from, and hence there is nothing upon which the supersedeas can act. The premise of respondents’ argument, that the order appealed from is self-executing, is not correct. The term “self-executing” is practically self-defining, and obviously denotes a judgment that accomplishes by its mere entry the result sought, and requires no further exercise of the power of the court to accomplish its purpose. The order appealed from does not purport in and of itself to terminate the status of employer and employee. It, in effect, commands the defendants to release the said employee from their employment. And, in view of the fact that the said employee is not a party to the action, we would be reluctant to hold, even if it could be so held, that the mere entry of the order appealed from would have the effect of changing her status. It follows, therefore, that the use of a process of the lower court is necessary to secure compliance with the order, and to effectuate the result sought to be accomplished by it. Proceedings in contempt are as much an exercise of the power of the lower court as are the issuance of execution by the court, or the appointment of a receiver. (Clute v. Superior Court, supra; Wolf v. Gall, 174 Cal. 140 [162 Pac. 115].)

In the cases of Smith v. Smith, 201 Cal. 217, 218 [256 Pac. 419], Goodall v. Brite, 1 Cal. (2d) 583 [36 Pac. (2d) 190], and Sparling v. Sparling, 94 Cal. App. 593, 594 [271 Pac. 548], writs of supersedeas were issued under similar circumstances to stay enforcement by the lower court by contempt proceedings of decrees and orders appealed from.

As we are of the opinion, that the perfecting of the appeal by appellants operates to automatically stay proceedings in the court below, it is unnecessary for us to balance or weigh the arguments with reference to the possible irreparable injury to appellants or respondents as would be necessary if the question of the issuance of the writ was solely a matter of our discretion.

Let the writ issue as prayed for.

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