author: THE COURT.

text:
    [Crim. No. 4273.
    In Bank.
    May 20, 1940.]
    THE PEOPLE, Respondent, v. DeWITT CLINTON COOK, Appellant.

      Frederic H. Vercoe, Public Defender, and William B. Neeley for Appellant.

      Earl Warren, Attorney-General, and Frank Richards, Deputy Attorney-General, for Respondent.
   THE COURT.

The defendant herein was charged with the crime of murder as set forth in the first count of an indictment that had been returned against him. In the same indictment he was charged with the commission of other offenses which consisted of two several counts of assault with a deadly weapon with intent to commit murder, one count of robbery, one of rape and three several counts of burglary,— to each of which charges he pleaded guilty. When the ease was called for the taking of evidence by the trial court in the matter of fixing the degree of the crime of murder, defendant refused to testify. Thereupon the trial court of its own motion set aside the plea of guilty to the first count of the indictment and entered a plea of not guilty thereto on behalf of defendant. After trial was had by a jury on the charge of murder, defendant was convicted of the crime of murder in the first degree, without recommendation. Thereafter, a motion for a new trial was made and denied. Following pronouncement of judgment and the imposition of the death penalty, this appeal from the judgment and order denying a new trial was automatically presented to this court. (Sec. 1239, Pen. Code.)

The facts in this case, which in part were supplied from the confessions and extra-judicial statements voluntarily made by defendant, appear to be substantially as hereinafter related.

At approximately 9 o’clock on the evening of February 24, 1939, at the campus of the Los Angeles City College, defendant, a young man twenty years of age, struck a young woman named Anya Sosoyeva on the head with a piece of two-by-four. A few hours after the assault was committed, she died from the effects of the blow.

In the evening of the day on which the offense was committed, defendant, who was married and living with his wife and mother, left his home at about 7 o’clock, which was the usual time of his departure on occasions when he worked at night as a printer. However, he did not go to work that evening but, instead, he went to the campus grounds of the Los Angeles City College, and looked around the adjoining neighborhood with a view to burglarizing a house. As he did not locate a house suitable for that purpose he thereupon decided to seize a purse instead, and he began to search for some object with which to strike his intended victim. Underneath a bench which was located beside a walk leading to the administration building on the campus grounds, he noticed a piece of two-by-four, which he picked up and carried with him while he resumed his walk around the neighborhood. A short time later he returned to the campus grounds and to the vicinity of the bench. After he had walked back and forth about forty-five minutes he observed a young woman, who was later identified as Miss Sosoyeva, coming toward him along the walk. After she had passed him, proceeding in a direction opposite to that pursued by defendant, he turned and followed her a few feet and then, wielding the piece of two-by-four by the use of both hands, he struck her a blow on the head, which caused her to fall to the ground. Immediately, defendant partly dragged, partly carried her to a tree—a distance of from eight to fifteen feet from the paved walk—for the reason, as asserted by defendant, that had she been left lying where she had fallen she might have been observed if anyone came along the walk. He attempted to stifle outcries which she made by placing his hand over her mouth, but as she was “making lots of noise” he became frightened and fled the scene—without taking her purse, however,—and made his escape through a portion of the campus grounds known as the Shakespearian Gardens.

According to the testimony of a police officer, who, shortly after 9 o’clock P. M., was called to the scene of the attack, Miss Sosoyeva was then seated beside a desk in a room of the administration building. Her head was cradled in her arms which were lying on the desk. He testified that there was blood on her face, that she was moaning, and that her only intelligible words were, “Oh, he hit me.” Soon thereafter, she was removed to an emergency hospital where she received medical treatment. The doctor and nurse who attended her testified that at the time of her arrival Miss Sosoyeva was in a semi-conscious condition; that she was bleeding from her left ear; that there was blood on her face and head; and that an examination revealed a traumatic injury to the back of her head. She was then transferred to another hospital where, as a result of her injuries, she died at about 1:20 o’clock on the following morning. Before her death she was identified by a young woman with whom she had shared an apartment which was located near the college campus. According to the testimony of her roommate, it appeared that Miss Sosoyeva was about twenty-seven years of age; and that when she was last seen by the witness at their apartment at approximately 6:30 P. M., on the evening of the assault, Miss Sosoyeva was dressing and making preparations for taking part in a theatrical performance which was to be held that night in the administration building of the Los Angeles City College.

The testimony of Police Captain D. R. Patton revealed that about 2:30 o’clock on the morning following the assault on and death of Miss Sosoyeva he visited the portion of the college campus where the attack had occurred, and on the making of an examination of the ground in that vicinity, he found leaning against a tree a section of two-by-four, to one end of which adhered some strands of blonde hair. He also found a comb, a glove for a man’s right hand, which glove was stained with blood, and several spots of blood on the walk and on the ground a few feet therefrom. The left glove which was found in the Shakespearian Gardens, through which defendant had fled after the assault, also was marked with blood as well as with lipstick stains. On the taking of evidence it appeared that the blonde hairs found on the piece of two-by-four were of the same color and texture as the hair of the deceased, and that the lipstick marks found on the left glove were of the same color and chemical content as lipstick which had been found in the handbag of the deceased. Furthermore, by his extra-judicial statements and confessions it was established that the gloves had been identified by defendant as being the same gloves that he had secured in a burglary theretofore committed by him and which he admitted having worn on the occasion of the assault in question, in order to avoid leaving fingerprints.

Some months after the assault was committed and on August 28, 1939, defendant was taken into custody for questioning by the police in connection with certain burglary and other charges. While defendant was being taken to the police station in the police car it appeared that a piece of two-by-f-our, approximately eleven inches long, was found on the rear seat of the automobile where defendant was riding, and that when he observed it he was said to have remarked, “My God, not that.!” However, it did not appear that the said section of two-by-four was taken from defendant, nor was either of the accompanying police officers able to account for its presence in the automobile,—although it later was shown that it was not the same piece of two-by-four which defendant had used in committing the assault on Miss Sosoyeva. On the following morning, while he was being questioned specifically with regard to the “campus” crime, defendant made a full and complete confession of his connection therewith. Later he repeated the same confession before the members of the grand jury, which body returned the indictment against defendant.

At the trial of the ease, in addition to the confession of defendant, a sound motion picture was presented in evidence which depicted a purported reenactment by defendant of the several incidents which related to the assault. Defendant declined to offer any evidence whatever in his own behalf.

Appellant’s principal contention on this appeal is that the jury should have found that his crime amounted only to murder of the second degree. He argues that, independent of his confessions and extra-judicial statements, the evidence established only the fact that he committed the homicide. He contends that the following circumstances tend to show lack of premeditation: That at the time when the assault was committed appellant did not even know the deceased; that the blow was struck by an immature youth who would not have fully appreciated the consequences xvhich might have resulted from the use of the weapon employed; that one seeking to take life would not have embarked unarmed on such an errand, and then have adopted and used for that purpose an instrument which chance placed in his hand near the scene of the assault; and that a person who had sought to take a human life would not have contented himself with a single blow while his intended victim still lived.

Appellant also argues that, apart from his extra-judicial statements and confessions, the evidence is positive that the homicide was not committed by him in perpetration of or attempt to perpetrate any of the crimes specifically enumerated in section 189, Penal Code, and, therefore, that in the absence of proof of premeditation on the part of appellant, the homicide amounted to no more than murder of the second degree. He argues that premeditation may not be presumed or inferred, but that it must be proved the same as any other element of the offense; that the degree is an essential element of the corpus delicti of the crime and cannot be established by admissions and confessions of the defendant; and that where the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder, but that in such ease the verdict should be murder of the second degree and not murder of the first degree (citing People v. Howard, 211 Cal. 322, 329 [295 Pac. 333, 71 A. L. R. 1385]).

Murder is defined as the unlawful killing of a human being with malice aforethought. (Sec. 187, Pen. Code.) Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature, and it is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned or malignant heart. (Sec. 188, Pen. Code.) All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration of or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. (Sec. 189, Pen. Code.) Where homicide occurs in the course of the commission of any of the crimes of arson, rape, robbery, burglary, or mayhem (as enumerated in section 189, Penal Code), intent need not be proved. But where death otherwise results, wilfulness, premeditation and deliberation must be established in order to constitute the crime of first degree murder.

With regard to the crimes specifically mentioned in section 189, Penal Code, it appears to have been the theory of the prosecution that appellant intended to commit the crime of rape when he made the assault and that (excluding the confessions and admissions of the defendant) the facts and circumstances surrounding the commission of the assault were sufficient to show that he intended to commit such offense. However, aside from the extra-judicial statements and confessions of appellant, from a review of the record herein it does not appear that there was any direct evidence to show either the perpetration of or the attempt to perpetrate the crime of robbery, rape, or any of the other offenses particularly named in the code section,—even though it was apparent that appellant had the opportunity for the commission of such offenses. But even if there was no evidence apart from the confessions and extra-judicial statements of the defendant to show that the crime was committed in an attempt to perpetrate any of the offenses enumerated in the code section, the jury would have been entitled to infer the existence of premeditation in the commission of the homicide, if it appeared that such a conclusion was warranted from a consideration of all the facts and circumstances connected with the assault. (People v. Owens, 27 Cal. App. (2d) 606, 611 [81 Pac. (2d) 429] ; People v. Wells, 10 Cal. (2d) 610, 624 [76 Pac. (2d) 493] ; People v. Spinelli, 14 Cal. (2d) 137, 142 [92 Pac. 1017] ; People v. Campos, 10 Cal. App. (2d) 310, 315 [52 Pac. (2d) 251] ; People v. Johnson, 203 Cal. 153, 164 [263 Pac. 524].)

In the ease of People v. Owens, 27 Cal. App. (2d) 606, 610, 611 [81 Pac. (2d) 429], it was said: “ 1 ... It is settled that “malice may always be inferred from the circumstances in the case—the evidence presented and considered by the jury.” (People v. Glover, 141 Cal. 233, 243 [74 Pac. 745].) . . . The circumstances that were shown to have surrounded the homicide, including the character of weapon used, the nature of the wound inflicted, the fact that the deceased displayed no weapon of any character and was unarmed, the acts and conduct of the accused, furnished ample justification for the indulgence by the jury in the inference that appellant entertained a deliberate purpose to kill the deceased. This properly supported inference warranted the return of a verdict convicting appellant .of murder in the first degree. (People v. Mahatch, 148 Cal. 200 [82 Pac. 779]; People v. Bennett, 161 Cal. 214 [118 Pac. 710] ; People v. Peete, 54 Cal. App. 333, 342 [202 Pac. 51].) ’ ” There it was further said, quoting from the case entitled People v. Fleming, 218 Cal. 300 [23 Pac. (2d) 28] : “ ‘ . . . this court has said on innumerable occasions that in order to prove premeditation in one charged with murder it is not necessary to show that any appreciable space of time elapsed between the intention to kill and the act of killing. . . . Where one assaults another violently with a deadly weapon and takes his life the presumption is that the assailant intended death or great bodily harm. (13 Cal. Jur., p. 683.) And where, as in this case, the assault was made in a manner that was reasonably certain to produce death, and which actually did cause death, the only rational presumption to be drawn therefrom is that the assailant intended to take the life of the person assailed. ’ ’ ’

And in the case of People v. Wells, 10 Cal. (2d) 610, 624 [76 Pac. (2d) 493], it was said: “ . . . with respect to the issue of whether the offense was that of murder in the second degree: It was the exclusive province of the jury to determine from the evidence whether the killing was the ‘wilful, deliberate and premeditated’ act of defendant. In that connection, in the case of People v. Mahatch, 148 Cal. 200, 203 [82 Pac. 779] , in part it was said: ‘The jury, having found that the only extenuating circumstance which he interposed had no existence in fact, and no claim of any circumstances of mitigation, justification, or excuse for the killing being advanced, had a right to infer, from the character of the weapon used, the nature of the wound inflicted, and the acts and conduct of the accused, the existence of a deliberate purpose on his part to kill the deceased when the fatal blow was struck, and, so inferring, were warranted in returning a verdict therefrom for murder in the first degree. This is the general, it may be said the universal, rule. If a different one prevailed, secret murders could rarely be punished by the infliction of the highest penalty. It is exclusively the province of a jury to determine the degree of crime when there is any evidence in the case which will support the determination.’ ” (Emphasis added.)

Also, in the recent case of People v. Spinelli, 14 Cal. (2d) 137, 142 [92 Pac. (2d) 1017], it was said, quoting from People v. Johnson, 203 Cal. 153 [263 Pac. 524], that “ ‘ . section 1105 of the Penal Code provides that “the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable”. The defendant offered no proof to meet the burden which the law casts upon him and as there was no claim of justification or excuse offered for the killing of decedent or pretense that the proof tended to show that the crime committed only amounted to manslaughter, the crime was murder of the first degree’.”

As hereinbefore has been indicated, at the close of the case for the prosecution, appellant rested. He produced no evidence on his own behalf, nor any which tended to show mitigation, excuse or justification for the commission of the crime with which he was charged. His confessions and extrajudicial statements were introduced in evidence upon stipulation of counsel and without objection on his part, nor were they or any of them challenged by him as having incorrectly reflected a true recital of the several statements and admissions which were therein attributed to Mm.

From the authorities hereinbefore cited it is apparent, therefore, that in the present case it was for the jury to determine the question of the presence of premeditation or lack thereof on the part of appellant in the commission of the crime, from a consideration of the type of weapon employed and the manner of its use; the nature of the wounds suffered by the deceased; the fact that the attack was unprovoked and that the deceased was unarmed at the time of the assault; the conduct of her assailant in refusing or neglecting to aid her at a time when by his own statement he had formed the impression she was trying to call for help, and his immediate flight thereafter from the scene of the assault. However, appellant contends that “the very nature of the instrument which in this case did in fact cause death would negative a plan to take life, for it is difficult to believe that one would choose such a weapon to accomplish that intent”. The instrument employed by appellant, from the use of which Anya Sosoyeva met her death, was a piece of two-by-four about two feet long. She was struck on the back of her head, the blow having been delivered by the use of both hands of her assailant. Although perhaps it may not be said that such an instrument is one which is inherently dangerous or deadly, nevertheless it is obvious that such a weapon may become so if used in a particular manner or if the blow be inflicted on certain portions of the body. (People v. Valliere, 123 Cal. 576 [56 Pac. 433].) In the last-cited case, it was ruled (syllabus) that “if the testimony shows that the question whether the instrument used was such as would be likely to produce death depends upon the manner of its use and the portion of the body upon which it was used, it becomes a mixed question of law and fact whether it was a deadly weapon, which the jury must determine under proper instructions from the court”. (Emphasis added.) Also, in the case of People v. Raleigh, 128 Cal. App. 105, 108, 110 [16 Pac. (2d) 752], the court pointed out the distinction between instrumentalities which are “weapons” in the strict sense of the word, such as guns, dirks, etc., and those instrumentalities which are not weapons in that sense, such as canes, hammers or other heavy objects. With reference to the latter classification the court said, “When it appears . . . that [such] an instrumentality . . . is capable of being used in a ‘dangerous or deadly’ manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require, we believe that its character as a ‘dangerous or deadly weapon’ may be thus established, at least for the purposes of that occasion.” And it was held in that case that, if “from all the facts and circumstances the jury is convinced beyond a reasonable doubt that the instrumentality was one which, in the hands of the perpetrator of the robbery, was capable of being used in a ‘dangerous or deadly’ manner and that the perpetrator of the robbery intended to use it as a ‘weapon’ should the circumstances require, then the character of the particular instrumentality is established as a ‘dangerous or deadly weapon’ . . . ” (Emphasis added.) Therefore, under all the facts and circumstances of the instant case the questions of the nature of the weapon and the manner of its use in their relation to the crime committed were for the determination of the jury. (People v. Lee, 23 Cal. App. (2d) 168 [72 Pac. (2d) 572] ; People v. Valliere, 123 Cal. 576, 579 [56 Pac. 433].)

Appellant also contends that prejudicial error was committed by the trial court in its refusal to give to the jury the following instruction:

“The law presumes a man to intend what he does, but the law does not presume a killing with premeditated design. It is like every other element of murder in the first degree and must be proved beyond a reasonable doubt before the jury would be entitled to find the defendant guilty. ’ ’

Appellant asserts that the refusal of the court to give that instruction was rendered particularly injurious to his rights by reason of two instructions which the court gave and which were substantially as follows:

“A person is presumed to intend to do that which he voluntarily and wilfully does in fact do, and must also be presumed to intend all of the natural, probable and usual consequences of his own acts. Therefore, if you are satisfied to a moral certainty and beyond a reasonable doubt that the defendant did assault, on the date mentioned, one Anya Sosoyeva violently with a dangerous weapon, likely to kill, and which did in fact destroy the life of said Anya Sosoyeva the natural presumption is that such assailant intended death or great bodily harm, and in the absence of evidence to the contrary this presumption must prevail.”

One of those instructions contained the following additional statement that “The wilful use of a deadly weapon without excuse or provocation, in such a manner as to imperil life, generally indicates a felonious intent.”

With regard to the first portion of the instructions that were given, to which appellant has objected, he argues that the language therein expressed in effect told the jury that the mere proof of a felonious assault which resulted in death would ipso facto constitute proof of intent to kill and thus establish the premeditation embraced in the definition of first degree murder. Appellant contends that those instructions should have included the further advice that the deliberation and premeditation embraced in the definition of first degree murder were not to be presumed or inferred, but that the existence of those elements had to be proved to the same degree as any other element of the offense. However, from that which has been said hereinbefore, it is apparent that an objection to the two instructions on that ground is without merit. Moreover, in the ease of People v. Jones, 160 Cal. 358, 370 [117 Pac. 176], it expressly is held that the rule contended for by appellant is without application to homicide cases. Other authorities to the same effect need not be cited.

With reference to that part of the instruction which advised the jury that “the wilful use of a deadly weapon without excuse or provocation, in such a manner as to imperil life, generally indicates a felonious intent”, it appears that the jury was not specifically instructed that it was the province of the jury to determine whether the weapon employed by appellant herein constituted a “deadly” weapon, nor was it instructed that “a deadly weapon is one likely to produce death or great bodily harm”. (26 Cal. Jur., p. 573; see, also, People v. Valliere, 123 Cal. 576 [56 Pac. 433].)

However, in considering claimed errors in the giving of or refusal to give certain instructions, it becomes "the duty of an appellate court to consider the entire cause, including all the evidence, for the purpose of determining whether a miscarriage of justice has resulted (People v. Fleming, 166 Cal. 357 [136 Pac. 291, Ann. Cas. 1915B, 88] ; People v. Hoffman, 195 Cal. 295 [232 Pac. 974].) In the present case, aside from any other evidence, the extra-judicial statements and confessions of appellant indicated that when he went to the campus grounds on the night of the assault he intended to commit the crime of robbery. By that admission it is apparent that a consideration of the evidence in its entirety shows a violation by appellant of that portion of section 189, Penal Code, which provides that where a homicide occurs in the course of the perpetration of -or attempt to perpetrate the crime of “arson, rape, robbery, ...” the crime committed is murder of the first degree.

No prejudicial error appearing in the record herein, it is ordered that the judgment, and the order by which defendant’s motion for a new trial was denied, be, and they are, affirmed.


source: Caselaw Access Project

author: CURTIS, J.

license: Public Domain

text:
    [Crim. No. 4266.
    In Bank.
    May 27, 1940.]
    THE PEOPLE, Respondent, v. H. L. McALLISTER, Appellant.

      Klein & Clarke for Appellant.
    Earl Warren, Attorney-General, F. Walter French, Deputy Attorney-General, for Respondent.
   CURTIS, J.

Defendant was found guilty of a conspiracy to violate section 17 of the General Cemetery Act (Stats. 1931, p. 2434). This section is now section 8780 of the Health and Safety Code (Stats. 1939, chap. 60, p. 482) and provides that it is a misdemeanor to sell, offer for sale, or advertise any cemetery plot under representation that such plot is under perpetual care, before a perpetual care fund has been established for the cemetery in which the property so sold, offered for sale or advertised, is situated. The sentence was imposed upon defendant at about 9:30 o’clock on the morning of March 2, 1936, and was as follows: “It is ordered that the defendant be fined the sum of $900, payable in monthly installments of not less than $25 per month, commencing June 1.”

After the pronouncement of the sentence, defendant and his counsel left the courtroom and went to the Central Bank building in the city of Oakland, being the city in which said court was held. Thereafter, and on the same day, said defendant and his counsel were called by the clerk of said court and requested to return to the courtroom of the court in which said judgment had been pronounced. The defendant and his counsel did return to said courtroom and during the “afternoon session” of said court the following proceedings were had in their presence:

“The court: The People v. McAllister. In this case of People v. McAllister, I inadvertently did not state the alternative in the event of nonpayment of the fine. It is further ordered that in lieu of the nonpayment of any part of the fine, the defendant be confined in the County Jail of this county at the rate of one day’s imprisonment for every five dollars of said fine remaining unpaid, not to exceed a total period of six months. ’ ’ Thereupon the judgment was entered and it now appears in the judgment roll as follows:

“It is therefore ordered that he pay a fine of $900.00, said fine to be paid at not less than $25.00 per month beginning on June 1st, 1936, and each and every month thereafter until said fine be satisfied; and in default of payment of said fine, he be confined in the County Jail of the County of Alameda at the rate of one day’s imprisonment for each $5.00 of said fine unsatisfied, imprisonment, however, not to exceed six (6) months.”

Thereafter petitioner filed in the District Court of Appeal a proceeding in prohibition to restrain the superior court from enforcing the alternative provisions of said judgment rendered at the afternoon session of said court and being the portion thereof providing for imprisonment in case the fine was not paid. His petition was denied on the ground that it was a collateral attack upon the judgment, and as the claimed invalidity of the judgment did not appear upon the face of the judgment, such an attack would not lie. (McAllister v. Superior Court, 28 Cal. App. (2d) 160 [82 Pac. (2d) 462].) In the course of the opinion therein the court stated: “ . . . the alternative provision, as pronounced and entered, was not invalid on its face . . . and there was no subsequent attempt to modify the judgment ...” The defendant thereafter filed in the trial court a motion to modify'said judgment as finally entered by the clerk b;r striking out the alternative provision thereof on the ground that the court had no jurisdiction to change or add to said judgment, as the court attempted to do at its ‘1 afternoon session ’ ’, by the addition of said alternative provision. Said motion was denied, and the appellant has appealed from the order denying his said motion.

“It is a general rule of the law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified, or annulled by that court. But it is a rule equally well established, that after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them; and if errors exist, they can only be corrected by such proceeding by a writ of error or appeal as may be allowed in a court which, by law, can review the decision. ” (Bronson v. Schulten, 104 U. S. 410 [26 L. Ed. 797] ; Black on Judgments, vol. I, 2d ed., p. 467.) This was the rule followed in this state under the first Constitution, which provided for terms of court. (Const., 1849, sec. 10, art. VI; Baldwin v. Kramer, 2 Cal. 582; Suydam v. Pitcher et al., 4 Cal. 280; People v. Thompson, 4 Cal. 238; Carpentier v. Hart, 5 Cal. 406; Shaw v. McGregor, 8 Cal. 521; Bell v. Thompson, 19 Cal. 706, 707.)

Since the abolition of terms of court by the adoption of the present Constitution there have been various decisions of our appellate courts as to the time within which the court may modify or vacate an order or judgment rendered by it and substitute another for that previously rendered.

In support of his appeal from the order of the court'denying his motion to modify said judgment by striking therefrom the alternative provision thereof, appellant relies in the main upon two decisions of the District Court of Appeal; In re Sullivan, 3 Cal. App. 193 [84 Pac. 781], and In re Garrity, 97 Cal. App. 372 [275 Pac. 480]. In the case of In re Sullivan, 3 Cal. App. 193 [84 Pac. 781], the petitioner was convicted of an assault with a deadly weapon and was sentenced to pay a fine of $700, and it was directed that if said fine was not paid he be imprisoned in the state prison until the fine was satisfied at the rate of $2 per day, and he was forthwith committed to the custody of the proper .officer. Five days later and before his delivery to the state prison, he was again brought into court and the judgment was vacated and a second judgment was rendered which was identical with the first in every particular except that the county jail was designated as the place of imprisonment in case the fine was not paid. Petitioner was released on hateas corpus, the court holding that after his conviction and a written commitment conforming thereto was issued under which the defendant was restrained, the power of the court was exhausted and it was thereafter without jurisdiction to vacate the judgment and impose another.

In the decision of that case the statement is made that: “In our opinion the court must exercise the discretionary power conferred by section 1205 of the Penal Code when the original judgment is rendered, or else the power to make the direction therein provided for [the alternative provision] is lost.” This statement was not necessary for the decision in that case, as the second judgment was rendered some five days after the first judgment, and the defendant, during these five days, was under legal restraint by reason of the first judgment. This statement is contrary to the well-established rule announced by the Supreme Court of the United States in the case of Bronson v. Schulten, supra, 104 U. S. 410, and quoted in the fore part of this opinion. Furthermore, the District Court of Appeal cites no authority in support of the above-quoted statement, but, on the other hand, cites and apparently relies upon a ease which holds directly to the contrary as, on page 196 of its decision, we find it stated, “In Commonwealth v. Foster, 122 Mass. [317] 323 [23 Am. Rep. 326], the court after an exhaustive review of the authorities, English and American, held that the sentence might have been amended at the same term and before any act had been done in execution thereof, but not afterwards. ’ ’ In the light of these authorities, we are not able to agree with the statement of the District Court of Appeal in the Sullivan case that the court must exercise the power given it by section 1205 of the Penal Code when the original judgment is rendered, or else the power to make direction therein provided is lost.

In the case of In re Garrity, supra, 97 Cal. App. 272, the court followed the decision rendered in, In re Sullivan, supra, and held that,11 In our opinion the court must exercise the discretionary power conferred upon it by section 1205 of the Penal Code [the alternative provision in ease of failure to pay fine] when the original judgment is rendered, or else the power to make the direction therein provided for is lost.” While we agree with the conclusion reached by the court in that case, we are of the opinion that the portion of the opinion just quoted was not necessary to the decision of any issue before the court. In the Garrity case the original judgment was pronounced against the defendant on October 31st, requiring him to pay a fine of $5,000, with no alternative of imprisonment in ease the fine was not paid. On December 6th, over five weeks after the pronouncement of the original sentence the court ordered that if the fine is “not paid by December 20th, 1938, the defendant shall be remanded to the sheriff of Los Angeles County to be confined in the county jail until paid out at the rate of $8.00 per day”. An attempt was made to imprison the defendant under this alternative provision of the sentence, and the District Court of Appeal properly held he was illegally imprisoned and discharged him from custody. It can hardly be assumed that during the time between the original sentence and the order providing for the alternative of imprisonment in case the fine was not paid, a period of over five weeks, the first sentence had not been entered by the clerk in the minutes of the court. That being so, the court had lost jurisdiction of the case and had no authority to add to or modify the original sentence pronounced upon the defendant.

In the instant ease, it is conceded that the sentence imposed upon the defendant at the morning session of the court was not entered in the minutes of the court prior to the afternoon session, when the court included in the sentence the alternative provision thereof. From the nature of the sentence imposed at the morning session, the defendant was not and could not have been placed under any restraint by reason of said sentence. The judgment was pronounced on March 2, 1936, and provided for a fine of $900 to be paid in monthly instalments of $25 a month, beginning June 1, 1936. As the sentence pronounced by the court at its morning session had not been entered in the minutes of the court prior to the afternoon session, and as defendant had not been placed under any restraint by reason of the first sentence, the court at the time it pronounced the second sentence had judisdiction and authority to amend or modify its previous sentence by including in the sentence the alternative provision in the event of nonpayment of the fine.

It was so held in Ex parte Monckros Von Vetsera, 7 Cal. App. 136 [93 Pac. 1036], where the petitioner had been convicted and, sentenced to San Quentin. He sought his release by habeas corpus, brought in the superior court of Marin County. The court, upon the hearing of his petition, made an order on October 15th, discharging him from custody. No written order of discharge was made by the court, nor was any entry of said order made by the clerk of court in his minutes. On October 17th, in the absence of the prisoner, the court made an order vacating his order, made two days previously, and reserved the matter for further action. Petitioner then applied to the District Court of Appeal by petition for writ of habeas corpus to be released from the custody of the warden of San Quentin on the ground that the superior court, after making its order of October 15, discharging petitioner, was without jurisdiction to vacate said order or render any further order in said proceeding. The District Court of Appeal denied the petition and held as follows: “In the ease at bar the order relied upon by the petitioner for his discharge never having been entered in the minutes of the court, was subject to be vacated and revised by the court, and having been thus vacated affords no warrant for his release from imprisonment.”

The other cases cited by the appellant and decided since the Sullivan case shed but little light upon the question now before us. In In re Bouchard, 38 Cal. App. 441 [176 Pac. 692], the petitioner had been sentenced under the Indeterminate Sentence Law and had served practically a year of his sentence in state prison, although the crime of which he had been convicted had been committed prior to the effective date of the Indeterminate Sentence Law. Thereafter on motion of the district attorney, the petitioner was returned from the state prison and resentenced by the trial court. On habeas corpus, it was held that the trial court was without authority to render this second judgment, inasmuch as the petitioner had begun the service and had served almost a year of his prior sentence.

In In re Gottschalk, 47 Cal. App. 260 [190 Pac. 649], the judgment as originally entered gave the defendant the option of avoiding the imprisonment by the payment of the fine. Later, however, the court entered an order purporting to withdraw the option and directing the imprisonment of the defendant. This order was made after the defendant had been taken into custody and brought the case within the rule that the court has no jurisdiction to modify a sentence after the defendant has been taken into custody thereunder.

In In re Claudette, 21 Cal. App. (2d) 688 [69 Pac. (2d) 1021], petitioner was found guilty of petit theft and on April 17th sentenced to imprisonment in the county jail for a period of thirty days and to pay a fine of $250. The time of his imprisonment expired on May 14th, at which time the court made and signed an additional order that the petitioner be imprisoned for another thirty days, or until the fine was paid, not exceeding $8.33 a day, said sum amounting to the $250 fine originally imposed. The appellate court held that the trial court was without jurisdiction to make the second order, having exhausted its jurisdiction under the original judgment. As will be noted, a period of thirty days intervened between the original sentence and the attempt to modify it, during which time defendant had been imprisoned under the original sentence.

In Barry v. Superior Court, 91 Cal. 486 [27 Pac. 763], the petitioner was found guilty of contempt of court and on September 30, 1889, sentenced to be imprisoned in the county jail for five days and to pay a fine of $500, and if said fine was not paid at the end of the five days’ imprisonment that he be further imprisoned until said fine should be satisfied at the rate of one day for each $2 of the fine unpaid. The petitioner served the five days’ imprisonment. The court on October 5, 1890, a year and five days after the entry of the first judgment, made a further or second judgment, reciting that said fine had not been paid and ordered execution to issue against petitioner for the sum of $500 and costs. This second judgment was rendered without any notice to petitioner. This court held that the trial court did not retain jurisdiction to enter another and different judgment in the same matter on October 5, 1890. The court did not state its reasons for its decision, but it is apparent that there were two grounds upon which the decision might well have been based. One of these grounds was that one year and five days had elapsed before the judgment was attempted to be modified, and another was that the defendant in the action had been taken into custody by virtue of the sentence imposed by the first judgment, and had served imprisonment thereunder.

Prom the foregoing cases we think the following rule has been established: If the sentence has been entered in the minutes of the court, or if the defendant has begun serving said sentence or has been restrained by the sentence imposed, then the court is without jurisdiction to vacate, add to, or in any manner modify the sentence originally pronounced. On the other hand, if the sentence pronounced has not been entered by the clerk in his minutes, and no legal restraint has been imposed upon the defendant by reason of said sentence, then it is proper for the court to change the sentence originally pronounced.

The question may arise in some cases as to the time in which the clerk must act in entering the sentence or judgment in the minutes of the court. That he should do so in a reasonable time after its pronouncement, we think is obvious. What is a reasonable time may depend upon the circumstances of each particular case. Usually the practice of the courts of this state is for the clerk to make up his minutes following the adjournment of the court for the day. It is not necessary for us to pass upon the question as to what is a reasonable time for the clerk to perform this duty as we are satisfied that in this case when the two acts of the court occurred on the same day, no duty was imposed upon its clerk to enter the first sentence of the court before adjournment of the court for that day.

For the reason hereinbefore stated, the order denying appellant’s motion to vacate the alternative provision of the sentence is affirmed.

Shenk, J., Carter, J., and Gibson, J., concurred.


author: SHENK, J.

text:
    [S. F. No. 16420.
    In Bank.
    May 27, 1940.]
    IRENE E. MORAN, Petitioner, v. DISTRICT COURT OF APPEAL, THIRD APPELLATE DISTRICT, Respondent.

      McAllister & Johnson and J. W. Dignan for Petitioner.
    Johnson & Curtright, P. IT. Johnson and C. K. Curtright for Respondent.
   SHENK, J.

This is a proceeding in certiorari to annul an order of the District Court of Appeal, Third Appellate District.

In an action pending in the Superior Court in and for the County of Sacramento, entitled Irene E. Moran, Plaintiff, v. Arthur R. Moran, Defendant, the plaintiff sought a divorce on the ground of extreme cruelty. The defendant husband answered and filed a cross-complaint, in which he alleged that the purported marriage between himself and the plaintiff was void for the reason that the plaintiff was formerly married to Paul R. Hendricks, who is still alive, and from whom she had not been divorced. The defendant prayed that the plaintiff be denied a divorce and that he be granted a decree of annulment.

At the time of the trial of the action, the defendant was unable to locate Hendricks, without whose testimony he was unable to prove the alleged prior and undissolved marriage relationship. An interlocutory decree of divorce was entered in favor of the plaintiff on March 1, 1940, and it was further determined that the defendant take nothing by his cross-complaint. On March 4th the defendant served a notice of motion for a new trial upon several grounds, including newly discovered evidence. In support of the motion an affidavit was filed in which it was averred that since the divorce case had been determined the defendant had discovered that Paul R Hendricks resides at Waukegan, Illinois, and that he had refused to make an affidavit concerning his marital status with the plaintiff. On March 11th the defendant applied to the superior court for an order to take the deposition of Hendricks to establish the newly discovered evidence on the motion for a new trial. The application was denied.

On March 15th the defendant served and filed in the respondent District Court of Appeal a notice of motion for a peremptory writ of mandamus to compel the superior court to direct the issuance of a commission to take the deposition of Hendricks. After a hearing of the motion and under date of April 4, 1940, the District Court of Appeal handed down its opinion and decision in the matter, concluding with an order as follows: “The writ of mandamus is granted and the court is directed to issue the commission to take testimony as prayed for.” (Moran v. Superior Court, 38 Cal. App. (2d) 328 [100 Pac. (2d) 1096].)

On April 23d, the defendant, on notice, moved the District Court of Appeal for an order directing the issuance of the writ of mandamus forthwith. This motion was supported by an affidavit stating “that unless said clerk shall forthwith issue said writ, the whole benefit of said proceeding to petitioner will be lost to him, for the reason that the time within which respondent court has and retains jurisdiction to review and consider said deposition of said witness on motion for a new trial now pending before it, will long since have expired before said commission can be issued and said deposition taken and returned to said court.”

On the hearing of this motion the District Court of Appeal made and entered an order in its minutes in which it was “directed and ordered that the writ of mandamus issue forthwith and that the remittitur go down immediately.” The present proceeding is an attack on that order, and the question is whether the District Court of Appeal exceeded its jurisdiction in directing the immediate effectiveness of said writ.

Prior decisions disclose that the question is not an open one in this state. (People v. District Court of Appeal, 193 Cal. 19 [222 Pac. 353].) It was there held that since the creation of the District Courts of Appeal in 1904, a proceeding in mandamus has been deemed a 11 cause ’ as that term was used in the following portion of section 4 of article YI of the Constitution, as originally adopted in 1904:

“The Supreme Court shall have power to order . . . any cause pending before a district court of appeal to be heard and determined by the Supreme Court. The order last mentioned may be made before judgment has been pronounced by a district court of appeal, or within thirty days after such judgment shall have become final therein. The judgments of the district courts of appeal shall become final therein upon the expiration of thirty days after the same shall have been, pronounced. ’ ’

The foregoing language was continued in effect, so far as mandamus proceedings are concerned, as a part of section 4c of article YI, as adopted in 1928.

The order of the respondent District Court of Appeal of date April 4, 1940, directing that a writ of mandamus issue as prayed was unquestionably a “judgment” in that proceeding, as contemplated by the constitutional provision, and since the proceeding was a “cause” under the same provision, the judgment did not become final in the District Court of Appeal until the expiration of thirty days after its pronouncement on April 4, 1940. During the next thirty-day period the cause was subject to transfer to this court, as in the Constitution provided. In the absence of a transfer, the judgment of the District Court of Appeal could not be enforced until the expiration of sixty days from and after its pronouncement, and therefore the remittitur could not issue from that court until the expiration of that period. If a transfer to this court be made, the cause is removed from the jurisdiction of the District Court of Appeal and is then pending in this court the same as if originally lodged here.

It follows that the respondent District Court of Appeal exceeded its jurisdiction in attempting to make its judgment directing the writ of mandamus effective immediately, and the order of April 23, 1940, purporting to do so, must be set aside.

The order is annulled.

Curtis, J., Spence, J., pro tern., Carter, J., and Gibson, J., concurred.


author: WASTE, C. J.

text:
    [S. F. No. 16199.
    In Bank.
    May 27, 1940.]
    MARTIN E. SIMON et al., Plaintiffs and Appellants, v. BLANCHE M. GRAYSON, as Executrix, etc., Respondent; HELEN BAUMAN et al., Defendants and Appellants.

      W. H. Spaulding and Jerome Politzer for Appellants.
    R F. Mogan and Otto C. Stelling for Respondent.
   WASTE, C. J.

The question presented for determination upon this appeal involves the construction and effect to be given a provision in a will purporting to incorporate a letter by reference. Respondent’s claim to certain of the estate’s funds is based upon the terms of the letter. The appellants, who are residuary legatees under the will, contend that the attempted incorporation by reference was ineffectual. The facts, which were presented to the trial court upon an agreed statement, are as follows:

S. M. Seeligsohn died in 1935. His safe deposit box was found to contain, among other things, a will and codicil and a letter addressed to his executors. The will, which was dated March 25, 1932, contained a provision in paragraph four, leaving $6,000 to his executors “to be paid by them in certain amounts to certain persons as shall be directed by me in a letter that will be found in my effects and which said letter will be addressed to Martin E. Simon and Arthur W. Green (the executors) and will be dated March 25, 1932.” Paragraph four also provided that any one having an interest in the will “shall not inquire into the application of said moneys” and that the executors “shall not be accountable to any person whomsoever for the payment and/or application of said sum . . . this provision ... is in no sense a trust”.

The letter found in the testator’s safe deposit box was dated July 3, 1933, and stated: “In paragraph VIII of my will I have left "you $6,000—to be paid to the persons named in a letter and this letter is also mentioned in said paragraph. I direct that after my death you shall pay said $6,000 as follows: To Mrs. Esther Cohn, 1755 Van Ness Ave. San Francisco, Calif, the sum of $4,000— ... If any of the said persons cannot be found by you within six months after my death, or if any of the said persons shall predecease me, the sum directed to be paid to such persons . . . shall be paid by you to my heirs as described in paragraph IX of my said Will. . . . ” This letter was written, dated and signed entirely in the handwriting of the testator. No letter dated March 25, 1932, was found among his effects.

The codicil to the will was executed November 25, 1933. It made no changes in paragraph IV of the will and contained no reference to the letter, but recited, “Except as expressly modified by this Codicil, by Will of March 25th 1932 shall remain in full force and effect.”

Esther Cohn’s whereabouts was known to the testator’s executors immediately following his death, but she herself died a week later. Respondent, as her executrix, claimed the $4,000 mentioned in the letter. This claim was challenged by appellants, residuary legatees under Seeligsohn’s will, and his executors brought suit interpleading the disputants. From the agreed facts the trial court drew conclusions of law and rendered judgment in favor of the respondent. The chief question is whether the letter was effectually incorporated by reference into the will.

It is settled law in this state that a testator may incorporate an extrinsic document into his will, provided the document is in existence at the time and provided, further, that the reference to it in the will clearly identifies it, or renders it capable of identification by extrinsic proof. (Estate of Plumel, 151 Cal. 77 [90 Pac. 192, 121 Am. St. Rep. 100]; Garde v. Goldsmith, 204 Cal. 166 [267 Pac. 104] ; Estate of Martin, 31 Cal. App. (2d) 501 [88 Pac. (2d) 234]; 16 Cal. L. Rev. 154.) An attempt to incorporate a future document is ineffectual, because a testator cannot be permitted to create for himself the power to dispose of his property without complying with the formalities required in making a will. (Keeler v. Merchant's Loan & Trust, 253 Ill. 528 [97 N. E. 1061].)

In the case at bar the letter presumably was not in existence when the will was executed, for the letter bore a date subsequent to the date of the will. (Code Civ. Proc., see. 1963, subd. 23.) However, the letter was in existence at the time the codicil to the will was executed. The respondent points out that under the law the execution of a codicil has the effect of republishing the will which it modifies (Prob. Code, sec, 25), and argues from this that Seeligsohn’s letter was an "existing document” within the incorporation rule. The only authorities cited by the parties on this point are several English decisions. These cases hold that although an informal document is not in existence when the will referring to it is executed, a later republication of the will by codicil will satisfy the "existing document” rule and will incorporate it by reference provided the testamentary instruments sufficiently identify it. (In re Goods of Lady Truro, (1866) L. R. 1 P. & D. 201; compare In re Goods of Smart, (1902) L. R. Prob. Div. 238; 4 Cal. L. Rev. 356.) The principle of republication thus applied is unquestionably sound. In revising his scheme of testamentary disposition by codicil a testator presumably reviews and reaffirms those portions of his will which remain unaffected. In substance, the will is re-executed as of that time. Therefore, the testator’s execution of the codicil in the present case must be taken as confirming the incorporation of the letter then in existence, provided the letter can be satisfactorily identified as the one referred to in the will. And this is true, notwithstanding the codicil made no reference to the letter and recited that the will should remain in full force ‘ ‘ except as expressly modified by this codicil ’ ’, for the letter, if properly incorporated, would be an integral part of the republished will.

We are also of the opinion that the trial court did not err in concluding that the letter found with the will was the letter referred to in the will. Conceding the contrary force of the discrepancy in dates, the evidence of identity was, nevertheless, sufficient to overcome the effect of that factor. The controlling authorities in this state do not require that the informal document be identified with exact precision; it is enough that the descriptive words and extrinsic circumstances combine to produce a reasonable certainty that the document in question is the one referred to by the testator in his will. (Estate of Miller, 128 Cal. App. 176 [17 Pac. (2d) 181]; Estate of Martin, supra; Estate of Plumel, supra.) Here the letter was found in the safe deposit box with the will. It was addressed to the executors, as the will stated it would be. No other letter was found. Moreover, the letter is conceded to have been written by the testator, and its terms conform unmistakably to the letter described in the will. It identifies itself as the letter mentioned in the will and deals with the identical subject matter referred to in that portion of the will. All these circumstances leave no doubt that the letter of July 3, 1933, is the one that the testator intended to incorporate in paragraph four of his will.

Appellants also contend that the bequest to Esther Cohn lapsed upon her death seven days after the death of the testator. They would read the provisions of the will and letter as creating a contingent bequest payable only if the legatee should be alive at the time it became legally payable to her. Hence, it is said, the gift must fail because no distribution could have been made until at least four months after issuance of letters testamentary in the testator’s estate. (Prob. Code, see. 1000.) But such an interpretation is contradicted by the testator’s own language. The letter creates only two contingencies upon which the legacies would lapse—the inability of the executors to find any of the legatees mentioned within six months after the testator’s death, or the prior death of any of the legatees. As the stipulated facts show, neither of these contingencies occurred in the case of Esther Cohn. If it be conceded that the legacy to her would not vest until she was “found" by the executors, the facts show that they knew of her whereabouts within two days after the death of the testator.

The authorities relied upon by the appellants in this connection are either cases in which a testamentary trust creating a life estate was held to fail upon the death of the life beneficiary or in which precatory language in a will conferred upon a legatee the absolute power to dispose of a bequest in his oivn discretion. Here the executors do not claim that they have discretion to determine who is entitled to the funds in their hands. On the contrary, they have recognized that the mandatory force of the directions contained in the letter is inconsistent with any such discretion, and have sought to have the dispute determined in the courts.

Appellants finally claim that they were at least entitled to a judgment that the executors are legally free to pay the money over to them because of the provisions of paragraph four of the will purporting to exempt the executors from the duty to account. Without determining the validity or effect of that provision, it is a sufficient answer to the contention to note that the trial court was called upon by the executors to settle the controversy, and the judgment directing the disposition of the funds in their hand's was therefore entirely proper.

The conclusions we have reached make it unnecessary to pass upon the respondent’s contention that the letter is sufficiently testamentary in character to stand as an independent testamentary instrument.

The judgment is affirmed.

Shenk, J., Carter, J., Curtis, J., and Gibson, J., concurred.

Rehearing denied.


text:
    [Crim. No. 4277.
    In Bank.
    May 27, 1940.]
    In the Matter of the Disbarment of JEROME LYMAN RICHARDSON, an Attorney at Law.
    Miguel Estadillo, Robert W. Kenny and Morris E. Cohn for Petitioner.
    Philbrick McCoy for Respondent.
   SHENK, J.

On October 28, 1939, the State Bar of California caused to be filed in this court a certified copy of the record of conviction of Jerome Lyman Richardson, in an action numbered 27812 in the District Court of the United States, in and for the Northern District of New York, entitled, “The United States of America v. John L. Etheridge and Jerome Lyman Richardson.”

On November 8, 1939, pursuant to section 6102 of the Business and Professions Code (formerly section 299 of the Code of Civil Procedure), this court filed an order that Jerome Lyman Richardson, hereinafter referred to as the petitioner, be removed from his office as an attorney at law in this state. The order was based upon the purported showing that the petitioner was “convicted on a plea of guilty to count XI of the indictment, charging use of United States mails to defraud, in action numbered . . . 27812“ in said United States District Court.

On petition for rehearing, the petitioner contended that he was not convicted of a charge of using the United States mails to defraud; that count XI of the indictment charged a violation of section 88, Title 18, United States Code, namely, a conspiracy to violate “section 338, Title 18, United States Code, by using and causing the use of the United States mails in furtherance of a scheme and artifice to defraud, and to violate section 77 (q) (a) (1), Title 15, United States Code, by employing a scheme and artifice to defraud in the business of selling and offering to sell securities by use of the means of transportation and communication in interstate commerce, and by use of the mails, in the manner and by the means hereinafter described.” It is now disclosed that the petitioner’s plea of guilty went only to the portion of count XI alleging conspiracy to violate said section 77 (q) (a) (1) of the Securities Act. The record also shows that the petitioner paid the fine of $500, which was the full penalty imposed.

The petition for rehearing was granted on the showing that the record filed and the subsequent order of this court based thereon were inaccurate as to the statement of the offense to which the petitioner had entered a plea of guilty. Later the petitioner presented a certified copy of an order of the court in New York, made and entered on November 22,1939, amending its judgment in said action to conform to the plea and reading as follows:

“The defendant having been indicted and arraigned and pleaded guilty to the offense of unlawfully conspiring with others to violate the Securities Act, Title 15, Section 77 (q) (a) (1) of the United States Code; the Court now here, on motion of Andrew J. Culick, Esquire, Assistant United States Attorney, do adjudge and sentence the said defendant to pay a fine of Five Hundred Dollars or to stand committed to the Albany County Jail until said fine is paid.”

It is stated by the petitioner that the plea of guilty to the extent indicated was agreed to by him at a time when he was ill and unable to undergo a trial without serious detriment to his health and danger to his life; that the judge imposing sentence on the plea of guilty expressed himself as unwilling to impose any penalty on the defendant Richardson in that action which would result in his being disbarred from practicing law in California. Included in the record herein is a copy of a statement signed by the Honorable Frank Cooper, Judge of the United States District Court above mentioned, which is in part as follows:

“Before Mr. Richardson took a plea of guilty to a charge of conspiring to violate the Securities Act, I permitted counsel for Mr. Richardson to make thorough inquiry as to whether or not such a plea and the imposition of a fine only without any commitment to any prison or jail would in California subject him to disbarment. When the plea was taken, counsel for Richardson read from a letter written by Judge Freeman of the Superior Court, Riverside County, California. I inferred from this letter that a plea of guilty to a conspiracy to violate the Securities and Exchange Act would not subject Richardson to disbarment if the fine did not exceed $500.00 and no prison sentence was imposed, since therefore no moral turpitude would be involved. . . .
“As indicated in my opinion in fining Judge Richardson $500.00, I did not believe he was at all as culpable as Mr. Etheridge, one of the co-defendants, whom I sentenced to a term in prison for a year and a month with a $500.00 fine . . . It was because I believed Mr. Richardson to be more neglectful and careless than actually a participant in the making of fraudulent statements that I only imposed a fine and did not sentence him to imprisonment or impose a jail sentence. When I imposed the fine, I personally felt that the punishment was sufficient and I did not believe his connection with the conspiracy to violate the Securities and Exchange Act would under the laws of California subject him to disbarment.
“Under the circumstances, I feel I should make this statement on behalf of Mr. Richardson so that the Court, should it reconsider his disbarment, and I hope it does, would have all of the facts before it.
“ It is represented to me that a statement of my reflections on the question of moral turpitude might only be considered if incorporated in the judgment which I signed. Until two years ago no sentence was signed in this District. For the past two years sentences have been signed but they have been confined to a mere statement of the Count or Counts of an indictment under which a defendant was convicted or pleaded. It should be clear, therefore, that any judgment imposing a sentence or fine signed by the Court would be no place for an expression of the Court’s opinion on moral turpitude.”

Counsel for the State Bar, in support of the order directing the petitioner to show cause why he should not be disbarred, issued when the petition for rehearing was granted, argues that the foregoing and other matters referred to by the petitioner may not be considered by this court on the question of moral turpitude; that that question is concluded by the record of conviction in the United States District Court, and that the offense of conspiring to violate the Securities Act (Title 15, sec. 77 (q) (a) (1), U. S. Code), to which the petitioner pleaded guilty, is an offense which on its face involves moral turpitude.

The petitioner points out that this court has recently stated that some violations of a law enacted under the police power to protect the public from fraudulent impositions in the sale or transfer of securities might conceivably be lacking in bad faith or dishonest intent and thus the element of moral turpitude be not involved in the commission thereof. (In re Hatch, 10 Cal. (2d) 147 [73 Pac. (2d) 885].) He contends that the face of the record in this case and the character of the penalty imposed do not indicate, as a matter of law, that the commission of the offense, to which a plea of guilty was entered, involved moral turpitude. He argues that if the offense itself might not involve moral turpitude, a conspiracy to commit the offense would not necessarily involve it. He also asserts that if, as a matter of law, the offense of which he was convicted does not necessarily involve moral turpitude, this proceeding should therefore terminate. However, he has indicated his willingness to appear before the Board of Governors of the State Bar or its appropriate committee and submit to an examination and investigation on the question of moral turpitude. This court- has approved such a course in cases of conviction if the question of moral turpitude on the face of the record appears to be doubtful. (In re Hatch, supra.) True, if the conviction on the face of the record shows moral turpitude, then the record is conclusive of the matter (In re McAllister, 14 Cal. (2d) 602 [95 Pac. (2d) 932]), whether the offense be against a law of this or any other jurisdiction. (In re Craig, 12 Cal. (2d) 93 [82 Pac. (2d) 442].) In the Hatch case, it was determined that moral turpitude was conclusively shown by the record. The attorney in that case had been convicted of violation of the California Corporate Securities Act, by knowingly participating in the issuance and sale of securities without first having obtained the permit required by law. Referring to the record of conviction in that case, this court said:

“The trial court apparently concluded that the acts of the defendant were of such a serious and dishonest character that protection to society demanded that he should not, during the period of probation, engage in the investment business or handle the money of other persons. It would be anomalous to conclude that he should nevertheless be permitted to continue in the practice of the law during that period. The same reason for requiring that he be restrained from further engaging in the business of making investments for others or in handling the property of others is persuasive that the motive and intent with which he acted was such as to indicate turpitude in the commission of the offenses of which he was convicted. The record of conviction therefore is sufficient upon which to dispose of the proceedings herein finally without a reference to and investigation and recommendation by the board of governors of the State Bar as to whether the defendant’s acts involved moral turpitude.”

However, it was also said in that case: “There is necessarily a field of doubtful cases where the determination as to whether moijal turpitude was involved may fall on one or the other side of the line, depending upon the circumstances of the particular case. ... In some doubtful cases the record of conviction may not be sufficient upon which to base a determination one way or the other on the question of moral turpitude, and appropriate action by the court may require a reference to the board of governors of the State Bar for an inquiry and recommendation. The State Bar is not deprived of jurisdiction in disciplinary proceedings to inquire into the fitness of an attorney to practice when a record of his conviction is on file with the court under Osection 287 et seq. of the Code of Civil Procedure. Shafer v. State Bar, 215 Cal. 706 [12 Pac. (2d) 957].”

If there be doubt from the face of the record of conviction that the offense of which the attorney was convicted involved moral turpitude, a reference to the State Bar for investigation and recommendation pursuant to the policy declared in the Hatch case would seem to be appropriate. The matters extraneous to the record would have no bearing in determining the question in the first instance, namely, whether the record of conviction shows that the offense involved moral turpitude; but they would be material if the record be doubtful on that question and to resolve the doubt an investigation either by the court or the State Bar would appear to be necessary. Here the certified record appears to be conclusive only of the fact of conviction. At least it does not preclude an examination by the court or by the State Bar of the question whether, under all the circumstances, moral turpitude was involved in the charge and plea.

That question in the present matter appears to be one for investigation and recommendation by the State Bar. That body is therefore directed to proceed accordingly and return its recommendation to this court on the issue whether the facts and circumstances surrounding the conviction of the petitioner on his plea of guilty disclose moral turpitude to have been involved in the commission of the offense.

It is so ordered.

Curtis, J., Carter, J., and Gibson, J., concurred.


text:
    [S. F. No. 16406.
    In Bank.
    May 28, 1940.]
    THE CITY OF OAKLAND (a Municipal Corporation), Petitioner, v. HARRY G. WILLIAMS, as City Auditor, etc., Respondent.

      F. Bert Fernhoff, City Attorney, and Homer W. Buckley, Assistant City Attorney, for Petitioner.
    Fred Hutchison, City Attorney (Berkeley), H. Albert George, City Attorney (Alameda), Joseph J. Yovino Young, City Attorney (Albany), George La coste, City Attorney (Emeryville), Girard Richardson, City Attorney (Piedmont), Thomas Carlson, City Attorney (Richmond), Charles A. Beardsley, Port Attorney, and W. Reginald Jones, Assistant Port Attorney, as Amici Curiae, on Behalf of Petitioner.
    Markell C. Baers, Clarence De Lancey and Melville C. McDonough for Respondent.
   SHENK, J.

This is an application for a peremptory writ of mandate directing Harry G. Williams, as auditor of the City of Oakland, to countersign and endorse his certificate upon a certain contract for and on behalf of said city, as required by sections 125 and 131 of its charter. The proceeding comes before us on an agreed statement of facts pursuant to the provisions of sections 1138-1140, inclusive, of the Code of Civil Procedure. Briefly, the parties hereto seek an adjudication of the validity of said contract and of the contemplated expenditure thereunder of some $60,000 for an extended survey of the sewage disposal problem of the signatories thereto, some.seven municipalities situated on the east side of San Francisco Bay.

It appears that the seven interested municipalities consist of the cities of Oakland, Berkeley, Piedmont, Alameda, Albany and Richmond, operating under freeholders’ charters, and Emeryville, a city of the sixth class, organized under the Municipal Corporation Act. These cities are contiguous and presently discharge their sewage by many outlets into San Francisco Bay, several of such outlets being jointly used by two or more cities. By reason of the proximity of these outlets, dispersion has proved highly unsatisfactory, and admittedly a grave condition exists threatening both health and property. Specifically, it is alleged that the prevailing method of sewage disposal of said municipalities has caused the illness of persons required to work in the general vicinity, has resulted in damage to near-by property and ships, and has caused a pollution of shellfish. The State Board of Public Health has by resolution declared the sewage-laden mud flats of the East Bay to be a public nuisance and has urged the several named municipalities to take action looking to the early abatement thereof.

In an effort to overcome and terminate such unhealthful and unsatisfactory condition, each of the named municipalities in 1937 appointed an official to a body known as the East Bay Executives’ Association, whose province it was to investigate and find the facts. A sub-committee of the Executives ’ Association, composed of the city engineers of the several cities, made further studies. These investigations and studies disclosed that the problem could not be satisfactorily solved by independent action of each of the municipalities, but, instead, required a joint survey and investigation of conditions in all the area and of the suitability of different methods of disposal to the peculiar circumstances there existing. It was also reported that such a survey would require approximately seven months and would involve an expenditure of $60,000. Thereupon the seven named municipalities, by appropriate action of their governing bodies, approved such recommendation and respectively authorized the execution of a proposed agreement among them looking to such joint survey and study and directed the appropriate officers to execute the same on their behalf, each agreeing to pay its share of the expenses incident thereto. Williams, as auditor of the City of Oakland, is required under the charter to countersign and endorse his certificate on any contract to the effect that there remains a balance of funds sufficient to pay the expense of executing it, and no contract is binding without such endorsement. Admittedly, ample funds remain in the Oakland treasury for the performance and discharge of its obligation under the contract here involved, but Williams, as auditor, nevertheless has refused to countersign the contract on the ground generally that the City of Oakland is without authority under its charter to enter into such a contract with its neighboring cities for a joint survey of the sewage disposal problem. In support thereof he advances several reasons which under the charter assertedly preclude such a contract. They will be stated and disposed of in the order in which they are advanced.

Preliminarily, it is well to state that while it may not be wholly impossible for each of the several named cities to separately solve its sewage disposal problem, yet by reason of their geographical location and the topography of the area, with which this court is quite familiar and of which it may take judicial knowledge, any independent action of one or more of said cities looking to the solution of the problem would, because of the action of the tides and currents of San Francisco Bay, still leave unabated the obnoxious nuisance and health menace resulting from sewage deposited on the common shores by the neighboring cities continuing to discharge their sewage into the bay. This and the further fact that there is a present interlocking or common use of certain sewers and outfalls by the named cities makes it readily apparent that the proposed joint solution of the problem is the only feasible and practical one. Therefore, the Executive Association above mentioned proposed a form of contract, later agreed upon and approved by the governing bodies of the several cities, by which said cities would'contract with one of their number to do the work under certain restrictive conditions and subject to the approval and supervision of an executive committee whose membership would consist of one representative from each of the contracting cities. The City of Berkeley was thought to be best adapted to carry out the work, and accordingly the agreement whose validity is here involved was entered into. By its terms the City of Berkeley will become the sponsor of the proposed survey and the depository of the funds agreed by the several signatories to be paid toward the cost and completion of such survey. All contentions of Williams to the contrary notwithstanding, it may generally be stated that by the terms of the agreement the City of Berkeley is to be the employer of all persons engaged upon the survey. It is to enter into all necessary contracts in its own name and is to disburse all funds from the Sewage Disposal Survey Fund. But, in order to give each of the cities contributing to the fund the right to approve the expenditures and to determine that the agreement is being carried out as intended, the City of Berkeley agrees that none of the money will be disbursed except upon approval of the executive committee, and that it will not enter into any contract or employ any person unless the matter is first approved by the executive committee composed, as hereinbefore stated, of one representative from each of the contracting cities. However, the executive committee itself is without authority to incur any expense, execute any contract or employ any person. The committee’s approval is merely a condition precedent to the exercise of the powers conferred by the agreement on the City of Berkeley. All acts and obligations are those of the City of Berkeley. By the adoption of an ordinance providing for the employment by it of all necessary survey employees, the City of Berkeley appears to have given to the agreement a practical construction meriting the consideration and approval of this court. We need not here further detail the many provisions of the contract, but shall refer to them as necessary in the discussion of the many assaults thereon by Williams, as auditor of the City of Oakland.

The statute under which the above contract was drafted was enacted in 1921 (Stats. 1921, p. 542) and is entitled “An act providing for the joint exercise of powers by counties, by municipalities or by municipalities and counties. ’ ’ Section 1 thereof, among other things, provides that two or more municipalities “by agreement entered into respectively by them and authorized by their legislative bodies, may jointly exercise any power or powers common to the several contracting parties. ’ ’ Section 2 of the act designates in general language the nature and contents of such a joint agreement. Section 3 declares that “The parties to such agreement may provide that contributions from the treasuries may be made for the purpose for which the agreement was entered into or payments of public funds shall be made to defray the cost thereof, which funds may be made to and disbursed by such agency as may be agreed upon; provided, however, that the method of disbursement shall agree as far as the same is practicable with the method provided by law for the disbursement by the parties to such agreement.” Sections 4 and 5, respectively, provide for the term of such a joint agreement and for the disposition of any property or surplus remaining upon completion of the agreement and accomplishment of its purpose.

In In re City and County of San Francisco, 191 Cal. 172 [215 Pac. 549], we had occasion to consider and approve the validity of the cited act and a joint agreement there entered into pursuant to its provisions. The several cities involved in the present proceeding assert that the contract now before us follows both the provisions of the statute and the agreement approved in the cited ease. In opposition to the contentions of its auditor the City of Oakland urges, and in that it is joined by the other signatory cities and by the Port of Oakland, who have appeared and filed briefs herein as friends of the court, that the agreement does no violence to any of the provisions of the charter of the City of Oakland, and further, that even if it be assumed that a conflict does exist between the agreement and one or more charter provisions, the latter would have to be held inapplicable for the reason that the subject matter of the contract, sewage disposal as contemplated, is a “state affair” and not a “municipal affair”, thus making the provisions of the general law applicable rather than the charter provisions. With this preliminary statement we proceed to a detailed discussion of the objections advanced in his brief by Auditor Williams.

In substance, Williams, as auditor of the City of Oakland, urges that the statute above referred to authorizing the joint exercise by municipalities of powers “common” to them does not contemplate or permit the joint exercise of powers that may be separately or independently exercised by them, but only permits of the joint exercise of powers already possessed in common. Such a construction of the statute is strained and would render it meaningless. In other words, if municipalities possessed a power in common there would be no need for a statute authorizing their joint exercise. The statute means nothing if it does not mean that cities may contract in effect to delegate to one of their number the exercise of a power or the performance of an act in behalf of all of them, and which each independently could have exercised or performed. A statute thus authorizing the joint exercise of powers separately possessed by municipalities cannot be said to enlarge upon the charter provisions of said municipalities. It grants no new powers but merely sets up a new procedure for the exercise of existing powers. The cities that are parties to the contract here involved possess the necessary police power, both under constitutional grant and under their respective charters, to abate nuisances, to preserve the health of their inhabitants and to construct and maintain sewers. The 1921 statute merely provides a procedure whereby this power may be exercised by cooperative action. This type of statute is not unusual in this state. In other instances, the legislature has authorized two or more governmental agencies to contract, whereby one is empowered to perform a governmental function for another. (See, among others, Stats. 1895, p. 219, Peering’s Gen. Laws, Act 8464; Stats. 1915, p. 329, Leering’s Gen. Laws, Act 5616.) In so legislating the legislature recognizes that there are certain situations and problems that can best be met and solved by several governmental agencies acting jointly and permitting one of their number to act for all. As already indicated, this court approved this statute and an agreement thereunder in In re City and County of San Francisco, supra.

It is next urged that the Oakland charter contemplates joint action in two particulars not here pertinent and that such specific mention necessarily excludes the assumption that other and unmentioned powers may be jointly exercised. However, we are satisfied that the admitted exception to the cited rule here governs, i. e., where the charter is silent a city may exercise powers conferred upon it by general law, provided such general powers are not inconsistent with those granted by the charter. We find no such inconsistency in this ease. In other words, under sections 6 and 8 of article XI of the State Constitution, city charters are no longer grants of municipal power but are merely restrictions and limitations upon such powers. If no restrictions or limitations are found in the charter the power of the city in 11 municipal affairs” is full and complete, assuming for present purposes that sewage disposal generally is a municipal as distinguished from a state affair. We find no restriction or limitation in the Oakland charter precluding joint action with neighboring municipalities in the contemplated plan of sewage disposal, which, because of the proximity of said cities, presents a common problem.

Much of what we have just above stated is equally applicable to the contention that the City of Berkeley is without power to authorize the proposed agreement for a joint survey of the sewage problem confronting the Bast Bay cities. We are aware of no provision of the Berkeley charter, and none has been called to our attention, which restricts and limits that city’s right to execute the agreement. From what has been said it follows that it is the City of Berkeley and not the executive committee that is to act under the contract when executed. The committee merely approves any contemplated action by the sponsor, City of Berkeley.

The point is made that said contract provides for an unlawful delegation by Oakland of the handling and disposition of a substantial amount of the public tax funds and in the determination of the particular purpose for which they may be expended. In this connection it is urged that an unbridled discretion is vested in the City of Berkeley or the executive committee, or both, as to the type of survey to be carried on, and that it may develop that Oakland tax funds are being expended in studying the tideland flats of the other contracting cities. Obviously, if a joint survey is to be successfully effected some administrative discretion must be conferred upon the sponsor city and the engineers and other necessary employees appointed by it. The City of Oakland, through its council, has itself exercised the function and discretion of determining whether to enter into the contract for a joint survey and of appropriating money to execute it. It cannot be said that the delegation of the administrative function of checking the expenditure of money in accomplishment of the desired purpose infringes upon any constitutional or charter provision.

It is next urged that the joint agreement violates section 18 of article XI of the Constitution, the so-called debt limitation provision, which precludes a city from incurring any indebtedness or liability exceeding in any year the income and revenue provided for such year. It is contended that the constitutional provision is violated in that the contract “provides for the incurrence by the municipalities of obligations which may become due and payable in future years, without a vote of the electorate being had.” The point lacks merit. Under the terms of the agreement each of the seven cities is to pay one-half of the amount to be contributed by it on or before February 1, 1940 (in the case of the City of Oakland that amount is $20,000), and the “remaining one-half at such time and in such specified amounts as may be requested ... to pay for obligations incurred after July 1, 1940.” It does not appear, nor can we say, that when and if future payments accrue they will exceed in any one year the income and revenue provided for such year. In the absence of some showing on the subject, it will not be presumed that a violation of the constitutional provision will result (In re City and County of San Francisco, 191 Cal. 172, 181 [215 Pac. 549]). It is there declared that “Whether the city will be able to meet the payment of an undetermined sum ... to fall due on a day in futuro is a question prematurely presented and cannot be decided in this controversy . . . but in no event would we be justified in presuming, in the absence of a showing to the contrary, that the city would not be amply prepared to meet its future obligations or that it will not keep within the law in respect to charter and constitutional restrictions.” In Wyckoff v. Force, 61 Cal. App. 246 [214 Pac. 489], it is stated that “It does not appear that any installment coming due in any year during the life of the contract was in excess of the income and revenue of that year. The contract is not, therefore, within the inhibitions of section 18 of article XI of the Constitution.” To the same effect see McBean v. City of Fresno, 112 Cal. 159 [44 Pac. 358, 53 Am. St. Rep. 191, 31 L. R. A. 794], and Posz v. Taylor, 61 Cal. App. 523 [215 Pac. 107]. Moreover, future payments under the contract may or may not be required, depending upon the ultimate cost of the proposed survey. It is not inconceivable that the initial installment may prove adequate. It has been held that “a sum payable upon a contingency is not a debt, or does not become a debt until the contingency has happened”. (McBean v. City of Fresno, supra, 168.)

An assault is made upon the contract based on the declaration that it would permit the expenditure of Oakland tax funds for non-municipal purposes in that a portion of said ‘funds may assertedly be expended outside the territorial limits of Oakland and for the purpose of surveying the tidelands of one or more of the other contracting cities. It is hinted that such result would likewise run counter to the constitutional inhibition against the gift of public funds. We cannot approve the contention. Nor are we prepared to join in the assumption or fear that those empowered under the contract may abuse their authority. Among other things, the city in reply to this contention advances its alternative argument mentioned at the beginning of this opinion to the effect that sewage disposal technically presents more than a municipal problem and is of statewide interest. It is urged that cities daily expend their funds in a legal manner in the enforcement of various state laws which in the strict sense of the word do not involve municipal purposes but, on the contrary, involve public purposes or state affairs. Be that as it may, we are satisfied that if in the solution of their respective municipal sewage problems it becomes necessary, - as here, for several contiguous cities to contribute to the conduct of a joint survey of the entire affected area, the expenditure of the funds of each such city in this manner is a proper municipal expenditure.

We are likewise constrained to reject the argument that the joint survey agreement does violence to the civil service provisions of the charter of the City of Oakland. This contention is in effect premised upon the theory that the City of Berkeley is not, under the agreement, to carry out the survey and that the persons to be engaged in the project must therefore necessarily be employees of the City of Oakland and subject to its civil service requirements. Earlier in this opinion we rejected this theory, pointing out that the City of Berkeley under the agreement was to be the sponsor of the survey and was to enter into all necessary contracts and obligations, pay all appropriate expenses out of the sewage disposal fund and employ all persons essential to the project, subject only to the approval of the executive committee. This being so, the civil service provisions of the City of Oakland are without relevancy for, obviously, such provisions can have no application to the employees of those who contract with the City of Oakland. In view of what has been said, we need only mention, without considering, the city’s additional argument, that if, as it contends, the sewage disposal problem presents a state affair and not strictly a municipal affair, the city charter provisions under established principles are likewise inapplicable.

In principle, the disposition made of the last point is equally applicable to the contention which asserts that the joint survey agreement runs counter to section 38 of the Oakland charter prohibiting the city from employing any person “holding any office or position of profit under the government of this state, or any other state of the United States, or of any nation, government or country”. As stated just above, under the agreement, persons engaged in the survey will be employees of the sponsor city, Berkeley. Consequently, a charter provision of the City of Oakland which precludes its employees from holding dual public positions can have no application. Moreover, even if the relevancy of the charter provision were to be admitted, it may not now be said that dual employment will necessarily result under the agreement.

The contention is made that the joint survey agreement does violence to section 125 and other sections of the Oakland charter calling for competitive bids on public work contracts. We cannot accede to the application of said charter provisions under an agreement such as we have here, in which one of the several contracting cities undertakes to carry on the survey. If the conceivably conflicting charter provisions of all the contracting cities were held to be applicable and relevant, the effect would be to vitiate the statute authorizing joint and cooperative action. In other words, there could only be joint action under such a theory when the charter provisions of all contracting cities are identical. To state the matter is to reveal its absurdity.

Section 128% of the Oakland charter, requiring the payment of minimum wages and the employment only of citizens on public work, is advanced as another obstacle to the joint survey agreement. We are satisfied from a reading of the section that the city is correct in its answering assertion that it “applies only to a ‘contract for work’ which is let pursuant to a ‘resolution calling for bids’ for such work”.

It is also urged that the agreement violates those provisions of the Oakland charter relative to.the powers of the Oakland Port Commission. The argument is that while the agreement and survey concern in part of the territory of the Port of Oakland, the commissioners of said port have not been consulted with respect thereto. The obvious answer of the city is that when the time arrives to lay plans to construct a new sewer as a result of the survey, “the Port Commission will be consulted, their jurisdiction will be duly honored' and their consent obtained”.

What we have said adequately disposes of the points urged by Auditor Williams in support of his refusal to countersign the agreement. We do not find it necessary to further consider his general discussion as to the lack of necessity for such joint agreement and as to the asserted dangerous precedent that will follow from an approval thereof.

Let a peremptory writ of mandate issue directing Harry G. Williams, as auditor of the City of Oakland, to countersign the agreement and to endorse thereon his certificate, as required by sections 125 and 131 of the city charter.

Carter, J., Curtis, J., Gibson, J., and Spence, J., pro tom., concurred.