text:
    [S. F. No. 15890.
    In Bank.
    August 21, 1939.]
    EDNA GREENFIELD et al., as Administrators, etc., Plaintiffs, v. A. W. MATHER, Appellant; DOROTHY DEVORE MATHER et al., Respondents.
    Marcel E. Cerf and Robinson & Leland for Appellant.
    Don Lake, in pro. per., and James R. Jaffray for Respondents.
   THE COURT.

On this appeal the controlling question is whether a judgment entered in a prior action, and found by the trial court to bar appellant’s claims herein, was in fact a final adjudication.

The subject of the present action, one in interpleader, is the right to the sum of $12,549.60. This fund has been deposited in court by plaintiffs. It represents the balance due upon an approved claim of defendant A. W. Mather against the estate which plaintiffs are administering, and said defendant and his former wife, defendant Dorothy Devore Mather, are chief claimants to it. They joined issue by cross-complaints and answers. The wife claimed the money under the terms of a property settlement agreement or purported assignment from the husband. The husband alleged that because the agreement was made in Hawaii, where a wife is not authorized to contract with her husband, it was void and he prayed that it be cancelled. In answer to this pleading the wife averred that the validity of the agreement had been conclusively established in a prior action, and as a plea in bar she set up two purported judgments entered in her favor in said prior action.

When the present cause came on for trial, the wife objected to the introduction of evidence by the husband to support his claim on the ground that her plea in bar should first be heard. The trial court acquiesced in this view and, over objection of the husband, admitted the pleadings and papers in the prior action. The husband then adduced evidence by which he sought to show that the prior action was still pending and that no final judgment had been entered therein. The trial court, however, concluded that the prior judgment was final, and the wife’s plea in bar well taken. Accordingly, it made findings and rendered judgment directing distribution of the fund to her and to those defendants claiming under her. The husband appealed.

The question whether the judgment entered in the prior action was a final judgment, is determinative of the appeal. Admittedly that action presented the identical issue raised by the pleadings herein with respect to the validity of the property settlement agreement. If the judgment entered therein was final, it constituted a conclusive adjudication that the agreement was valid. If the judgment was not final, then in this cause the trial court erred in sustaining the wife’s plea in bar.

A review of the record of proceedings had in the prior cause shows the following: The action, number 376,729, was filed in the Los Angeles superior court on August 3, 1934, by the husband against the former wife, the present plaintiffs and others. The complaint was in three counts. It alleged that the spouses were married in 1925, and divorced on August 16, 1933, and that just prior to the divorce, and on June 16, 1933, in the city of Honolulu, they entered into an agreement concerning their property, in pursuance of which the husband made valuable transfers to the wife. By counts one and two the husband sought to rescind the agreement on grounds of misrepresentation, conspiracy, and fraud, and to procure a return of the property transferred thereunder. The third count pleaded that the agreement, made in Hawaii, was void and invalid by reason of a statute in full force and effect in that jurisdiction which provided that a married woman might not contract with her husband. That is, it pleaded substantially the same cause of action which was set forth in the husband’s cross-complaint in the present action.

Demurrers were interposed to the third count, and finally, on December 24, 1934, after it had been thrice amended, a demurrer was sustained without leave to further amend. On January 4, 1935, a formal judgment was entered, decreeing that plaintiff husband take nothing by his third amended third cause of action. He appealed from this judgment.

The cause then proceeded to trial upon the issues joined by the first and second counts of the complaint. The trial court found for the defendants, and on March 14, 1935, judgment was entered in their favor. This is the judgment which was held in the present action to be final, and a bar to the husband’s claims herein. While it decreed that "plaintiff take nothing by reason of his complaint”, this order was preceded by recitals indicating clearly that the word "complaint” referred only to the first and second causes of action which had been tried on the merits. That is, by preliminary recitals both findings and judgment stated that the action had been submitted after trial "upon the issues joined by the first and second counts or causes of action in the complaint and the respective answers thereto”, but neither mentioned the third count or the attempted disposition which had been made of it.

The husband appealed from the second judgment in the prior action, as he had from the first. Thus at this stage of the proceedings in that action there were two separate judgments, one on the third count and the other on the first and second counts, and there were two separate appeals therefrom. While these appeals were pending, and on April 12, 1935, the present action was commenced by the filing of plaintiff’s complaint in interpleader.

In September, 1935, in the prior action, the wife and her codefendants moved this court to dismiss the appeal from the second judgment (judgment of March 14th on first and second counts), for failure to file a transcript within the required time. The motion was granted and the appeal dismissed (L. A. No. 15481). At that time the appeal from the first judgment (judgment of January 4th on the third count) was still pending in this court, and a transcript had been filed (L. A. No. 15233). On January 18, 1936, the wife and her codefendants moved to dismiss this appeal also, on the ground that the judgment was not final, and therefore not appealable. On March 17, 1936 (Mather v. Mather, 5 Cal. (2d) 617 [55 Pac. (2d) 1174]), this court granted the motion, saying: “It is evident that the cause was attempted to be disposed of piecemeal—that a single object, although stated in several counts, was sought to be attained by the action, and that this single and unseverable object was arbitrarily attempted to be split up as the basis for two distinct judgments. It is at once apparent that no final judgment was entered in the action until March 14, 1935. The judgment of January 4, 1935, was not a final judgment and is not appealable under the terms of section 963 of the Code of Civil Procedure, or otherwise. Our conclusion is fully supported by the leading case of Gunder v. Gunder, 208 Cal. 559 [282 Pac. 794], and the many cases which follow it, notably De Vally v. Kendall De Vally etc. Co., 220 Cal. 742 [32 Pac. (2d) 638], Middleton v. Finney, 214 Cal. 523 [6 Pac. (2d) 938], and Potvin v. Pacific Greyhound Lines, 130 Cal. App. 510 [20 Pac. (2d) 129]. The motion is granted and the purported appeal is dismissed. ’ ’

Although the above quotation refers to the judgment of March 14th as a “final judgment”, that judgment was not under review, and the remark is pure dictum. This is apparent upon a reading of the opinion as a whole, for the statement of facts therein reveals that the only data before the court which might have indicated that the judgment of March 1,4th was of a final nature, was a clerk’s certificate. As a matter of fact, although the opinion did not so note, the appeal from the latter judgment had already been dismissed at the time the decision was rendered. The effect of the decision, therefore, was to place appellant husband in this situation: His appeal from the judgment of March 14th had been dismissed, not on the ground that it was a partial judgment and hence nonappealable, but for failure to make timely filing of transcript. The judgment of January 4th had been adjudged nonappealable. Hence, if the judgment of March 14th was final, appellant had lost his opportunity of securing a review by an appellate court, either in the prior action or the present one, of the sufficiency of the allegations of his third amended third count to state a cause of action, or of the similar allegations of his cross-complaint herein—and this due to the error of the trial court in the prior action in entering the partial judgment on demurrer to one count. But, on the other hand, if both the judgment of January 4th and that of March 14th were partial, each disposing of a fraction of the case, then the prior action was still pending, and appellant was at liberty to proceed in that action, or in the present action. The course which he adopted was to file in this court, on June 5, 1936, a clerk’s transcript' covering the entire prior action. He had previously filed a cross-complaint in the present action. In the prior action no motion was made before the filing of the transcript last mentioned for the entry of any final or further judgment. Evidently the transcript represented an attempt by appellant to revive one or both of the dismissed appeals.

O'n July 7, 1936, the wife and her codefendants moved to strike the transcript (L. A. No. 15924). On the same day (L. A. No. 15481) appellant moved to correct the remittitur which had issued dismissing the appeal from the judgment of March 14th so as to show the causes of action which it affected, that is, instead of “ ... appeal from judgment dismissed”, to make it read: “ . . . appeal from judgment upon first and second causes of action dismissed”. Appellant’s point in seeking this change was to substantiate his contention that the judgment covered only the first and second counts, and hence was partial and nonappealable for the reason upon which the judgment covering the third count had been adjudicated partial and nonappealable (Mather v. Mather, supra). On the hearing this court granted both motions—that of the wife and codefendants by striking the transcript; that of appellant by correcting the remittitur as of its original date, October 11, 1935. On August 6, 1,936, a petition for rehearing was denied. On December 1, 1936, the present cause came on for trial with result aforesaid.

The above recital of proceedings had in the prior action demonstrates the error of the trial court’s conclusion in the present cause that the judgment of March 14, 1935, was a final judgment. Obviously that judgment was in no better position than the judgment of January 4th. It disposed of the first two counts of the complaint, whereas the latter judgment disposed of the third count thereof. The reasoning which this court employed in determining the character of the one judgment (Mather v. Mather, supra), is equally applicable to fix the character of the other.

The fact that the judgment of March 14th was the second judgment to be entered did not cloak it with finality because it did not purport to embrace a final disposition of the entire cause. By express terms it was confined to only counts one and two, and erroneously failed to include a recital with respect to the disposition of count three. It did not affect count three. The appeal from the purported judgment on that count was pending; that purported judgment, being void, was in effect no judgment. Therefore, if count three in fact stated a cause of action, that cause remained pending in the trial court after the entry of the judgment on counts one and two.

The erroneous procedure adopted in attempting to make piecemeal disposition of the prior cause was not of appellant’s instigation, and he should not be penalized for it. He at no time waived his right to object to the splitting of the action. He contended throughout that he was entitled to test the sufficiency of his third cause of action before an appellate court. To permit a litigant to deprive his adversary of an opportunity for full appeal by erroneously procuring the entry of successive purported partial judgment, and then having appeals from all save the last of said judgments dismissed on the ground that the cause should not have been split, would be unfair.

In the present cause the trial court erred in denominating the second of the two partial judgments entered in the prior action a final judgment. As in fact no final judgment had been entered in said prior action, appellant’s assertion of his claim in the present cause was not barred. The action of the trial court in sustaining the plea in bar was erroneous.

The judgment is reversed.

Rehearing denied.


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [Sac. No. 5234.
    In Bank.
    August 21, 1939.]
    FRED CHARLES et al., Appellants, v. CITY OF CRESCENT CITY (a Municipal Corporation) et al., Respondents.

      G. H. Harvey, John L. Childs and C. A. Degnan for Appellants.
    T. F. Peterson for Respondents.
   THE COURT.

This is an action by taxpayers to declare invalid the assessments and tax levies of respondent city for the year 1931-32, and to enjoin the city and its officers from selling plaintiffs’ property at tax sales. The trial court sustained a general demurrer to plaintiffs’ complaint and thereafter entered judgment of dismissal, from which plaintiffs appealed.

In view of the ruling on the demurrer, the question is whether the complaint states a cause of action. It alleges that respondent city purported to assess, levy and collect taxes for general municipal purposes and special assessments, pursuant to its governing tax ordinance, but that there was a failure to comply with the provisions of said ordinance in numerous particulars, among which were the following: that the assessor failed to include within the assessment book all persons and property subject to taxation; that he failed to specify therein the cash value of property; that the city council did not fix the rate of city taxes for general municipal purposes or for the payment or retirement of bonds or other obligations; that the city clerk did not enter in the assessment book the respective sums in dollars and cents levied on each one hundred dollars valuation of taxable property, and the total value of the property in the city and the total amount of city taxes for the period. Many other irregularities in the proceedings for assessment and levy and in the proceedings for enforcement of the taxes by sale of the delinquent property are set forth. Since these are all admitted for the purposes of the demurrer, and therefore, for this appeal, we start with the proposition that the attempted sale of plaintiffs’ property for delinquent taxes was improper and plaintiffs are entitled to some relief.

Defendants, however, point out that in seeking equitable relief, as this complaint does in its demand for an injunction against the collection of the tax, a distinction must-be drawn between situations where it is claimed that the tax is wholly unauthorized, as where there is no jurisdiction over the property, and where there is jurisdiction but the proceedings were irregular. It is conceded in this case that plaintiffs own property subject to tax and their only objection is that the taxes were irregularly assessed and levied. It follows, under the settled rule, that before equitable relief can be given in such a case, the property owner must recognize that a tax in some amount is actually owed, and must pay or tender that sum which is legal and fair, and which, therefore, in good conscience he ought to pay. (DeMille v. Los Angeles, 25 Cal. App. (2d) 506 [77 Pac. (2d) 905]; Los Angeles v. Ransohoff, 24 Cal. App. (2d) 238 [74 Pac. (2d) 828] ; Esterbrook v. O’Brien, 98 Cal. 671 [33 Pac. 765] ; Couts v. Cornell, 147 Cal. 560 [82 Pac. 194, 109 Am. St. Rep. 168].)

Plaintiffs in turn admit this proposition and refer to the following allegation in their complaint: “that said plaintiffs are ready, able and willing and now tender and offer to pay to said city of Crescent City, such taxes for the year 1931-32, which, upon hearing, this court may find, adjudge and determine to be legally due and owing by said plaintiffs to said city of Crescent City.” The question is whether this allegation is sufficient, without a payment or tender of any specific sum. Plaintiffs assert that, because of the irregularities mentioned, they cannot determine the amount actually due or any part thereof and must necessarily await the court’s judgment. This seems to us to be a reasonable position in the present state of the record. Under the allegations of the complaint the tax legally due is so uncertain that any specific sum offered would be purely speculative, and consequently the only tender reasonably necessary is the one made, namely, to pay that which the court shall find due.

Defendants also urged several grounds of special demurrer in the lower court, principally the misjoinder of parties defendant. It is contended that the tax collector and the city are the only proper parties and that the special demurrer of the councilmen and city clerk should be sustained. The trial court, however, expressly based its rulings on the failure to allege a sufficient tender, and if there is any merit in the point of misjoinder, it did not justify the sustaining of a general demurrer without leave to amend. It is further urged that the complaint was defective in failing to allege a description of plaintiffs’ property, its value, the rate charged, and the amount assessed against the same, but plaintiffs point out that the reason for this is found in other allegations which show that these matters were not ascertained and stated by the defendants in the manner required by law.

Defendants having failed to produce either authority or reason for the determination of this case on the demurrer, the matter should be brought to trial, and, if the proceedings are irregular, the amount of tax legally due should be ascertained after a proper hearing on the issue of the validity of the assessment and levy.

The judgment is reversed with directions to the trial court to overrule the demurrers and to permit the defendants to answer, if they be so advised.


author: CURTIS, J. HOUSER, J., Dissenting.

text:
    [Crim. No. 4221.
    In Bank.
    August 22, 1939.]
    THE PEOPLE, Respondent, v. WILLIE B. MITCHELL, Appellant.

      Willard W. Shea, Public Defender, and Hugh K. Forsman, Assistant Public Defender, for Appellant.
    Earl Warren, Attorney-General, and William F. Cleary, Deputy Attorney-General, for Respondent.
   CURTIS, J.

This appeal is from the judgment and order of the trial court denying defendant’s motion for a new trial.

The defendant, Willie B. Mitchell, met Fannie Nolden some time in 1936 at a night club in the city of Sacramento. Later they met again in the early part of the following year. Thereafter they met frequently and soon began living together as man and wife although they were never married. They both belonged to the colored race. He was less than seventeen years of age and she was twenty-five. In the summer of 1937 they moved to Oakland and took up their residence at Ninth and Center Streets in that city. Their life together was not at all times harmonious, and according to the testimony of the defendant, Fannie Nolden “ran off” on a number of occasions. Some few days prior to November 21, 1937, Fannie Nolden left the home at Ninth and Center Streets, and went to the home of Mr. and Mrs. Upshaw at 1115 Center Street, two blocks from Ninth and Center Streets. Mr. and Mrs. Upshaw were the uncle and aunt respectively of the defendant. On November 21, 1937, the defendant called two or three times at the home of his uncle and aunt, and at least on one of his earlier visits during that day he saw Fannie Nolden, but nothing of any moment took place between them at that time. He returned to the Upshaw home about 7 o’clock of the same day with an acquaintance by the name of Leonard Franklin. It was just getting dark. He had two pistols on his person, and Leonard Franklin had one. On entering the Upshaw home on that evening, he met and talked with his uncle and aunt in their living or “front” room. He then asked his aunt if he could have some food. She replied, “Sure, go down in the kitchen, help yourself.” He and Franklin then went to the kitchen. When they entered they found Fannie Nolden and Dorothy Robinson, the latter a young lady cousin of the defendant. Fannie Nolden was washing dishes and Dorothy Robinson was seated at a table eating a meal. When defendant first entered the kitchen, he asked Fannie Nolden to fix him something to eat. Fannie replied, “I don’t have anything to fix. This ain’t my house.” Defendant then said, “You ain’t going to fix it?” He then reached down in his waist under his coat, and pulled out two “guns”. Fannie then said, “Oh, yes, I fix it. Yes, I fix it,” and ran across the room near the water tank. The defendant then stepped around and started shooting, and Fannie fell to her knees, and the defendant stepped out a few feet further and started shooting again. Immediately after the shooting, the defendant put both pistols in his left hand and opened the back door and left the room. According to his own story, he left Oakland and went to San Francisco. From there he went to Los Angeles and eventually reached his old home in Arkansas. He remained in Arkansas for some months. Later he went to St. Louis, where he was arrested, charged with the crime of murder, and brought back to Oakland. The body of Fannie Nolden was examined by Dr. Mainwaring at 7:50 o’clock on the evening of her death. He found one bullet lying loose in her undergarments over the chest. An autopsy was performed on the body of the deceased on the following day by Dr. Hamlin. He testified that he found six bullet wounds on her body, but he discovered no marks other than the bullet wounds on her body. One bullet entered the tip of the left shoulder and passed out under the left shoulder. Another bullet entered the inner angle of the armpit, and passed into the chest cavity at the third rib, passed through the left lung, through the left ventricle of the heart, through the right lung, and lodged four inches below the armpit. This bullet was recovered. The courses of other bullet wounds were described by the doctor, six in number. Two bullets were removed from the body during the autopsy. The wounds found upon the body of the deceased were pronounced fatal by the doctor and were the cause of her death. Besides the two bullets recovered from the body and the one found in the clothing of the deceased, a fourth was found embedded in the woodwork of the kitchen, just back of where the deceased fell when she was shot. No one seemed to know just how many shots were fired. Dorothy Robinson, who was the only eye-witness to the shooting, said she was unable to tell the number of shots that were fired by the defendant. Leonard Franklin who entered the kitchen with the defendant was not called as a witness. He was not seen after the shooting by any witness who testified in the case, and neither the prosecution nor the defendant had been able to locate him before the trial. The defendant testified that he did know the number of shots that were fired. He never denied the shooting. He admitted his guilt to the arresting officers in St. Louis, and at that time made a written statement giving his version of the shooting. He also took the stand as a witness at his trial and admitted that he shot the deceased. His version of the shooting does not entirely agree with that given by Dorothy Robinson, and will be discussed later. No claim is made by the appellant that the evidence is insufficient to support the verdict of the jury finding him guilty of the crime of murder as charged in the information. The only ground assigned by him for a reversal of the judgment is that the court erred in refusing to give an instruction on manslaughter. He predicates his right to such an instruction upon his testimony given at the trial of the the case. He testified that when he entered the kitchen .of the Upshaw house on the evening of the shooting, he said to Fannie Nolden: “Hello, Toots,” and touched her on the back and said, “How about fixing me something to eat?”; that she looked at him and said, “I don’t have nothing to eat here, I can’t fix you anything;” that she then walked to the sink, and he went to the door and called, “Auntie, can I have some food?”; that he turned and came back while Fannie Nolden was still at the sink and said, “What’s wrong?”, and she replied, “I don't have time to talk to you”; that he then said, “How about some of my money then?”, and she replied, “I ain’t got time to fool with you. I am busy,” and that he then said, “Leaving all jokes aside, Fannie, let me have some of my money; ’ ’ that at that time she was in front of the cupboard and wheeled around with a knife in her hand and said, “I’ll give it to you. I’ll fix you!” that he then jumped back to the door and said, “Don’t come over here,” but she kept coming. ‘ ‘ I could not get out the door. I come up and knocked the automatic safety off, just went off like that., and it stopped. When the automatic stopped shooting, Fannie laid one hand on the stove and looked at me and gritted her teeth, and I was trying to get the door open from the back with this hand, back with this hand. When I went to move around the automatic went off one more time. ’ ’

Appellant prepared an instruction defining manslaughter in the language of section 192 of the Penal Code with the added statement, “If you are satisfied beyond and to the exclusion of a reasonable doubt that the defendant unlawfully killed Fannie Nolden without malice and upon a sudden quarrel, or in the heat of passion, your verdict should be guilty of manslaughter.” This proposed instruction the court refused to give. We think it was properly refused. Nothing in appellant’s testimony indicated in the slightest extent that appellant killed the deceased either upon a sudden quarrel or in the heat of passion. At most his testimony tended to show that he drew his automatic pistol in self-defense, by an inadvertence he knocked off the safety appliance, and the gun was accidentally discharged. This evidence was properly before the jury for the purpose of their determination as to whether the defendant killed deceased in self-defense, or whether her death was due to accidental means. This evidence in no way tended to prove that the homicide was committed upon a sudden quarrel or heat of passion. There was no error, therefore, in the trial court’s refusal to give the proffered instruction. In support of his claim that the refusal to give this instruction was error and that it was prejudicial of his legal rights, the appellant argues that had such an instruction been given the jury under all the evidence might have found him guilty of manslaughter instead of murder. We find no force whatever in this argument. The jury was correctly and properly instructed respecting the decrees of murder, and of its power to fix the punishment in case it found the defendant guilty of murder in the first degree. With these instructions before it, the jury found the appellant guilty of murder in the first degree without recommending life imprisonment. If under the evidence and these instructions, the jury rendered a verdict calling for the death penalty, it is not reasonable to suppose that its verdict would have been different had the proposed instruction on manslaughter been given.

It might be appropriate to add a few words regarding the claim of the appellant that he was attacked by the deceased, with a knife. Dorothy Robinson, who, as we have stated, was the only eye-witness to the tragedy, flatly contradicted the appellant in his statement that the deceased attacked him with a knife. She was asked the direct question as to whether Fannie had anything in her hand at the time appellant shot her, and she replied, “No. She did not.” No knife was found near the body or in any place on the kitchen floor after her death although a careful search of the room was made by the officers on their arrival on the scene. Appellant stated to the officers in St. Louis that she attacked him with a butcher knife, and it was so described in his written statement made to said officers at the time of his arrest. At his trial, the appellant testified that he did not pay any attention to the knife and could not tell what kind of a knife it was and repudiated his statement made to the officers at St. Louis that it was a butcher knife.

There is also considerable doubt whether the gun with which he shot deceased was an automatic pistol. His statement made at St. Louis contains the following account of the shooting, “I pulled out a 38 caliber Smith & Weston blue steel revolver which I had concealed in my waistband of my shirt and trousers and shot in the direction of Fannie.”

Appellant gave as a reason for being armed with two pistols when he left his room and went to the Upshaw home on the day of the tragedy that he had been attacked on two previous occasions and severely injured before leaving Sacramento and that he saw his assailant on the streets of Oakland on the morning of the day he killed the deceased. He further stated that he was going to a dance that evening, but gave no sufficient reason for arming himself on that occasion except that he might meet the man who had assaulted him in Sacramento. Whatever may have been his motive in arming himself, there is no credible evidence from which an inference might be drawn that he had any intention of violently assaulting, and much less intention of killing, the deceased before he entered the Upshaw home on that evening. Nevertheless, the evidence is clear and convincing that he deliberately shot the deceased in cold blood. It is beyond human belief that his automatic pistol could have been accidentally discharged from four to six times and that each shot took effect in the body of the deceased. This is especially true of the last shot that was fired when, he says, he was attempting to leave the room through the rear door of the house, which would place him with his back towards the deceased. In stating that all shots fired by the appellant took effect in the body of the deceased, we have not overlooked a bullet which was found embedded in the woodwork of the room. Prom all the evidence in the case, it is apparent that this bullet passed entirely through the deceased’s body, and then embedded itself in the woodwork just back of where the deceased was standing when she was shot.

We find no error in the record, and are of the opinion that the evidence is amply sufficient to support the verdict of the jury.

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

Edmonds, J., Shenk, J., and Thompson, J., pro tern., concurred.

HOUSER, J., Dissenting.

I dissent.

My inability to agree with the conclusion that has been reached herein by my associates arises from their ruling that defendant’s rights were not prejudiced by reason of the fact that, in disregard of defendant’s request therefor, the trial court refused to give to the jury an instruction relative to the crime of manslaughter, as follows :

“Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds:
“1. Voluntary—upon a sudden quarrel or heat of passion.
“2. Involuntary—in the commission of an unlawful act, not amounting to felony,- or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. (Sec. 192, Pen. Code.)
“If you are satisfied beyond and to the exclusion of a reasonable doubt that this defendant unlawfully killed Fannie Nolden, without malice and upon a sudden quarrel, or in the heat of passion, your verdict should be guilty of manslaughter. ’ ’

As is stated in the main opinion herein, testimony was given by defendant to the effect that, immediately preceding the shooting, in a conversation or ‘1 quarrel ’ ’ which he had had with the woman whom he thereafter killed, at a moment when she was in front of a cupboard, she “wheeled around with a knife in her hand and said 11 ’ll give it to you; I ’ll fix you! ’ ”; that defendant “then jumped back to the door and said ‘Don’t come over here! ’ But she kept coming. ’ ’

In the case of People v. Wilson, 29 Cal. App. 563 [156 Pac. 377], the facts were not nearly so strong in the defendant’s favor as were those in the instant case with respect to the defense of this defendant, and yet it was ruled not only that the defendant was entitled to have given to the jury an instruction by which the crime of manslaughter would be defined, but also that the failure of the trial court to give such an instruction to the jury constituted prejudicial error;—and solely for those reasons the judgment was reversed.

In the case of People v. Hayes, 9 Cal. App. 301, 305 [99 Pac. 386], the court said: “The case of Stevenson v. United States, 162 U. S. 313 [16 Sup. Ct. 839, 40 L. Ed. 980], is a ease in its essential particulars similar to the case at bar. In the Stevenson case the judgment was reversed solely for the reason that the trial court refused to submit to the jury the issue of manslaughter. The language of the court, speaking through Justice Peckham, is exceedingly appropriate to the matter before us. It was there said: ‘The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true, and whether it showed that the crime was manslaughter instead of murder. . . . The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self-defense, and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.’ ” (Emphasis added.) See, also, People v. Logan, 175 Cal. 45, 50 [164 Pac. 1121]. The court also ruled in the Hayes case (syllabus) that “No matter how conflicting the evidence, if there is any evidence tending to show that the crime might be manslaughter, it is the duty of the court to submit the question to the jury for its decision.”

Also, it was declared in the case of People v. Manzo, 9 Cal. (2d) 594, 598 [72 Pac. (2d) 119], that “If there was sufficient evidence in the case upon which the jury might have returned a verdict of manslaughter, an instruction defining it should have been given, ...” To the same effect, see: People v. Wilson, 29 Cal. App. 563 [156 Pac. 377]; People v. Hayes, 9 Cal. App. 301 [99 Pac. 386]; People v. Sidelinger, 9 Cal. App. 298 [99 Pac. 390] ; People v. Darrow, 212 Cal. 167 [298 Pac. 1]; People v. Best, 13 Cal. App. (2d) 606 [57 Pac. (2d) 168].

In the instant case it may be noted that in the prevailing opinion it is stated that “The jury was correctly and properly instructed respecting the degrees of murder, and of their power to fix the punishment in case it found the defendant guilty of murder in the first degree. With these instructions before them, they found the appellant guilty of murder in the first degree without recommending life imprisonment. If under the evidence and these instructions, the jury rendered a verdict calling for the death penalty, it is not reasonable to suppose that their verdict would have been different had the proposed instruction on manslaughter been given. ’ ’

An examination of the transcript of the proceedings that occurred in the trial court reveals the fact that in the instructions which were given to the jury relative to the crimes of first and second degree murder and the law of self-defense, more than 2,000 words were employed; yet no instruction whatsoever was given to the jury by the trial court regarding the crime of manslaughter. It was not even mentioned. In the instant ease, it is clear that, irrespective of evidence to the contrary, the jury was entitled to believe as true the facts as testified to by defendant,—which testimony was susceptible of the inference either that he was acting in self-defense, or that the shooting occurred “upon a sudden quarrel or heat of passion”. It is not unreasonable to infer that the colloquy which assertedly had occurred between defendant and the woman whom he killed amounted to a “sudden quarrel” which engendered a “heat of passion”; and if, from a consideration of the evidence, the jury believed that either of such conditions was the cause of the shooting,— under the provisions of section 192 of the Penal Code, had the jury been properly instructed as to the law thereon—it would have been fully authorized to return a verdict of “guilty of manslaughter”. In such circumstances, defendant was entitled to have the jury apprised of the law concerning the offense of manslaughter in accordance with the instruction which he had offered, but which instruction the trial court refused to give. Indeed, the authorities are numerous to the effect that, in such circumstances, it became the duty of the trial court, of its own motion, to give to the jury such an instruction. See People v. Heddens, 12 Cal. App. (2d) 245, 247 [55 Pac. (2d) 230], where it was said: “It is the duty of the court in criminal cases to give of its oivn motion instructions on the general principles of law pertinent to such cases, even though they are not proposed or presented in writing hy the parties themselves. (People v. Scofield, 203 Cal. 703 [265 Pac. 914] ; People v. Bill, 140 Cal.. App. 389 [35 Pac. (2d) 645] ; People v. Peck, 43 Cal. App. 638 [185 Pac. 881]; People v. Wagner, 65 Cal. App. 704 [225 Pac. 464].)” (Emphasis added.) Likewise, in the case of People v. Manzo, 9 Cal. (2d) 594, 598 [72 Pac. (2d) 119], it was said that “In the trial of criminal cases it is the duty of the judge to instruct the jury on all of the general principles of law pertinent to the case. (People v. Scofield, 203 Cal. 703 [265 Pac. 914] . . . ) ”. And in the case entitled People v. Best, 13 Cal. App. (2d) 606, 611 [57 Pac. (2d) 168], the rule again was reiterated, that “It is the duty of the court in a criminal case to give, of its own motion, instructions on the general principles of law pertinent to such cases, [even] where they are not proposed or presented in writing by the parties themselves. (8 Cal. Jur., p. 309.)” (Emphasis added.) To the same effect, see, also, People v. Curran, 24 Cal. App. (2d) 673 [75 Pac. (2d) 1090].

In the case entitled People v. Darrow, 212 Cal. 167, 184, 185 [298 Pac. 1], the source of this mandate as to the duty of the trial court was pointed out, as follows:

“Section 1127 of the Penal Code makes it the duty of the court to state to the jury all matters of law necessary for their information . . . Section 1159 of the Penal Code further provides that ‘The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged.’ This court . . . said in People v. Wright, 167 Cal. 1 [138 Pac. 349] ... ‘It is not the “theory” which the prosecution advances, nor the “theory” which the defense adopts which governs the court in the giving or in the refusing to give instructions. Theories are of moment in a criminal ease only as they are supported by substantial evidence. What the trial court is commanded by law to do is to state to the jury all matters of law necessary for their information in their deliberations ... ’ ”

Likewise, it is well established that the presentation by the defendant of a “self-defense” plea does not preclude the rendition of a verdict of “guilty of manslaughter”. In other words, although the evidence that is presented may be of such a character that a plea of “self-defense” might not avail the defendant as a basis for an acquittal,—nevertheless, from a consideration of the same facts, the defendant might be entitled to a verdict of “guilty of manslaughter”. In that regard, in the case of People v. Hayes, 9 Cal. App. 301, 306 [99 Pac. 386], the court said: “The trial court seems to have been of the opinion that the evidence showed, either an unlawful killing with malice aforethought, or a killing in necessary self-defense. This was also the position of the trial court in the Stevenson case, supra, and upon this subject it was said: ‘The ruling of the learned judge was to the effect that, in this case, the killing was either murder, or else it was done in the course of self-defense, and that under no view which could possibly be taken of the evidence would the jury be at liberty to find the defendant guilty of manslaughter. The court passed upon the strength, credibility and tendency of the evidence, and decided as a matter of law what it seems to us would generally be regarded as a question of fact, viz., whether, under all the circumstances which the jury might, from the evidence, find existed in the case, the defendant was guilty of murder, or whether he killed the deceased, not in self-defense, but unlawfully and unjustly, although without malice. The presence or absence of malice would be the material consideration in the case, provided the jury should reject the theory of self-defense, ... ’ ”

To the same effect is the ruling in the case entitled People v. Best, 13 Cal. App. (2d) 606, 609 [57 Pac. (2d) 168], where it was said: “The court instructed the jury that the crime of manslaughter was included in the charge of murder. A form of a verdict of manslaughter was handed to the jury upon their retirement, together with the usual forms in a murder trial. The court, however, failed to instruct the jury as to the definition of manslaughter, or as to what facts must be found by them before they could convict of the lesser offense. At the trial the defendant relied upon the plea of self-defense. This is indicated not only by the evidence offered by him, but also by the instructions which he submitted. His brief upon this appeal, as well as the oral argument of his counsel, show clearly that the case was tried on the theory that the crime of manslaughter was not involved.” The court then said that although self-defense (where it is established) excuses, rather than fixes the degree of the homicide, and entitles defendant to an acquittal, nevertheless “the evidence and the inferences reasonably to be drawn therefrom may be sufficient to warrant the jury in concluding that, though the killing ivas not justifiable under a plea of self-defense, it was done under such circumstances as to reduce the offense to voluntary manslaughter. If malice is lacking and the mortal blow is struck in the heat of passion, excited by a quarrel, sudden, and of sufficient violence to amount to adequate provocation, the offense is reduced to manslaughter. (People v. Freel, 48 Cal. 436.)” (Emphasis added.)

Prom a consideration of the prevailing opinion herein, the question immediately is suggested as to whether, in a case such as here is presented, it is the law that it would be unnecessary to give any instruction regarding the crime of manslaughter, where, as here, the jury was fully instructed respecting first and second degree murder; also as to the power of the jury to fix the punishment in case it found defendant guilty of murder in the first degree;—and where, under the evidence shown to have been adduced, the jury thereupon returned its verdict of 1 guilty of murder in the first degree, ’ ’ without recommendation as to what punishment should be imposed. If so, by the same token, in the instant case, had the trial court instructed the jury as to first degree murder only, and a verdict identical with that herein had been returned, it should follow that defendant would not have been prejudiced by reason of the fact that no instruction had been given respecting second degree murder. In other words, is it possible that, in the happening of such event, it properly might be declared the defendant had not been prejudicially affected by the failure of the trial court to instruct the jury regarding the law pertaining to second degree murder, because, in effect, by its verdict the jury had determined that the death penalty should be imposed?

Again referring to the transcript of the proceedings had in the trial court regarding the fact that the trial court employed 2,000 words or more in defining the crime of murder, and in telling the jury in detail about the various ramifications of the law regarding the same,—does it seem reasonable to presume that had even a small percentage of those 2,000 words been dedicated to the purpose of informing the jury relative to its right under the circumstances to convict the defendant of the crime of manslaughter, the result would have been identical with that which was reached in the absence of such information? Otherwise stated,—in the light of the evidence herein adduced,—may it confidently be declared as the law of this state that because the jury, in effect, recommended the “death” penalty, and thereby precluded the imposition of any lesser punishment, the giving of instructions regarding lesser offenses than that of first degree murder would be rendered unnecessary as far as the rights of defendant were concerned? If that question may not be answered affirmatively with respect to the crime of second degree murder, no sufficient reason is readily discernible for failing to give instructions regarding the crime of manslaughter, where evidence supporting such offense is adduced. In my opinion, the law concerning the question herein being considered is ably and aptly expressed in the very recent decision entitled Kinard v. United States, 96 Fed. (2d) 522, 524 [68 App. D. C. 250], wherein the court said:

“ ‘In a criminal ease a court should instruct on all essential questions of law involved in the case, whether requested or not. People v. Odell, 230 N. Y. 481 [130 N. E. 619]; Commonwealth v. Ferko, 269 Pa. 39 [112 Atl. 38] ; Pearson v. State, 143 Tenn. 385 [226 S. W. 538] ; Duroff v. Commonwealth, 192 Ky. 31 [232 S. W. 47] ; State v. Lackey, 230 Mo. 707 [132 S. W. 602], . . . ’ It is further assigned as error that the trial court, in its charge, instructed the jury concerning manslaughter as follows: ‘ This indictment which charges the defendant with murder in the first degree carries the charge of what we call the included offenses. The included offenses of murder in the first degree are murder in the second degree and manslaughter. But you are told that in the judgment of the Court the facts as revealed in the evidence in this case are not of such a nature and character as to sustain a verdict of manslaughter, and therefore you are instructed that your verdict, which will come at the end of the case, will be either guilty of murder in the first degree, or guilty of murder in the second degree, or not guilty.’ ... It is true that defendant’s testimony was sharply contradicted. It is arguable that the evidence was overwhelmingly indicative of murder rather than manslaughter. But 'hat is beside the point so far as concerns the propriety of the instruction given. It was not the duty of the trial court to weigh the evidence and determine whether the defendant was guilty of murder or manslaughter, but merely to determine the preliminary question of law—whether there was such a complete absence of evidence upon the issue of manslaughter as to require that it be taken from the consideration of the jury. The applicable rule has been stated by the Supreme Court in Stevenson v. United States, 162 U. S. 313, 323 [16 Sup. Ct. 839, 843, 40 L. Ed. 980], as follows: ‘A judge may be entirely satisfied from the whole evidence in the case that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter. ’ (Italics supplied.) In the same case, 162 U. S. 313, at page 314 [16 Sup. Ct. 839, 40 L. Ed. 980], the court stated the rule again, in the following language: ‘ The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question. So long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder.’ (Italics supplied.) The only situation, then, in which an instruction taking the issue of manslaughter from the jury is proper, is one in which, as ruled in the Stevenson Case, there is no ‘evidence relevant to the issue of manslaughter’ or no ‘evidence fairly tending to bear upon the issue of manslaughter’. ......The fact that in the present case there was other evidence highly persuasive of guilt of murder does not affect the applicability of the rule stated. As the court said in Stevenson v. United States, supra, 162 U. S. 313, at page 315 [16 Sup. Ct. 839, 40 L. Ed. 980] : ‘The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self-defense, and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court. ’ [See footnote where it was said: “This rule has been followed by the state courts. See People v. Colantone, 243 N. Y. 134, 152 N. E. 700; Lewis v. State, 89 Tex. Cr. R. 345, 231 S. W. 113; Mason v. Commonwealth, 209 Ky. 157, 272 S. W. 397.”] The government contends, in support of the instruction given by the trial court, that the facts in the present case are susceptible of but two possible interpretations: One, that the appellant was not guilty because he acted in self-defense; the other, that he was guilty of murder in the first or second degree, hence, that a killing upon provocation in a heat of passion is necessarily inconsistent with the facts. Although such a conclusion properly follows where a defendant urges, in the alternative, killing upon provocation in a heat of passion and accidental killing (Bell v. United States, supra), 47 Fed. (2d) 438 [60 App. D. C. 76, 74 A. L. R. 1098], it does not follow where he urges, in the alternative, killing upon provocation in a heat of passion and self-defense. The two, in the latter alternative, are not mutually exclusive and inconsistent. Stevenson v. United States, supra, 162 U. S. 313, at page 322 [16 Sup. Ct. 839, 40 L. Ed. 980], Provocation sufficient to produce a heat of passion and a resulting absence of malice may give such character to a homicide as to make it manslaughter; the same provocation may, under slightly varied circumstances, justify a person in killing in self-defense. Wallace v. United States, 162 U. S. 466 [16 Sup. Ct. 859, 40 L. Ed. 1039]. Heat of passion may be produced by fear as well as by rage (Stevenson v. United States, supra, 162 U. S. 313, at page 320 [16 Sup. Ct. 839, 40 L. Ed. 980]) and, if the provocation therefor is adequate (Jackson v. United States, 48 App. D. C. 272), the resulting killing may be manslaughter. The essence of the self-defense situation is a reasonable and bona fide belief of the imminence of death or great bodily harm. Brown v. United States, 256 U. S. 335, 343 [41 Sup. Ct. 501, 502, 65 L. Ed. 961, 18 A. L. R. 1276]. Heat of passion may or may not be present. It is the function of the jury, under proper instructions, to determine whether either defense is available to the accused under the circumstances of the particular case. [See footnote where it was said: “See State v. Kidd, 24 N. M. 572, 175 Pac. 772; Tucker v. Commonwealth, 159 Va. 1038, 167 S. E. 253. The defendant is entitled to an instruction on the law of manslaughter although he relies solely upon the theory of self-defense. State v. Greenlee, 33 N. M. 449, 269 Pac. 331; State v. Rish, 104 S. C. 250, 88 S. E. 531; Commonwealth v. Colandro, 231 Pa. 343, 80 Atl. 571.] We are satisfied that there was some evidence in the present case tending to show that the killing occurred while appellant was in a heat of passion provoked by the actions of his wife, the deceased; and, consequently, that the trial court, in giving the portion of the charge complained of, invaded the province of the jury. Although no exception was taken by appellant to the charge when it was given, it is our duty, nevertheless, as an appellate court, to correct any error prejudicial to him, especially in a capital case, or other case where the crime charged is of serious character. Patten v. United States, 42 App. D. C. 239, 247; Wiborg v. United States, 163 U. S. 632, 658 [16 Sup. Ct. 1127, 1197, 41 L. Ed. 289] ; Meadows v. United States, 82 Fed. (2d) 881 [65 App. D. C. 275], See, also, Crawford v. United States, 212 U. S. 183, 194 [29 Sup. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392]. It is the imperative duty of the court to see that a defendant has a fair trial ‘no matter how severe may be the condemnation which is due to the conduct of a party charged with a criminal offense, . . . Only in the exact administration of the laio will justice in the long run be done, and the confidence of the public in such administration be maintained.’ Clyatt v. United States, 197 U. S. 207, 222 [25 Sup. Ct. 429, 433, 49 L. Ed. 726].” (Emphasis added.)

As hereinbefore has been indicated, in the instant case the jury was elaborately instructed with respect to the crime of murder in the first and second degrees. No complaint in that regard has been made by appellant. But by no instruction was the crime of manslaughter defined or any anywise mentioned. As far as the instructions that were given were concerned, the jury had no knowledge or information as to the existence of such a crime; neither did it know—nor was it informed—that, even if in its opinion the evidence adduced on behalf of the “self-defense” theory was insufficient to justify an “acquittal”, nevertheless, it might return a verdict of “guilty of manslaughter.” The verdict which was returned contains no certain indication that, had the jury been as elaborately and emphatically instructed with reference to the crime of manslaughter as it was relating to the crime of murder, the verdict would not have been at least more favorable to defendant than was the one which was returned.

To my mind the error was most prejudicial to the rights of defendant.

Rehearing denied.


author: EDMONDS, J.

text:
    [Crim. No. 4228.
    In Bank.
    August 24, 1939.]
    In the Matter of the Application of E. H. MEANS for a Writ of Habeas Corpus.

      John J. Hamlyn for Petitioner.
    Earl Warren, Attorney-General, Jess Hession, Deputy Attorney-General, C. C. Carleton, C. R. Montgomery, Prank B. Durlcee and Robert E. Reed, as Amici Curiae, on Behalf of Petitioner.
    Hugh B. Bradford, City Attorney, Butler, Van Dyke & Harris and B. P. Van Dyke for Respondents.
   EDMONDS, J.

By a writ of habeas corpus, E. H. Means seeks his discharge from custody under a warrant of arrest issued upon a complaint charging him with a violation of an ordinance of the city of Sacramento requiring that every person performing labor as a journeyman plumber procure a certificate of registration. The petitioner alleges in support of his application that at the time of his arrest he was a civil service employee of the State of California engaged in the work of a plumber at the California State Pair grounds in the city of Sacramento, and that, as such employee, the ordinance does not apply to him. These facts are not denied; therefore, the only question presented for decision is whether a state employee, working entirely on state property, may be punished for his failure to comply with the municipal requirement.

For many years there has been in effect “an act to provide for a general system, based upon investigation as to merit, efficiency and fitness, for appointment to and holding during good behavior of office and employment under state authority ...” (Stats. 1913, chap. 590.) Under an amendment to the Constitution approved by the people in 1934 “permanent appointments and promotion in the state civil service shall be made exclusively under a general system based upon merit, efficiency and fitness as ascertained by competitive examination”. (Art. XXIV, sec. 1.) The State Civil Service Act (Stats. 1937, chap. 753), adopted pursuant to the constitutional amendment provides in detail the method by which persons may secure and retain employment by the state. Among other requirements, the statute prescribes the following: “Eligible lists shall be established as a result of free competitive examinations open to all persons who lawfully may be appointed to any position within the class for which such examinations are held and who meet the minimum qualifications requisite to the performance of the duties of such position as prescribed by the specifications for the class or by rule of the board.” (Stats. 1937, chap. 753, sec. 81.) It is conceded that the state personnel board, which is charged with the duty of administering these provisions, certified the petitioner for the position to which he was subsequently appointed.

By its charter, the city of Sacramento is given the power “to regulate the construction of and the materials used in all buildings ... ; to regulate . . . the manner of construction and location of drains and sewers . . . ; the materials and methods used for piping buildings for water; ... to regulate and prescribe all methods and materials used for the plumbing of all buildings, . . . and to provide for the examination and licensing of all persons . . . who shall engage in or work at the business of plumbing . . . ” (Sacramento Charter, sec. 9; Stats. 1921, p. 1919.) Under the state Constitution it may “make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.” (Art. XI, sec. 11.)

The ordinance which the petitioner is charged with violating provides: “It shall be unlawful for any person to perform labor as a journeyman plumber . . . for the purpose of repairing or installing plumbing work as defined in section 1. of this ordinance unless such person first procures from the Health Officer of said city a Certificate of Registration authorizing said person to labor as such mechanic.” (No. 496, 4th series, sec. 3.) To procure this certificate the applicant must submit himself for examination by the examining board as to his qualifications; he must also execute and deliver a bond of $2,500 in favor of the city of Sacramento conditioned that the whole or part of that sum shall be paid to any person who shall suffer damage by reason of a violation of any provision of the ordinance. Admittedly, the petitioner did not secure the certificate nor file the bond required by the city.

It is petitioner’s contention that the State of California has prescribed a complete method by which qualified persons may become employees in the civil service; that this legislation occupies the field exclusively and, as a result, any local ordinance prescribing additional requirements for such employees are invalid as to them. In determining the necessary qualifications for employees, says the petitioner, the state is dealing with a matter which is its exclusive field and concern, and the ordinance should not be construed in derogation of sovereignty.

As against these contentions, the respondent justifies his position under provisions of the Constitution. He asserts that under article XI, sections 6 and 8, a chartered city has the exclusive right to regulate municipal affairs; that the general regulation of plumbing within the limits of a city is a municipal affair, and that the city has exercised its right by providing in its charter that it may “provide for the examination and licensing of all persons . . . who shall engage in or work at the business of plumbing either as a master or as a journeyman plumber”. (Supra, sec. 9.) A second point urged is that by another section of the Constitution the city has the power to enact local police regulations “not in conflict with general laws” (art. XI, sec. 11), and that as there is no general state law on plumbing the city’s ordinance must be upheld.

The constitutional amendment of 1934 and statutes relating to civil service, taken as a whole, provide a comprehensive plan for the selection of state employees after examination to ascertain their qualifications for particular positions. And although the Sacramento ordinance does not purport to prescribe conditions with which one must comply before being selected by the state for a civil service position, its construction as contended for by the respondent would bring about this result. If one who has been employed by the state may not work on state property within a municipality without the consent of the municipality obtained after examination, the city has, in effect, added to the requirements for employment by the state, and restricted the rights of sovereignty.

There can be no question concerning the power of the state in its proprietary capacity to lay down the qualifications for its employees. It acts in an exclusive field (Atkin v. Kansas, 191 U. S. 207 [24 Sup. Ct. 124, 48 L. Ed. 148]; Heim v. McCall, 239 U. S. 175 [36 Sup. Ct. 78, 60 L. Ed. 206, Ann. Cas. 1917B, 287]), and is not subject to the legislative enactments of subordinate governmental agencies. For example, it has been held that a state has no power to require employees of the United States to obtain a license to operate an automobile. 11 Such a requirement, ’ ’ said the Supreme Court of the United States, “does not merely touch the Government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders and requires qualifications in addition to those that the Government has pronounced sufficient. It is the duty of the Department to employ persons competent for their work and that duty it must be presumed has been performed.” (Johnson v. State of Maryland, 254 U. S. 51, 57 [41 Sup. Ct. 16, 65 L. Ed. 126].) Furthermore, considering the language of the particular enactment now in question, it is a rule of statutory construction based upon sound public policy that the state is not bound by the provisions of a charter or ordinance unless it is mentioned specifically or by necessary implication. (Estate of Miller, 5 Cal. (2d) 588 [55 Pac. (2d) 491]; Sunny Slope Water Co. v. City of Pasadena, 1 Cal. (2d) 87 [33 Pac. (2d) 672] ; Marin Municipal Water Dist. v. Chenu, 188 Cal. 734 [207 Pac. 251] ; Balthazar v. Pacific Elec. Ry. Co., 187 Cal. 302 [202 Pac. 37, 19 A. L. R. 452]; Mayrhofer v. Board of Education, 89 Cal. 110 [26 Pac. 646, 23 Am. St. Rep. 451].) Courts will not assume a legislative intention on the part of a city council to interfere with the acts of the general government.

Turning to the contentions of the respondent that the regulation of plumbing is a municipal affair, the rule 1o be applied is not entirely a geographical one. Under certain circumstances, an act relating to property within a city may be of such general concern that local regulation concerning municipal affairs is inapplicable. (Young v. Superior Court, 216 Cal. 512 [15 Pac. (2d) 163]; Civic Center Assn. v. Railroad Com., 175 Cal. 441 [166 Pac. 351] ; Key System Transit Co. v. City of Oakland, 124 Cal. App. 733 [13 Pac. (2d) 979].) For example, where one of the city’s streets has been declared by an.act of the legislature to be a secondary highway, the improvement of that street is not a municipal affair within the meaning of the Constitution. (Southern California Roads Co. v. McGuire, 2 Cal. (2d) 115 [39 Pac. (2d) 412].) Also, regulations prescribed by charter or ordinance of a city requiring that the work of altering and improving buildings be subject to local supervision have been held inapplicable to state buildings. (City of Milwaukee v. McGregor, 140 Wis. 35 [121 N. W. 642, 17 Ann. Cas. 1002].)

In the case of Kentucky Institution for Education of Blind v. City of Louisville, 123 Ky. 767 [97 S. W. 402, 8 L. R. A. (N. S.) 553], the city attempted to enforce an ordinance relating to fire escapes with respect to a state institution for the blind. The court held the ordinance inapplicable, stating: 1 ‘ The principle is that the state, when creating municipal governments does not cede to them any control of the state’s property situated within them, nor over any property which the state has authorized another body or power to control. The municipal government is but an agent of the state, not an independent body. It governs in the limited manner and territory that is expressly or by necessary implication granted to it by the state. It is competent for the state to retain to itself some part of the government even within the municipality, which it will exercise directly, or through the medium of other selected and more suitable instrumentalities. How can the city ever have a superior authority to the state over the latter’s own property, or in its control and management? From the nature of things it cannot have.”

The second point urged by the respondent is that by article XI, section 11, of the Constitution, the city is given power to “make and enforce within its limits all such local, police, sanitary or other regulations as are not in conflict with general laws”. This provision is in addition to section 6 of the same article, adopted in 1914, which makes the ordinances concerning municipal affairs enacted by charter cities paramount to the general laws of the state. (Civic Center Assn. v. Railroad Com., 175 Cal. 441 [166 Pac. 351].) But aS the challenged ordinance, insofar as it attempts to regulate employees of the state, is not legislation having to do with a municipal affair, it cannot be upheld under the earlier provision of the Constitution if it conflicts with the general law.

Although the legislature has enacted no statute regulating plumbing, if the city’s ordinance is a valid exercise of power, then one whom the state has examined and found eligible for employment as a plumber and who has later entered the state civil service may be unable to work on state property because he cannot pass the examination of a city health officer or licensing board. The result is a direct conflict of authority. Either the local regulation is ineffective or the state must bow to the requirement of its governmental subsidiary. Upon fundamental principles, that conflict must be resolved in favor of the state.

It is, therefore, ordered that the petitioner be discharged from custody.

Shenk, J., Houser, J., Curtis, J., and Spence, J., pro tem., concurred.

Rehearing denied.


author: CURTIS, J.

text:
    [L. A. No. 16775.
    In Bank.
    August 25, 1939.]
    In the Matter of the Estate of HELEN M. TOWLE, Deceased. JOSEPHINE IRVING, Special Administratrix, etc., et al., Respondents, v. SCRIPPS MEMORIAL HOSPITAL (a Corporation) et al., Appellants.

      Hillyer & Boldman and Bertrand L. Comparet for Appellants.
    Arthur H. DeRiemer, Charles A. Brinkley, Gray, Cary, Ames & Driscoll and Burton D. Wood, for Respondents.
   CURTIS, J.

This is an appeal from a judgment refusing to admit to probate two documents which were offered for probate as the holographic wills of Helen M. Towle, deceased, by the public administrator of the county of San Diego, of which county the decedent was a resident at the time of her death. No question is raised as to the correctness of the judgment in so far as it denied probate to the earlier will, dated May 21, 1932, which was denied probate upon the ground that it had been revoked by the express revocatory clause contained in the later instrument, dated September 19, 1933. But the correctness of the judgment in so far as it denied probate to the later document, dated September 19, 1933, has been challenged on appeal by Scripps Memorial Hospital and Fine Arts Society of San Diego, two of the charitable corporations named as residuary legatees in said purported holographic will. Respondents are cousins of the decedent who will be entitled to inherit property in California of the approximate value of $60,000 in the event the decedent died intestate.

With the exception of the cancellation of the words, “twenty five hundred dollars ($2500) ” in the sixth paragraph of said document in the bequest to Helen Barton Stilwell, which cancellation was made by the testatrix herself, and the insertion of the figure, “$1000” above said cancellation by said testatrix, all the other interlineations, cancellations and additions were made by Mr. Chester D. Seftenberg, vice-president and trust officer of the Oak Park Trust & Savings Bank of Oak Park, Illinois. The cancellation of the words, “La Jolla, San Diego Co. Calif,” and the cancellation of the paragraph in which the Northern Trust Co. of Chicago, Illinois was named as executor and trustee, were made by Mr. Seftenberg in black ink. The last paragraph which followed the signature of Helen M. Towle was written in by Mr. Seftenberg in pencil. The other interlineations and changes were made by him in red ink. No particular significance arises from the fact that in one instance Mr. Seftenberg used a pencil, or that he used different colored ink in making the changes.

The evidence with reference to these cancellations and interlineations is embodied in the deposition of Mr. Seftenberg, and is accepted by both sides as being a true and accurate account of the circumstances under which these cancellations and interlineations were made. According to the deposition of Mr. Seftenberg, Helen M. Towle came into his office at the bank in Oak Park, Illinois, on October 10, 1934, for the purpose of having him prepare a formal will for her. She had with her a document which was at that time entirely written, dated, and signed in her own handwriting, and which the probate court found was, on the date of its execution, a valid testamentary disposition of her property. She told Mr. Seftenberg that this was a temporary will and that the distribution of the property as set forth therein with a few modifications of detail was satisfactory to her. She also explained that her father had been an attorney and she was somewhat conversant with legal forms and phraseology, and that she understood a will entirely written, dated, and signed by a testator was valid as an holographic will. Mr. Seftenberg informed her that neither he nor the bank prepared wills, but offered to recommend an attorney to her who would handle the matter for her. He also offered to assist her in the preparation of her will by preparing a memorandum of suggestions as to her desired scheme of distribution for submission to her attorney. They then sat down at an office desk in his office, he on one side of the desk and she on the other side, and discussed the provisions of her will. Using the holographic will which she had brought with her as the basis of the memorandum, he proceeded to make the cancellations and interlineations in said document which now appear thereon. His testimony is that he read over the document with her and as they took up each separate paragraph, he wrote the words and figures appearing thereon in his handwriting. It was during this conference that Helen M. Towle changed the bequest to Helen Barton Stilwell from $2,500 to $1,000, but it does not appear from Mr. Seftenberg’s deposition whether she made the change prior to the time he made any changes in the document, or subsequent thereto. Many, if not most, of the interlineations made by Mr. Seftenberg were made simply for the purpose of clarifying the handwriting of the decedent and to make more certain the spelling of the proper names. Certain definite changes were, however, made by him in the provisions of the will. Thus, the provision whereby the Northern Trust Company of Chicago, Illinois, was nominated by the testatrix as her executor, was deleted by Mr. Seftenberg with the consent of the testatrix, with the idea of substituting the Oak Park Trust & Savings Bank in lieu thereof. Also the bequest to her cousin, Carrie L. Towle, which had theretofore been an outright gift to her cousin of $5,000 was changed to a bequest to Mary M. Towle in trust for the benefit of Carrie L. Towle. As Helen M. Towle was leaving Oak Park, Illinois, in a few days on a trip, Mr. Seftenberg offered to deliver said document with its interlineations, changes, and additions, to an attorney, to be used by the attorney as the basis for her proposed formal will. Mr. Seftenberg did turn the document over to an attorney who did prepare a formal will in accordance with the terms and provisions of said document as modified by the changes, interlineations and additions contained therein. Said will was never executed by Helen M. Towle, for the reason that after further discussing the matter with Mr. Seftenberg, she decided to execute, and the following day, did execute, a declaration of trust whereby she conveyed to the Oak Park Trust & Savings Bank, in trust, all property owned by her in Illinois, which was of the approximate value of $150,000. The property which she owned in California was not included in the trust document, and it is this California property, of the approximate value of $60,000, which is the subject of the controversy involved in this appeal. It was decided at said time that she would dispose of her California property by a formal will wherein she would devise and bequeath said California property to the Oak Park Trust & Saving’s Bank, as trustee, to be distributed by said bank in accordance with the plan of distribution embodied in her declaration of trust. Such a will was prepared for her signature, but she died very suddenly and unexpectedly in Canada before said will was executed by her. The original document now presented for probate as the holographic will of.Helen M. Towle was never returned to her, but after her death, was taken from the files of the Oak Park Trust & Savings Bank and forwarded to the clerk of the superior court of San Diego County.

It should be noted that the property conveyed by the decedent in the declaration of trust consisted of her Illinois property which was the bulk of her estate, but did not include the property owned by her in California. The declaration of trust contained identical provisions with reference to the bequests to friends and relatives as had been contained in her holographic will as modified by the interlineations, cancellations and additions, and the residue was likewise divided in the same proportions among the charitable corporations as it had been divided in her holographic will as modified. Due, however, to the fact that the holographic will made disposition of her entire estate, and the declaration of trust only provided for distribution of her Illinois property, it is apparent that the results of said identical scheme of distribution were not the same in so far as the residuary legatees were concerned. If the decedent had executed the formal will prepared for her by her attorney for the purpose of providing for the distribution of her California property prior to her death, the result would then have been the same.

The sole controversy involved in this appeal is the question of whether the probate court erred in refusing probate to the document, dated September 19, 1933, which when it was presented for probate was partially in the handwriting of Helen M. Towle, deceased, and partially in the handwriting of Chester D. Seftenberg.

The probate court as the basis of its judgment expressly found that, “It is not true that said instrument . . . was at the time of the death of said Helen M. Towle as aforesaid her last will and testament; that it is not true that at said time the said instrument was entirely written, dated and signed by the hand of the said Helen M. Towle; that it is true that at said time there were upon said instrument interlineations, additions and changes, incorporated in the provisions thereof not written by the hand of the said Helen M. Towle, but theretofore placed thereon and incorporated therein by the hand of another in the presence of and with the acquiescence and consent and at the direction of the said Helen M. Towle.”

We do not think that this finding, which is supported by the undisputed evidence of Chester D. Seftenberg, embodied in his deposition, nor the judgment predicated thereon, can be successfully challenged.

It is elementary that a document, holographic in form, to be effective as a valid testamentary disposition of a testator’s property, must strictly fulfill the mandatory requirements of section 53 of the Probate Code. (Estate of Rand, 61 Cal. 468 [44 Am. Rep. 555] ; Estate of Billings, 64 Cal. 427 [1 Pac. 701]; Estate of Plumel, 151 Cal. 77 [90 Pac. 192, 121 Am. St. Rep. 100] ; Estate of Dreyfus, 175 Cal. 417 [165 Pac. 941, L. R. A. 1917F, 391]; Estate of Thorn, 183 Cal. 512 [192 Pac. 19] ; Estate of Bernard, 197 Cal. 36 [239 Pac. 404] ; Estate of Bower, 11 Cal. (2d) 180 [78 Pac. (2d) 1012].)

Section 53 of the Probate Code reads as follows:

“A holographic will is one that is entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and need not be witnessed. No address, date or other matter written, printed or stamped upon the document, which is not incorporated in the provisions which are in the handwriting of the decedent, shall be considered as any part of the will.”

Does the document offered for probate meet these statutory requirements? The answer must be, No. It is conceded by appellants, as indeed it must be, since it is self-apparent, that cancellations, interlineations and additions in the handwriting of a person other than Helen M. Towle, appear upon the face of the document. It is true that if someone, unknown to the testatrix and without her authority, had marked up decedent’s will, said instrument, as originally executed by the testatrix and with said alterations deleted, would be entitled to probate. (Musgrove v. Holt, 153 Ark. 355 [240 S. W. 1068].) But no claim is made in the instant case that these marks, interlineations and additions were placed on said instrument without the knowledge and consent of the testatrix. Of course, no such claim could be successfully made, since the evidence is undisputed that these marks, interlineations and changes were made by Mr. Seftenberg in the presence of the testatrix and with her knowledge and consent, and that whatever cancellations and interlineations were made which changed the terms and provisions of the original holographic will, expressed the testatrix’s own ideas and wishes. In view of these uncontradieted facts, we are convinced that no amount of argument can offer escape from the simple, basic fact that the document presented for probate was not entirely written, dated and signed by the hand of the testatrix herself. The instrument, therefore, is not entitled to probate.

Despite the admitted fact that the document presented for probate was not entirely written, dated and signed by the testatrix, it is argued that the concluding sentence of section 53 of the Probate Code saves it from being ineffective as a valid testamentary disposition of the property of the testatrix. Said sentence provides that, “No address, date or other matter written, printed or stamped upon the document, which is not incorporated in the provisions which are in the handwriting of the decedent, shall be considered as any part of the will.” There can be no question that the interlineations and cancellations made by Mr. Seftenberg were made by him in order to express the plan and wishes of the testatrix, and were intended by her to be incorporated in the terms of her formal will when drawn. A mere cursory glance at the face of the instrument demonstrates the truth of this assertion. It is difficult to conceive of any document in which the intent to incorporate the additional words and figures therein written would be more patent. It is insisted by appellants, however, that no writing or printing can be “incorporated” by a stranger, but must be incorporated by the testatrix herself. It is further argued that no printing or writing can be “incorporated” by the testatrix unless it was in existence at the time of the execution of the holographic will. It is apparent that this latter argument is attempting to read into said provision of the Probate Code the technical requirements of the doctrine of incorporation by reference. (Estate of Doane, 190 Cal. 412 [213 Pac. 53]; Garde v. Goldsmith, 204 Cal. 166 [267 Pac. 104]; Estate of Miller, 128 Cal. App. 176 [17 Pac. (2d) 181].) In view of the fact that this sentence was added to said code section for the purpose of making said code section conform to the holding in Estate of De Caccia, 205 Cal. 719 [273 Pac. 552, 61 A. L. R. 393], and the Estate of De Gaccia, supra, in no way involves the doctrine of incorporation by reference, which relates to the incorporation of a separate extrinsic document already in existence by appropriate reference thereto by a testator in a will, we find no merit in this argument.

There can be no question that said sentence was added to said code section to codify the holding in Estate of De Caccia, supra. The note by the code commissioners to section 53 of the Probate Code said: “The last sentence is new: 205 Cal. 719,” which citation is the citation of the Estate of De Gaccia, supra. Estate of Bower, supra, expressly states that this sentence was added to the code section to codify the rule announced in the De Caccia case. Evidently, therefore, this provision was intended to apply to situations similar to that presented in Estate of De Caccia, supra. The holding in that case was to the effect that the mere presence of printed words upon the stationery used by a person for the purpose of writing his holographic will, but not intended by said person to form any part of his will, did not destroy the effect of the instrument as an holographic will, but was extraneous matter which could be considered nonexistent in so far as the holographic will was concerned. It follows, therefore, that this provision of section 53 of the Probate Code, which is intended to apply to certain instruments of the character of the one involved in the De Caccia case, was never intended to apply to a situation such as here involved, wherein the interlineations, changes and additions were made by a stranger subsequent to the original execution of the will, but with the consent and acquiescence of the testatrix, and to express her ideas and wishes.

We do not believe that the question of the validity of the holographic will here involved depends upon a determination of the sequence of time in which the changes were made by the testatrix or by Mr. Seftenberg. It has been held that the making of any alteration or interlineation by a testator in his original holographic will in his own handwriting constitutes a reexeeution and republication of such instrument and it is entitled to probate as altered. (Estate of Finkler, 3 Cal. (2d) 584, 600 [46 Pac. (2d) 149].) Regardless of whether or not the change made by the testatrix was made prior to any changes made by Mr. Seftenberg, or was made in the order in which said paragraph was reached during the discussion, or after the marks upon the document had been completed by Mr. Seftenberg, the changes so made were made as part and parcel of the same transaction, and the testatrix undoubtedly intended the finished product of the discussion, that is to say, the document as changed and interlined by both herself and Mr. Seftenberg, to express her wishes as to the final disposition of her property. (Estate of Thorn, supra.) If, therefore, there was a reexeeution by her by virtue of the change made in her own handwriting, it was a reexeeution of the instrument in its entirety, including the interlineations, changes and additions by Mr. Seftenberg.

It is true that the situation here presented is unique, and no case has been cited which involves a factual situation wherein the changes in an holographic will were made by a stranger thereto with the consent and acquiescence of the testator, subsequent to the original execution of said will. It is likewise true, that all the cases cited to the effect that an holographic will is invalid when not entirely written, dated and signed, by the hand of the testator, are without exception, cases where the foreign matter was included in the will at the time of its original execution, and not one of them involves a subsequent incorporation of foreign matter. But we think the obvious purpose and intent of the legislature of making an holographic will completely, entirely and wholly the exclusive act of the testator, leads necessarily to the conclusion that the slightest change by a stranger with the knowledge and consent of the testator, at any time during its existence, will completely vitiate any instrument as an holographic will.

We have little doubt that in consenting to and acquiescing in the changes and alterations in her original holographic will by Mr. Seftenberg, the testatrix fully realized the result of her action which rendered said instrument ineffective as a testamentary disposition of her property. A will is a solemn instrument and is recognized as such by those desiring to make testamentary disposition of their property. We do not think it reasonable to suppose that the testatrix in the instant case permitted Mr. Seftenberg to make interlineations, changes, and cancellations upon the document before him, and at the same time expected said document to retain its character as a valid testamentary disposition of her property.

The fact that the decedent on the day following the conference in which her holographic will was marked up by Mr. Seftenberg made a declaration of trust in which she disposed of all her Illinois property in the same manner as that in which she had disposed of her estate in her holographic will as modified, would indicate that she had intentionally abandoned and discarded her holographic will. This conclusion is further strengthened by the fact that she had prepared by an attorney a draft of a formal will embracing all the terms and conditions of the holographic will as modified by the interlineations, alterations, and changes made by herself and Mr. Seftenberg.

The refusal of the courts in the past to permit any deviation from the clear, plain requirements of the code section governing the due execution of holographic wills was based upon the theory that the rigid requirement that such wills be entirely in the handwriting of the testator was enacted by the legislature to afford protection from the danger of forgery of such a will, not protected, as is a formal will, by the safeguard of the requirement of due attestation by competent witnesses. (Estate of Dreyfus, supra.) In other words, the fact that a document is entirely in the handwriting of a testator, offers an adequate guaranty of its genuineness. This same reasoning applies, and the same danger of forgery exists, we think, with reference to cancellations, interlineations, and alterations made in an holographic will, and requires the changes, alterations, and interlineations to be made wholly in the handwriting of the testator. Such rigid and strict requirement is neither, in our opinion, unreasonable nor unwise.

We are satisfied that the conclusion reached by the probate court is correct.

The judgment is affirmed.

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

Rehearing denied.