text:
    [S. F. No. 15901.
    In Bank.
    February 2, 1938.]
    HARRY ROSENBERG, Appellant, v. FRANK L. LAWRENCE et al., Respondents.

      Clyde C. Sherwood for Appellant.
    Perry Evans, Harold E. Haven and Hart H. North for Respondents.
   THE COURT.

Following a transfer of the above-entitled cause to this court after decision and judgment by the District Court of Appeal, First Appellate District, Division Two, this court is satisfied with the opinion rendered by that court and division, written by Mr. Associate Justice Spence, as follows, and adopts the same as and for the decision and opinion of this court:

“Plaintiff, an importer, filed his complaint for declaratory relief. The defendants Lawrence and Tuttle were attorneys at law and defendant Pitt was a custom house broker. Defendants filed separate answers and in addition thereto the defendant attorneys filed a cross-complaint. The cause was tried by the court sitting without a jury and judgment was entered in favor of defendants and cross-complainants as follows: 'That the defendant attorneys have and recover against plaintiff the sum of $1,348.60;’ that the refunds due upon duties paid by plaintiff to the United States Government belonged to the defendant attorneys ‘to the extent of the said recovery against the said plaintiff’; and that one-third of the amount recovered by the defendant attorneys belonged to the defendant broker. Plaintiff appeals from said judgment.
“The record on this appeal is not wholly satisfactory as the findings of fact, which are referred to in the briefs, are not included in the transcript. It is conceded by plaintiff, however, that the trial court made a finding that ‘all of the allegations of the answers of the defendants and of the cross-complainants are true’ and this admitted finding appears sufficient for the purposes of this discussion.
“The complaint alleged a controversy between the parties concerning the compensation claimed by the defendant attorneys for services rendered in connection with the recovery of certain refunds upon duties paid to the government upon the importations by plaintiff of cotton rags. In their cross-complaint defendant attorneys alleged that in 1930 they were employed by plaintiff as attorneys to prepare and file the necessary protests, to appear for plaintiff before the United States Custom Court and the Treasury Department and to do all things necessary and advisable to obtain refunds from the government upon the duties paid upon said importations. They further alleged that defendant attorneys entered upon ■ their employment and rendered all necessary services and had ultimately obtained stipulations for the entry of judgments against the government for refunds to plaintiff in the sum of $2,697.20. It was then alleged that the reasonable value of said services was the sum of $1,348.60, which sum plaintiff had refused to pay upon demand. There was ample evidence to sustain the trial court’s findings that said allegations were true and therefore the portion of the judgment awarding said sum to the defendant attorneys finds ample support.
“The parties however have devoted their briefs largely to the consideration of other points. It appeared from the evidence that the defendant broker had acted' as the custom house broker for plaintiff for many years; that when it became necessary to go into the United States Customs Court to attempt to recover their refunds, the defendant broker advised plaintiff that he could not handle the cases before said court and that it would be necessary to employ an attorney; that plaintiff authorized the defendant broker to do all things necessary for that purpose and said broker thereupon employed the defendant attorneys; that pursuant to a general understanding between said broker and said attorneys, all cases referred to said attorneys by said broker were to be handled by them on a 50 per cent contingent basis and the said broker was to receive 33 1/3 per cent of said 50 per cent; that plaintiff did not know who were employed as attorneys until several years later when the stipulations were finally obtained; that plaintiff had not theretofore been advised of the agreement between said broker and said attorneys regarding the fee to be charged the plaintiff or of the agreement for the broker’s participation therein. It further appeared from the evidence that a 50 per cent contingent fee was a reasonable and customary fee for handling of said cases but that in particular eases, a smaller fee was sometimes agreed upon.
“ The main points raised by plaintiff are based upon the theory that under the pleadings and evidence, no recovery could be had against plaintiff except upon an express contract of employment and that the judgment must be reversed in its entirety as the express contract was invalid. These points are all related to plaintiff’s first main point, which is stated as follows: ‘The contract of employment between the attorneys and the client is not binding upon the client and cannot be made the basis of an action for attorneys’ fees on the part of the attorneys, because it is illegal, void, and contrary to public policy. ’ In support of his contentions, plaintiff cites and relies upon Auerbach v. Curie, 119 App. Div. 175 [104 N. Y. Supp. 233]; Id., 126 App. Div. 836 [111 N. Y. Supp. 327]; Reilly v. Beekman, 24 Fed. (2d) 791; Alpers v. Hunt, 86 Cal. 78 [24 Pac. 846, 21 Am. St. Rep. 17, 9 L. R. A. 483]; 3 Cal. Jur. 689, sec. 89 and other authorities. We deem it unnecessary to discuss those points, for even assuming that the express contract was invalid because of the provision providing for payment of a portion of the fee to the broker, the attorneys were nevertheless entitled to recover upon a quantum meruit. (2 R. C. L. 1046.)
“We now come to a consideration of plaintiff’s contentions with respect to the second and third portions of the judgment as entered. The second portion reads as follows: ‘ And it is hereby further ordered, adjudged and decreed that all refunds due from the United States Government of duties paid by the said plaintiff upon the importations mentioned in the said complaint belong to said Lawrence & Tuttle as copartners as aforesaid, and they are entitled to receive the same, to the extent of the said recovery against the said plaintiff hereinabove mentioned, and said refunds shall be applied by the said Lawrence & Tuttle upon the said recovery, as received by them, until this judgment has been satisfied. ’ The third portion reads as follows: ‘And it is hereby further ordered, adjudged and decreed that one-third of all said sums received' by said Lawrence & Tuttle shall, upon such receipt, belong to said George H. Pitt, who shall thereupon become entitled to receive the same.’
“ Plaintiff contends that the trial court erred in including said second and third portions in the judgment herein and in our opinion this contention must be sustained. Even if there was a valid express contract for the payment to the attorneys of a contingent fee, it is conceded that such contract would not give rise to a lien upon or an interest in the judgment or the subject-matter of the litigation. (McGown v. Balzell, 72 Cal. App. 197 [236 Pac. 941]; Gage v. Atwater, 136 Cal. 170 [68 Pac. 581]; Hogan v. Black, 66 Cal. 41 [4 Pac. 943]; Mansfield v. Dorland, 2 Cal. 507.) But defendants attempt to justify these portions of the judgment upon the ground that the express contract was valid and that plaintiff having sought equitable relief (declaratory judgment) the door was open for the court to do equity’. This position is untenable. The refunds belonged to plaintiff and the declarations in the judgment to the contrary were not proper even in this action for equitable relief. While a court of equity may exercise broad powers in applying equitable remedies, it may not create new substantive rights under the guise of doing equity.”

The judgment is modified by striking therefrom the second and third portions thereof which are above set forth and as so modified, the judgment is affirmed. The parties will bear their own costs on this appeal.

dissenting opinion.

We dissent:

From the record herein, it appears that plaintiff is an importer; that defendant Pitt is a customs broker; and that defendants Lawrence & Tuttle are attorneys who specialize in the business of representing clients who are claimants for rebates or refunds on tariff charges or duties which theretofore have' been paid by them to the United States government. In the conduct of his business, plaintiff imported a large quantity of cotton rags upon which he paid a considerable amount of duty or tariff. In that transaction defendant Pitt acted as plaintiff’s customs broker. As the result of some research, the idea was conceived that the cotton rags were not properly subject to as large an amount of duty as had' been paid, and thereupon defendant Pitt was authorized by plaintiff to do all things necessary, including the hiring of an attorney, to attempt to obtain a rebate or “refund” with respect to such payment. To that end, in plaintiff’s behalf defendant Pitt employed defendants Lawrence & Tuttle on a contingent fee basis; that is to say, as far as plaintiff was informed, that to whatever extent a rebate might be recovered, defendants Lawrence & Tuttle should become entitled to retain for their own use 50 per cent thereof for the performance of their services in that regard, and that plaintiff should be entitled to the remainder of such rebate. But without the knowledge or the consent of plaintiff, it was further agreed between defendant Pitt on the one side and defendants Lawrence & Tuttle on the other, that of the fee which might be thus received by the latter, defendant Pitt would be paid one-third; which arrangement had the effect of reducing the contingent fee which actuálly was proposed to be received by Lawrence & Tuttle from 50 per cent to 33 1/3 per cent. During the pendency of the proceedings in the matter of attempting to recover such rebate, in a similar proceeding that had been instituted by a third person, in which neither plaintiff nor his attorneys herein, was or were respectively in any wise connected, a final ruling was made to the effect that cotton rags were not dutiable, with the result that, by subsequent stipulation of the interested parties, plaintiff herein became entitled to, and was awarded, a refund of the entire amount, of money which theretofore he had paid as a duty or tariff upon the importation of said cotton rags.

Upon the application of an elementary rule of agency, it becomes clear that by reason of the undisputed fact that at all times throughout the transaction defendant Pitt was acting as the agent of plaintiff, and that in the course of such agency, without the knowledge or the consent of plaintiff, he entered into an agreement with Lawrence & Tuttle to the effect that the amount of the fee which Lawrence & Tuttle might earn or become entitled to receive, would be divided or “split” between Lawrence & Tuttle on the one side, and Pitt on the other, was in fraud of plaintiff, was violative of the duty which Pitt owed to plaintiff, and was contrary to public policy. As a consequence of that situation, Pitt cannot be permitted to receive any part of such contemplated fee.

In the lower court the defendants Lawrence & Tuttle made no claim against plaintiff on the basis of the fact that theretofore they had rendered services to him in accordance with the provisions of a contingent fee contract that theretofore had been entered into between the respective parties thereto, but instead thereof, the defendants Lawrence & Tuttle relied upon the fact alleged both in their answer and in their cross-complaint to the effect that they had been employed by plaintiff and that they had performed certain services for him of the reasonable value of a specified sum of money, equal to 50 per cent of the amount of the refund, and that plaintiff had neglected and refused to pay them for such services. And that was the basis on which judgment was rendered by the lower court in favor of the said defendants.

In accordance with the facts, if for the reasons hereinbefore indicated, it may be assumed that the contingent fee contract was void and that it was not relied upon by the defendants Lawrence & Tuttle as affording a legal foundation for the recovery of a judgment against plaintiff, the determinative question herein relates to whether, the entire situation eonsidered, the defendants Lawrence & Tuttle are entitled to be compensated for the performance of services by them for plaintiff on the basis of the reasonable value thereof.

In 2 R. C. L. 1046, and in 5 Am. Jur., page 367, the various rules that relate to the rights of the respective parties, especially in connection with an asserted right to be compensated for the reasonable value of services that have been performed in pursuance of an illegal contract, are succinctly set forth. And in connection with circumstances that are analogous to those herein presented, the authorities therein cited appear to be to the effect that although a contract that has been entered into between an attorney and his client for the performance of services by the former for the latter may be void because of lack of power in one or both of the parties thereto to make it, or because of some irregularity in its execution, or the like, nevertheless if the contract does not violate public policy, “and is not in any way tainted with immorality or illegality, . . . , the attorney may recover upon a quantum meruit for the reasonable value” of the services that have been performed by him. (5 Am. Jur., p. 367.)

In the light of that principle, and in order that the instant agreement may be tested thereby, it may be advisable that the subject-matter as well as some of the elements of the contract be given consideration. Intrinsically, it involved the proposed recovery of money which it was claimed theretofore had been wrongfully exacted from and paid by plaintiff. In that regard, as embracing a matter of legal right, no fair-minded person could property complain. On its face, in substance, the contract was that one of its parties should perform certain services, for which in effect, contingent upon the collection of any amount of money as rebate, the other agreed to pay a specified percentage of any money that might be thus collected. Nor in accord with well-established rules of law in this jurisdiction, did the fact that the stipulated compensation which was to be paid to the attorneys for services proposed to be rendered by them in their efforts to recover such money depended upon the fact of successful outcome of the matter, or upon the measure of such success, offend our standard of accepted good morals. As a matter of law, it therefore is inconceivable that either the subject-matter of the contract or the consideration to be performed or rendered by either of its parties, respectively, could have been successfully questioned from the standpoint of whether it was in violation of the moral code or so-called public policy. However, the money consideration that was intended to be paid by plaintiff was just as great an element in the fundamentals of the contract as was the matter of specified services that were proposed to be rendered by the defendants. Each was the “quid pro quo” of the other; and by the respective parties, each of such considerations was assumed to be the equal of the other. Assumedly, and for aught that appears, any diminution in pecuniary consideration that was to be rendered by plaintiff would have been subject to objection by the defendants, just as plaintiff would have been justified in complaining had the defendants failed in their duty to render to plaintiff honest, efficient and faithful service. Dependent entirely upon such success, if any, as might be attained, plaintiff was obligated to pay a fixed percentage of compensation;—no more, no less. Plaintiff was financially interested in obtaining the services of the defendants for the least possible percentage of the rebate or the refund that might be recovered. Outwardly, and avowedly, as between plaintiff and the defendants Lawrence & Tuttle, assumedly that percentage was fixed at 50 per cent; —when as a matter of fact, in accordance with ‘ arrangements” that had been made between the said defendants and plaintiff's trusted agent, the said defendants were willing and agreed to perform their services for 33 1/3 per cent. In other words, from a legal standpoint, defendants Lawrence & Tuttle induced plaintiff’s agent to represent to plaintiff that he would be obligated to pay to the said defendants 50 per cent of any amount that might be recovered; when in truth all that the said defendants demanded, and all that was to be paid to them individually was 33 1/3 per cent of such amount. In contemplation of the law, the proposed conduct of plaintiff’s agent, in which he was knowingly aided and abetted by the said defendants was nothing less than legal fraud; and in its contemplated consummation one of such parties was equally guilty with the other. Otherwise stated, as far as plaintiff was concerned, in the element of consideration of the contract, in effect it was proposed by the said defendants that plaintiff be deceived and cheated out of a considerable sum of money, and that the said defendants would collaborate with plaintiff’s agent in bringing about that untoward result. Furthermore, although the said defendants were not attorneys authorized to practice their profession as such within the courts of the state of California, nevertheless they assumed to act in that capacity inasmuch as they were duly admitted to practice and actually were practicing as customs attorneys. As such, in representing clients, and especially plaintiff herein, a fiduciary relationship was created and existent, which required the said defendants at all times to exercise the highest good faith toward plaintiff. That by concealment of material facts from plaintiff, thereby deceiving him with regard to the fee which he would be required to pay, and particularly in withholding from him the details of the “arrangement” that- had been entered into between them and Pitt, the said defendants disregarded and violated the duty which in good morals they owed to plaintiff in the premises.

In the case of Alpers v. Hunt, 86 Cal. 78 [24 Pac. 846, 21 Am. St. Rep. 17, 9 L. R. A. 493], wherein was involved a situation similar to that which herein appears, the question of the duty which an attorney owes to his client, particularly with reference to the impropriety of “splitting” a fee with a layman, was given thorough and painstaking consideration. As far as the point here at issue is concerned, the syllabus to the case correctly indicates the ruling that was therein made as follows: “A contract between a third person not an attorney and an attorney and counsellor at law, that he will procure the attorney’s employment by a litigant, and that in consideration of such procurement he is to have from the attorney so employed one-third part of whatever remuneration the latter receives for his services from the litigant, is contrary to public policy and invalid.”

Likewise in the case of Reilly v. Beekman, 24 Fed. (2d) 791, which also closely resembled the instant case in its principal facts, and wherein the various pertinent authorities were given consideration, it was held that a contract such as that which was entered into between the parties to the instant matter was “against public policy”.

And in the case of Auerbach v. Curie, 119 App. Div. 175 [104 N. Y. Supp. 233], in which the foundational facts were strikingly similar to those here presented, the conclusion was the same. In substance, that was a customs ease in which a broker instituted an action against an attorney to recover a judgment for the broker’s asserted share of a fee that had been paid to the attorney for recovering a refund of duty that had been paid by the broker’s principal. In ruling on the question here under consideration, in part it was there said: The plaintiff was the agent of Simon Auerbach & Co., and it was a part of his obligation toward his principals to prevent, if he could, the payment by them of excess duties on their imports. If he assumed to employ an attorney for them, or to procure a contract from them for such employment, to recover the duties improperly paid, he could not in fairness to Simon Auerbach & Co. and in good morals, without their knowledge and consent, act as agent for the attorney also in procuring a contract from them to him, and make an agreement with the attorney, who knew he was so acting, for the payment to himself of a part of the fee to be charged. It was his duty to obtain the services of such attorney at as reasonable a price as he might be able, without any profit to himself. Any secret agreement which he might make for the sharing of the attorney’s fee was, not only a breach of trust against his principals, but against good morals and public policy, and a contract which the law will not enforce. . . . ‘ The contract itself is void as against public policy and good morals, and both parties thereto being in pcuri delicto, the law will leave them as it finds them’.” To the same legal effect, see: Wolfe et al. v. International Reinsurance Corp., 73 Fed. (2d) 267; Deakin v. Scheuer, 182 Wis. 234 [196 N. W. 222]; Rice v. Wood, 113 Mass. 133 [18 Am. Rep. 459]; Rabinowitz et al. v. Pizer, 108 N. Y. Supp. 994; Nekarda v. Presberger, 123 App. Div. 418 [107 N. Y. Supp. 897]; Bollman v. Loomis, 41 Conn. 581; Lynch v. Fallon, 11 R. I. 311 [23 Am. Rep. 458]; Gray v. Pankey, 211 Ala. 539 [100 So. 880]; Everhart v. Searle, 71 Pa. 256; Rice v. Davis, 136 Pa. 439 [20 Atl. 513, 20 Am. St. Rep. 931]; Raisin v. Clark, 41 Md. 158 [20 Am. Rep. 66].

From the foregoing considerations, it must result as in effect is negatively or by implication expressed in 2 R. C. L., page 1046, and 5 Am. Jur., page 367, to which reference hereinbefore has been had, that even though in itself, the principal subject-matter of the instant contract was legally unobjectionable, since it also has been made to appear that in at least one of its fundamentals it was violative of public policy, the entire contract became tainted and contaminated; —from which situation its illegality inevitably should be decreed.

The illegality of the instant contract being thus established, the question of the right of defendants Lawrence & Tuttle to recover from plaintiff as for the reasonable value of the services that were rendered by the said defendants to plaintiff, remains for consideration.

At the outset, it should be noted in this regard that the authorities are not entirely harmonious one with the other or the others. Reverting to the text in 2 R. C. L. 1046, it may be noted that after directing attention to “an obvious distinction bearing upon the right of an attorney to recover on a quantum meruit for services rendered pursuant to an illegal contract, between a case where the contract is illegal because the services agreed to be rendered in the performance thereof are illegal, and a case where the contract is illegal only because of some improper provision relating to the mode of compensation, or an illegal stipulation against the right of the client to compromise the claim without the consent of the attorney”;—the author of the commentary continues as follows: “It is apparent, in the first case, that every objection to permitting a recovery upon an express contract applies with equal force to a recovery upon a quantum meruit. And this is true even when the services are not intrinsically illegal, but are improper and contrary to public policy because of the circumstances under which they are rendered. ’ ’

The same principle, with appropriate comments thereon may be noticed in the case of Roller v. Murray, 112 Va. 780 [72 S. E. 665, Ann. Cas. 1913B, 1088, 38 L. R. A. (N. S.) 1202], wherein it was held that a contract whereby an attorney agreed to undertake and carry on litigation at his own risk and without cost to his client for a share of the recovery was contrary to public policy and void and that no recovery could be had “on a quantum meruit” because the law will not aid either party to an illegal agreement. It leaves the parties where it finds them. In rendering its decision therein, in part, the court said: “The general rule is that where an agreement is treated as void merely because it is not enforceable, as in cases under the statute of frauds or of parol agreements where the contract is not in writing and money is paid or services are rendered under it by one party and the other avoids it, there can be a recovery upon an implied assumpsit for the money paid or the value of the services rendered. In such cases there has been the mere omission of a legal formality, and while by the terms of the statute he must lose the benefit of his contract, yet, there being nothing illegal or immoral in it, he is entitled to be compensated for the services rendered under it.” The following pertinent language also appears in the opinion: “A champ ertous agreement being unlawful, it would seem clear that compensation for services rendered under it could not be recovered upon a quantum meruit, any more than upon the agreement itself, without overturning the very foundations upon which the rule refusing to enforce unlawful agreements is based. Of what value would the rule be, if the courts permit that to be done by indirection which they refuse to allow to be done directly 1 Why say to the attorney, ‘You shall not recover upon the champ ertous agreement the agreed value of the services rendered by you,, but you may recover upon an implied contract (which in fact never existed) the value of such services’, which in this case is claimed and shown to be the same as the agreement provided for? How would any such result uphold the policy of the law, deter others from entering into similar contracts, or promote the public good? To permit a recovery upon a quantum meruit, instead of discouraging, would encourage, the making of such contracts; for, if the client kept and performed his unlawful agreement, the attorney would get the benefit of it, and, if he did not, the attorney would suffer no loss, since he could recover on the quantum meruit all that his services were worth. Any process of reasoning which leads to such a result we think must be unsound. ’ ’

To the same effect, see Reilly v. Beekman, supra; Mazureau v. Morgan, 25 La. Ann. 281, Butler v. Legro, 62 N. H. 350 [13 Am. St. Rep,. 573], Bowman v. Phillips, 41 Kan. 364 [21 Pac. 230, 13 Am. St. Rep. 292, 3 L. R. A. 631], Moreland v. Devenney, 72 Kan. 471 [83 Pac. 1097], and Barngrover v. Pettigrew, 128 Iowa, 533 [104 N. W. 904, 111 Am. St. Rep. 206, 2 L. R. A. (N. S.) 260] ; also, analogously, authorities cited in 85 A. L. R. 1368 et seq.

And in principle, the rulings by the appellate tribunals of this state are in accord: Bank of Orland v. Harlan, 188 Cal. 413, 421 [206 Pac. 75], Maryland Casualty Co. v. Fidelity etc. Co., 71 Cal App. 492 [236 Pac. 210], and Pacific Elec. Ry. Co. v. Bonding etc. Ins. Co., 55 Cal. App. 704, 707 [204 Pac. 262].

It follows that the judgment should be reversed.

Houser, J., Seawell, J., and Curtis, J., dissented.


source: Caselaw Access Project

author: EDMONDS, J.

license: Public Domain

text:
    [L. A. No. 15483.
    In Bank.
    February 3, 1938.]
    BARKER BROS., INCORPORATED (a Corporation), Appellant, v. THE CITY OF LOS ANGELES (a Municipal Corporation), Respondent.

      Elvon Musick, Howard Burrell, E. Perry Churchill, Gwyn S. Redwine, Clayton O. Straub and James E. Bednar for Appellant.
    Ray L. Chesebro, City Attorney, Frederick von Schrader, Assistant City Attorney, and C. P. Harrell, Jr., William Christenson and Bourke Jones, Deputies City Attorney, for Respondent.
   EDMONDS, J.

In September, 1934, agents of the City of Los Angeles informed Barker Bros., the owner of a large retail establishment, that, pursuant to the terms of a general occupational license tax ordinance, it must procure a license for carrying on its business for the six months’ period ending at the close of the following December. Thereafter Barker Bros, procured the license by paying the amount of tax demanded, accompanying the payment with a written notice of protest upon the ground that it was not subject to the ordinance. It later brought suit to recover the amount of tax paid and has appealed from a judgment in favor of the city.

Under the terms of the ordinance in controversy “it shall be unlawful for any person ... to commence or carry on any trade, calling, profession or occupation in this ordinance specified, in the City of Los Angeles, without first having procured a license so to do . . . ” Section 128 (c) requires a license fee from “every person, firm or corporation conducting or carrying on an3 store which is commonly known as a department store or any store where a variety of goods, wares and merchandise are arranged in or offered for sale from several departments or sections”. The gross annual receipts of such a store determines the amount of the fee which must be paid. The city claims that the business of Barker Bros, comes within the provisions of this section. The appellant contends that it does not conduct a store of the kind described, and also that the ordinance, in so far as it relates to department stores or stores selling merchandise from departments, is unconstitutional for several different reasons. It is also said to violate the commerce clause of the federal Constitution.

The trial court found “that at all times during the year 1934, the plaintiff was engaged in the business of conducting, managing and carrying on a department store where a large variety of goods, wares and merchandise were sold and offered for sale from approximately thirty-nine different departments”. The evidence upon which this finding was made is practically undisputed. It shows that in 1934 the principal business of the appellant consisted in the sale of furniture and house furnishings but that it also sold jewelry and silverware, children’s wear, china and glassware, blankets, pianos, kitchenware, small electric equipment, candy, toys, lingerie, hosiery, and many other kinds of merchandise. However, at least 93 per cent, in amount, of its total gross sales for the year were of household furniture or furnishings, and the appellant contends that in only two of its departments were goods sold which cannot be classed as such.

The ordinance in controversy requires a license for any department store or any store where a variety of goods, wares and merchandise are offered for sale from several departments or sections. The word “or” is ordinarily used as a disjunctive “that marks an alternative generally corresponding to ‘either’ as ‘either this or that’ ”. (46 C. J. 1124, sec. 1; Dodd v. Independence Stove & Furnace Co., 330 Mo. 662 [51 S. W. (2d) 114].) As so understood the ordinance brings within the scope of its provisions both department stores and those which may not be “commonly known” as such but offer their goods for sale from several departments or sections. It is, therefore, necessary to consider whether either of these classifications may be made by the city without violating constitutional principles.

Wide discretion is given to legislative bodies in the imposition of taxes and the right to classify for such purposes is of wide range and flexibility. (Bueneman v. City of Santa Barbara, 8 Cal. (2d) 405 [65 Pac. (2d) 884, 109 A. L. R 895].) “The equal protection clause does not detract from the right of the State justly 1o exert its taxing power or prevent it from adjusting its legislation to differences in situation or forbid classification in that connection, ‘but it does require that the classification be not arbitrary but based on a real and substantial difference having a reasonable relation to the subject of the particular legislation ’. (Power Mfg. Co. v. Saunders, 274 U. S. 490, 493 [47 Sup. Ct. 678, 71 L. Ed. 1165].) ” (Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389, 400 [48 Sup. Ct. 553, 72 L. Ed. 927]; Stebbins v. Riley, 268 U. S. 137 [45 Sup. Ct. 424, 69 L. Ed. 884, 44 A. L. R 1454]; Royster Guano Co. v. Virginia, 253 U. S. 412 [40 Sup. Ct. 560, 64 L. Ed. 989].) While the state may classify broadly the subjects of taxation, it must do so on a rational basis so that all persons similarly circumstanced shall be treated alike. (Louisville Gas Co. v. Coleman, 277 U. S. 32 [48 Sup. Ct. 423, 72 L. Ed. 770]; Ohio Oil Co. v. Conway, 281 U. S. 146 [50 Sup. Ct. 310, 74 L. Ed. 775].) These fundamental principles are expressly recognized in the charter of the City of Los Angeles, which provides: “No discrimination in the amount of license tax shall be made between persons engaged in the same business other than by proportioning the tax to the amount of business done.” (Art. I, sec. 3.)

It is not necessary for the validity of a general occupational license tax ordinance that the legislative body include every kind of a business or occupation within its provisions if the discrimination is based upon some reasonable distinction. (State Board of Tax Commrs. v. Jackson, 283 U. S. 527 [51 Sup. Ct. 540, 75 L. Ed. 1248, 73 A. L. R 1464, 75 A. L. R 1536]; Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232 [10 Sup. Ct. 533, 33 L. Ed. 892].) It is equally important that the classification be defined with reasonable certainty. But in the ordinance here considered the lawmakers have given no definition of a department store by which one may know whether a particular business is included within the terms of the ordinance. How “commonly” must a department store be known as such to subject it to a tax? Is the test whether a store sells ready-to-wear garments and yardage, as some witnesses stated? Or does the classification depend upon the number of departments ? Does it rest upon the opinion of other merchants in the community, or of customers of the store, or of people generally? Or as the appellant claims is such a store one which handles a general line of merchandise without specializing in any particular kind? The term “commonly known as a department store” cannot be applied with any certainty to a particular business and is too indefinite to be used as a classification for the purpose of taxation.

The ordinance requires no license for the sale of many kinds of merchandise handled by the appellant in 1934 except as these articles might be included among those sold by a store “where a variety of goods . . . are arranged in or offered for sale from several departments or sections”. Furniture, jewelry, children’s wear, china ware, and household goods may be mentioned as examples. If the owner of the furniture store keeps his stock in helter-skelter disorder he requires no license; if he arranges it" by “ departments or sections” he must pay a tax. If he sells a “variety” of household goods or china ware from a general stock he escapes taxation; if, however, he offers it for sale grouped according to kind, he is then carrying on a business subject to the ordinance. Certainly such classification, so far as the evidence presented in this case shows, is based upon no reasonable distinction. Nowadays, almost every store presents its merchandise in departments or sections and an owner who uses these modern merchandising methods of arrangement and display may not be required to pay a tax while his less progressive neighbor, selling the same articles, is allowed to go on his unsystematic way without being subjected to it. Laws imposing taxes are in invitum, and are to be strictly construed in favor of the taxpayer. (Uhl v. Badaracco, 199 Cal. 270 [248 Pac. 917]; In re Dees, 46 Cal. App. 656 [189 Pac. 1050]; United States v. Merriam, 263 U. S. 179 [44 Sup. Ct. 69, 68 L. Ed. 240, 29 A. L. R. 1547]; Gould v. Gould, 245 U. S. 151 [38 Sup. Ct. 53, 62 L. Ed. 211].)

The City of Los Angeles relies strongly upon State Board of Tax Commrs. v. Jackson, supra, and Liggett Co. v. Lee, 288 U. S. 517 [53 Sup. Ct. 481, 77 L. Ed. 929, 85 A. L. R. 699], to sustain the validity of the ordinance. In the former case the court sustained a statute taxing chain stores, but it pointed out that “ the appellants produced evidence to prove that there are many points of difference between chain stores and independently owned units” and enumerated them. It also said: “The record shows that the chain store has many .features and advantages which definitely distinguish it from the individual store dealing in the same commodities.” In the Liggett case the court held that a statute requiring a license upon retail stores and fixing a tax based upon the number of stores in one ownership was invalid because there was no reasonable basis for such classification. In referring to the decision in the Jackson case the court said that it was based “upon the ultimate fact of common knowledge, illustrated and emphasized by the evidence, that the conduct of a chain of stores constitutes a form and method of merchandising quite apart from that adapted to the practice of the ordinary individually operated small store or department store”. In this case the City of Los Angeles made no attempt to show that there is any fundamental difference between a department store’s method of doing business and that followed by an ordinary retail store, a furniture store for example. There may be such a distinction as would support a separate classification of such stores as the basis for taxation. But there is neither adequate definition of the classification in section 128 (c) of the ordinance in question, nor evidence that it is based upon any factors which would furnish a reasonable ground for it. For these reasons, section 128 (c) of the ordinance violates the provisions of the fourteenth article of the amendments to the Constitution of the United States and also article I of the Constitution of California.

However, the appellant cannot escape payment of the license tax imposed upon stores selling the particular articles or kinds of merchandise enumerated in the ordinance. Its liability for a tax will depend upon'whether it sold such merchandise, and must be based upon the gross amount received therefrom. But in any computation of the amount of its gross sales the appellant may not make any deduction for goods shipped out of the state of California. The ordinance lays a tax upon the occupation or business, not upon particular sales. The volume of gross business fixes the amount of tax to be paid. Such a tax places no direct burden on commerce in the goods sold. All taxation has some incidental and indirect effect upon interstate commerce, but an excise tax which has only such remote effect is valid. (American Mfg. Co. v. City of St. Louis, 250 U. S. 459 [39 Sup. Ct. 522, 63 L. Ed. 1084].) “The turning point of these decisions is, whether in its incidence the tax affects interstate commerce so directly and immediately as to amount to a genuine and substantial regulation of, or restraint upon it, or whether it affects it only incidentally or remotely so that the tax is not in reality a burden, although in form it may touch and in fact distantly affect it.” (Hump Hairpin Co. v. Emmerson, 258 U. S. 290, 295 [42 Sup. Ct. 305, 66 L. Ed. 622].)

Under the circumstances shown in this case the payment made by the appellant was not a voluntary one. The ordinance gives the city the right to sue for the license tax and also makes each day’s violation of it a misdemeanor. Payment of the amount of the tax demanded by the agents of the city was, therefore, involuntary and made under pressure of the law’s duress. (Vitale v. City of Los Angeles, 13 Cal. App. (2d) 704 [57 Pac. (2d) 993]; Home Tel. etc. Co. v. City of Los Angeles, 40 Cal. App. 492 [181 Pac. 100].)

The judgment is reversed and the cause remanded to the superior court for proceedings consistent with this opinion.

Waste, C. J., Seawell, J., Curtis, J., and Nourse, J., pro tem., concurred.

Shenk, J., and Langdon, J., dissented.

Rehearing denied. Langdon, J., and Shenk, J., voted for a rehearing.


author: HOUSER, J.

text:
    [Crim. No. 4140.
    In Bank.
    February 4, 1938.]
    THE PEOPLE, Respondent, v. HARRISON WELLS, Appellant.

      Wm. M. MacMillan for Appellant.
    U. S. Webb, Attorney-General, and Albert F. Zangerle, Deputy Attorney-General, for Respondent.
   HOUSER, J.

Although not in complete harmony with the testimony that was given by each of the several “eye-witnesses ’ ’ to the important incidents which preceded and led to the death of one Price at the hands of defendant, an examination of the transcript of the evidence that was adduced on the trial of the action warrants the conclusion that the jury was justified in its implied belief that the following facts had been established, to wit:

So-called “Negro Quarters” are situated in a “clearing” that lies about three-fourths of a mile from the town of Quincy. Apparently the “quarters” consist of two rows of small houses or cabins, in size about fifteen by twenty feet, one row being opposite the other. Number 13, of one of such rows, was occupied by defendant and his wife. A man named Bullock with his wife, lived in number 11, which was separated from number 13 by a distance of about sixty-eight and one-half feet, within which intervening space one other cabin, number 12, was located. At approximately 7:30 o’clock P. M. on a day in the latter part of June, while it was “first dusk”, at a point near the rear of Bullock’s cabin (number 11), defendant accosted Price in a friendly manner and then and there in the presence of Bullock asked Price to repay to defendant the sum of one dollar which he asserted that Price owed to him. To that suggestion, Price responded that theretofore he had paid that amount to the defendant and urged defendant to go with him to see a Mrs. Smith, by whom Price declared that he could “prove” the correctness of that statement. Defendant declined and refused to be thus convinced of his asserted error with reference to his claim on Price. Although aside from the fact that each told the other that he was “crazy”, neither defendant nor Price “spoke a cross word”. Immediately following that “quarrel” defendant went to his cabin (number 13) and Price accompanied Bullock to the front of the cabin that was occupied by the latter (number 11), where they found Mrs. Bullock seated upon a bench and upon which both Price and Bullock also thereupon sat. Within two or three minutes (or possibly three or four minutes) next ensuing, Price arose and went to one comer of the cabin that was occupied by defendant, where in a listening attitude he remained for a space of three or four minutes; thereupon he entered defendant’s cabin. A few minutes later, upon emerging therefrom he carried an unloaded rifle that was the property of defendant. Thereupon he returned to the seat that theretofore had been occupied by him on the bench that was located in front of Bullock’s cabin. At that time and place Bullock, his wife and another woman (Price’s housekeeper) were present. Within “quite a few minutes” thereafter, defendant’s wife joined those who were thus assembled and then and there asked Price to give to her not only the dollar which defendant had asserted that Price owed to him, but also defendant’s rifle whielj Price had retained in his possession. To that request Price replied, “I don’t owe Wells (defendant) no dollar; I paid the dollar. I ain’t going to give you the gun; I will keep the gun”. And as further was stated by the witness who gave that testimony, “While she was prevailing with Price for the gun Mr. Wells (defendant) come out and yelled ‘Look out!’ The gun (in the hands of defendant) went off when I got off the bench . . . By the time I got three or four feet from the back end of the house he made the second shot . . . By the time she (Bullock’s wife) got in (the rear door of the cabin) and I fastened the door the third shot went off”.

With reference to the circumstances which resulted in the fact that Price had possession of a rifle that was the property of defendant, Price’s housekeeper testified in substance that after Price had left the front of Bullock’s cabin, she joined Price and as they were about to pass in front of that cabin "they” saw defendant inside his cabin with the rifle in his hand, apparently on his way through the front door entrance of his cabin to the outside thereof; that thereupon Price said "he couldn’t out run that” and went into defendant’s cabin, "grabbed hold” of the rifle that defendant held in his hands, and after a struggle with defendant, succeeded in wresting it from his possession; that in the course of that struggle, Price said to defendant "Why do you want to hurt me. I don’t want to hurt you”; that thereupon Price "come on out and told Wells ‘Why act like that?' ”; and that after Price had gone back to the front of Bullock’s cabin, in substance he said to Mrs. Bullock, "Don't run home, girl. I am not going to hurt anybody.” He said, "I am not going to hurt nobody and I don’t want nobody to hurt me”. And that in answer to the request made of Price by Mrs. Wells two or three minutes afterward, that he give defendant’s rifle to her, Price said, "I will not give it to you; I want no trouble; I don’t want to hurt Wells. I don’t want Wells to hurt me; I am not going to hurt him.”

Defendant was not sworn as a witness; but in his behalf, with reference to the incident in which it appeared that Price wrested the rifle from defendant, the wife of defendant testified:

"When Wells walked in (after the quarrel) Stella Vaughn (Price’s housekeeper) and myself was sitting in the kitchen talking and he went on through to the bedroom; so after he was in there awhile I got up and went in—while talking to Estella. When I was in there talking to Wells Stella says ‘Net, I’m going, I will be back', and shortly after that Price walked in the back door. Someone knocked at the back door; I said ‘who is that’. He didn’t say anything, so Wells said ‘don’t come in here Price, don’t come in here.’ Then Price went on around to the front door and I heard him and then I pulled the door open and I said ‘Price, don’t come in here, don’t come in here Price’. Wells said ‘don't come in here’. When he got to the middle door to come into the bedroom Wells said ‘didn’t I tell you not to come in here’. When he did that he jumped and Wells got the gun. Shoved Wells on the bed and they were fussing in there about five minutes before Stella came in. When he taken the gun he walked out and Stella walked out behind him and I was behind Estella. I walked out and told Wells ‘I will get the gun’ and while I went out to get the gun and while talking to Price to give me the gun, while standing in front of him, and Price said ‘No, Home girl, I will not give it to you.’ I said ‘give me the gun’; he said: ‘I will not give it to you.' I said ‘don’t you owe Wells a dollar’; he says ‘no’, and at that time Wells said ‘look out’. Q. Then there was a shot fired? A. Then there was a shot fired.”

It also appears that after defendant had fired the first shot from his shotgun, and all the persons, including Price, that immediately theretofore had been in front of Bullock’s cabin, in an attempt to escape injury, had run each in a direction different from that which was taken by either of the others, defendant followed Price and fired two additional shots from the shotgun. Within a few minutes thereafter Price was found dead, with defendant’s unloaded riñe clutched in his right hand. It is unquestioned that his death was the result of his having been shot by defendant.

On such evidence, without making any recommendation regarding the punishment that should be inflicted upon the defendant, the jury returned its verdict of ‘ ‘ guilty of murder in the first degree”. It is from the ensuing judgment, as well as from an order by which defendant’s motion for a new trial was denied, also from an order by which was denied defendant’s motion that the judgment be modified by reducing the degree of the crime either to murder in the second degree, or to the crime of manslaughter, that the instant appeal has been taken.

Citing People v. Howard, 211 Cal. 322, 328, 329 [295 Pac. 333, 71 A. L. R. 1385], as authority, appellant contends that although it be conceded that defendant killed Price, nevertheless ‘‘that no express malice aforethought was shown”. Consideration of the text of the authority to which appellant has referred discloses the fact that it consists of the substance of sections 187, 188 and 189 of the Penal Code, together with a condensation of respective rulings that heretofore have been made either by this court or by the District Court of Appeal in each of several cases, to wit, People v. Bellon, 180 Cal. 706 [182 Pac. 420], People v. Knapp, 71 Cal. 1 [11 Pac. 793], and People v. Ford, 85 Cal. App. 258 [258 Pac. 1111], which, as far as herein is pertinent, are to the effect that ‘‘When 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 in such a. case the verdict should be murder of the second degree, and not murder of the first degree".

By the terms of the several statutes to which reference hereinbefore lias been had, it is obvious that whenever it has been established that with malice aforethought a human being has been unlawfully deprived of his life, the crime of murder has been committed; and that the necessary element of malice "is manifested" when it appears that the killing was the result of "a deliberate intention unlawfully to take away the life of a fellow-creature". And in substance the pertinent provisions of section 1105, Penal Code, are to the effect that when the commission of a homicide has been established, "the burden of proving circumstances of mitigation, or that justify or excuse it", devolves upon the defendant. Or as is amplified in the case of People v. Jones, 160 Cal. 358, 370 [117 Pac. 176], "In the ease of murder the law has made provision peculiar to the crime. To the crime of murder malice is an essential. (Pen. Code, secs. 187, 188), but by section 1105 of the Penal Code, when the homicide by the defendant has been proved the murder is established and, of course, to establish murder the malice must be established. We have thus, in our law, the peculiar situation touching murder that proof of the homicide alone establishes the crime with its necessary ingredient of malice and immediately the burden is transferred to the defendant of proving circumstances in mitigation to lessen the degree of the crime or in justification or excuse to show that no crime has been committed. Thus, the effect of section 187 and of section 1105 of the Penal Code, construed together, is as though the law had expressly declared that while murder is the unlawful killing of a human being with malice aforethought, every killing is murder unless the defendant proves the contrary . . . In New York, ... it is held that there is never a presumption of malice in the case of a homicide and that an actual intent to kill must be shown affirmatively, whereas, by virtue of section 1105 of our code, the existence of malice is presumptively proved by proof of the killing. ... " .

In each of the authorities to which reference herein-before has been had, it may be noted that the declaration by the court to the effect that in the circumstances therein assumed to exist, the crime would amount to second degree murder only, is dependent upon the fact that an unlawful killing and “nothing further” has been shown. In the instant ease, much more than the isolated fact that Price was unlawfully killed by defendant was thoroughly established; and considering the law, together with the evidence that hereinbefore has been summarized, it would seem clear that the conclusion of express malice of defendant was fairly deducible.

As has been suggested by appellant, it may be conceded that if facts were presented by the prosecution which tended to show “circumstances of mitigation” (sec. 1105, Pen. Code), in order that defendant might have become entitled to benefit by them, he was not required to again place the same facts in evidence. However, the assumed facts, that a few minutes preceding the instant when defendant shot Price, the two men not only had “quarreled” one with the other, but also that shortly thereafter, with the apparent belief on the part of Price that with the use of a rifle defendant intended to commit some sort of a violent act upon the person of Price, the latter thereupon unlawfully had entered the home of defendant, had assaulted him, besides which had wrested the rifle from his possession, and subsequently had refused to return defendant’s property to him, were not necessarily either “circumstances of mitigation” or facts which would conclusively “justify or excuse” the commission of the offense. One of the provisions of section 192 of the Penal Code is to the effect that if “upon a sudden quarrel or heat of passion” a human being should be unlawfully killed, “without malice”, the offense thus committed will be manslaughter; otherwise, in the absence in the mind of the defendant of a deliberate and clear intent to take life, or that which has been termed as “pre-existing reflection” or “deliberate premeditation” to do so, the homicide that may be committed by him may be reduced to murder of the second degree. In other words, with respect to whether the crime was that of manslaughter only, the legal designation of the offense depends largely, if not entirely, upon the reasonable and justifiable state of mind that was present in the offender with reference to his act, either at the instant when it was committed, or so shortly before that time that reason shall not have had time “to resume its empire”; that is to say, that before the offense properly may be classed as manslaughter, it should appear that after the “heat of passion” was reasonably and justifiedly engendered, “hot blood had not had time to cool” before the fatal act was committed. Likewise, in order that a conclusion that the offense constituted a murder of the second degree might be sustainable, it should appear with reasonable certainty that immediately preceding the execution of his fatal act the killer had not formed a deliberate intent to take the life of the person whom he thereafter killed, or that such act was not the result of “pre-existing reflection” or “deliberate premeditation”.

An examination of the instructions that were given by the trial judge to the jury discloses the fact that the so-called “stock instruction” that since the decision was rendered by this court in the case of People v. Iams, 57 Cal. 115, customarily has been given in murder cases in this state, was very closely, if not literally followed. A part of the instruction that was given herein was as follows:

“Murder is defined to be the unlawful killing of a human being with malice aforethought. The word malice imports a wish to vex, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or by presumption of law. 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. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
“All murder which is perpetrated by means of poison, lying in wait, torture, or by any other kind of wilful, deliberate, and premeditated killing, is murder of the first degree, and all other kinds of murder are of the second degree.
“The difference between murder of the first degree and murder of the second degree is: That in murder of the first degree the killing must be deliberate and premeditated, while in murder of the second degree the killing is not deliberate and premeditated. In the one case there is a deliberate, premeditated, preconceived design, though it may have been formed in the mind immediately before the mortal wound was given to take life. In the other case there is no deliberate, premeditated, preconceived design to kill. In both, however, the killing must have been unlawful and accomplished with malice.
“There may be no appreciable space of time between the intention to kill and the act of killing—they may be as instantaneous as successive thoughts of the mind. It is only-necessary that the act of killing be preceded by, and the result of a concurrence of will, deliberation, and premeditation on the part of the slayer; and if such is the case the killing is murder of the first degree, no matter how rapidly these acts of the mind succeed each other or how quickly they may be followed by the act of killing.
“Under the Information in this case the defendant may, if the evidence warrants it, be convicted of manslaughter, which is defined by our statute to be the unlawful killing of a human being without malice. It is of two kinds: first, voluntary, upon a sudden quarrel or heat of passion; and, second—involuntary, in the commission of an unlawful act which might produce death in an unlawful manner and without due caution and circumspection.
“To reduce a felonious homicide from the grade of murder to that of manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of such a character as would be naturally calculated to excite and arouse the passions, and it must appear that the party acted upon the smart of sudden passion and resentment.
“If, however, the provocation was of a slight and trifling character, of such a nature as would not be calculated to arouse passion, or if sufficient time had elapsed between the provocation and the fatal shot for passion to subside and reason to resume its empire, the offense will not be mitigated, but the slayer will be guilty of murder . . .
“ ... In this case if you find the defendant killed the deceased, then the burden of proving circumstances of mitigation or that justifies or excuses the homicide devolves upon the defendant, unless the proof upon the part of the prosecution tends to show that the crime committed only amounts to manslaughter or that the defendant was justified or excusable. ...”

Although no question is raised by appellant either as to the correctness or to the adequacy of other instructions that were given to the jury, the record herein fails to disclose that as to each of the several issues that were involved in the action, the jury was not fairly instructed.

As hereinbefore has been indicated in the quotation from the case of People v. Jones, 160 Cal. 358, 370 [117 Pac. 176], the fact that an unlawful killing by the defendant may have been established, and in that connection that assumed “circumstances of mitigation” have been placed in evidence either by the prosecution or by the defendant, as far as the jury is concerned, they are not necessarily conclusive either as to the proof of the several items of evidence by which such “circumstances of mitigation” have been sought to be established, or as to the effect of such items taken either separately or as a whole. The jury has the right, and it is its duty, to weigh such evidence and thereupon to determine what credit, if any, it deserves, and thereupon to accord to it the weight to which it is entitled. And in so doing, should the jury conclude that the “circumstances of mitigation” either have not been satisfactorily established by credible evidence, or that even if isolated respective facts should have been satisfactorily established, their combined weight have failed to prove an ultimate fact which amounts to legal mitigation of the offense,—as a matter of additional prerogative, the jury has the right to reject the whole of such evidence and thereupon and thereafter to revert to the respective remaining questions, if any, which may relate to the two degrees of murder, together with the incidental question of recommendation of punishment, should first degree murder be the verdict. In other words, an issue either as to whether “circumstances of mitigation” have been proved to have existed at the time when the offense was committed, or whether in the language of section 189, Penal Code, the killing was the “wilful, deliberate and premeditated” act of the defendant, depends for its determination primarily upon the evidence that may have been presented in its favor, as well as that which may have been received against it; and in reaching a conclusion with reference to the matter, in the consideration of all the evidence, the jury should be guided by rules that relate to other “defenses” generally. In that connection the following excerpts which have been taken from respective texts and adjudicated cases illustrate not only such general rule, but also the rule that governs the degree of “proof” that is required to establish either “circumstances of mitigation” of the offense, or those which either justify or excuse it; that is to say: It is stated in 13 Ruling Case Law, page 909, that, “The weight and sufficiency of evidence in homicide cases are to be determined in accordance with the rules established for the governance of these matters in legal proceedings generally” and on page 908 that “The general rules of evidence respecting the burden and quantum of proof apply to prosecutions for homicide as well as all criminal proceedings”. (See, also, 8 Cal. Jur., p. 187.) In the latter authority it is said, “There is a marked difference in the degree of proof required to establish any fact against the defendant, and that sufficient to establish any fact in his favor. Since the prosecution is required to prove the guilt of a defendant beyond a reasonable doubt, it follows that any fact necessary to the defense confined to the original transaction on which the charge is founded only needs to be established sufficiently to create a reasonable doubt of the defendant's guilt when taken into consideration with all the evidence in the case. To require a defendant to establish his defense by a preponderance of evidence would manifestly shift the burden of proof and deprive him of the benefit of the doctrine of reasonable doubt.” Also in volume 13, California Jurisprudence, page 737, the following statement is found: “While the burden of showing the circumstances under which the homicide is mitigated, justified or excused, devolves upon the defendant, he is only bound under this rule to produce such evidence as will create in the minds of the jury a reasonable doubt of his guilt of the offense charged. He is not required to establish such circumstances by a preponderance of the evidence.” In the case of People v. Roe, 189 Cal. 548, 550, 564 [209 Pac. 560], it is said: “ ‘While Sec. 1105, Penal Code, casts upon a defendant the burden of proving circumstances that justify or excuse the commission of a homicide, it does not mean that he must prove such circumstances by a preponderance of the evidence. On the contrary, while the burden of showing the circumstances under which the act is justified devolves upon a defendant, ’ he is only bound under this rule to produce ‘such evidence as will create in the minds of the jury a reasonable doubt. of his guilt of the offense charged'.” And in People v. Post, 208 Cal. 433 [281 Pac. 618], it was held that the giving of an instruction which required the defendant to produce in his defense evidence of greater weight than would be sufficient to create in the minds of the jurors a reasonable doubt as to his guilt, was erroneous and declared to be “so far prejudicial as to take the case beyond the curative provisions of Sec. 4% of Art. VI, of the constitution”. And to the same effect is the language found in the ease of People v. Rodriguez, 182 Cal. 197 [187 Pac. 423], wherein it is said: “The killing by the defendant being shown, the burden was upon him to explain how it happened that he took, a human life and to show any circumstances of mitigation, excuse, or justification for his act that might exist. Unless he met this burden to the extent of raising a reasonable doubt as to his being guilty of murder as distinguished from manslaughter or justifiable homicide, the verdict was justified from the fact alone that he had taken human life.” (See, also, 13 Cal. Jur., p. 735.) In 6 California Jurisprudence, 10 Year-Supplement, page 325, it is said: “It is within the power of the jury to give such weight as it deems proper to all the circumstances surrounding the commission of a homicide in determining io what extent if at all they operate as mitigating circumstances in the killing. (People v. Gebbia, 138 Cal. App. 94 [31 Pac. (2d) 822].) ” Also, in 13 California Jurisprudence, page 611, it is said: “It is left to the jury to say whether the evidence is sufficient to lead them to believe, or to entertain a reasonable doubt whether the offense was committed under heat of passion. . . . While no particular cause for such heat of passion is expressly prescribed by law. . . . There must be ‘considerable’ provocation, such at least as would stir the resentment of a reasonable man. A provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter . . . ”; and on page 612, “The sufficiency of provocation to reduce a homicide from murder to manslaughter, and whether defendant did in fact act under such provocation, are questions of fact for the jury.” To the same effect is language found in 13 Ruling Case Law, page 910, as follows: “Sound policy declares that the issue of guilt or innocence is for the jury’s determination, and that appellate courts should interfere with judgments of conviction only in exceptional cases.”

And so in the instant matter: For example, had the jury concluded that the effect of the “quarrel” which took place between defendant and Price, together with that which the jury believed was the truth with reference to the incident whereby it appeared that defendant’s rifle was wrested from his possession by Price, and the retention of the rifle by him after he was requested to return it to defendant, were of that gravity which, in the mind of an ordinarily reasonable person would have been sufficient to create therein such resentment or anger that it would amount to a “heat of passion” to the extent and duration that immediately and continuously thereafter up to the instant when the fatal act was committed by him, in effect he was mentally irresponsible,— the logical result would have been that “circumstances of mitigation” for the commission of the offense properly would have been the implied finding of fact by the jury. Likewise, 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 ease which will support the determination. We are satisfied that in the case at bar there was sufficient evidence to warrant the jury, within the rule we have stated, in inferring the existence of a deliberate intent to kill. They so found and awarded the highest penalty, and their finding was approved by the trial judge on the motion for a new trial. This is conclusive upon the subject and upon us, as we can only disturb a finding when we can say, as matter of law, that there was no evidence to support it.” (See, also, People v. Rico, 180 Cal. 385 [181 Pac. 663]; People v. Mc-Neer, 14 Cal. App. (2d) 22, 25 [57 Pac. (2d) 1018]; People v. Shaver, 7 Cal. (2d) 586 [61 Pac. (2d) 1170]; People v. Machuca, 158 Cal. 62 [109 Pac. 886]; 13 Cal. Jur., p. 595, and cases there cited.)

Considering the verdict that was returned by the jury, to wit, “guilty of murder in the first degree” (without recommendation), and particularly in view of the time that elapsed after the “quarrel” between Price and defendant had taken place, together with that which ensued after the incident that related to the seizure and the retention by Price of defendant’s rifle,—all of which preceded the instant when the first shot was fired by defendant at Price,—it becomes apparent that the jury was of the opinion and thereupon reached the conclusion not only that during the interval which succeeded those two episodes before the fatal shot was fired, had “hot blood had sufficient time to cool”, but also that following a time when presumably “reason had resumed its empire” the crime was committed “upon preexisting reflection” and was the “wilful, deliberate and premeditated” act of defendant.

In that regard, the jury was instructed that “There may be no appreciable space of time between the intention to hill and the act of hilling—they may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by, and the result of a concurrence of will, deliberation, and premeditation on the part of the slayer; and if such is the ease the killing is murder in the first degree, no matter how rapidly these acts of the mind succeed each other or how quickly they may be followed by the act of killing.”

Although with reference to the formation of “a deliberate intention unlawfully to take away the life of a fellow-creature”, (sec. 188, Pen. Code), it may seem somewhat questionable to judicially declare that no appreciable time is required for “pre-existing reflection, deliberation and premeditation”, but that to the contrary, such “pre-existing reflection, deliberation and premeditation” may be “as instantaneous as successive thoughts of the mind”, nevertheless, from “time immemorial”,' and especially since the time when it was so positively asserted in the lams case (57 Cal. 115), the rule as announced has been fixed and firmly imbedded within the foundations of statutory construction as applied to pertinent penal statutes of this state. Neither from a consideration of abstract justice, of humanity, nor even of an appreciation of the capacity of the normal human mind, is the possibility of the inaccuracy of that rule here called in question; and at least until it be directly and suecessfully challenged either through or by judicial or legislative channels, it must remain a basic guide for the determination of future questions that may relate to the degree that should be attributed to the crime of murder, defined by the statute as ‘ the unlawful killing of a human being, with malice aforethought”. (Sec. 187, Pen. Code.)

Notwithstanding the well-established rule of law as is announced in People v. Mahatch, 148 Cal. 200 [82 Pac. 779], that “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”, in substance appellant urges the point that since the evidence herein shows that defendant was not guilty of the degree of the crime of which he was convicted, not only under the direct provisions of section 1181 of the Penal Code, but also in accord with the decisions heretofore rendered by this court in the respective cases of People v. Kelley, 208 Cal. 387 [281 Pac. 609], and People v. Howard, 211 Cal. 322 [295 Pac. 333, 71 A. L. R. 1385], the judgment herein should be modified by “reducing the crime” to either murder in the second degree or to that of manslaughter.

In that respect, as far only as the abstract power of the court in proper situations is concerned, there can be no doubt regarding the correctness of the point that is suggested by appellant. However, from a consideration of the cases to which reference has been had, it is apparent that in first degree murder cases the authority conferred by the provisions of the statute should be exercised only where the evidence either clearly is insufficient to show anything other than that the defendant therein unlawfully killed a “human being [presumptively] with malice aforethought”, that is wilfully, deliberately and premeditatively,—or, possibly, that with respect to whether such a condition in the mind of the defendant existed, as was indirectly suggested in the latter case, when this court entertains “a doubt as to its (the evidence) showing murder of the first degree”.

As hereinbefore has been indicated, this court is of the opinion that the evidence is legally sufficient to support the verdict generally that was returned by the jury. With respect to the second proposition, assuming, without here affirming the suggestion that the existence of a doubt in the “mind” of the reviewing tribunal with reference to the insufficiency of the evidence to justify the verdict as to the degree of the crime may constitute a valid reason for an order by which the degree of the crime as "expressed in the verdict may be reduced, nevertheless it should be made clear that the “doubt”, if any, like that universally required of the jury on the trial of a criminal action, should be not merely fanciful or imaginary, but should be reasonable, real and substantial. It is a commonly recognized fact that a very great difference may exist between two individuals with respect to their respective temperamental characteristics; that is to say, that that which to one individual may be provocative even to the degree of “a heat of passion”, to another may be only a cause for merriment. And so with the defendant in the instant action: although he may have been greatly exercised and incensed at the treatment or the assumed wrongs which theretofore he had received at the hands of Price, nevertheless the question as to whether such behavior was of that gravity and importance that, as applied to a reasonable man, situated as was the defendant, it reasonably might be anticipated that it would create or produce in his mind a “heat of passion” sufficient in intensity to connote the existence of the ultimate fact or condition of “circumstances of mitigation”, at least primarily, and in the first instance, was for the jury to determine. With that principle noted, although it well may be that one reasonable mind might differ from another with respect to whether the evidence in the instant case presented such a situation that therefrom should follow a conclusion either that the act of defendant was committed by him in the absence of deliberation and premeditation with reference thereto, or, that if said act was intentionally committed by defendant, it was done in the “heat of passion”— nevertheless, the question of whether this court has a reasonable “doubt” on the issue of the legal sufficiency of the evidence to warrant the verdict of the jury, must be answered in the negative.

No other issues are presented by appellant’s brief. It follows that the judgment, and each of the orders from which defendant has appealed, should be and they are affirmed.

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


author: THE COURT. THE COURT.

text:
    [S. F. No. 15643.
    In Bank.
    February 7, 1938.]
    In the Matter of the Estate of CORA E. MITCHELL, Deceased. ROMAYNE O. REEVE et al., Appellants, v. MARY ANITA PHILLIPS et al., Respondents.

      Bohnett, Hill, Cottrell & Boccardo for Appellants.
    Henry E. Monroe, Julia M. Easley, L. F. Hobbs and Edward M. Fellows for Respondents.
   THE COURT.

Cora E. Mitchell died in San Jose on December 25, 1928. She left a will naming as legatees and devisees her surviving husband, John W. Mitchell, four children of a previous marriage, Zelma Reeve, Romayne 0. Reeve, Vernon J. Reeve, and Mabel I. Tates, and a daughter born of her marriage to Mitchell, Mary Anita Mitchell, now Mary Anita Phillips. John W. Mitchell was appointed executor of her will. In April, 1931, he filed his final account and petition for distribution. A decree settling his account and ordering distribution was entered on October 6, 1931. Zelma Reeve, Romayne 0. Reeve, Vernon J. Reeve and Mabel I. Yates appealed from the decree. Since that time John W. Mitchell died and Mary Anita Phillips was appointed administratrix of his estate, and is a respondent here in that capacity as well as in her individual capacity.

In her will Cora E. Mitchell left two parcels of real property to her daughter, Zelma Reeve. To each of her other four children she left a cash legacy of $5,000 and devised to them, share and share alike, all her unimproved real property in the city of San Jose. She provided a cash legacy of $20,000 to John W. Mitchell. She also left to him their home and furnishings in San Jose, and the “prune orchard and land on the east side of the Coyote Creek together with all equipment and farm implements; also the gravel pits on the Coyote Creek” for the term of his natural life with remainder share and share alike to the same four children. John W. Mitchell was named as residuary legatee.

The decree of distribution recites that just prior to her death Cora E. Mitchell paid to each of Romayne O. Reeve, Vernon J. Reeve, Mabel I. Tates and Anita Mitchell the sum of $5,000 in lieu of the cash legacy in that amount. The court, considering the legacies adeemed, did not order payment of that sum to each of the legatees named in the will. In accordance with the terms of the will the court ordered the home place and furnishings distributed to John W. Mitchell for life with remainder to the four children named by the will so to receive it. The same disposition was ordered of one additional piece of property containing about sixteen acres situate in Santa Clara County, which, by the description in the decree, shows it to be east of the Coyote Creek, and therefore “on the east side of the Coyote Creek” as described in the will. That this sixteen-acre parcel so distributed to Mitchell for life constitutes the “prune orchard” named in the will is not disputed. All the rest of the known real property specifically devised, with the exception of that devised to Zelma Reeve and the San Jose lots left to the other four children, was ordered distributed to John W. Mitchell in fee.

On this appeal from the decree of distribution it is claimed that the court erred in deciding that the cash legacies to the four children were adeemed; further, that certain of the pieces of real property situated in Santa Clara County and distributed to John W. Mitchell in fee lie on the east side of the Coyote Creek and should have been distributed to him for life with remainder to the four children named so to take.

For the purpose of this appeal only the second point need be considered. The question is whether the record presented shows that the court erred in ordering distribution in fee to John W. Mitchell of certain parcels of land which lie east of Coyote Creek and which, if appellants are correct, should have been distributed to him for life only.

' The appeal was taken under the provisions of section 953a of the Code of Civil Procedure. However, we are without the aid of a transcript of the evidence taken at the hearing of the petition for distribution for the reason that the notes of the reporter who attended the hearing and took down in shorthand the testimony of the witnesses were destroyed by fire when the court house of the county of Santa Clara was destroyed by fire on May 18, 1931, which was three days after the hearing was had and nearly five months before the decree of distribution was entered. The appellants made numerous attempts without success to be relieved from their unfortunate predicament caused by the fire all to the end that the cause be remanded, the issues be retried, and the litigants as well as this court have the benefit of a transcript of the evidence in the event of a subsequent appeal.

The respondents concede, in fact assert, and the appellants of course agree, that “there is nothing ambiguous or uncertain in the language of the will decreeing to Mitchell for his natural life the prune orchard and land east of Coyote Creek” and the “gravel pits”. It is also asserted by the respondents “that the will of said decedent is clear and unambiguous as to its legal construction, but contains a description of a devise of real property to John W. Mitchell for his natural life which is imperfect or incomplete on its face”. Then only, say respondents, was it necessary for the court to receive evidence to identify the prune orchard property in order to carry out the terms of the will.

The weakness in the respondents’ position lies in the assumption as matter of law that the words “prune orchard and land” embrace within their meaning only land on which the prune trees are planted and that those words necessarily exclude for life tenancy other land owned by the decedent east of Coyote Creek. It is obvious that, in harmony with the respondents’ contention, the probate court’s conclusion that the only unit east of the Coyote Creek which was devised for life was based on its interpretation of the dispositive terms of the will, and that the word “orchard” referred only to the trees in the orchard and did not include the land in which the roots of the trees were imbedded. The respondents’ contention was and is for an interpretation of the language of the will which would restrict the word “land” to the land within the limits of the orchard, and as excluding any other land even though such other land may also be east of Coyote Creek.

We are not in accord with the respondents’ interpretation of the will. Webster’s International Dictionary, second edition, defines “orchard” as a “plantation or large enclosure containing fruit trees”. Funk & Wagnall’s New Standard Dictionary contains the definition: “A collection of trees cultivated for their fruit or other product: . . . also, the enclosure or ground containing such trees.” In Attorney General v. State Board of Judges, 38 Cal. 291, 296, the word was referred to as signifying an enclosure or assemblage of fruit or nut-bearing trees”. Webster’s definition of “an enclosure containing fruit trees” was adopted in Wright v. Sample, 162 Ala. 222 [50 So. 268], An “assemblage” alone without the connotation contained within the word “enclosure” would signify nothing in relation to an orchard. In truth, we have little need of reference to authority to lead us to the conclusion that the plain meaning to be ascribed to the language used is that the land with the trees thereon constitute the “orchard”, and that the testatrix used the word in such ordinary signification and intended to devise to John W. Mitchell for- life the orchard and the other land belonging to her lying east of the Coyote Creek. The court is not at liberty to read the language of the will with any other than its plain, ordinary meaning. (Probate Code, see. 106.) Such meaning leads to the conclusion that the testatrix devised to her husband for life not only the orchard property but the other land owned by her in the vicinity and lying east of Coyote Creek. It remains to be seen whether it can be ascertained from the judgment roll that land in the vicinity of the orchard belonging to the testatrix and distributed by the court to John W. Mitchell in fee lies east of Coyote Creek.

From the decree of distribution, which is a part of the judgment roll, it appears that there were five other parcels of land in the vicinity of the orchard, and that these other five parcels were distributed to Mitchell in fee. They are designated in the decree as parcels 5, 6, 7, 8 and 9, and in addition are described by metes and bounds. Parcel 5 contains 125.52 acres and was appraised by the inheritance tax appraiser at $5,025. The description shows that the north boundary of this tract is the “center line of Coyote River”. As this land lies south of the center line of Coyote Creek, there is no contention that it was improperly distributed to John W. Mitchell in fee, and the decree should be affirmed as to said parcel 5.

Parcel 7 contains 5.16 acres and was appraised at $2,500. The description of that parcel, read in conjunction with the descriptions of the other parcels, reveals its position to be east of the center line of Coyote Creek and between that line and a tract formerly deeded by Mitchell to Chaves.

Parcel 9 containing about 30 acres was appraised at $20,000. The courses and distances along a portion of its northerly and easterly boundaries are identical with the courses and distances describing the southerly and westerly boundaries of the 16-acre orchard tract which it in part adjoins. Its easterly boundary extends northerly along the westerly boundary of land formerly deeded by Mitchell to Ridley, the southerly boundary of which forms the northerly boundary of the 16-acre orchard. The north boundary of parcel 9 adjoins a small portion of the southerly boundary of the Chaves tract which adjoins the Ridley tract on the north. The westerly course, of the north boundary of parcel 9 is shown to be co-terminus with the south boundary of parcel 7. Its continuation is described as “to the most westerly corner of said 5.16-acre tract ... to the center of the Coyote River in the Easterly line” of the Hellyer tract. The described courses are then southerly along the easterly line of the Hellyer tract and the Gordon tract, along the northerly line of the 125.52-acre tract (shown to be along the center line of the Coyote River), and “thence along the center line of Coyote Creek” certain courses and distances to the point of beginning. It is certain from the descriptions in the decree that this piece of land lies east of the center line of the Coyote Creek.

From the described positions of various parcels mentioned in the decree it is discernible that parcel 8, containing 20.6 acres and appraised at $800, and shown in the decree to lie east of the Chaves and Ridley tracts, also lies east of the Coyote Creek. This tract is also shown to lie along the southwesterly line of the 64.59-acre tract which comprises parcel 6, appraised at $2,580. Parcel 6 would therefore also lie easterly of the other lands mentioned and of the Coyote Creek.

Inasmuch as parcels 7 and 9 lie east of the center line of the Coyote Creek, and the other parcels referred to, with the exception of parcel 5 and possibly the gravel pits, lie easterly of parcels 7 and 9, it clearly appears that it was error for the court to hold that only the orchard property was devised to Mitchell for life.

According to the well established rule, a conveyance which describes land as along a watercourse other than tide water or a navigable stream, will include the land to the thread or center of the course. (Civ. Code, sec. 830; 4 Cal. Jur. 386 and eases cited; Drake v. Russian River Land Co., 10 Cal. App. 654 [103 Pac. 167]; 4 R. C. L., p. 103 and eases cited.) This rule should apply in the present case in construing the unambiguous language of the testatrix in devising land either on the “east side” or “east of the Coyote Creek”. In accordance with this interpretation the court therefore should have ordered the other land in addition to the orchard, lying east of the Coyote Creek, distributed to Mitchell for life.

The record does not indicate what parcel or parcels described contained the gravel pits, but it is apparent from the wording of the will alone that they were not contained within the 16-acre orchard piece distributed to Mitchell for life. Error therefore also appears in the omission to make distribution to Mitchell for life of the lands referred to by the testatrix' as the gravel pits.

On a motion for diminution of the record and application for leave to produce additional evidence, the appellants seek to prove certain facts occurring since the fire of May 18, 1931, when the reporter’s notes were destroyed, including subsequent attempted orders of the probate court pursuant to an asserted stipulation for a new- trial, and other matters. However, in view of our conclusions on the merits of the questions ruled upon herein, and the consequent opportunity of the appellants to secure a retrial of the issues on the hearing of the final account and petition for distribution, we perceive no useful purpose in reciting the facts leading to the filing of the motions or in considering the questions presented thereby. The motion and the application are therefore denied.

The decree is affirmed in so far as it affects the distribution to John W. Mitchell in fee of said parcel 5 particularly described in the decree; the decree otherwise to stand reversed; neither party to recover costs of appeal.

A petition for a rehearing was denied on March 9, 1938, and the following opinion then rendered thereon:

THE COURT.

The portion of the decision filed herein which affirms the judgment of the court to the effect that parcel 5 is distributable to John W. Mitchell in fee is not to be construed as relieving that parcel or the proceeds from any sale thereof from the burdens to which under the law the same may be subject as a portion of the residue. The intent in affirming the decree as to that parcel was to end the controversy concerning whether it was a portion of the residue, or was distributable to Mitchell for life. The question of who is entitled to the proceeds from the sale of said parcel should await the court`s decision upon retrial.

The petition for modification is denied.