text:
    [Crim. No. 4189.
    In Bank.
    March 2, 1939.]
    THE PEOPLE, Respondent, v. WILLIAM GREEN, Appellant.

      Ralph Moradian and John J. Gallagher for Appellant.
    U. S. Webb, Attorney-General, Burdette J. Daniels, Deputy Attorney-General, and Dan F. Conway, District Attorney, for Respondent.
   WASTE, C. J.

After trial before a jury upon a charge contained in an information filed by the district attorney of Fresno County, the defendant was convicted of murder of the first degree and sentenced to pay the extreme penalty. He prosecutes this appeal from the judgment and order denying a new trial.

On April 4, 1938, the body of an elderly man, identified as George W. Leek, was found buried in the vicinity of what is commonly known as “Hobo Jungle” or “Shanty Town”, in the city of Fresno. The exact date of death may not be stated, but the evidence tends to indicate that it occurred on or about March 21, 1938. That death resulted from violence appears from the report of the autopsy surgeon giving as the cause therefor “multiple skull fractures and severe bruising and hemorrhage to the brain tissue proper”. The doctor was of the opinion that this condition was brought about by a blunt and heavy instrument. A short length of pipe was found buried with the victim’s body. Some hair and blood stains found one hundred or more feet from the grave were identified as being similar to and as of the same type as that of the deceased. The blood was still moist when discovered on April 4th, apparently due to intervening rains.

Defendant’s connection with the homicide was' established solely by circumstantial evidence which, however, was of sufficient probative value to warrant the jury finding him guilty as charged. Leek, the deceased, lived in a shack in “Shanty Town” though the record discloses him to have been a man of some means. There is evidence that in the years 1932 and 1933 he withdrew approximately $3,000 in gold from a bank and in July, 1937, he had withdrawn $5,000. The defendant lived near the deceased in “Shanty Town” and became acquainted with him during the latter part of 1,937. Defendant was seen with the deceased on or about March 21, 1938, in the vicinity in which they lived and about one mile from where deceased’s body was later found buried in a shallow grave in a brickyard. It was the theory of the prosecution, which finds support in the evidence, that on and shortly after March 21, 1938, when deceased was supposed to have met his death, the defendant appeared in and around Fresno with considerable more money than he was accustomed to possess and which he employed to pay certain debts and to purchase designated articles of personal property. The record also discloses that in the latter part of March, 1938, the defendant appeared at the sheriff’s office and informed a deputy that deceased (who was not then known by the authorities to be dead) had promised him a sum of money if he would fire the tents of some Mexicans in “Shanty Town” with whom deceased was having difficulties and if he would also place a bomb in the sheriff’s office. Upon this occasion the defendant also stated that he was expecting a letter of instructions from the victim at San Francisco. On or about March 29, 1938, the defendant brought such a letter to the sheriff’s office, purportedly written by deceased and expressing the hope that defendant would carry out his instructions and that as soon as the writer read in the newspapers about the destruction of the sheriff’s office he would forward $400 to the defendant. Defendant’s story and the production of said letter started an investigation which several days later resulted in the recovery of certain personal property belonging to the deceased in the general vicinity of “Shanty Town”. Shortly thereafter his body was recovered in its shallow grave a mile or more distant.

The prosecution produced a handwriting expert who, after being shown certain exemplars of the defendant’s handwriting, gave it as his “definite conclusion” that the letter purportedly written in San Francisco by the deceased to the defendant, under the name of Ray Davis, under which name defendant had mail addressed to him about this time, was in the same handwriting as the exemplars and was written by the same person. This, and other evidence, is capable of a construction that the defendant in order to conceal his spending of deceased’s money, and to otherwise establish an alibi for himself, resorted to this subterfuge to create the impression that the deceased was still alive and thus possibly forestall an investigation as to deceased’s whereabouts when he should be found to be missing from his usual haunts.

There is evidence in the record that until the latter part of March, 1938, the defendant had practically lived a life of poverty in a tent in “Shanty Town”. The testimony discloses that subsequent to the time when deceased met his violent death, the defendant mailed to the Oakland store of Montgomery Ward Company a letter (which the expert declared to be in the defendant’s handwriting) containing a $100 bill and requesting the shipment of certain phonograph records and the forwarding of the change from the bill to the Fresno Post Office, General Delivery, under the name of Ray Davis. Defendant also sent an identical sum for somewhat similar purposes to each of two mercantile houses in the middle west. Considerable sums of money were also expended by him at about the same time in Fresno and San Francisco. It appears from the record that while in San Francisco (when he may well have addressed the letter to himself under the name of Ray Davis and purportedly written by the deceased) the defendant purchased a watch by trading a watch that he then had. The latter watch was identified as having belonged to the deceased.

Another incriminating circumstance is the fact that when questioned by a postal inspector as to where and how he had acquired the $100 bill forwarded to the Montgomery Ward Company, defendant replied that he had received it from a sister in Chicago. On cross-examination he admitted this was not the source of its acquisition. At first, he advanced the explanation that he had received the money from the deceased to fire the tents of the Mexicans and to blow up the sheriff’s office, but on cross-examination he stated that he received it from the deceased in repayment of sums loaned to the latter. This explanation was offered for the first time when he was in the witness chair, at which time he admitted he had not so previously informed the officers.

As is usual, there are conflicts in the evidence. These were for the jury to determine and it resolved them against the defendant, including his defense that he had no knowledge of and did not participate in the crime. The evidence in the record, only some of which is here recited, together with the inferences deducible therefrom, is amply sufficient to warrant the implied findings of the jury that the death of the deceased resulted from a violent homicide committed for purposes of robbery on or about March 21, 1938, and that the defendant was the perpetrator thereof. The degree of such a murder is fixed by section 189 of the Penal Code as of the first. That the commission of a crime may be adequately established entirely by circumstantial evidence is not open to question. (People v. Peete, 54 Cal. App. 333, 342, 343 [202 Pac. 51].) It is the function of the jury in the first instance and of the trial court • after the verdict to determine what facts are established by the evidence and before the verdict of the jury which has been approved by the trial court may be set aside on appeal for insufficiency of the evidence, it must be made to appear that there is no substantial evidence to support the conclusion of the jury and the trial court. (People v. Tom Woo, 181 Cal. 315, 326 [184 Pac. 389] ; People v. Hennessey, 201 Cal. 568, 571 [258 Pac. 49].) A conviction may not be set aside because the evidence is susceptible of two reasonable inferences, one looking to the guilt of the defendant and the other to his innocence. (People v. Frahm, 107 Cal. App. 253, 266 [290 Pac. 678] ; People v. Bender, 127 Cal. App. 331, 337 [15 Pac. (2d) 763].)

Defendant next urges that the court below erred in admitting into evidence certain exhibits. Complaint is first made of the admission of a picture showing deceased’s body lying in the grave with a piece of pipe beside the body and in the grave. The evidence discloses that the pipe was uncovered with the body and the fact that it may have been moved in order to have it appear in the picture could not have been prejudicial. Nor do we think error resulted from the admission of certain other pictures showing the body of deceased. While urging that these pictures were offered for the sole purpose of prejudicing him before the jury, the defendant in his brief concedes “that photographs ordinarily are admissible as a means of assisting the jury in determining whether a criminal agency was used . . . ” Any discrepancy between the condition of the body at the time of death and when the pictures were taken, caused by medical examination and handling, was adequately explained in the testimony. We find nothing of a prejudicial nature in the court’s ruling. The same is true of the ruling admitting the pipe into evidence. It was the theory of the prosecution that the pipe, which was found buried with deceased, was the lethal weapon wielded by the murderer in the commission of the homicide. Frequently upon a murder trial the medium employed to bring about the violent or untimely death of the victim is placed in evidence as a part of the res gestae. In People v. Bannon, 59 Cal. App. 50, 56 [209 Pac. 1029], it is stated that “As a general rule physical objects which constitute a part of the transaction, or which serve to unfold or explain it, may be exhibited in evidence, if properly identified, whenever the transaction is under judicial investigation.” The pipe placed in evidence in the present case was identified as the pipe found in the grave with the body. This distinguishes the present case from People v. Hill, 123 Cal. 571 [56 Pac. 443], relied on by the defendant, for in the cited case there was no evidence identifying the stick there admitted with the crime under investigation. Defendant also urges that the court below erred when it permitted an employee of a bank to testify that in 1932 and 1933 the deceased made certain withdrawals in gold coins. The evidence is objected to as being too remote. Such objection goes to the weight rather than the admissibility of the evidence. Moreover, the evidence tended to substantiate the theory of the prosecution that a $10 gold piece used by defendant to purchase certain articles was taken by him from the deceased.

Complaint is next made that the trial court erred in giving and refusing instructions. The charge to the jury-has been examined. It was full and fair and accurately defined murder of the first degree. If, as contended by the prosecution and as the evidence indubitably tends to show, and as the jury impliedly found, the deceased was bludgeoned to death for the purpose of relieving him of his money and other valuables, all of the elements of murder in the perpetration of robbery are present as that crime is defined in section 189 of the Penal Code. Such offense is there declared to be murder of the first degree and no error or prejudice resulted from the refusal of the trial court to define and instruct upon the elements of robbery and murder of the second degree. (People v. Rogers, 163 Cal. 476, 482 [126 Pac. 143].)

As stated above, a mere reading of the evidence in this case, including inconsistencies in some of the defendant’s statements, definitely establishes that the only reasonable hypothesis was that pointing to the defendant’s guilt and the jury was justified in acting upon that theory. Among other things, the court instructed the jury that the circumstantial nature of the evidence did not militate against it “provided 3ou believe from the evidence that such facts and circumstances pointing to the guilt of the defendant have been proved beyond a reasonable doubt, and are of such a character as to exclude every reasonable hypothesis except that the defendant is guilty”. This being so, no prejudice resulted from a refusal to give an additional instruction requested by defendant to the effect that where the evidence leads to “two opposite rational theories, one consistent with the guilt of the defendant and the other consistent with his innocence, it is the duty of the jury to reject the theory which is consistent with his guilt, and adopt the theory which is consistent with his innocence”. The matter was sufficiently covered elsewhere. We cannot say, as a matter of law, that the jury’s verdict does not respond to the requirements of the law with respect to the test that there is no rational hypothesis upon which defendant may be innocent and the facts and circumstances as proved be true.

Defendant’s final contention has to do with asserted prejudicial misconduct on the part of the district attorney occurring in two instances during his argument to the jury. The argument is not printed in the transcript and we therefore have no way of accurately gauging its propriety or impropriety. Nor do we find therein any assignment of error or request that the jury be admonished to disregard the asserted objectionable matter. (People v. Gist, 28 Cal. App. (2d) 287 [82 Pac. (2d) 501].) However, the jury was instructed that they were to determine the cause upon the evidence. It will be presumed that they acted accordingly, uninfluenced by remarks of counsel.

Examination of .the record discloses nothing calling for a reversal.

The judgment and order appealed from are, and each is, affirmed.

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

Seawell, J., concurred in the judgment.


source: Caselaw Access Project

author: SEAWELL, J.

license: Public Domain

text:
    [Crim. No. 4184.
    In Bank.
    March 2, 1939.]
    THE PEOPLE, Respondent, v. CHARLES AUGUSTINE McLACHLAN, Appellant.

      George C. Watson and Carl W. Minton for Appellant.
    U. S. Webb, Attorney-General, and Frank Richards, Deputy Attorney-General, for Respondent.
   SEAWELL, J.

This appeal, taken from a judgment imposing the death penalty on appellant, comes to this court by the operation of section 1239, Penal Code, which provides: “When judgment of death is rendered upon any plea, an appeal is automatically taken without any action of the defendant or his attorney. ’' As a result of the above statute the court has been put to the task of reading approximately five hundred typewritten pages of testimony, and proceedings, much of which is repetitious cross-examination, in order to determine whether the defendant suffered prejudicial error during the trial of the cause, notwithstanding the fact that neither the defendant nor his counsel has made any claim or suggestion that the trial was not in all respects fair, nor that the verdict rendered is not fully supported by the evidence.

The defendant entered a plea of not guilty and not guilty by reason of insanity to the indictment and waived a trial by jury as to each of said pleas, and the court found against him as to each.

The indictment accused the defendant with having murdered, in the county of Los Angeles, on or about April 14, 1938, one Jennie Moreno, a girl of the age of six years and nine months, the daughter of Juan and Dominga Moreno, residents of the city of Downey, county of Los Angeles.

The Moreno family is of Mexican origin and consisted of mother, father, and six very young children. The defendant, Charles Augustine McLachlan, aged fifty-five years, is a native of Arizona, and in blood is half American and half Mexican. By trade he was a master painter and decorator. He had resided with his wife and family for fifteen years at Downey in the Mexican community in which the Morenos and most of the witnesses who testified in the case were residents. Said settlement consisted of a number of Mexican families who lived in small houses or huts in a closely settled area. The defendant’s wife died some three years prior to the homicide, leaving surviving her, defendant, a married son, and a daughter by a former husband.

The defendant, with his accumulations, had built two or three small houses upon a lot of land which he had purchased before his wife’s death. After her death he gave up the most habitable residence to his son and wife and their small child. He lived near by in a building referred to as a shack which possessed few, if any, of the comforts of a home.

After his wife’s death he became addicted, at times, to spells of intoxication. He was well known by all his neighbors, some of whom had known him for thirty years, and he was well liked by all. The mother of the dead child, who had known the defendant for some thirty years, testified that the defendant was a kindly, well-disposed man, and his previous reputation could not be questioned. Several other neighbors testified to the defendant’s good reputation. He had been found on one or two occasions, since his wife’s death, quite insensibly intoxicated, but no cruel or unnatural act had ever, to their knowledge, been committed by him. At times he had bought the children in the neighborhood candy and small presents at the community store.

On the morning of April 14, 1938, the defendant apparently arose at his customary hour and, as usual, milked his goat. He went to the drive-in store early in the forenoon at the request of his daughter-in-law to purchase some Jello and milk for her young son, who was quite ill. His neighbors did not observe anything unusual about his conduct except as related by the testimony of Mr. James Wood McDonald, an old acquaintance, who resided across the street from the defendant. McDonald first saw him on that day about 9 o’clock A. M. Defendant was cutting weeds in his lot. A little later the defendant called to him from across the street and invited him to come over and join him. He carried a paper bag in which he had a half-gallon jug about half full of wine. McDonald came across the street to talk with the defendant, who offered him a drink of wine and told him he had already had a couple of drinks of whisky. He invited McDonald to walk down the railroad track, which he did, and they had a few drinks of wine. McDonald advised him that drinking wine after drinking whisky would make him very sick. The defendant, however, insisted on taking several drinks of wine and the two walked down the railroad track to where the defendant’s step-daughter lived in the Mexican settlement at Downey. The defendant continued drinking the wine and became quite intoxicated. At his step-daughter’s home he was placed upon a bench, where he remained for some time. Both the step-daughter and Mr. McDonald testified that the defendant became helplessly intoxicated, and McDonald finally left and did not see the defendant again until the next morning at the sheriff’s substation at Norwalk. At the time that McDonald accepted the invitation of the defendant to drink from his demijohn the hour was somewhere near 12 o ’clock midday. This was after the child had been killed. McDonald, however, testified that he was visibly affected with intoxicating liquor before the homicide was committed. Other evidence corroborates him as to this statement.

Mrs. Carmen McLaehlan, daughter-in-law of the defendant, and the person for whom the defendant went to the store and purchased Jello and milk for her sick child, testified that Jennie Moreno, the deceased, and her smaller sister, came into her house about 10 o’clock on the morning of April 14th and gave her a magazine which she had been instructed to deliver to Mrs. McLaehlan. After that hour Mrs. McLaehlan never saw the little girl again. The houses in this vicinity are quite close together, but there are small door-yards in which the children in the neighborhood frequently gathered for play.

Neither the father nor the mother of Jennie saw the defendant at any time during April 14th. The last time either of the parents saw their child alive was at 11 o’clock A. M., April 14th, as she was preparing to attend church. She failed to return at the noon hour, and her mother became anxious as to the child’s welfare as the hours grew on. The neighborhood was soon making search and inquiry as to the whereabouts of the missing child. Suspicion began to point its accusatory finger at the defendant some time about 6 o’clock in the evening. Mrs. Virginia Ortega, who lived near by, returned to her home at that hour, and some time thereafter she detected an odor which came from the shack of the defendant. Upon the arrival of the officer about 12 o’clock midnight, an investigation was made and smoldering clothing was discovered burning on a piece of sheet iron in defendant’s house. The floor was found to be quite wet in spots. There was no chimney nor flue to draw the smoke away from the interior of his house, and the smoke from the slow smoldering fire was probably carried through the open door and apertures of the small house. This, and other suspicious circumstances, caused the neighbors to notify the sheriff’s office at Norwalk. When Officer White reached the scene he observed the defendant in his house with the door partly ajar. He entered and ordered the defendant outside and made an inspection of the interior of the house, which he described as 8 feet by 12 feet and containing a bed and a closet. He observed an old stove in the house, turned upside down, and found, in the corner of the room, a large piece of sheet metal upon which there was smoldering clothing partially burned. The floor of the house was practically drenched with water. Blood was on the floor under the bed. Officer White kicked the clothing out of the room. It was examined and found to contain pieces of bedding and some of defendant’s wearing apparel, which appeared to bear stains of blood. He thereupon put the defendant under arrest. Presently he heard the father of Jennie Moreno scream as the body of the little girl was discovered. He took the defendant, through a hole in the fence, into the vacant lot adjoining his residence and left him in charge of two Mexicans while he went to the spot where the girl’s body lay. Quite a group of Mexicans had gathered near the body. While the officer was gone someone had struck the defendant and knocked him to the ground, cutting the skin about his eye. Upon closer examination of the premises the blood-stained shoes of the murdered girl were found in the toilet at the rear of the defendant’s shack. A blood-stained hammer, the property of defendant, was also found, and the bed clothing showed that blood-stained pieces had been^cut out of the bed mattress, and also out of the bed clothing, and had been placed in the slow smoldering fire. The mattress was saturated with human blood. Other evidences of the crime were discovered which it is unnecessary here to relate. Chemical analysis showed that the blood stains mentioned herein were stains made by human blood. Officer White testified that the defendant doubtless had been, and was then, under the influence of liquor and he walked with considerable difficulty.

Defendant was taken to the substation at Norwalk where he was afterward interviewed by Sheriff Biscailuz and three other officers. Sheriff Biscailuz admitted that the defendant showed evidence of emerging from a hard drinking spell. However, he thought he understood all that was said and done, and he sought to obtain a confession of the defendant as to the commission of the crime. The defendant, however, stated that he had no memory of any crime being committed, knew nothing about it, and no information was obtained. The sheriff told the defendant that he thought it would be better for him to ease his mind and tell the truth. He also told him that they had all the physical evidence; that they had everything; that there was no doubt in their minds as to who had committed the atrocious murder. He further testified that he told the defendant that whatever he said should be said voluntarily and without any hope of immunity or reward. The sheriff then told him he would have to leave him for a little while, and after the sheriff had been gone about fifteen minutes the officers who had defendant in charge called up the sheriff and told him the defendant was ready to make a confession. The sheriff said he again told him his confession would have to be voluntary, and, after again laying the foundation for a voluntary confession, he asked the defendant if he was ready to proceed and the defendant advised he was. The confession was received in evidence. It was made several hours after the defendant had been taken into custody. The sheriff, however, testified that the defendant had a “sort of a hang-over”, but he understood everything said and recognized the sheriff. The defendant, however, had had no sleep or food from the time he was taken into custody to the time the confession was given. The two officers who had the defendant in custody during the absence of the sheriff testified that they confronted him with the facts of the case, and told him of their discovery of the child’s shoes in his toilet, and the defendant thereupon said, “It must be me.” Thereupon he said that if the sheriff would come he would tell him all.

The defendant has insisted throughout the trial that the officers who had him in custody told him it would be better for him to confess, and if he would they would assist in procuring hospitalization for him as he was then suffering from the beating which he received and doubtless from the effect of excessive use- of intoxicating liquor. Whatever strength there may have been in the contention that the confession was not voluntary was nullified by the fact that the defendant took the stand at the trial and made admissions which cannot be regarded otherwise than as a confession of his commission of the crime. The question as to whether or not the confession was properly obtained in the presence of the four officers was a matter within the province of the court to decide, and there being no inherent improbability as to the truth of the testimony given in support of its admission, we would not be justified in reversing the cause on the ground that the confession was not obtained in the manner prescribed by the statute. While it is true that the evidence pointing to the defendant as the person who killed Jennie Moreno is circumstantial, save as to his own admission, it belongs to that conclusive class of evidence which convinces the mind beyond all reasonable doubt that he and no one else did commit or could have committed the crime. According to his statement, in the forenoon of April 14th he was cutting grass in his yard, and, becoming weary, he went into his shack to lie down for a few moments. While there the little girl entered the opened door and came to his bed where he lay and commenced to play with him in childish amusement. He took her upon the bed and began to fondle her in an improper way. In his treatment of her he caused her pain and she made an outcry or two, whereupon he reached for a hammer near his bed and struck her two death-dealing blows upon the top of the head, crushing her skull and causing her to die instantly. The defendant admits this much. The other gruesome part of the picture is that he tore her flesh from the vagina to the rectum. This he denies. Whether an instrument was used in accomplishing this mutilation, the doctors were unable to determine. After killing her, he placed her on the bed and covered her with the bed covering, where she remained until 9 o’clock at night. He then took her into the vacant adjoining lot, left her remains in quite a heavy growth of weeds, where it was afterward found, as heretofore related. The defendant’s bed and bed clothing, mattress, and his personal wearing apparel, as well as the little girl’s wearing apparel, were discovered and linked to the crime under such circumstances that there can exist no reasonable doubt of its commission by the defendant. The defense on the grounds of insanity was the only defense not foreclosed by the circumstances of the crime.

Immediately after the case was called for trial, counsel for the defense raised the question of the defendant’s present sanity. They represented to the court that the defendant had failed in all ways to cooperate with them, and they were utterly unable to get any assistance from him in the preparation of his defense. They therefore earnestly requested the court to examine into the present sanity of the defendant. The court did not, at any time, express a doubt as to the defendant’s sanity (sec. 1368, Pen. Code), but upon the insistence of counsel for the defendant, permitted his attorneys and other witnesses to offer testimony as to his sanity. The testimony given by said attorneys generally was that the defendant was incoherent in speech, and his mind was a blank, and he had become senile from the heavy use of intoxicating liquor; that he was unable to sleep and his health generally was broken; that he complained of hearing witches talking at all times. They also testified that his keepers had placed him in a padded cell for several days while in confinement.

Dr. Lieuallen, a specialist in nervous and mental diseases, called by the People, testified that he had made a physical examination of the defendant and he found a slight edema or swollen condition of the lower extremities, and the pupil of the left eye was larger than the right. He found no physical evidence of insanity. He said, however, the physical conditions which he mentioned were matters to be taken into consideration in determining mental soundness. When he first saw the defendant he was very distressed, sad, and evidently suffering great psychic pain. He said the defendant’s physical condition was fairly good for a man of his age. He observed no illusions or hallucinations. He was of the opinion that the defendant was sane. On cross-examination he admitted that in his written report as to the defendant’s health made near the time of examination he stated that he found some evidence of pre-senility and psychic pain. In explanation of his written report he said that insanity may appear in the pre-senile stage of life but “pre-senility did not mean there was insanity”. In the instant case he thought the pre-senility was mostly physical; the excessive use of alcohol may have predisposed him to pre-senility; the edematous condition of the lower extremities might indicate the beginning of kidney trouble and the pupil enlargement could be entirely due to alcoholism or arteriosclerosis. On the first examination the doctor had no direct conversation with the defendant. While on the stand the doctor was asked to make an examination forthwith of the defendant. After doing so he reported that his examination had not caused him to change his former opinion. The doctor asked the defendant if he remembered him and he replied, “No.” He asked him if he could help him out in any way and the defendant said, “Sure. Sit down.” The doctor sat down and asked him if he could help him out in anything and the defendant asked, “When am I going home ? ’ ’ The doctor asked what month it was and he replied, “No, I don’t believe I know.” He asked him what month he went to jail and he replied that he did not believe he knew. He asked him how old he was and he replied, ‘ ‘ About 35.” (His age was 55.) The doctor then added: “But his demeanor, his stimulus of responding, he understood what I said, he was in contact, I believe, with reality.” The doctor said he thought he was positively malingering during this present examination. The examinations were some three or four weeks apart. The doctor said he asked him what the witches said but he could not tell him anything definite they said. His answer was: ' ‘ They say most anything. ’ ’

The prosecution called Dr. Benjamin Blank, the county jail physician, who testified that the defendant had been under his observation since he was lodged in jail, a period of approximately two months. He testified that it was his opinion that the defendant was feigning insanity. He had recently caused considerable disturbance by climbing the rails of the doors in an attempt to get out, and he was placed in the hospital part of the jail for self-preservation and observation. When first admitted to the jail he did considerable talking and his behavior was more or less normal. About two months later his behavior suddenly changed and he had refused to talk with anyone since. The testimony of all other witnesses is that the defendant was at all times in an apparently .dazed and confused state and it was with much difficulty that he could be made to speak. He refused to eat for intervals of five or six days, and it became advisable to force him to eat. After one or two processes he began eating again. The doctor said that there was no evidence that the defendant was suffering from any form of insanity. He further said that the defendant had made a very poor attempt, in his opinion, at malingering, but the time may come when, if he continues to worry the way he does at the present time, “this depressing mood he is in may later develop into a condition where he will become insane, that is possible on account of his grief”.

This matter being submitted to the court it made an order finding the defendant to be presently sane.

There seems to be some difference between counsel as to whether the proceeding was brought under section 1368 to determine the present sanity of the defendant, or whether the proceeding was instituted not because the court entertained any doubt as to defendant's sanity, or requested the inquiry to be made, but because the defense was desirous of presenting evidence which would create in the court’s mind such doubt as would cause it to proceed under said section 1368, Penal Code. The request being denied, counsel proceeded to the trial of the main issue as though the proceeding as to the present sanity of the defendant had not been brought to the court’s attention. Be this as it may, counsel treated the entire matter as determinative of the defendant’s sanity and were thereby estopped from making any question as to the regularity of a proceeding wholly instituted and directed by themselves. Moreover, the proceeding was in conformity with section 1368, Penal Code.

Several psychiatrists called by the prosecution testified that in their view the defendant was responsible, under the law’s test, for the commission of an offense which from every viewpoint shocks human sensibilities. Whether he committed the crime unconscious of what he was doing and after-wards was awakened to a state of realization of the horror of his act, and therefore suffered psychic pain (defined as a depressing state of remorse occasioned by an accusing conscience) , is a question to which few psychiatrists, if any, may be able to give a satisfactory answer. We have before us the fact that the defendant committed the homicide beyond any reasonable doubt and that he concealed the body until nightfall, and with some cunning removed it from his house to an adjoining unoccupied lot. This, at least, is some evidence that he knew the nature and the quality of the act he had committed, and knew that it was wrong and contrary to law to commit it. The burden was upon the defendant to show by a preponderance of evidence that he was excusable under well-settled rules of law for the commission of his criminal act. This was not done. It therefore becomes the duty of this court to affirm the judgment and such other orders as are deemed appealed from under the provisions of section 1239, Penal Code. Judgment and orders appealed from are accordingly affirmed.

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


author: WASTE, C. J.

text:
    [L. A. No. 16776.
    In Bank.
    March 3, 1939.]
    JAMES M. GAVIN, Plaintiff and Appellant, v. LANDFAIR REALTY CORPORATION (a Corporation), Defendant and Appellant.

      W. C. Smith and Everett H. Smith for Plaintiff and Appellant.
    Glen Behymer and D. Howard Painter for Defendant and Appellant.
   WASTE, C. J.

Plaintiff Gavin, who has appealed from a portion of the judgment entered herein, moves this court for orders allowing diminution of the record, permitting withdrawal of certain notes and trust deeds, and requiring the defendant Landfair Realty Corporation, which has also appealed from a portion of the judgment, to post an appeal bond and in the absence thereof for a dismissal of the appeal.

In our consideration and determination of these several motions we shall generally state only so much of the facts underlying this litigation as are essential to an understanding thereof. It appears that the defendant Landfair Realty Corporation let a contract to the cross-defendant John L. Hudson, as contractor, for the erection of a building to cost $42,000. A faithful performance bond and a bond to laborers and materialmen were respectively executed by Hudson, as principal, and by Hudson’s father and plaintiff Gavin, as sureties, each bond being in the sum of $21,000. In addition, the plaintiff Gavin agreed to loan $35,000 for the construction of the building. Hudson, the contractor, was to provide the balance necessary to complete the building. Certain notes secured by deeds of trust were to be executed to insure repayment of the sums so advanced. These instruments were placed in escrow with instructions for their delivery to Gavin 35 days after filing of notice of completion, providing no liens were on file. Gavin advanced and paid into the escrow from time to time sums aggregating $23,750 and, in addition, paid out $19,-869.72, in an effort possibly to avoid liability under the faithful performance bond. After these sums had been paid, Gavin and Hudson, the contractor, claimed that the building was complete in accordance with the plans and specifications. This the owner and architect denied and a certificate of completion was refused. Thereupon Gavin commenced this action for declaratory relief and for delivery of the notes and trust deeds above mentioned. The Landfair Realty Corporation cross-complained. The escrow holder delivered the notes and trust deeds to the clerk of the court and they are now held in custodia legis.

At the conclusion of the trial the court below found that it would require an additional seventy days and $7,003 to complete the building according to specifications and that the Landfair Realty Corporation, as owner, had been damaged in the sum of $3,774 by delay in construction and consequent loss of rentals. By the terms of the judgment thereafter entered the Landfair Realty Corporation recovered, on its cross-complaint, against Gavin and Hudson, the sum of $10,777 and costs. The clerk was directed to retain the promissory notes and deeds of trust until seventy days after signing of the judgment in order to permit completion of the building, and then to deliver same to Gavin in the event he did not prosecute an appeal from the judgment and further that if any party to the action, except Landfair Realty Corporation, should prosecute an appeal the clerk was to retain custody of the documents until further order of the court. In other words, if no appeal was taken, or if Landfair Realty Corporation alone appealed, the documents were to be delivered to Gavin at a time when it would be too late for him to notice an appeal. Gavin was also ordered to pay Landfair Realty Corporation the sum of $200 to satisfy the architect’s claim of lien. It was also decreed that the escrow holder pay Gavin $100 theretofore paid on account of one of the notes. The notes and trust deeds were decreed to be valid and the latter to be subsisting liens on the property. As stated above, both Gavin and the Landfair Realty Corporation appealed from portions of the judgment.

Gavin now moves in diminution of the record that an affidavit of one of his counsel be added thereto wherein are averred asserted facts coneededly occurring after the appeal had been perfected to the effect that Landfair Realty Corporation was in possession of and using the building. The undoubted purpose of such affidavit is to show that the building is complete, contrary to the findings and judgment of the trial court. In opposition to the motion, a counteraffidavit has been filed denying possession and use of the building by Landfair Realty Corporation. The granting of the motion for diminution of the record can avail the appellant Gavin nothing inasmuch as it is not sought to bring up thereby anything which was before the trial court at the time of the rendition of the decree appealed from in Hiett v. Inland Finance Corp., 202 Cal. 277 [259 Pac. 1102], it is held that a motion for diminution of record is not the proper method by which to bring before an appellate court factual matters occurring after the rendition of judgment and which tend to show that the appeal has become moot. It is there pointed out that the proper remedy is by motion to dismiss upon that ground. In the present case, the purpose of the proffered affidavit and the motion for diminution is to show possession and occupancy of the building by Landfair Realty Corporation subsequent to the entry of judgment which, in turn, would tend to establish completion of the building contrary to the provisions of the judgment now on appeal, -thereby rendering the appeal substantially moot. As indicated, it is not the province of a motion for diminution to disclose matters occurring after the entry of the judgment appealed from. The motion must therefore be denied.

Nor do we find any merit in the motion requesting permission to withdraw the promissory notes and trust deeds from the custody of the clerk. As indicated in the above statement of facts, the judgment expressly provides that in the event of an appeal by the plaintiff Gavin, the notes and trust deeds should be held by the clerk pending further order of the court below. The continued possession of said instruments by the clerk of that court is a part of the judgment appealed from and may not be dissociated from the merits of the appeals. Moreover, in commencing this action Gavin principally sought possession of these instruments. To grant the motion to withdraw the instruments would be to prejudge the merits of the case and the appeals in a material respect. The motion must be denied.

In support of his third and final motion by which it is sought to require the Landfair Realty Corporation to file an appeal bond or in lieu thereof to dismiss its appeal, plaintiff Gavin relies on section 943 of the Code of Civil Procedure. Under the very terms of the cited section no appeal bond is required of Landfair Realty Corporation inasmuch as the instruments which by the terms of the judgment are to be delivered to Gavin have been deposited with the clerk of the court below and, in view of Gavin’s appeal, are to be so held until the further order of the court. This motion likewise lacks merit.

The several motions are, and each is, denied.

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


author: CURTIS, J.

text:
    [L. A. No. 16210.
    In Bank.
    March 3, 1939.]
    PACIFIC WESTERN OIL CO. (a Corporation), Respondent, v. BERN OIL COMPANY, LTD. (a Corporation), et al., Appellants.

      Abe Richman and Sidney J. Unickel for Appellants.
    Borton, Petrini & Conron and D. E. Staples for Respondent.
   CURTIS, J.

The following statement of facts prepared by the Fourth District Court of Appeal at the time the cause was before that court for decision appears to be correct, and we, therefore, adopt the same for the purposes of this opinion:

“This is an appeal from a judgment restraining the defendants from taking oil from certain land controlled by the plaintiff and awarding compensation for oil already taken.
“Briefly stated, the general facts are as follows: The plaintiff, as lessee under an oil and gas lease covering a certain quarter section of land, drilled for oil and completed seven producing wells thereon. In the course of operations it was discovered that due to a ‘fault’ which ran across this quarter section oil could be produced on a part of this land but not on the remainder. Acting under a right given in its lease the plaintiff, on May 18, 1931, quitclaimed approximately 104 acres of this land to the owner and lessor, retaining a described tract of about 56 acres upon which oil had been developed, and specifically reserving all rights thereto as given by the original lease. For convenience, the 56 acres which were retained will be referred to as parcel A and the 104 acres which were reconveyed will be referred to as parcel B.
“On March 13, 1933, the defendant Brunwin procured a lease covering parcel B from the owner, to whom it had been reconveyed. Brunwin, with two associates, Abe Bernstein and Sam Bernstein, commenced the drilling of wells on parcel B and then organized a corporation, the defendant Bern Oil Company, through which the project was continued. The corporation was largely owned by these three individuals, who acted as its officers and remained in active charge and management of its affairs. Three wells were drilled on parcel B, one being 21½ feet; one 17 feet and one 39 feet east of the boundary line between parcel B and parcel A, a surveyor having been employed by the defendants to exactly locate that boundary. Bach of these wells was intentionally diverted from the perpendicular in a westerly direction in order to bottom the well in the producing area underneath parcel A. In each instance the producing portion of the well was located from 290 feet to 480 feet west of the boundary line between the two tracts and within parcel A. This result was accomplished by the use of a mechanical device, commonly called a whipstock, capable of diverting a well from the vertical. To this end the defendants employed an expert in surveying and controlling directional drilling. The expert used an instrument and method commonly called a ‘singleshot’ in order that the course and extent of deviation of the wells might be known and charted as the work progressed, and from time to time furnished the defendants with reports showing the extent and direction to which the wells had been diverted, and finally furnished them with a plat or graph showing the point of completion of the wells under the surface of parcel A. There is evidence that in each instance the well had to be ‘whipstocked’ to the west, through the fault, and under parcel A in order to produce.
“The first of these wells was completed on June 20, 1933, the second on September 14, 1933, and the third on January 16, 1934, and oil was taken from all of them. In November, 1933, the plaintiff wrote a letter to the defendants demanding that they cease trespassing upon its lands. In March, 1934, a grand jury investigation of the defendants’ activities was started, resulting in an indictment against the individuals for grand theft. (See People v. Brunwin, 2 Cal. App. (2d) 287 [37 Pac. (2d) 1072].) The defendants continued to produce oil and the present proceeding was begun on July 17, 1934, a preliminary injunction being issued on August 6, 1934. The injunction was disobeyed and after citation the individual defendants above named were adjudged guilty of contempt and fined. An attempt to review the contempt proceedings by writ of certiorari failed. (Bern Oil Co. v. Superior Court, 5 Cal. App. (2d) 21 [41 Pac. (2d) 939].)
“In addition to alleging most of the facts above set forth the complaint herein alleged that the defendants Brunwin, Abe Bernstein and Sam Bernstein entered into a conspiracy with the object and purpose of obtaining the right to occupy the surface of parcel B in order to commence thereon the drilling of wells, to drill these wells in such a manner as to cause them to cross over the boundary line and under parcel A, thus penetrating the pool or deposit of oil under said land, and through such wells to remove such oil and bring it to the surface of parcel B; that in pursuance of such plan and conspiracy they obtained a lease from the owner of parcel B and started wells thereon which were intentionally diverted into parcel A and into the oil pool or deposit underlying that parcel at a distance of several hundred feet from the boundary line between the two parcels; that thereafter they commenced to remove oil from parcel A and continued such removal, bringing the same to the surface of parcel B; that they thus removed and converted to their own use oil of a value of $75,000 to the damage of the plaintiff in that amount; that after the organization of the Bern Oil Company these acts were performed by the individual defendants through the agency and instrumentality of that corporation ; and that the defendants have installed upon parcel B a derrick and apparatus for the drilling of a fourth well in a similar manner across the boundary and into parcel A. The prayer is for a temporary injunction pending the trial and thereafter for a permanent injunction restraining the defendants from removing oil from strata underlying the lands of the plaintiff, from removing oil from any of the three wells which have been mentioned, from diverting or directing the drilling of any other well in such a manner as to cross the boundary line between the parcels A and B, for the sum of $75,000 damages, for an accounting as to any oil or gas already removed, and for such other relief as may be just and appropriate.
“While the answer does not deny that the defendants secured a lease covering parcel B, that they entered that land and installed machinery and equipment for drilling, that they employed mechanics skilled in the art of directional drilling or that they intentionally so controlled the direction of the drilling of these wells as to cross over under parcel A, it does deny that these things were done in pursuance of any conspiracy and it is further alleged that the defendants have no knowledge as to the penetration of the oil deposit underlying parcel A or as to the distance of such alleged penetration from the boundary line of parcel B, and on that ground it is denied that the three wells drilled upon parcel B penetrated the oil deposit under parcel A to a distance of several hundred feet from the boundary line. It is admitted that oil has been produced from the three wells thus drilled by the defendants and it is alleged that it is impossible to ascertain definitely the actual location of the bottom of an oil well by any means now known. It is denied that any oil produced from these three wells is the property of the plaintiff, and denied that the plaintiff has been damaged in any amount. It is then alleged that any oil taken from these wells belonged to the defendants, that the plaintiff had surrendered and abandoned all its rights in and to any oil strata, and all its rights in and to any part of the land covered by the original lease, except that the plaintiff had retained the right to produce oil from the seven wells in operation when the quitclaim deed was given to the owner of the land, and that said wells were all located in a zone known as the ‘Upper Vedder Zone’ being approximately 1400 feet in depth, while the three wells drilled by the defendants were located at a depth of approximately 2000 feet in a zone known as the ‘Lower Vedder Zone’. These last allegations disclose the main issue upon which the case was tried, the defendants having contended throughout that the rights of the plaintiff were limited to the operation of the seven wells existing at the time parcel B was reconveyed to the owner of the land and that the defendants had the right to remove oil from any strata on parcel A which was lower than the one which had been penetrated by those wells.
“The court found in all respects in favor of the plaintiff, substantially in accordance with the allegations of the complaint, finding the existence of such a conspiracy to drill wells upon parcel B in such a manner as to direct them over the boundary and into parcel A for the purpose of removing oil therefrom, and that in pursuance of this conspiracy and plan experts in the art of controlling the direction of drilling wells were employed for the purpose of diverting these wells, and they were so diverted, over the line and into parcel A. It was further found that oil was thus removed from parcel A, that the defendants well knew that there was a productive pool or deposit under parcel A, and no such production deposit under parcel B, and that the defendants ‘intentionally, secretly and fraudulently employed the right to occupy the surface of. parcel B for the purpose of accomplishing a clandestine and secret penetration of such productive oil pool ’ underneath parcel A and the removal therefrom of oil. It was then found that from the accounting which had been had of the production and sale of oil thus taken by the defendants from underneath parcel A and converted to their own use, it appeared that oil of the value of $107,371.93 had been so removed, and that the royalty thereon which had been paid to the owner of the land, and which otherwise would have been payable by the plaintiff, amounted to $17,737.26.
“Abe Bernstein died before judgment was entered and the action was dismissed as to him and the executors of his estate. Judgment was entered against the other defendants perpetually enjoining them from removing through the three wells referred to or through any other well any oil, gas, or other hydrocarbon substances from any point beneath the surface of parcel A, and awarding judgment against the defendants H. M. Brunwin, Sam Bernstein and Bern Oil Company, Ltd., jointly and severally, in the sum of $89,643.97. Prom this judgment two of the defendants have appealed.’’

Appellants first contention is that the court committed prejudicial error in denying their request for a jury to try certain issues of fact presented by the pleadings herein. The action against them, as we have seen, was one in which the respondent prayed for an injunction restraining appellants from operating, pumping or removing petroleum oil from strata underlying the lands of respondent, and for damages in the sum of $75,000 sustained by respondent by the pumping and removal of petroleum oil by appellants from said lands of the respondent prior to the commencement of this action. Respondent under its complaint had two rights of action and was entitled to two remedies, the legal remedy of damages for past injuries and the equitable remedy of injunction to prevent their recurrence in the future. (Hughes v. Dunlap, 91 Cal. 385 [27 Pac. 642].)

In that case, it was held (page 388) : “It has long since been held that under our system a legal and equitable remedy may be sought in the same action; but each remedy must be governed by the same law that would apply to it if the other remedy had not also been asked for. An action to recover damages for past trespasses is as clearly a legal remedy as any that could be named; and it is an action in which a party cannot be deprived of a jury trial. For this reason, therefore, the judgment must be reversed.” In Hughes v. Dunlap, supra, the plaintiff sued to recover damages alleged to have been sustained by the plaintiff by the acts of the defendant in entering upon plaintiff’s land and tearing down and removing a fence thereon and for an injunction to restrain defendant from continuing said acts. A jury was empaneled and certain issues of fact were submitted to them. Upon such issues the jury returned a verdict in favor of the defendant. Afterwards the court made findings in which it ignored the verdict of the jury and found in favor of plain tiff on the question of damages. Upon these findings the court rendered judgment for the plaintiff for damages and enjoined the defendant from opening and interfering with said fences. This judgment, as we have seen, was reversed by the Supreme Court for the reason that the defendant was entitled to a trial by jury upon the issues of damages, notwithstanding the action also embraced the equitable remedy for an injunction. This case was cited and followed by the court in the decision of Farrell v. City of Ontario, 39 Cal. App. 351 [178 Pac. 740], in which action the judgment of the trial court was reversed, where the trial court disregarded the verdict of the jury upon the question of damages and attempted to make a contrary finding. In that action the plaintiff asked that the defendants be enjoined from diverting flood waters upon his lands and for an injunction restraining defendants from maintaining the ditch and flume through which said waters were diverted upon the plaintiff’s said land, and for damages sustained by prior diversions of said flood waters upon plaintiff’s land.

In that action, the opinion of the Disfrict Court of Appeal was written by Judge Myers, then a judge of the Superior Court of the County of Los Angeles, temporarily acting as a justice of the District Court of Appeal, and later chief justice of this court. In that decision, Judge Myers called attention to two lines of decisions in this state, the decisions in one group apparently ignoring those in the other group and no apparent attempt having been made to reconcile them. He then analyzes each group and concludes that the group in which the ease of Hughes v. Dunlap, supra, belonged was based upon the sounder reasoning. He further traced the history of actions for injunctions to restrain a violation of a common-law right and cited a number of English authorities upon the subject. From the history of this type of actions as set forth in a long line of cases from the English courts, cited in the opinion in the Farrell case, it was shown that the following rule had been clearly established in the courts of England; “If a plaintiff applies for an injunction to restrain a violation of a common-law right, if either the existence of the right or the fact of its violation be disputed, he must establish that right at law; but when he has established his right at law, . . . unless there be something special in the case, he is entitled as of course to an injunction to prevent a recurrence. ’ ’ Following the citations from these cases from the English courts, the opinion in the case of Farrell v. City of Ontario, supra [page 358] continues; “These decisions may be taken then as determinative of the proposition that, under the English common law as it stood in 1850, at the time it was adopted as the rule of decision in this state, ‘if a plaintiff applies for an injunction to restrain the violation of a common-law right, if either the existence of the right or the fact of its violation be disputed, he must establish that right at law; ’ or, in other words by a jury, if one be demanded. We conclude, therefore, that the parties here were entitled to a jury trial upon the issues as to damages and that the verdict of the jury thereon was binding. We do not regard the provision of section 731 of the Code of Civil Procedure as in any way affecting that right. If the jurisdiction in law and equity were here separately vested, it might well be held that the plaintiff, by filing in equity a complaint such as is here presented, had thereby elected to submit all the issues for determination by the court, and thereby waived his right to a jury trial on the legal issues; but where, as here, all such issues may be tried in the one action, no reason for such holding appears.”

The decision in Farrell v. City of Ontario, supra, was followed and approved only a few weeks later by the case of Franklin v. Southern Pacific Co., 40 Cal. App. 31 [180 Pac. 76], in which likewise the judgment of the trial court was reversed. The decision in this later case was by the same court which rendered the decision in the case of Farrell v. City of Ontario, supra. A petition for a hearing after said decision was denied by the Supreme Court. It is interesting to note that the author of the opinion in the first of these two cases, was the trial judge in the later case.

Neither of these cases has been cited in any later decision of this court on the question as to whether a party is entitled to a jury trial in an action like the instant case except in the decision of Union Oil Co. v. Reconstruction Oil Co., 20 Cal. App. (2d) 170, 190 [66 Pac. (2d) 1215], which case will be referred to later. Neither has there been any decision of this court or of the District Court of Appeal to which our attention has been called holding that a party to an action like the instant one is not entitled as a matter of right to a jury when the question of damages is put in issue by the pleadings until the decision of this court in the case of Bettencourt v. Bank of Italy etc. Assn., 216 Cal. 174 [13 Pac. (2d) 659], In that case no reference or citation was made to either the Farrell or the Franklin cases, and the only authority cited in support of its ruling was the case of McCarthy v. Gaston Ridge Mill & Min. Co., 144 Cal. 542 [78 Pac. 7], a case cited by Judge Myers in his opinion in the Farrell case and rejected by him as belonging to that group of cases which were not in accord with the earlier English decisions nor with Hughes v. Dunlap, supra, and other decisions of this court holding that in an action for an injunction to restrain a trespass upon real property and for damages for past trespass, the right of action for damages was a legal remedy to which the parties were entitled to a jury.

In our opinion, the argument and presentation of authorities cited by Judge Myers in his opinion rendered in the Farrell case, are unanswerable and the rule therein announced should be followed by the courts of this state in actions wherein both legal and equitable remedies are the subject of the action. In so far as the case of Bettencourt v. Bank of Italy etc. Assn., supra., is contrary to the rule thus announced, it is overruled. It follows, therefore, that the trial court in this action committed error in denying the demand of the appellants for a jury to try the question of damages which the respondent sought to recover from the appellants.

The claim of the respondent that the demand of appellants for a jury was defective or insufficient because it was general in its terms and did not specifically state that a jury was demanded to try the issue of damages only is, we think, without merit. The authorities cited in support of this claim do not sustain it. They simply hold where issues at law are involved with equitable issues, the trial court did not commit error in refusing to submit to a jury both the equitable issues as well as the issues at law. In this action the record shows that a jury was regularly drawn to try this action and at the commencement of the trial was present in court for that purpose. They were temporarily excused at the request of respondent’s counsel in order to permit him to make certain motions in the absence of the jury. Whereupon respondent’s counsel objected to the empanelment of the jury, and moved for its dismissal upon the ground that the action was an action in equity; that the legal relief sought was subordinate to the main equitable features of the action, and the only legal relief sought was a claim for damages. This objection of respondent was sustained, and an order was made dismissing the jury. No objection was made to the jury on account of any defect in the demand for a trial by jury, but the objection to the jury was made and sustained and a motion was made and granted for the dismissal of the jury on the ground that the action was one in equity and that the legal relief was subordinate to the main equitable features of the action. The reason, therefore, for the denial of appellants’ demand for a jury to try the action was not that the demand was insufficient or in any manner defective, but that the action although brought to enforce both legal and equitable remedies was triable by the court alone, and that the appellants had no right to have a jury pass upon respondent’s claim for damages.

Respondent further contends that even though the trial court may have committed error in denying appellants a jury trial upon the question of damages, nevertheless, the appellants were not prejudiced by this error for the reason that the facts disclosed by the record indicate not only that the respondent sustained damage by the acts of appellants and that the correct measure of damages was applied but no jury properly instructed could have returned a verdict in favor of appellants upon the question of damages. In the case of Union Oil Co. v. Reconstruction Oil Co., 20 Cal. App. (2d) 170, it was held that (page 190) [66 Pac. (2d) 1215], “In the instant action where the facts disclosed by the record indicate that the correct measure of damages was applied by the trial court and that in our opinion a jury properly instructed and properly performing its duty could have returned no other verdict than one favorable to respondent for the precise amount which was here awarded as damages, we are constrained to follow the rule announced in the former of the two above-noted groups of decisions and to declare that no error was committed by the trial court in refusing the demand of appellants for a jury trial on the issue of damages.’’ We think this statement of the District Court of Appeal goes beyond the rule announced in the Farrell case in holding that no error was committed by the denial of the trial court of a jury to try the question of damages. We are of the opinion, however, that under the facts of the instant case this error was not prejudicial to the rights of the appellants. The facts of the case clearly show that appellants admittedly drilled their wells so that they passed beyond the boundary line of their land into and under the surface of the lands of respondent. In the first place the wells were located on the surface of appellants’ land only a few feet from the boundary line of respondent’s land. After the wells were drilled a comparatively short distance they were deliberately diverted towards respondent’s land, and when they were completed they were hundreds of feet beyond the boundary line of appellants’ land and into and under respondent’s land. After the wells were drilled, large quantities of oil were extracted from the lands of respondent by these wells and appropriated by the appellants. No jury properly instructed and properly performing its duty could have returned a verdict that the respondent was not damaged by these acts of the appellants. As to the amount of damages which the respondent sustained by these acts of the appellants, there is no contest whatever. The court took the figures given by the appellants as to the amount and value of the oil which had been removed, deducting the amount of the royalty paid to the landowner which would have been payable in any event, and the appellants stipulated to the correctness of these amounts, thus in effect stipulating that if they were liable at all on account of the oil already removed, the amount was that which was in-eluded in the judgment. In our opinion, no reversible error appears in connection with the refusal to submit the issues of this case to a jury.

Another point raised is that the evidence was insufficient to justify the rendition of a money judgment against the appellant, Sam Bernstein. It is contended that there is no evidence showing that this appellant participated in the acts of which the respondent complains. This statement is not correct. One witness testified that he visited parcel B with Sam Bernstein and that Sam Bernstein explained to him the plan to drill wells on parcel B in such a manner that they could cross the boundary line and bottom in and produce oil from parcel A. With this evidence in the record we are of the opinion that no jury could have failed to find that the appellant, Sam Bernstein, was equally guilty of the illegal acts charged against him and his associates.

We are in accord with the remainder of the opinion of the District Court of Appeal, and hereby- adopt the same as a part of this opinion. It is as follows: “It is next urged that the court erred in not compelling the respondent as a prerequisite to injunctive relief to reimburse the appellants for all moneys expended by them in connection with the drilling of wells upon parcel B. This is based upon the contention that since the respondent was asking for equitable relief it should be ordered to do equity; that the wells on parcel B were drilled by the appellants with the knowledge and tacit consent of the respondent and, therefore, the respondent should be barred from equitable relief by the principles of estoppel and laches; and that the appellants were entitled to such reimbursement under the provisions of section 349% of the Code of Civil Procedure, which section was adopted after this action was begun.

“The act adopting section 349% (Stats. 1935, p. 2285) contained a declaration of policy declaring that there are many oil and gas wells in this state which are not wholly within the land owned or controlled by the owners or operators of the wells, that until recent years there was no way to determine even approximately the subsurface location of the well, and that in many cases such wells were drilled without any intent to invade the land of another. It fully appears that this section was not intended to have any application in a case where a well is intentionally diverted into the land of another. In the instant case it fully appears that the respondent retained all rights given by its original lease in so far as parcel A is concerned and it not only appears that the appellants’ lease applied only to parcel B but the court found upon ample evidence that the appellants well knew that the productive pool of petroleum oil underlying parcel A did not extend to or underlie parcel B and that they intentionally, secretly and fraudulently employed the right to occupy the surface of parcel B for the purpose of accomplishing a clandestine and secret penetration of the oil pool underlying parcel A and the removal therefrom of oil, well knowing that this oil was the property of the respondent. Under such circumstances the appellants were chargeable with the value of the oil without ■ any deduction for expenses incurred in bringing it to the surface. (Lightner Min. Co. v. Lane, 161 Cal. 689 [120 Pac. 771, Ann. Cas. 1913C, 1093].) Under such circumstances the appellants had no equities and may not rely upon the equitable rule that he who seeks equity must do equity. (Hibernia Sav. & L. Society v. Ordway, 38 Cal. 679; Richmond v. Bank of Perris, 102 Cal. App. 71 [282 Pac. 801].)

“Nor is there any room here for the application of the principles of laches or estoppel as against the respondent. The appellants contend that the respondent knew what was being done and tacitly consented thereto because this proceeding was not begun for several months. Drilling was begun on the first of the three wells on May 17, 1933, and the well was completed on June 20, 1933. When a representative of the respondent inquired as to whether this well was being whipstocked he was told by the appellants they were trying to keep the well straight. After that well was •completed the respondent was told that the bottom of the well was within parcel A but was not told that this had been intentionally done. The second well was started August 10, 1933, and completed September 14, 1933, and the third well was begun on November 24, 1933, and completed on January 16, 1934. No information as to the underground location of these wells came to the respondent until after the respective wells were completed and there is evidence that surveys and reports were intentionally kept from the respondent. The respondent had no information as to the underground location of the second and third wells until after March 20, 1934, when through a grand jury investigar tion surveys and reports were secured. There was no estoppel both because the respondent did not possess full information prior to or during the drilling of the wells and because the facts were fully known to the appellants, who were intentionally and secretly proceeding against the property of the respondent, and they were in no way or manner deceived or misled by anything done by the respondent. While the respondent learned after its completion that the first well penetrated their land it was not informed that this had been intentionally done or that there was any intention to do the same thing as the second and third wells were drilled. Since it was refused access to surveys and reports it became necessary for the respondent to ascertain the facts and to procure evidence in other ways. Not only would this take considerable time in view of the natural difficulties involved in obtaining such evidence, but the respondent was justified in taking steps to be very sure of the facts before proceeding with a charge of this nature. This action was begun on July 17, 1,934, and it cannot be held as a matter of law that the trial court erred in failing to find that the respondent was guilty of laches which would bar relief. ’ ’

For the reasons given, the judgment is affirmed.

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

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