source: Caselaw Access Project

author: EDMONDS, J.

license: Public Domain

text:
    [L. A. No. 16804.

      In Bank.
    October 16, 1939.)
    GERMAN BULCKE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

      Gladstein, Grossman & Margolis, Ben Margolis, Gallagher, Wirin & Johnson and A. L. Wirin for Petitioner.
    J. H. O’Connor, County Counsel, Douglas De Coster, Chief Deputy County Counsel, Newlin & Ashburn, A. W. Ashburn, Michael G. Buddy and Arnold Praeger for Respondents.
   EDMONDS, J.

The petitioner in this proceeding sent a telegram to Judge Ruben S. Schmidt protesting against the decision which occasioned the controversy in the case of Bridges v. Superior Court, ante, p. 464 [94 Pac. (2d) 983], and was adjudged guilty of contempt. Upon his petition a writ of review was issued by this court.

It appears that on the day before that set for hearing a motion for a new trial and a motion to vacate the judgment which had been rendered in the litigation concerning the affiliation of union longshoremen at Los Angeles harbor, petitioner, as vice-president of the International Longshoremen’s and Warehousemen’s Association, sent Judge Schmidt, before whom the motion was pending, the following telegram:

“Five thousand members and permit men International Longshoremens and Warehousemens Union Local 1-10 have accepted National Labor Relations Act Guaranteeing right of American workers to select own union and sole collective bargaining agency as boon to labor. We believe such rights in best American tradition. Appointment of administrator for handling union affairs International Longshoremens and Warehousemens Union Local 1-13 nullifies intent Labor Relations Act and is severe injustice to members that local. We urge such appointment shall not be made.’’

This telegram was received by the judge in his chambers and later shown by him to a committee of the Los Angeles Bar Association.

Thereafter, affidavits made on behalf of the association were filed in the superior court. According to one of them, the telegram sent by the petitioner was calculated and intended by him to interfere with and influence the actions and decisions of Judge Schmidt in the matters then pending before him; interfere with the due and orderly administration of justice; and bring about the vacation of the order theretofore made by causing him to grant a new trial. Upon these affidavits Judge Schmidt issued an order requiring the petitioner to show cause why he should not be adjudged guilty of contempt and punished therefor.

When the petitioner appeared before the court in response to the order to show cause, his counsel offered a peremptory challenge to the judge under the provisions of section 170.5 of the Code of Civil Procedure. This challenge was properly denied. (Austin v. Lambert, 11 Cal. (2d) 73 [77 Pac. (2d) 849, 115 A. L. R. 849].) There was also presented a written “motion” to disqualify Judge Schmidt for cause. This was accompanied by an affidavit stating facts allegedly showing bias and prejudice.

Declining to consider the “motion” or the supporting affidavit, the court sustained an objection to their being filed upon the ground that the contempt charged against the petitioner was a direct and not a constructive one. The prosecution then withdrew the objection to the filing of the documents and asked that the court allow them to be filed and then deny the motion, but Judge Schmidt ruled: ‘ ‘ The Court on its own motion will deny the request to have the motion filed.”

Counsel for petitioner then requested a jury trial, which request was likewise denied. A trial of the issues followed, ,and upon its conclusion judgment was rendered that the action of the petitioner in sending the quoted telegram was a contempt of the court and that he should be punished accordingly.

In contending that this judgment should be annulled, the petitioner, in addition to other objections made by him, insists that it is void because Judge Schmidt refused to follow the requirements of section 170 of the Code of Civil Procedure which provide for the hearing and determination of challenges for cause. The point relied upon in this regard is that when the petitioner filed his written statement under oath, objecting to the hearing of the contempt matter by Judge Schmidt and setting forth the grounds for the disqualification in the form required by the statute, Judge Schmidt lost jurisdiction to proceed further. The answer to this question depends upon whether the sending of a telegram to a judge under the circumstances here shown is a direct contempt of court. For if the act charged against the petitioner was a constructive contempt, then Judge Schmidt had no authority to hear or pass upon the question of disqualification raised by the petitioner. (Briggs v. Superior Court, 211 Cal. 619 [297 Pac. 3].)

Apparently the appellate courts of this state have not heretofore been called upon to decide whether one who sends to a judge a communication concerning a pending case commits a direct or a constructive contempt of court although by each of three decisions the writer of a letter was found guilty. However, in each of these cases, the writer, after having sent his letter, offered it as evidence in the pending proceedings.

In the case of Ex parte Ewell, 71 Cal. App. 744 [236 Pac. 205], the petitioner sent a contumacious letter to the judge and was later found guilty “upon the ground that said letter was an attack upon the honor and integrity of the court; that petitioner’s part in dictating said letter, having it written by said witness, presenting it through the mail, and afterward injecting it into proceedings on the hearing of said motion, coupled with the language used by petitioner during the hearing of said motion was contemptuous”. So, also, in Blodgett v. Superior Court, 210 Cal. 1 [290 Pac. 293, 72 A. L. R. 482], the contemner, who wrote a grossly contemptuous letter to the judge, later filed an “Answer to Contempt Proceedings” in which he asserted that the judge was disqualified because of bias, and in support of this claim attached a copy of the letter. At the contempt proceeding the judge denied his disqualification and found Blodgett guilty of contempt in respect to the matter contained in the “Points and Authorities’’ and also guilty of a further contempt consisting in the sending of the letter and its presentation in open court at the hearing. This court in affirming the judgment held that the filing of the “Points and Authorities” was a contempt “committed in the presence of the court within the meaning and intent of section 1209 of the Code of Civil Procedure” and was “a direct, as distinguished from a constructive, contempt”. As to the second charge, based upon the contemner’s production in open court of the scandalous letter which he had sent to the judge, the court held that the production and offer of this letter in open court “could not but constitute another and more flagrant contempt”.

A case where the facts are more directly in point is In re Arnold, 204 Cal. 175 [267 Pac. 316], which was an original proceeding in this court. The contemner, who was not an attorney in nor a party to a pending election matter before the court, addressed a letter to the justices which, it was held, constituted “an unlawful interference with the proceedings of the court and an attempt to obstruct the course of justice, and, therefore, a contempt of court”. Although cited in the Blodgett case, supra, as one of direct contempt, the opinion does not classify it as such and the procedure which was followed does not determine how the court defined the offense. So far as the record and opinion shows, the respondent may have been prosecuted for either a direct or indirect contempt because the proceeding was initiated by citation and without affidavit, which is prescribed as necessary for indirect contempts, but the court heard evidence, which is inconsistent with the practice where one is charged with a direct contempt.

However, the question was directly decided by the Supreme Court of the United States in Cooke v. United States, 267 U. S. 517 [45 Sup. Ct. 390, 69 L. Ed. 767], The petitioners, who were attorney and client in litigation pending before a federal district judge, addressed a letter, marked personal, to the judge and caused it to be delivered to him at his chambers. The letter charged that the judge evinced bias toward the client in a case just completed and requested the judge to withdraw voluntarily from remaining cases in which the client was interested. The judge caused petitioners to be attached and without giving them an opportunity to obtain counsel or to present matter in defense or extenuation summarily committed them to prison for thirty days.

On certiorari, the order of commitment was annulled upon the ground that the procedure followed by the district judge deprived petitioners of their liberty without due process of law. It was said that for obstructions occurring in open court a judge may proceed upon his own knowledge of the facts and punish the offender without further proof and without issue or trial in any form. “When the contempt is not in open court, however, there is no such right or reason in dispensing with the necessity of charges and the opportunity of the accused to present his defense by witnesses and argument. . . . Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation.” Although the court did not expressly define the petitioner’s act as a direct or constructive one, the reasoning of the opinion makes certain that the decision was predicated upon the ground that the sending of a contumacious letter to a judge is not a direct contempt.

A New York case is to the same effect. It arose because an attorney wrote to a judge criticizing him and characterizing an expected decision as unjust. The court held that, while his conduct was most reprehensible, it was not punishable as a contempt of court under the New York statute, which limited the court’s power to punish for misbehavior in the presence of the court; that is, for direct contempts. (In re Griffin, 1 N. Y. Supp. 7.) The case of Ex parte Earman, 85 Fla., 297 [95 So. 755, 31 A. L. R. 1226], also holds that one who sends such a letter is not guilty of a direct contempt. In an annotation to the report of this case in 31. A. L. R. 1239, it is said “that letters or other written communications sent through the mail to a judge necessarily seem to fall within the class of contempts known as indirect or constructive contempts”. Also, a recent case indicating that such conduct constitutes a constructive contempt is Freedman v. State, (Md.) 6 Atl. (2d) 249.

This rule would seem to be supported by both reason and authority. The power of a court to punish for a direct contempt is based upon the judge’s knowledge of the commission of the act by the contemner. A judge usually cannot say with any certainty that a letter or telegram received by him purporting to be signed by a certain person was either written or sent by that person; hence such an act, if contumacious, should be classified as an indirect contempt. So far as the decision of In re Arnold, supra, may be said to hold to the contrary, it is overruled.

This determination makes it unnecessary to consider any of the other points presented by the petitioner.

The judgment is annulled.

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


author: SHENK, J.

text:
    [S. F. No. 15949.
    In Bank.
    October 26, 1939.]
    WEST COAST ADVERTISING COMPANY (a Corporation), Respondent, v. THE CITY AND COUNTY OF SAN FRANCISCO (a Municipal Corporation), Appellant.

      John J. O’Toole, City Attorney, and Walter A. Dold, Chief Deputy City Attorney, for Appellant.
    Glensor & Schofield for Respondent.

      Harry C. Clausen, Hartley F. Peart, Howard Hassard, Harry G. Henderson, Rufus H. Kimball, Simeon B. Sheffey and Pillsbury, Madison & Sutro, as Amici Curiae, on Behalf of Respondent.
   SHENK, J.

The plaintiff sued the City and County of San Francisco to recover license taxes paid during the years 1933 to 1936, inclusive. The judgment was for the plaintiff, and the defendant has appealed.

During the period involved, the plaintiff was engaged in the business of outdoor advertising, as defined in ordinance No. 4059 (new series) adopted bjr the board of supervisors of the city and county and approved by the mayor in 1917. Pursuant to that ordinance as amended in 1920 by ordinance No. 5133 (new series), and ordinance No. 5132 (new series), entitled “An Ordinance imposing License Taxes on Certain Businesses, Callings, Trades, or employments within the City and County of San Francisco”, as adopted in 1920, the plaintiff paid each quarter-yearly license fee of $90. On the trial of the action it was stipulated and found by the court that the tax paid by the plaintiff was a tax imposed for revenue only. The judgment for the plaintiff was based on the trial court’s conclusion that the charter of the City and County of San Francisco does not authorize the imposition and collection of license taxes for revenue purposes.

On this appeal the defendant concedes that the charter provisions do not purport in express words to confer a grant of power upon the city to impose license taxes for revenue purposes. But the city contends that the present charter, which contains the provisions permitted by sections 6 and 8 of article XI of the state Constitution as amended in 1914, is an instrument of restrictions and limitations only; that no restriction appears therein upon the exercise of the taxing power evidenced by the ordinances here involved; therefore that the power may so be exercised without an express grant thereof in the charter.

The plaintiff relies in part upon the general state policy reflected in sections 3366 and 4041.14 of the Political Code to the effect that legislative bodies of counties and cities shall, for purposes of regulation and not otherwise, have power to license all and every kind of business not prohibited by law. It contends that because of those general laws and state policy, a specific grant in the present charter is necessary in order to confer taxing power for revenue purposes upon the City and County of San Francisco. In this connection the plaintiff cites City and County of San Francisco v. Boyle, 195 Cal. 426 [233 Pac. 965], which states the general rule that municipal corporations have only the powers expressly conferred and such as are necessarily incident to those expressly granted or essential to the declared objects and purposes of the corporation.

Prior to 1914 the Constitution (art. XI, sec. 6) provided that cities and towns, except in municipal affairs, should be subject to and be controlled by general laws. The defendant’s charter of 1899 was framed in conformity with the opinion then prevailing that a city charter must contain a specific grant of power with reference to its conduct of municipal affairs. That charter (subd. 15, sec. 1, chap. 2, art. II, Stats. 1899, pp. 241, 249) contained an express grant of power to levy license taxes for revenue purposes. (In re Higgins, 50 Cal. App. 533 [195 Pac. 740].) The validity of ordinance No. 5132 (new series), above mentioned, as a measure imposing occupational license taxes for revenue purposes, was upheld in the Higgins case.

The amendment of section 6 of article XI of the Constitution, adopted in 1914, provided that cities and towns theretofore or thereafter organized, by creating new charters or by amending existing charters, could become empowered “to make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters, they shall be subject to and controlled by general laws”. At the same time the following sentence was included in an amendment to section 8 (providing the manner whereby a city having a designated population may frame and adopt a charter for its own government) : “It shall be competent in any charter framed under the authority of this section to provide that the municipality governed thereunder may make and enforce all laws and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters, and in respect to other matters they shall be subject to general laws. ’ ’

The history and the effect of the successive constitutional changes culminating in the privilege of autonomous rule for municipalities as it was extended by the 1914 amendments, has been traced and analyzed in various decisions of the courts and in special articles. (See Fragley v. Phelan, 126 Cal. 383 [58 Pac. 923]; Ex parte Helm, 143 Cal. 553 [77 Pac. 453] ; Civic Center Assn. v. Railroad Com., 175 Cal. 441 [166 Pac. 351]; City of Long Beach v. Lisenby, 175 Cal. 575 [166 Pac. 333] ; City of Pasadena v. Charleville, 215 Cal. 384 [10 Pac. (2d) 745]; Bank v. Bell, 62 Cal. App. 320 [217 Pac. 538] ; 11 Cal. Law Rev., pp. 91, 446.)

Since the 1914 amendments to the Constitution San Francisco has adopted a new charter, called the charter of 1932. (Stats. 1931, pp. 2973, 2978.) Section 2 of that charter contains the following provision: 11 The city and county may make and enforce all laws, ordinances and regulations necessary, convenient or incidental to the exercise of all rights and powers in respect to its affairs, officers and employees, and shall have all the rights and powers appropriate to a county, a city, and a city and county, subject only to the restrictions and limitations provided in this charter, . . . The specification or enumeration in this charter of particular powers shall not be exclusive. The exercise of all rights and powers of the city and county when not prescribed in this charter shall be as provided by ordinance or resolution of the board of supervisors.” That section also provides that all ordinances or resolutions in force at the effective date of the charter and not inconsistent therewith shall continue in force until amended or repealed.

Section 24 of said charter, treating of “permits and inspections”, is the section which states the limitations and restrictions upon the power to issue licenses. The pertinent portions of that section are as follows:

“The board of supervisors shall regulate, by ordinance, the issuance and revocation of licenses and permits for the use of, obstruction of • or encroachment on public streets and places, . . . ;. and for the operation of business or privileges which affect the health, fire-prevention, fire-fighting, crime, policing, welfare or zoning conditions of or in the city and county; and for such other matters as the board of supervisors may deem advisable. Such ordinance shall fix the fees or licenses to be charged, which shall be not less than the cost to the city and county of regulation and inspection; . . . The chief of police in the performance of police duties shall have power to examine at any time the books and premises of pawnbrokers, peddlers, junk and second-hand dealers, auctioneers and other businesses designated by the board of supervisors, and the tax collector shall have power to examine the books of any business for which a license is issued and a fee charged on the basis of the receipts of such business, . . .
“No license tax shall be imposed on any seller or manufacturer of goods, wares or merchandise operating at a fixed place of business in the city and county, except such as require permits or licenses in accordance with or under authority of any local health, sanitary or other ordinance under the police power. ’ ’

As noted, it is the plaintiff’s contention that inasmuch as the foregoing section does not contain an express provision granting the right to impose license taxes for revenue purposes, and because, so it is claimed, a charter is a grant of power, the right to levy such taxes may not be implied.

It is now established by a line of decisions of the courts of this state that a city which has availed itself of the provisions of the Constitution as amended in 1914 has full control over its municipal affairs unaffected by general laws on the same subject-matters, and that it has such control whether or not its charter specifically provides for the particular power sought to be exercised, so long as the power is exercised within the limitations or restrictions placed in the charter. (Siege v. City of Richmond, 194 Cal. 305 [228 Pac. 461]; Brougher v. Board of Public Works, 205 Cal. 426 [271 Pac. 487] ; Butterworth v. Boyd, 12 Cal. (2d) 140 [82 Pac. (2d) 434]; Bank v. Bell, supra.) As stated in In re Galusha, 184 Cal. 697, at page 700 [195 Pac. 406], “The question, then, is not whether the charter grants the power to impose the tax, but whether it prohibits the tax, . . . ” Also in In re Nowak, 184 Cal. 701, 704 [195 Pac. 402], it was said: “The net result ... is that, as to municipal affairs, the charter, instead of being a grant of power, is, in effect, a limitation of powers, and, the imposition of the tax for revenue purposes being strictly a municipal affair, the city has the power to impose that tax unless the power was taken from it by the charter itself. [Citing cases.] ”

The foregoing cited cases leave no doubt that such a charter is no longer a grant of powers, but is rather an instrument which accepts the privilege granted by the Constitution of complete autonomous rule with respect to municipal affairs, and which otherwise serves merely to specify the limitations and restrictions upon the exercise of the powers so granted and accepted. Therefore any such power not expressly forbidden may be exercised by the municipality, and any limitations upon its exercise are those only which have been specified in the charter.

The decisions relied upon by the plaintiff such as City and County of San Francisco v. Boyle, supra, Whitmore v. Brown, 207 Cal. 473 [279 Pac. 447], Fessier v. Campbell, 2 Cal. (2d) 638 [42 Pac. (2d) 1020], Griffin v. City of Los Angeles, 134 Cal. App. 763 [26 Pac. (2d) 655], and Richards v. Wheeler, 10 Cal. App. (2d) 108 [51 Pac. (2d) 436], were concerned either with charters which were framed as specific grants of power, rather than with limitations upon recognized existing powers; or, if the latter, the question was whether the power was one relating to a strictly municipal affair or was one controlled by general laws. For instance, in the case of Griffin v. City of Los Angeles, supra, it was recognized (p. 769) that “the powers conferred upon the City of Los Angeles in municipal affairs are subject to charter restrictions only, and the enumerations therein of powers conferred do not constitute limitations thereon for such purposes”. Likewise, in all the cases where the question of the effect of the 1914 amendments has been considered, the same recognition has uniformly been present.

The plaintiff also places special reliance upon the case of City of Pasadena v. Charleville, supra. It urges the conclusion from the decision in that case that the present charter of the City and County of San Francisco was not drawn as an acceptance of the general grant contained in the amended sections of article XI of the Constitution, and as an instrument of limitations and restrictions ; but that it was framed as a grant of express powers. By an amendment to its charter in 1923 the city of Pasadena had availed itself of the privilege extended by sections 6 and 8 of article XI as amended. In that ease it was said: “But it is not necessary that the charter specifically legislate on the subject. In order to remove the city’s municipal affairs from the control of general laws it is sufficient if the city has availed itself of the offer extended to it by the Constitution as amended in 1914 and has incorporated in its charter an acceptance of the privilege tendered. . . . [Citing cases.] Where in the one case the charter specifically legislates upon the subject it is deemed a grant of power; and where, on the other hand, the charter in general terms accepts the offer extended by the Constitution, the enumeration of powers is unnecessary and the general language of the acceptance becomes a limitation of the power of the city and is all-embracing so far as the removal of the municipal affairs of the city from the control of the legislature is concerned.” The court then called attention to the amendment to the charter, and stated: “This amendment was adopted in strict conformity with the amendment of section 6 of article XI of the Constitution in 1914. The charter so amended is the fundamental law of the city, subject only, as to its municipal affairs, to the restrictions and limitations of the charter itself, and, of course, subject to the provisions of the Constitution which is the authority for its creation. ... In none of the cases in this state has it been held that an enactment of the legislature was controlling as to a municipal affair of a city which had in its freeholders’ charter legislated on the subject or had availed itself by charter provisions of the offer of further autonomy extended by the 1914 amendment to the Constitution.” It is obvious from the language used by the court in that ease that there is no support therein for the conclusion drawn by the plaintiff, namely, that if the charter, which has adopted the privilege extended by the amendment of 1.914, purports to enumerate some of the powers conferred upon the city, it is thereby reconverted into the type of instrument which it was the intention of the amendment to render unnecessary. On the contrary the courts have given effect to the obvious purpose of the amendment and have held, as noted, that the enumeration of some powers does not exclude the exercise of powers not enumerated except as limited by the charter and the Constitution. There is no contrary implication to be drawn from the decision in the case of Pasadena v. Charleville, supra. Furthermore, by the quoted provisions from section 2, the defendant has accepted the grant of such general powers and has also expressly negatived the effect contended for by the plaintiff by providing that the enumeration of specific powers shall not be exclusive, and by reserving the right to exercise powers not enumerated.

No doubt is entertained upon the proposition that the levy of taxes by a municipality for revenue purposes, including license taxes, is strictly a municipal affair. (Ex parte Braun, 141 Cal. 204 [74 Pac. 780]; Ex parte Helm, supra; Ex parte Lemon, 143 Cal. 558 [77 Pac. 455, 65 L. R. A. 946] ; Ex parte Jackson, 143 Cal. 564 [77 Pac. 457]; Trebilcox v. City of Sacramento, 91 Cal. App. 257, 265 [266 Pac. 1015].) As such a municipal affair it must be deemed to have been included within the special grant and privilege tendered by the constitutional amendment in 1914 and later accepted by the city. A statement made in Ex parte Braun, supra, at page 211, is just as applicable since the 1914 amendment as it was prior thereto. The statement follows: “It is of course true that the local power of taxation, like all other local powers, must have its origin in a grant by the state, and that it may at all times be controlled by the sovereign power. But it does not follow that the legislative department of the state may so control it. In the absence of constitutional provisions relating to the subject, the legislative department would necessarily have unlimited sway, and could, for the state, confer, modify, or withdraw the power and prescribe such regulations as it saw fit for its exercise. The state Constitution is, however, the highest expression of the will of the people of the state, and so far as it speaks, represents the state. . . . The power of cities operating under freeholders’ charters to raise money by taxation for municipal purposes does not find its source in any grant by the legislature. There is no enactment of the legislature purporting to vest such authority in such cities. Such power has been directly granted by the people of the state by the provisions of the state Constitution.”

It follows that if the charter does not contain any limitation or restriction upon the power of the City of San Francisco to levy license taxes for revenue purposes, such taxes may legally be imposed and collected. An analysis of the pertinent charter provisions discloses that the framers thereof were careful to preserve rather than to prohibit the right to exercise the power here asserted by the city. There is no provision in the charter which denies the city’s right to levy license taxes for revenue purposes on the business of the plaintiff herein. The plaintiff refers to the clause, “and for such other matters as the board of supervisors may deem advisable”, appearing in the language of section 24 which places in the board the general regulatory power to issue and revoke licenses and permits. It contends that included within this quoted phrase only such other matters were contemplated as were similar and relevant to those particularized, namely, such as pertained to the exercise of the police power; and further that the inclusion of only such related purposes had the effect of restricting the power to issue licenses and permits to those issued for regulatory as distinguished from revenue purposes. However, it is manifest from the remaining language of the section that any particularization inferable from the quoted phrase was not intended to have the effect urged by the plaintiff. The concluding paragraph of the section singles out only sellers or manufacturers of goods, wares or merchandise operating at a fixed place of business upon whom license taxes may not be imposed except for “health, sanitary or other ordinance enacted under the police power”. As to all other businesses, including that of the plaintiff herein, no restriction appears upon the right of the city to impose license taxes for revenue purposes.

Further rules of construction invoked by the plaintiff are inappropriate here. The contentions in respect to such rules presuppose and are based upon the assumption that the charter is a grant of enumerated powers, rather than an instrument of limitations and restrictions upon the exercise of existing powers relating to municipal affairs. Inasmuch as it is the latter, the rule that taxing statutes must be strictly construed against the taxing power cannot, under the authorities hereinabove cited, have the effect to restrict the city’s power to exercise the right except to the extent that such right is expressly limited by the provisions of the charter. Also, inasmuch as the instrument is one of limitations and restrictions only, the rule expressio unius est exclusio alterius would not operate as contended by the plaintiff. The only express limitation upon the right to impose license taxes for revenue purposes having been directed to include certain specified businesses, we may not infer a limitation upon the exercise of that power in respect to businesses not mentioned. Similar rules of construction were rejected in In re Nowak (supra, at p. 707). Even if section 24 of the charter should, according to the plaintiff’s view, be deemed an enumeration of powers, the provision of section 2 (that the specification or enumeration of particular powers shall not be exclusive), would preclude the application of such rules with the effect urged by the plaintiff.

We therefore conclude that the Constitution and not the charter is the source of the city’s power to levy taxes; that pursuant to the constitutional grant which has been accepted by the city, it has acquired complete control over its municipal affairs, including the power to levy license taxes for revenue purposes; that the restrictions on the exercise of that power are only the limitations and restrictions appearing in the Constitution and in the charter itself; and that inasmuch as the charter contains no express limitation upon the power to impose license taxes for revenue purposes upon the class of business conducted by the plaintiff herein, the taxes paid by it and herein sought to be recovered were not illegally imposed. It is not contended that the tax ordinance violates any provision of the Constitution.

The foregoing conclusion renders it unnecessary to discuss other questions presented.

The judgment is reversed.

Curtis, J., Waste, C. J., Carter, J., Houser, J., and Gibson, J., concurred.


author: KNIGHT, J., pro tem.

text:
    [L. A. No. 17268.
    October 26, 1939.]
    MARK BENSON, Appellant, v. CHARLES GARDNER et al., Respondents.

      Herbert Cutler Brown for Appellant.
    C. Ibeson Sweet for Respondents.
   KNIGHT, J., pro tem.

Respondents move to dismiss the appeal herein upon the grounds that no transcript has been filed and that the forty-day period fixed by section 1 of rule I of the Rules for the Supreme Court and District Courts of Appeal within which a transcript could have been filed has long since expired.

The appeal was taken from a judgment entered in favor of respondents pursuant to an order sustaining a demurrer to the complaint without leave to amend; hence it is one that may be taken, presented and determined on the judgment roll alone. (City of Los Angeles v. Forrester, 4 Cal. (2d) 152 [48 Pac. (2d) 27].) Notice of appeal was served and filed on August 26, 1938, which was within sixty days after the entry of judgment, but since then appellant has done nothing in furtherance of the appeal. On the other hand, respondents have never given notice of entry of the judgment, nor has appellant in any manner waived such notice.

The determinative question presented by the motion is whether in taking an appeal such as this, that is, on the judgment roll alone, an appellant may avail himself of the alternative method prescribed by section 953a of the Code of Civil Procedure, for if it be the law that such method may be invoked, then the appellant herein is not in default, for the reason that until written notice of entry of the judgment is given or waived, the time within which he must initiate proceedings for the preparation of a transcript does not start to run. In other words, section 953a provides that the notice requesting the preparation of the transcript must be filed “ . . . within ten (10) days after notice of entry of the judgment ... ”, and it is well settled that the period of time thereby fixed does not begin to run until written notice of the entry of judgment is given or waived in the manner specified by section 953d of the same code, and that the filing of notice of appeal does not constitute a waiver of such notice. (Griffin v. Kent, 206 Cal. 263 [274 Pac. 56] ; Attkisson v. Reynolds, 94 Cal. App. 185 [270 Pac. 686]; Smith v. Wall, 97 Cal. App. 674 [275 Pac. 983]; Best v. Smith, 22 Cal. App. (2d) 363 [71 Pac. (2d) 78] ; Sterling Corporation v. Superior Court, 207 Cal. 370 [278 Pac. 859].)

It is evident from a review of the history of section 953a and of the cases construing its provisions, that the question at issue should be answered in the affirmative. It appears therefrom that in 1915 the legislature materially extended the scope of said section by way of amendment thereto; and that while the construction placed on the section before it was amended was that appeals taken upon the judgment roll alone were excluded from the operation thereof (Harpold v. Slocum, 168 Cal. 364 [143 Pac. 609]; Lapique v. Plummer, 33 Cal. App. 317 [165 Pac. 56]), since the adoption of the amendment a contrary rule of construction has prevailed. (McKinnell v. Hansen, 34 Cal. App. 76, 81 [167 Pac. 887] ; Beckett v. Stuart, 35 Cal. App. 796 [171 Pac. 107]; Ramsay v. Rodgers, 189 Cal. 100 [207 Pac. 516]; Lake v. Harris, 198 Cal. 85 [243 Pac. 417] ; Charles v. City of Crescent City, 12 Cal. (2d) 241 [83 Pac. (2d) 34].) That is to say, prior to the amendment of 1915 section 953a provided that any person desiring to appeal from any judgment, order or decree of the superior court 11 may, in lieu of preparing and settling a bill of exceptions pursuant to the provisions of section 650 of this code”, file with the clerk of the court from whose judgment, order or decree said appeal is taken, or to be taken, a notice stating that he desires or intends to appeal, or has appealed therefrom, and requesting a transcript, etc.; and the construction placed on said section as it then stood was that the method of appeal therein provided could be invoked only in cases where a reporter's transcript was required. In thus circumscribing the scope of the section the court in Lapique v. Plummer, supra, said: “ . . . the appeal is upon the judgment roll alone, a transcript of which is presented by a certified typewritten copy. No authority is found, either in the rules of the court or in the statutory provisions of the code, for this method of bringing up the record, where it consists solely and alone of the judgment roll. In the cases there specified, sections 953a, 953b and 953c of the Code of Civil Procedure provide for the preparation, certification, and filing of phonographic reports and transcripts of records to be used on appeal; but these sections do not apply to the transcript where the appeal is from the judgment upon the judgment roll alone.” (Citing Harpold v. Slocum, supra.) But in 1915, the legislature broadened the operation of section 953a by adding immediately after the words “of this code” two clauses reading as follows: “or for the purpose of presenting a record on appeal from any appealable judgment or order, or for the purpose of having reviewed any matter or order reviewable on appeal from final judgment”; and shortly after the adoption of the amendment it was held by this court in an opinion denying a petition for hearing after decision of the District Court of Appeal, in the case of McKinnell v. Hansen, supra, that the alternative method of appeal as then set up by section 953a was available where the appeal was taken upon the judgment roll alone. In so holding the court went on to say: “Prior to the amendment of section 953a in 1915, it was held that when the appeal was on the judgment roll alone, no record on appeal could be prepared thereunder, but it is settled by decisions made since the amendment that the effect thereof is to authorize a record thereunder even when the appeal is on the judgment roll alone, with the consequent right to a typewritten record thereof.” And ever since the rendition of that opinion the courts have consistently adhered to such construction. The case of Beckett v. Stuart, supra, decided soon afterwards, held to the same effect; and both of those cases have been cited approvingly and the rule thereof has been restated and applied in numerous later cases, among them being Ramsay v. Rodgers, supra, Lake v. Harris, supra, and Charles v. City of Crescent City, supra. In Lake v. Harris, supra, the language used in reaffirmance of the rule was as follows: “The effect of the amendment (of 1915 to section 953a) was to authorize the preparation of a record under that section even where the appeal is on the judgment roll alone (see opinion of Supreme Court appended to McKinnell v. Hansen, 34 Cal. App. 76, 81 [167 Pac. 887], in denying petition for rehearing; also Beckett v. Stuart, 35 Cal. App. 796 [171 Pac. 107]; Locke Paddon v. Locke Paddon, 194 Cal. 73 [227 Pac. 715].)” Moreover, as shown by the case of Charles v. City of Crescent City, supra, no exception is made of that class of appeals taken on the judgment roll alone wherein there has been no trial on the merits, for in that ease, as here, the appeal was taken from a judgment entered in favor of the defendants pursuant to an order sustaining demurrers to a complaint without leave to amend; and it was held that the provisions of section 953a were available in taking such appeal and that the typewritten transcript procured in accordance therewith was sufficient for its presentation.

Apart from any arguments advanced in those cases, there have been no reasons suggested in support of the present motion which would justify the belief that when in 1915 the legislature broadened the operation of section 953a, it intended that the restricted construction theretofore placed thereon should continue; and the fact that said section was revised shortly after the rendition of the decision in Harpold v. Slocum, supra, which excluded appeals taken on judgment rolls alone from the operation of said code section, tends strongly to prove that the real purpose of the amendment was to overcome the effects of that decision and to bring all appeals taken on the judgment roll alone within the scope of said code section.

It has been stated that the construction thus given the section places the party taking an appeal such as this in a position to delay indefinitely the presentation and determination thereof. But such is not the case, for the simple reason that as in all other appeals taken pursuant to section 953a the procedure prescribed therein for initiating the proceedings for the preparation of a transcript may be set in motion at any time by the respondent himself, merely by serving upon the appellant notice of the entry of judgment. Nor may it be said that such construction conflicts with any of the views expressed in the case of Miller v. Price, 203 Cal. 772 [265 Pac. 931]. The portion of the decision therein which is pertinent here holds merely that a typewritten transcript on appeal taken on the judgment roll alone, when properly certified, is sufficient under the provisions of section 950 of said code for the presentation of the appeal, even though no attempt has been made to secure a record pursuant to the provisions outlined in section 953a (Charles v. City of Crescent City, supra), and that under section 950 written notice to the clerk to prepare the transcript is not essential to its legal sufficiency.

Therefore, since the provisions of section 953a are available in taking an appeal of this kind, it cannot be held that the appellant herein is in default, because, under the authorities hereinabove cited, the period of time fixed by said section within which he may initiate proceedings to procure a transcript does not begin to run until respondents serve their notice of entry of the judgment, or such notice is waived in the manner provided by section 953d. Accordingly the motion to dismiss should be denied, and it is so ordered.

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


author: THE COURT.

text:
    [Crim. No. 4254.
    In Bank.
    October 27, 1939.]
    THE PEOPLE, Respondent, v. JAMES CHARLES WILLIAMS, Appellant.
    No appearance for Appellant.
    Earl Warren, Attorney-General, William F. Cleary, Deputy Attorney-General, and Earl Redwine, District Attorney, for Respondent.
   THE COURT.

On his arraignment for plea on a charge of having murdered two men, named respectively E. H. Weimers and Robert Clay Martin, defendant pleaded guilty. Evidence which thereupon was introduced and which related to the manner in which the crimes were committed, and the surrounding circumstances, disclosed the existence of the following pertinent facts, to wit: Defendant was a farm laborer, 32 years of age. For a considerable period of time preceding the date of the commission of the two homicides, defendant had been in the regular employ of Weimers, who was engaged principally in the raising of turkeys on a 40-aere ranch owned by Mm and located near the town of Blythe, California. During the period of such employment, and up to the date when the homicides were committed, defendant had been living in a tent which he owned and which occupied an appropriate space on the property of his employer. For some reason that apparently was satisfactory to Mr. Weimers, defendant was relieved of his regular duties as an employee, and Robert Martin was employed permanently in the place of defendant, who was, however, permitted to continue in the occupancy of his tent, which remained on the premises. After Martin had supplanted the defendant as permanent employee, the services of defendant were engaged by Weimers only for short periods of time, or on odd jobs, as emergencies occurred which required extra help. Apparently, no ill feeling existed between defendant and either or both of the other two men. However, it appears that, secretly, defendant resented the fact that he had been displaced in his employment by Martin, and that defendant nursed that resentment against both of the other men. On the day on which the homicides were committed, Weimers left his ranch and, in an automobile which he owned, went on a trip to the town of Blythe. The record shows that during the absence of Weimers, defendant resolved to kill both Martin and Weimers, and made his plans accordingly. Defendant knew that at about 4:30 o'clock P. M. Martin was in the habit of feeding the turkeys on the ranch, and that, at about that hour, in order to procure the necessary grain for that purpose, Martin would enter a certain building referred to as a “brooder house” that was located on the property. Defendant was the owner of a .22 caliber repeating rifle, which he loaded, and thereupon “lay in wait” for Martin behind the said building. After Martin had reached the entrance of the building,—at what appeared to defendant to be a favorable moment for the accomplishment of his purpose,—defendant shot Martin in the face with the rifle. Thereupon Martin ran from the immediate presence of defendant, who followed Martin and shot him again, first in the back and then in the back of the head. After Martin had fallen, defendant dragged the body of Martin “by one foot” a short distance and covered it with some straw, in order that the body might not be seen by any person who might be passing the property, or who might call thereat for any purpose. It also appears that Weimers was the owner of two dogs. Before he left his ranch to go to the town of Blythe, in accordanee with his usual custom in that regard, he placed the dogs within a small enclosure or yard that was adjacent to his house on the premises. In consequence of the shooting of Martin, the dogs barked and made considerable disturbance. Fearing that such noise might attract the attention of some passerby, defendant shot and killed both the dogs and thereupon concealed their bodies in a “cooler”, a small wooden structure that was built against the house. Defendant then entered Weimers’ house, which he carefully searched for money and other valuables. He secured several articles of clothing belonging to Weimers, his .38 caliber revolver, some cartridges for the revolver and 27 cents in cash. Defendant also procured a single-barrel repeating shotgun, which was the property of Weimers, which he loaded and thereupon proceeded to “lay in wait” for Weimers. On Weimers’ appearance at the ranch, and near the place where he had concealed himself, defendant shot and killed Weimers with such gun, in practically the same manner in which theretofore defendant had killed Martin. Thereupon, defendant appropriated Weimers’ automobile to his own use and attempted to make his escape,—taking with him the wearing apparel and other articles belonging to Weimers which he had secured from the house. However, the commission of the crimes was soon discovered and defendant was apprehended at a distance of about 80 miles from the ranch. He not only freely and voluntarily confessed that he had killed both Martin and Weimers, but also, after he had been returned to the scene of the crimes, he reenacted the manner in which and indicated the place where each of the offenses had been committed.

Defendant having pleaded “guilty”, and the evidence that was thereupon introduced having disclosed the existence of facts and circumstances substantially as hereinbefore has been set forth, the degree of defendant’s crimes was “determined” bv the court to be murder in the first degree, and judgment was thereupon pronounced that, as penalty therefor, defendant should “suffer death”.

Under the provisions of section 1239 of the Penal Code, an appeal to this court from the said judgment has been “automatically taken without any action by the defendant or his attorney”. Although, on his arraignment for plea defendant was represented by counsel, neither brief nor oral argument has been presented to this court in behalf of defendant. The duty therefore has been cast upon this court to search the record herein for the purpose of reaching a conclusion as to the question whether defendant was accorded a fair hearing, both at the time when he entered his plea and immediately thereafter, on the taking of evidence by the court, to the end that the degree of the crimes might be determined. As hereinbefore has been stated, on his arraignment for plea in the trial court, defendant pleaded “guilty” to each count that was contained in the information which had been filed against him,—following which, in accordance with the provisions of section 1192 of the Penal Code, evidence was received by the court solely for the purpose of determining the degree of the offenses that had been committed by defendant. (8 Cal. Jur. 457; 13 Cal. Jur. 674.)

Other than an implication that might be said to arise from the fact that a few objections were interposed by counsel who represented defendant,—regarding the admissibility of certain exhibits,—no procedural or other irregularity of any sort appears in the record. In regard to those objections, the most that is disclosed is that,—in the matter of introduction in evidence of certain photographs,—for the purpose of making clear the location or relative position on the ground where certain bits of evidence were situated, the photographer placed some foreign object, such as a stick, a tin can, or a light globe,—for example, to relatively locate in such photographs “a 12-gauge shotgun shell”; a spot of blood; a shotgun wad; a .22 caliber cartridge shell; and a “hat in the ditch”. Bach of defendant’s objections to the introduction of such photographs was overruled. Furthermore, in that connection, it appears that among the several articles of personal property that belonged to Weimers, and which defendant had stated were taken by him from the house before Weimers had been killed, were a .38 caliber Smith & Wesson revolver, a coat, trotisers, shirt, hat and a pair of shoes. In attempting to place before the trial court “the entire picture” of the crimes that had been committed by defendant, the prosecution offered in evidence each of such articles. Bach of defendant’s objections to the introduction of such evidence was overruled by the court. But it is obvious that, since defendant already had pleaded “guilty” to the charges, it becomes questionable whether subsequent procedural errors, if any, which may have occurred during the judicial inquiry held for the purpose of establishing a foundation for the exercise of the discretion of the trial judge in the matter of determining what penalty should be imposed, may properly be subjected to the same degree of strictness regarding the admission or the rejection of evidence as should obtain on the trial of an action in which the guilt of a defendant is to be determined. (People v. Popescue, 343 Ill. 142 [177 N. E. 739] and see annotation, 77 A. L. R. 1199, 1213.)

With regard to that question, in the case entitled People v. Popescue, supra, the court said: “ ... it must be apparent that, where a defendant waives a jury trial and pleads guilty and asks for no trial, no issues remains, and there is nothing to try. The right to a jury is waived, and with it, of course, the constitutional guaranties with respect to the conduct of criminal trials. A plea of guilty waives any defect not jurisdictional. ... In many decisions of other jurisdictions it has been held that, where the court has discretion in fixing the punishment it may consider . . . such other evidence as it may deem necessary, as a guide in determining the punishment to be imposed, . . . and in considering evidence in aggravation or mitigation of the offense the court may consider many matters ‘not admissible on the issue of guilt or innocence’ (Toomer v. State, 112 Md. 285 [76 Atl. 118]) . . . this was not a . . . trial of any kind, but was simply a statutory hearing, by which the court examined witnesses to determine whether any facts existed to aggravate or mitigate the punishment ...” (Emphasis added.)

And in 16 Corpus Juris, page 402, section 738, it is said: “A plea of guilty is a confession of guilt and is equivalent to a conviction. ... A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement. . . . The right to a jury is waived also, and with it of course the constitutional guaranties with respect to the conduct of criminal prosecutions.” In section 3065, page 1297, it also is said, “The court may consider the moral character of accused as a guide in determining the punishment to be imposed, and may hear for this purpose such evidence as it may deem necessary. Likewise the court may take into consideration evidence as to matters which may be in aggravation or mitigation of the offense, although not admissible on the issue of guilt or innocence.” Again, in section 3211, page 1363, it is said, “In determining the punishment to be imposed the court should consider the nature of the offense and the attending circumstances, . . . [together with] the motives actuating the crime, . . . ” (Emphasis added.)

Also, in People v. McWilliams, 348 Ill. 333 [180 N. E. 832], it was said: “The hearing is not for the purpose of determining guilt or innocence, but has for its sole object the determination of the degree of punishment of the prisoner in the light of the circumstances surrounding him. (People v. Popescue, 345 Ill. 142 [177 N. E. 739, 77 A. L. R. 1199].) In deciding this question the court is not confined to the evidence showing guilt, for that issue has been settled by the plea. The rules of evidence which ordinarily obtain in a trial where guilt is denied do not bind the court in its inquiry. It may look to the facts of the killing, and it may search anywhere,' within reasonable bounds, for other facts which tend to aggravate or mitigate the offense.” (Emphasis added.)

And in the case entitled McCarty v. Hopkins, 61 Neb. 550 [85 N. W. 540], the court said, “ . . . the right to a trial, anywhere or under any conditions, may be waived, and in practice is waived, when the accused makes a judicial confession of his guilt. When no issue is raised,—when the prisoner pleads guilty to the information or indictment,—there is nothing to try. The right to a jury is waived, and within it, of course, the constitutional guaranties with respect to the conduct of criminal prosecutions.” (See, also, Hudspeth v. State, 188 Ark. 323 [67 S. W. (2d) 191]; State v. Reeder, 79 S. C. 139 [60 S. E. 434, 14 Ann. Cas. 968].)

In United States v. Dalhover, (C. C. A. 7th Cir.) 96 Fed. (2d) 355, the defendant pleaded guilty to a charge of murder, and although in that ease a jury was impaneled to fix his punishment, the same question arose there as is present here, that is, whether procedural errors (if any), which might have occurred during the inquiry held to determine the degree of the crime after a plea of guilty, should be subjected to the same rule of strictness—as to their admissibility or rejection as evidence—as would have been applied in a trial on a plea of “not guilty”. Appellant there contended the same rules should have been applied and, in discussing the question, the court said:

“It is obvious that the lawmakers recognized that men, motives and intentions differ widely, and that the circumstances in each case are never the same. It is quite apparent that Congress provided the different degrees of punishment in order to fit the different circumstances in each case, and the different degrees of malice, premeditation, wilfulness and deliberateness as established by the evidence. A plea of guilty does not prevent or render unnecessary the proof of all pertinent facts bearing on these matters. We hold that all the pertinent facts and circumstances with respect to the robbery, the shooting . . . the flight, the pursuit, the attempted capture . . . the arrest of appellant and his associates . . . the killing of Brady and Shaffer, the actions of each of the bandits at Bangor and all the property in their possession, were competent not only to establish guilt if it had been denied, but to be considered by the jury in fixing the punishment. ... At Baltimore and Bangor the bandits were merely trying to escape arrest for the robbery and murder, and what they did at that time and what they had with them was clearly admissible not only as bearing upon their guilt of the robbery and the murder, but also in disclosing a lack of contrition, and a continuity of similar and unrelated criminal tendencies which were quite proper for the jury to consider in fixing the penalty. It is contended by appellant that the court erred in admitting in evidence the blood-soaked shirt of the deceased, worn by him at the time he was shot. There is no merit in this contention. . . . Appellant further contends that the court erred in permitting the Government to have brought into the courtroom before the jury, a group of guns, including two large machine guns, seized at Bangor, and in permitting a Government witness to answer in the affirmative as to whether or not the gun resting on the clerk’s desk was one of the machine guns found in the automobile which had been occupied by appellant and his two associates at Bangor. There was no error with respect to either of these rulings. . . . Likewise all facts and circumstances attending his arrest were admissible. . . . This, of course, would include all weapons found in appellant’s possession and custody, at and immediately prior to his arrest (see Pedersen v. United States, 2 Cir., 271 Fed. 187; People v. Morse, 196 N. Y. 306 [89 N. E. 816]; People v. Mar Gin Suie, 11 Cal. App. 42 [103 Pac. 951]), as well as those found in the custody of his abettors and confederates.” (Emphasis added.)

Although not directly announcing a view to the contrary of that declared in the cited cases, but at least clearly indicating that a defendant is as much interested and has nearly as great, a right in having the degree of his offense properly determined as in the first instance he has in having the question either of his guilt or his innocence legally adjudged, are the conclusions as announced in the following cases:

In the case entitled People v. Bellon, 180 Cal. 706 [182 Pac. 420], it was said: “While, as has been held, the proceeding to determine the degree of the crime of murder after a plea of guilty is not a trial, there being no issue joined, the statute does require, at least impliedly, a judicial determination based on evidence. (See People v. Chew Lan Ong, 141 Cal. 550 [99 Am. St. Rep. 88, 75 Pac. 186].) The appropriate and proper method for a court to pursue in such a case is to receive such competent evidence from the respective parties as is material to the question of degree, and, the evidence having been concluded, to pronounce its determination thereon.”

And, in People v. Hall, 105 Cal. App. 359, 362 [287 Pac. 533], it was said: “Appellants next complain of the admission in evidence of their extrajudicial confessions for the purpose of ascertaining their degree of crime without a showing first being made that such confessions were free and voluntary. The contention is without merit. No objection was made by appellants to this evidence, but even assuming that the burden was upon the prosecution to show that the confessions were freely and voluntarily made before they could be properly received, a hearing to determine the degree of crime, after a plea of guilty, is in no sense a trial. (People v. Chew Lan Ong, 141 Cal. 550 [99 Am. St. Rep. 88, 75 Pac. 186].) It is a mere investigation to determine the degree of guilt.” (Emphasis added.)

Also, in the case of People v. O’Brien, 122 Cal. App. 147, 155, 157 [9 Pac. (2d) 902], the court said: “Notwithstanding the fact that it has been decided that the hearing which may be conducted by the trial court for the purpose of determining the degree of offense ‘is not a trial’, nevertheless the only means by or through which the court is authorized to reach a conclusion in the matter is by the aid of evidence. (People v. Chew Lan Ong, 141 Cal. 550, 551, 553 [99 Am. St. Rep. 88, 75 Pac. 186, 187]; People v. Bellon, 180 Cal. 706 [182 Pac. 420, 421].) ... In effect, in each of the foregoing cases the Supreme Court held that the defendant was in nowise prejudiced by the irregular manner in which the hearing had been conducted. A similar conclusion in a like proceeding was reached in the case of People v. Hall, 105 Cal. App. 359 [287 Pac. 533], where the error of which complaint was made consisted of the admission in evidence of extrajudicial confessions ‘without a showing first being made that such confessions were free and voluntary’. ... in each of the latter [cases] a regular hearing was had; while in the instant'case there was no hearing as such. Neither from the record herein, nor from the statements of respective counsel, does it appear that, other than the formal application by defendant for probation, coupled with the ‘report’ thereon by the probation officer, any attempt was made by the trial court to ascertain the facts essential to a determination of the degree of the offense. ... It may not therefore be legally declared that the action of the trial court in the premises was not substantially prejudicial to the rights of defendant.” (See, also, Commonwealth v. Polens, 327 Pa. 554 [194 Atl. 652].)

However, in the instant case, the question discussed in the cited cases becomes purely academic for the reason that, on consideration of the objections which were made by defendant, it is clear that none of them was meritorious or of such importance that, had they been sustained, a result different from that which was reached by the trial judge would have been probable, or even humanly possible. Judged by the evidence, the guilt of defendant was unmistakable; nor could his sanity reasonably be questioned. True, as the result of his deliberate acts and intent, he murdered two men in cold blood; but, aside from the acts themselves, as disclosed by defendant’s extrajudicial statements, the evidence shows entire sanity on the part of defendant. The killings were carefully planned by defendant, and were executed in minute detail in accordance therewith. He fully realized—at the time they were planned—that he was about to commit infamous and revolting crimes; and he knew that if he did so, and that fact should be judicially established, he would be sentenced either to suffer death or, at least, to life imprisonment. He deliberately chose to commit the offenses and take the chances of escape,—or, failing in that regard, to pay whatever penalty might be imposed. As expressed by some of the alienists who, prior to the entry of the plea by defendant, and the taking of evidence relative to the degree of the crimes, had made an examination with regard to the mental status of defendant, he was sane both at the time when the crimes were committed, and when he was arraigned for plea. In the eyes of the law, in no sense was either of the homicides either excusable or justifiable. It manifestly appears that no prejudicial error was committed by the trial court in the course of the proceedings had against defendant.

The judgment is affirmed.


author: EDMONDS, J. HOUSER, J., Dissenting.

text:
    [Crim. No. 4235.
    In Bank.
    October 30, 1939.]
    THE PEOPLE, Respondent, v. LLOYD W. SMITH, Appellant.

      James F. Gaffney for Appellant.
    Earl Warren, Attorney-General, and F. Walter French, Deputy Attorney-General, for Respondent.
   EDMONDS, J.

The proceedings which resulted in a judgment imposing the death penalty upon conviction of the crime of murder in the first degree are presented for review under section 1239 of the Penal Code, which provides for an automatic appeal in such cases.

After pleas of not guilty and not guilty by reason of insanity, the defendant was tried by the court, sitting with a jury, and found guilty in a verdict which included no provision concerning the punishment to be imposed therefor. A trial upon the issue of insanity followed and resulted in a verdict by the same jury finding that at the time of the homicide the defendant was sane. After a motion for a new trial had been made and denied, judgment was imposed.

Grover Russi, the victim of the homicide, with his wife, their two children, and William Johnson, Mrs. Russi’s brother, lived on a ranch near Sacramento. About seven years before, Mr. Russi took the defendant from an old men’s home and since that time had given him board, lodging and small sums of money for doing chores on the farm. According to the testimony offered by the prosecution, the crime was committed after a dispute over a trivial matter at the breakfast table. The defendant became angry and jumped up from his seat but Mr. Bussi “sat him back in the chair”. Within a few minutes the defendant went out to bring in some firewood for the kitchen range. Shortly thereafter Mrs. Bussi left the farm to take her son to school, and Mr. Johnson started for another ranch.

Soon Joyce Bussi, the daughter, who was in her bedroom, heard blows and ran to the kitchen. She testified that the defendant was beating her father, who was at that time prone on the floor, with two pieces of firewood. When she attempted tc help her father she was struck several times by Smith, who muttered, “You son of a gun, I will get you too.” Her screams and the sound of blows were heard by Mr. Johnson, v:ho immediately ran into the house and disarmed the defendant. Mr. Bussi died as a result of two deep wounds on the back of his head.

No brief has been filed on behalf of the defendant, but the contentions advanced by him upon the trial and the affidavits relied on in support of his motion for a new trial will be considered and passed on.

As a defense to the charge against him, the defendant testified that he had been drinking and because of his intoxication he did not have the requisite intent to commit the crime of murder in the first degree. Although it appears that he may have been in this condition, it was a state voluntarily brought about, and, therefore was no excuse for the crime. However, the evidence concerning the defendant’s intoxication was properly presented to the jury for its consideration in determining whether he had the intent to commit the act charged against him. (See. 22, Pen. Code.) That the jurors believed that he was not so intoxicated as to prevent him from having a specific intent to kill his employer, is implicit in the verdict, returned after they had been instructed as to the law governing his conduct under such circumstances.

At the time of his trial, the defendant testified that he had little recollection of the events which occurred when Mr. Bussi was killed. However, he remembered that Mr. Bussi struck him on the face during breakfast. Mrs. Bussi, her son and her brother, each denied that any such thing occurred, but even if the defendant’s statement is true, there is no showing that the killing was done in the heat of passion following the blow. On the contrary, he testified that he left the kitchen two to five minutes after Mr. Russi attacked him and it was ten or fifteen minutes later when he returned with the wood. Under these circumstances, the jury was justified in finding the defendant guilty of murder in the first degree. (People v. Golsh, 63 Cal. App. 609 [219 Pac. 456].)

The jury was instructed that it might find the defendant guilty of murder in the first or the second degree, or of manslaughter or not guilty and the different crimes were defined. Other instructions fully and fairly stated all of the law applicable to the issues raised by the information and the defendant’s pleas.

At the insanity hearing the defendant testified that he resented the refusal of deceased to pay him more wages in addition to his board, lodging, clothing and spending money. This testimony was inadequate as a basis for any opinion of legal insanity. No expert or lay opinion that appellant was insane was expressed.

Each of two experts appointed by the court examined appellant prior to the trial. Dr. Margaret Smythe testified, 4 41 think he was sane. ’ ’ On cross-examination the most favorable admission which she made in appellant’s behalf was to the effect that she did not “think the man would ever do such a deed unless he had been drinking. ...” This she qualified with the statement 44. . . but I think he is a sane man”.

Dr. Bert F. Howard expressed the same opinion, saying “I thought he was sane.” On cross-examination he was asked whether brooding over fancied wrongs would have led to confusion in the defendant’s mind. The doctor replied, “That would be merely a directing cause; I think it must have been—he was very emotional and alcohol releases these inhibitions, and as soon as the inhibitions were released he boiled over, as it were.”

No effort was made to show any ancestral history of insanity. The only medical history disclosed at the insanity hearing was that appellant had contracted syphilis in 1906, which caused hardening of the arteries. This condition was considered by the doctors as a cause for the appearance of premature old age in appellant, but it does not appear that any mental deterioration existed by reason of the syphilitic history.

In support of a motion for a new trial, the defendant `s counsel presented his affidavit stating he had discovered new and important evidence which he had not known of be. fore. This evidence was stated to be the testimony of the two alienists who were appointed by the court and appeared as witnesses at the trial upon the issue of insanity, and a deputy sheriff. According to the affidavit, each of the physicians would testify that because of the defendant's intoxication he did not act with premeditation. The other witness, it was said, would testify that immediately after the homicide the defendant was in an intoxicated condition.

No excuse was offered for not calling these witnesses except that one of the physicians refused to give a statement of his findings prior to the trial. However, the court appointed the two physicians as alienists at the time the defendant was arraigned and the deputy sheriff is the officer who arrested him. Under these circumstances, and considering the testimony which, it was asserted, each would give, the motion was properly denied.

The judgment is affirmed.

Shenk, J., Curtis, J., Knight, J., pro tem., Spence, J., pro tem., and Waste, C. J., concurred.

HOUSER, J., Dissenting.

I dissent. From a careful reading of the reporter’s transcript of the proceedings herein, I am convinced that the record discloses no prejudicial error. But from the conceded fact that, at the moment when the homicide was committed, defendant was under the influence of intoxicating liquor, it is doubtful that he was capable of forming an express or specific intent to commit a crime, or of appreciating the difference “between right and wrong”. To some extent, the circumstances indicate a “sudden brainstorm”. One of the alienists testified as follows:

“I made a physical examination with reference to his reflexes to see if they showed any present signs of syphilis; there were no neurotic signs of syphilis,—and, I continued the examination,—the medical condition showed no dementia of the type which you would expect to find following after a long duration, and I didn’t find any sign of that. I think the story he gave me was very revealing, it showed a keen mind, and I believe he was telling the truth I think that he was very much confused at the time, that there was certain events of the morning which he had forgotten entirely,—I don’t think he remembered the facts exactly; I think, as he told me his story, he acted in intense anger, under a reaction, an emotional reaction of anger, so certain events which preceded the act, I think the anger perhaps played as much part in his forgetting as the alcohol; but he related as to the amount of alcohol he had taken. I think, considering his age and with hardening of the arteries probably including syphilis in his system, caused the arterial hardening, and that he was more susceptible to the alcohol than he would otherwise have been, and that he was definitely confused and reacted emotionally and almost instinctively in entering into this fight. I think it was, as far as this act I am considering is concerned, it was an unpremeditated fight. ... he was very emotional and alcohol releases these inhibitions, and as soon as the inhibitions were released he boiled over, as it were. ... A. I am rather inclined to think he thought he was doing right. Q. But could he distinguish between what was right and what was wrong? A. I think he had power of analysis, but his emotions overcame his inhibitions. ’ ’ And in that connection, the other alienist testified that:
“ ... I don’t think the man would ever do such a deed unless he had been drinking; I think there was no venom, if he had any it wasn’t very great,—probably at that time he didn’t control himself as he did at other times,—he said if he hadn’t got that crack in the jaw this wouldn’t have happened. So far as I could see, I didn’t feel he would kill anybody in cold blood, I think he just was worked up to the pitch he got too excited, that he just went beyond himself, but I think he is a sane man. ’ ’

There was no direct evidence to the contrary. Furthermore, it appears that on the trial of the issue of “not guilty by reason of insanity”, after the jury had been in conference for approximately one-half hour, it returned into court, whereupon the following colloquy occurred:

“The Court: I understand, Mr. Foreman, there is something you wish to take up with the court? Juror Godfrey Simon: Yes, your Honor, we can’t seem to come to any agreement whatever. If we had had the evidence that was presented today, yesterday, the jurors feel like there would have been an entirely different verdict, and they ask for further instructions what we should do. The Court: My only answer to you, Mr. Foreman, is, the question which is submitted to you and which you are to decide is the fact as to whether the defendant was sane or insane at the time of the commission of the act alleged in the information. Juror Simon: I understand, but I haven’t foiuid the jurors willing to vote upon it.”

It thus becomes clear that, had the issue of “not guilty” been tried contemporaneously with the issue of “not guilty by reason of insanity” (as formerly was permitted by statute), a verdict would have been returned that would have been “entirely different” from a verdict of “guilty of first degree murder”. In other words, the verdict could have been no greater than “first degree murder”, with recommendation of life imprisonment. But the verdict might have been “second degree murder”, or even “manslaughter”.

Although with reference to the provisions of subdivision 6 of section 1181 of the Penal Code, which purport to empower this court to modify a judgment of conviction by decreasing the degree of the crime, I deny that the legislature possesses any such power, but, to the contrary, insist that all jurisdiction and powers of this court must be conferred thereon by constitutional provision (People v. French, 12 Cal. (2d) 720, dissenting opinion, at p. 780 [87 Pac. (2d) 1014]), nevertheless, my conclusion herein, based upon the inherent and implied power of this court, is that the offense should be reduced to that of second degree murder. (People v. Kelley, 208 Cal. 387 [281 Pac. 609] ; People v. Howard, 211 Cal. 322 [295 Pac. 333, 71 A. L. R. 1385].)