author: WASTE, C. J. THOMPSON, J., Concurring and Dissenting.

text:
    [Crim. No. 3834.
    In Bank.
    October 11, 1934.]
    In the Matter of THE SAN FRANCISCO CHRONICLE et al., in Contempt.

      Sullivan, Roche, Johnson & Barry, Theodore J. Roche and Percy E. Towne for Respondents.
   WASTE, C. J.

This proceeding in contempt against respondents was instituted by the filing of affidavits by William H. Waste, Chief Justice of the Supreme Court of California, and B. Grant Taylor, clerk of said court. Based on these affidavits, the court ordered respondents to show cause why they should not be punished for contempt. The respondents filed answers in the form of affidavits, and have agreed that the case may be determined upon the affidavits on file herein.

The affidavit of B. Grant Taylor, so far as pertinent here, recites that on September 10, 1934, and prior thereto, there was pending in the Supreme Court an appeal entitled “People of the State of California, Plaintiff and Respondent, v. David Lamson, Defendant and Appellant”, which appeal on said date and prior thereto was undetermined by the Supreme Court; that on September 10, 1934, respondents caused to be published in The San Francisco Chronicle an article referring to the Lamson case. The article is set forth in full in the affidavit. The article states that the Supreme Court has voted to reverse the decision of the trial court in the Lamson case. The following statements appearing in the article are particularly referred to as being false and untrue:

1. “Lamson Wins New Trial!”

2. “Supreme Court acts to Nullify Death Sentence.” .

3. “Lawyers’ appeal Charging Prejudice in San Jose Trial Gains Point for Stanford Executive in Shadow of Gallows.”

4. “David Lamson has won a new trial.”

5. “The Supreme Court of California has voted to reverse the trial court and jury which 12 months ago found the young Stanford Press Executive guilty of the 1933 Memorial Day murder of his wife Aliene and condemned him to death.”

6. “This was learned by The Chronicle last night from confidential and authoritative sources.

7. “The Supreme Court justices are reported to have based their reversal on three points:

“1. That George P. Peterson, foreman of the trial jury, was a Santa Clara county deputy sheriff at the time he voted to send Lamson to the gallows.

“2. That Lenora Ghetti, matron of the Jury, indulged in prejudicial activities detrimental to Lamson’s cause.

“3. That ¡Superior Judge Robert R. Syer, who presided over Lamson’s trial, erred in ruling out .certain testimony of E. 0. Heinrich, noted criminologist and ace technical witness for the defense. ’ ’

8. “The decision granting Lamson a new trial was written by Justice William H. Langdon. ...”

9. “Justice W. H. Langdon writes decision.”

10. “David Lamson Given another Day in Court.”

The affidavit alleges that each of the above statements was false in that on September 10, 1934, and prior thereto, the Lamson case was then pending in the Supreme Court, and had not been reversed or otherwise decided by the court; that no opinion had on that date been prepared by any member of the court and that the court on or prior to that date had not voted to reverse or in any other way to decide the Lamson case; that the article constituted the publication of a false report of the proceedings of the Supreme Court; that the article naturally tended to and actually did:

1. Interfere with the orderly and due administration of justice in the Lamson case;

2. Bring into disrepute the Supreme Court and expose the court to public disfavor, distrust and suspicion;

3. Untruthfully indicate to the readers of the San Francisco Chronicle that that newspaper had an authoritative source of information close to the Supreme Court not open to other newspapers or to the public generally;

4. Unlawfully interfere with the proceedings of the Supreme Court; and

5. Impede, embarrass and obstruct the court in the discharge of its duties.

The affidavit of the Chief Justice re-alleges the facts set forth in the Taylor affidavit, and, in addition, alleges that in affiant’s capacity as Chief Justice, it is his duty to assign the various causes pending in the Supreme Court to the particular justice who is to prepare the opinion in the cause; that on September 10, 1934, and prior thereto, he had not yet assigned the Lamson case to any justice of the Supreme Court; that on. that date, and prior thereto, said cause was pending before the court and had not been decided by the court; that on that date, and prior thereto, the court had not voted to reverse or in any other way to decide said cause; and that on that date, and prior thereto, no opinion had been prepared in said cause.

The answers of respondents, so far as substance is concerned, are almost identical. It is therein set forth that the respondents admit the publication of the article in question, but allege that the publication was made in good faith upon information received by respondents which seemed to them “trustworthy”. The answers all expressly admit that respondents have no authoritative source of information close to the Supreme Court not- open to other newspapers or to the public generally. It is also alleged and admitted that respondents did not receive any portion of the information from any member of the Supreme Court, or from any officer or attache thereof. By failing to deny, it is admitted that the information contained in the article was false and untrue. It is also alleged that the San Francisco Chronicle, one of the named respondents, is not a legal entity, but is the name of a newspaper printed and published by the corporate respondent, Chronicle Publishing Company.

On this showing, respondents argue that they are not guilty of a contempt. It is seriously urged that under the provisions of section 1209, subdivision 13, of the Code of Civil Procedure, the publication of any article (whatever its contents) not in the physical presence of the court does not constitute a contempt. So far as pertinent here, subdivision 13 reads as follows:

“But no speech or publication reflecting upon or concerning any court or officer thereof shall be treated or punished as a contempt of court unless made in the immediate presence of such court while in session and in such a manner as to actually interfere with its proceedings.”

The foregoing contention requires but brief consideration. That portion of section 1209 above quoted has many times been held unconstitutional on the ground that the courts have inherent power to punish for contempts, whether of a direct or constructive nature, and that the legislature cannot constitutionally infringe on that power. (In re Shuler, 210 Cal. 377, 397 [292 Pac. 481] ; McClatchy v. Superior Court, 119 Cal. 413 [51 Pac. 696, 39 L. R. A. 691]; Lamberson v. Superior Court, 151 Cal. 458 [91 Pac. 100, 11 L. R. A. (N. S.) 619]; In re Lindsley, 75 Cal. App. 122 [241 Pac. 934]; Lindsley v. Superior Court, 76 Cal. App. 419 [245 Pac. 212]; see, also, In re Arnold, 204 Cal. 175 [267 Pac. 316]; Blodgett v. Superior Court, 210 Cal. 1 [290 Pac. 293, 72 A. L. R. 482]; In re Shortridge, 99 Cal. 526 [34 Pac. 227, 37 Am. St. Rep. 78, 21 L. R. A. 755].) What was said by this court in Briggs v. Superior Court, 211 Cal. 619 [297 Pac. 3], in no way affects the rule above enunciated. It was therein, held that the legislature may, in the case of a constructive contempt, provide for the procedure by which such contempt shall be tried and punished, but that case did not hold that the legislature can determine what shall constitute a constructive contempt, or declare that certain acts shall not constitute a constructive contempt. There is obviously a fundamental difference between a statute merely regulating procedure, as was involved in the Briggs case, and one such as section 1209, supra, purporting to affect the power of the courts to punish for contempt.

The main charge is that the Chronicle knowingly published a grossly inaccurate and untrue report of a judicial proceeding, the case of People v. Lamson, post, p. 648 [36 Pac. (2d) 361], now pending before this court. The charge is not denied by respondents. The story is eoncededly false. Respondents admit that they received no information from this court or any of its officers or attaches, and that the source of the information upon which they acted was unnamed individuals having no official connection with the court. They made no attempt to verify this purported information by inquiry of the court or any of its staff, and offer no explanation for their failure to do so, save that such inquiry might have given competing newspapers an inkling of the story, and thus have spoiled their “scoop”.

The position of respondents is that their mere statement, under oath, that they acted in good faith purges them of the alleged contempt. Similar is their contention that the proceeding is quasi criminal in character, and that the essential element of criminal intent is negatived by their sworn denial. It would indeed be a remarkable rule that in criminal prosecutions the sworn conclusion of the defendant that he meant no wrong would conclusively establish his innocence, in spite of his frank admission that he knowingly did the act complained of. There is no such rule in criminal prosecutions, and in proceedings for contempt this view has been repudiated by the great majority of American jurisdictions. The majority rule above referred to is especially applicable when, as here, the publication is not -susceptible of two interpretations. (Ex parte Bankhead, 200 Ala. 102 [75 So. 478]; Globe Newspaper Co. v. Commonwealth, 188 Mass. 449 [74 N. E. 682, 3 Ann. Cas. 761]; O’Flynn v. State, 89 Miss. 850 [43 So. 82, 119 Am. St. Rep. 727, 11 Ann. Cas. 530, 9 L. R. A. (N. S.) 1119]; Carson v. Ennis, 146 Ga. 726 [92 S. E. 221, L. R. A. 1917E, 650] 5 United States v. Shipp, 203 U. S. 583 [27 Sup. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265]; In re Providence Journal Co., 28 R. I. 489 [68 Atl. 428, 125 Am. St. Rep. 755, 17 L. R. A. (N. S.) 582].)

The publication of a false or grossly inaccurate report of the proceedings of any court constitutes a constructive contempt, the motive or intent of the publisher being immaterial, except in mitigation. Section 166 of the Penal Code provides in part:

“Every person guilty of any contempt of court, of either of the following kinds, is guilty of a misdemeanor: . . .
“7. The publication of a false or grossly inaccurate report of the proceedings of any court.”

Under this section, the act prohibited is both a contempt and a misdemeanor. The mere fact that the legislature has seen fit to declare such a contempt also a misdemeanor in no way deprives the court of the power to punish such an act as a constructive contempt in a summary proceeding such as this. (See In re Morris, 194 Cal. 63 [227 Pac. 914].)

The publication of the article in question also constituted a contempt in that it tended to create in the public mind distrust and suspicion of the court. The only possible inference from the statement appearing at the beginning of the article that news of the supposed reversal “was learned by The Chronicle last night from confidential and authoritative sources”, is such that information had been secured from some member of the court or some officer or attache of the court. It matters little whether the reader infers that the Chronicle came by its special knowledge honestly, as a result of the court’s deliberately favoring it with the first report on the case, or dishonestly, as a result of a justice or officer of the court disclosing the information deliberately or inadvertently. In either event, the reader would conclude from the article that the confidential proceedings of the court may be reached by a privileged newspaper; that the method of decision prescribed by law and followed by the court is not a barrier to an enterprising and powerful organization such as the Chronicle. That this tends to bring the court into wide disrepute and is, therefore, contempt of court, cannot be doubted.

The publication of the article involved herein also constituted a contempt in that it tended to interfere unlawfully with the proceedings of the Supreme Court in the Lamson case. (See sec. 1209, subd. 9, Code Civ. Proc.)

The publication of any article, whether true or false, concerning a pending cause, that tends to impede the orderly administration of justice in that cause, constitutes a contempt, and the fact that the publisher believed it to be true is immaterial, except in mitigation of the punishment. (In re Providence Journal Co., supra.) It is also entirely immaterial that the article did not in fact influence the court, so long as the publication tended to obstruct justice. (In re Shuler, supra; In re Lindsley, supra; United States v. Toledo Newspaper Co., 220 Fed. 458, affirmed 247 U. S. 402 [38 Sup. Ct. 560, 62 L. Ed. 1186] ; Ray v. State, 186 Ind. 396 [114 N. E. 866].) The article necessarily tended to arouse a state of mind in the general public, and to influence public opinion, in such a way as to embarrass the court in the determination of the cause. In this respect, it has the same effect as' one which directly attempts to arouse sympathy in favor of one side of the case. Of this latter type of publication it was said in People v. Wilson, 64 Ill. 195 [16 Am. Rep. 528, 533] :

“A court will, of course, endeavor to remain wholly uninfluenced by publications like that under consideration, but will the community believe that it is able to do so? Can it even be certain in regard to itself? Can men always be sure of their mental poise? A timid man might be influenced to yield, while a combative man would be driven in the opposite direction. Whether the actual influence is on one side or the other, so far as it is felt at all, it becomes dangerous to the administration of justice. Even if a court is happily composed of judges of such firm and equal temper that they remain wholly uninfluenced in either direction, nevertheless a disturbing element has been thrown into the council chamber, which it is the wise policy of the law to exclude.
“Regard it in whatever .light we may, we cannot but consider the article in question as calculated to embarrass the administration of justice, whether it has in fact done so or not, and, therefore, as falling directly within the definition of punishable contempts. ’ ’

The showing in mitigation made by respondents falls far short of the desired result. It fails completely to establish their good faith. Respondents admit that the substance of the article was false and that the information did not come to them from any person connected with" the court. All that is alleged is that some unknown persons gave respondents the information; that they believed it was true, and that the persons who furnished it were believed by them to be trustworthy. From this showing, respondents conclude that they acted in good faith. Such- a showing in no way demonstrates their good faith. As previously stated, no attempt was made to check the information by communicating with any member of the court. The statement of respondents that they acted in good faith is simply a legal conclusion. Respondents have not seen fit to disclose to the court the facts and circumstances surrounding the securing of such information, nor have they seen fit to disclose the source of such information. The bare legal conclusion that they acted in good faith, without disclosing to the court all of the facts and circumstances, is not sufficient to mitigate the offense.

It, therefore, appearing that the order to show cause having issued and due return and appearance having been made by Chronicle Publishing Company, Chester H. Rowell, editor of the Chronicle, and W. D. Chandler, managing editor of the Chronicle, and no good cause having been shown why they and each of them should not be found in contempt and punished therefor, it is adjudged by the court that the Chronicle Publishing Company, Chester H. Rowell, and W. D. Chandler are, and each of them is, guilty of contempt of this court, as specified in the order to show cause and the accompanying affidavits, and that as punishment therefor the Chronicle Publishing Company shall pay a fine of five hundred dollars ($500), for which amount let execution issue, and Chester H. Rowell and W. D. Chandler shall each pay a fine of two hundred and fifty dollars ($250), and that, in default thereof, the individual respondents so defaulting shall stand committed to the sheriff of the city and county of San Francisco, and, until such fine is paid, shall be imprisoned in the county jail of such city and county at the rate of one day’s imprisonment for every two dollars of such fine.

Execution and commitment are, and each is, stayed for five (5) days.

Seawell, J., Curtis, J., Preston, J., Langdon, J., and Shenk, J., concurred.

THOMPSON, J., Concurring and Dissenting.

I concur and dissent. I concur in the decision in so far as it determines that respondents are guilty of contempt but I feel compelled to dissent from that portion which fixes the punishment. I am persuaded that the article was mistakenly published and published without due consideration of its effect upon the administration of justice, but I am also convinced that it was without animus of any kind, and without malice; that in fact it is contemptuous because of its falsity, and not because of an effort to impede, obstruct or hinder the administration of justice. I think, in view of these facts, and the further fact that, so far as I can discover, no similar case has occurred previously in California, the ends of justice will be fully served by the finding that respondents are guilty, which, in effect, constitutes a public reprimand. I think we may safely depend upon these respondents and others engaged in like enterprises being advised hereby, not to offend hereafter, but rather to assist within their proper sphere in the proper and due administration of justice.


source: Caselaw Access Project

author: CURTIS, J.

license: Public Domain

text:
    [L. A. No. 12648.
    In Bank.
    October 11, 1934.]
    HARRY T. YOUNG, as Trustee, etc., Appellant, v. THREE FOR ONE OIL ROYALTIES et al., Respondents.

      W. C. Dalzell for Appellant.
    G. C. DeGarmo, W. M. Crane, Glen Behymer, Earle M. Daniels, Ralph J. Brown, Paul W. Forker, Young & Young, Milton K. Young, Wilbur D. Finch, Dryer, Castle

      & Richards, Horton & Horton, Joseph K. Horton, Russell A. Barker, Desser & Bokofsky, Knight & Reynolds, A. Noah Borah, Leon K. Jonas and Joseph W. Aidlen, as Amici Curiae on Behalf of Appellant.
    Philip N. McCaughan, McCaughan & McCaughan, Virgil G. Lewis, Francis D. Adams, Howard Waterman, Walter F. Haas, H. C. Johnston, Robert Clifton, Louis Ferrari, Gerald S. Kerrin, Edmund Nelson, O’Melveny, Tuller & Myers, Louis W. Myers, Freston & Files, Overton, Lyman & Plumb and Ralph E. Lewis for Respondents.
    Laurence W. Beilenson, as Amicus Curiae on Behalf of Respondents.
   CURTIS, J.

The facts of this case are adequately and correctly stated in our former opinion (Cal.) [31 Pac. (2d) 789] as follows:

“The appeal is from a judgment in favor of the defendants in an action brought to recover the amounts paid for certain certificates of beneficial interests in a common-law trust, it being the theory of the complaint that the sales of the interests were in violation of the Corporate Securities Act, and that defendants had falsely and fraudulently represented that they had secured a permit from the corporation commissioner to sell the certificates and had fully complied with the law .respecting the sale of securities. Briefly, the facts are as follows: On January 3, 1923, the respondents R. G. Welch, W. J. Dallas and E. J. Boland, as lessees, assigned to the Long Beach National Bank as trustee three oil leases and formed a common-law trust for the purpose of apportioning any production arising from the operation of wells to be drilled upon the property of the lessors, to purchasers of beneficial interests, and to themselves as owners of the interests not sold. The respondent Bank of Italy, by reason of a change of ownership of the Long Beach National Bank, became trustee to succeed the latter on May 14, 1924. The complaint was filed May 20, 3929, by appellant as trustee for Ralph R. Martin, Albert H. Bailey and C. P. Wiand (assignee of E. D. Bindley), who purchased certificates of beneficial interests on the following dates, paying therefor the sums set after their names: February 10, 1923, Ralph R. Martin, one unit, $1,600; March 1, 1923, Albert H. Bailey, one unit, $1,800, and April 12, 1923, E. D. Bindley, two units, $3,200. The money was paid to R. G. Welch as agent for the Long Beach National Bank as trustee and the other defendants, the bank as trustee issuing to the purchasers the certificates of beneficial ownership. In other words, the action was not commenced until more than six years after the sales were made and the money paid in. Unattached findings of the court reveal that Martin, Bailey and Bindley each knew at the time of his purchase he was buying an ‘interest or unit in the proceeds and avails arising out of said trust known as the “Three for One Oil Royalties” ’, that during the period when the sales were made the defendants did not have any permit from the corporation commissioner authorizing them, or the trustee, to sell beneficial interests in the trust. Another finding supported by a stipulation of counsel is to the effect that inquiry was made of the corporation commissioner concerning' whether a permit for the ‘Three for One Oil Royalties’ was necessary and the commissioner ruled that it was not necessary. Other findings are in substance that none of the defendants represented that a permit had been issued, or concealed any facts from the purchasers, or practiced any fraud upon any of them. The defendants interposed the plea that the complaint was barred by the statute of limitations and the court concluded that this defense was well grounded.”

As the basis for recovery by the appellant, he contends that the certificates of beneficial interests acquired by the original purchasers thereof and now owned by the appellant are void for the reason that the Long Beach National Bank, to whom the trust property had been conveyed, and who, as trustee under said conveyance, issued and sold said beneficial certificates, had no permit from the corporation commissioner, at the several times when said certificates were issued and sold, authorizing the sale or issuance of said certificates, or any of them. The answer to this contention depends upon certain provisions of the Corporate Securities Act which it is conceded controls in such matters, and which expressly prohibit the sale or issuance of securities of the character of those herein involved unless such a permit is issued by the corporation commissioner of the state. These provisions of the act except certain corporations from their requirements, and the question presented, on this appeal is whether the Long Beach National Bank, in issuing and selling said certificates as trustee of said trust, came within the general provisions of said act or of the aforesaid exceptions.

At the time said certificates were purchased by plaintiff’s assignors in the months of February, March and April, 1923, subdivision 3 of section 2 of the Corporate Securities Act read in part as follows:

“The word, ‘company’ includes all domestic and foreign private corporations, associations, joint stock companies and partnerships of every kind, and also trustees, as hereinafter defined, excepting therefrom.
“ (a) All national banking associations and other corporations organized and existing, under and by virtue of the acts of the congress of the United States.
“(b) . . . •......
“(c) All corporations now or thereafter organized under the laws of this state for the purpose of conducting the business of banking within this state and all corporations transacting insurance business within this state.
“(d) . . .......
“(e).........

Subsection (b) excepts public utilities; subsection (d) excepts building and loan associations and subsection (e) excepts certain nonprofit corporations. We are not particularly concerned with the last named class of corporations. In later subdivisions of said section 2, a trustee is defined as any person or company executing a voluntary trust expressly created by an instrument in writing—with certain exceptions not material to any question herein. By section 3 of said act, it is provided that no company shall sell its securities without first obtaining a permit from the corporation commissioner authorizing such sale. Reducing these provisions of the act to simple terms, wé have company defined to include every domestic or foreign corporation or association of individuals, including trustees, except five specified types of corporations, one of which is national banks, with the prohibition against any company so defined issuing securities without first securing a permit from the corporation commissioner authorizing the sale of such securities. It will thus be noted that in defining companies which are required to secure a permit from the corporation commissioner before issuing securities, national banks are expressly excepted from said definition. Appellant concedes that national banks when issuing their own securities— that is to say, securities against their own assets—are not subject to the provisions of the act requiring a permit, but he contends that when a national bank issues securities other than its own, that is, as in the present instance, when it acts in the capacity of a trustee in issuing securities of other corporations or individuals, the exception above noted does not apply. On the other hand, the respondents contend that the section of the act is clear and unambiguous, and means just what its plain language imports—that is, that a national bank as such is excepted from the definition of “company” and that while acting as such, either in issuing its own securities or as a trustee in issuing those of other persons or corporations, it is not required to secure a permit before taking such action.

It was held in the case of In re Flesher, 81 Cal. App. 128 [252 Pac. 1057], in construing the Corporate Securities Act, that it was “the legislative intent to exclude from the definitive words of the section all. corporations subject to some other supervisory power of the state”. Under this construction of the act, national banks were assumed to belong to those classes of corporations excepted from the operation of the act. Appellant and some of the amici curiae supporting the position of appellant in an exhaustive argument make the contention that under the laws of the United States as they were in effect at the date of the enactment of the Corporate Securities Act, national banks acting in the capacity of trustees were not under the regulation of any other power. This contention we think cannot be sustained. The present Corporate Securities Act was enacted in 1917, and the provisions with which we are now dealing were in the original act. They were not amended until 1923. They were, therefore, in force at the dates when the securities herein involved were issued. National banks were then subject to federal regulation under a statute enacted in 1913. (38 Stats, at Large, p. 262, U. S. Stats. 1913, chap. 6, see. 11.) By this statute the Federal Reserve Board is given power, “To grant by special permit to national banks applying therefor, when not in contravention of State or local law, the right to act as trustee, executor, administrator, or registrar of stocks and bonds under such rules and regulations as the said board may prescribe.” It may be true that at the date of the passage of the Corporate Securities Act no detailed set of rules and regulations had been prescribed by the Federal Reserve Board in pursuance of the power given by said statute concerning or regulating the sale or issuance of securities by a national bank acting in the capacity of a trustee, yet by this statute national banks in such transactions were made subject to the regulation of the Federal Reserve Board. When, therefore, the legislature in 1917 enacted the Corporate Securities Act, and excepted from its terms, national banks, it may well have considered, and we think it did so consider, that national banks were subject to federal control and regulation, and for that reason should be excluded from the requirements of the legislative act then under consideration.

Respondents call our attention to the amendment of the Corporate Securities Act in 1929 (Stats. 1929, pp. 1251, 1253) as indicating a belief by the legislature at that time that national banks when acting as trustees were not subject to the Corporate Securities Act prior to said amendment. By the amendment in 1929, national banks were expressly made subject to the Corporate Securities Act except when issuing their own securities, or to express it more accurately, the provisions of the act as amended in 1929 requiring a permit shall not apply to any security issued by and representing an interest in or a direct obligation of a national bank. It is conceded that after this amendment a national bank when acting as trustee in the sale of securities not its own is required to have a permit from the corporation commissioner to issue such securities. Respondents contend that such amendment would have been entirely unnecessary and useless had the act as originally enacted required such a permit from a national bank when issuing securities as a trustee for other parties. Appellant’s reply to this contention of respondents is that the amendment of 1929 was enacted simply for the purpose of interpreting the act or clarifying any uncertainty or ambiguity that might exist in the original draft of the act. The history of the act since its enactment in 1917 does not in our opinion bear out appellant’s contention. The Corporate Securities Act as first adopted excepted both state and national banks from its provisions requiring corporations before issuing certificates to secure a permit from the corporation commissioner. In 1923', but after the sale of the certificates now owned by appellant, the legislature amended said/ act so as to except state banks from the terms of said act only “when such corporations are issuing securities of their own issue against their own assets”. (Stats. 1923, p. 87.) The terms of the act in so far as they applied to national banks were left as originally enacted. In 1929, however, the act was amended as above indicated. Had the legislature by these amendments intended simply to clarify the provisions of the act relative to state and national banks, it seems most reasonable to suppose that it would have in 1923, when it amended the act as it affected state banks, also made the same amendment of the act as it affected national banks. The same uncertainty or ambiguity, if any such existed, was present in each provision of the act affecting the two classes of banks. Why clear up one uncertainty and leave the other, particularly so when they both are found in the same section of the act and deal with similar subjects? Evidently the legislature had some other purpose than merely clarifying the provision of the act relating to state banks by its amendment in 1923. It evidently intended to place upon state banks a requirement not theretofore imposed upon them by the Corporate Securities Act. So when the legislature in 1929 placed practically the same restriction upon national banks that it had previously imposed upon state banks, we think the conclusion is irresistible that it was done with the same intent as that which actuated it in amending the act in 1923 relative to state banks. In each case there was in our opinion an essential change in the terms of the act as it applied respectively to these two classes of corporations. The rule of interpretation in such cases has been stated as follows: “Ordinarily, it would seem that any essential change in the phraseology of a statutory provision would indicate an intention on the part of the legislature to change the meaning of such provision rather than to interpret it.” (23 Cal. Jur. 778.) We are, therefore, of the opinion that the amendment of the Corporate Securities Act in 1929 in the respect above indicated was not for the purpose of interpreting it, but to change the meaning of the act as claimed by respondents.

A large part of the briefs both of the parties hereto and of the amid curiae has been devoted to the question of the constitutionality of those sections of the Corporate Securities Act herein involved, governing the issuance of securities by national and state banks without a permit from the corporation commissioner. These arguments are evidently predicated upon the misapprehension of the law as it existed at the respective dates when the certificates now owned by the plaintiff were acquired by the original purchasers. The contention is made with much earnestness that if the provision as to national banks is construed so as to exempt a national bank from the duty of securing a permit when issuing certificates as a trustee, such a preference is given national banks over state banks as to render the act unconstitutional in that respect. This question does not arise in this proceeding as the Corporate Securities Act in force at the time said securities were purchased applied equally to each of these two classes of banks, as will readily be seen from the provisions of said act hereinbefore set forth. After said certificates were purchased, as we have stated, the act was amended so as to limit the right of state banks when operating without a permit from the corporation commissioner to the issuance of their own securities, leaving the provisions as to national banks the same as originally enacted. But with the provisions of the act in force after such amendment we are not concerned as the rights of the parties herein are governed by the terms of the act before such amendment.

A second contention is made by appellant, and that is, that the trial court erred in finding in defendants’ favor on their plea of the statute of limitations. As we are of the opinion that the certificates now held by the plaintiff were legally issued for the reason that no permit was required of the bank at the time of their issuance, the question as to the bar of the statute of limitations is not necessary to the decision herein. Nevertheless, we are urged by the respondents and a number of amid curiae appearing herein to decide this question as a large number of cases involving state trust companies are now pending in the courts awaiting a decision of this question. Notwithstanding this request, we have decided to leave this question for future action. We have reached this conclusion for the reason that any decision that we might render herein, if adverse to the respondents, would he dictum, pure and simple. It hardly seems fair that we should pass upon this important question and possibly prejudice the rights of litigants in other pending actions except when the conditions are equal and the decision binding upon all parties to the litigation. We therefore express no opinion upon this question and leave the same to be determined in sbme future ■ proceeding in which all parties therein will be upon equal footing.

Lastly, the appellant complains of the denial by the trial court of his motion to amend his complaint to conform to the proof. It has repeatedly been held that such matters are largely in the discretion of the trial court and its determination thereof will not be set aside unless it clearly appears that there has been an abuse of such discretion. No such showing has been made by appellant in respect to the trial court’s denial of his said motion.

The judgment is affirmed.

Thompson, J., Preston, J., Seawell, J., and Waste, C. J., concurred.

Rehearing denied.


author: PRESTON, J. SHENK, J., Concurring. SEAWELL, J., Concurring. LANGDON, J., Concurring.

text:
    [Crim. No. 3730.
    In Bank.
    October 13, 1934.]
    THE PEOPLE, Respondent, v. DAVID LAMSON, Appellant.

      Edwin Y. McKenzie, Walter H. Linforth, Maurice J. Rankin and E. M. Rea for Appellant.
    U. S. Webb, Attorney-General, William F. Cleary, Deputy Attorney-General, Fred L. Thomas, District Attorney, and' Allan P. Lindsay and Herbert S. Bridges, Assistant District Attorneys, for Respondent.
   PRESTON, J.

The defendant David Lamson stands convicted of murder in the first degree, upon which conviction a judgment imposing the death sentence has been entered. He prosecutes this appeal both from the judgment and from the order denying a new trial.

The case is purely one of circumstantial evidence. The charge is the murder of his wife Aliene, alleged to have occurred in their home on the Stanford University campus at Palo Alto, Santa Clara County, California, on the morning of May 30, 1933. This young couple had been married about four years and there had been born to them a daughter, then some two or three years of age. This small daughter was absent on the day in question, being away on a visit with the mother of defendant. The defendant had also residing in the vicinity, besides his mother, two sisters, one of whom, Dr. Margaret Lamson, is a practicing physician.

Defendant and his wife were both connected with the activities upon the university campus, she as secretary of the Y. W. C. A. and he as manager of the Stanford University Press, which published mainly scientific books. He also had some slight experience as an amateur actor. The couple moved in the best social circles and were well known to a great many people prominent in the university campus life. Numerous friends, intimately acquainted with both of them, came forward to testify to the cordial and apparently affectionate relationship between them, emphasizing especially defendant’s uniform kindness toward and consideration of his wife.

She was found dead by the defendant himself about 10 A. M: of said day, her body being in the bathroom. The exact location of the body when death occurred is unknown except to the defendant, for admittedly, after .discovery, it was disturbed by him on at least two occasions between the announcement of her death by him and the viewing of it by others. This circumstance, among others, makes it difficult indeed to solve the mystery surrounding the death. We must, therefore, detail the defendant’s statement of events in order to bring to the surface the question of law we must determine.

Defendant stated that he and his wife returned from a social visit with Dr. and Mrs. Wright in Palo Alto about 11 o’clock of the evening of May 29th; that his wife had eaten some lemon pie and orange juice and, as a result thereof, was suffering the distress of indigestion; that she retired, however, about 11:40 P. M.; that at the home of the Wrights he had previously announced his intention of spending a part of the coming holiday working in the yard; that owing to the indisposition of his wife and the absence of their child, he elected, as he had sometimes done before, to sleep in the back bedroom and not in the room with his wife; that he removed his working clothes from their usual place in the hall closet, and put them in the living room where he would have access to them early in the morning without disturbing his wife, who was what is known as a “light sleeper”; that he also procured at the same place his bathrobe, pajamas and slippers; that he read a while before retiring, waiting to see that the light in his wife’s room was extinguished by her, that he then went to the bathroom and undressed therein for bed, hanging his clothes upon a hook on the inside of the bathroom door. The position of these clothes will be hereafter referred to.

He stated that about 3:30 A. M. his wife called to him and he attended her at that time, rubbing her back for sev-' eral minutes and procuring some lemon juice and water for her, which was' followed by a bowl of soup and sandwich, both held over from a previous meal; that his wife’s condition settled and in about three-quarters of an hour he returned to bed; that rather early in the morning he arose and dressed for work, leaving his bathrobe, pajamas and slippers in the living room; that he prepared his own breakfast and after leisurely moving around for a while, went to work in the back yard about 7 A. M. He detailed in a plausible manner the kind of work which he was doing about the yard. He stated that, among other things, about 8 A. M. he built a fire to burn accumulated rubbish; that he saw and talked to several neighbors during this period; that about 9 A. M. he returned to the kitchen, prepared a few things for his wife’s breakfast, drank another cup of coffee himself, and then drew water for a bath for his wife; that he then went to her room and assisted her in getting up; that she went to the mirror and braided her hair in two braids and that he thereafter accompanied her to the bathroom and gave her his hand to assist her in stepping into the tub; that he then returned to his work, leaving the water boiling for his wife to make a Postum drink following her bath; that he then set the sprinkler in the front yard and went to the back yard and pursued the work he had theretofore begun; that around 9:50 A. M. Mrs. Place, a real estate broker, appeared at the front door with prospective lessees for the Lamson home by the name of Mr. and Mrs. Haas; that, failing to get admittance at the front door and seeing the sprinkler and hearing voices in the back yard, Mrs. Place came upon defendant there talking to a neighbor, Miss Vincent; that on learning the mission of Mrs. Place, he told her to return to the front door; that he would go to the back door, pick up some things, and admit her and her clients at the front door; that at this time he was stripped to his waist and wore gauntlets; that he immediately put on one of the two shirts he had hung on the lattice fence, removed his working boots and put on tennis shoes; that, carrying his gauntlets, he then entered the house gathered up the bathrobe, pajamas and slippers and perhaps some other clothing, and proceeded toward the hall closet near his wife’s bedroom; that in so doing it was necessary for him to pass and he did pass the bathroom door and there saw evidences of blood which immediately led to the discovery of his wife’s body.

At this point the further testimony, other than that of defendant, was without dispute that it was from three to five minutes after Mrs. Place left defendant in .the back yard before he re-appeared at the front door; that prior to his appearance at the front door she heard cries of grief and a little later defendant opened the front door, appearing with blood on his shirt, face and hands, and exclaimed: “My God, my wife has been murdered”; that a few minutes later he said: “Get the police to find the murderer”, and a little later-. “Who could have done itl No one had anything against her.”

Mrs. Place immediately began calling doctors, officers and an undertaker, by telephone. Mrs. Baas summoned neighbors. Several responded, among them Miss Vincent and Mrs. Brown. Later the undertaker arrived, and a little later Dr. Saier; about 10:10 Chief of Police Zink of Palo Alto and Officer Gilkey, and still later Officer Lawrence, who some time during the forenoon took pictures of the then condition of the bathroom and objects in it. The sheriff and his deputies arrived about 10:50 A. M.

Before any officer arrived defendant was known to have handled the body of his wife at least twice, taking it into his arms and purporting to exhibit genuine grief. Before Mrs. Place was admitted, it is evident that defendant had handled the body of his wife and the blood on his clothing resulted therefrom. After Mrs. Place was admitted, he returned to the bathroom and again had the body in his arms. All this occurred before the arrival of any of the officers. When Mrs. Brown arrived, defendant was still in the bathroom, with the body in his arms, calling upon his wife to speak to him and showing further outward evidences of deep-seated and demonstrative grief. Mrs. Brown led him out of the bathroom into the maid’s room where he collapsed, and later, having recovered composure, he was induced to change his clothing again, as what he had on was then quite wet and bloody.

The injuries received by Mrs. Lamson may be described as four lacerations on the back of the head, covering the occipital protuberance and surrounding, area. Three of said lacerations were somewhat horizontal in direction, two, however, being somewhat curved. The upper was to 5 inches long, the middle 2y2 inches and the lower 1%. The fourth was an irregular perpendicular, 3% inches long, extending from about % inch above the upper laceration and .across it, forming the end of the second and also the end of the third, meeting the latter at an angle of about 30 or 45 degrees, and extending across it. There was, as a part of said lacerations, one depressed fracture of the skull as well as an undepressed stellate fracture thereof. There was brain injury under the depressed fracture as well as contra coup injuries to the frontal brain; also a slight hemorrhage over the entire surface thereof. To this should be added the presence of three small hemorrhage areas between the layers of tissue composing the scalp. Lastly, no other abrasions of the skin were found but there were three bruises, which may be material, and which are described as two spots over the anterior portion of the hip bones at the two prominent points, the left being slightly larger than the right and the areas approximately l/^ inches in diameter. There was on the left leg, about two-thirds of the distance from the knee and one-third from the ankle, on the outer surface, a similar area showing bruise, the skin not being broken, approximately 1 to 1]4 inches in diameter.

Knowledge of the cause or causes which produced these injuries would furnish the solution of the problem before us, to wit: Did the decedent meet her death by a criminal agency or was her death produced by accidental means 1

Resting its ease upon circumstantial evidence, the prosecution must not only show a set of circumstances consistent with guilt, but must show a set of circumstances inconsistent with any reasonable theory of innocence. This test the prosecution asserts it has met. But the defendant asserts that the evidence in the record is not only consistent with death by accidental means but preponderates in favor of that conclusion. Consideration of these contentions requires a further elucidation of facts:

To our mind the conclusion is unescapable that the decedent met her death in the bathroom; that she met her death after she had stripped to enter the tub; moreover, that death occurred after she had gotten into the tub and with the bathroom door practically closed. We should first state that at 10:10 A. M. both the water in the tub and the body of the deceased were still warm. Rigor mortis was not then discernible as the physician was able to manipulate the head in ascertaining that life was extinct. This strongly corroborates the defendant as to the period of time within which the deceased must have died and has a distinct tendency to overthrow the state’s theory that she died prior to 8:45 A. M. We are pointed to no other evidence indicating the probable hour of death.

The conditions in the bathroom now require consideration: The position of the body at the time of death is unknown, as already noted, except to the defendant, who testified that he found the body draped over the bathtub at the hips, facing downward, about half in and half out of the tub, he thought near the center of the tub but was not positive and could not say whether or not the head touched the floor. So all we have are the other surrounding physical circumstances. Said statement, however, accounts for the bruises on the hip bones.

The bathroom is a diminutive one, being but 7 feet 10 inches long, the ceiling 8 feet, 4 inches high. The door, entering from the hall, is at the north end, 30 inches wide. The entire length of the west side of the room is occupied first by a linen closet to the north near the door into the hall, and the remainder by the bathtub. The longest side is against the .west wall. The remainder of the room, after taking out the space for the closet and bathtub, is but 48 inches wide, partly occupied by a washbasin stand and toilet. The tub itself is 30 inches wide and 18 inches high. Prom tub to basin is 29% inches; from basin to hall door 35 inches. The rim of the basin is 29% inches above the floor. The basin is opposite the tub, north of its center, at about the quarter-length point. The rim of the tub is 11% inches lower than the top of the basin. The linen closet also has a door about 30 inches wide and both this door and the bathroom door swing inside the bathroom. A metal clothes hamper 23% inches high stood at the east wall between the basin and the door. There was a metal waste basket immediately under the washbasin. There was also a two-step ladder at the south end of the bathroom.

The deceased was 5 feet 6 inches and weighed 115 pounds. Defendant, as already noted, had disturbed the body several times but stated he left it in somewhat the same way in which he found it, although its location on the side of the tub was uncertain. Decedent’s hair had been braided but when seen the right braid was down. Many people were in and out of the bathroom during the day, and before any pictures were taken, but the condition as disclosed when the pictures were made at about 11 A. M. was as follows:

A bath towel and bath mat were lying crumpled on the floor, saturated with blood. The nightgown was hanging immediately over the north end of the bathtub, its bottom being within a foot of the edge of the tub. Near the bottom of the garment were 14 arterial blood spots and some other stains, indicating splotches of blood and water mixed, called in the record hemolyzed blood. The two-step ladder at the south end of the tub was without blood stains. There were blood stains upon the bowl of the toilet. A woman’s sheep or fleece-lined slippers were placed in an orderly manner along the east wall south of the basin and near the toilet. The right slipper had blood without and many small spots within it. There were eight small spots on the inside over the arch of the slipper. Fresh arterial blood was also found inside the left slipper. A lady’s watch was on the shelf over the washbasin. The metal waste basket under the basin had many arterial spots of blood on its surface facing the tub and also some inside facing the tub. On the inside of the bathroom door a coat, vest, soft white shirt and pair of white flannel trousers were hanging, the latter being so hung that the waist line and belt were at the same level as the lower part of the legs. Both the trousers and shirt showed arterial blood spots as did also the coat. The coat even had spots inside one sleeve for a distance of almost six' inches. The metal hamper had a ventilator open and also a lid partly open. Arterial blood was found upon the clothes within it and there were also arterial blood spots on the outside above the ventilator. The bathtub was partly filled with water, still warm at 10:10 A. M., as already noted; on the side of the tub were streaks of blood and water where the body was then located, and the same to the south thereof.

It has already been noted that the lacerations, fractures and contusions existed on the back of the head of the deceased at the occipital protuberance. We have also noted elsewhere the three bruises, one on each hip-bone anterior and one on" the left leg, halfway between ankle and knee. Further blood conditions remain to be described: Arterial blood, coagulated, was in great quantities on the floor at the north end of the room. Hemolyzed blood was also found on the floor. Arterial blood to a great extent was on the east wall north of the washbasin and on the inside of the bathroom door; also on the closet door to the left; also underneath the washbasin and at various other places.

Now, compare these conditions with the story related by the defendant and where can be found facts consistent with guilt and inconsistent with every other hypothesis? Without waiting to examine the question of whether or not the corpus delicti has been proved as a matter of law, let us examine a few of the state’s contentions in connection with this matter.

First, it is contended by it that if it be assumed that the deceased fell while standing in the bathtub and hit her head against the rim of the washbasin, then, instead of falling partly in and partly out of the tub, her entire body would have been found on the floor. Defendant offered to demonstrate, for practical purposes, that this contention is unsound but was denied that privilege upon the ground that it was a question of common knowledge and not one of expert testimony; moreover, that the demonstration could not be made successfully unless the experimentee died in the process. We are thus left to our own common judgment. Who can say with any assurance that when the feet slip out from a woman 5 feet 6 inches tall, standing in a bathtub, and she falls against a solid substance, producing unconsciousness, the body thus becoming the hypotenuse of a right triangle, with base about 40 inches and altitude 29% inches, that the center of gravity would not be below the rim of the tub 18 inchés high and some 30 inches from the point of impact? The state does not reckon with the factor that a foot or more might be available in the tub for the feet to slip, thus bringing the center of the body clearly within the rim of the tub. It could more plausibly be argued that the entire body might go into the tub instead of only the lower extremities.

In this connection respondent further contends that bruises should be found on the face of the deceased because the face must have struck the tiled floor of the bathroom. This argument seems no sounder than the first and may be answered the same way.

It is next contended that the body was washed by someone. This contention is founded upon the assumption that there was no blood clot upon the wounds in the head and that the upper extremities of the deceased were practically free from blood. Upon this is built the argument that the deceased was transported into the tub from some other place for the purpose of washing the body. "What motive would have prompted such conduct is not stated. Moreover, the contention does not appear to have a sound basis. No one, in view of the physical condition of the bathroom, would hesitate to declare that the decedent met her death therein and not elsewhere. It should be again remembered that the defendant handled the body, after discovery, a number of times. Besides this, there were clots of blood in the bathtub which could not have come from any other source than the wounded head. Defendant testified that in handling the body, it slipped from his arms and was practically submerged in the water in the tub. Later he had the body in his arms again and many times was in and out of the bathroom after the discovery. Besides, fresh blood was found in the ear, splotches on the arms, in the hair and perhaps elsewhere. Said theory of the state is simply too conjectural, standing alone, to be a solid link in a chain of circumstantial evidence.

It is next asserted that there was an attempt by someone to clean the bathroom. Prom what has already been here set forth, it is evident that this would have been a herculean task. The contention has no substantial basis. It rests solely upon the conjecture that the bath mat was used as a mop. The point need be but mentioned to show that it cannot be made a link in the chain of circumstantial evidence.

Entitled to no more consideration is the contention that an attempt was made to clean up the hallway. There were splotches of blood outside the door and on the walls of the hallway and one spot on the trap door in the ceiling. "When they were made no one knows. With blood on the floor and on the clothing of the defendant found in the hall, and placed there after discovery of the body, with people tracking in and out of the bathroom, and the spreading of papers and sheets on the floor, it is no wonder that spots of washed blood were found in various isolated places. This is a sufficient reply to the argument that someone attempted to wash off blood spots from defendant’s pajamas and bathrobe. Some of these garments, he says, were thrown on the floor near the bathroom when he discovered the body and blood could hardly have failed to reach and make spots on them. As for the nightgown of the deceased, a splash of the bloody water from the tub could account for all the washed blood spots on it and the arterial blood spots show that it was hanging at the point stated at the time the deceased was bleeding.

Much is made by the state of alleged contradictory statements of the defendant. They consist chiefly of this: That the chief of police and one or two other officers said defendant claimed he was returning from depositing his bathrobe and pajamas when he discovered the body, whereas, on the trial he stated he was going to put them away when he made the discovery. The fact is that the latter statement must be true, if either is, for the clothes were first on the floor and then taken to the bedroom; indeed, the gauntlets and one of defendant’s slippers were actually in the bathroom itself. Again, Officer Davis corroborated the story of the defendant as to when he discovered the body.

It is next asserted that defendant killed his wife with an iron pipe less than 10 inches in length and % of an inch in diameter. One witness testified that within the rusty threads of this little pipe, which was found in the ashes of the bonfire in the back yard, was evidence of the presence of blood. He does not state that it was human blood, nor could he. Another expert produced by defendant, who worked with the other one, would not confirm this fact. In all probability the contention is pure conjecture. In the first place, the iron pipe was in the fire for hours and little, if anything, could be told about the kind of blood, if any, on it; furthermore, it was in the fire before 8:45, when the witness smelled some peculiar odor coming therefrom. It is entirely reasonable to suppose that Mrs. Lamson was still alive at that time. Rigor mortis had not set in at 10:10 A. M. Nothing of value developed out of the odor detected by the witness, which may have been only paint. The contention that such pipe could have produced the injuries from which Mrs. Lamson died is extremely doubtful and brings to the surface the last major contention of the state, to wit: That the wounds on the head of Mrs. Lamson were such that they could only have been caused by four or more blows of this or a similar pipe and could not have been produced by accidental means.

The injuries may be more particularly described as follows : Draw a line across the back of the head from a point just below the top of the ear to a corresponding point on the other ear; exclude from either extremity of this line about 1 y2 inches and you have a laceration somewhat curved upward, 4y2 to 5 inches long. This is the upper laceration on the head of the deceased and may be designated by the letter A. From a point about one inch to the right of the center of said line A, an irregular perpendicular laceration is encountered, which may be designated as “D”. Laceration D is 3% inches long, starting from a point % inch above A and extending downward, forming the ends of or extremities of two other horizontal lacerations, designated “B” and “C”, which are to the right of it, and further extending slightly below C. Laceration B is 2% inches long; C is 1% inches long. In the area along D and for some 2 inches along the central part of A, and all the greater part of the lengths of B and G, was a contused or macerated area. A depressed fracture lay under the junction of lacerations B and D to a depth of l/16th of an inch, consisting of loose or detached skull. In other words, A was contused in the center and not on the ends. B was badly contused throughout and along practically its whole length. G was somewhat less contused. D was badly contused in the region of B.

The deceased also had, in addition to the above, a compound comminuted fracture of the occipital region of the skull, a contusion of the left cerebellum, under the depressed fracture; a hemorrhage in the right cerebellum; a hemorrhage in the left frontal region of the brain and a contusion in the right temporal region. The other bruises over the anterior hip-bones have already been described above.

Can these injuries be explained upon any reasonable hypothesis of accident f We have shown that every other claim made by the state is easily explained on a theory consistent with the innocence of the defendant. We approach this last question with admissions of the prosecution. First, it is admitted that it would take four or more blows from the iron pipe to produce such injuries. This means that three or more horizontal strokes of almost equal force and a perpendicular one, of equal or greater force than the rest, would be required. It is certainly next to impossible to appreciate that any such amount of force could have been so uniformly applied or that a perpendicular stroke could have been the exact extremity for two other horizontal strokes. If either would produce unconsciousness and death, in what way could the body have been held to have repeated the uniform blows? And in what position could the body have been to receive with even greater force a blow struck in perpendicular fashion? The very contemplation of this most unusual situation causes the mind to halt and falter.

Again, the experts for the prosecution all admitted that the brain injuries could have been wrought by a single blow. Defendant asserts with plausibility that the frontal contra coup brain injuries could have been caused only by a single blow and that a blow caused by the head striking some non-resistible object and not by a swinging blow. To this contention respondent offers no reply. The prosecution also admits that a single blow could have produced the compound comminuted fractures of the skull. As we understand this admission, if all the lacerations were absent except one, the fractures and brain injuries could have been produced. If this be true, what effect would subsequent blows have produced? If the brain injuries and fractures could have been produced by one blow, and that a fall, does this not suggest that one blow may have caused them all, fractures and lacerations included ?

The prosecution, we understand, further concedes that a fall or one blow could have produced the four lacerations and attending results if the force was applied at the four places at the same time. Much testimony was received, and considerable excluded, all having for its purpose showing that a blow upon the washbasin, or even a flat surface, could have produced all these injuries as found on the head of the deceased. ■ This testimony accords with our mind to the extent that such an explanation is not so unreasonable as to be rejected altogether. In fact, ascribing these injuries to the wielding of the pipe produced, seems much more improbable to us than that they occurred as the result of a fall. The macerated areas of these lacerations form a distinct pattern. Bach in reality may be considered a part of the other. This area of some 2 to 2% inches embraces the occipital protuberance, the median line and some well-defined ridges on the skull. The lacerations are really flaps around the vertical one as a stem. How could an iron be wielded with such precision as to force, as to length of contact and as to location? Which is the first stroke, the second and the third and fourth? And in what position was the victim when they were dealt? What was the effect of each? If the first produced the brain injuries and the undepressed fractures, what was the effect of the others? The mind can easily conclude that they were, as defendant’s experts determined, the result of one blow producing what is called an “explosion” fracture.

The three small areas of hemorrhage at the roots of the hair should be mentioned. Only one expert found them. One was connected with the lacerations direct and the other two were near or under the hair braids and apparently not immediately connected with the wounds. Whether they resulted from the fall or from being caught as the body, fell after the blow, or whether someone pulled the hair can never be determined. At full worth, they represent no more than a suspicion or conjecture and cannot alone rise to the dignity of establishing death by criminal means.

The prosecution dwells but little upon the question of motive, which consisted of an alleged tryst with a Sacramento woman and of a statement to a friend, overheard by an officer, to the effect: “Why did I ever marry her?” This was all plausibly explained consistent with innocence and, moreover, is of no value where the corpus delicti is not proved.

Finally, the position of the main pool of blood in the bathroom is explained consistently with the story of defendant when the dip or unevenness of the floor is considered.

Contemplating this case as a whole, the mind is not satisfied that the rule controlling in circumstantial evidence cases has been met as a matter of law. This rule is elementary and is aptly restated in the case of People v. Staples, 149 Cal. 405, 425, 426 [86 Pac. 886, 894], as follows: “It will be perceived that the evidence in the case relied on to establish the guilt of the defendant is practically circumstantial, and it is elementary law that where the evidence is of such a character it must be not only consistent with the hypothesis of guilt, but inconsistent with any other rational hypothesis. The deduction to be drawn from these circumstances is ordinarily one for the jury, but where, in a case such as this, every circumstance relied on as incriminating is equally compatible with innocence, there is a failure of proof necessary to sustain a conviction, and the question presented is one of law for the court. The prosecution has the burden of proof. The defendant is presumed innocent until the proof satisfies the jury beyond a reasonable doubt of his guilt. The right of a jury to return a verdict of guilty is not an arbitrary right. The sufficiency of their verdict must be tested by determining whether the evidence upon which that verdict is framed was of such a character that they could say from it that in their judgment no reasonable doubt of the defendant’s guilt existed. ’ ’

Where in the case before us is there evidence of a preparation for commission of a crime? Where is the plan by which the death was to become known? Where is the effort to prevent detection or for concealment? Where are the bloody or missing clothes ? Where is evidence of a seizure in order to inflict the blows ? Every statement of the defendant, capable of verification, tends to support his claims. It is true that he may be guilty, but the evidence thereof is no stronger than mere suspicion. It is better that a guilty man escape than to condemn to death one who may be innocent. These views render it inadvisable to prolong this discussion by consideration of the various other assignments of error.

The judgment and order denying a new trial are, and each is, reversed and the cause remanded for a new trial.

Sturtevant, J., pro tern., concurred.

SHENK, J., Concurring.

I concur in the reversal of the judgment but not for the reasons stated in the foregoing opinion. From the evidence received in the case I am satisfied that there was sufficient upon which to base the conclusion that the deceased did not come to her death by accident and that the corpus delicti was established. However, the defendant desired fully to rebut this showing. I am convinced that the trial court unduly restricted the defendant in his offer of proof of an experiment by which he proposed to show that when a woman of the size of the deceased was placed with her head upon the washbasin and her feet in the bathtub in said bathroom, and was allowed to slip from that position, she would always slip back into the bathtub. While ordinarily the trial court may in its discretion admit or reject testimony concerning experiments, I am satisfied that the refusal to admit such testimony constituted an abuse of discretion under the circumstances presented by the evidence in this case.

I think the trial court also erred prejudicially in unduly restricting the defendant as to' the tendered expert testimony on the question whether the fatal injuries could have occurred by coming in contact with the washbasin.

Furthermore, the question of the position or positions of the body of the deceased at the time that the blood spurted therefrom and onto the walls was of utmost importance. The defendant offered expert testimony to prove, from the location and shape of the spots of blood, that said blood spurted from the wounds while the body was in a position consistent with the defendant’s claim of accidental death by a fall against the washbasin. I believe the trial court also committed prejudicial error in excluding such testimony.

There are other assignments of error, including the claim that the defendant was prevented from having a fair and impartial trial by reason of the fact that a deputy sheriff of the county served as a member of the trial jury. As to certain of said assignments, it does not appear that there is any substantial merit therein. As to the remaining assignments, including the alleged disqualification of the juror, I believe it unnecessary to discuss the same as there is no likelihood that the questions involved will arise on a retrial of the cause.

Spence, J., pro tern., and Waste, O. J., concurred.

SEAWELL, J., Concurring.

Whether or not the deceased met her death by accident or whether it was the result of a criminal agency presents a very close question of law. The jury, by its verdict, found that the evidence proved the defendant guilty beyond a reasonable doubt and to a moral certainty, and that there was no reasonable theory or hypothesis upon which he could be innocent. The evidence is largely circumstantial and conflicting to the extent on the one hand that the cranial injuries which caused death could have been produced by an accidental fall, the back of the head striking against the rim of the washbasin, and on the other, to the effect that the cranial injuries could not have been inflicted by one impact but that they were the probable result of several blows. There is no satisfactory evidence of motive on the part of defendant and but slight, if any, incriminatory evidence which tends to support a wicked design to take life. Upon the nature and character of the wounds the inference of guilty or not guilty must flow. I am not prepared to say, as a matter of law, in the face of two opposing conflicting theories, neither of which is demonstrable to the degree of certainty, which the law requires, that the judgment of death should be executed. I am also partially brought to this view by reason of the fact that a member of the sheriff’s official family served as a juror in the ease. I impute no corrupt motive to said juror as it.is most unlikely that he was conscious of the effect of the relation, which he bore to the sheriff of the county. It is true that he was called a courtesy deputy, which means that he received no salary, and has, perhaps, no fixed duties to perform, but nevertheless, he was a deputy sheriff and may have felt that he owed some fealty to his principal. Had he been interrogated as to his relationship to the sheriff, he doubtless would have frankly revealed it and the defense, very likely, would have exercised its right of challenge. The sheriff was very active, as he should have been, in his duty to establish the cause of death which had occurred under unusual circumstances and in so doing he became convinced that there was probable cause to believe the defendant had committed a homicide. In fact, he swore to the complaint accusing defendant of murder. While no one can be said to be censurable for a seeming fortuitous event, nevertheless the defendant was deprived of the right of having his case presented to twelve qualified jurors in a case in which the crime is punishable with death and no valid judgment can be pronounced in capital cases upon a verdict unless said jury is constituted of twelve legally qualified jurors. The power to execute judgments in criminal cases has its sole origin in a verdict of a jury composed of twelve jurors formed in the manner-provided by law. The reasoning upon which I am impelled to hold, said juror disqualified is set forth in People v. Le Doux, 155 Cal. 535 [102 Pac. 517]. I am not of the view that the trial court committed prejudicial error in its rulings excluding or limiting proffered evidence of an experimental character, or that the defendant suffered prejudice by the court’s ruling on the admission of evidence upon any other question presented or that the instructions were erroneous as to any substantial proposition of law.

For the reasons above assigned I join in the order of reversal.

LANGDON, J., Concurring.

I concur in the judgment of reversal, on the same ground stated in my dissent in People v. Tedesoo, 221 Cal. 211 [34 Pac. (2d) 467], filed July 2, 1934. The two cases present the same question on appeal, namely, the sufficiency of the circumstantial evidence introduced therein to sustain the judgment of conviction. In the instant case, in my opinion, the record does not conclusively establish either the guilt or the innocence of the defendant; but the law requires that the defendant’s guilt be proved beyond a reasonable doubt, and the state has failed to meet the burden thus placed upon it, notwithstanding the fact that the record shows there was no lack of painstaking and intelligent effort put forth by both the sheriff and the district attorney to do so.

I am unable to agree with the conclusion reached in the concurring opinion, that reversible error was committed in the trial of the case. In my opinion, the alleged errors in admission and rejection of evidence, and the other claimed irregularities, did not, taken separately or together, so prejudice the defendant as to amount to reversible error.


author: PRESTON, J.

text:
    [L. A. No. 13857.
    In Bank.
    October 13, 1934.]
    HOWARD W. LOZIER et al., Respondents, v. JANSS INVESTMENT COMPANY (a Corporation) et al., Appellants.

      Gibson, Dunn & Crutcher, H. P. Prince and Robert F. Schwarz for Appellants.
    Bernard Potter for Respondents.
   PRESTON, J.

As to defendant Janss Investment Company this is an action for the return of the consideration paid by plaintiffs on contracts to purchase certain real property in Los Angeles County, following a unilateral rescission accomplished prior to commencement of the action, upon a written notice and offer of restoration. As to defendants Ellis and Germann, it is an action for damages for fraud and deceit, as these defendants did not receive the consideration paid but did make the fraudulent representations complained of.

The facts are that plaintiffs executed five contracts of purchase with defendant investment company, each covering a separate lot in Westwood, Los Angeles County, the interest therein contracted for being 68.5 per cent. One Saidee Benson, at the instance of defendants, was a purchaser with plaintiffs to the extent of the remaining 31.5 per cent interest in said properties; however, having refused to join with plaintiffs in this action, she became a defendant herein by order of court.

The court made findings in accord with the allegations of the complaint and judgment was entered accordingly against the three above-mentioned defendants, investment company, Ellis and Germann, for the amount of the consideration paid with lawful interest thereon from the date of payment. Each of said three defendants has appealed.

The complaint, proof- and findings are substantially to the same effect. The contracts were executed on September 23, 1927. The combined purchase price of the several lots was to be $27,000. The aggregate of the initial payments made was $6,506.40 by plaintiffs and $3,000 by said Saidee Benson. Future payments were to begin on March 23, 1929. However, no other payments were ever made. The negotiations were conducted by two salesmen of defendant investment company, to wit: Said defendants Ellis and Germana. These salesmen represented to plaintiffs that they were acquainted with the values of property in the vicinity; that the value of the property here involved was in excess of $27,000; that during the period of eighteen months elapsing between the initial payments and the next payments to be made on the contracts, they would guarantee to resell the property at a profit to be divided between plaintiffs and said Saidee Benson, according to their respective interests, and they further represented to plaintiffs that they would never be required to make any further payments on said contracts; also that they knew then of some persons who would buy two of the lots. These promises were renewed from time to time by said salesmen, both before and after the expiration of said eighteen months’ period. While plaintiffs knew that the promises of the agents were at variance with the contracts, nevertheless the evidence shows that said agents, by their repeated assurances, prevented plaintiffs from taking the matter up directly with the investment company; that the agents actually requested plaintiffs not to take it up with their principal.

The court found that these assurances of resale were made without intent of carrying them to execution and that they, and all other of said misrepresentations, were made to defraud plaintiffs; that plaintiffs believed and relied upon said misrepresentations, being ignorant of the value of said lots and of their salability; further, that by reason of the continued misrepresentations of said agents and by reason of the fact that they were at all times agents of the investment company, plaintiffs were not guilty of laches in waiting until May 14, 1930, before serving notice of rescission on defendant investment company. The court further found that said repeated assurances of said agents were a sufficient excuse for the failure to make the payments which were to begin on March 23, 1929, under said contracts.

In the face of these findings of fact this court is powerless to disturb the judgment. This court does not sit as triers of fact de novo. It is also true that the contracts contained the following clause: "The Buyer is urged to read the terms of this contract before .signing it, as no statement, settlement, agreement, understanding or representation orally made, or written and not contained herein, will be binding on the Seller”. But under the decision reached by this court in the case of Speck v. Wylie, ante, p. 625 [36 Pac. (2d) 618], determined October 10, 1934, plaintiffs may maintain this action to secure the fruits of the rescission of the contracts made by them. We do not give weight to the contention that Saidee Benson should have joined in the notice of rescission or the complaint in order to state a cause of action. She was not acting in joint relationship with plaintiffs at all but was a person secured by defendants themselves to take the remaining 31.5 per cent interest in the contracts; therefore to all intents and purposes plaintiffs engaged in a single transaction and not in a joint one with said Saidee Benson.

The judgment for a return of the money with interest as upon a rescission is proper as against the investment company alone. So likewise, ordinarily, would be a judgment against the other two defendants in damages for fraud and deceit in the same amount. But the two judgments are - inconsistent. We know of no rule that will authorize a judgment as against both sets of defendants under these circumstances. Plaintiffs having rescinded, this limits their recovery to a return of the consideration paid, with interest from date of payment, and it forbids a judgment against the other two defendants for the identical item, based upon fraud and deceit, which presupposes an affirmation of the contract that has instead been rescinded.

The judgment as to defendants Dell Ellis and John Germano. is reversed; the judgment as to defendant Janss Investment Company, a California corporation, is affirmed.

Curtis, J., Shenk, J., Waste, C. J., Seawell, J., and Lang-don, J., concurred.

Rehearing denied.


author: THE COURT.

text:
    [L. A. No. 13846.
    In Bank.
    October 19, 1934.]
    G. ALLEN MASON et al., Respondents, v. SAN-VAL OIL & WATER CO., LTD., et al., Appellants.

      Rollinson & Phister for Appellants.
    No appearance for Respondents.
   THE COURT.

This is an appeal from an order appointing a receiver pendente lite.

The order was entered on May 24, 1932. The appeal is presented by a bill of exceptions. The appellants filed their opening brief on November 10, 1932. The respondents have not filed a brief and have failed to make any return to an order of this court directing them to show cause why the order appealed from should not be reversed. Accordingly, the appeal has been ordered submitted on the transcript and the appellants’ opening brief. (Rule V, sec. 1, 204 Cal. xlvii.)

The order appealed from was made on the application of the plaintiffs, pursuant to notice and a hearing. The documents and evidence considered on the hearnig consisted of the verified complaint on file and affidavits, reports and other documents introduced on behalf of the respective parties. The contention of the appellants is that the court improperly appointed a receiver on the showing made, and that the order should be reversed. We are satisfied from the record presented that the contention must be upheld.

The plaintiffs, as stockholders of San-Val Oil & Water Company, Ltd., in April, 1932, sued said corporation, its directors, officers and other shareholders. They sought an accounting of all of the corporate transactions from the date of incorporation, cancellation of stock issued to the defendant shareholders, removal of the defendant directors and a declaration that their offices are vacant, and the appointment of a receiver. It appears from the complaint that pursuant to an agreement made in October, 1930, the corporation’s predecessor, San-Val Oil Co., Ltd., purchased certain leases from some of the defendants and other persons in exchange for shares of the corporate stock issued under a permit of the corporation commissioner. The company attempted to drill for oil, but without success. During the operations the source of a mineral water supply was discovered. The company gave up its drilling operations and commenced the business of bottling and marketing the mineral water. For this purpose it obtained additional leases, and in May, 1931, changed the corporate name to its present form and doubled its capitalization. Then follows in the complaint a series of some forty or more paragraphs devoted to allegations, based upon information and belief, of failure of consideration for the issuance of stock to said defendant shareholders, and misappropriation of funds, fraud and conspiracy to defraud on the part of the defendants as directors and otherwise. The allegations are replete with generalities and conclusions of the pleaders, without any allegations of fact substantiating or purporting to substantiate the charges. The allegations in such form without more cannot be considered sufficient allegations of the charges made. (Fox v. Hale & Norcross etc. Min. Co., 5 Cal. Unrep. 980, 989 [53 Pac. 32, 169] ; Willis v. Lauridson, 161 Cal. 106, 108 [118 Pac. 530] ; Dowling v. Spring Valley Water Co., 174 Cal. 218, 221 [162 Pac. 894]; Moropoulos v. C. H. & O. B. Fuller Co., 186 Cal. 673, 683 [200 Pac. 601].) The affidavits introduced in support of the appointment of a receiver add nothing to the complaint. In fact nearly all of them are merely declarations of the affiant stockholders that they are dissatisfied with the corporate management, that they are familiar with the allegations of the complaint and desire to join in the prayer for the appointment of a receiver. Such generalities contained in the affidavits cannot be deemed sufficient to supplement the complaint for the purpose of supplying its deficiencies in the respect noted. (Lewis v. Shaw, 77 Cal. App. 99, 103 [246 Pac. 86].)

The plaintiffs purport to allege facts showing that the corporation is “in imminent danger of insolvency”. The uncontroverted showing on the hearing was that since the discovery and exploitation of the mineral waters the corporation has conducted a business amounting to between $2,000 and $6,500 a month and appeared to be a going and prosperous concern.

Further mention of specific allegations of the complaint or description of the evidence introduced on the hearing need not be made to illustrate that it is difficult to ascertain upon what theory the action was brought or is maintainable, or the appointment of a receiver authorized. If the suit was brought for the purpose of removing directors on the ground of fraud and dishonesty pursuant to section 310, subdivision 3, of the Civil Code, and for the ancillary relief by appointment of a receiver such as was the case in Boyle v. Superior Court, 176 Cal. 671 [170 Pac. 1140, L. R A. 1918D, 226] (see, also, 6a Cal. Jur., p. 1531), the answer is that there is no allegation or showing that the plaintiffs own at least ten per cent of the outstanding shares of stock of the defendant corporation, as required by that section. On the contrary, the showing is that the plaintiffs own three per cent or less of such stock.

The allegation that the corporation is “in imminent danger of insolvency” suggests that the action was brought pursuant to section 564, subdivision 5, of the Code of Civil Procedure, for the appointment of a receiver. It has been settled since the French Bank Case, 53 Cal. 495, that said section does not authorize the appointment of a receiver for a corporation on the ground stated at the suit of a private person. (Murray v. Superior Court, 129 Cal. 628 [62 Pac. 191] ; Elliott v. Superior Court, 168 Cal. 727, 730 [145 Pac. 101] ; Hobson v. Pacific States Merc. Co., 5 Cal. App. 94, 101 [89 Pac. 866]; 6a Cal. Jur. 1524 et seq.)

Finally, if the action be on behalf of the corporation to have stock issued to certain defendants declared void and canceled on the ground that it was not issued in compliance with the corporation commissioner’s permit or because of failure of consideration, assuming such an action ■could be brought by the plaintiffs or by the corporation, no showing is made that it is such an action in which the ancillary relief by appointment of a receiver is necessary or desirable to insure to the plaintiffs, standing in the shoes of the corporation, the fruits of the equitable relief to which the corporation might become entitled. (See Loney v. Consolidated Water Co., 122 Cal. App. 350, 353 [9 Pac. (2d) 888].)

The foregoing comments, without entering into a more extended discussion, sufficiently support the conclusion that there was no proper basis for the order appointing a receiver of the defendant corporation.

The order is reversed.


text:
    [L. A. No. 14772.
    In Bank.
    October 22, 1934.]
    PIONEER CLEANERS & DYERS (a Corporation), Appellant, v. LOUIS MILLER et al., Respondents.
    ' A. Brigham Rose for Appellant.

      Loucks & Phister for Respondents.
   THE COURT.

Motion to dismiss the appeal on the ground that the notice of appeal was filed too late.

The judgment was entered on October 9, 1933. The sixty-day period, provided by section 939" of the Code of Civil Procedure for filing notice of appeal, expired December 8, 1933, and no appeal was taken within that time. No proceedings on motion for a new trial were pending during said sixty-day period. The filing of a notice of intention to move for a new trial on December 20, 1933, was ineffectual to extend the time, and the situation here presented is not affected by section 12a of the Code of Civil Procedure. The motion must be granted on the authority of Lawson v. Guild, 215 Cal. 378 [10 Pac. (2d) 459].

The appeal is dismissed.


author: SHENK, J.

text:
    [L. A. No. 14808.
    In Bank.
    October 22, 1934.]
    In the Matter of the BANK OF SAN PEDRO (a Corporation) in Conservation of Assets. EDWARD RAINEY, Superintendent of Banks, et al., Respondents, v. JOHN SULENTOR et al., Appellants.

      H. A. I. Wolch for Appellants.

      Sullivan, Roche, Johnson & Barry and Henry H. Childress for Respondents.
    Clifton A. Hix, as Amicus Curiae on Behalf of Appellants.
   SHENK, J.

Acting under the authority of section 135c, added to the Bank Act in 1933 (Stats. 1933, p. 318), the Superintendent of Banks appointed Henry E. Sherer as Conservator of the Bank of San Pedro. Subsequently the conservator sold certain assets of the Bank of San Pedro to Bank of America National Trust & Savings Association for the sum of $1,047,330.60. Thereafter the Superintendent of Banks and the conservator filed in the superior court their return and petition for confirmation of the sale. Objections to the confirmation were filed by the appellants, a copartnership doing business as Standard Fisheries Company, and Louise A. Steele, for and on behalf of themselves and all other depositors and creditors of the San Pedro Bank. The Van Camp Sea Food Company, Inc., a large depositor, filed a document called “intervention”, praying that the sale be confirmed. The matter came on regularly before the court and after a full hearing the court found and concluded that the sale had been fairly made and legally conducted; that the price was not disproportionate to the value of the property sold; that a better price or better terms for all of said assets could not be obtained; and that it would be and is for the benefit, advantage and best interest of the Bank of San Pedro, its depositors and creditors, that said property be sold as one parcel for the price and upon the terms stated in the offer of Bank of America National Trust & Savings Association; that the objections interposed against the sale were not well founded, and that the sale be confirmed. A decree ratifying, approving and confirming the sale was accordingly entered.

On this appeal, prosecuted by the members of the firm called Standard Fisheries Company, it is contended (1) that the Superintendent of Banks has no authority under the statute to sell at private sale any of the assets of a bank taken over by him under the Bank Act; (2) that the superior court is without jurisdiction to affirm such a sale; and (3) that the sale made and approved herein was and is unfair and unjust to the depositors and other creditors.

The first two contentions would seem to be answered by sections 136, 136b and 135c of the Bank Act. Section 136 authorizes the Superintendent of Banks to take possession of the property and business of a state bank under the conditions specified in the act. No claim is made that the conditions did not exist in the case of the Bank of San Pedro.' Said section also provides that in the process of liquidation “the Superintendent of Banks may sell any real or personal property of such bank on such terms as the court shall direct or approve”. Section 136b provides that “in any action or proceeding brought under any provision of this act, exclusive original jurisdiction shall be vested in the superior court of the county in which is located the principal place of business of the bank affected thereby”, with further provisions as to what shall be included in the record of the action or proceeding, and that the same shall be tried and determined in accordance with the provisions of the Code of Civil Procedure. Section 135c provides that “The conservator under the direction of the Superintendent of Banks shall take possession of the books, records and assets of every description of such bank. . . . Such conservator shall have all the rights, powers and privileges now possessed by or hereafter given the Superintendent of Banks, with relation to banks of which he has taken charge under the provisions of section 136 of this act. ...”

The foregoing provisions of the Bank Act constitute ample authority for the action taken by the Superintendent of Banks, the conservator and the trial court in the present matter, unless it must be said that a private sale of any of the assets of the bank could not be made or approved. The nature of the business of winding- up the affairs of a bank under the act or of conserving its assets and business with the view of possible reorganization and continuance in business is such that to prevent a private sale of any of the assets of the bank might greatly impede, delay and embarrass the statutory officers in the process of liquidation or conservation, to the detriment of all concerned. The requirement of a confirmation of the sale by the superior court was doubtless deemed a sufficient safeguard against unfair, arbitrary or improvident action on the part of the Superintendent of Banks and the conservator, and we cannot say that it is not legally adequate for that purpose. When, as here, sufficient notice was given to afford all who might object to the sale an opportunity to be heard in court and such hearing was had, the requirements of the law are met, provided the evidence is sufficient to support the findings of the court.

On the hearing it appeared that efforts had been made by the conservator, who had been president of the Bank of San Pedro and a member of the board of directors for many years, to obtain a loan from the Reconstruction Finance Corporation to enable the bank to reorganize and continue in business, but without success; that the sale of the particular assets involved herein would enable the conservator, under the supervision of the Superintendent of Banks, to distribute at once about seventy per cent to the commercial depositors and about thirty-three per cent to the depositors in the savings department; that by the retention of the balance of the assets the prospect was good to obtain a loan thereon or other disposition thereof which would be advantageous; that the price to be paid for the particular assets involved in this proceeding in one parcel was not disproportionate to the value thereof; that a better price for the whole thereof or on better terms could not be obtained and that the sale would be for the benefit, advantage and best interest of said bank, its depositors and creditors.

The evidence introduced by the objectors on the claim of unfairness of price is insubstantial. It consists generally of conclusions of witnesses and the testimony of a representative of a bond and brokerage concern that his principals would pay $25,000 more for certain of the assets set forth in the schedule than the noted sale price therefor. The items referred to describe securities whose value was stable or had appreciated since the offer to purchase was made. On the other hand there were items whose value had depreciated since the offer and other items whose value was either uncertain or speculative. This evidence merely created a conflict which the trial court resolved in favor of the petitioners, the respondents herein.

It was insisted at the hearing by some of the objectors that certain terms of the sale are inequitable and that the better course would have been to proceed with a liquidation, in accordance with the terms of the Bank Act as they existed prior to the amendments and additions of 1933, and not through the appointment of a conservator, and the sale involved herein. These objections presented points in the controversy which the court was called upon to decide, having in mind the powers and duties of the Superintendent of Banks and the conservator under the statute and the rights of the parties affected. No good reason has been advanced which would compel a contrary conclusion on this appeal. The findings are supported by the evidence.

The respondents moved for a dismissal of the appeal on the ground that the decree in confirmation is not made in the exercise of a judicial function, but is merely a ministerial act, and that in any event the decree of the trial court is final and no appeal therefrom will lie. The motion is not well grounded. The court proceeding is no merely formal approval of the action of the officials under the Bank Act. The court’s function is to safeguard the rights of the parties whose interests are involved in the proceeding before it. It is given exclusive original jurisdiction of the proceeding as a court. The right of appeal is not denied by the act. The proceeding is a special proceeding of a civil nature and the right of appeal from a final decree therein is afforded by section 963 of the Code of Civil Procedure. (See People v. Bank of San Luis Obispo, 152 Cal. 261 [92 Pac. 481].)

The motion to dismiss the appeal is denied. The decree is affirmed.

Waste, C. J., Seawell, J., Curtis, J., and Preston, J., concurred.

Rehearing denied.