source: Caselaw Access Project

author: EDMONDS, J.

license: Public Domain

text:
    [Crim. No. 4121.
    In Bank.
    October 29, 1937.]
    THE PEOPLE, Respondent, v. ROY LEON RIGHTHOUSE, Appellant.

      L. Nelson Hayhurst and John W. Guerard for Appellant.
    U. S. Webb, Attorney-General, Frank Richards, Deputy Attorney-General, and Dan F. Conway, District Attorney, for Respondent.
   EDMONDS, J.

The appellant in this ease pleaded guilty to an indictment charging him with the crime of murder committed on May 12, 1937. Upon taking evidence concerning the circumstances of its commission, the court found it to be murder in the first degree without mitigating circumstances and judgment was imposed that the defendant suffer the penalty of death by being hanged. Upon appeal the defendant contends that at the time he committed the crime the statute prescribing hanging as the punishment for murder had been repealed and a new statute providing for execution by gas had not yet gone into effect. Consequently, so he claims, there is no method by which he may legally be executed.

For many years prior to 1937 the law of California has specified death as a punishment for murder (see. 190, Pen. Code) and required that it “be inflicted by hanging the defendant by the neck until he is dead”. (Sec. 1228, Pen. Code.) The legislature of 1937 enacted the following:

“Section 1. Section 1228 of the Penal Code is hereby amended to read as follows: 1228. The punishment of death shall be inflicted by the administration of a lethal gas. See. 2. This act shall not apply to any punishment of death imposed for any crime committed prior to its effective date.” This act was approved by the Governor May 5, 1937, and became effective August 27, 1937. (Const., art. IV, sec. 1; sec. 323, Pol. Code.) The appellant argues that the legislature by the use of the word “hereby" intended to repeal the then existing law as of the date of the enactment of the new statute. Plowever, such a construction is supported by neither reason nor authority.

It has been uniformly held in this state that a statute has no force whatever until it goes into effect pursuant to the law relating to legislative enactments. It speaks from the date it takes effect and not before. Until that time it is not a law and has no force for any purpose. (Santa Cruz Water co. v. Kron, 74 Cal. 222, 223 [15 Pac. 772]; Harrison v. Colgan, 148 Cal. 76 [82 Pac. 674]; Gilmore v. Pearson, 71 Cal. App. 284 [235 Pac. 665].) So where the legislature passes an act to amend a statute then existing, the latter remains in full force during the time between the passage of the amendatory act and the time when it becomes effective. (23 Cal. Jur. 623.) Mr. Bishop applies this general rule to statutes concerning crimes as follows: “A statute which is to become law at a future day is a nullity in the meantime. It does not even operate as notice to persons to be affected by it, nor does a repealing clause in it put an end to the law to be repealed.” (Bishop on Statutory Crimes, sec. 31.)

These conclusions are both logical and reasonable. It cannot be supposed that the legislature in amending a statute for the purpose of substituting one form of punishment for another desired the existing law to be repealed as of the date of the passage of a new law which would not become effective for several months thereafter. The use of the word “hereby” does not impel this conclusion. This word means only that by passing the act in question the legislature decided to change the method of inflicting the death penalty. It does not indicate any intention to repeal the statute then in force before the effective date of the new enactment, assuming that this could be done. Moreover, the legislature expressly provided that the new law “shall not apply to any crime committed prior to its effective date”, which implies recognition of the rule that a statute is construed as if passed on the day it takes effect. For every statute speaks as though the legislature was in session on the day when the act takes effect and passed it on that day. (Gilmore v. Pearson, supra.) The provision of the Penal Code prescribing hanging as the method of inflicting the death penalty was, therefore, in full force and effect at the time of the commission of the crime with which the defendant was charged and also when sentence was imposed upon him.

The defendant also urges that this court should modify the judgment by determining the crime committed by him to have been murder in the second degree because the facts presented to the lower court show that on account of his mental condition at the time of the homicide he was incapable of committing the crime of murder in, the first degree. While the evidence shows that the defendant’s wife had left him three or four days before he committed the homicide and according to him he had been “doing a lot of worrying”, he stated in open court that he did not want to enter either a plea of not guilty to the charge or a plea of not guilty by reason of insanity. The trial judge after hearing the defendant’s story of how he accomplished the crime, stated that he had no doubt the defendant was perfectly sane both at that time and the time the offense was committed. All of the evidence points unmistakably to this conclusion. The defendant in the middle of the night and upon the representation that his wife was ill, lured to his home a nurse whom he had never seen before and murdered her for the sole purpose of ravishment. He planned the crime with considerable ingenuity and executed it in a manner too gruesome to detail.

The judgment is affirmed.

Waste, C. J., Shenk, J., Curtis, J., Seawell, J., and Nourse, J., pro tern., concurred.


text:
    [L. A. No. 16359.
    In Bank.
    November 12, 1937.]
    BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (a National Banking Association), Trustee, etc., Plaintiff and Respondent, v. STANDARD OIL COMPANY OF CALIFORNIA (a Corporation), Appellant; ALFRED R. THOMAS et al., Defendants and Respondents.

      Lawler & Felix for Appellant.
    Louis Ferrari, Edmund Nelson and Hugo A. Steinmeyer for Plaintiff and Respondent.
    Andrews, Blanche & Kline for Defendants and Respondents.
   EDMONDS, J.

Bank of America National Trust and Savings Association is the respondent on an appeal from a judgment rendered in an action brought by it for declaratory relief and instructions in aid of the administration of a trust and the disposition of funds held thereunder. By the present proceeding it seeks a writ of supersedeas staying the execution of the judgment pending the determination of the appeal.

Petitioner is the successor trustee under a trust indenture executed by Bastanchury Ranch Company to secure an issue of bonds in the principal amount of $1,500,000. Subsequent to the execution of this instrument the trustor executed a crop mortgage to Maria O. Bastanchury, which mortgage was assigned to Union Bank and Trust Company of Los Angeles. Later, petitioner entered into an agreement with the trustor and Standard Oil Company of California wherein the latter company agreed to advance approximately $87,000 for pest control on property subject to the trust indenture. Less than a month afterward, Consolidated Securities Company commenced an action to foreclose a junior encumbrance on this property. A receiver for the assets of the trustor was appointed in that action and, pursuant to the request of the receiver, the petitioner consented that Consolidated Securities Company might advance the sum of $50,000 to protect the property. However, the petitioner alleges that it does not know how much money, if any, was advanced by Standard Oil Company of California or Consolidated Securities Company under their respective agreements.

At a subsequent time, petitioner took possession of the property described in the trust indenture and afterward sold and conveyed it to Alfred R. Thomas, Harold D. Spear and Walter C. Austin, constituting a protective committee formed by the owners of over 90 per cent of the outstanding bonds secured by the deed of trust, for the sum of $610,000. The controversy in the action for declaratory relief concerns the right to the proceeds of this sale.

The defendant Standard Oil Company of California on its own behalf and as assignee of Consolidated Securities Company claims the sum of $44,421.38 with interest, and Maria O. Bastanehury, also a defendant, claims the sum of $40,846.39 from the money now held by the petitioner. Contrary to these contentions the defendant, Sunny Hills Ranch, Inc., as assignee of the bondholders’ committee, asserts that the proceeds of the sale of the property should be paid to it for the benefit of the bondholders. The superior court decreed that Standard Oil Company of California should recover from plaintiff $24.15 and ordered the petitioner to pay 91.7949 per cent of the remainder of the amount in its possession, after the deduction of this sum and interest thereon and all costs and expenses properly incurred or chargeable by it, to Sunny Hills Ranch, Inc., and the balance to the owners and holders of bonds not deposited under that agreement. The execution now outstanding was procured by Sunny Hills Ranch, Inc., upon this judgment several months after a notice of appeal therefrom was filed by the defendants Standard Oil Company of California and Consolidated Securities Company.

The petitioner contends that in the event it now complies with the judgment of the superior court and disburses the funds in its possession as required therein and this court upon the determination of the appeal should reverse the judgment, it may not be able to recover the funds so paid in order to disburse them pursuant to the further order of this court or the superior court. It alleges that Sunny Hills Ranch, Inc., is engaged in the business of owning and operating citrus properties; that these properties are subject to a first lien securing indebtedness of $700,000; that it is otherwise indebted; and that its income is uncertain by reason of the variations in the amount of crops harvested and the amounts obtainable therefor. It asserts that it is willing to pay the funds in its possession to the person or persons finally determined to be entitled thereto, and it claims no interest in the funds other than the costs and expenses payable to it under the provisions of the trust indenture.

Two points are made by the petitioner as grounds for its contentions. The first is that the judgment from which the appeal has been taken is not a judgment directing the payment of money, hence the writ of execution was improperly issued. It is also urged that under the circumstances here shown, this court, as a matter of discretion and in the aid of its appellate jurisdiction, should stay execution upon the judgment until the conflicting claims to the fund are finally determined.

Neither the findings of fact, conclusions of law nor the judgment specify the amount of money actually held by the trustee. The judgment directs the plaintiff to pay “all costs and expenses incurred by it in accordance with and payable under the terms and provisions of the aforesaid trust indenture”, but there is no determination of their amount. Also, the judgment inferentially suggests that the trustee holds funds other than the proceeds of the sale of the real estate, for it directs the plaintiff to “pay all of the purchase money and the proceeds and avails of the sale held February 17,1933, under and in pursuance of the provisions of the aforementioned trust indenture now retained by it together with any other amounts which may have been retained by said trustee under the provisions thereof as part of said trust estate or proceeds thereof”.

This judgment is not a complete determination of the rights of the trustee and the claimants to the fund. As between the trustee and the ranch company it is an adjudication that the latter is entitled to a specified percentage of the net proceeds of the trust fund as against the claims of the defendants who have not appealed from it. But it is not a judgment upon which execution may issue. An execution must refer to the judgment and state “if it be for money the amount thereof, and the amount actually due thereon”. (Sec. 682, Code Civ. Proc.)

Recognizing the deficiencies in the judgment but claiming that the petitioner must disburse the funds in its hands notwithstanding the appeal, the ranch company on March 9, 1937, made an ex parte application to the superior court for the issuance of a writ of execution. In support of this application it presented an affidavit alleging that petitioner holds $47,869.79 after payment of the amount found to be due to Standard Oil Company of California and all costs and expenses of the trustee. The court thereupon made an order “that a writ of execution issue for the enforcement of the judgment- made and entered in the above entitled action . . . commanding said Bank of America National Trust and Savings Association to pay to Sunny Hills Ranch, Inc., in pursuance of the aforementioned judgment, the sum of $43,942.02 from the fund now held by it. . . . ” This amount is 91.7949 per cent of the total sum which, it is stated in the affidavit, is in the possession of the petitioner. Pursuant to this order a writ of execution was issued reciting that on November 25, 1936, Sunny Hills Ranch, Inc., recovered a judgment against petitioner “for 91.7949 per cent of certain funds” and that “by court order of March 9, 1937, the sum of $43,942.02 is now due” to the ranch company by the bank from the fund now held by it. This writ was levied upon the petitioner, which alleges that it has not paid the sum demanded to the sheriff and that he threatens to seize the property unless the amount of the execution is forthwith paid.

As between the petitioner and the ranch company, the judgment which is now on appeal is only an adjudication that the owners of the bonds originally secured by the deed of trust, or their successors, are entitled to the trust fund as against other claimants. It does not completely fix the liability of the petitioner to the ranch company. “A final decree in equity must state in plain- figures the amount which a party must pay in the way both of debt or damages and costs, as well as every other matter adjudicated.” (Johnson's Case, 242 Mass. 489 [136 N. E. 563, 566].) When the amount is not so stated and does not appear in the judgment roll, it cannot be supplied by an affidavit submitted ex parte. The superior court had no authority to order a writ of execution to issue upon the facts stated in the affidavit made on behalf of the ranch company and its writ should be recalled.

However, even if the judgment were for a stated amount, the situation shown by the petitioner is one whicli warrants the issuance of the discretionary writ. The trustee should not be required to pay out trust funds pending an appeal and have the burden cast upon it of recovering those funds if the judgment is reversed or modified. Although Sunny Hills Ranch, Inc., is apparently now in sound financial condition, there is no such certainty in human affairs that we may say this situation will continue during the remaining period of the litigation. On the other hand, the petitioner is a national bank and the rights of all parties will be amply protected if the money is held by it pending the final judgment.

It is, therefore, ordered that a writ of supersedeas issue staying all proceedings for the enforcement of the judgment pending a final determination of the appeal.

Waste, C. J., Shenk, J., Curtis, J., Nonrse, J., pro tem., and Seawell, J., concurred.


author: WASTE, C. J.

text:
    [L. A. No. 16404.
    In Bank.
    November 16, 1937.]
    CHARLES HAYES TOLLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents.

      George R. Larwill, Thomas J. Dixon and Chester E. Howell for Petitioner.
    Everett W. Mattoon, County Counsel, Douglas De Coster, Chief Deputy County Counsel, Meserve, Mumper, Hughes & Robertson and Roy L. Herndon for Respondents.
   WASTE, C. J.

Petition for a writ of prohibition to restrain the respondent court and the judge thereof from further proceeding with the hearing of an application for the modification of an order granting alimony to the divorced wife of petitioner. The final decree, made April 16, 1919, directed the defendant, petitioner here, to “pay plaintiff [his wife] the sum of $50.00 per month alimony for the support and maintenance of herself and said minor child [of the parties], Irma Pauline Tolle, and that he pay the same monthly in advance on the 15th day of each month until said minor child, Irma Pauline Tolle, reaches the age of eighteen years”. Irma was then sixteen years of age, and reached the age of eighteen years in February, 1921.

It is not disputed that petitioner complied with the terms of the order and paid the sum of $50 per month until the minor reached the designated “age of eighteen years”, and is nowise in default. Seventeen years after the payments of alimony ceased, the divorced wife has moved the superior court to modify the decree of divorce and “make a further, different or additional order” requiring petitioner to pay her for “her support and maintenance the sum of $400 per month from and after the date of the modification”. (Italics added.) Petitioner, contending that he has fully performed the terms of the decree of 1921, moved the court to dismiss the application of his former wife. The motion was denied, and petitioner seeks by prohibition to restrain the court from proceeding with hearing the application.

Petitioner's contention that he has fully complied with the requirements of the decree that he pay alimony is supported by the authorities. Our decision in McClure v. McClure, 4 Cal. (2d) 356 [49 Pac. (2d) 584, 100 A. L. R 1257], discusses the exact question. It was there held (p. 359) to be “well settled that a decree of divorce may be rendered which permanently relieves the husband from the obligation to pay alimony in any sum. The decree has this effect where it expressly so provides, or where it neither awards alimony to the wife nor reserves the right thereafter to make an allowance for her support.” Many authorities are cited as supporting the text. Accepting this to be the settled rule, we are brought to a consideration of the question: Did the court here permanently relieve this petitioner from the obligation to pay alimony after the minor child of the parties reached the age of eighteen years?

There is no express answer to this question, but impliedly there is. The order provided for the payment “until said minor child reaches the age of eighteen years ’ ’. The effect of this order was to fix a period as definitely as though payment-had been ordered from the date of the decree to and including the 4th day of February, 1921. The use of the word “until” determines the question. It is a restrictive word—a word of limitation. Its use in the order before us meant, and can only mean, that the payment of the alimony continued to the date of the minor’s eighteenth birthday. {State v. Kehoe, 49 Mont. 582 [144 Pac. 162]; Maginn v. Lancaster, 100 Mo. App. 116 [73 S. W. 368].) By the use of the word “until”, the court provided a definite term during which the alimony should be paid, and there was no reservation of the right to change or modify the term. There being no provision for alimony after the minor reached the age of eighteen years, and the terms of the decree providing for payments until that date having been fully satisfied, nothing remained to modify. There was no appeal from the decree of divorce. When that judgment became final, the plaintiff in the case was no longer the wife of petitioner, and he owed her no marital duty. From that time she could enforce against him no obligation not imposed by the court at the time of the judgment. {Howell v. Howell, 104 Cal. 45 [37 Pac. 770, 43 Am. St. Rep. 70].) The judgment rendered was a final adjudication of the rights of the parties, and was conclusive, not only as to the relief granted, but as to the relief denied or withheld. Upon its entry, the jurisdiction of the court over the subject-matter of the suit and the parties was exhausted, unless preserved in the mode authorized by statute. (White v. White, 130 Cal. 597, 599 [80 Am. St. Rep. 150, 62 Pac. 1062].) The court, in the present case, made no provision for further action in order to furnish any other or additional relief. The order now sought by petitioner’s former wife is not designed to carry into effect the decree rendered, and, if granted, would be a mere nullity. (Barry v. Superior Court, 91 Cal. 486 [27 Pac. 763].)

The contention that prohibition is not the proper remedy in this case is answered by the fact that this petitioner appeared in the trial court in answer to the order to show cause, and objected to the making of any order therein on the ground that the court was without jurisdiction in the' matter.

Two authorities strongly relied on by the respondents may be distinguished as not applicable to the cause here, for the orders there under consideration were not made after the judgments providing for alimony had been fully executed, as in this case. In Smith v. Superior Court, 89 Cal. App. 177 [264 Pac. 573], the application for a modification of the order for payment of alimony concerned a provision in the interlocutory decree, and before the final decree was entered. The court there, of course, had jurisdiction. In Bechtel v. Bechtel, 124 Cal. App. 617 [12 Pac. (2d) 970], the court granted an interlocutory decree of divorce to the plaintiff and, among other things, provided that the defendant should pay as permanent alimony the sum of one hundred and fifty dollars a month, commencing on a fixed date, for the period of five years, when the payments should cease. The plaintiff appealed from portions of the decree, among other matters claiming that the court, by limiting the alimony payments to the period mentioned, abused its discretion, and asked that the error be corrected on the appeal. The decree was affirmed, but, in discussing the case, and without even referring to the period of limitation, the court held that the lower court might modify its order (for alimony) by requiring, if necessary, suitable payments to be made after expiration of the five-year period, notwithstanding the limitation contained in the decree. The question of whether or not such modification might be made after the termination of the five-year period was not considered.

Let a writ of prohibition issue as prayed for, restraining the respondent court from proceeding further in the matter of the application for modification of the order providing for alimony.

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


text:
    [L. A. No. 16450.
    In Bank.
    November 17, 1937.]
    GERALDINE DEMAREE et al., Petitioners, v. THE SUPERIOR COURT OF VENTURA COUNTY, Respondent.

      Eckman & Lindstrom, Robert L. Moore and Charles F. Blackstock for Petitioners.
    Rogers & Rogers, M. J. Rogers and Burton L. Rogers for Respondent.
    Charles E. R. Fucher, Conley, Conley & Conley, Cooley, Crowley & Supple, Crosby & Crosby, Gerald M. Desmond, Neumiller & Dietz and Redman, Alexander & Bacon, as Amici Curiae on Behalf of Respondent.
   WASTE, C. J.

Application for mandate. There is pending in the respondent court, and undetermined, an action instituted by petitioner Marjorie Nell Demaree, by her guardian ad litem, against C. E. Appling and Charles E. Dawley, to recover from said Appling and Dawley damages suffered by Marjorie Nell Demaree through being struck by an automobile alleged to have been negligently driven and operated at the time by Dawley with the consent of Appling. In a petition seeking an order for examination of Appling, filed in said superior court, it was alleged that Appling carried a policy of insurance, effective at the time of the accident, with the Pacific Indemnity Company, to indemnify him against liability imposed by law on the assured on account of injuries suffered by any person as the result of an accident occurring and caused by reason of the use of the automobile by the assured or anyone driving it with the assured’s consent, express or implied. It was alleged, upon information and belief, that the policy of insurance contained an omnibus clause indemnifying any other person operating said automobile with the consent, express or implied, of said Appling against such liability. It was further alleged that, as soon as petitioners recovered a judgment against Appling and Dawley in the pending action, they intended to bring suit on the policy of insurance against the Pacific Indemnity Company, and intended to join Appling and Dawley as proper parties defendant in said suit. It was also alleged that Appling will be a necessary witness at the trial of the anticipated action, that he has knowledge, information and documents pertaining thereto, and that petitioners expect to prove by his testimony, to be adduced at the examination here concerned, that he was in fact insured as petitioners on their information and belief alleged.

On the filing of this petition, the respondent superior court issued its order authorizing the examination of C. E. Appling and the taking of his deposition for the purpose of perpetuating his testimony, and a subpoena duces tecum was duly issued, directing Appling to appear before a notary public to testify as a witness in regard to the anticipated controversy, and to bring with him to said examination that certain policy of automobile accident insurance and all attachments relating thereto issued by the Pacific Indemnity Company to Appling as the assured, which policy was in effect at the time of the accident.

Thereafter, counsel for Appling moved the court to vacate the order for examination and to quash the subpoena duces tecum issued pursuant thereto. The respondent court denied the motion. The date for the taking of the deposition having expired, the court made its order directing the clerk to issue a new subpoena duces tecum directed to said Appling, similar in form and content to the subpoena duces tecum theretofore issued, but fixing another date for the examination. For convenience, and on stipulation of counsel, the taking of the deposition was continued to be taken at another date and before another notary public. On the date agreed upon, Appling appeared before the notary, and it was stipulated by counsel for all parties that his deposition be taken at that time and place for the same purpose and effect as if taken before the notary originally specified in the court’s order. Appling was duly sworn by the notary and was there ex-a mined by counsel for petitioners. Although directed by the notary to do so, he failed to produce the policy of insurance as directed in the subpoena duees tecum, and, during the ensuing examination and interrogation, refused to answer certain material questions then and there propounded to him regarding the insurance policy and its provisions. The questions are, with particularity, set forth in the report of the notary. However, Appling admitted the existence of the policy and that it had been in his possession two days before the examination.

On the filing of a petition for an order to show cause why Appling should not be ordered to produce the policy and answer material questions propounded to him in regard thereto, or be punished for contempt of court, such order was issued. After a hearing thereon before the respondent court, another judge presiding, the court discharged the order to show cause and vacated the previous order of the court for the issuance of the subpoena duces tecum requiring Appling to appear and testify and produce the insurance policy. The court now refuses to enforce the original order for examination and perpetuation of testimony in regard to the anticipated controversy on the ground that that order was inadvertent and made by mistake. The court also refuses to issue another subpoena duces tecum, or in any manner whatsoever to compel Appling to produce the policy or answer material questions propounded to him in reference thereto. Hence this proceeding for mandate. C. E. Appling and the Pacific Indemnity Company appeared and demurred, generally and for uncertainty, to the petition for mandate.

At the time of the hearing in this court, these demurring parties claimed the writ was uncertain in that it did not appear therein what, if any, judge of the superior court was the object of the writ. At that time, and for reasons explained in the argument, no return to the petition for the writ had been made. Since that date, however, Honorable Edward Henderson, one of the judges of the respondent superior court, in writing accepted the service of the alternative writ of mandate directed to the respondent court, ‘ as though said service had been made on [him] personally ’ and adopted, as. the return of the court to the alternative writ, the demurrer interposed by Appling and the Pacific Indemnity Company. The matter therefore stands as submitted on the appearance of the judge and the demurrer.

From the allegations of the petition it appears that the petitioners have met the requirements of sections 2083-2086 of the Code of Civil Procedure. It definitely appears, from the allegations of the verified petition for the order for examination produced to the judge of the court, that the petitioners expect to be parties to an action, and give the names of the persons who, it is expected, will be adverse parties. It also definitely appears that the proof of facts is desired and necessary to establish matters which it may hereafter become material to establish. The name of the witness to be examined and a general outline of the facts expected to be proved also appear. The application, considered also as an application for a subpoena duces tecum, sufficiently specifies “the exact matters or things desired to be produced”, and sets forth in sufficient detail the materiality thereof to the issues involved in the case, and sufficiently shows that the witness, Appling, had the insurance policy in his possession or under his control. (Sec. 1985, Code Civ. Proc.)

We think it must be conceded that the provisions of the policy of insurance are germane to petitioners’ cause and material to their anticipated action, when and if brought. We are of the view, therefore, that the applicants laid a sufficient basis for the issuance of the order providing for the perpetuation of testimony and the production of the insurance policy.

If an answer be deemed necessary to the further objection, raised and argued at the hearing, that the petition did not sufficiently designate a judge of the superior court against whom the writ was sought, that objection has been disposed of by the written acceptance and consent of Judge Henderson, one of the judges of the court. (See Alexander v. Superior Court, 91 Cal. App. 312, 317 [266 Pac. 993]; Goble v. Appellate Department, Superior Court, 130 Cal. App. 737 [20 Pac. (2d) 345].)

Respondent's principal contention seems to be that to permit the examination and to require the production of the insurance policy in question would result in unreasonable search and seizure, in violation of the provisions of the Constitution. The authorities cited in support of this contention fail, in our judgment, to meet the case. They relate, for instance, to a subpoena to produce “all books”, without specific description of particular and material documents. (Ex parte Clarke, 126 Cal. 235 [58 Pac. 546, 77 Am. St. Rep. 176, 46 L. R. A. 835].) In Funkenstein v. Superior Court, 23 Cal. App. 663 [139 Pac. 101], it was sought to inspect books without showing that any certain book was material; and in Pyper v. Jennings, 47 Cal. App. 623 [191 Pac. 565], the subpoena referred to “certain books”, without showing that any book or document contained evidence relevant or material to the issue before the court.

The comparatively recent decision of this court in Kutner-Goldstein Co. v. Superior Court, 212 Cal. 341 [298 Pac. 1001], sufficiently disposes of the issue. The author of the opinion in that case reviews the question at length, and says (p. 345): “Ordinarily nothing more than the statutory requirements is necessary to be shown in the application and the courts of this state have so stated on several occasions” (citing leading previous decisions sustaining the point).

Let the peremptory writ of mandate issue as prayed for.

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

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