author: WASTE, C. J.

text:
    [S. F. No. 16008.
    In Bank.
    December 28, 1938.]
    EMMA G. IVORY et al., Petitioners, v. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent.

      Morrison, Hohfeld, Foerster, Shuman & Clark for Petitioners.
    Robert R. Moody for Respondent.
   WASTE, C. J.

By this proceeding for certiorari petitioner seeks a review and annulment of two orders of the San Francisco Superior Court sitting in probate, to wit: an order made on May 14, 1937, setting aside a prior order admitting to probate the last will of John Ivory, deceased, and an order made on March 1, 1938, dismissing the probate proceeding for lack of jurisdiction.

Petitioner is the widow of the decedent and sole devisee and executrix under his will. She petitioned in San Francisco for probate of the will averring that decedent was a resident of that city and that she was his sole surviving next of kin. Notice of hearing of the petition was duly published, and a copy thereof was mailed to petitioner. This latter act purported to be a due compliance with section 328 of the Probate Code, which requires that the notice be served, personally or by mail, upon the heirs of the testator. However, decedent’s mother received no notice, nor was she mentioned in the petition for probate, notwithstanding that she would, with the widow, have been an heir to decedent’s separate property if he had died intestate. On May 8, 1936, the will was admitted to probate by an order which recited that “notice had been given according to law”, and that the testator had died a resident of San Francisco. No appeal was taken from this order, nor was application made under section 473 of the Code of Civil Procedure to set it aside. The probate of the estate was continued, and it proceeded to the point where, on January 25, 1937, a minute order was entered granting a petition of the widow for final distribution. But no decree of distribution was actually filed, and so far as appears, the estate has never been distributed.

On May 1, 1937, the mother of decedent, by the guardian of her person and estate, filed a notice of motion to set aside the order of May 8, 1936, admitting the will to probate upon the ground, first, that the San Francisco court was without jurisdiction of the estate because decedent at the time of his death was an actual bona fide resident of Modoc County, and second, that extrinsic fraud had been practiced by the widow upon the court and the mother by the failure to name her as an heir and give her due notice of the probate proceeding. This motion was never heard, but instead counsel stipulated that the probate order might be set aside solely because of the failure to name the mother as an heir and give her the required notice, and that the widow might have ten days within which to file an amended petition for probate. Pursuant to this stipulation, and on May 14, 1937, the court made an order vacating the probate order of May 8, 1936. No appeal was taken from the order of May 14th, nor was relief from it sought within the period prescribed by section 473 of the Code of Civil Procedure. The widow almost immediately filed an amended petition for probate, listing both herself and the mother as heirs; and the mother, by her guardian, then answered the amended petition, attacking the jurisdiction of the San Francisco court because of the alleged nonresidence of decedent.

Issues being joined upon the amended petition and the answer thereto, a hearing was had. The Superior Court expressed the opinion, upon the testimony, that John Ivory was a resident of Modoc County at the time of his death and that the San Francisco court could not entertain a petition for the probate of his will. Counsel for the guardian of the mother then proposed findings of fact and conclusions of law and served the opposing party with a copy thereof. After this was done, and before the findings of fact and conclusions of law were signed, the widow then changed to her present counsel and moved to set aside the order of May 14, 1937, and objected to any further proceedings upon the amended petition. At this time she assumed the position that the probate order of May 8, 1936, was a conclusive adjudication on the questions of residence of the decedent and due notice to heirs (Holabird v. Superior Court, 101 Cal. App. 49 [281 Pac. 108]); that it was subject to review only upon appeal or by a timely proceeding under section 473 of the Code of Civil Procedure; that as the mother failed to avail herself of either procedure, she was without right to relief in the probate proceeding, and the court was without jurisdiction to entertain the motion which led by stipulation, to entry of the order of May 14, 1937, vacating the probate order. She urged that the fact that the order of May 14th was entered upon stipulation did not give it validity, as jurisdiction could not be conferred by consent. (Tinn v. United States District Attorney, 148 Cal. 773 [84 Pac. 152, 113 Am. St. Rep. 354].) She claimed, however, that the stipulation precluded any charge of fraud in the procurement of the probate order. At the same time she conceded that if fraud in fact existed, it was extrinsic fraud, relief from which could be had only by an independent action in equity (Security-First Nat. Bank v. Superior Court, 1 Cal. (2d) 749, 757, 758 [37 Pac. (2d) 69]), and not by application to the probate court.

In answer to these claims the mother asserted that the effect of the stipulation was to establish absence of notice to heirs on the face of the record, thus rendering the probate order of May 8, 1936, void on its face and subject to attack by the proceeding which led to entry of the vacating order of Hay 14, 1937. She contended that the latter order was a proper exercise by the probate court of its equitable powers. It was also urged that as the widow had sought and acted upon the stipulation, she should be estopped to deny it. Extrinsic fraud in procurement of the probate order was charged (Purinton v. Dyson, 8 Cal. (2d) 322 [65 Pac. (2d) 777, 113 A. L. R. 1230]), and it was urged that such fraud entitled the mother to relief upon application to the probate court, without necessarily resorting to an independent action in equity. (Estate of Seaman, 51 Cal. App. 409 [196 Pac. 928].)

For the purposes of this opinion, as will hereafter appear, it is unnecessary to detail these respective contentions more fully because the questions will not be disposed of in this proceeding. The probate court, after a full hearing, denied the widow’s motion to set aside the order of Hay 14, 1937, overruled her objections, entertained the amended petition for probate, and on the issue of residence found that the decedent was in fact a resident of Hodoc County at the time of his death and left estate therein. Upon these findings, on Harch 1, 1938, an order was entered decreeing that the San Francisco court was without jurisdiction over the estate of decedent or to admit the will to probate, dismissing the amended petition for probate, and awarding the mother her costs. This application for writ of review followed. Petitioner, the widow, asks that the orders of Hay 14, 1937, and Harch 1, 1938, be vacated, and that the San Francisco court be restrained from sending the will to the Superior Court of Hodoc County. By demurrer respondent court challenges petitioner’s right to such relief in this proceeding.

Both of the orders sought to be annulled were appealable orders. (Prob. Code, sec. 1240.) No appeal was taken from the order of Hay 14, 1937, but an appeal to this court from the order of Harch 1, 1938, has been noticed.

It is the general rule that “where the law allows an appeal from an order or judgment, even when the tribunal making such order or rendering such judgment exceeded its authority in so doing, a writ of review may not be granted. (Code Civ. Proc., sec. 1068; Hildebrand v. Superior Court, 173 Cal. 86 [159 Pac. 147]; Olcese v. Justice’s Court, 156 Cal 82 [103 Pac. 317]; Anglo-Californian Bank v. Superior Court, 153 Cal. 753 [96 Pac. 803].) Many more cases might be cited to the same effect. (See 4 Cal. Jur., Certiorari, sec. 24, p. 1052.)” (Casner v. Superior Court, 23 Cal. App. (2d) 730, 732, 733. See, also, Casner v. Daily News Co., ante, p. 402 [84 Pac. (2d) 1032]; Hughson v. Superior Court, 120 Cal. App. 658 [8 Pac. (2d) 227]; Helbush v. Superior Court, 99 Cal. App. 501 [278 Pac. 1062]; Erickson v. Municipal Court, 219 Cal. 737 [29 Pac. (2d) 192]; Stoddard v. Superior Court, 108 Cal. 303 [41 Pac. 278]; Christie v. Superior Court, 218 Cal. 423 [23 Pac. (2d) 757].)

The rule has application to both of the orders here in question. So far as the order of March 1, 1938,' is concerned its applicability is obvious. But some additional comment should be made with reference to the order of May 14, 1937. Even though the time for appeal from the order may have expired, the rule applies; the fact that the order is appealable is determinative. (State Board of Equalization v. Superior Court, 9 Cal. (2d) 252 [70 Pac. (2d) 482], and cases there cited.) Furthermore, so long as the order is one of those enumerated in the code as appealable, an appeal may be taken from it, even if it is void. (Dunsmuir v. Coffey, 148 Cal. 137 [82 Pac. 682]; Estate of Dunsmuir, 149 Cal. 67 [84 Pac. 657]; Luckenbach v. Krempel, 188 Cal. 175 [204 Pac. 591]; 2 Cal. Jur., p. 184, sec. 40.) Thus the order of May 14, 1937, being an appealable order, is not subject to review in this proceeding.

Petitioner cites in support of her claim to relief by certiorari, a line of eases headed by Stanton v. Superior Court, 202 Cal. 478 [261 Pac. 1001]. In each of those cases, however,- where an attack on a void order or judgment was sustained in a proceeding for writ of review, the purported order or judgment was of such a nature that it might be denominated a “hybrid”, which so failed to conform to any rule of procedure that it could not be said to be appealable or that there was any plain, speedy, or adequate remedy at law by appeal. The orders in the present case do not fall within that category. Petitioner has an adequate remedy by her appeal from the order of March 1, 1938. Every issue which she might hope to litigate in this proceeding may be heard upon that appeal. It is true that the validity of the order of March 1, 1938, appears to depend entirely upon the validity of the order of May 14, 1937. However, since an order void upon its face is a nullity, assailable wherever and whenever it may be produced, and whether the attack upon it be direct or collateral (Texas Co. v. Bank of America, etc., 5 Cal. (2d) 35, 41 [53 Pac. (2d) 127], and eases there cited), the validity of the latter order may be made the subject of inquiry upon appeal from the former. In short, the full scope of relief which petitioner might obtain in this proceeding, may, in so far as she is found to be entitled to it, be accorded her upon the appeal from the order of March first. To review either that order or the order of May 14, 1937, in this proceeding would be to substitute certiorari for appeal. This cannot be done.

The writ heretofore issued in this cause is discharged.

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


source: Caselaw Access Project

author: THE COURT.

license: Public Domain

text:
    [L. A. No. 16813.
    In Bank.
    December 29, 1938.]
    LOUIS FEINSTEIN, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
    L. E. Dadmun for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

Whereas this proceeding was instituted by the filing of a petition to review the proceedings and recommendation of The State Bar, record of which was filed herein April 21, 1938, under Bar Mise. 1541, and since the filing of said petition and the order granting a review, the petitioner has been ordered disbarred by order of this court dated November 9, 1938, under Bar Mise. No. 1527, and by reason of such order of disbarment, the above-entitled proceeding has become moot, it is hereby ordered that the same be and it is dismissed.


text:
    [L. A. No. 16811.
    In Bank.
    December 29, 1938.]
    RICHARD H. HALL, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
    Benjamin W. Shipman for Petitioner.
    Philbrick McCoy for Respondent.
   THE COURT.

This is an application to review a recommendation of the Board of Governors of The State Bar that petitioner be disbarred.

The record shows that in 1936 Benjamin Zimmer, the owner of a cafe in Hollywood, consulted his attorney, Louis Feinstein, to obtain legal services and a loan of money. Feinstein lent him about $300 and incorporated the business. In return for this assistance he was to receive a share in the net profits.

In January, 1937, Zimmer came to Feinstein for further aid, and a plan was devised and carried out whereby Feinstein drew checks to third parties, which Zimmer discounted to obtain money. Feinstein had no sufficient funds to cover such checks, and Zimmer undertook to cover them with cash deposits at the time they cleared. Later Feinstein gave Zimmer the names of Morgan, a former client, and petitioner Hall, Feinstein’s office assistant, as other prospects for these “loans”, and Zimmer was successful in inducing them to go through the same procedure, for a money consideration.

Hall wrote five cheeks, two on his own “trust account” for a total of $950, and three on the account of Acme Collectors, a client, for a total of $975. The first two were made payable to Feinstein and the other three to Zimmer. Hall owed nothing to either payee and fully understood that the checks were to be used by Zimmer to obtain money from third persons. The accounts on which the checks were drawn contained only a few dollars, and of course Hall had no authority from his client to use its account for this purpose. Hall, following Feinstein’s procedure, struck the word “order” from the checks, to destroy their negotiability. At Zimmer’s suggestion, Hall dressed up the checks to make them look legitimate by making fictitious notations in the upper left-hand corner, such as “ % collection $325.00”, “y2 fee $475.00”, and “Hamel & Jordan, y2 fee $475.00”. For his efforts Hall was to receive $50, and Zimmer gave him a cheek for that sum, which was never paid.

Ultimately the Hollywood State Bank suffered a substantial loss. Zimmer’s fraudulent practices were discovered, and he and certain other persons were prosecuted and convicted. (See People v. Zimmer, 23 Cal. App. (2d) 581 [73 Pac. (2d) 923].) Feinstein was also prosecuted, and coincidentally orders to show cause were issued by the local administrative committee of The State Bar directed against Feinstein and Hall. The eases were consolidated for hearing, and the committee recommended disbarment for Feinstein and a public reprimand for Hall. The board of governors adopted the findings with certain amendments, but recommended disbarment for both. Meanwhile the prosecution of Feinstein resulted in his conviction (see People v. Humphrey, 27 Cal. App. (2d) 631 [81 Pac. (2d) 588]) and disbarment followed automatically. (See Feinstein v. State Bar, L. A. No. 16813, this day filed.) (Ante, p. 461 [85 Pac. (2d) 869].)

We are therefore presented with the petition of Hall alone. From the foregoing review of the facts it is clear that Hall was guilty of the same fraudulent practices as Feinstein, and the local administrative committee found that both were guilty of acts involving moral turpitude. Moreover, the entry of the fictitious transactions on the face of the checks shows a full knowledge of their intended fraudulent use, and a deliberate purpose to aid in the deception of the contemplated victims. And it should further be remembered that Hall was to receive payment for these “loans”, and did get the one check of $50 for Zimmer.

Hall does not deny the substance of the charges against him, and frankly admits that his conduct was “foolish and unwise” and that he is “ashamed” of his part in the transaction. But he asserts that he had no intention of injuring anyone, and that he honestly believed, from the statements of Feinstein and Zimmer, that the checks would be paid. In brief, his main defense is his youth, inexperience, and faith in his friend and employer, Feinstein. This defense is well stated in the following findings of the local administrative committee:

“After January 29, 1937, which was the date of the last of the aforesaid five checks given by Morgan to Zimmer, Zimmer again called upon Feinstein to inquire if he, Feinstein, knew of any other person that would be willing to enter into similar check transactions; Feinstein then introduced Zimmer to respondent Hall. For several years prior thereto Hall had been acquainted with Feinstein, who had befriended Hall personally by advancing him money for the necessities of life and professionally by giving Hall legal employment as process server while Hall was studying law, and later by giving him office space in Feinstein’s law suite; for these favors Hall had a deep and genuine" sense of obligation to Feinstein, which Feinstein knew. Moreover, Hall was immature in judgment and inexperienced in the practice of law, having then practieed less than three years, and of this Feinstein was likewise aware. In fact, the combination of Hall’s immaturity, inexperience and his sense of obligation, made Hall a tool in the hands of Feinstein; consequently, Feinstein’s introduction of Zimmer to Hall made Hall pliant and acquiescent to Zimmer’s request for checks to be used in transactions similar to the ones previously had between Zimmer and Feinstein and Zimmer and Morgan. ’ ’

Our problem is therefore not one of law; we are called upon to determine what is the proper measure of punishment for a clearly improper act. Whatever the motives may have been, the acts were not slight infractions of rules of ethics, but were deliberate and intentionally fraudulent acts involving moral turpitude. This being so, we cannot agree with the local committee that a reprimand is a sufficient punishment. But where the extreme penalty of disbarment is invoked, we think it proper to take into consideration the youth of petitioner and the circumstances in which he was placed by his close association with Feinstein. Hall was but 33 years of age, and in practice less than three years. It is no excuse that he followed the suggestions of Feinstein, but this fact distinguished him in some degree from an experienced and calculating offender.

In short, we believe that it is still possible for Hall to redeem himself if permitted to return to practice, and that disbarment is not the appropriate penalty under all the circumstances. In this view we are supported by the local committee and by four members of the board of governors who felt that the punishment was too severe. After careful deliberation we have concluded that a substantial period of suspension is adequate punishment for petitioner’s offense.

It is therefore ordered that petitioner be and he is hereby suspended from the practice of the law in this state for a period of three years commencing February 1, 1939.

Rehearing denied.


author: CURTIS, J. HOUSER, J., Dissenting.

text:
    [Crim. No. 4175.
    In Bank.
    December 30, 1938.]
    THE PEOPLE, Respondent, v. WILLIAM MARTIN et al., Appellants.

      Roland T. Williams, and Frederic H. Vercoe, Public Defender, for Appellants.
    U. S. Webb, Attorney-General, and Walter L. Bowers, Deputy Attorney-General, for Respondent.
   CURTIS, J.

The defendants William Martin and Edwin W. Spotts were jointly accused by information filed in the Superior Court of Los Angeles County of having murdered Sam Tanner, on or about January 8, 1938, in the city of Los Angeles. They were tried together and convicted of murder of the first degree without any recommendation by the jury that a lesser punishment than the extreme penalty should be imposed. Accordingly judgments imposing the death penalty upon each were pronounced by the court. Separate appeals were taken by each defendant from the judgments of conviction and from the orders denying motions for new trials.

The main facts with reference to the crime are undisputed and disclose that the homicide was committed in an attempted holdup of a grocery store, during which the proprietor was shot down in cold blood, without even the semblance of any resistance on his part. Moreover, not the slightest extenuating or mitigating circumstance appears in the record. On the evening of January 8, 1938, about the hour of 8 P. M., Martin in company with Spotts drove up to Tanner’s Food Center, located at 1603 Grand Avenue in the city of Los Angeles. Spotts, who was driving his Chevrolet roadster, stopped the car'facing west on Venice Boulevard, about forty yards from Grand Avenue. Spotts remained outside in the car while Martin entered the store through the Grand Avenue entrance. When he entered the store there were only two persons in the store, a meat cutter by the name of Charles Read, and Sam Tanner, the proprietor, who was seated on some milk crates in front of the cash register. Martin, holding a Colt automatic in his right hand approached Tanner, saying at the same time, “This is a holdup. I want your money.” Tanner continued facing Martin without moving, and Martin repeated, “I want your money.” Read, who had taken a couple of steps back when he saw Martin with the gun, told Mr. Tanner to hand over the money, the man “meant business”. As Tanner started to get up from the milk crates, Martin fired point blank at him, then turned and fled. Tanner was immediately taken to the hospital in an ambulance, where he died some twenty-four hours later. The bullet which had been fired from the Colt automatic was found on the floor close to where Tanner had been sitting, and the exploded shell was found under the cigarette counter. Martin was arrested on the morning of January 14, 1938, by three police officers. A police officer, who was a ballistic expert, made tests with the bullet found in Tanner’s store, and stated positively that the markings on it showed that it had been fired from the .32 Colt automatic which was found in the flat of Martin when arrested, hidden under a cushion of the divan, fully loaded and with the safety catch off. Martin, upon being informed that the gun in his flat had been tested by a ballistic expert and found to be the gun used in the murder of Tanner, admitted that he was the person who had fired the fatal shot. His statement- was taken down in shorthand, and after being transcribed was signed by Martin. In this statement, he said he had gone over to the house of his friend, Spotts, earlier in the evening and drank some beer, that he told' Spotts he “was going to look over a place and would he drive”. He stated that he had Spotts park on Venice Boulevard while he entered the store. Towards the end of his statement he said, “He [Spotts] did not know I was going to do that job.” He further said that after the shooting he and Spotts drove to a beer parlor where they had some beer before separating and going home. It was at the beer parlor that he told Spotts he had shot a man. Spotts was arrested, and likewise made a statement. In this statement he did not deny that he knew of the proposed holdup, but stated that all he knew was that, “I drove the ear and Martin went in and held up the grocery store.” At the trial Martin did not take the stand, but his statement was read in evidence accompanied by an admonition by the trial court to the jury that said statement should be considered only with reference to the guilt of the defendant Martin, and should be eliminated from consideration in determining the guilt or innocence of Spotts. Spotts took the stand and denied guilty knowledge of the holdup, claiming that when Martin left him and entered the store, he was under the impression that Martin was going into the store to get some beer, and that he did not know that Martin at the time was carrying a loaded gun.

As different grounds for a reversal of the judgments are presented by each of the defendants, we shall consider their appeals separately, and shall first discuss the contentions advanced by defendant Martin.

No question is raised as to the guilt of the defendant Martin. Indeed, in view of the record, such a contention could not be seriously made. All the efforts of defendant Martin are directed toward an attempt to secure a reduction in the penalty imposed to imprisonment for life. Defendant claims that the trial court committed prejudicial error in refusing to give three instructions requested by him regarding the discretion of the jury in a case of first degree murder, and hopes by establishing error on the part of the trial court to secure a new trial with the possibility that upon a new trial the jury will bring in a recommendation for life imprisonment instead of a verdict which requires the death penalty.

There is no 'merit whatever in the contention of the defendant. The three instructions requested by defendant Martin all referred to the discretion of the jury in determining the penalty in a first degree murder case, and were to the effect that there are no presumptions or intendments of the law in favor of the death penalty in such cases; that it was not necessary for extenuating or mitigating circumstances to exist to authorize the jury to bring in a recommendation for life imprisonment; and that if the jury should be in doubt as to the proper penalty to inflict/ the jury should resolve that doubt in favor of the defendant and fix the lesser penalty. The defendant was not entitled to have such instructions given to the jury. The authority relied upon by defendant not only does not support his contention, but directly holds that the proper practice for the trial court is to refrain from giving any instructions which might have a tendency in the slightest degree to influence or control the discretion of the jury in its determination of the proper penalty in a case where the defendant is charged with murder in the first degree. (People v. Bollinger, 196 Cal. 191 [237 Pac. 25].) Indeed, that case went so far as to hold that the giving of an instruction by the trial court was not prejudicial error which told the jury that, “If the jury in this case should find the defendant guilty of murder in the first degree and they also shall find the further fact that there is some extenuating fact or circumstance in the case, it is within their discretion to pronounce such a sentence as will relieve the defendant from the extreme penalty of the law. The jury in a criminal case for murder is vested with a discretion but the discretion is not an arbitrary one, and is limited to determining which of two punishments shall be inflicted, and is to be employed only when the jury is satisfied that the lighter penalty should be imposed. If the evidence shows 1he defendant to be guilty of murder in the first degree but does not show some extenuating fact or circumstance, it is the duty of the jury to find a simple verdict of murder in the first degree, and leave with the law the responsibility of affixing the punishment.” The court then made a detailed analysis of the authorities upon the subject and concluded its discussion with the following language: “We have, however, gone into the subject in the hope, if not the expectation, that the practice of giving such instructions may be abated, thus giving assurance that the penalty reflects the decision of the jury alone and at the same time sparing this court the necessity of repeatedly passing on such assignments of error. And considering the numerous occasions this court has held that section 190 of the Penal Code confers on the jury alone the discretion of determining the punishment in cases of guilt of murder in the first degree, trial courts, especially where a human life is at stake, should not interfere with the discharge of that solemn duty by the jury.” It is obvious that if the discretion of the jury is to remain uninfluenced by the trial court, instructions favorable to the defendant are as objectionable as instructions unfavorable to defendant. Therefore the defendant here, in asking the trial court to give the three requested instructions was simply asking the trial court to violate the rule announced in the decision just cited.

We agree with the pronouncement of the court in that case (People v. Bollinger, supra), as to the proper practice of the trial court, and recommend for future use to trial courts in similar cases the instruction on this subject given by the trial court in the instant case. It is as follows: “The law of this state provides that every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury. If you find that the defendant is guilty of murder in the first degree it will be your duty to fix the penalty. It is entirely for the jury to determine which of two penalties is to be inflicted in case of murder in the first degree, the death penalty or confinement in the state prison for life. If the jury should fix the penalty as confinement in the state prison for life, you will so indicate in your verdict. If, however, you fix the penalty at death, you will say nothing on this subject in your verdict, nor will you specify the death penalty in your verdict. In the exercise of your discretion as to which punishment shall be inflicted you are entirely free to act according to your own judgment.”

The defendant Edwin W. Spotts seeks to avoid the results of his admitted participation in the affair and his presence at the scene of the crime by claiming that while he did aid Martin by driving him to and from the scene of the crime in his Chevrolet roadster, he did so, not knowing that Martin was planning to rob the store, and that he did not abet Martin in the commission of the felony by reason of the fact that at the time of its commission, he had no guilty knowledge of it. It is, of course, the well-settled law in California that if a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery, whether such killing is intentional or unintentional, or accidental, each and all of such persons so jointly engaged in the perpetration of, or attempt to perpetrate such crime of robbery, are guilty of murder of the first degree. (People v. Perry, 195 Cal. 623 [234 Pac. 890].) Specifically stated, defendant Spotts’ contention is that the evidence adduced at the trial is insufficient to sustain'his conviction for the reason that there is no evidence which establishes his guilty knowledge of the robbery. It is obvious that the only evidence which would prove conclusively, beyond the shadow of a doubt, the existence of guilty knowledge on the part of the defendant Spotts would be his own statement or confession to that effect. And it, must be conceded that in his statement to the police officers after his apprehension he did not directly admit that he knew the robbery was to be committed, his language in this respect being, “I drove the car, and Martin went in and held up the grocery store; that’s as far as I know”. However, the existence of such knowledge or intent need not be directly and positively proven, but may be inferred from circumstances. And whether or not the alleged aider and abetter knew and shared the principal’s criminal intent is a question of fact for the jury to be inferred from circumstances. (State v. Ochoa, 41 N. M. 589 [72 Pac. (2d) 609].) In the instant case there are certain facts and circumstances which tend quite convincingly to prove a guilty knowledge on the part of the defendant. The fact that Spotts failed to immediately deny, both vigorously and vehemently, that he had any knowledge that a robbery was in contemplation when Tanner was shot, is indicative of the fact that he did share Martin’s guilty knowledge. For an innocent man to fail to protest his innocence when questioned upon his arrest and to merely say, “I drove the car and Martin went in and held up the grocery store; that’s as far as I know,” is scarcely conceivable. There are also other facts admitted by Spotts which are indicative of guilt; the fact that he had known Martin intimately for over five months; that a month before he had given Martin the Colt automatic with which the fatal shot was fired; the fact that he admitted that he himself had been carrying a gun, although at the time he was unarmed; the fact that he knew Martin had been carrying a gun on other occasions, although denying that on this particular occasion he knew that Martin was armed; the fact that he stopped the car around the corner about forty yards from the grocery store where the license plates would not be noticed by anyone who might view the crime; the fact that in his statement he said that he drove around in front of the market twice before Martin attempted the robbery, whereas on the stand he testified that he had driven in front only once; the fact that just previous to the attempted robbery Martin and Spotts took a circuitous drive, strongly indicative of a reconnoitering expedition, Spotts testified that after leaving his house earlier in the evening and stopping at a dance hall where Martin did not get out and he merely glanced in, “I drove south on Flower to 18th Street, went west to Figueroa and went back up Figueroa to Venice. I went east on Venice to Hope, south on Hope to 17th, east on 17th to Grand, went north on Grand to Venice and then I went west on Venice.” These facts and circumstances were sufficient to justify the conclusion of the jury that Martin and Spotts were engaged in a joint enterprise and that Spotts, when they started out that evening, intentionally embarked with Martin on a deliberately planned crime.

It may be conceded that there are some other facts which tend to exonerate the defendant Spotts, as for instance, the fact that he did not park directly in front of the entrance of the store where Martin could make a quicker getaway, as well as the fact that he stopped the motor of his car while waiting for Martin. This latter fact, if true, would be

strongly indicative of his innocence, but the truth of the fact depends solely on the statement of Spotts and may well have been discounted by the jury. Considerable emphasis is placed by counsel for the defendant upon the fact that the automobile used was a 1931 Chevrolet roadster which was very noisy, and it is implied that if Martin and Spotts had planned the robbery, they would have used a less conspicuous car. Inasmuch as the ear used belonged to the defendant Spotts, and he and Martin apparently had no other car at their disposal, this argument seems to be entitled to little weight. The jury evidently weighed all of the evidence, as it was their function to do, and found against the contention of the defendant Spotts that he had no intimation that Martin intended to hold up the store when he drove him to the store and waited outside for his return. The finding of the jury by its verdict, and the trial court in its refusal of a new trial, are conclusive upon this court unless it can be said as a matter of law there is no evidence to support it. (People v. Tedesco, 1 Cal. (2d) 211, 219 [34 Pac. (2d) 467].) After a careful examination of all the evidence, we cannot so conclude.

Defendant Spotts also claims that the court committed prejudicial error in refusing to give two instructions to the effect that a conviction cannot be had upon the testimony of an accomplice unless corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense. We are satisfied that the trial court properly refused to give such instructions. In the first place, defendant Martin did not take the stand, and consequently, so far as Spotts is concerned, there was no testimony of an accomplice introduced. And although the confession of Martin was read in evidence, it was accompanied by the admonition of the court that it should be considered only with reference to the guilt of the defendant Martin. Moreover, aside from the testimony of the autopsy doctor and Mrs. Tanner, which established the death of Tanner, and the testimony of the ballistic expert which proved the fatal bullet had been fired from the gun of Martin, it was Spotts himself who freely admitted being at the scene of the crime and who furnished the evidence with reference to the particular circumstances from which the jury deduced the fact of his guilty knowl-

Defendant Spotts also predicates error upon the fact that the jury found by a special verdict that he was armed with a deadly weapon at the time of the commission of the crime. While it is true that there is no evidence that Spotts was in fact armed, and he denied that he was armed on this occasion, it is apparent from the fact that the information charged that, “at the time of the commission of the offense said defendants were armed with a deadly weapon, to-wit, a .32 automatic pistol”, that the jury were under the impression that the possession of the pistol by Martin was possession by Spotts. In some instances, the question of whether or not the defendant was actually armed would be a question of vital importance, but in the instant case it is absolutely immaterial for the reason that the defendant Spotts is guilty of murder in the first degree, regardless of whether he was or was not armed, by virtue of his participation in the commission of the crime of robbery during which a homicide was committed by another person.

We are satisfied that no errors were committed by the trial court, and that the verdicts of the jury were amply supported by the evidence.

The judgments and the orders denying new trials are affirmed.

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

HOUSER, J., Dissenting.

I dissent.

In my opinion, as to defendant Martin, the judgment should be affirmed. But as to defendant Spotts, I am unwilling to concur in a judgment, by reason of which,— founded as it is upon such equivocal and unsatisfactory evidence of his guilt as appears in the record of the case,— he shall suffer the penalty of death.

Langdon, J., concurred.


text:
    [L. A. No. 16399.
    In Bank
    December 30, 1938.]
    In the Matter of the Estate of WILLIAM W. WALLACE, Deceased. ELLEN RUTH O'MARA et al., Appellants, v. THE FARMERS AND MERCHANTS NATIONAL BANK OF LOS ANGELES, as Trustee, et al., Respondents.
    Meserve, Mumper, Hughes & Robertson and Roy L. Herndon for Appellants.

      Eckman & Lindstrom and Morton L. Barker for Respondents.
   THE COURT.

Following an appeal from a judgment by which the corpus of a testamentary trust was ordered to be distributed, this court by its decision in Estate of Wallace, filed May 31, 1938, 11 Cal. (2d) 338 [79 Pac. (2d) 1094], reversed the said judgment, without having made any order therein with respect to the costs incurred on said appeal, pursuant to the provisions of section 1232, Probate Code, which purports to vest in an appellate court on an appeal in probate matters, discretionary authority to order costs to be paid by any party to the proceedings or out of the assets of the estate “as justice may require”. However, upon the issuance of the remittitur by the clerk of this court, on July 1, 1938, the said clerk added an order thereto to the effect that appellants were to recover costs on appeal.

On July 20, 1938, the respondent Phoebe A. Boisvert, special administratrix of the estate of deceased, filed a motion in this court to have the said remittitur recalled and the same to be corrected by striking therefrom the words, “Appellants to recover costs on appeal,” upon the asserted grounds that said provision as to costs sought to be stricken was improperly incorporated by the clerk in said remittitur for the reason that this court had not exercised its discretion in awarding costs in pursuance of the provisions of said section 1232, Probate Code, above referred to; that therefore any provision for costs in said remittitur was unauthorized; that by reason of the failure of this court to so exercise its discretion, the jurisdiction to award costs is vested solely in the superior court; and that until said last-mentioned court has exercised its authority in that regard, no provision or judgment pertaining to the costs in said appeal is proper. As authority for these contentions respondent relies in particular upon the cases entitled Estate of Johnson, 200 Cal. 307 [252 Pac. 1052], Estate of Erickson, 4 Cal. App. (2d) 602 [41 Pac. (2d) 939], and Estate of Burnett, 8 Cal. App. (2d) 363 [47 Pac. (2d) 745], which decisions will be hereinafter referred to.

On the other hand, appellants contend that where, as here, the appellate court has reversed the judgment on appeal, without direction as to the costs thereof, under the provisions of rule XXIII of the Rules for the Supreme Court and District Courts of Appeal, appellants are entitled to a provision in the remittitur that they shall recover their costs on appeal; and they assert that this view of the question presented harmonizes with the provisions of the Probate Code relating to costs, especially those of section 1230 of the Probate Code. In effect, appellants concede that although there may be decisions in this jurisdiction to the contrary, the case entitled Estate of Marcus, 16 Cal. App. (2d) 183 [60 Pac. (2d) 469], announces the correct rule. In that case the appellate court affirmed a judgment admitting a will to probate in a contest instituted before probate, and there, as in the instant case, the appellate court failed to exercise its discretion with regard to an award of costs on said appeal, the remittitur also being silent in that regard. For the purpose of correction, the District Court of Appeal there granted a motion to recall the remittitur; and in providing for the issuance of a corrected remittitur to contain a provision for costs to the prevailing party, in its discussion of authorities bearing upon the question presented, said:

“ ... In the Erickson ease, ... [4 Cal. App. (2d) 602] the following language was used: ‘It has been held that by reason of the fact that the subject of costs in probate proceedings is specially provided for [referring to section 1232 among others in the Probate Code] the general rules concerning costs as set forth in section 1021 et seq. of the Code of Civil Procedure do not apply to probate proceedings. (Estate of Olmstead, 120 Cal. 447, 452 [52 Pac. 804].) For like reasons the general rule XXIII should not apply in this ease.’ ”

But the court, in the Marcus case, went on to say that :

“In the trial of civil actions costs are allowed as a matter of course to the successful party upon a judgment in his favor. (Code Civ. Proc., sec. 1032.)
“The allowance of costs where issues are joined in probate proceedings is governed, except in rare instances, by section 1230 of the Probate Code. That is a long section covering the rules of procedure in probate trials and it is entitled ‘Trial rules’. The last sentence in the section provides for the allowance of costs and for their allowance as an incident to the judgment. The section being long and the pertinent sentence being short and at the end of the section, it might, by inadvertence, be overlooked. It- reads as follows: ‘ Judgment on the issue joined, as well as for costs, may be entered . . . by the court as in civil actions. ’
“The alloAvanee of costs as an incident to the judgment as in civil actions is so natural that the litigants take such judgments for granted and do not raise the question on appeal when such judgments are rendered. The allowance of costs in any other method is so unnatural and so unusual that when it is attempted there is an occasion for appeal. It should be remembered that section 1232 of the Probate Code applies only ‘when not otherwise prescribed by this code’ and our Supreme Court has said in effect that the circumstances must be peculiar indeed to justify such an order. (Estate of Yoell, 160 Cal. 741 [117 Pac. 1047]; Estate of Bump, 152 Cal. 271 [92 Pac. 642].)
‘ ‘ The above was the thesis of the last paragraph of the decision of this court in the ease of Estate of Marcus ... [14 Cal. App. (2d) 254, 257, 58 Pac. (2d) 385] although it was not so elaborately stated as it has been herein. Obviously, therefore, the decision of this court in the Marcus case included a judgment for costs on appeal against the losing party as provided in said rule XXIII, and the failure to enter the item in the remittitur was an inadvertence.” (Emphasis added.)

It is clear that in the Marcus case (16 Cal. App. (2d) 183 [60 Pac. (2d) 469]) the court was of the view that the provisions of section 1232, Probate Code, were not applicable in the sense that it was erroneous for the clerk of the court to insert in the remittitur a provision for recovery of costs by the prevailing party on appeal, where the decision of the appellate court was silent as to the matter of costs,—but in effect it was there held that by the provisions of section 1230 of the Probate Code, in cases where appellate courts on probate appeals had failed to make an order relating to costs, the general rules relating to costs on appeal in civil actions (an award thereof to the prevailing party) should govern. We cannot agree with the interpretation placed upon those two sections by that decision. Both section 1232 and section 1230 of the Probate Code are found under the caption, “Rules of Procedure”. The provisions of section 1232 are preceded by the title “Costs” and read as follows:

“When not otherwise prescribed by this code, either the superior court or the court on appeal may, in its discretion, order costs to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. ’ ’

But section 1230 is prefaced by the title "Trial rules ’ ’, and reads as follows:

“All issues of fact joined in probate proceedings must be tried in conformity with the requirements of the rules of practice in civil actions. The party affirming is plaintiff, and the one denying or avoiding is defendant. When a party is entitled to a trial by jury and a jury is demanded, and the issues are not sufficiently made up by the written pleadings on file, the court, on due notice, must settle and frame the issues to be tried. If no jury is demanded, the court must try the issue joined, and sign and file its decision in writing, as provided in civil actions. Judgment on the issue joined, as well as for costs, may be entered and enforced by execution or otherwise by the court as in civil actions.” (Emphasis added.)

It is clear that that section has reference to trial procedure only, and in nowise can it be interpreted to apply to probate proceedings which have been carried into an appellate court. A reading of that section discloses the fact that the legislature, by its use of the words “the court”, in the last line thereof, was referring to the trial court (probate) in proceedings there had, and not to an appellate court. On the other hand, the provisions of section 1232, Probate Code, hereinabove quoted, are clear and certain, and express a legislative intention to vest in the superior court the right to determine the question of the payment of costs on appeal, in the absence of the exercise of the discretionary authority of an appellate court in that regard.

The provisions of section 1232 (it being the only section contained in the Probate Code pertaining to the allowance of costs on appeal) are governing in the instant situation. The provisions of rule XXIII do not expressly authorize the insertion in a remittitur by the clerk of an allowance for costs to a prevailing party on appeal where, as here, the Supreme Court has failed to exercise its discretion in the matter of costs. The right to recover costs is statutory (Shaw v. Imperial Mut. L. & B. Assn., 4 Cal. App. (2d) 534, 540 [41 Pac. (2d) 574]; Estate of Olmstead, 120 Cal. 447 [52 Pac. 804]; Henry v. Superior Court, 93 Cal. 569 [29 Pac. 230]; Estate of Johnson, 198 Cal. 469, 471 [245 Pac. 1089]), and the Constitution provides (art. VI, sec. la, subd. [5]) that “rules of practice and procedure for the several courts’’ shall not be “inconsistent with laws that are now or that may hereafter be in force; ...” (Italics added.)

The conclusion reached herein is supported by decisions both of this court and of the District Courts of Appeal. In Estate of Johnson, 200 Cal. 307 [252 Pac. 1052], it was said:

“On a contest before probate of the alleged will of the decedent the jury found for the contestant and judgment was entered accordingly, including costs to the contestant. On motion of the proponent the trial court entered an order vacating the judgment for costs. The contestant appealed from said order and the order was affirmed/ (Estate of Johnson, 198 Cal. 469 [245 Pac. 1089].) On the going down of the remittitur the clerk of this court inserted therein the words ‘Respondents to recover costs on appeal’, in accordance with the rule governing ordinary civil actions. In due time the contestant filed a notice of motion in this court to recall the remittitur and to strike therefrom the provision for costs on appeal on the ground that the allowance of costs in a contest before probate must abide the final determination of the proceeding (sec. 1720, Code Civ. Proc.; [now Probate Code, 1232]; Estate of Johnson, supra). The proceeding is finally determined by the affirmance of the judgment on the main appeal this day decided (Estate of Johnson, ante, p. 299 [252 Pac. 1049]), wherein this court has in the exercise of its discretion under said section 1720 directed that costs on the main appeal be paid out of the assets of the estate. On the former appeal the court did not exercise its discretion in awarding costs pursuant to said section 1720, and the provision for costs on said appeal was" improperly incorporated in the remittitur. This motion is the proper remedy on behalf of the contestant to exclude from the remittitur the unauthorized provision. (San Joaquin etc. Irr. Co. v. Stevinson, 165 Cal. 540 [132 Pac. 1021].) As this court has lost jurisdiction of the former appeal, we may not now exercise any discretionary power in awarding costs therein. An appropriate order may, however, be made by the trial court with reference to the costs on the former appeal in the exercise of its discretion under said section 1720. ”

Also in Estate of Erickson, 4 Cal. App. (2d) 602 [41 Pac. (2d) 939], wherein a judgment revoking a will was reversed on appeal without an order having been made relating to costs, it was held that the remittitur should have contained no direction as to costs, the general rule as to costs on appeal in ordinary civil eases being inapplicable to probate proceedings. The court there pointed out that “The subject of costs in probate proceedings is specially provided for ...” in the Probate Code. (See, also, matter of Estate of Burnett, 8 Cal. App. (2d) 363 [47 Pac. (2d) 745]; Estate of Olmstead, 120 Cal. 447 [52 Pac. 804].)

It follows from the foregoing that the motion should be and it is granted; and it is ordered that the remittitur issued herein by the clerk of this court on July 1, 1938, be recalled and that a corrected remittitur be issued in its place nunc pro tunc, omitting the words “Appellants to recover costs on appeal”.


author: CURTIS, J.

text:
    [L. A. No. 16823.
    In Bank.
    December 30, 1938.]
    ROSA DELL FECKENSCHER, Respondent, v. LOUIS S. GAMBLE et al., Appellants.

      Chambers & Lyman, Robert Chambers, Gordon W. Levoy, A. Edward Nichols and Clarence Stephens Brooks for Appellants.
    John Dean Barrick and William B. Etheridge for Respondent.
   CURTIS, J.

This is an appeal from a judgment for damages in an action for fraud. The complaint charged fraud and false representations on the part of the defendant inducing the plaintiff to enter upon and consummate an exchange of three parcels of property owned by her in Detroit, Michigan, and Pasadena, California, for a lot at the corner of Third Street and Hobart Avenue in the city of Los Angeles, on which was erected a building consisting of seven stores on the first floor and three apartments of five rooms each on the second floor. The action was tried by the court sitting without a jury, and resulted in a judgment in favor of the plaintiff in the sum of $17,760 against all of the defendants with the exception of Charles Wagner and Ruth Kleeman. Ruth Kleeman, who held title to the property at Third Street and Hobart Avenue, was not served with summons, and did not appear herein. The court found that Charles Wagner was merely an employee of defendant, S. C. Kleeman, acting under his directions, and was not legally liable for the loss suffered by plaintiff. The property which plaintiff received by the exchange transaction had been acquired by S. C. Kleeman, a dealer in real estate and a licensed real estate broker, a few months prior to the transaction involved in the present litigation, and title had been taken in his daughter’s name, as he stated, because he owed her some money and desired to protect her. S. C. Kleeman held a power of attorney from his daughter, and conducted all of the negotiations involved in the transaction, she taking no part in the transaction herein involved. The property owned by plaintiff which was exchanged by her in the deal, consisted of a residence at 1711 East Maple Street, Pasadena, California, which was found by the trial court to be of the value of $2,400, over and above the encumbrance of a trust deed in the amount of $2,000; a brick store building consisting of six stores at Twelfth and Highland Streets, Detroit, Michigan, which was of the value, as found by the trial court, of $5,800, over and above all taxes, indebtedness and encumbrances thereon; and a land contract, similar to a deed of trust, on property located at 74 Hazelwood Avenue, Detroit, Michigan, in the face amount of $7,000, payable at the rate of $50 per month, which was of the reasonable value, as found by the trial court, of $5,500, over and above all encumbrances, taxes and indebtedness. The total market value of the property owned by plaintiff was, therefore, the sum of $13,700. The property at Third Street and Hobart Avenue, which had been acquired by Kleeman on an exchange transaction was stated by him to be worth $40,000, subject to a trust deed in the sum of $25,500, street bonds in the sum of $1,023, payable $200 per year, and a balance of $330 on the refrigerator equipment. This property which had been built in 1917 and had been remodeled in 1931, contained market fixtures and equipment represented to be worth $7,000.

Defendant Gamble was the president of Parker & Gamble, Ltd., a real estate firm, and personally participated in the carrying through of the exchange transaction. Defendant Pringle was a salesman in the employ of Parker & Gamble, Ltd., and also actively participated in the negotiations during the course of the exchange transaction. The plaintiff, Mrs. Feckenscher, a widow, was a client of the firm of Parker & Gamble, Ltd., Mr. Gamble having acted in real estate transactions for her and her husband during her husband’s lifetime.

The deal originated in the furnishing by Kleeman to a number of real estate brokers, including defendant, Parker & Gamble, Ltd., of a set-up or prospectus of the Third Street and Hobart Avenue property, setting forth the income derived from said property, the expenses, showing a net income of $231 a month above expenses, the trust deed of $25,000, 1 year at 7 per cent, and containing the statement, "all fixtures in the market are the property of the building”. Upon receipt of this set-up from, Kleeman, an almost identical set-up on the stationery of Parker & Gamble was prepared, and Gamble presented to plaintiff a proposition for the exchange of plaintiff’s properties for the Third Street and Hobart Avenue property, ■ representing to her that it was a wonderful deal, that it would bring in at the very lowest possible figure, $125 per month, and that if she could acquire this property in exchange, “she would be on Easy Street”.

Plaintiff, who previous to her marriage had been a musician and singer, was wholly unversed in business matters and had practically no knowledge of the intricacies of real estate deals. She placed herself entirely in Mr. Gamble’s hands, informing him that she knew nothing about business but that she was willing to rely upon his honesty and business judgment in the matter. She followed without question or suspicion the advice and counsel given to her by Mr. Gamble and on his advice and persuasion signed the papers and documents presented by him or Mr, Pringle without reading them. During the course of the transaction, the terms of the deal Avere frequently changed, always to the disadvantage of Mrs. Feckenscher, and upon the continued representation by the real estate firm that, it Avas a wonderful deal and that she would be lucky if she could secure the Third Street and Hobart Avenue property. A written exchange agreement was entered into on March 21, 1935, in AAdiieh the property held by Kleeman was stated to be subject to a trust deed of $25,500 at 7 per cent, due March, 1938. By this agreement, plaintiff agreed to exchange two pieces of property in Pasadena and the land contract in Michigan, omitting the store property in Michigan. This agreement, as well as the subsequent agreements, contained the provision that Parker & Gamble, Ltd., was authorized to act as agents for both parties and to accept a commission from each of them. A commission of $750 to be paid by Kleeman, and a commission of $750 to be paid by plaintiff was separately agreed upon by both parties. On March 23,1935, another exchange agreement was entered into, in which the store property in Michigan was substituted for the two pieces of Pasadena property on the part of the plaintiff, and Avhich contained the same statement on the part of Kleeman that the Third Street and Hobart Avenue property was subject to an encumbrance of a trust deed for $25,500, at 7 per cent, due March, 1938. On March 29, 1935, another exchange agreement was entered into between the parties. In this agreement, plaintiff agreed to exchange for the Third Street and Hobart Avenue property, the properties hereinbefore described, namely, the 1711 East Maple Street property in Pasadena, the brick store property at the corner of Twelfth Avenue and Highland Street in Detroit, Michigan, and the land contract on the property located at 74 Hazelwood Avenue, Detroit, Michigan. This exchange agreement contained the same statement as the former agreements with reference to the trust deed on the Third Street and Hobart Avenue property, that it was in the amount of $25,500, rate of interest 7 per cent, due March, 1938. The transaction was then put in escrow. In the first escrow instructions, dated April 4, 1935, Kleeman agreed to deliver seven leases on the stores in the building at Third Street and Hobart Avenue. Mrs. Feckenscher had no idea of the status of her Detroit property, and she had previously so informed Mr. Gamble who had told her he would investigate. Either before this last exchange agreement or shortly thereafter word was received from Detroit that the financial status of the property of the plaintiff in Detroit was not as good as had been contemplated by the defendants. It appeared that the amount due on the land contract was $6,425, rather than $7,000, that there were taxes due on the store property of some $1200, and that this property which was subject to an encumbrance of $1,000 was in the process of being foreclosed with six or seven more months to go. Upon Kleeman’s insistence, considerable modifications were made in the escrow instructions, the plaintiff signing them without reading them upon the assurance that this was advisable, and after being informed by Mr. Pringle that she would not understand them if she did. By these new instructions, plaintiff agreed to accept the Third Street and Hobart Avenue property, subject to the encumbrance of $25,510, to be payable at $200 per month, interest at 8 per cent, and due February, 1936, provided the monthly payments of $200 were kept up. She also agreed to accept instead of the seven leases on the stores located on the property received by her, three of said leases. She also authorized Kleeman to go back to Detroit and sell her properties there at whatever price he could receive for them. This he did, making a sacrifice sale of the properties, and depositing the money in escrow. The final modifications of the escrow instructions were made on April 22, 1935, and the escrow ‘was closed on July 16, 1935. Previous to the close of the escrow Kleeman withdrew from the escrow the sum of $1,000 to clear up a lien which appeared in the title to the Third Street and Hobart Avenue property. After Mrs. Feckenscher received title to the Third Street and Hobart Avenue property, the income therefrom failed to measure up to the income set forth in the set-up and prospectus, and she was unable to keep up the payment of $200 on the encumbrance. She also discovered that the fixtures in the building were subject to the encumbrance as additional securities and that the rents also had been assigned as additional securities. Having no other independent means to meet this obligation, and being refused a Reconstruction Finance Corporation loan of $26,000 on the ground that the security offered was insufficient and the income not sufficient to meet all the necessary expenses of taxes, interest, amortization, etc., on the loan, plaintiff was unable to prevent the loss of the property, and on November 29, 1935, the holder of said trust deed caused a declaration of default and election to sell under the terms of the trust deed to be recorded. The property was sold pursuant thereto by the trustee on April 7, 1936. After the completion of the transaction in which the plaintiff had lost her entire capital, Mr. Gamble called upon her to urge her to bring suit against Kleeman, claiming that he had accepted the representations of Kleeman as true and that Klee-man was responsible. Kleeman placed the blame upon Gamble claiming that he had failed to properly represent her, and informing her that she should have known better than to go into the deal since neither he nor Gamble wanted the property, and ending with the statement, “We handed you a lemon.” Plaintiff thereafter consulted her attorney and commenced this action, naming as defendants all those who had participated in the transaction, and including Ruth Klee-man as title holder of the property. As before noted, judgment went against all the defendants with the exception of Ruth Kleeman and Charles Wagner.

The main defense of defendants at the time of the trial was that the representations claimed by plaintiff to be false and fraudulent were in the main true, and that if some of the original representations were not true, yet the plaintiff, after the inception of the original deal, thereafter willingly entered into new contracts based upon later representations which were true. They claim that they honestly believed the truth of the representations made to plaintiff, and cannot, therefore, be held liable for fraud and deceit. Defendant Kleeman claimed that he personally made no representations to plaintiff and that Parker & Gamble, Ltd., real estate broker, although designated as his agent in the three separate exchange agreements, nevertheless was an agent simply to accept a commission for the attending to the details of the transaction and was not authorized to make any representations to the plaintiff, and that he cannot be held liable as principal by virtue of any misrepresentations made to plaintiff by said real estate firm which induced her to enter into the exchange transaction which culminated in the loss of her entire capital.

Upon appeal, appellants challenge the sufficiency of the evidence to support the finding of the trial court to the effect that the statements made by defendants to plaintiff were false, and known by the defendants to be false, and insist that the evidence shows that such statements were true. We cannot agree with this contention. Having in mind the general rule that all intendments are in favor of the judgment and that this court must accept as true all evidence tending to establish the correctness of the findings as made, taking into account as well all inferences which might reasonably have been thought by the trial court to lead to the same conclusion, we are satisfied that there is sufficient evidence to uphold the conclusions of the trial court.

Having in mind also the rule that one false representation of a material fact is sufficient either for an action for rescission of contract or to sustain an action for damages for fraud, provided the representations be such that the court can say that without it the contract would not have been entered into, we shall discuss very briefly the misrepresentations alleged, and the evidence upon which the trial court was justified in finding that the representations were falsely and fraudulently made. There is no denial that the representation was made to the plaintiff by Pringle that the Third Street and Hobart Avenue property was worth $40,000. There is in the record the testimony of two unusually well qualified real estate experts, one of whom testified that the total value of said property was '$25,000 and the other that it was $26,000. We feel that the trial court in view of the discrepancy of $14,000 or $15,000, and in view of the extended experience of all of the defendants as real estate dealers and brokers was justified in concluding that the defendants could not honestly have believed that the property was of the reasonable value of $40,000 when the representation that it was worth this amount was made to the plaintiff. The fact that Kleeman placed that arbitrary valuation upon it, after having received it in an exchange agreement, likewise does not prove conclusively that either he or Parker & Gamble, Ltd., believed this to be the true valuation. Had he paid this amount in cash, such evidence would have been entitled to more weight. This conclusion as to the state of mind of the defendant Kleeman relative to the value of the property is fortified by plaintiff's testimony of the statement by Kleeman that, "We handed you a lemon. ’ ’

The same reasoning applies to the representation as to the value of the fixtures which were represented to the plaintiff as being of the reasonable value of $7,000 and Pringle’s statement that he could go out any day and sell them for that price. The trial court found on the evidence of an expert witness that the reasonable value of said fixtures was $3,240. Moreover, these fixtures were subject to the encumbrance upon the real property as a whole in the sum of $25,500, which fact was unknown to the plaintiff and was not brought to her knowledge, with the result that she was unable to salvage anything from the fixtures, but lost them with the real property. The statement in the setup that “all fixtures in the market are the property of the building’’, was no notice to the plaintiff who was a layman with reference to legal rules, that said fixtures were subject to the encumbrance’ on the building. Moreover, the fact that the fixtures were transferred by a bill of sale would tend to negative the idea that they were real property and lead the plaintiff to believe that they were not subject to the encumbrance on the building. Pringle’s statement that he could go out and sell them for $7,000, may have been quite a strong inducement for her to consider the exchange transaction a desirable one.

With reference to the trust deed and the representation that it was not due until March, 1938, although it was then past due and no absolute extension had been secured, defendants rely upon the fact that Kleeman was released from the furnishing of the three-year extension by subsequent modifications of the escrow instructions. Defendants claim that this modification was made necessary by the fact that the plaintiff’s Michigan property turned out not to be as desirable as had been contemplated at the beginning of the deal. Had plaintiff been an astute business woman who realized the effect of granting such a modification, and had defendants been dealing at arm’s length when they secured such a concession, they might have been justified in carrying through the deal on the revised basis. However, in view of the plaintiff’s woeful ignorance of business practices, and in view of the fact that she was without other means to meet the obligation of the $25,500 encumbrance as it became due, it is patent that defendants, in securing the modification from plaintiff who acted blindly, relying on the honesty and integrity of her agents, acted solely for their own interests and in utter disregard of the interests of the plaintiff. It is intimated that the consideration for such modification was the detriment suffered by Kleeman by the discovery that the Michigan property of the plaintiff was not as valuable as at first contemplated. An analysis of the three exchange agreements shows that in the third exchange agreement the addition of the East Maple Street property in Pasadena, if not made to take care of the depreciated value of the Michigan properties of the plaintiff, was gratuitously made for the benefit of Kleeman. The value of this East Maple Street property would have been sufficient to have enabled Kleeman to have made a down payment of $2,000 on the encumbrance of $25,500, and to have secured the three-year extension called for originally. The representations with reference to the Michigan property were not made by plaintiff personally and she was not responsible for the misunderstanding as to their value. It is apparent that the defendants simply arranged the deal to their" own satisfaction and upon their own terms, using the fact that the value of the Michigan property turned out to be less than originally contemplated as an excuse for so doing.

It may possibly be true that the representation that the property at Third Street and Hobart Avenue was bringing in a net income of $231 per month at the banning of the deal was not false, but even before the close or the transaction, the income failed to attain that amount. In any event, defendants knew at the inception of the deal and at the times these representations were made, that a large, modern market with adequate parking facilities was very soon to be erected at the corner of Third Street and Oxford Avenue, which location was but a short distance from the property which plaintiff received in exchange for her property, and that the erection of such modern market would be detrimental both to the value and to the rental income to be derived from said property. As the property received by plaintiff in exchange was not modern, but was obsolete without any parking facilities except at the curb of the street, the failure of the defendants to bring this knowledge home to plaintiff and their representation to her that the property would continue to bring in an income of at least $125 a month, showed a complete disregard of their duty to properly represent her.

Some point is made by defendants that the plaintiff did not in fact rely upon the representations made to her by Gamble and Pringle, but that she had the independent advice of her lawyer and banker. It is undisputed that the lawyer whom she consulted refused to give her any advice as to the desirability of the deal and even refused to advise her as to the form of the contract of exchange furnished by Parker & Gamble, Ltd., upon the ground that the deal was being put through in too big a hurry and that he could not advise her even as to the form of the contract unless he had time to go over the contract. Her banker likewise refused to give her any advice and suggested to her that since she relied upon Mr. Gamble she should follow his advice. Neither can it be said, we think, that because she visited the market after the signing of the third exchange agreement but before the final completion of the escrow she was not entitled to hold defendants liable for any of their misrepresentations. When she called the attention of Mr. Gamble to the fact that the building did not appear to her to be new, she having been told that it was only three years old, she was reassured by Mr. Gamble as to the condition of the building. We find nothing in the record in this regard which relieved the defendants from their duty of exercising the highest good faith in their dealings with the plaintiff.

We also fail to find any real justification for the claim of defendants that plaintiff herself admitted that she had been advised by Gamble to withdraw from the deal and accept the money in escrow which had been obtained by the sacrifice sale of her property. There is one ambiguous sentence in her testimony which if taken from its context is susceptible of such inference. But taken in conjunction with her entire testimony on this phase of the situation, we think the trial court was well justified in resolving the ambiguity against such interpretation.

We are of the opinion in determining the question of whether misrepresentations were in fact made to plaintiff that considerable weight should be given to plaintiff’s admitted ignorance of business matters, and her total inexperience in business deals, a fact well known to the real estate agents. It is apparent on the face of the record that throughout the entire transaction she acted simply as an automaton under the direction of the defendant Gamble, signing at his behest without reading them, the separate exchange agreement and the continuous modifications of the escrow instructions. The misrepresentations of the defendant real estate agents consisted not only of the statements with reference to the individual factors making up the deal, such as the value of the property, the value of the fixtures, the due date of the trust deed, but also in the glowing description as to the advantage of the deal and what it would do financially for the plaintiff. Throughout the transaction it was reiterated to her that it was a wonderful deal, that she would be lucky if it went through, that if it did her worries would be over, and she “would be on Easy Street”. In view of the fact that the plaintiff frankly confessed her business ignorance to the real estate firm, and let them know that she was relying on their sound advice and business acumen to protect her from her own ignorance, such statements were in fact actual misrepresentations. The fact that a shrewd business man would not have relied upon such statements, did not justify them in making them to a trusting client, nor relieve them from liability for so doing. As has been said, “That plaintiff is too credulous is not generally a defense. ‘ The test of the representation is its actual effect on the particular mind, whether it is a strong and circumspect mind, or one weak and too relying.’ ” (Neff v. Engler, 205 Cal. 484, 489 [271 Pac. 744].)

It should also be borne in mind that while the deal was made up of a series of contracts, consisting of three exchange agreements and numerous escrow instructions, plaintiff did not waive the fraud of the original representations by entering into the later contracts by reason of the fact that during the entire course of the transaction she remained unaware of the fraud which was being perpetrated upon her. Had she become aware of the false and fraudulent representations during the course of the negotiations, and thereafter with this knowledge have entered into a subsequent contract, she could not thereafter complain of the original fraud, but in the instant case, plaintiff relied so blindly and confidently upon the good faith of the real estate firm which was acting as her agent, that it was not until the completion of the transaction when she was informed by Mr. Gamble that there was no money coming to her as income from the Third Street and Hobart Avenue property, that she woke up to the true state of affairs and found in the language of the trial judge, that “she had been taken to the cleaners''.

It is apparent from the foregoing discussion that the findings with reference to the real estate firm of Parker & Gamble, Ltd., and the individual defendants, Gamble and Pringle, were sufficiently supported by the evidence.

The evidence with reference to Kleeman requires separate consideration by reason of the fact that he did not meet or talk with plaintiff until after the completion of the deal. He earnestly contends that he himself was a licensed real estate broker, having no need of the services of any other real estate broker; and that Parker & Gamble, Ltd., was not his agent. However, we think there was sufficient evidence for the trial court to arrive at the conclusion embodied in the findings to the effect that, “at all the times mentioned herein the defendant, Parker & Gamble, Ltd., as a real estate broker, and Louis S. Gamble and William Pringle, as the agents, servants and employees of said corporation defendant, Parker & Gamble, Ltd., and also in their individual capacity were the duly authorized and acting agents and representatives of the defendant, S. C. Kleeman, and at all of the times and under all of the circumstances mentioned herein were acting and did act within the scope of and in pursuance of their said employment and authority with respect to the defendant, S. C. Kleeman”. In the first place there is the written exchange agreements wherein Parker & Gamble, Ltd., is designated as the agents of both parties. There is the fact that Kleeman listed the property with Parker & Gamble, Ltd., prior to the time Gamble solicited plaintiff to make the exchange. There is the fact that a commission of $715 was actually paid by Kleeman to said firm. There is also the statement of Kleeman to the plaintiff that, “We handed you a lemon.” This being so, the representations of the firm of Parker & Gamble, Ltd., and Gamble and Pringle were the representations of Kleeman and he having secured the fruits of the fraud, is liable for the damages suffered by plaintiff by reason of said false and fraudulent representations.

The defendants make the further contention that by reason of the fact that the trial judge upon the motion for a nonsuit made by them at the trial, analyzed the evidence setting forth in some detail his reactions thereto, after which he denied the motion for a nonsuit as to all of the defendants, they were misled to their detriment and failed to introduce in evidence pertinent testimony which would have disproved the contentions of plaintiff. We are unable to conceive how attorneys for the defendants could have confidently relied upon such analysis of the evidence in view of the trial judge’s denial of their motion for a nonsuit. This denial should have been sufficient to put them on notice that evidence offered by plaintiff required rebuttal, and no prejudicial error can be predicated upon their unjustified reliance as to the state of mind of the trial judge.

The attorneys for defendant Kleeman specifically claim that much of the evidence introduced by plaintiff, and particularly that of the expert witnesses relative to the value of the various properties, was objected to and the objection sustained, and therefore, there is not in the record as to defendant Kleeman sufficient evidence to support the judgment. The objection to the introduction of evidence was sustained with the express provision that if the relation of agency on the part of the defendant, Parker & Gamble, Ltd., for the defendant Kleeman should be established, the evidence which had been excluded as to defendant Kleeman could be reoffered without the recalling of the witnesses. Subsequently the attorney for the plaintiff made the motion to introduce all the excluded evidence, as well as all the papers and documents previously offered. The court refused to grant the blanket motion as to the papers and documents, and did not specifically grant the motion as to the excluded testimony. It is, however, obvious, that the objection as to the absence from the record of the excluded evidence is a purely technical one, and that had the attention of the trial judge been called to the discrepancy, he would have remedied the situation. Under these circumstances we do not feel justified in reversing the judgment as to defendant Kleeman upon such a pretext.

Objection is further made by the defendants as to the measure of damages applied by the trial judge in arriving at the judgment. The judgment of $17,760 represents the difference between the actual value of the Third Street and Hobart Avenue property and the fixtures as found by the trial court, and the valuation of $40,000 for the real estate and the $7,000 value of the fixtures as represented. After the completion of the transaction and before the trial of the case, the measure of damages was changed by the legislature by an amendment and the new measure was in effect at the date of the trial. The ease of Tulley v. Tranor, 53 Cal. 274, holds unequivocally that no one has a vested right in a measure of damages. The court there said: “We can conceive of no principle of constitutional law which is violated by a change in this rule, unless, at least, the new rule on its face deprives the party of every reasonable method of securing just compensation. No case has been referred to in which it has been held that to change an arbitrary and statutory rule of damages in eases of tort was a deprivation of any vested right of one who had previously suffered the wrong, and we can see no reason why it should be so held, even if it should be made to appear in a particular case that the plaintiff would not recover as much as he would have done had the former rule been continued.” While this is an early case, decided in 1878, the U. S. District Court, Southern Division, Northern District, in the case of United States v. Standard Oil Company of California, 21 Fed. Supp: 645, has recently quoted said rule with approval.

The second paragraph of section 3343 of the Civil Code, which is the measure of damages in the instant case, cannot in our opinion, be legitimately interpreted as requiring the application of the measure of damages in existence at the time of the accrual of the cause of action.

The measure of damages set forth in section 3343 of the Civil Code is as follows: ‘ ‘ One defrauded in the purchase, sale or exchange of property is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received, together with any additional damage arising from the particular transaction.” The reasonable value of plaintiff’s property which was transferred by her in exchange for the Third Street and Hobart Avenue property was $13,700. Although there was some equity in the property which plaintiff acquired in the trade at the time she actually acquired it, yet by reason of one of the misrepresentations made to her to the effect that the trust deed was not immediately due, she lost the entire property by a sale under the trust deed, so that it can reasonably be said that she actually received nothing of value from the transaction. The damages suffered by the plaintiff, therefore, in our opinion, can readily be computed at the sum of $13,700 and we hereby find that plaintiff suffered damage in that amount.

The judgment is therefore modified by striking therefrom the following portion thereof: “Rosa Dell Feekenscher do have and recover from' the defendants, Louis S. Gamble, William Pringle, Parker & Gamble, Ltd., a corporation, and S. C. Kleeman, and each of them the sum of Seventeen Thousand, Seven Hundred and Sixty Dollars ($17,760.00) ” and inserting in lieu thereof the following: “Rosa Dell Feekenscher do have and recover from the defendants, Louis S. Gamble, William Pringle, Parker & Gamble, Ltd., a corporation, and S. C. Kleeman, and each of them the sum of Thirteen Thousand, Seven Hundred Dollars ($13,700.00),” and as so modified said judgment is affirmed. Appellants and respondent each to bear their own costs on appeal.

Shenk, J., Sea well, J., and Langdon, J., concurred.

Rehearing denied.