author: SHENK, Acting C. J. EDMONDS, J., Dissenting.

text:
    [Crim. No. 4241.
    In Bank.
    November 30, 1939.]
    THE PEOPLE, Respondent, v. ALEXANDER A. POCIASK, Appellant.

      Thornwell Rogers and S. Ward Sullivan for Appellant.
    Earl Warren, Attorney-General, Burdette J. Daniels, Deputy Attorney-General, Buron Fitts, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent.
   SHENK, Acting C. J.

The defendant was convicted of negligent homicide, a felony, as provided in section 500 of the Vehicle Code. He has appealed from the judgment and from the order denying his motion for a new trial.

Between 8 and 9 o'clock on the evening of September 8, 1938, the defendant, in the company of three other persons, was driving a Ford automobile along Colorado Place toward its intersection with Colorado Boulevard in Los Angeles County. It was a clear, moonlight night. The lights on the defendant’s automobile were burning brightly. There was no traffic coming toward the defendant. Suddenly an object appeared in front of him at a distance of about 80 to 100 feet. He attempted to swerve the car to the right. He felt an impact and heard a scream. The ear crossed a wooden curb, hit a post, and came back to the highway. Skidmarks showed that it was stopped 115 feet from.the point of impact. The car struck Gladys Schmidt and John Robert Allen, both of whom died as a result of injuries thus sustained. The decedents were on bicycles, traveling along the right-hand side of the highway, in a party with three others who were ahead of them. The bicycles carried no reflectors. A reflector was fastened on a clip attached to a strap around Allen’s leg. The defendant’s speed at the time was estimated at thirty or thirty-five miles an hour. Earlier in the day the defendant drank a can of ale. He purchased about a dozen cans of ale and a bottle of sloe gin which were taken by his party to a barbecue, but there is evidence that the defendant did not drink at the barbecue. However, the odor of liquor was noticeable on his breath at the police station after the accident, although he did not appear to be intoxicated. The defendant was driving without an operator’s license. He had recently theretofore been refused a license because of his failure to pass the eye test. There was some evidence that the brakes on the defendant’s car were not in good condition.

Section 500 of the Vehicle Code, added in 1935 (Stats. 1935, p. 2141), provides as follows: “When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any vehicle in a negligent manner or in the commission of an unlawful act not amounting to felony, the person so operating such vehicle shall be guilty of negligent homicide, a felony, and upon conviction thereof shall be punished by imprisonment in the county jail for not more than one year or in the state prison for not more than three years.”

The district attorney waived any charges of violation of other provisions of the Vehicle Code and submitted the People’s case on the theory that the defendant was guilty of negligent homicide pursuant to said section 500, committed in the doing of a lawful act, that is, while driving an automobile, in a negligent manner. Pursuant to such waiver the court instructed the jury generally that a verdict of guilty on a charge of negligent homicide, that is, while driving an automobile in a negligent manner, may be returned if the jury should find that the defendant was guilty of negligence resulting from a failure to exercise ordinary care under all of the facts and circumstances. The court also instructed the jury that although the district attorney waived any prosecution except on the theory of driving in a negligent manner, nevertheless, all acts of the defendant which might otherwise have constituted unlawful acts might be taken into consideration for the purpose of determining whether the conduct of the defendant was negligent. In other words the court properly guarded against a misapprehension on the part of the jury that any such unlawful acts on the part of the defendant were to be entirely excluded from its consideration.

The defendant .assigns prejudicial error in the refusal of the court to give requested instructions to the effect that the negligence which must be found before guilt attaches under said section 500 of the Vehicle Code is such negligence as would amount to a flagrant and reckless disregard of the safety of others and a wilful indifference to possible injuries, or consist of the doing of a lawful act in a culpably reckless manner.

The basis of the defendant’s request is asserted to be in the provision of section 20 of the Penal Code, as follows: “In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence.” The defendant relies on People v. Hurley, 13 Cal. App. (2d) 208 [56 Pac. (2d) 978]; People v. Driggs, 111 Cal. App. 42 [295 Pac. 51], and on decisions from other jurisdictions which define “criminal negligence” in accord with his contentions.

The Driggs case, decided in 1931, involved a charge of assault with intent to commit murder. The facts showed that the defendant, a special police office guarding a freight train, attempted to frighten away a group of men by firing over their heads. In doing so, a bullet struck and injured another man, a distance of 1200 feet away, whose presence was not noticed by the defendant. In instructing the jury on the question of what constituted criminal negligence the court read section 7 of the Penal Code, which provides in subdivision 2: “The words ‘neglect’, ‘negligence’, ‘negligent’ and ‘negligently’ import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns. ’ ’ The District Court of Appeal held that, although found in the Penal Code, the definition was only of an act which fixed civil liability; that “in order to constitute criminal negligence, there must enter into the act some measure of wantonness or flagrant or reckless disregard of the safety of others, or wilful indifference. If no one of these elements enter into the act, the person charged cannot be held guilty of criminal negligence.” The court cited as its authority the cases noted in volume 2, page 1750, Words and Phrases, first series, and 1 Words and Phrases, second series, page 1153. In the Hurley case, decided in 1936, the defendant while driving a Cord sedan at night collided with and killed a pedestrian who was walking in the same direction on the right-hand side- of the road. A question before the District Court of Appeal was whether the evidence supported a conviction on the charge of involuntary manslaughter. The court considered the provisions of section 192 of the Penal Code defining involuntary manslaughter as the unlawful killing of a human being without malice “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection". The court held that lack of due caution and circumspection must be construed as the equivalent of criminal negligence. Although it cited prior decisions of this court on the subject of what is a lack of due caution and circumspection in cases of involuntary manslaughter, it followed the definition of criminal negligence announced in the case of People v. Driggs, supra, and concluded as a matter of law that the defendant was guilty only of a want of ordinary care which, relying on the Driggs case, it held was insufficient to constitute criminal negligence.

The defendant herein urges that the words “driving in a negligent manner", as those words are used in the pertinent section of the Vehicle Code, read in conjunction with section 20 of the Penal Code, mean criminal negligence as defined in the Driggs and Hurley cases, supra. Such, however, is not the law of this state. True, in every crime there must exist the union of act and intent or criminal negligence. But, in answering the question of what constitutes criminal negligence, the court is bound to apply an appropriate definition enacted by the legislature. Only when the legislature has not properly defined a term is it necessary for the courts to look to the meaning thereof as understood in the common law. (8 R. C. L., p. 60.) Section 500 of the Vehicle Code makes criminal, that is, punishable (vol. 2, Words and Phrases, p. 1741), the negligent driving of a motor vehicle which causes injuries to another proximately resulting in death within the time specified in the section. This court has consistently refused to add to the words of pertinent statutes any formulae clearly not included within the plain language thereof. At least as early as People v. Pearne, 118 Cal. 154 [50 Pac. 376], a case of involuntary manslaughter resulting from negligently driving a team of horses, the court held that on the facts the charge to the jury “should rest upon the commission of an act done without due caution and circumspection”, employing the language of section 192 of the Penal Code. In denying a hearing in this court after decision by the District Court of Appeal in People v. Seiler, 57 Cal. App. 195 [207 Pac. 396] (conviction of manslaughter growing out of the negligent driving of an automobile), this court expressly disapproved the use of the words “wanton” and “reckless”, and indicated the inaptitude of the word “culpable”, in describing the idea to be conveyed by the phrase, “without due caution and circumspection” used in the statute.

In the case of People v. Wilson, 193 Cal. 512 [226 Pac. 5], the charge of manslaughter also arose out of the negligent driving of an automobile. This court discussed the question of what want of due caution and circumspection is required to constitute criminal negligence. After noting the remarks of this court on denying the petition for hearing in the Seiler case, supra, it was said: 11 The proper rule dedueible from the cases cited in the note above referred to (note following report of Johnson v. State, 66 Ohio St. 59 [63 N. E. 607, 90 Am. St. Rep. 564], in 61 L. R. A. 277), would seem to be this: That when a person is doing anything dangerous in itself, or has charge of anything dangerous in its use, and acts with reference thereto without taking those proper precautions which a person of ordinary prudence would have used under the circumstances and the death of another residís therefrom his act or neglect is a criminal act against the person so killed even though his negligence does not amount to a wanton or reckless disregard of human safety or life. (Johnson v. State, supra, and notes; Reg. v. Doherty, 16 Cox’s Crim. Law Cases, 306; Morris v. State, 36 Tex. Cr. R. 313 [33 S. W. 539].)” The foregoing pronouncement has been applied in the following cases: People v. Anderson, 58 Cal. App. 267 [208 Pac. 324] ; People v. Thomas, 58 Cal. App. 308 [208 Pac. 343] ; People v. Crossan, 87 Cal. App. 5 [261 Pac. 531] ; People v. Marconi, 118 Cal. App. 683 [5 Pac. (2d) 974]; People v. Frantz, 138 Cal. App. 499 [32 Pac. (2d) 670], Anything in the Driggs and Hurley eases inconsistent therewith must be deemed to be disapproved.

Decisions in other jurisdictions relied upon by the defendant, such as People v. Angelo, 246 N. Y. 451 [159 N. E. 394] ; Cain v. State, 55 Ga. App. 376 [190 S. E. 371]; State v. Patterson, (Ida.) 88 Pac. (2d) 493; French v. State, 235 Ala. 570 [180 So. 592], either involve dissimilar statutory provisions or apply the rule relied upon by the defendant as the common-law rule applicable in the absence of statutory definition. For instance, in the case of State v. Patterson, supra, the defendant was charged with assault with a deadly weapon. A statute in Idaho contains the same requirement as our Penal Code, section 20. The question involved was: What constituted criminal negligence in such a case? (See, also, People v. Vasquez, 85 Cal. App. 575 [259 Pac. 1005].) It may also be noted that a statute of Idaho defines involuntary manslaughter in substantially the same language as section 192 of our Penal Code, and which, in cases of manslaughter occurring while driving an automobile in a lawful manner but “without due caution and circumspection”, has received an application similar to the approved cases in this state hereinabove cited. (State v. Brooks, 49 Ida. 404 [288 Pac. 894].) In that case the court said: 1 ‘ The Legislature has the power to declare what the law shall be on the subject, and, its definition of the offense of involuntary manslaughter having been stated to the jury, in effect, the law upon that point was sufficiently covered, and it was not error for the court to refuse to amplify thereon, ’ ’ citing, among other cases, People v. Fowler, 178 Cal. 657 [174 Pac. 892], and People v. Seiler, supra.

Exhaustive research has been made into the question of what constitutes criminal negligence under the common law and as applied under statutes in other jurisdictions. (See People v. Angelo, supra; note to Johnson v. State, supra; appendix to article, “Negligent Homicide”, 25 Calif. Law Rev. 1, 37.) There is no controlling authority which would permit this court to apply any other rule or definition than that declared by the legislature and, with but slight and uncontrolling exception, recognized and followed in this state.

Since the enactment of section 500 of the Vehicle Code, convictions on charges of negligent homicide have been upheld where the evidence disclosed the injuries resulting in death were caused by a failure to exercise ordinary care. (People v. Pryor, 17 Cal. App. (2d) 147 [61 Pac. (2d) 773] ; People v. Warner, 27 Cal. App. (2d) 190 [80 Pac. (2d) 737].) In the last-cited case the court expressly rejected the contention that the evidence must disclose facts indicating something more than ordinary negligence. It stated that “it was only necessary to prove, other than the jurisdictional facts as to time and place, that the appellant was driving a motor vehicle in a negligent manner and that such driving resulted in the death of the person therein named". The result in such eases appears to be harmonious also with section 195 of the Penal Code, which provides that homicide is excusable when it is committed by accident and misfortune in the doing of a lawful act by lawful means, with usual and ordinary caution and without any unlawful intent. A petition for hearing in this court filed in each of the two last-cited eases was denied. A petition for hearing was granted in the present case for the purpose of resolving the inconsistency deemed to have been created by the decisions in the Driggs and Hurley cases, supra.

It is within the function of the legislature to make laws defining what breaches of the public peace shall be made punishable. Accordingly it may specify various degrees of the same crime and require a different measure of punishment for each. It is apparent that by the enactment of section 500 of the Vehicle Code the legislature has specified a lesser degree of punishment when the homicide is committed in the doing of an unlawful act not amounting to a felony while operating any vehicle, or while driving in a negligent manner, than is meted out in the cases of homicides otherwise committed in the doing of an unlawful act not amounting to felony or without due caution and circumspection. (Sec. 192, Pen. Code.) When the legislature has so spoken and the court has stated the law to the jury in the language of the applicable statutes, it is not required to do more. (People v. Fowler, supra; People v. Anderson, supra.) Therefore, what may amount to a lack of “due caution and circumspection" in eases of involuntary manslaughter committed in the doing of a lawful act, or what may constitute the driving of a vehicle “in a negligent manner", are questions to be decided by the jury according to the particular facts in each case guided by appropriate instructions from the court. The practical difficulties of obtaining a conviction in automobile homicide cases arising under seetion 192 of the Penal Code may have been the incentive for the enactment of section 500 of the Vehicle Code. That is, in order to foster greater care in the operation of such dangerous instrumentalities, the legislature may have afforded a means by which appropriate punishment may be imposed upon all who have caused death through a breach of duty of due care in such operation.

We conclude that the court did not err in refusing the requested instruction which contained a definition of criminal negligence not in accord with the foregoing views as to the requirements of instructions in cases of negligent homicide as defined by section 500 of the Vehicle Code.

The contention is also made that the failure of the decedents to equip their bicycles with rear reflectors was a proximate cause of the injuries resulting in death. The court correctly instructed the jury in substance that negligence of the decedents was no defense; that such negligence would exonerate the defendant only if it was the sole proximate cause of the accident, but that the defendant was not exonerated if the jury found that he was guilty of negligence which proximately contributed to the injuries. (People v. Marconi, supra; People v. McKee, 80 Cal. App. 200 [251 Pac. 675] ; note, 67 A. L. R. 922, 29 Cor. Jur. 1155, and cases cited; 13 R. C. L., pp. 749, 750.)

The judgment and the order are, and each is, affirmed.

Curtis, J., Knight, J., pro tern., Spence, J., pro tem., Pullen, J., pro tem., and Houser, J., concurred.

EDMONDS, J., Dissenting.

I cannot join in the conclusion of my associates that negligence of the persons struck by the appellant’s automobile would exonerate him only if it was the sole proximate cause of the accident.

It appears that after the jurors had considered the case for some time, they returned to the courtroom and the foreman stated they had been unable to agree because “one member feels that negligence has something to do with it”. To this the trial judge replied, “It has absolutely nothing to do with it and I made that plain to you in my instructions. . . There is only one basis upon which you can consider the negligence of the decedents, and that is if it is the sole and only cause of the accident.”

Of course, the negligence of one killed in a traffic accident is not a defense to prosecution for negligent homicide as defined in section 500 of the Vehicle Code. However, under that section, the operator of a vehicle is only criminally responsible ‘ ‘ when the death of any person ensues ... as the proximate result of injuries caused by the driving of [such] vehicle in a negligent manner. ...” And testimony of the decedent's negligence, though not the sole cause of an accident, has a legitimate place in the evidence upon which the trier of fact is to determine whether a defendant was driving “in a negligent manner”. As the District Court of Appeal declared in a recent case, although the contributory negligence of a deceased is no defense in a prosecution for manslaughter, it may have an important bearing on the degree of culpability of one charged with that offense. (People v. Hurley, 13 Cal. App. (2d) 208 [56 Pac. (2d) 978].) In other words, it may be determinative of the question whether, under all the circumstances and conditions existing at the time of the accident, the defendant operated his car with due care and circumspection.

The authorities are reviewed in 5 Am. Jur., p. 930, where it is said: “The familiar rule that contributory negligence of the person injured or killed by the negligence of the defendant in the operation of an automobile bars a recovery in a civil action, has no application to a prosecution for homicide due to criminal negligence in operating an automobile. In such case, the decedent’s behavior may have a material bearing upon the question of the defendant’s guilt, but if the culpable negligence of the latter is found to be the cause of the death, he is criminally responsible whether the decedent's failure to use due care contributed to the injury or not. In some cases, the conduct of the decedent is material to the extent that it bears upon the question whether, under all the circumstances of the case, the defendant was negligent.” (Citing cases.)

Another writer discusses the subject as follows: “The general rule of the criminal law that contributory negligence, unless considered as an element of proximate cause, is no excuse for or defense to crime, applies, in prosecutions for homicide caused by the negligent operation of motor vehicles. . . . Except as it may be noted hereafter, it is generally held that the contributory negligence of the decedent is no defense, excuse, or justification for the homicide. . . . The conduct of the deceased, however, is material in a prosecution of this nature to the extent that it bears upon the negligence or wrongful conduct of the accused, or on the issue whether the conduct of the accused was the proximate cause of the death of the deceased.” (Huddy’s Cyclopedia of Automobile Law, vol. 9, p. 83, sec. 43.)

In reversing the conviction of an automobile driver who was charged with manslaughter, the Supreme Court of Tennessee declared that the contributory negligence of the boy who was killed would not relieve the defendant of the consequence of his unlawful act. (Copeland v. State, 154 Tenn. 7 [285 S. W. 565, 49 A. L. R. 605].) “But the conduct of the boy was entitled to consideration in determining whether, under the circumstances, Copeland’s negligence was the proximate cause of death, or whether death resulted from an unavoidable accident. . . . Allowance must always be made for misadventure and accident, as distinguished from culpable negligence.” The same conclusion was reached in State v. Custer, 129 Kan. 381 [282 Pac. 1071, 67 A. L. R. 909]. In that case the trial court instructed the jury that contributory negligence was not available as a defense in a criminal prosecution for homicide in the operation of an automobile but that evidence of contributory negligence of the victim was admitted “for whatever it may be worth to you as material evidence bearing upon the question of the defendant’s guilt”. Upon appeal, the court said that the act of the deceased in getting under -the rear of an automobile standing at night on the traveled part of the highway without a red light, was a circumstance to be considered by the jury in determining whether death was or was not caused by unlawful driving, although his conduct did not of itself relieve the defendant of liability. Later the same court said: “Contributory negligence on the part of the deceased is not a defense to a charge of manslaughter. It is only a circumstance determining whether it was or was not caused by the unlawful conduct of the defendant.” (State v. Pendleton, 144 Kan. 410 [61 Pac. (2d) 107].)

So, also, in Held v. Commonwealth, 183 Ky. 209 [208 S. W. 772], the court decided that although the decedent’s negligence was not available to the defendant by way of defense, it was relevant and competent on the question of whether the defendant was negligent in the operation of the vehicle, and thereby unintentionally committed the homicide.

From the discussion between the foreman of the jury and the judge, it appears that except for the instruction concerning contributory negligence on the part of the persons killed in the accident, the appellant would not have been convicted. Under these circumstances, in my opinion, there has been a miscarriage of justice entitling the appellant to a new trial. (Const., see. 4%, art. VI.)


source: Caselaw Access Project

author: SHENK, Acting C. J.

license: Public Domain

text:
    [Crim. No. 4261.
    In Bank.
    November 30, 1939.]
    THE PEOPLE, Respondent, v. ARTHUR J. BECKHARD, Appellant.

      S. Ward Sullivan and Jerry Giesler for Appellant.
    Earl Warren, Attorney-General, Eugene M. Elson, Deputy Attorney-General, Buron Fitts, District Attorney, and Jere J. Sullivan, Deputy District Attorney, for Respondent.
   SHENK, Acting C. J.

In this case, as in the case of People v. Pociask, Crim. No. 4241, this day decided (ante, p. 679 [96 Pac. (2d) 788]), the question for determination was the propriety of the instructions given by the court defining the word “negligent” as used in section 500 of the Vehicle Code making the crime of negligent homicide a felony. A hearing was granted in this ease after decision by the District Court of Appeal, Second District, Division Two, for the reason that the question involved herein was also presented in People v. Pociask, supra, a case then pending and undetermined in this court. Our decision in the Pociask case follows the reasoning and conclusions of the District Court of Appeal in the present case and is determinative of the contentions of the parties herein. The following portion of the opinion of the District Court of Appeal in this case, prepared by Mr. Acting Presiding Justice Wood, is adopted as our opinion herein:

“Defendant was charged in count I of the information with the crime of negligent homicide, in violation of section 500 of the Vehicle Code, in that he caused the death of Frank Coleman Joyce, while negligently driving an automobile. In count II the same charge was made except that defendant was accused of causing the death of Patricia Marian Kelly. Verdicts of guilty were returned on both counts and defendant appeals from the order denying his motion for a new trial.
“It was established at the trial that on August 27, 1938, defendant was driving an automobile on Sunset Boulevard in Los Angeles and struck the two decedents when they were walking across the boulevard in the pedestrian’s marked crosswalk. Two or three cars were ahead of the car driven by defendant and the two pedestrians stopped to let them pass and as they proceeded defendant’s ear struck them. Since no claim is made that the evidence is insufficient to support the verdict finding defendant guilty of the offense set forth in section 500 of the Vehicle Code it will be unnecessary to set forth the circumstances in detail.
“Defendant contends that the court erred in giving to the jury the following instruction: ‘Negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, actuated by those considerations which ordinarily regulate the conduct of human affairs. It is the failure to use ordinary care in the management of one’s property or person. ’ At the request of defendant the court gave to the jury a number of instructions defining criminal negligence, among them the following: ‘Criminal negligence in degree goes so far beyond that negligence merely which suffices to impose a civil liability for damages as to constitute it criminal negligence for which the party guilty of it may be held criminally liable. In other words, in order to constitute criminal negligence there must enter into the act some measure of wantonness or flagrant -or reckless disregard of the safety of others, or wilful indifference, and if no one of these elements enters into the act the person charged cannot be held guilty of criminal negligence. ’ It is argued that these instructions are conflicting, that the instruction given at the request of defendant states the rule applicable correctly and that a reversal should be ordered since it cannot be determined which instruction the jury followed.
“The section of the Vehicle Code under which defendant was convicted provides: ‘When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any vehicle in a negligent manner or in the commission of an unlawful act not amounting to felony, the person so operating such vehicle shall be guilty of negligent homicide, . . . ’ By the enactment of this section the legislature defined a crime different from any of the crimes which had been defined in any of the various provisions of the Penal Code. . . .
“ Defendant is not in position to complain of the fact that the instructions actually given may have been conflicting, for the condition was brought about by his own request. Moreover, he did not suffer prejudice by reason of the giving of any of the instructions, some of which were more favorable to him than he could legally demand. (People v. Suesser, 142 Cal. 354 [75 Pac. 1093].) ”

The order is affirmed.

Curtis, J., Knight, J., pro tern., Spence, J., pro iem., Pullen, J., pro tem., Edmonds, J., and Houser, J., concurred.


author: KNIGHT, J., pro tem.

text:
    [Crim. No. 4243.
    In Bank.
    November 30, 1939.]
    THE PEOPLE, Respondent, v. LEO WALLER, Appellant.

      Beecher S. Stowe and Delphine Meyer for Appellant.
    Earl Warren, Attorney-General, and Eugene M. Elson, Deputy Attorney-General, for Respondent.
   KNIGHT, J., pro tem.

The district attorney of Los Angeles County filed an information charging the defendant Leo Waller in separate counts with the murder of Presley B. Stewart, and with having committed an assault with intent to commit murder upon the person of Dan Preston. It was also charged therein that said defendant had been previously convicted of burglary, for which he had served a term of imprisonment in the State of Illinois. He entered a plea of not guilty to the charge made in each count and admitted the prior conviction. The trial took place before a jury, and verdicts of guilty were returned against him on both counts. As to the first, the jury found by its verdict that the crime committed was murder of the first degree, and made no recommendation as to punishment. Therefore the verdict called for the imposition of the death penalty. A motion for new trial was made and denied, and following the pronouncement of sentence in accordance with the verdicts of the jury, the cause was brought before this court on an automatic appeal from the judgment of conviction on the first count and from the order denying the motion for new trial thereon.

It appears from the record without any dispute that Stewart was fatally shot and that Preston was beaten and shot shortly after 1 o’clock on Sunday morning, March 20, 1938, and that the shooting took place in “The Bee Hive Cafe” on East Whittier Boulevard in Los Angeles; and it was claimed by the prosecution that both crimes were committed during the perpetration or attempt to perpetrate a robbery therein by several persons, including the defendant. Those accused besides defendant were John Robles, Harry Groves, George Braun, and Mrs. Ann Groves, the wife of Harry Groves. A few days after the shooting Braun and Mrs. Groves surrendered to the police in San Diego, and shortly afterwards Robles and Groves were captured in Kansas City, Missouri. They were all returned to Los Angeles, charged jointly with the commission of said crimes, and placed on trial before a jury. After the trial started Robles withdrew his plea of not guilty to the charge of murder, pleaded guilty thereto, and was subsequently sentenced to life imprisonment. Mrs. Groves was acquitted, and the remaining two were found guilty, the jury having declared by its verdict that it was murder of the first degree, and life imprisonment was recommended. Braun alone appealed, and on March 21, 1939, the judgments of conviction as to him were reversed. (People v. Braun, 31 Cal. App. (2d) 593 [88 Pac. (2d) 728].) Pending Braun’s appeal the defendant Leo Waller was arrested in Danville, Illinois, and returned to Los Angeles; and on May 15, 1939, he was placed on trial with the result above stated.

In furtherance of his appeal his counsel has filed briefs wherein the several grounds urged for reversal are fully and ably presented and discussed. They all relate to the question of the sufficiency of the evidence, the substance of the major contentions made in this behalf being, first, that the evidence is legally insufficient to support the implied finding of the jury that the alleged crimes were committed during the perpetration or attempted perpetration of a robbery; and secondly, that in any event it is insufficient, to establish the fact that the defendant herein was in the cafe at the time of the alleged commission of the crimes, or if present that he participated therein or was a party thereto. After a careful examination of the record we are unable to agree with either of the contentions so made.

The shooting of Stewart and Preston took place, as stated, shortly after 1 o’clock on Sunday morning. A few minutes before the shooting occurred a group of three men entered the cafe, walked to the bar and ordered drinks. The cafe at the time was filled with forty or more patrons, a large number of whom were sitting on stools or standing in front of the bar; others were seated at tables, and some were playing mechanical devices and musical instruments. Among the patrons present were Braun and Mrs. Groves. They had entered the cafe together several minutes before the group of three men appeared therein. The bar ran lengthwise of the cafe, and drinks were being served over the bar by two bartenders. One of them was an employee named Donahue, and the other was Stewart, the proprietor. Donahue waited on patrons at the end of the bar nearest the front door, and Stewart was stationed at the farther end. Donahue served the three men with drinks, and one of them intentionally or accidentally broke his glass on the bar, which caused a slight commotion; whereupon Donahue served him with another drink; meanwhile one of the men moved farther down along the bar toward the rear of the cafe and beckoned to Donahue. As Donahue approached, the man said to him, “Buddy, this is a stick-up ’ ’. Believing the man was joking, Donahue turned and walked back toward the other end of the bar and while passing Stewart said to him, “This guy says it is a stick-up”. Stewart glanced toward the man who had said it, and then reached down behind the bar and drew a pistol. Instantly several shots were fired, and there was much confusion. Some of the patrons dashed for the exits, while others lay down on the floor or stood with their hands raised above their heads. Just before the shooting began Preston was seated in front of and facing the bar, and hearing a disturbance he turned around and saw one of the group standing behind him pointing a pistol at someone behind the bar. He grappled with the man and was struck on the head with a pistol and shot twice, once in the arm and again across the chest. Another patron named Rohrseheib stood near the front door with his hands raised and was accosted by two of the group. One of them held a pistol, and the other demanded Rohrseheib’s “roll”. He replied that he had none, and the man then leaned over to search Rohrseheib’s hip pockets. As he did so Rohrseheib grappled with the man and while they were wrestling the man who held the pistol struck Rohrseheib on the head, knocking him down, and when he arose the man struck him in the face with a peanut vending machine. After the three men had fled Stewart was found lying unconscious behind the bar, mortally wounded with a bullet hole through his head, and Preston was found lying unconscious in front of the bar. It was also found that approximately $50 was missing from the cash register, which was located on the back bar close to the spot where Stewart was standing when shot; and during the confusion caused by the shooting one of the group was seen behind the bar.

Clearly the foregoing facts are legally sufficient to support the conclusion reached by the jury that Stewart was murdered and Preston assaulted during the perpetration or attempt to perpetrate a robbery. Counsel for defendant points out that there is no direct evidence showing that any one of the group took the money from the cash register; but in this regard the testimony shows that. Donahue counted the cash in the register when he went on duty that evening; that upon returning to the bar immediately following the shooting he found one of the drawers of the register open, and soon afterwards when the police arrived he checked the money in the register with the tape upon which the sales are recorded and found that approximately $50 was missing; and in connection therewith it was shown also, as stated, that instantly before the shooting began one of the group said to Donahue, “Buddy, this is a stick-up”, and that before the group ñed one of them was seen behind the bar where the register was located. Moreover, and quite apart from the matter of the money missing from the cash register, there is the direct testimony showing the attempt to rob Rohrscheib.

The evidence establishing defendant’s participation in the crimes was both direct and circumstantial. The direct evidence consisted of testimony given by Mrs. Groves and Rohrscheib, bearing upon the identification of the defendant as the man with whom Rohrscheib was grappling in resisting the attempt to rob him. The identification of him by Mrs. Groves was made in positive terms. The circumstances relating thereto, as they are shown by her testimony, were these: For nearly a week immediately prior to the commission of the crimes Mrs. Groves, her husband, and the defendant lived together in the Commander Apartments on Ingraham Street in Los Angeles; and all three were well acquainted with Robles. Mrs. Groves had known him many years; and on the day preceding the shooting he was visiting the Groves and the defendant at their apartment. That afternoon all four began drinking, and they continued to drink during the evening. About 10 o’clock that night they visited the home of a Mrs. Martinson in the neighborhood. Braun was there also, and more liquor was consumed. While there Mrs. Groves undertook to teach the defendant to dance, and their actions angered Groves. A quarrel ensued between Groves and his wife, and he struck her. Thereupon, she left the place in company with Braun, and after driving about for a while in Braun’s automobile, visiting several cocktail bars, they went to the Bee Hive. They arrived there some time after 12:30, and after they had been there for some little time Mrs. Groves heard someone near the bar say, “This is a stick-up”. She looked around and saw her husband and Robles. Instantly the shooting began, and several shots were fired. During the confusion she observed Stewart standing behind the bar with a pistol in his hand, and saw him fire. She also saw Eobles in front of the bar holding a pistol, saw him striking Preston over the head with it; and afterwards she saw him behind the bar. As to the defendant, she testified that she first observed him standing in the cafe near the front, and that after the commotion started she saw him grappling with Eohrseheib. In this regard, the essential portions of the testimony given by her on direct examination were as follows: “Q. . . . Now, I will call your attention to the defendant, Leo Waller; you saw Leo Waller there that night, did you not ? A. Yes. Q. What was the defendant, Leo Waller doing, if anything'? A. I don’t think he was doing anything; just standing. Q. Where was Leo Waller when you first saw him? A. Oh, I believe, he was in the front of the cafe. Q. He was in the front of the cafe? A. Yes. ... Q. You also stated that you saw Mack Eohrseheib there; is that correct? A. Yes. Q. Did you see anything happen between Mack Eohrseheib and the defendant Leo Waller? A. Well, not until all the commotion started and everybody was grabbing each other. Q. All right. After the commotion started then did you see Leo Waller doing anything in the cafe? A. Well, when they were all in the—that Eohrseheib just grabbed Leo. Q. You saw Mr. Eohrseheib grab Leo Waller, the defendant in this case; is that right? A. Yes, he was standing there. Q. All right. What did you see the two of them do, if anything? A. Nothing, just holding on to each other. Q. Well, what do you mean by holding onto each other 1 ... A. Oh, I cannot remember everything, I mean every detail, how they were holding each other. ’ ’ Thereupon the court directed that the last question be read to the witness, and in response she answered, “Well, I would say they were wrestling. Q. By Mr. Galliano (deputy district attorney) : Then you saw Mr. Eohrseheib and Mr. Waller, the defendant in this case, wrestling, is that what you mean? A. Yes.” The witness was subjected to a rigid and thorough cross-examination upon the subject of her identification of the defendant, but throughout she steadfastly maintained that she saw the defendant in the cafe on the night in question under the circumstances above stated. In discussing her testimony on this appeal counsel for the defendant vigorously assails her credibility as a witness. He points out that according to her own testimony she had been drinking excessively most of the afternoon and evening, and he argues therefore that no value whatever can be attached to her identification of the defendant. He also calls attention to certain discrepancies between her testimony and that given by Eohrscheib as to the kind of clothing worn by the man with whom Eohrscheib grappled. As stated, however, in the-ease of People v. Farrington, 213 Cal. 459 [2 Pac. (2d) 814] : “The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, and the uncertainties of the witnesses in giving their testimony were matters solely for the observation and consideration of the jurors in the first instance, and for the consideration of the trial court on motion for a new trial. It has approved the finding of the jury, and on appeal this court may not disturb such finding and the action of the trial court unless we can say, as a matter of law, that there was no evidence to support the conviction.” (See, also, People v. Radovich, 122 Cal. App. 176 [9 Pac. (2d) 542], citing numerous cases.)

Eohrscheib’s identification was that while he would not say positively that the defendant was the man who attempted to rob him, that he “looked like him”,—that he “resembled him”; and in this connection he was asked this question: “Calling your attention to the defendant, Waller, you think now that the man that you saw there is similar or looks like Mr. Waller, is that right?” and he answered “yes”. The fact, however, that he was not positive does not destroy the value of the identification. As said in People v. Wilson, 76 Cal. App. 688, at page 700 [245 Pac. 781], it is not necessary that the identification be made in positive terms by any of the witnesses. And continuing, the court goes on to say: “A conviction may be sustained though the witnesses decline to swear positively, and testify merely that they believe the accused is the person whom they saw commit the crime. Thus in Commonwealth v. Cunningham, 104 Mass. 545, the witnesses would not swear that the prisoner was the man they saw on the stolen wagon, but that ‘he resembled him’. There the court said: ‘Upon this question of identity, the evidence offered was all of it competent and proper for the consideration of the jury. It is impossible to say that it had no tendency to convict the defendant. Its sufficiency was to be estimated and weighed exclusively by them. ’ ” Other cases holding that the identification need not be made in positive terms are People v. Rolfe, 61 Cal. 540; People v. Franklin, 46 Cal. App. 1 [188 Pac. 607] ; People v. Madsen, 93 Cal. App. 711 [270 Pac. 237] ; People v. Radovich, supra. It may be well to state also that Rohrscheib, without qualification, identified Robles as the man who held the pistol and struck him while he was grappling with the man who was attempting to rob him. Such identification was made from having seen Robles personally at the other trial, and from a photograph of him produced at the present trial.

Other important facts and circumstances disclosed by the testimony of Mrs. Groves tending to connect the defendant with the commission of the crimes were the following: As soon as the turmoil in the cafe resulting from the shooting had quieted down, she and Braun left together, and after driving first to Fourth Street where they stopped in the street for a few minutes, they continued on to the Groves apartment on Ingraham Street. There they found Groves, Robles and the defendant, and after a short discussion among them they decided that all should leave the state; thereupon, about an hour after the shooting, they entered two automobiles and drove first to Cross Roads, California, and thence to Phoenix, Arizona. One of the cars, a Pontiac, was driven by Groves, and he was accompanied by Mrs. Groves and Robles. The other, a Plymouth, was driven by defendant, and Braun rode with him. All remained in Phoenix for a day or two, and then decided to separate. Braun and Mrs. Groves turned back toward California, and eventually reached San Diego, where they decided to surrender to the police. The Pontiac car, it appears, had been stolen in Los Angeles several days prior to the homicide, not, however, by the defendant; and some time during Sunday, the day of the homicide, the license plates of the car were found in Mrs. Martinson’s yard.

The evidence further shows that following defendant’s arrest in Illinois he made a statement to the officers wherein he said that he left California the day after the Bee Hive robbery; that upon arriving in Arizona he read in the newspaper about the robbery and the murder. Continuing, he stated that after the five of them had stayed in Phoenix for two or three days he separated from the others and made his way east through several states, including Texas and Oklahoma, up to Illinois; that while doing so he eluded being apprehended by using various aliases, one of them being Jimmie Wallace, and that he had secured a social security card under that name; and that one of the reasons he separated from the others was that the Pontiac in which they were traveling was a stolen ear. It will be seen, therefore, that immediately after the crimes had been committed, and having had knowledge of the commission thereof, the defendant fled through several states, assuming aliases to avoid detection and arrest, which in itself may be considered as evidence of consciousness of guilt. As said in People v. Murguia, 6 Cal. (2d) 190 [57 Pac. (2d) 115], “Immediate flight, in the absence of any accusation—in advance, perhaps, of the probability of an accusation, formal or informal—may afford persuasive evidence of a consciousness of guilt”, citing People v. Erno, 195 Cal. 272 [232 Pac. 710]. Moreover, testimony showing that a defendant has assumed aliases may be considered as tending to prove that he was endeavoring to conceal his identity after the commission of the crime. (People v. Wheaton, 64 Cal. App. 58 [220 Pac. 451].)

Finally, it may be stated that when the prosecution rested its ease the defendant offered no evidence, nor did he take the witness-stand in his own behalf. As declared by section 13 of article I of the state Constitution, “ ... in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the ease against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.”

The contention is made that Mrs. Groves was an accomplice in the commission of the crimes, and that such being the case her testimnoy has not been sufficiently corroborated to meet the requirements of the law. It is evident, however, that there is no evidence to justify the conclusion that she was an accomplice. As already shown, the jury at the other trial by its verdict of acquittal declared that she was not an accomplice, and there is nothing in the present record to establish that she was. Quite to the contrary, it appears therefrom that she had no reason to suspect that the robbery was to be perpetrated. The contention so made is therefore without merit.

Such being the evidence and the state of the record, we are without legal authority to interfere with the verdict of the jury; for as shown, the evidence is legally sufficient to establish that Stewart was murdered during the perpetration or attempt to perpetrate a robbery, and that the defendant was one of the group who participated in the robbery. True, there is no evidence showing that defendant shot either Stewart or Preston; nor in fact does it show that at the time of the robbery he was armed. It is well established, however, that if a homicide is committed by one of several confederates while engaged in perpetrating the crime of robbery in furtherance of a common purpose, the person or persons engaged with him in the perpetration of the robbery but who did not actually do the killing, are as accountable to the law as though their own hands had intentionally fired the fatal shot or given the fatal blow, and such killing is murder of the first degree. The jury has no option but to return a verdict of murder of the first degree whether the killing was intentionally or accidentally done, and it is proper so to instruct the jury. (People v. Perry, 195 Cal. 623, 638 [234 Pac. 890]; People v. Boss, 210 Cal. 245 [290 Pac. 881] ; People v. Raber, 168 Cal. 316 [143 Pac. 317] ; People v. Lawrence, 143 Cal. 148 [76 Pac. 893, 68 L. R. A. 193] ; People v. Olsen, 80 Cal. 122 [22 Pac. 125] ; People v. Denman, 179 Cal. 497 [177 Pac. 461].)

And having found the defendant guilty of first degree murder the matter of the penalty was entirely within the discretion of the jury. (People v. French, 12 Cal. (2d) 720, 775 [87 Pac. (2d) 1014].) The jury was properly instructed as to its power to relieve the defendant from the extreme penalty of the law if in the exercise of its discretion the facts and circumstances so warranted; and since it failed to do so, it is beyond the power of this court to interfere therewith on appeal. (People v. Boss, supra.)

What has been said in determining the merits of the appeal from the conviction of murder applies with equal force to the conviction on the second count. The additional point urged with respect thereto is that there is no evidence showing an intent to kill. But obviously, in view of the undisputed ■ testimony showing that Preston was beaten on the head with a pistol and shot twice, the jury was justified in finding that the assault was committed with the intent to kill.'

The judgments of conviction and the orders denying the ■ motion for new trial are, and each of them is affirmed.

Shenk, J., Curtis, J., Edmonds, J., Spence, J., pro tem., and Houser, J., concurred.

Rehearing denied.


text:
    [L. A. No. 17175.
    In Bank.
    December 2, 1939.]
    SAMUEL L. CARPENTER, Jr., as Insurance Commissioner, etc., Petitioner and Respondent, v. THE PACIFIC MUTUAL LIFE INSURANCE COMPANY OF CALIFORNIA (a Corporation) et al., Respondents; WILLIAM H. NEBLETT et al., Appellants.

      William H. Neblett, in pro. per., and Neblett, Warner & MacDonald, Bettin, Painter & Wait, E. Walter Guthrie, Allan H. McCurdy and J. Merrill Brown for Appellants.
    Earl Warren, Attorney-General, John L. Nourse, Deputy Attorney-General, Hester Webb, and Mitchell, Silberberg, Roth & Knupp for Petitioner and Respondent.
    H. S. Dottenheim, Cosgrove & O’Neil, John N. Cramer and Peery Price for Respondents.
   SHENK, Acting C. J.

This is a motion by the petitioner, the Insurance Commissioner of this state, to affirm, summarily, an order of the trial court correcting its minutes, nunc pro tunc.

In 1936, the petitioner, acting under authority conferred by statute, took over the business and assets of The Pacific Mutual Life Insurance Company of California. A plan was formulated for liquidation and rehabilitation of the company, which plan contemplated among other things a sale and transfer of assets to a new corporation of similar name. On July 22, 1936, pursuant to the provisions of the Insurance Code, and in furtherance of the plan of rehabilitation, the commissioner instituted- a special proceeding wherein he applied for an order approving the plan and appointing himself as conservator of the company. The new corporation filed a petition in intervention. On July 22d the order prayed for was made, the petition for intervention was granted, and the commissioner took possession of the business and assets of the company. A question arose as to disqualification of the judge who made the order of July 22d. On August 11, 1936, the commissioner applied for and procured from a different trial judge, Judge Willis, an order reappointing the commissioner as conservator and approving the rehabilitation plan. Subsequently, the rehabilitation plan was carried into operation. In lieu of a more detailed statement of facts, reference is hereby made to Carpenter v. Pacific Mutual Life Insurance Co., 10 Cal. (2d) 307 [74 Pac. (2d) 761] ; Neblett v. Carpenter, 305 U. S. 297 [59 Sup. Ct. 170, 83 L. Ed. 182] ; Carpenter v. Pacific Mutual Life Insurance Co., 13 Cal. (2d) 306 [89 Pac. (2d) 637]. These decisions were uniform in declaring the lawfulness of the orders approving the plan and furthering its execution.

Early in 1939, the attention of some of the parties interested in the proceeding was directed to the minutes of the trial court of August 11, 1936, and particularly to the purported order of dismissal incorporated in and italicized in the following copy of said minutes:

“Matter re appointment of Conservator etc. in accordance with section 1011 of the Insurance Code, also comes on for hearing. . . . Attorney Flynn presents an order for appointing conservator. S. L. Carpenter and Albert H. Mowbray are sworn and testify and are cross-examined. Respondent’s Exhibit ‘A’ in this hearing (Copy of Resolution of Defendant Company) is admitted and filed. The application and petition, in accordance with section 1011 of the Insurance Code, is ordered granted by the Court and Order for same filed. Matter is dismissed without prejiidice.”

The purported order of dismissal was not included in the voluminous records on the prior appeals to this court above noted; nor was it brought to the attention of the Supreme Court of the United States in Neblett v. Carpenter, supra.

After its discovery, and on March 3, 1939, the commissioner petitioned the trial court, Judge Willis presiding, for an order to show cause why a correction should not be made in the minutes of August 11th, by deleting therefrom the words, “Matter is dismissed without prejudice”. The order to show cause was issued returnable before Judge Willis on March 20, 1939, but before the return date and on March 17, 1939, Judge Willis, of his own motion, entered a nunc pro tunc order making the correction, and also entered an order vacating the order to show cause and dismissing the proceeding in which it was issued.

The appellants seek a reversal of the order of correction on the ground that the evidence is insufficient to justify the order. In support of the motion for a summary affirmance of the order, it is contended that the appeal fails to present any substantial question. This contention must be sustained.

It is the long-settled rule that courts of record in this state have inherent power to make a correction, nunc pro tunc or otherwise, of clerical errors and misprisions in their records. in order that such records conform to the facts and speak the truth. (Kohlstedt v. Hauseur, 24 Cal. App. (2d) 60, cases cited p. 62 [74 Pac. (2d) 314] ; Livesay v. Deibert, 3 Cal. App. (2d) 140 [39 Pac. (2d) 466] ; Lauchere v. Lambert, 210 Cal. 274 [291 Pac. 412] ; 7 Cal. Jur., p. 613, sec. 28; 4 Cal. Jur. Supp., p. 432 et seq.) Under this rule the corrections may be made at any time, either on motion of an interested party, or on the court’s own motion. In the present proceeding it was not improper for the court to make the correction prior to hearing of the order to show cause. Since the correction was purely that of a clerical error, notice thereof to the appellants was unnecessary and they may not be deemed to have been prejudiced by the order made without notice.

In the ease of Kohlstedt v. Hauseur, supra, it is said: ‘ ‘ The respondent contends that the court did not have jurisdiction to make the orders amending the judgment ex parte. The law is that the court may make the correction ex parte and of its own motion. (Crim v. Kessing, supra [89 Cal. 478, 26 Pac. 1074, 23 Am. St. Rep. 491]; Lauchere v. Lambert, supra; Livesay v. Deibert, 3 Cal. App. (2d) 140 [39 Pac. (2d) 466].) In the case of Livesay v. Deibert, supra, the Court of Appeal said: ‘Appellant makes the further claim that the court could not make the order ex parte, but only on motion after notice given. This view, however, is contrary to the settled rule that the court not only has the power but is also under the duty, upon its own motion, to correct such mistakes when they are called to its attention. (Robson v. Superior Court, 171 Cal. 588 [154 Pac. 8].)

Appellants urge that the error was judicial and not clerical, and that therefore the trial court was without power to correct it. If the error was in fact judicial, this point would be well taken, as judicial error may not be corrected by a trial court under the guise of rectifying a clerical mistake (see eases above cited). However, the trial judge has full power in the first instance to determine the character of the error, and his conclusion, in the absence of a clear showing to the contrary, is final. Quoting again from Kohlstedt v. Hauseur, supra, at pages 62, 63: “It is for the judge who made the original decision to decide whether the judgment as written expresses his decision. (Kaufman v. Shain, supra [111 Cal. 16, 43 Pac. 393, 52 Am. St. Rep. 139]; Kowalsky v. Nicholson, supra [23 Cal. App. 160, 137 Pac. 607].) In acting upon the matter the judge is exercising one of the functions of his judicial office and he will not direct the amendment unless he is satisfied that the original entry does not clearly express the order which was made. (Kaufman v. Shain, supra.) In the case of Livesay v. Deibert, supra, the court further said: ‘It was for the trial judge to determine whether the order was complete and all that he intended it to be or whether it was deficient. If the mistake was clerical, it could be corrected. If it was judicial, it could not be. It must be presumed that he found it to be his own clerical error; otherwise he would have had no right to make the second order. The facts were completely and solely within his own knowledge. He alone Imew whether a mistake had been made and how it had been made. He had a right to rely upon his own memory (King v. Emerson, supra [110 Cal. App. 414, 288 Pac. 1099, 294 Pac. 768]) and his determination of the fact is conclusive. (People v. Curtis, 113 Cal. 68 [45 Pac. 180]; Kaufman v. Shain, 111 Cal. 16 [43 Pac. 393, 52 Am. St. Rep. 139] ; Harman v. Cabaniss, 207 Cal. 60 [276 Pac. 569].)”

In the present proceeding the record fully supports the conclusion that the error was a clerical one. The bill of exceptions contains a statement of facts which are not controverted and which reads in part as follows: “On August 11, 1936, in the afternoon of said day, certain proceedings were had herein in the above entitled Court, Honorable Henry M. Willis, Judge presiding, and referred to in said minutes of August 11, 1936; and said Honorable Henry M. Willis, Judge presiding, retained on March 17, 1939, and still retains an independent recollection of the substance of said proceedings. Said Honorable Henry M. Willis, Judge presiding, during the course of said proceedings took and preserved and still preserves full bench notes which reflect the substance of said proceedings and reflect the fact that no other proceedings were then had. Neither on August 11, 1936, nor at any other time, did the Insurance Commissioner herein or his counsel or the respondent corporation or its counsel make or file or join in any written or oral request or consent or stipulation or motion for the dismissal of the proceedings then pending herein, or any part or portion thereof, and no such request, consent, stipulation or motion appears in the records or files herein, and neither on August 11, 1936, nor at.any other time, did the court make, issue, render, or order, any dismissal or order or direct a dismissal, of the proceedings then pending therein, or any part or portion thereof; and said Honorable Henry M. Willis, Judge presiding, so recalled on March 17, 1939, and still so recalls. No notation of any such dismissal as is referred to in said Minute Entry was made in the Register of actions herein.”

The order signed by Judge Willis of March 17, 1939, correcting the minutes of his court nunc pro tunc as of August 11, 1936, after recitals not necessary to be repeated, proceeds as follows:

“And it being known to the undersigned judge of said court, who heard and determined said matter and proceeding, and it being within said judge’s own memory and knowledge that no order or direction of dismissal of said matter or proceeding was made by the court at said time or at all, and that said matter of application for appointment of conservator was not dismissed and was not ordered dismissed.
“Therefore, on the court’s own motion and to make such minutes to speak the truth, it is ordered that the minutes of said department of this court entered on said date of August 11, 1,936, be and the same are hereby corrected nunc pro tunc, by striking therefrom at the end thereof the words: ‘Matter is dismissed without prejudice’.”

Following the recitals in the bill of exceptions, the bench notes of Judge Willis are set forth, together with a certified copy of the reporter’s transcript of the proceedings had at the afternoon session of August 11, 1936. In none of this data is there any intimation of a dismissal of the proceeding. The evidence as a whole leaves no room for a conclusion other than that the words of dismissal crept into the clerk’s minute entry as a result of inadvertence and clerical error. Indeed even without this persuasive showing it appears on the face of the minute order itself that the purported direction of dismissal is incongruous and bears no relevancy to the surrounding recitals. The trial judge’s determination that the error was clerical is therefore fully supported by the record.

Appellants’ further contention that all proceedings had and taken after the entry of the purported order were void, because the action had been dismissed, fails with the holding that there was in fact no dismissal.

There is nothing in our opinion in Estate of Burnett, 11 Cal. (2d) 259 [79 Pac. (2d) 89], which would justify a different conclusion herein. This is not a case where the only conclusion which could be drawn from the record is that the error was a judicial as distinguished from a clerical error.

The order appealed from is affirmed.

Curtis, J., Houser, J., Carter, J., Gibson, J., Pullen, J., pro tem., and Tuttle, J., pro tem., concurred.

Rehearing denied. Waste, C. J., and Edmonds, J., did not participate.


author: THE COURT.

text:
    [L. A. Nos. 16182, 16221, 16222, 16245, 16246.
    In Bank.
    December 2, 1939.]
    SAMUEL L. CARPENTER, Jr., as Insurance Commissioner, etc., Petitioner and Respondent, v. THE PACIFIC MUTUAL LIFE INSURANCE COMPANY OF CALIFORNIA (a Corporation) et al., Respondents; WILLIAM H. NEBLETT et al., Appellants.
    William H. Neblett and Alfred F. MacDonald, in pro. per., and E. Walter Guthrie, A. H. McCurdy, Bettin, Painter & Wait, R. Dean Warner, J. Merrill Brown and LeRoy B. Lorenz for Appellants.
    U. S. Webb, Attorney-General, Earl Warren, Attorney-General, John J. Flynn and John L. Nourse, Deputies Attorney-General, Shepard Mitchell, Mitchell, Silberberg, Roth & Knupp and Frank L. Guerena for Petitioner and Respondent.
    H. S. Dottenheim, William M. Rains, Cosgrove & O’Neil, John N. Cramer, Peery Price, Ray Howard and Henry Huntington for Respondents.
    Asa V. Call, as Amicus Curiae, on Behalf of Respondents.
   THE COURT.

In the above-numbered cases of the same title, motions have been made to recall the remittiturs after their issuance pursuant to final judgment. The main ground on which they were made is that the purported order of dismissal of the proceedings as contained in the minuté entry of date August 11, 1936, in the case of Samuel L. Carpenter, Jr., Insurance Commissioner of the State of California, v. The Pacific Mutual Life Insurance Company of California, a Corporation, ante, p. 704 [96 Pac. (2d) 196] (No. L. A. 17175), rendered void all proceedings and orders had and taken thereafter, including the final judgments of this court, and of the Supreme Court of the United States, referred to in the opinion on the motion to afSrm the order of correction in ease No. L. A. 17175.

In view of the fact that the order of correction in case No. L. A. 17175 has been affirmed (this day) ante, page 704 [96 Pac. (2d) 796], it necessarily follows that the motions to recall the remittiturs should be denied.

The motions are and each is denied.


author: CARTER, J. HOUSER, J., Dissenting.

text:
    [S. F. No. 16274.
    In Bank.
    December 15, 1939.]
    H. W. REGAN et al., Appellants, v. THE COUNTY OF SAN MATEO et al., Respondents.

      Carl W. Anderson and Charles N. Kirkbride for Appellants.
    Gilbert D. Ferrell, District Attorney, and Daniel E. Sullivan, Assistant District Attorney, for Respondents.
   CARTER, J.

This is an appeal by plaintiffs from a judgment rendered against them by the Superior Court of San Mateo County denying recovery in an action brought against said county and its board of supervisors for certain commissions on inheritance and transfer taxes collected by their assignor, Harry E. Jenkins, as treasurer of said county between August 14, 1931, and January 7, 1935.

The facts of this ease are undisputed and are substantially as follows:

At the general election in 1930, Harry E. Jenkins was elected county treasurer of San Mateo County for a full four-year term. He took office as such county treasurer on January 5, 1931. At the time of his election, San Mateo County was a 'county of the twenty-first class and the compensation of the county treasurer was an annual salary of $3,500 (Pol. Code, sec. 4250) and a commission on all inheritance and transfer taxes collected by him. (Stats. 1921, p. 1500, as amended by Stats. 1927, p. 1094.)

At the session of the legislature in 1931, the classification of San Mateo County was changed from the twenty-first to the fifteenth class. (Pol. Code, secs. 4005c, 4006.) At said session, the County Government Act of said county was amended by providing for an increase in the compensation of several of the officials of said county. (Pol. Code, see. 4244.) Subdivision 5 of said section provided that “The County Treasurer shall receive $3,900.00 per annum”; and subdivision 17 of said section provided in part as follows :

“Provided, that the salaries and compensation, as herein provided for, shall be in full for all compensation to said officials, their deputies, employees or appointees.
“All fees, perquisites, commissions, and other moneys received' by any county official, his deputy, employee or appointee, by virtue of the office or employment of such county officer, deputy or employee, shall each month be paid into the county treasury, and shall belong to the county; . . . ” (Chap. 551, Stats. 1931.) This statute became effective August 14, .1931. (Pol. Code, sec. 323.)

Jenkins served his full term as county treasurer and was paid the salary of $3,500 per annum provided for at the time he took office. He also received the commissions provided for by section 20 of the Inheritance Tax Act above mentioned until August 1,4, 1931. Thereafter he paid said commissions into the county treasury and did not withdraw any portion thereof for his own use. lie assigned all of his claim to said commissions to plaintiffs who brought, this action against San Mateo County and its supervisors to recover said commissions.

The record discloses that between August 14, 1931, and January 7, 1935, Jenkins collected as commissions authorized by section 20 of the Inheritance Tax Act and paid into the treasury of San Mateo County the sum of $4,573.85; none of which sum was withdrawn by him. The trial court rendered jiAdgment in favor of defendants denying plaintiffs’ recovery.

The question presented by this appeal is whether or not the amendment covered by subdivision 17 of section 4244 of the Political Code became effective during the term for which Jenkins was elected county treasurer of San Mateo County at the general election in 1930, so as to deprive him of his right to the commissions authorized by section 20 of the Inheritance Tax Act, which accrued between August 14, 1931, and January 7, 1935.

On July 1, 1933, the San Mateo County charter became effective. Section 5, article XIII provides:

‘1 Compensation in full for services. The compensation proAÚded to be paid to all elective and appointive county and township officers, boards and commissions shall, when so paid, be in full for all services rendered.”

Section 1,3, article VI of the charter provides:

11 Payment of fees into the county treasury. Every county officer, board or commission, authorized to collect fees- or monies must pay into the county treasury all such fees and monies collected by him or them, as the case may be, not later than the next business day following their receipt. ...”

However, the charter becomes unimportant in determining the problem before us in view of the following provision of section 12, article VI, thereof:

“All county officers who, immediately prior to the time this charter goes into effect are holding elective offices shall, during the remainder of their respective terms of office, have and receive the same salary and compensation to which they, severally, are now entitled to receive under provisions of general law, anything herein stated to the contrary notwithstanding. ’ ’

Neither the amendment to the San Mateo County Government Act of 1931 nor the county charter stated that a decrease in compensation for the county treasurer was intended, or that the change in compensation was intended to affect incumbents. Section 20 of the Inheritance Tax Act, under which the commissions in question were collected, was not repealed or amended, and the commissions provided for therein continued to be collected by Jenkins during his term as such county treasurer, but after August 14, 1931, were paid into the county treasury by him.

It is obvious that the 1931 amendment to the San Mateo County Government Act fixing the salary of the county treasurer at $3,900 per year without a finding by the legislature that the increased salary was intended to offset the commissions on inheritance taxes, constituted an increase in the compensation of the county treasurer and could not become effective during the term for which Jenkins was elected. (Art. XI, sec. 9, Cal. Const.; Smith v. Mathews, 155 Cal. 752 [103 Pac. 199]; Galeener v. Honeycutt, 173 Cal. 100 [159 Pac. 595]; Keith v. Ramsey, 34 Cal. App. 340 [167 Pac. 408] ; Applestill v. Gary, 18 Cal. App. 385 [123 Pac. 228] ; Williams v. Garey, 19 Cal. App. 769 [127 Pac. 824].) It appears to be well settled by the above-mentioned authorities that when the legislature amends a County Government Act by providing an increase or reduction in salary for certain county officials, or changing the method of compensating certain county officials from a fee to a salary basis, or vice versa, and the act creating such amendment contains no provision to the effect that it is intended to affect incumbents, it will be presumed that the legislature intended that such amendment should not take effect until the expiration of the term of office of the incumbent thus affected and that the incumbent should continue to be compensated in accordance with the law in effect at the time he took office. The rule laid down in the above-mentioned cases appears to be clearly applicable to the facts of the case now before us. We can perceive no good reason why a different rule should be applied to this case simply because the law in force at the time Jenkins was elected provided that he should receive a portion of his compensation by way of a fixed salary of $3,500 per year, and a portion by way of commissions derived from the inheritance taxes collected by him. Let us assume a situation where the major portion of the compensation of a county official would be paid to him in the way of fees or commissions and only a small part in salary; for instance, if a county official were allowed a salary of $600 a year and fees or commissions which would average $3,000 a year, making the total amount of his compensation $3,600 a year, and the legislature should amend the County Government Act so as to increase his salary to $3,600 a year and provide that all fees and commissions collected by him be paid into the county treasury, and no finding was made by the legislature that the change would not effect an increase or reduction in the compensation of the official and no provision was made therein for the amendment taking effect during the term of the incumbent, the rule contended for by respondents in the instant case would have the effect of depriving the official of his right to fees and commissions during his term and prohibit him from accepting the increased salary, hence he would be required to serve out the remainder of his term at a salary of only $600 per annum, or resign.

The foregoing illustration demonstrates the wisdom of the rule of construction enunciated in the above-mentioned cases, which has the effect of protecting both the public officials and the political subdivision which they have been chosen to serve.

This rule of construction is clearly stated in the decision of this court in the case of Smith v. Mathews, supra, which we quote as follows:

At page 759: “ ... the question which we have to decide is the proper construction of an act which, without repealing the County Government Act, merely amends it by increasing the salaries of certain officers, and by changing the compensation of other officers from fees to salary, or from salary to fees, in such a manner as to leave the courts no means of determining whether these amendments will operate an increase or reduction of compensation. The true construction of such an act, in my opiniori, is to treat all its provisions alike, and, knowing that such of them as increase salaries could have been intended to apply only to officers elected subsequent to the amendment, to conclude, in the absence of express and specific declaration to the contrary, that other amendments which may or may not have the effect of increasing compensation were likewise intended to operate only in favor of or against officers to be thereafter elected. ’ ’

And we quote with approval from the concurring opinion of Mr. Justice Shaw in the Smith case at page 760 as follows:

“The point upon which the ease is now decided is that the provisions of the Act of 1907, in so far as they operate to increase the compensation of officers for terms running at the time the Act took effect, are not to be given a retroactive operation, that is, that those provisions do not apply to the compensation for the then existing terms, and that in those cases where the Act makes a change in the mode of measuring the compensation, from fees to salaries, and where, consequently, it cannot be ascertained in advance that there is no increase, it. is to be presumed from this uncertainty and the absence of an express statement otherwise, that the Legislature intended thereby to provide only for officers to be elected for subsequent terms. ’ ’

And at page 761:

11 The Constitution forbids a legislative increase in the compensation of any county or township officer during his term of office. (Art. XI, sec. 9.) This prohibition, in effect, and with regard to legislation on the subject, makes the entire term of an office, with the concurrent right of the incumbent to compensation, a matter which occurs and a right which exists as soon as the term begins, and which are thereafter, in that aspect, past transactions. Any legislation affecting the compensation of such officer is to be deemed as operating upon an existing right, and the legislature will not be presumed to have attempted to change the compensation during the term, unless it expressly so declares. If such intent does not appear, the law will be construed as intended to apply only to officers elected for subsequent terms. This construetion is just both to the officer and to the public. If it intends to reduce the compensation of officers in any class of counties, during the pending terms, as it may constitutionally do, the legislature can say in plain words that the change applies to present incu/mbents. If it changes from fees to salaries, as it may if it finds that the salary allowed will not increase the compensation, it can declare that there is no increase and, that it is to apply immediately to the present incumbents. Perhaps the fact of no increase would be inferred from the declaration that it should apply to present incumbents; but where neither statement appears, it is to be inferred that an increase was contemplated and that it was intended to apply prospectively only.” (Italics ours.)

The case of Applestill v. Gary, supra, involved a change of sheriff’s compensation from a $5,000 annual salary plus mileage fees to a $5,000 annual salary plus fees and mileage for service outside his county plus an annual salary of $1500 for an under sheriff and an annual salary of $900 for a court deputy. The court followed the reasoning in the Smith case and held that the change in compensation could not be applied to the incumbent.

In support of the judgment of the trial court in the case at bar, counsel for respondents rely upon the following cases: County of Kern v. Fay, 131 Cal. 547 [63 Pac. 857] , County of San Diego v. Schwartz, 145 Cal. 49 [78 Pac. 231], Lesem v. Getty, 23 Cal. App. (2d) 57 [72 Pac. (2d) 183] , Dodge v. City and County of San Francisco, 135 Cal. 512 [67 Pac. 973] , San Francisco v. Mulcrevy, 15 Cal. App. 11 [113 Pac. 339] , Mulcrevy v. San Francisco, 231 U. S. 669 [34 Sup. Ct. 260, 58 L. Ed. 425], County of Alameda v. Cook, 32 Cal. App. 165 [162 Pac. 405], County of Los Angeles v. Cline, 37 Cal. App. 607 [174 Pac. 73] , Winter v. DeShields, 46 Cal. App. 574 [189 Pac. 703] , County of Tehama v. Winter, 56 Cal. App. 341 [205 Pac. 97], and Jones v. DeShields, 187 Cal. 331 [202 Pac. 137].

None of these cases involve the problem here under consideration as the statute or charter provision there under consideration was adopted prior to the election and taking of office of the officer concerned.

In the case at bar it cannot be denied that the treasurer’s compensation was changed by the 1931 amendment from salary plus commission to an increased salary alone. Under the Smith case this change constituted an increase. In view of this fact, it was constitutionally impossible for this increase to affect the incumbent county treasurer during the balance of his elective term.

The record in this case discloses that upon the expiration of Jenkins’ term as county treasurer on January 7, 1935, he continued to fill the position of county treasurer of San Mateo County under an appointment from the board of supervisors of said county until October 28, 1935, and the present action was commenced to recover all commissions on inheritance and transfer taxes collected by him between the 14th day of August, 1931, and the 28th day of October, 1935. However, appellants have expressly waived all claim to such commissions collected by Jenkins during his appointive term subsequent to January 7, 1935, and we have therefore not given consideration to the question of whether or not appellants are entitled to recover such commissions during said last-mentioned period.

We think it is clear that in the absence of a declaration in the 1931 amendment to the San Mateo County Government Act, that it was intended to affect incumbents, there is no escape from the conclusion that Jenkins was entitled to collect and retain as his own, the commissions on inheritance and transfer taxes collected by him between August 14, 1931, and January 7, 1935, pursuant to section 20 of the Inheritance Tax Act (Stats. 1921., p. 1500, as amended by Stats. 1927, p. 1094), and, therefore, the judgment is reversed with directions to the trial court to enter judgment in favor of plaintiffs for the amount of commissions to which Jenkins was entitled pursuant to said act between August 14, 1931, and January 7, 1935, the date of the expiration of his term as such county treasurer for which he was elected in the year 1930.

Shenk, J., Gibson, J., Curtis, J., Edmonds, J., and Waste, C. J., concurred.

HOUSER, J., Dissenting.

I dissent.

In this case, a judgment that was rendered by the superior court was affirmed on appeal to the District Court of Appeal. (Regan v. County of San Mateo, (Cal. App.) [90 Pac. (2d) 366].) Although, thereafter, a petition for hearing by this court was granted, on further consideration of the appeal, I find that I am in accord with the opinion which was prepared by Mr. Justice Ward of the First District Court of Appeal, and believe that it should meet with the approval of this court, and consequently that it should be adopted as its opinion. It is as follows:

“This is an appeal by the assignees of Harry E. Jenkins, formerly treasurer of the county of San Mateo, from an adverse judgment in an action against the county for inheritance and transfer tax commissions.
“Harry E. Jenkins was the duly elected, qualified and acting treasurer of San Mateo county from January 5, 1931, until January 7, 1935. Thereafter, under the provisions of a county charter which had in the meantime become effective, for the appointment of a treasurer, he was selected, duly appointed and served in that capacity until O'ctober 28, 1,935. From the date of his election until August 14, 1931, Jenkins, as treasurer, collected and retained certain commissions on inheritance and transfer taxes to which he was entitled under the provisions of section 4290 of the Political Code. On this last-mentioned date there became effective the County Government Act. (Stats. 1931, p. 1168.) Section 17 of this act (page 1174) provided that all fees, perquisites, commissions and other moneys received by any county official, excepting the coroner, public administrator and certain county clerk registration deputies, should be paid into the county treasury and belong to the county. This provision is explicit. It prohibits the retention by any county officer of commissions, fees, perquisites or any other moneys received by any officials other than those specifically excepted. In the same year the county of San Mateo was raised from the twenty-first to the fifteenth 'class (secs. 4005c and 4006, Pol. Code) and the salaries of certain county officers were raised, including that of the county treasurer, but the act provided that the salaries ‘ shall be in full for all compensation to said officials’. (Stats. 1931, p. 1168, at pp. 1170 and 1174.) The salary was, therefore, the only compensation the treasurer could accept for his official service. (County of Kern v. Fay, 131 Cal. 547 [63 Pac. 857] ; County of San Diego v. Schwartz, 145 Cal. 49 [78 Pac. 231].)
“Appellants contend that the change in the classification of the county did not confer upon the treasurer the benefit of the increased salary during his unexpired term (art. XI, sec. 9, Const, of Cal.; Smith v. Mathews, 155 Cal. 752 [103 Pac. 199]), and that his salary for that period remaining the same he was officiating under the previous statute (Pol. Code, see. 4250) ; that the Inheritance Tax Act (Stats. 1921, as amended) permitted the collection of inheritance tax commissions and that therefore the privilege of collecting them could not be affected before the end of his elective term. The right or privilege to the commissions was entirely independent of the statute fixing the salary of the county treasurer. The legislature had the power to bestow this perquisite and by the same token the right to take it away.
“On July 1, 1933, the new charter of San Mateo county became effective. Section 13 of article VI of the charter (Stats. 1933, p. 2967) provides that a county officer authorized to collect fees or moneys must on the next business day pay into the county treasury the receipts so collected. The charter relative to the salaries of certain county officers, etc., superseded the statute, but the right to retain the commissions here in question had already been abrogated. The county charter did not countenance the retention of the inheritance tax commissions during the elective or appointive terms of the treasurer.
“Appellants contend that the charter does not prohibit the retention of inheritance tax commissions by ex-officio officers. Section 5 of article XIII (Stats. 1933, p. 2976) provides that the compensation paid to elective and appointive officers shall be in full for all services rendered. A county charter provision dealing with matters of compensation controls over a general law. Section 13 of article VI (Stats. 1933, p. 2967) applies to ‘every county officer’. (Lesem v. Getty, 23 Cal. App. (2d) 57 [72 Pac. (2d) 183] ; Dodge v. City and County of San Francisco, 135 Cal. 512 [67 Pac. 973] ; San Francisco v. Mulcrevy, 15 Cal. App. 11 [113 Pac. 339] ; Mulcrevy v. San Francisco, 231 U. S. 669 [34 Sup. Ct. 260, 58 L. Ed. 425] ; County of Alameda v. Cook, 32 Cal. App. 165 [162 Pac. 405].) If the freeholders in framing the San Mateo county charter desired that its officers, ex officio or otherwise, should pay to the county all the perquisites over the salaries fixed in the charter, they had a right to so provide.
"In Reuter v. Board of Supervisors, 220 Cal. 314, 326 [30 Pac. (2d) 417], the court in dealing with another question arising out of the provisions of this same charter, said: ‘The general purpose of section 7% of article XI of the Constitution was to give local self-government or county home rule to counties of the state by means of charters framed under said constitutional amendment. That this was the intent and purpose of the section clearly appears from the language of the section itself, which declares that, after the charter has been approved by the legislature "such charter shall become the charter of such county and shall become the organic law thereof relative to the matters therein provided . . . and shall supersede all laws inconsistent with such charter relative to the matters provided in such charter.” ’ ”


author: GIBSON, J.

text:
    [Sac. No. 5271.
    In Bank.
    December 18, 1939.]
    W. A. AUTRY et al., Respondents, v. HARRY PATTESON, as Sheriff, etc., et al., Appellants.

      Bryce Swartfager for Appellants.
    Stoney, Rouleau, Stoney & Palmer and Royal E. Handles for Respondents.
   GIBSON, J.

This is an action to quiet title to real property and to enjoin sale of the same under a decree of foreclosure of mechanics’ liens. In order to understand the issue presented here, it is necessary to review certain prior proceedings. Lottie L. Ewing and her husband made a note to J. Scharer and wife, secured by a mortgage on real property located in Sonoma County and known as the Pitch Mountain Tavern. The Ewings conveyed the property to Pitch Mountain Development Company, a corporation, which erected certain improvements thereon. Thereafter, the Scharers brought suit to foreclose the mortgage, and subsequent to the commencement of that action the Healdsburg Lumber Company and William Henry Chaney brought separate actioñs to foreclose mechanics’ liens resulting from the improvements referred to. By stipulation, the three actions were consolidated and tried together. In the consolidated action, the court rendered a decree which directed a foreclosure of the mortgage and sale of the property, and having determined that the lien of the mortgage was superior and senior to the mechanics’ liens, directed foreclosure of the mechanics’ liens subject and subservient to the lien of the mortgage. The property was sold under the mortgage foreclosure decree to the Scharers and, there being no redemption, a commissioner’s deed was executed to the Scharers, as grantees, who later conveyed to the plaintiffs, W. A. Autry and May C. Autry.

Thereafter, Joseph D. Cox, as trustee in bankruptcy of the estate of William Henry Chaney, sued to renew the mechanic’s lien judgment and to foreclose and sell the property included in that judgment. An order of sale was issued and the sheriff advertised the property for sale, whereupon the plaintiffs, the purchasers of the title resulting from the mortgage foreclosure, brought this action to quiet title to the property and enjoin its proposed sale. The suit of Cox was brought upon the theory that the mortgage covered only a portion of the property which was subject to the mechanics’ liens, that the additional property did not pass to the purchasers at the mortgage foreclosure sale, and that therefore it could be reached by the mechanic’s lien claimants. The trial court in the present action found that the property involved in the mortgage, the conveyance, and the foreclosure actions, was the same, and rendered judgment for the plaintiffs. The defendants appealed.

The appellants contend that the mortgage foreclosure decree describes lands not contained in the mortgage, that the land described in the mortgage limits the power of the court to act in the foreclosure suit, and that the decree covering land wholly outside the mortgage is void. The respondents do not dispute the propositions of law presented by appellants, but they claim that the description in the mortgage was uncertain and that the court in the foreclosure action determined the scope of the description and the extent of the land to be affected by the decree. They further contend that since this decree has become final, the present collateral attack upon it must fail.

It appears from the record that considerable testimony was introduced in an effort to determine the land covered by the metes and bounds description contained in the mortgage, to ascertain the monuments therein referred to and their location, and to carry out certain lines and interpret certain designations. The metes and bounds description in the mortgage was followed by this recital: 11 Containing ten (10) acres, more or less, and known as the Fitch Mountain Tavern, which includes all buildings on said described property. ’ ’ The metes and bounds description as interpreted by appellants contains approximately seven acres. The Pitch Mountain Tavern property as described in the deed from the Ewings to the Pitch Mountain Development Company, and in the mechanics’ liens suits, contains approximately ten acres.

The decree of foreclosure rendered in the consolidated action sets forth the metes and bounds description, followed by the recital of the common name and acreage, just as in the mortgage, and thereafter reads as follows: “and being the same lands and premises as were conveyed by Lottie L. Ewing and A. M. Ewing to the Pitch Mountain Development Company, Inc., a corporation, by deed which said deed is duly recorded in the office of the county recorder of said Sonoma county excepting the lots as therein mentioned and also as set forth and described in the complaint of the Healdsburg Lumber Company, a corporation, against the Pitch Mountain Development Company, Inc., a corporation, now on file in this said Court in cause numbered 18453, excepting the lots as therein mentioned which said deed and complaint are hereby referred to for a more particular description of the lands and premises directed to be sold by this said decree ’ ’.

It is apparent that the court in the foreclosure action was fully aware of the uncertainty of the description in the mortgage, and undertook quite clearly to point out that the tract involved was the same ten-acre area which had theretofore been known by the common name of Pitch Mountain Tavern, and which was the subject-matter of the mortgage, the deed, and the mechanic’s lien foreclosure actions. This decree determined the issue as to the extent of the land involved in the mortgage foreclosure, clarified and made certain the description, and went into effect without objection by any of the parties to the proceedings. The present appellants were, by reason of the mechanic’s lien suits, parties to the consolidated action. They must be deemed to have acquiesced in that determination, and are bound by the final judgment therein.

The court undoubtedly had power in the foreclosure action to clarify the uncertainty in the description, and in doing so to look to the common name and the recital of approximate acreage as a means of ascertaining the intention of the parties. (See Doe v. Vallejo, 29 Cal. 385; Hall v. Shotwell, 66 Cal. 379 [5 Pac. 683] ; Hostetter v. Los Angeles etc. Railway Co., 108 Cal. 38 [41 Pac. 330] ; Matteson v. McCarty, 98 Cal. App. 45 [276 Pac. 414].)

The judgment is affirmed.

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