154 PACIFIC REPORTER

(Cal.

the money paid over and delivered to him?, the court cannot indulge in the presumption It is left entirely to conjecture. absence of any allegation to that effect, we a crime. In the that acts were committed which constitute cannot assume the prosecuting witnesses may by reason of such representations have The prosecuting witnesses herein were, by reason of the false representations, been induced to pay the money over to deinduced to pay their money to defendant in fendant as a contribution to some charitable consideration of a transfer by him to them object, in which case we do not mean to say of this promissory note and mortgage. Con- it would not constitute the offense charged. ceding the representations were, as believed, Section 952, Penal Code, requires a statement all true, why should they induce these per- of the particular circumstances of the offense sons to give their money to Rabild? That when they are necessary to constitute a they delivered the money to him relying upon complete offense. the representation that he was Rabild is as vision, the indictment is insufficient, since Measured by this proinconceivable as that they should have paid it fails to disclose any natural or causal conit to him because of a false representation nection between the false representations that he was Dr. Cook and had been to the alleged and the delivery of the property to north pole. defendant.

"The indictment must show that the property was obtained by means of the false pretense alleged. Accordingly, when there appears to be no natural connection between the pretense and the delivery of the property, such additional facts as are necessary to show the relation must be alleged." 19 Cyc. 429; People v. White, 7 Cal. App. 99, 93 Pac. 683.

The judgment and order from which the appeal is prosecuted are affirmed.

We concur: CONREY, P. J.; JAMES, J.

(District Court of Appeal, First District, Cal-
(Cr. 592.)
CRIMINAL LAW 1186-APPEAL and Er-
ifornia. Nov. 12, 1915.)
BOR-HARMLESS ERROR-STATUTE.

PEOPLE v. TURNER.

In the absence of an allegation showing that the prosecutors were induced to purchase the note and mortgage or lend money 1. thereon, there appears to be no natural connection between the false representations and the delivery of the property to defend

ant.

[2] While such facts should be directly pleaded, nevertheless there may be averments from which the connection between the pretense and the obtaining of the property can be inferred, as in the case of People v. Donaldson, 70 Cal. 116, 11 Pac. 681; where the defendant was charged with false pretenses in obtaining from one Spence certain hogs by falsely pretending to Spence that he, the defendant, had in bank a certain sum of money for which he delivered to Spence his check. So, in the case of People v. Haas, 151 Pac. 672, recently decided by this court, and wherein the court, through Mr. Justice James, distinguished the facts therein from those in the Kahler Case, an examination of the information upon which Haas was prosecuted exhibits facts from which the court was fairly justified in inferring that the money of the prosecuting witness was, by reason of the false pretenses, paid over to defendant, in consideration of a transfer to her of certain property alleged to be owned by Haas. In the case of People v. Hines, 5 Cal. App. 122, 89 Pac. 858, cited by appellant, the information, by indirect allegations, disclosed the money of the prosecuting witness was paid over to defendant in consideration of a conveyance of property which he represented he owned.

no judgment shall be set aside in any criminal Under Const. art. 6, § 42, providing that case unless the court shall be of opinion that of justice, in a prosecution for libel, where, the error complained of resulted in a miscarriage at the conclusion of the preliminary hearing, the magistrate merely announced and caused to be entered in his docket, without signing it, an order that the defendant should be held to anfixing his bail, in contravention of Pen. Code, swer in the superior court to a charge of libel, $ 872, providing that, if it appears on examination that a public offense has been committhe defendant is guilty, the magistrate must ted, and there is sufficient cause to believe that make or indorse on the complaint an order signed by him to that effect, it not appearing magistrate to make the required indorsement that defendant was injured by the failure of the upon the complaint before the information was filed, judgment of conviction after fair trial will not be set aside for the omission. Law, Cent. Dig. 88 3215-3219, 3221, 3230; Dec. [Ed. Note.-For other cases, Dig. 1186.]

see Criminal

2. LIBEL AND SLANDER 145
PROSECUTION-STATUTE-"LIBEL."

CRIMINAL

printing, tending to impeach the honesty, integUnder Pen. Code, § 248, declaring that a libel is a malicious defamation, expressed by rity, virtue, or reputation of one, and thereby expose him to public hatred, contempt, or ridicule, where a newspaper proprietor published gree members of a fraternal association, which an oath alleged to be required of all fourth deoath was of such a character as to impeach the members' loyalty as citizens, though not directly impeaching their honesty and integrity, he was guilty of libel.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 404; Dec. Dig. 145. First and Second Series, Libel.] For other definitions, see Words and Phrases, 3. LIBEL AND SLANDER 145 PROSECUTION FRATERNAL Order.

CRIMINAL LIBEL UPON MEMBERS OF

[3] It is a well-settled rule that an indictment or information must set forth all the facts and circumstances necessary to constitute the crime sought to be charged. In the absence of such allegations, or statements from which such facts may be fairly deduced, a libel in the form of an oath alleged to be

--

Where a newspaper proprietor published

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

required of fourth degree members of a fraternal Ralph H. Smith, of Santa Cruz, and Aaron organization, although the publication was in- L. Sapiro, of San Francisco, for appellant. tended to apply only to persons who were candidates for public office at the time, it was libel- U. S. Webb, Atty. Gen., and Frank L. Guerous as to all members of the order of the de-ena, Deputy Atty. Gen., for the People. gree named, since a libel may be upon a class of persons if the tendency of the publication is to stir up riot and disorder.

KERRIGAN, J. The defendant was charg

ed by information with the crime of libel, and was tried and convicted. This appeal is 824-TRIAL-INSTRUC- from the judgment of conviction, and from an order denying defendant's motion for a new trial.

Appeal from Superior Court, Santa Cruz Cal. 72, 62 Pac. 408), wherein the omission County; W. A. Beasly, Judge.

154 PACIFIC REPORTER

[2] Defendant demurred to the information on the ground that it did not state facts sufficient to constitute a public offense. The demurrer was overruled, and he now challenges the correctness of such ruling.

The question presented is whether or not the publication complained of comes withih the definition of the offense found in section 248 of the Penal Code. That section, in so far as it is pertinent to the offense here involved, declares:

(Cal.

upon the complaint before the information the Roman Catholic Church, he will no longer was filed, we cannot now, after a fair trial, rest easily in his present peaceful slumber." set aside the judgment of conviction because of such omission. It would seem that a mere statement of ment that it was false and malicious, would the published oath, coupled with an averby sufficient to bring the publication within the terms of section 248 of the Penal Code. It would be a severe reflection upon the conuncondemned the publication of articles such dition of the law of libel if it permitted to go lished oath, if believed by the community to as this, if false. It is clear that the pubbe taken by the members of the fourth degree of the Knights of Columbus, would have a contempt, or ridicule. While the publication tendency to expose those persons to hatred, may not, as claimed by the defendant, directdoes in a most direct and vital way assail *ly impeach their honesty and integrity, it with the taking of an obligation which is in their loyalty as citizens by charging them itself a violation of their oath of allegiance and of the essential duties and bonds of American citizenship, and thus in a general sense impeaches their reputations, and exposes them to those attitudes of public feeling described in the section of the Penal Code.

* * * *

"A libel is a malicious defamation, expressed * * by ** * printing * tending to impeach the honesty, integrity, virtue, or reputation * * * of and thereby expose him to public hatred, contempt or ridicule."

one

The information charges that the defendant, the proprietor and publisher of a certain newspaper called the "World-Issue," committed the crime of libel, in that on the 22d day of August, 1914, he unlawfully and wrongfully caused to be printed and published in said paper in Santa Cruz county, of and concerning the prosecuting witnesses, who lived in that county, and who were members of the fourth degree of that certain fraternal organization known and called the Knights of Columbus, the following article: "Can you vote for a man for public office who subscribes to the following?

"Knights of Columbus Oath.

"(Extracts-4th Degree.) ""I do now denounce and disown any allegiance as due to any heretical king, prince or state, named Protestant or Liberals, or obedience to any of their laws, magistrates or officers. "I do further promise and declare that I will have no opinion or will of my own or any mental reservation whatsoever, even cadaver (perinde ac cadaver), but will unhesias a corpse or tatingly obey each and every command that I may receive from my superiors in the militia of the Pope and of Jesus Christ.

""That I will in voting always vote for a Knight of Columbus in preference to a Protestant-especially a Mason-and that I will leave my party to do so; that if two Catholics are on the ticket I will satisfy myself which is the better supporter of Mother Church and vote accordingly.

66

article in question it appears from the record [3] At the time of the publication of the that there was a political campaign in progress in Santa Cruz county, where the article was published; and perhaps it is fair to infer from the record that some of the candidates for election were members of the none of the prosecuting witnesses were such fourth degree of Knights of Columbus, but candidates.

tion defendant contends: First that the pubWith the record in that condilication was not of and concerning the prosecuting witnesses; and, secondly, that the alleged libelous matter applies to a class or generally to all of the members of the fourth degree in the fraternal order mentioned, and that for these reasons the judgment of contherefore has no individual application, and viction cannot stand.

intended to apply only to persons who were While the published matter may have been candidates for office at that election, never

"That I will not deal with or employ a Pro-theless, in terms and in effect, it refers to testant if in my power to deal with or employ a each and every member of the order of the Catholic. That I will place Catholic girls in Protestant families of the heretics.

""That I will provide myself with arms and ammunition that I may be in readiness when the word is passed, or I am commanded to defend the church as an individual or with the militia of the Pope.'

degree named. It is undisputed that the publication was false, that the prosecuting witnesses were members of the society of the degree in question, and the inevitable conclusion to be drawn from the article is that "To the quiet, law-abiding, liberty-loving every member of the order of the fourth deAmerican citizen it is almost unbelievable that gree had taken and subscribed to the publishany fellow citizen or body of them can serious- ed oath. The article asperses the character ly undertake or hope to overthrow our present of such members, and ascribes to them base form of government and replace it with an absolute monarchy. It is still more unbelievable and dishonest motives, and as to them its that such a proposed monarchy should be dom- publication constituted criminal libel, whethinated by a foreigner, and that such a change er at that time a candidate for public office be brought about under the guise of religion. Yet if such a citizen will but open his eyes to or not. the condition existing under his very eyes, and might be urged with some force in a civil The points presented by defendant open his ears to the open, avowed purpose of action in mitigation of damages, but we do

not believe they are good in a criminal pros- | Am. Rep. 757; King v. Root, 4 Wend. (N. Y.) ecution for libel, for, as is said in the case of State v. Brady, 24 Pac. 948, 949:

"The law is elementary that the libel need not be on a particular person, but may be upon a family or a class of persons if the tendency of the publication is to stir up riot and disorder and incite to a breach of the peace. It is obvious that a libelous attack upon a body of men, though no individual may be pointed out, may tend as much or more to create a public disturbance as an attack on one individual, and a doubt has been suggested whether the fact of numbers does not add to the enormity of the act.'

This statement is a correct exposition of the law and of the causes of its existence. People v. Crespi, 115 Cal. 50, 46 Pac. 863.

[4, 5] The defendant next contends that the court erred in denying his motion for a new trial. He argues that the record supports the theory that the publication was made for the purpose of enabling the voters at the approaching election to cast their ballots more intelligently, and that therefore, under the terms of section 256 of the Penal Code, the publication must be deemed a privileged communication. That section provides:

"A communication made to a person interested in the communication, by one who was also interested or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious, and is a privileged communication."

ed.

113, 21 Am. Dec. 102; McAllister v. Detroit Free Press Co., 76 Mich. 338, 43 N. W. 431, 15 Am. St. Rep. 318 and cases noted. In the present case it is not disputed that the publication was false. It was therefore not privileged.

[6] During the trial of the case, in denying a motion made by the defendant to dismiss, the court gave his reasons therefor in the presence of the jury, and, among other things, said that, examining the publication by its four corners as one would a contract, it might fairly be interpreted to state that all persons who were admitted to the fourth degree of the Knights of Columbus had taken the published oath; "in fact, the court thinks the paper is fairly interpreted to mean just that." This remark, defendant insists, constituted error on the part of the learned trial judge, for which the case must be re

versed.

called to the apparent inadvertence, the court At the time, upon attention being explained to the jury that the remarks were not directed to them, that they were addressed solely to the counsel in the case, and made incidental to the denial of the motion before the court. Subsequently in the instructions the jury were repeatedly admonished that they were not to be in any way influenced in reaching their verdict by the observations of the court, that they were the sole judges of the facts in the case, and that the interpretation of the language of the publication was a

Assuming for the moment that this publication comes within the privilege of that section, still we are satisfied that this case should not be reversed upon the ground stat-matter to be wholly determined by them. It No instruction was requested or given will, of course, be presumed in this behalf upon the subject of privileged communica- that the jury followed the plain admonition tions of the sort defined by that section, but of the court, and hence that in the matter the record shows that the defendant was suggested the defendant suffered no injury. relying upon this form of privilege in presenting his defense, and, since the jury are the judges of both the law and the facts in criminal libel cases, the defendant should have requested the specific instruction if he desired to have the jury more directly advised as to his contention than it was by the evidence, or argument of counsel. We are further satisfied, however, that section 256 of the Penal Code has no application to cases of this character. Whatever the rule may be in other jurisdictions, it has been expressly decided in this state that a candidate for office is as

much entitled to protection from defamation as any other citizen, and that a public journal or an individual who indulges in defamatory assertions about candidates for office is equally responsible for his acts with those who commit the same offense against private individuals, and that such libelous matter published against a candidate for a public office is not a privileged communication. Jarman v. Rea, 137 Cal. 341, 350, 70 Pac. 216; Edwards v. San Jose Pr. & Pub. Co., 99 Cal. 431, 34 Pac. 128, 37 Am. St. Rep. 70; Aldrich v. Press Pr. Co., 9 Minn. 133 (Gil. 123), 86 Am. Dec. 84; Sweeney v. Baker, 13 W. Va. 158, 31

Other points made by the appellant relate to the admission or rejection of evidence, and to instructions given to the jury. We have examined them, but without finding therein anything upon which to ground appellant's argument for a reversal of the judgment. The judgment and order are affirmed.

concur:

We
ARDS, J.

LENNON, P. J.; RICH

CARTER v. HOLT et al. (Civ. 1766.) (District Court of Appeal, Second District, California. Nov. 16, 1915. Rehearing Denied by Supreme Court Jan. 13, 1916.)

1. TRUSTS 95-CONSTRUCTIVE TRUST-CONTRACT AS SUBJECT-MATTER.

Where, by fraud, defendant obtained money from plaintiff and therewith paid part of the purchase price of an automobile on a contract of sale to him on the installment plan, plaintiff could impress a constructive trust, arising from defendant's fraud, upon such contract, since in proper case there is no reason why a contract or lease, as well as any other property, may not be subject to a constructive trust.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 145-147; Dec. Dig. 95.]

In an action to impress a constructive trust upon a contract of sale of an automobile on the installment plan, the court's finding that when The court, among other things, found that the assignee of the contract presented the assignment to the seller, it recognized and approv- plaintiff was entitled to an equitable lien uped the same in writing, whereupon the assignee on the automobile to the extent of $625 so paid the installment due, and that thereafter the invested therein, and that Linney held the seller with knowledge that the money paid it by car charged with such lien. Judgment folthe purchaser was plaintiff's money, attempted to rescind the contract, was sufficient to nega-lowed, from which, and an order denying tive the allegation of the answer that the as- his motion for a new trial, Linney appeals. signee purchased the automobile from the company by an independent contract after it had repudiated the assigned contract.

7. TRUSTS 372 CONSTRUCTIVE TRUST SUBTERFUGE IN SALE-SUFFICIENCY OF EVI-ed that title to the automobile passed to

Holt, but that he merely held a contract in the form of a lease for its purchase. No ground is assigned for this contention, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes