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, induced to pay their money to defendant in consideration of a transfer by him to them of this promissory note and mortgage. Conceding the representations were, as believed, all true, why should they induce these persons to give their money to Rabild? That they delivered the money to him relying upon the representation that he was Rabild is as inconceivable as that they should have paid it to him because of a false representation that he was Dr. Cook and had been to the north pole.

"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.

been induced to pay the money over to defendant as a contribution to some charitable object, in which case we do not mean to say it would not constitute the offense charged. Section 952, Penal Code, requires a statement of the particular circumstances of the offense when they are necessary to constitute a complete offense. vision, the indictment is insufficient, since Measured by this proit fails to disclose any natural or causal connection between the false representations alleged and the delivery of the property to defendant.

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.)

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.

CRIMINAL LAW 1186-APPEAL and Erifornia. Nov. 12, 1915.) ROR-HARMLESS ERROR-STATUTE.

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.

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 [2] While such facts should be directly of justice, in a prosecution for libel, where, the error complained of resulted in a miscarriage pleaded, nevertheless there may be averments at the conclusion of the preliminary hearing, from which the connection between the pre- the magistrate merely announced and caused to tense and the obtaining of the property can be entered in his docket, without signing it, an be inferred, as in the case of People v. order that the defendant should be held to anDonaldson, 70 Cal. 116, 11 Pac. 681; where fixing his bail, in contravention of Pen. Code, swer in the superior court to a charge of libel, the defendant was charged with false pre- $ 872, providing that, if it appears on examtenses in obtaining from one Spence certain ted, and there is sufficient cause to believe that ination that a public offense has been commithogs by falsely pretending to Spence that the defendant is guilty, the magistrate must he, the defendant, had in bank a certain summake or indorse on the complaint an order 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.

Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec.
[Ed. Note.-For other cases, see Criminal
Dig. 1186.]

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 PROSECUTION FRATERNAL Order.

145 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 charged 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.

In a prosecution for libel, where the court, in the presence of the jury, stated that the publication might fairly be interpreted to state that all persons admitted to the fourth degree of a fraternal order had taken the published oath, which was libelous, and then explained to the jury that the remarks were not directed to them, but solely to counsel incidentally to the denial of a motion to dismiss, repeatedly admonishing the jury thereafter that they were not in any way to be influenced in reaching their verdict | by the court's observations, that they were the sole judges of the facts, and that the interpretation of the language of the publication was a matter for them, the error in the court's statement was harmless.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. 11662.]

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

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.

[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 within 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:

It would seem that a mere statement of the published oath, coupled with an averment that it was false and malicious, would by sufficient to bring the publication within the terms of section 248 of the Penal Code. It would be a severe reflection upon the condition of the law of libel if it permitted to go uncondemned the publication of articles such as this, if false. It is clear that the published oath, if believed by the community to be taken by the members of the fourth degree of the Knights of Columbus, would have a tendency to expose those persons to hatred, contempt, or ridicule. While the publication may not, as claimed by the defendant, direct*ly impeach their honesty and integrity, it does in a most direct and vital way assail their loyalty as citizens by charging them with the taking of an obligation which is in 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 as a corpse or cadaver (perinde ac cadaver), but will unhesitatingly obey each and every command that I may receive from my superiors in the militia of the Pope and of Jesus Christ.

[3] At the time of the publication of the article in question it appears from the record 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 fourth degree of Knights of Columbus, but none of the prosecuting witnesses were such candidates. With the record in that condition defendant contends: First that the publication 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 therefore has no individual application, and that for these reasons the judgment of conviction cannot stand.

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

""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. ""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 abso- and dishonest motives, and as to them its lute monarchy. It is still more unbelievable 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. or not. The points presented by defendant Yet if such a citizen will but open his eyes to the condition existing under his very eyes, and might be urged with some force in a civil 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."

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 pub-
It was therefore not
lication was false.
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 reversed. At the time, upon attention being called to the apparent inadvertence, the court 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

will, of course, be presumed in this behalf that the jury followed the plain admonition of the court, and hence that in the matter suggested the defendant suffered no injury.

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 ed. No instruction was requested or given upon the subject of privileged communications of the sort defined by that section, but the record shows that the defendant was Other points made by the appellant relate relying upon this form of privilege in presenting his defense, and, since the jury are the to the admission or rejection of evidence, and judges of both the law and the facts in crim- to instructions given to the jury. We have inal libel cases, the defendant should have re-examined them, but without finding therein quested the specific instruction if he desired anything upon which to ground appellant's to have the jury more directly advised as to argument for a reversal of the judgment. The judgment and order are affirmed. 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 char- ARDS, J. acter. 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 jour-
nal or an individual who indulges in defama-
tory 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
fice is not a privileged communication. Jar-
man 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

We concur:

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-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.]

154 PACIFIC REPORTER

2. TRUSTS 371 GENERAL DEMURRER
CONSTRUCTIVE TRUST.

In an action to impress a constructive
trust upon a contract of sale of an automobile
on the installment plan, the allegation of the
complaint that an assignment was made to a
defendant by the defendant who fraudulently ob-
tained money from plaintiff without considera-
tion "after knowledge by (the assignee) that
said automobile had been purchased with plain-
tiff's money and funds,'
absence of special demurrer, as alleging that pri-
was sufficient, in the
or to the assignee's acquisition of the automo-
bile and contract of purchase he had knowledge
of plaintiff's rights.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 88 588-599; Dec. Dig. 371.]

3. TRUSTS 356-CONSTRUCTIVE TRUST-NOTICE TO ASSIGNEE OF RES-EFFECT.

Where the assignee of a contract of sale of an automobile on the installment plan took the same with knowledge that it had been paid for with funds fraudulently procured from plaintiff, his position as to money loaned or paid on the contract to the assignor thereof was that of a second lienor, subordinate to the rights of the defrauded party.

356.]

[Ed. Note. For other cases, see Trusts, Cent. Dig. 88 529-538; Dec. Dig. 4. ATTORNEY AND CLIENT 88. ATTORNEY TO CONDUCT OWN CASE.

-

RIGHT OF Where an attorney who was sued appeared in court by an attorney of record who conducted the case to a point where defendant proposed to cross-examine plaintiff's witness, it appearing that he would be a witness in his own behalf, the court properly denied him the right to crossexamine.

[Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 161-163; Dec. Dig. 88.] 5. APPEAL AND ERROR 1170 HARMLESS ERROR. REVIEW

Under Const. art. 6, § 42, providing that no judgment shall be set aside or new trial granted for any error in procedure, unless, after the court shall be of opinion that the error complained of resulted in a miscarriage of justice, where an attorney, defendant in an action, was represented by an attorney of record who conducted the case until defendant desired to cross-examine a witness, which leave was refused him because it appeared that he would testify in his own behalf, the action of the court, if erroneous, was not reversible error.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. 1170.] 6. TRUSTS 373-CONSTRUCTIVE TRUSTSSUIT TO ENFORCE-EFFECT OF FINDING.

(Cal.

that a new deal between the seller, the original
the price with money fraudulently obtained from
contractor for the car, who had paid part of
plaintiff, and his assignee, purporting to cancel
the assigned contract and to make a new con-
tract of sale direct with the assignee, was a mere
subterfuge.

Dig. §§ 600-603; Dec. Dig.372.]
[Ed. Note.-For other cases, see Trusts, Cent.

County; Chas. Monroe, Judge.
Appeal from Superior Court, Los Angeles

Action by Grace M. Carter against Ira W. Holt and others. From a judgment for plaintiff, and an order denying a motion for new trial, defendant Linney appeals. Judgment and order affirmed.

of Los Angeles, for appellant. Ralph W. Robt. T. Linney and Kendrick & Ardis, all Schoonover and Harriman, Ryckman & Tuttle, all of Los Angeles, for respondents.

means of fraud and false representations deSHAW, J. The complaint shows that by fendant Holt obtained from plaintiff the sum of $1,151.37; that he entered into a contract with an automobile company for the purchase of an automobile for the sum of $1,375, and of the money so fraudulently obtained from plaintiff he paid thereon $625; that thereafter, and before the filing of the ed with the embezzlement of said sum of complaint herein, Holt was arrested, chargmoney so procured from plaintiff; that he employed defendant Linney as attorney to defend him upon said charge of embezzlement, and to whom he assigned said contract for the purchase of the automobile upon which he had paid $625 of plaintiff's money; "that said assignment was made without consideration and after knowledge by said Linney that said automobile had been purchased with plaintiff's money and funds as aforesaid"; that the automobile is in the posseseral relief asked, the prayer of the complaint, sion of Holt and Linney. In addition to genso far as appellant is concerned, is that plaintiff be declared the owner of said contract cation of plaintiff's money in the purchase and automobile to the extent of the applithereof so made by Holt.

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 assignee of the contract presented the assignment to the seller, it recognized and approv- plaintiff was entitled to an equitable lien upThe court, among other things, found that ed 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 the purchaser was plaintiff's money, attempted car charged with such lien. Judgment folto 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.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 604-606; Dec. Dig. 373.] 7. TRUSTS 372 CONSTRUCTIVE TRUST SUBTERFUGE IN SALE-SUFFICIENCY OF EVI

DENCE.

In an action to impress a constructive trust on a contract of sale of an automobile on the installment plan, evidence held sufficient to show

[1, 2] Appellant's first contention is that terposed) fails to state facts sufficient to the complaint (to which no demurrer was inconstitute a cause of action against him. ed that title to the automobile passed to This for two reasons: First, it is not allegHolt, 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