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they must find that such felonious intent en. The judgment is reversed, and the existed in the mind of the defendant at cause remanded for new trial the time of the entry charged; or, to put it generally, although an inference may be DE WITT, J., concurs. drawn of an antecedent felonious intent by proof of subsequent acts or circumstances, still the right to make such inference does

(106 Cal. 107) not obviate a necessity of the jury being satisfied, beyond a reasonable doubt, by all

FIELD V. ANDRADA et al. (No. 19,461.) the facts and circumstances in evidence, (Supreme Court of California. Feb. 16, that such a concurrent intent actually ex

1895.) Isted, where but for its existence a ver

ACTION BY ADMINISTRATOR-SETTING ASiDB CON dict of guilty cannot be sustained. The

VEYANCE OF DECEDENT-CREDITORS. instruction was certainly calculated to mis- 1. An administrator cannot sue to set aside lead. It directed the jury to deliberate

a conveyance of land made by the decedent in

his lifetime, for the purpose of enforcing a trust upon the one essential element of the crime,

in the lands and compelling a reconveyance of the entering, to the exclusion of an equal the legal title. ly essential ingredient, the intent with which 2. To authorize an administrator to sue unthe entry was made. Whart. Cr. Ev. $

der Code Civ. Proc. & 1589, to set aside a deed

of his intestate as void against creditors, there 431; State v. Meche (La.) 7 South. 574.

must exist creditors to be paid, and there must Under the instruction given, there might be an insufficiency of assets to meet their de have been a perfectly lawful entry into the

mands.

3. A creditor, within section 1589, Code car at the time charged, without any in

Civ. Proc., must be one whose claim has been tent to steal at all; but if there was a allowed by the administrator or is evidenced subsequent larceny of the property from by a judgment. Ohm v. Superior Court (Cal.) another place, even after removal thereof

20 Pac. 244, followed. from the car, if such property had been In bank. Appeal from superior court, Los in the car, the defendant could, neverthe- Angeles county; Walter Van Dyke, Judge. less, be convicted of burglary in his orig. Action by D. W. Field, administrator of inal lawful entry into the car. It neeils the estate of Jose M. Andrada, deceased, no argument or authority to demonstrate plaintiff, against Manuel Andrada and Narthat such a conviction could not stand. If cissa Andrada, defendants. From a judg. the instruction had said that a mere en- ment for plaintiff, defendants appeal. Re try into the car, if such entry was with versed. an intent then and there to steal the coal, and if the jury believed from the evidence,

R. Dunnigan, for appellants. Wells, Mon

roe & Lee and E. A. Meserve, for respondbeyond a reasonable doubt, that the de

ent. fendant then and there committed the larceny, in manner and form as charged, and that the property, was at the time of VAN FLEET, J. This is an appeal from such entry in the car, the obvious errors the judgment upon the judgment roll. The complained of would have been cured. Un- demurrer to the complaint should have been der our statutes, and the construction put sustained. The complaint presents some upon them by the supreme court in the thing of a double aspect. The action is case of Territory v. Fox, 3 Mont. 440, and brought by the administrator of a deceas. Territory v. Willard, 8 Mont. 328, 21 Pac. ed person to set aside a conveyance of cer301, great care is necessary in charging tain real property made by the decedent the jury in burglary cases to preserve the in his lifetime. There are allegations which distinction between burglary and larceny, lend to the complaint the complexion of lest, without sufficient proof of felonious an action to enforce a trust in lands, and entry with intent to steal, but upon suffi- compel a reconveyance of the legal title; cient evidence of a larceny merely, the while there are other features of the comjury improperly convict of burglary. A plaint tending to give it the character of review of the testimony in this case im- an action under section 1589 of the Code presses upon us the importance of the dis of Civil Procedure, to set aside a convey. tinctions noted. The evidence of any felo- ance made by the intestate in fraud of his nious entry by the defendant in the car creditors. Treating it as an action of the was wholly circumstantial. There was am- former character, the plaintiff, administra-. ple room for a reasonable doubt by the tor, had no capacity to sue, and the de jury of any actual entry of the car at murrer on that ground should have been all by the defendant, although the proof sustained. Janes y. Throckmorton, 57 Cal. tending to establish a larceny was direct 387. In that case it was held that, wbile and clear. But, for lack of proper deti- the administrator is entitled to the posnition of the several essential parts of the session of the property of the estate, real crime of burglary, the motion for a new and personal, during the administration, and trial should have been granted.

can maintain an action for the recovery The other errors assigned are not well tak- of the possession of all such property, he has no general power, as such, to maintain is: “That the time within which claims an action to enforce a trust in lands or com- against the estate of the said Jose Maria pel a conveyance of the title to the prop- Andrada, deceased, can be presented by erty to himself, and that the statute does creditors thereof has not yet expired; that not confer upon him any such authority. as the plaintiff is informed and believes, That was an action brought by the heirs, and therefore alleges the fact to be, there and it was objected th it should have been are creditors of the said Jose Maria Andbrought in the name of the administrator. rada, deceased, who have claims against his It is there said: “The present action is estate, but which have not as yet been prebrought to establish a trust, and to compel sented, and who are entitled to present the defendant to convey the legal title to real same, the names of which said creditors and estate to the heirs at law of Janes. On his the amounts of said claims are now here by death his title, then an equity, passed to the the said plaintiff unknown, and he is unheirs, as was held in the cases last cited; able, therefore, to allege specifically the and unless it can be maintained, which we names of said creditors, or the amounts of think cannot be done, that the administrator said indebtedness." It is held in Ohm V. is entitled under our statute to have the Superior Court, supra, that, to constitute a title to the property conveyed to him, it "creditor," within the meaning of the statute, would seem clear that he is not the proper "he must be a creditor whose claim has been party to bring this action.” If the action be allowed by the administrator or is evidenced regarded as one brought under section 1589, by a judgment,”-citing Mesmer v. Jenkins, supra, to set aside a fraudulent conveyance 61 Cal. 153; McMinn v. Whelan, 27 Cal. 300. and convert the property into assets of the And in Michigan, under a statute similar estate, and subject it to the payment of the to our own, it is held that, until the estate creditors of the deceased,-and that such is has been charged with claims by allowance its intended character and purpose is prac. or judgment, "there is no basis for a bill tically conceded by respondent,—then the against a decedent's fraudulent conveyance complaint is fatally defective for want of in order to recover means to pay them.” facts, and the demurrer should have been O'Connor v. Boylan, 49 Mich. 209, 13 N. W. sustained on that ground. Section 1589 is 519. To the same effect are the cases of as follows: "When there is a deficiency Fletcher v. Holmes, 40 Me. 364, and Estes of assets in the hands of an executor or ad- v. Wilcox, 67 N. Y. 261. Within these prinministrator, and when the decedent, in hisciples, this averment does not bring the case lifetime, has conveyed any real estate, or within the statute. To the contrary, the any rights or interests therein, with intent matter averred shows that there did not to defraud his creditors, or to avoid any at the commencement of the action exist, right, debt or duty of any person, or has so within the restricted meaning of the statute, conveyed such estate that by law the deeds any creditors of the deceased, since it is or conveyances are void as against creditors, made affirmatively to appear that no claims the executor or administrator must com- had been presented against the estate. It mence and prosecute to final judgment any is not an instance of the mere defective proper action for the recovery of the same; statement of a requisite fact, but a stateand may recover for the benefit of the cred- ment from wbich it appears that the fact esitor all such real estate so fraudulently con- sential to recovery does not exist. veyed, and may also, for the benefit of the Nor does it appear from the complaint creditors, sue and recover all goods, chattels, that there is an insufficiency of assets in the rights or credits which have been so con- hands of the administrator. The language veyed by the decedent in his lifetime, what- of the pleading in that regard is: “That ever may have been the manner of such immediately upon the death of the said Jose fraudulent conveyance." The obvious in- Maria Andrada, deceased, the said defendtent and meaning of this section is that two ant Manuel Andrada, and one Marco Andthings must concur to authorize the admin- rada also, took possession of all the personal istrator to commence an action to set aside property belonging to the said decedent, and a deed of his intestate as void against cred- ever since have claimed, and now are claimitors: First, there must exist creditors to ing, the whole of said personal property, be paid; and, second, there must be an in- and are in possession thereof. Aud said sufficiency of assets in the hands of the ad- defendan Manuel Andrada and the said ministrator to meet their demands. Both of Marco Andrada claim said property as their these facts must coexist to bring the case own property, and a suit for the recovery within the limitations of the statute. Ohm thereof is now pending between the plaintiff V. Superior Court, 85 Cal. 545, 26 Pac. 244. herein against the said defendant Manuel If there are no creditors, or, there being Andrada and Marco Andrada, in the sucreditors, the administrator has sufficient perior court of the county of Los Angeles, assets of the estate in his hands to meet being case No. 17,632 of the files of said their demands, in either case he is without superior court, which suit is as yet undepower to maintain the action.

termined. That the said Jose Maria AndThe only allegation in the complaint as rada at the time of his death did not own to the existence of creditors of the deceased or possess any other property, real or per

error.

sonal, whatever, or at all, other than the that defendant attempted to steal or convert said real property hereinbefore described, the property clandestinely and feloniously, a and the said personal property aforesaid.”

case of disputed mutual account is presented,

for which a civil action is the appropriate remeFrom this averment it simply appears that dy. the personal property of the estate has been

In bank. Appeal from superior court, city taken by mere trespassers having no right

and county of San Francisco; F. W. La wler, thereto, and which it is bound to be pre

Judge. sumed the administrator, in the performance

Action by the people against O'Brien. From of his duty, will recover to the estate. For

judgment for plaintiff, defendant appeals. the purposes of this action, therefore, it is

Reversed. to be regarded as in his hands. It is not made to appear what the amount or value D. J. Toohy, for appellant. Atty. Gen. of that property is, and non constat that

Hart, for the People. it will not be amply sufficient to meet the demands of all creditors of the estate. The MCFARLAND, J. The defendant was confacts alleged are not in any essential the victed of the crime of embezzlement, and apequivalent of the substantive fact required | peals from the judgment and from an order by the statute to sustain the action. The denying his motion for a new trial. There respondent contends, in effect, that, while were undoubtedly some errors of law comthe facts adverted to are perhaps defectively mitted at the trial. For instance, the court stated, they are sufficiently alleged to avoid instructed the jury that the presumption of a general demurrer, and to authorize the innocence goes with the defendant "until the trial court to receive evidence of them. case is finally submitted to you.” This was With this contention we do not agree, for

"The presumption of innocence does the reasons stated. But, if respondent were not cease upon the submission of the cause correct in this view, his position would not to the jury.” People v. McNamara, 94 Cal. be bettered. These features of the com- 514, 29 Pac. 953. It was also error to allow plaint were also attacked specially upon the respondents, when putting in their evithe ground of uncertainty, and the demurrer

dence in chief, to show that the prosecuting upon that ground would necessarily have witness had certain money on deposit, in orto be sustained. The objection that the spe- der to strengthen or bolster her testimony in cial demurrer is obnoxious to the doctrine of anticipation of what they supposed appelKraner v. Halsey, 82 Cal. 209, 22 Pac. 1137, lant's evidence might be. There were one or and for that reason cannot be considered, is two other errors not necessary to mention. not well taken. While there is in the de- Whether any of these errors was of sufficient murrer a general and conjunctive assign- | importance to warrant a reversal we need ment of ambiguity, unintelligibility, and un- not determine, under the views which we certainty, the only specifications are on the take of the case. ground of uncertainty; and, properly con- We cannot find in the record sufficient evistrued, we think the demurrer should be re- dence to sustain a conviction of the crime garded only as a demurrer on the latter charged. Counsel for the people invoke the ground. The judgment is reversed, and the rule applicable to conflicting evidence, but cause remanded, with directions to the low- the conflicting evidence was as to facts er court to sustain the demurrer.

which, if taken as proven, do not make out

a case of embezzlement. The modern statWe concur: HARRISON, J.; GAROUTTE,

utory crime of embezzlement, which did not

exist at common law, is not a substitute J.; McFARLAND, J.

for imprisonment for debt, . and cannot be used to punish a party for a failure to com

ply with an ordinary pecuniary obligation. (106 Cal, 104)

It can be committed only when the confidenPEOPLE v. O'BRIEN. (No. 20,999.) tial relation of employer and employé exists, (Supreme Court of California. Feb. 15, 1895.)

and where the latter has feloniously con

verted money or other property of the forCRIMINAL LAW-PRESUMPTION OF InnoceXce-EM

mer which come into the hands of the em

ployé by virtue of said confidential relation. 1. The presumption of innocence does not

It is true that in the case at bar the appelcease upon the submission of the cause to the jury.

lant is an attorney at law, and the prosecut2. The prosecution in an action for embez- ing witness (a woman) was, as to some matzlement cannot introduce evidence in chief that ters, his client, and therefore there was as the prosecuting witness has money on deposit,

to those matters the relation between them in order to strengthen her testimony. 3. Where defendant was

above mentioned; but there was a variety

an attorney at law, and the prosecuting witness was, as to

of dealings between them, running through Bome matters, his client, the relation of em- several years, and a long, unsettled, and disployer and employé existed; but where a variety of dealings extended over a number of

puted account. There was conflicting evi. years, and there was a long, unsettled, and dis

dence as to how the account stood, each party puted account between them, with no evidence claiming a balance due; but it is clear that,

BEZZLEMENT.

there was no concealment on the part of ap

(22 Nev, 272) pellant as to any of his dealings with the SCHNEIDER v. BRAY. (No. 1,422.) prosecuting witness, and we discover no evi

(Supreme Court of Nevada. Feb. 15, 1895.) dence tending to show an intent to steal or

CONTESTED ELECTION-BALLOTS AS EVIDENCE. to convert her property clandestinely and

In a contested election case, where the feloniously. The specific charge in the in- number of votes cast for plaintiff and defendformation is that appellant embezzled a cer- ant, respectively, is in issue, the ballots furnish tain sum of $1,000, which she had intrusted

the primary and controlling evidence. him with. Her own testimony does not sup- Appeal from district court, Ormsby county; port that charge, for she swears only that Richard Rising, Judge. she left with him a certain note and mort- Action by Henry Schneider against C. E. gage for $1,000, which he had not returned Bray to contest defendant's election to the to her. She did not know whether or not office of county commissioner. From a judghe had collected the amount due on the mort- ment entered on an order dismissing the acgage. Perhaps it appears from appellant's tion, plaintiff appeals. Reversed. own testimony that he had received the

Alfred Chartz, for appellant. Torreyson & amount due on the mortgage, but the facts

Summerfield, for respondent. about the mortgage, as fairly resulting from that evidence, appear to be these: Appel

BONNIFIELD, J. Henry Schneider and lant had a subsequent lien on the mortgaged

C. E. Bray were candidates at the last genpremises, and, desiring to prevent a foreclos.

eral election for short-term county commisure, applied to the prosecuting witness to ad

sioner of Ormsby county. Upon the county vance sufficient money to buy the mortgage. She advanced $700, and other parties raised

commissioners of said county making an abthe balance of the $1,000, and the note and

stract of the votes, it appeared that the de.

fendant had the highest number of votes mortgage were delivered to appellant, either

cast for said office, and he received a certifiby her or with her consent. Appellant aft

cate of election therefor. This action was erwards loaned to or paid her some money,

brought in the district court of Ormsby counand also invested for her $900 in certain land

ty to contest the election of the defendant, in Alameda county. She denies that appel

on the ground of malconduct on the part of lant had authority to make said investment

the board of inspectors, or members thereof, for her in Alameda, and there is a conflict

of election precinct No. 2. Such malconduct of evidence as to the genuineness of a certain power of attorney from her to him, giv

is alleged, in the plaintiff's statement or com

plaint, to consist "in calling and counting ing such authority; but it is beyond dispute,

votes for and in behalf of said C. E. Bray and admitted, that he took the deed of the

which were in reality cast and should have Alameda land in her name, that he sent the

been called and counted for and in behalf deed to her, that she retained it, and that

of the plaintiff, and the said board have othshe afterwards sold the land and realized

erwise failed to count votes cast for and in from it about $800. All this was done by

behalf of said plaintiff, which all of said appellant openly; and, indeed, in all his

votes, if correctly called and counted, would transactions with the prosecuting witness

have been sufficient in number to elect said there was no attempt by him at conceal- plaintiff, Henry Schneider, to said office of ment. He loaned her money at times; and he did considerable business for her as an

county commissioner.” The defendant, by

his answer, denies each of the above allegaattorney at law in various matters for which

tions in the complaint. The defendant movhe seems not to have been paid, and for

ed the court below to quash the statement which he claims an indebtedness from her.

or complaint of the plaintiff, on the ground, All these transactions, taken together, pre

among others, that it "does not state facts sent merely a case of disputed mutual ac

sufficient to warrant the court in hearing counts, for which a civil action is the ap

any testimony or considering the same." The propriate remedy. They do not show that

motion was denied by the court. The plainfelonious intent which is a necessary element

tiff, to maintain the issues on his part, of. in the crime of embezzlement. Indeed, the

fered to introduce in evidence the ballots prosecuting witness herself seems to have

cast at election precinct No. 2, and asked to understood this prosecution to be in the

have them counted. The defendant objectnature of a civil action. She was asked,

ed to the introduction of the ballots, "on the “Did you ever ask Mr. Baggett to bring

ground that the same are incompetent, imsuit for the recovery of this money?" and

material, and irrelevant, and not tending to she replied: "I did. I don't know but this

prove any issue in the proceeding." The is a suit to recover this money.' The judg

court refused to admit the ballots in eviment and order denying appellant's motion

dence, on the ground that they are “utterly for a new trial are reversed.

immaterial," and ruled that the plaintiff

"must first prove that ballots were called and We concur: BEATTY, C. J.; GAROUTTE, counted for Bray which should have been J.; VAN FLEET, J.; HARRISON, J. called and counted for Schneider." The

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plaintiff, by his attorney, stated to the court: In the case at bar oral testimony would not “We have no such evidence, except the bal- have been competent to either prove or dislots themselves, which we now offer for that prove the correctness of the canvass of the purpose.” The court thereupon ordered the election inspectors, if such had been offereu. action dismissed, at plaintiff's costs. This That the court below erred in ruling out appeal is taken "from the judgment therein the ballots offered in evidence by the plainmade and entered, and ruling excluding evi. tiff is clear, not only upon reason and from dence offered by plaintiff, and order dismiss. the ordinary rules of evidence that the best ing the action"; and this ruling and order evidence of the contents of a writing is the are assigned as error. That the ballots had

writing itself, but from the authority of the not been tampered with, but remained the decided cases. That the ballots are the prisame as they were when cast, we under- mary and controlling evidence in all cases stand, is not disputed. No suggestion was of election contests based on the ground of made to the contrary in the court below, and alleged errors in the count made by the elecnone has been made in this court.

tion officers charged with the duty of canIf the members of the board of inspectors vassing the votes, we are of opinion, is well had been examined as witnesses as to wheth- settled. In the case of People v. Holden, er any ballots cast for Schneider had been 28 Cal. 123, the court say: “In an action called and counted for Bray, they would brought in the district court to try the right have, doubtless, testified that the ballots to an office, the list of ballots cast in any were counted as they were cast, and they precinct, and returned with the poll list and would have properly so testified if they were tally paper to the county clerk, is better evinot conscious of making any mistake in the dence of the number of votes cast at the calling and counting, and still an erroneous precinct, and for whom cast, than the tally canvass of the votes might have occurred to

list made from them by the officers of the the extent of changing the result of the elec- election." In the case of Coglan v. Beard, tion. While such testimony would be good 65 Cal. 58, 2 Pac. 737, the court adheres to and satisfactory evidence of the honesty of the rule laid down in 28 Cal., supra. In their intention, it would not be conclusive | Hudson v. Solomon, 19 Kan. 177, the court that the alleged errors in calling and count- refer to the case in 28 Cal. with approval, ing had not been committed. The evidence and say: "(1) As between the ballots cast at offered by the plaintiff was not to prove the an election and a canvass of the ballots by quality of the inspectors' intention, but to the election officers, the former are the priestablish his alleged facts. Upon the author- mary and controlling evidence. (2) In order ity of the Kneass Case, 2 Pars. Eq. Cas. 553, to continue the ballots controlling evidence, cited in respondent's brief, the voters them- it must appear that they have been preselves could not have been compelled to dis- served in the manner and by the officers preclose for whom they voted, even if their tes- scribed in the statute, and that, while in timony was competent, and the plaintiff had such custody, they have not been so exposed resorted to that character of proof. The to the reach of unauthorized persons as to court ruled to the effect that it was proper afford a reasonable probability of their havfor the plaintiff to prove that "ballots were ing been changed or tampered with.” In called and counted for Bray which should State v. Owens, 63 Tex. 261, and Owens v. have been called and counted for Schnei- State, 64 Tex. 500, the court maintain the der," but that he must do this before he

same rule. In Dorey v. Lynn, 31 Kan. 758, 3 would be permitted to introduce the ballots Pac. 557, the court say: "In an action in the which the plaintiff had offered for the pur- nature of quo warranto to determine which pose of proving these alleged facts. If such of two persons is entitled to a certain office, proof had been made aliunde, a resort to the the ballots cast at the election, where they ballots would not have been necessary or can be properly identified, are the best evimaterial. The public interests imperatively dence, and much better and more reliable require 'that the ultimate determination of than the mere abstract or summary of the such contest should in every instance, if pos- same made by the election officers." The sible, reach the very right of the case. It court in Searle v. Clark, 34 Kan. 49, 7 Pac. is the wholesome practice of the statute to 630, approve the rule in 31 Kan, and 3 Pac., invite inquiry into the conduct of popular supra. The supreme court of Alabama, in elections. Its aim is to secure that fair ex- State v. Judge of Ninth Judicial Circuit, 13 pression of the popular will in the selection Ala. 805, decided that “the ballots or votes of public officers, without which we can themselves are higher evidence of the numscarcely hope to maintain the integrity of our ber of votes cast than the certified lists of political systein. Minor v. Kidder, 43 Cal. votes sent by the managers at each precinct 236; Lord v. Dunster, 79 Cal. 478, 21 Pac. to the managers at the courthouse; and, if 865. The true result of the election is the either party received more votes than were object to be sought. The returns of the in- counted for him, the circuit judge should spectors of election are prima facie true, correct the mistake, and count the votes." but, when the returns are impeached, the In Kingery v. Berry, 94 Ill. 515, the court ballots are the primary and controlling evi- say: "When we have before us the very baldence of the true result.

lots that were cast by the voters, as between

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