sion for the Second Appellate District, held that that was a necessary allegation, and the board of supervisors could not legally pay the claim unless it was presented in the name of Dr. Lantorman as coroner of Los Angeles county, and the case was reversed after conviction. "In the Mahony Case, the court sustained the demurrer to an indictment similar to this, and the people appealed. Justice Angellotti, writing the opinion of the court, affirmed the decision of the lower court, and held that the indictment did not conform to the rules, as they conceived them to be, governing questions of fraud. The Carolan decision was reversed; the court simply remarking that it was decided without full consideration."

[4] The court then takes up the question whether, under existing statutes, the indictment was amendable, and reaches the conclusion that it is not, and hence ordered the matter resubmitted to the grand jury. The court then renews the discussion of the subject as follows:

"There are other objections made to the indictment. I assume that the indictment was prepared, as many of them are, in haste. There are a number of allegations in the indictment that are stated rather by way of recital which should be positively averred. The clearest language should be selected. It should appear beyond question that an offense has been committed, and that the acts upon which the prosecution rely are clearly and positively stated. Otherwise they amount to nothing more than recitals. I appreciate that it is no easy matter to draw an indictment under section 72 of the Penal Code of this state. It is the most difficult section to comply with that can be found in all the Code. There cannot be any doubt about that. It is not so difficult to draw an indictment involving ordinary allegations of fraud, but to meet the objections and the rules and the decisions that we find flying in our faces, under this section, it is not an easy undertaking.

proceeded against under section 72, he would
have been acquitted because the ordinance was
invalid; the board of supervisors would have
been charged with the knowledge of its inva-
lidity, and it would have been held to have been
an improper claim in, that case. Therefore he
could not have been held under that section.
The defendant was properly held under section
532, because he attempted to get money by
fraud as defined by section 532, Penal Code.
"It will be noted, upon a reading of the in-
dictment, so far as Kelley is concerned, that
there is no allegation that Butler, under whom,
presumably, he was working, knew that the
claim handed to him (Butler) or made out by
Kelley was false. For instance, I am working
on the road; I go to the roadmaster, as we com-
however, but that is immaterial-and say, 'I
monly call him-he is no longer roadmaster,
have worked seven days; I make affidavit to
it, and do whatever else is necessary to collect
the money; he takes it and he says, 'All right;'
and he presents it to the county. As a matter
of fact, I have only worked two days. He can-
not be convicted, of course, without knowledge
of such fraud; no one will contend otherwise;
he is guilty of no offense unless he knew that I
only worked two ways. It does not require a
citation of authorities to establish such an ele-
mentary principle of law. It is but common
sense.

"There is an allegation in the indictment that Butler himself put in a false claim, claiming to have worked more days than he actually worked. I think that would be a good allegation against Butler if the Kelley allegation was not there, for this reason: We are confronted with the well-recognized rule that, while Butler may be prosecuted for what he did, could you say under such an indictment, in the event of conviction, whether the conviction was had under the claim that he presented and which he knew was false because he presented it, or whether he was convicted for the presentation of the Kelley claim, of which he had no knowlThis rule has been edge as to its falsity? enunciated in this one case I have already cited "There is a decision in which this section of as the leading case, in the 121 U. S. Supreme the Code was discussed found in People v. How- Court Reports, written by Justice Miller. ard, 135 Cal. 266 [67 Pac. 148]. Instead of That was a case where the Revised Statutes of proceeding under section 72, the people there the United States made it a high misdemeanor proceeded under the section defining false pre- for any bank officer to make or cause to be tenses, section 532. It was a case of bounty made to the bank officers any false report, and on squirrels killed in Tulare county. The board so on and so forth, of its finances and standof supervisors of Tulare county in the presen-ing, etc. The cashier of that bank made a false tation of claims by its ordinance required that report. The very next section of the Revised the claimant accompany his claim with the Statutes required the officer of the bank, or the squirrels' tails. The defendant in that case, bank itself, to make a report to the Comptrolwith another, presented a claim of 12,000 squir- ler of Currency. It was made no crime to make rels killed in Alameda county. Before the board a false report to the Comptroller of Currency. paid the claim, the fraud was discovered. The The indictment charged that the bank cashier point was made that the ordinance under which made a false report to the officers and to the the board acted in authorizing the payment of a Comptroller of Currency. The court amended bounty on squirrels' tails was invalid. The the indictment by striking out to the Compsame authorities here cited were invoked by the troller of Currency,' and let it stand so far as defendant in the bounty case, and it was in- the bank was concerned. The Supreme Court sisted that those authorities applied to false of the United States said the lower court could pretenses. Justice Chipman distinguished the not do it. Of course, the United States procetwo, and said 'No.' He said the defendant, if dure is by indictment only. The court said it he did present the squirrels' tails, was guilty of could not tell which act he was convicted for; the offense with which he was charged. Why? he was just as likely to have been convicted Because it was an attempt to commit a fraud: for making a false report to the Comptroller it did not matter whether the ordinance was of Currency, which was not an offense, as for valid or not, if a man attempted to get money the commission of the actual offense." by a fraudulent transaction. He decided that the section was broad enough to cover the question of fraud, and the judgment was affirmed. "But, when we come to section 72, then a different question arises, as is very evident from a reading of the section: 'Every person who, with intent to defraud, presents for allowance or for payment to any state board or officer, or to any county, town, city, ward, or village board or officer, authorized to allow or pay the same if genuine'-'to pay the same if genuine.'

If

In his points and authorities the Attorney General insists that he is supported by People v. Carolan, 71 Cal. 196, 12 Pac. 52, in his contention that an indictment charging the offense in the language of the statute is sufficient. In People v. Mahony, 145 Cal. 108, 78 Pac. 354, the court said:

"The Attorney General, in support of this indictment, relies almost entirely upon the decision

PEOPLE v. BOJORQUEZ. (Cr. 392.) (District Court of Appeal, Third District, California. Nov. 21, 1917.)

* of 1. CRIMINAL LAW

"It is a sound principle that an indictment charging fraud of any kind should aver with particularity the facts relied upon to show fraud."

Touching the argument of the Attorney General that the indictment sufficiently charges an offense in presenting a false claim, as distinguished from a "false and fraudu-2. lent claim," the Supreme Court, in People v. Mahony, supra, said:

"It is unnecessary to determine whether the allegation that the claim was 'false' as well as fraudulent adds anything to the indictment. The particular objection that we are considering is not that the indictment does not state facts constituting a public offense, but that it does not conform to the requirements of sections 950, 951, and 952 of the Penal Code, in that it does not sufficiently set forth the acts constituting the offense,' and 'the particular circumstances

3. CRIMINAL LAW 811(6)-INSTRUCTION— to the evidence is: Did it establish the crime CONSEQUENCES OF VERDICT.

In a prosecution for embezzlement, wherein defendant testified that he intended to steal the horse and rig when he hired it, which, if believ-lowing instruction: ed, would have required an acquittal, it was proper for the prosecuting attorney to impeach defendant.

CHIPMAN, P. J. Defendant was convict-sufficiently disposes of the objection now ed of the crime of embezzlement. He appeals urged. Section 4%, article 6, of the constifrom the judgment of conviction and from the tution, has materially restricted the power of order denying his motion for a new trial. the court to grant new trials since the deciThere is no dispute as to the principal facts sion in People v. Maughs, 149 Cal. 262, 86 in the case. The sole question presented as Pac. 187.

924

[3] An instruction was given which, in ef- erty of another must have, at the time he takes fect, told the jury that they were not to be and drives away such property, the intent then and there to steal such property. In embezzleguided in arriving at a verdict by "the con- ment there must be no intent to steal at the time sequences to ensue, should you arrive at a the person takes and drives away the property. particular conclusion. You are to determine but the person must have come into lawful the fact of the guilt or innocence of the ac-ed the intent to fraudulently convert it to his possession of such property and thereafter form

cused according to your deliberate conviction
and the law has settled what the effect of
that fact shall be." We do not think this
instruction "directs the jury's attention to
the testimony of the defendant
and to view his evidence with caution," etc.,
as is urged. The instruction bears no such
construction.

* *

2

[4] We discover no objection to the following instruction:

No

"You are further instructed that, although as men you may sympathize with those who suffer, yet as honest men, bound by oath to administer judgment according to law and evidence, you should not act upon your sympathies without any proof; mercy does not belong to you. question of mercy, sentiment, or anything else resides with you, except the question of whether or not you believe from the evidence, and beyond a reasonable doubt, that the defendant is guilty." [5] The court gave the following instructions:

"I instruct you that in the state of California embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted; also every person intrusted with property as a bailee who fraudulently converts the same or the proceeds thereof to his own use is guilty of embezzlement. I instruct you that if you find from all the evidence that the defendant hired the personal property described in the information from J. V. Silverose, that he thereupon became a bailee of the property thus hired. The distinction between larceny and embezzlement is that in larceny the guilty party does not have the lawful possession of the property and in embezzlement the guilty party has the lawful possession of the property."

It is urged that these instructions do not correctly state the law as applicable to the evidence in this case, as they ignore the defense that defendant formed the intent to steal the property before he hired it or became bailee. Had the court failed to instruct the jury further upon the distinction between larceny and embezzlement as applicable to the evidence, and particularly the testimony of defendant that he intended to steal the

property at the time when it was placed in his custody, the instruction would be open to criticism. A person may hire a horse and become a bailee, and at the same time all the facts taken into consideration, a case of larceny might be made out. People v. Smith, 23 Cal. 280. But the court, at defendant's request, we think made the point quite clear to the jury by the following instruction:

own use. When a person intends from the beginning to steal, and does steal, the crime is larceny, and not embezzlement. Therefore I instruct you that if, in this case, the defendant had, at the very time he took and drove away the property described in the information, an intent to steal and did steal it, that he is not guilty of embezzlement, and your verdict in that event, and if you should find the fact so to be, should be not guilty."

[6] The court gave an instruction upon intoxication or drunkenness as forming no defense for the commission of crime. The objection seems to be that it was wholly unnec essary. There was some testimony as to defendant's condition in respect of sobriety at the time. We do not think that this feature of the case became material or called for an instruction. However, the instruction was

harmless.

[7] At defendant's request, the court instructed the jury as follows:

"A person accused of a crime is not compelled to testify at the trial of the case. The law permits him to remain silent, and if he does elect to remain silent, that circumstance cannot be used against him, nor alluded to upon the trial. However, in this case, the defendant has voluntarily gone upon the witness stand and has testified in his own behalf."

The court struck out what followed. This was not error, for the court had in a previous instruction substantially given an instruction covering the matter stricken out.

[8] Attention is called in defendant's brief to the cross-examination of defendant, and "to the several objections made to the questions propounded by the district attorney to the defendant while upon the witness stand They are contained," in his own defense.

says the brief, “on pages 53,” etc., mentioning consecutively the pages to page 79, inclusive. Such designation of alleged errors is not sufficient to require the reviewing court to consider them.

[9, 10] It is stated in the brief that:

"The questions propounded by the district at torney as to whether or not the defendant had theretofore been convicted of a felony were highly improper and prejudicial to his substantial rights."

It is further suggested that the testimony given by the defendant was substantially the same as that given by the prosecuting witness, and, as there was no conflict, "there was no necessity for the impeachment of "There is a crime known to the law as lar- the defendant." As to this latter statement, ceny. It is a crime very similar to embezzle- defendant overlooks the fact that he testiment, yet it is entirely distinct and different fied to his intention to steal the property at from embezzlement. Larceny is the felonious

stealing, taking, carrying, leading, or driving the time he received it. If the jury had be away the personal property of another. Embez- lieved him, the verdict must have been not zlement is the fraudulent appropriation of prop- guilty. It was quite within the right, if it erty by a person to whom it has been intrusted.

The difference between the crime of larceny and was not the duty, of the prosecuting attor the crime of embezzlement is this: In larceny ney to meet this statement by the impeach

the record shows that most of the matters The section of the Constitution above recomplained of in the pages mentioned are ferred to has, since its adoption, rescued recorded on pages 63 to 69, and occurred many cases from reversal; but it clearly out of the hearing of the jury and while never was designed to change or modify the they were temporarily excused. The jury rules of evidence, or to make good that which being called into court, the defendant was has always properly been held to be bad in asked as to whether or not he had been pre-instructions to juries as to the principles of viously convicted of a felony, and admitted law which are intended for their guidance it to be a fact. It was also brought out upon the challenge of defendant's counsel that defendant had been convicted of a felony on more than one occasion. Defendant having invited the proof of a second felony, he has no cause for complaint. Besides, we see no reason why, for purposes of impeachment, the prosecuting attorney should be limited to inquiry as to one felony.

in deciding questions of fact. There is, therefore, no less reason now for the strict observance of the rules of pleading, evidence, or instructions, or of any other of the requisites of procedural law in the trial of cases, than there was before the introduction of the provision mentioned into the organic law. Indeed, it is by no means inconceivable that criminal cases may arise which are found to

The judgment and the order are affirmed. be beyond the reach of the saving grace

I concur: BURNETT, J.

the broad and comprehensive mercy-of section 4% of article 6 of the Constitution, for the sole reason that such an instruction as the one under consideration is given. In a very close case upon the facts, a reversal for the reason stated might be required.

HART, J. (concurring). I concur in the judgment and in all that is said in the opinion of the Presiding Justice, but I desire to Thus I have written, not so much because reiterate disapproval of the instruction first considered, in which the court told the jury of the present case, which appears to have that, when a defendant testifies as a witness, been, generally speaking, well and fairly the jury may, in determining the weight to tried, but mainly because I believe that, at be attached to his testimony take into con- least so far as criminal cases are concerned, sideration "the fact that he is interested in the proposition cannot be too often stated the result of the prosecution," etc. A sim- that, while no case should be reversed for ilar instruction has been severely condemn-trivial, unsubstantial, technical errors, still ed by the courts of this state, and I think justly so. See People v. Maughs, 149 Cal. 253, 262, 86 Pac. 187; People v. Bartol, 24 Cal. App. 659, 666, 142 Pac. 510; People v. Borrego, 7 Cal. App. 613, 95 Pac. 381. And the instruction is no less objectionable now than prior to the adoption into the Constitution of the provision (section 42, art. 6)

that no judgment shall be set aside, or new trial granted, in any case, on any of certain indicated grounds, "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." While the instruction in this case is not quite as objectionable as the one denounced in the Maughs

Case, its vice, as is pointed out in the Bartol Case, is "in calling particular attention to the testimony of the defendant," whose interest in the result of the prosecution is obviously more deep-seated than could be that of any ordinary witness. The danger lurking in such an instruction lies in the probability that the jury may infer that the judge, having, out of all the testimony received in the case, selected that of the defendant for such special consideration in his statement of the law to them, is of the opinion that whatever the defendant may testify to in support of his defense should, because of his position in the case, be viewed with suspicion. The instruction should never be given in any case.

the legal rights of an accused should be, in the trial, just as carefully guarded and preserved now (as the law intends they shall be) as they were prior to the adoption of the section of the Constitution above named, and that, therefore, the condemnation of instructions or rulings upon evidence by the courts of last resort should in the trial of such cas

es be no less heeded now than before said

provision was adopted by the people.

Ex parte GOLDIE. (Cr. 417.) (District Court of Appeal, Third District, California. Nov. 19, 1917.) HABEAS CORPUS 38-USERS OF DRUGSRELEASE FROM HOSPITAL-REMEDIES.

of persons so far addicted to the intemperate use Pol. Code, § 2185c, relating to commitments of narcotics as to have lost the power of selfcontrol, provides that the court shall commit such person for a definite period, not to exceed two years, but provided that he may be paroled by the medical superintendent under the same rules and conditions that the insane are paroled, and that the state commission in lunacy shall be given the same power to discharge any person committed under this act as contained in section 2189 of the Political Code, upon the recommendation of the hospital superintendent, when satisfied that such person will not receive substantial benefit from further hospital treatment. Section 2189, as amended by St. 1915, p. 568, provides for discharge of insane persons whether the superintendent of the hospital so recommends or not, and authorizes, when he does not recommend, that insane person have a hearing before a jury as to the fact of his recovery. Held that, as section 2185c provides for release