Lind- to have correctly stated the law, were pointed to the purpose only of emphasizing and laying stress upon matters which were, by other instructions given by the court, very fully stated to the jury. yard he first called to Lindstrum. strum heard the call, but did not go farther than his front gate. Cassou drove the animals out of Chandler's yard and left the place. Lindstrum testified that, when he came to his front gate in answer to Chandler's call, Joe Rivera, the appellant, was there seated upon a horse; that they exchanged greetings; that Rivera continued on his way; and that there was the noise of something proceeding ahead of him. Witness Andrade, who lived about one mile from the Riveras, on the same night and at a time not far from that mentioned by Chandler in his testimony, hearing the barking of a dog, went out into his front yard and there saw this appellant and Cassou driving two cows. The animals had stopped at a watering trough that stood by the roadside. At a later date a man named Burns shipped a carcass of beef to Lapham, a butcher at Lancaster. The witness Andrade testified that some time after the alleged theft of the heifer he was present when Harry Burns reported to appellant that "they" had found the hides in the lake, and that Rivera had replied to him, "They won't know who put them there, anyhow." In the face of this testimony, the claim that there was a lack of sufficient evidence to warrant the jury in convicting impresses us with but little force. We think that, upon the state of facts, as the testimony for the prosecution presented them, there was ample evidence to show the commission of the crime alleged and the participation of this appellant in it. It is said by counsel in the briefs that it is altogether improbable that Joe Rivera and John Cassou could have driven the cattle from the place where Babcock left them, a distance of seven or eight miles, within the period of time from sunset or thereabouts until they were seen at Chandler's and Andrade's places. The witnesses in this case, as is usual in courtroom experience, did not attempt to state the time exactly, and, even though they had, the question as to the probability of the cattle having been driven the distance mentioned was one peculiarly for the jury to pass upon. No such state of improbability is presented by the evidence as to warrant this court in interfering with the verdict on that ground. [2] We find it urged also in the brief of appellant that the court improperly allowed testimony of the selling of the carcass of an animal or animals by Burns to Lapham. We find that objection was made to but little of this testimony, and that the main facts of the occurrence adverted to were given without any protest being heard from the appellant. [3] Some complaint is made on account of the refusal of the court to give certain instructions offered by the appellant. Those instructions, in so far as they may be said We have given no attention to claims for error which are not supported by argument in the briefs. It seems clear enough that on the merits the case against appellant was fairly presented, and that no error was committed which may be said to have produced a miscarriage of justice. The judgment and order are affirmed. We concur: CONREY, P. J.; SHAW, J. (28 Cal. A. 786) POLLOK v. EVENING HERALD PUB. CO. (Civ. 1774.) (District Court of Appeal, Second District, California. Nov. 13, 1915.) 1. LIBEL AND SLANDER 86-WORDS NOT ACTIONABLE PER SE-INNUENDO. Where defendant published an article saying that plaintiff's theater manager was guilty tioning the name of the theater, but not speof immoral conduct, the charge specifically mencifically referring to the plaintiff, nor susceptible of a meaning injurious to him; the could not supply to them a meaning which they words were not actionable, since the innuendo of themselves did not contain. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 205-208; Dec. Dig. 86.] 2. LIBEL AND SLANDER 32 GENERAL DAMAGE-WORDS NOT LIBELOUS PER SE. Where the words used were not libelous per se, merely alleging that the manager of the plaintiff's theater was guilty of immoral conduct, no general damage could be shown, since trinsic circumstances set forth by way of inthe injury suffered, if at all, was due to the exnuendo. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 112; Dec. Dig. 32.] 3. LIBEL AND SLANDER 89 WORDS AC TIONABLE WORDS NOT LIBELOUS PER SE. Where an alleged libelous article merely alleged that the manager of plaintiff's theater was guilty of immoral conduct, but made no specific reference to the plaintiff, and the complaint failed to charge any special damage, such as loss of patronage at the theater, no recovery could be had, since special damage must be shown to warrant recovery for words not actionable per se. Slander, Cent. Dig. §§ 213, 214; Dec. Dig. [Ed. Note.-For other cases, see Libel and 89.] Appeal from Superior Court, Los Angeles County; Charles Wellborn, Judge. Action by Fred A. Pollok against the Evening Herald Publishing Company, a corporation. From a judgment for defendant upon an order sustaining his demurrer to the third amended complaint, plaintiff appeals. Affirmed. Jesse A. Gyger and Wesley H. Beach, both of Los Angeles, for appellant. Denis & Loewenthal, of Los Angeles, for respondent. SHAW, J. Action for libel. Plaintiff prosecutes this appeal from a judgment rendered in favor of defendant upon an order of court sustaining the latter's demurrer, both general and special, interposed to the third amended complaint. It appears from the complaint that on October 21, 1912, plaintiff became the lessee and manager of a place of amusement in the city of Los Angeles, known as the Princess Theater; that at that time defendant was a corporation engaged in the publication of a newspaper of general circulation, known as the Los Angeles Evening Herald; that on November 14, 1912, defendant published in the regular issue of said newspaper an article as follows: "Theater Manager Accused in Court. Girl Says George E. Ryan Forced Her to Accept His Attentions. [1] It must be conceded that as to plaintiff, to whom the article made no reference, the language thereof is not actionable per se. Recognizing this fact, plaintiff seeks, by way of innuendo, to show that by the article defendant intended, and was understood to intend and mean, to charge him in effect with being an accomplice of Ryan in the commission of the misdeeds imputed to the latter. From no angle, in our opinion, is the language used susceptible of such meaning or application. As said by Lord Kenyon in a very early case: "The injury is much too remote to be the foundation of an action." Ashley v. Harrison, 1 Esp. 48. "If the words before the innuendo do not sound in slander, no meaning produced by the innuendo will make the action maintainable, for it is not the nature of an innuendo to beget an action." Grand v. Dreyfus, 122 Cal. 58, 54 Pac. 389. "May Thomas, whose stage name is Ladene Earl, who several days ago swore to an affidavit While it may serve to point a meaning to charging Guy Eddie, city prosecuting attorney, with forcing his attentions upon her, appeared precedent matter, it can never be resorted in Judge Wilbur's court this morning as prose- to for the purpose of establishing a new cuting witness against George E. Ryan, manager charge. At most, the article erroneously of the Princess Theater. describes Ryan's calling as manager of the Princess Theater. Quoting from Odgers on Libel and Slander (5th Ed.) p. 134, it is said: "Where the words can bear but one meaning, and that is obviously not defamatory, then no innuendo or other allegation on the pleadings can make the words defamatory. parol evidence is admissible to explain the sence of any evidence to show that in the case meaning of ordinary English words, in the abbefore the court the words do not bear their usual signification." "According to the testimony of Miss Thomas, Ryan contributed to her delinquency. She stated that she was employed by Ryan as a chorus girl at the Princess and that two days after she went to work he told her that she would be discharged unless she accepted his attentions. She also stated that he promised her a raise in salary provided she would look with favor upon his advances. "According to Deputy District Attorney H. S. G. McCartney, Ryan has made a business of forcing his attentions upon girls working in the chorus. He avers that when Ryan's trial is called he will produce at least six girls who have complained to him of Ryan's treatment." By way of innuendo, it is then alleged that by the publication of said article defendant intended to and did charge, and by the readers of said paper was understood as charging, that Ryan was the manager of said theater at the time of the publication of the article, to wit, November 14, 1912, and that Ryan was and had been for some time, as such manager, in the employ of plaintiff, who had allowed him as his agent to employ chorus girls in said theater, and that plaintiff had allowed said Ryan to act in an indecent, outrageous, and criminal manner in the course of the performance of his duties as plaintiff's manager, and that plaintiff was a person of low character, and allowed his business to be operated in a low and criminal manner. It is further alleged that plaintiff had never employed Ryan in any capacity, and that at no time subsequent to said October 21, 1912, when plaintiff acquired the Princess Theater, had Ryan been manager thereof; that said publication, as understood by the general public and by defendant intended to be understood, exposed plaintiff to hatred, contempt, and ridicule by imputing to him a low and base character similar to that of an owner of a brothel; "that by reason of the publication aforesaid plaintiff was thereby injured in his theatrical business to his damage in the sum of $15,000." No [2] Moreover, while it is alleged that the article was published for the purpose of and did damage plaintiff and injure him in his business and calling, the article itself makes it apparent that no general damage could have been sustained. This for the reason that, as stated, the language used was not libelous per se, the alleged injury suffered being due solely to the extrinsic circumstances set forth by way of innuendo. * [3] It appears to be the rule that "in order to maintain an action upon words which are not libelous per se, the plaintiff must have suffered some special damage, and the recovery is limited to compensation therefor." 18 Am. & Eng. Ency. of Law, p. 1085; Harris v. Burley, 8 N. H. 216; Hirshfield v. Bank, 83 Tex. 452, 18 S. W. 743, 15 L. R. A. 639, 29 Am. St. Rep. 660. Such damage might be predicated upon the loss of patronage and attendance upon entertainments given by him at the Princess Theater. There is nothing in the complaint, however, showing any falling off in such attendance, nor any allegations upon which special damages could be predicated. Our conclusion is that, since the article was not libelous in itself, no recovery could be had thereon for the general damages prayed for; and, while plaintiff might have alleged facts upon which to base a claim for special damage, no such averments were made, and therefore the complaint states no cause of action for the re covery of such damage. Newbold v. Bradstreet & Son Co., 57 Md. 38, 40 Am. Rep. 426; Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 354, 5 L. R. A. 555; Wilson v. Fitch, 41 Cal. 386; Harris v. Burley, supra; Dun v. Maier, 82 Fed. 169, 27 C. C. A. 100. The judgment is affirmed. We concur: CONREY, P. J.; JAMES, J. (28 Cal. A. 784) NEWELL v. NEWELL. (Civ. 1537.) (District Court of Appeal, Second District, California. Nov. 13, 1915.) 1. DIVORCE 255-ALIMONY-DECREE. Where the complaint of plaintiff wife suing for divorce alleged that she and defendant had contracted to settle their property rights, whereby defendant agreed to pay plaintiff, as alimony, the sum of $75 per month during her life, or until she should remarry, praying that defendant be required to pay plaintiff such sum, a decree ordering that defendant pay such sum monthly, until the further order of the court, for the support of the plaintiff, was not open to attack on the ground that the relief granted was without the issues tendered and prayed for. [Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 722-724; Dec. Dig. 255.] 2. DIVORCE 240-ALIMONY-DECREE. Where plaintiff wife, suing for divorce, alleged a contract settling the property rights of the parties, whereby the husband agreed to pay $75 a month alimony, praying that he be required to pay her that sum monthly as alimony, the decree ordering that defendant pay $75 per month until the further order of the court, the amount to be for the maintenance and support of plaintiff, even if defendant were bound both by the order and the agreement to pay the amount, so that upon default plaintiff might have concurrent remedies in enforcing payment, the decree was not improper as effectuating a double award. [Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 675-678, 680; Dec. Dig. 240.] Appeal from Superior Court, Los Angeles County; Charles Monroe, Judge. Action for divorce by Kate Elizabeth Newell against William D. Newell. Judgment for plaintiff, and defendant appeals. Affirmed. Jones & Weller, of Los Angeles, for appellant. K. B. Campbell, of Los Angeles, for respondent. SHAW, J. [1, 2] This was an action for divorce. In addition to the grounds therefor, plaintiff alleged that she and defendant had entered into a contract in writing whereby they had settled and adjusted all their property rights, making a division of all community property belonging to them, and whereby, among other things, defendant agreed to pay plaintiff as alimony the sum of $75 per month during her life, or until she should remarry. The prayer of the complaint was: "That the bonds of matrimony heretofore and now existing between herself and defendant be to the plaintiff the sum of $75 on the first day of dissolved, and that defendant be required to pay each and every month during her life, or until she shall remarry." To this complaint defendant made default, and upon the trial of the case the court found: "That a divorce ought to be granted as prayed for in said complaint, and that the defendant pay $75 per month for the support and maintenance of plaintiff as hereinafter directed." The appeal is prosecuted from that part of the decree wherein: It is "ordered and decreed that defendant William D. Newell pay to plaintiff on the first day of each and every month, beginning on the 15th day of November, 1912, the sum of $75 per month, until the further order of this court; the said sum of $75 to be for the maintenance and support of plaintiff, Kate Elizabeth Newell." As we gather from appellant's argument, his contention is that the court went outside of the complaint and beyond the allegations thereof in ordering that defendant pay alimony to plaintiff; that, since the complaint alleged an agreement for a division of the community property and under which defendant had agreed to pay plaintiff the sum of $75 per month as alimony, the effect of the decree is to require defendant to pay the $75 per month alimony as ordered by the court, leaving him bound under his contract with plaintiff to pay her an additional $75 month, making in all $150 per month. The prayer of the complaint was that defendant be required to pay plaintiff the sum of $75 per month alimony, and the decree and order are in strict accordance with the prayer of the complaint. Defendant therefore had due notice of the specific relief demanded by plaintiff, and hence, since the complaint alleged his agreement to pay the same, cannot say the relief granted for. Nor do we see any merit in the conwas without the issues tendered and prayed tention of appellant to the effect that he is bound by his contract to pay $75 per month as alimony, and also bound by the decree to pay an additional $75 as alimony. Conceding that he may be bound by both the order and agreement to pay said sum, and upon default plaintiff might have concurrent remedies in enforcing payment, nevertheless the payment of $75 per month would not only satisfy his obligation existing by virtue of the agreement made with plaintiff, but at the same time satisfy the obligation imposed upon him by the order and decree made in accordance with the terms of the agreement and pursuant to the prayer of the complaint. The judgment is affirmed. We concur: CONREY, P. J.; JAMES, J. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (28 Cal. A. 792) FEOPLE v. CANFIELD. (Cr. 415.) (District Court of Appeal, Second District, California. Nov. 15, 1915.) which real estate it was represented had been conveyed to one Earl M. McLaughlin, and that $7,000 had been paid upon the principal of said note, and $350 paid on account 1. FALSE PRETENSES 31- INDICTMENT of interest accrued thereon, all of which repSUFFICIENCY-STATUTE. Under Pen. Code, § 952, requiring a statement of the particular circumstances of the offense when they are necessary to constitute an offense, where an indictment for obtaining money by false pretenses described no natural or causal connection between the false representations alleged and the delivery of the property to defendant, such indictment was demurrable, since an indictment for the offense must show that the property was obtained by means of the false pretenses alleged, so that, when no natural connection appears between the pretense and the delivery of the property, such additional facts as are necessary to show the relation must be alleged. [Ed. Note.-For other cases, see False Pretenses, Cent. Dig. §§ 38-41; Dec. Dig. 31.] 2. FALSE PRETENSES 31 INDICTMENT SUFICIENCY. There may be averments in an indictment for obtaining money by false pretenses from which the connection between the pretense and the obtaining of the property can be inferred, so that the indictment is sufficient without direct averment of the connection. [Ed. Note.-For other cases, see False Pretenses, Cent. Dig. 88 38-41; Dec. Dig. 31.1 3. INDICTMENT AND INFORMATION NECESSARY CONTENT. 60 - An indictment or information must set forth all the facts and circumstances necessary to constitute the crime sought to be charged, as such matters cannot rest in presumption. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 182, 266, 267; Dec. Dig. 60.] resentations so made to said persons, it is alleged, were at the time made, false, and known by defendant to be false and untrue; "that by reason of the aforesaid false and fraudulent representations and pretenses, so made as aforesaid by the said Leonard C. Canfield to the said Caroline Schertz, Flora B. Schertz, Ernest H. Lockwood, and the Title Insurance & Trust Company, a body corporate, the said Caroline Schertz, Flora B. Schertz, Ernest H. Lockwood, and the Title Insurance & Trust Company, a body corporate, relying upon the said false representations and pretenses, and believing same, were thereby induced to, and on the 3d day of September, 1914, did, at and in the county of Los Angeles aforesaid, pay over and deliver to the said defendant, Leonard C. Canfield, $2,739.20 lawful money of the United States of the moneys and personal property of them, the said Caroline Schertz, Flora B. Schertz, Ernest H. Lockwood, and the Title Insurance & Trust Company, a body corporate, and they were and each of them was thereby then and there defrauded out of said sum of $2,739.20 of the personal property" of said persons. [1] In addition to the general demurrer, it was also alleged that the indictment did not conform to the requirements of sections Appeal from Superior Court, Los Angeles 950, 951, and 952 of the Penal Code, and that County; Gavin W. Craig, Judge. Leonard C. Canfield was indicted for obtaining money by false pretenses, and from a judgment sustaining his demurrer, the people appeal. Affirmed. U. S. Webb, Atty. Gen., Robert M. Clarke, Deputy Atty. Gen., and Tracy C. Becker, Deputy Dist. Atty., of Los Angeles, for the People. Paul W. Schenck, of Los Angeles, for respondent. SHAW, J. Defendant was indicted for obtaining money by false pretenses. His demurrer, interposed upon both general and special grounds, was sustained, and from the judgment following such ruling, the people appeal. it was not direct and certain, in that it could not "be determined what, if any, causal connection there is or was between the alleged false representation, and the parting with money by any one, if any was parted with." It appears the trial court deemed the indictment obnoxious to the ground last stat ed. In thus sustaining the demurrer the court followed the case of People v. Kahler, 26 Cal. App. 449, 147 Pac. 228, wherein this court, in discussing a like objection urged against an information, said: "It is merely alleged that defendant, knowing the same to be untrue, falsely represented to Richard J. Cogan that he had contracts for furnishing orchestras to certain cafés and theaters; that Cogan, believing the representations to be true, and relying thereon, paid and delivered to defendant the sum of $75. For what purpose is not disclosed. Conceding the representation made by defendant to have been false, there is no causal connection between the payment of the money and the representation. We are unable to perceive any connection between the alleged false representation and the paying or giving to defendant the $75, such representations should have been induced. nor how, in the absence of further allegations, or were calculated to induce, Cogan to pay defendant $75 in money." The indictment is quite lengthy; the substance thereof being that defendant, with intent to defraud Caroline Schertz, Flora B. Schertz, Ernest H. Lockwood, and Title* Insurance & Trust Company, a corporation, out of their, and each of their, money, represented that he was Helmer E. Rabild, the owner and legal holder of a certain promissory note of the face value of $10,000, made by one Justin E. Cook to him, said Helmer E. Rabild, payment of which was secured by a mortgage duly executed by said Cook upon certain real estate in Los Angeles county, We deem the language there used likewise appliable here. For aught that appears to the contrary, defendant retained and still holds the note. Then for what purpose was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 154 P.-3 the money paid over and delivered to him?, the court cannot indulge in the presumption It is left entirely to conjecture. In the that acts were committed which constitute absence of any allegation to that effect, we a crime. The prosecuting witnesses herein cannot assume the prosecuting witnesses may by reason of such representations have 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. Measured by this prothe representation that he was Rabild is as vision, the indictment is insufficient, since inconceivable 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. (28 Cal. A. 766) PEOPLE v. TURNER. (Cr. 592.) (District Court of Appeal, First District, Cal 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. ifornia. Nov. 12, 1915.) CRIMINAL LAW 1186-APPEAL and Er BOR-HARMLESS ERROR-STATUTE. Under Const. art. 6, § 42, providing that no judgment shall be set aside in any criminal case unless the court shall be of opinion that the error complained of resulted in a miscarriage of justice, in a prosecution for libel, where, 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 answer in the superior court to a charge of libel, fixing his bail, in contravention of Pen. Code, $ 872, providing that, if it appears on examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty, the magistrate must make or indorse on the complaint an order signed by him to that effect, it not appearing that defendant was injured by the failure of the magistrate to make the required indorsement upon the complaint before the information was filed, judgment of conviction after fair trial will not be set aside for the omission. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3215-3219, 3221, 3230; Dec. Dig. 1186.] CRIMINAL 2. LIBEL AND SLANDER 145 [Ed. Note.-For other cases, see Libel and CRIMINAL [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 Where a newspaper proprietor published from which such facts may be fairly deduced, a libel in the form of an oath alleged to be |