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In Bank. Appeal from Superior Court, So working for Mr. Jacobs, a neighbor of the denoma County ; A. G. Burnett, Judge,

ceased, and he arrived at Jacobs' residence A. J. Grill was convicted of murder, and about midnight and stayed there the remainhe appeals. Affirmed.

der of the night, sleeping in a room by himSee 86 Pac. 613.

self. The following morning he went to his

Work without mentioning Pearse's death, or Ross Campbell, for appellant. U. S. Webb,

saying anything about any trouble at Pearse's Atty. Gen., and J. Charles Jones, for the

residence. The next morning Pearse was disPeople.

covered by the neighbors lying upon his bed

dead from a gunshot wound in the back part SHAW, J. The defendant was charged of the head. He was lying on his back, but with the murder of one W. S. Pearse. He

partly on his left side, facing towards the was convicted of murder of the first degree. front of the house, with the back of his His motion for a new trial was denied, and head toward the rear room, his head resting he was sentenced to death. He appeals from on a pillow. A double-barreled shotgun, with the judgment and order.

one barrel recently discharged, lay upon the 1. Certain statements made by the defend floor in front of the bed. The position and ant, wherein he admitted that Pearse re character of the wound indicated that the ceived his death wound from a shotgun which shot had come from the rear, and a witness defendant at the time held in his hands, he who saw the body as it was found testified claiming that the discharge was accidental, that "the shot came right from the rear, were introduced in evidence. It is urged that right square from the rear. It couldn't come there was no sufficient proof of the corpus from any other direction.” Five or six slits delicti aside from these admissions. This cut in the pillow a few inches from the head claim is evidently based on the assumption of the deceased, and apparently made by that the deposition of Mae Pearse, daughter shots from the gun, pointed in the direction of the deceased, was improperly admitted in leading from the partition door to the wound. evidence, and upon a consideration only of There were no powder marks on the pillow. the other evidence of the prosecution. We The nature of the wound, its location in the have concluded, as will hereafter be shown, back part of the head, the position of the that her deposition was properly admitted, body, the slits in the pillow, the absence of and with that evidence the proof of the cor powder marks, and the conduct and statement pus delicti is ample, without aid from the de of the defendant after the shooting, furnishfendant's admissions.

ed sufficient evidence of the fact that the At the time of the homicide Pearse, with deceased was killed by a shot from the dehis daughter, who was 14 or 15 years old, fendant's gun fired with criminal intent. was living in a small cabin consisting of two 2. The court, in its instructions, read to the rooms, one in front of the other, with a door jury section 1135 of the Penal Code, which is communicating between them. Grill had ar as follows: "Upon a trial for murder, the rived at the Pearse cabin the day before on a commission of the homicide by the defendant visit and had remained overnight, sleeping in being proved, the burden of proving circuma bed in the rear room. On the day of the stances of mitigation, or that justify or exhomicide, which was Sunday, Pearse and cuse it, devolves upon him, unless the proof Grill went hunting together, returning to the on the part of the prosecution tends to show cabin about seven in the evening. Pearse that the crime committed only amounts to then, according to the evidence for the prose manslaughter, or that the defendant was juscution, accused Grill of stealing some money tifiable or excusable." It is claimed that this which he said he had left in the house, and was error. The position of the defendant there was a quarrel between them which con is that this instruction is not applicable, extinued from time to time until about 9 o'clock, cept where the defendant admits the intention l'earse in the meantime having taken off his to kill and claims that it was in self-defense, clothes preparatory to going to bed. Some and that it was barmful because of the noise was made by a dog on the outside of plırase, “the commission of the homicide by the house, whereupon both went out of the the defendant being proved," which, it is house. Grill carrying a shotgun. The noise sa id, constituted an intimation or statement subsided, both re-entered the house, and by the court that the fact that the defendant Pearse apparently laid down upon the bed in intentionally fired the shot had been proven. which he usually slept. This bed stood in It is not the law that this instruction is apthe left-hand corner of the front room, with plicable only where the justification offered is the head toward the door leading to the rear that the killing was in self-defense. room. The quarrel continued after they re plies in any case where the defendant offers entered the house and presently a shot was evidence in mitigation of the offense, that is, heard. Grill came out of the house, saying to reduce the degree of the crime or in to the daughter that he had killed a skunk. justification, as that it was in self-defense or Thereupon he and the daughter, who had re in the lawful execution of a death sentence; mained outside, left the premises in a buggy or in excuse, as that it occurred by accident and drove to the residence of Mrs. Stoffal, and not design. The defense in this case was where the daughter remained. Grill bad been that it occurred by accident, and this, if

It al

proved, would have been an excuse for the homicide. The instruction was therefore applicable to the case. The phrase objected to was not inserted in the instruction as a statement by the court that the commission of the hom cide by the defendant had been proved. It was meant as an expression of a condition or event, upon which the succeeding part of the instruction would become applicable, and that is its true rhetorical meaning when considered in connection with the text. Its signification is the same as if the sentence began thus, "When, upon a trial for a murder, the commission of the homicide by the defendant has been proved," etc. Thus understood, it does not constitute a statement of the fact by the court. In People v. Tapia, 131 Cal. 617, 63 Pac, 1001, this instruction was given with some additions declaring the extent of the burden of proof cast upon the defendant. It was criticised in that case upon the ground that the jury might have understood the above-quoted phrase as a declaration that the fact referred to had been prored. The defendant in that case did not attempt to mitigate, justify, or excuse the homicide, but denied that he had committed the act. Consequently, it was said, "the instruction should not have been given, for it was entirely inapplicable." The evidence that Tapia did commit the homicide was said to be very weak and unsatisfactory. It was in view of this condition of the evidence and of the inapplicability of the instruction to the case that the court considered that the jury might have misconstrued the expression as a statement by the court with regard to the sufficiency of the evidence. In the present case the instruction could not have been so understood by the jury. Other instructions repeated frequently the proposition that the jury were the exclusive judges of the facts. They were told that they must not decide upon a preponderance of the evidence, but that the prosecution must show the defendant's guilt, and every fact essential to a conviction, beyond a reasonable doubt, and must prove the corpus delicti by competent evidence beyond reasonable doubt before they could consider the admissions of the defendant; that if they had a doubt whether or not Pearse was killed by the accidental discharge of the defendant's gun they must acquit the defendant; that the burden of proof was upon the prosecution, and if upon the proofs there was a reasonable doubt of his guilt remaining the defendant must be acquitted. In view of these instrutions it would be impossible for any jury of ordinary intelligence to have supposed that the instruction complained of was intended to state to them that the fact that the defendant had committed the homicide had been proven. See People v. Hawes, 98 Cal. 653, 33 Pac. 791.

3. Another instruction stated that "a witness willfully false in a material part of his testimony is to be distrusted in others." That this is a principle of the law of evi

dence, and one of the rules by which the court or jury must be guided in the consideration of the weight of evidence, cannot be disputed, for it is made so by statute. Code Civ. Proc. $ 2061. It has been repeatedly held by this court that the giving of such an instruction is not cause for reversal, and we adhere to the precedents thus made. People v. Dobbins, 138 Cal. 6:4, 72 Pac. 3:9; People v. Tibbs, 113 Cal. 103, 76 Pac. 901; People r. Wardrip, 141 Cal. 229, 74 Pac. 714; People v. Farrington, 140 Cal. 656, 74 Pac. 288; People v. Wong Bin, 139 Cal. 65, 72 Pac. 505; People v. Wilder, 134 Cal. 181, 66 Pac. 228; People v. Kelly, 146 Cal. 123, 79 Pac. 816.

4. Upon a former trial for the same charge the defendant was convicted of murder of the first degree with the penalty of imprisonment for life. A new trial was granted upon his own motion. It is now claimed that. where there is a charge of murder of the first degree and a conviction of murder of the first degree with the penalty of imprisonment for life, such judgment is a virtual acquittal of the character of murder sufficiently atrocious to justify the death penalty and is a bar to the infliction of the death penalty upon a retrial of the same charge. There is no foundation for such claim. It has been held that a conviction of murder of the second degree, upon the trial of a charge of murder of the first degree, is no bar to a subsequent conviction of the higher degree, upon a retrial of the same case granted upon defendant's motion. People v. Keefer, 65 Cal. 235, 3 Pac. 818; People v. Carty, 77 Cal. 216, 19 Pac. 490; People v. Gordon, 99 Cal. 232, 33 Pac. 901. Upon this exact point we need express no opinion. The discretion given to the jury to mitigate the punishment upon a conviction of murder in the first degree and inflict imprisonment for life only does not divide that degree of murder into two degrees, but merely reduces the punishment. The mere substitution of imprisonment for life for the death penalty is not a determination that any element of murder of the first degree is lacking. On the contrary, such a verdict cannot be given until all the facts necessary to constitute that degree of murder are established. The former conviction was not an acquittal of the first degree of murder, nor of any degree thereof. The instruction asked by the defendant to the effect that it was a bar against the infliction of the death penalty was properly refused.

5. A photograph of the front room of the Pearse cabin, taken six days after the homicide, was admitted in evidence after proof that the articles shown therein, including a shotgun lying on the floor, were, respectively. in the same position as when the body of Pearse was found the morning after the homicide. It is claimed that there was some incertainty in the evidence introduced as a foundation for the introduction of this photograph as to whether the gun was in exact

The trial seems to have been in all respects fair and regular.

The judgment and order are affirmed.

We concur: BEATTY, C. J.; ANGELLOTTI, J.; SLOSS, J.; LORIGAN, J.; HENSHAW, J.; MCFARLAND, J.

ly the same position when the photograph was taken as it was when first found after the shooting, and hence it is contended that the admission of the photograph was error. The theory of the defense was that after the discharge of the gun in defendant's hands he placed it on the floor of the front room in front of the bed, and the defendant so testified. There was nothing in the case which made its exact position at all important. A witness who saw it when first found testified that the photograph showed it in practically the same place. It was admitted as a diagram or illustration. The ruling was proper and is sustained by the following decisions: People v. Crandall, 125 Cal, 132, 57 Pac. 785; People v. Phelan, 123 Cal. 561, 56 Pac. 424; People v. Figueroa, 134 Cal. 161, 66 Pac. 202; People v. Mahatch, 148 Cal. 200, 82 Pac. 779.

6. The deposition of Mae Pearse, the daughter of the deceased, taken at the preliminary examination of the defendant, was admitted at the trial, over his objection that there was no sufficient proof that she could not with due diligence be found within the state. A witness testified that he knew that Mae Pearse was, at the time of the trial, in the home of the Boys' and Girls' Aid Society in Portland, Or. Another witness, who was a relative of hers, testified that he knew her; that to the best of his knowledge she was in Portland, Or.; that it was 9 or 10 months since he had heard from her; and that at that time she was in the Boys and Girls' Aid Society in Portland, and that the chief of police of Portland informed him of that fact. The sheriff's return on a subpæna showed that she was not found in Sonoma county. This evidence was somewhat weakened on cross-examination by showing that the relative's testimony as to her presence in Portland, Or., was based, in part at least, upon information received from the chief of police, and that the witness who testified positively that she was in Oregon had not known her while she was in California. Other circumstances were given, however, and the evidence as a whole was sufficient to sustain the de cision of the court that she was absent from the state at the time of the trial and could not be produced as a witness. People v. Lewandowski, 143 Cal. 576, 77 Pac. 467; Peo ple v. Reilly, 106 Cal. 650, 40 Pac. 13. At the time the deposition was read the whole of the evidence to show her absence had not been produced. This, however, was merely a matter of the order of proof which is always within the discretion of the court, within reasonable limits. The subsequent proof upon the subject cured any error that might have been committed in admitting the deposition before the foundation was fully laid.

No other objections to the regularity of the proceedings are made by the counsel for the defendant, and upon an independent examination of the record we perceive no error committed by the court against the defendant.

(151 Cal. 606) HALL V. JAMESON. (L. A. 1,905.) (Supreme Court of California. Aug. 9, 1907.

Rehearing Denied Sept. 5, 1907.) 1. BILLS AND NOTES-SIGNING AS TRUSTEEPERSONAL LIABILITY.

W. deeded land to J., as trustee, with power to mortgage_it. J. gave a mortgage beginning “I, J., as I am trustee" under a deed from W., by virtue of the power in said deed, in consideration of $2,800, convey said land, with the condition that if he pay to the said grantee said sum the deed, and a note signed by him, whereby he promised to pay said sum, should be void, and with the covenant that he would observe the terms of said condition. J. gave a note whereby he promised to pay the $2,800, signed "J., trustee." Held, that as the deed of W. gave no power to J. to make a personal promise on behalf of the beneficiaries or trustor, and as Civ. Çode, $ 2267, providing that a trustee is a general agent for the trust property, that his authority is such as is conferred on him by the declaration of trust and by this chapter, and none other, and that his acts, within the scope of his authority, bind the trust property to the same extent as the acts of an agent bind his principal, gives no such power, and as the note or mortgage contained no stipulation relieving him from personal liability or requiring the lender to look to the mortgaged property alone as security, he was personally liable on the note.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 7, Bills and Notes, 88 260-267.] 2. LIMITATION

OF

ACTIONS — ACCRUAL OF CAUSE OF ACTION-SALE UNDER POWER IN MORTGAGE-ACTION FOR BALANCE.

A note and mortgage provided that the sum borrowed should be paid in three years, with interest to be paid semiannually. The mortgage provided that on default in performance of any condition the mortgagee might sell the mortgaged premises at auction, on three weeks published notice, and out of the proceeds retain all sums secured by the mortgage. Held, that such sale and application of the proceeds had no effect to render due the balance of the debt, so that the statute began to run against an action therefor only from the end of three years after the giving of the note.

In Bank. Appeal from Superior Court, Riverside County ; J. S. Noyes, Judge.

Action by F. G. Hall against William H. Jameson. Judgment for plaintiff. Defendant appeals. Affirmed.

E. W. Freeman, for appellant. John G. North, for respondent.

SHAW, J. This is a suit upon a promissory note in the following words: "$2800. Boston, June 8th, 1897. For value received, I promise to pay to Nathaniel U. Walker, trustee under the will of Francis Jackson. for the benefit of Harriet M. Palmer, or order, two thousand eight hundred dollars,'in three years from this date with interest, to be paid semiannually, at the rate of five

per centum per annum, until this note is raneous understanding that Jameson was not paid in full. William II. Jameson, Trustee." to be held personally liable, but as this was This note was assigned to plaintiff before contradicted by other testimony and the findsuit. Judgnient was given for the plaintiff, ing is in faror of the plaintiff, we must disreand the defendant's motion for a new trial gard that testimony, even if we considered was denied. The defendant appeals from the it competent. judgment and order.

This contract by its terms purports to 1. It is first contended that the note is not make the defendant personally liable thereon, binding upon the defendant personally, but on and neither the context nor the circumstances ly upon him in his capacity as trustee, and that, proven are sufficient to change its effect in therefore, the personal judgment against him that particular. It has been held that where is erroneous. Prior to the execution of the a promissory note reading "we promise to note, one William L. Joy had executed a pay,” etc., is signed by the president of a deed conveying to the defendant, as trustee company subscribing his own name with the for certain stated purposes, a tract of land in addition of the words "Prest. Pac. Peat Coal Massachusetts. The deed empowered the de Co." and by the secretary of the company fendant, as trustee, "to mortgage said prop with the addition of the words "Sec. pro erty, or any part thereof, from time to time tem.," it is the note of the company and not for such suius, to such persons or corpora the personal obligation of the president and tions (and) upon such terms as he may deem secretary. Farmers' & M. Bank v. Colby, expedient," and gave directions as to the dis 64 Cal. 352, 28 Pac. 118. On the other hand, position of the money thus to be obtained. a note reading "we promise to pay," etc., In pursuance of this power the defendant and signed “D. IIassett. President," was held borrowed of Walker, the payee of the note, to be the personal liability of D. Ilassett. the sum of $2800, for which he executed the IIobson v. Ilassett, 76 Cal. 203, 13 Pac, 320, above note, and at the same time, to secure 9 Am. St. Rer. 193. The court in the latter its payment, he executed to Walker a mort case said: “There is nothing on the face of gage upon the Joy land. This mortgage, be the note to show that there was any principal ing part of the same transaction, must be back of the defendant. lIe signed his own read in connection with the note, and the name, and wholly failed to indicate, if he whole construed as one contract in order to had a principal, who or what the principal arrive at the true meaning of each. The was. The word 'president, which he added mortgage was in the common-law form, pur to his name must be regarded as a mere de. porting to convey the land to Walker as se scriptio personæ.” These cases perhaps sufficurity for the debt. It began thus: "Know ciently illustrate the rule applicable to conall men by these presents, that I, William H. tracts thus signed where the maker claims Jameson, as I am trustee under a certain exemption from personal liability on the deed from William L. Joy, * * * by virtue ground that he is an agent. If the facts in of the power in said deed contained and this case brought it within the rule applied in every other power me hereto enabling, in Farmers' & M. Bank P. Colby, supra, the consideration of two thousand eight hundred defendant would be exonerated. But it is dollars,

*

do hereby give, grant, bar not a similar case. In the Colby Case there gain, sell and convey unto the said Nathaniel was no question but that the president and U. Walker," etc., the land particularly de secretary had power to bind the company hy scribed. The condition was in part as fol contract, and to that extent at least it is lows: "Provided, nevertheless, that, if I, my different from the case at bar. Ju the lassett heirs, executors, administrators, or assigns, Case the decision went upon the ground that shall pay unto the grantee or assigns, the sum the contract of Hassett did not purport to of two thousand eight hundred dollars in bind any one but himself, and that, although three years from the date hereof, with in he did not so intend and was in fact acting terest thereon." etc..

* "then this for his principal, the contract could not be deed, as also a note of even date herewith, varied by parol evidence. This case is govsigned by mı?, whereby for value received, erned by the latter rule. The contract made I promise to pay the grantee or order the by Jameson consists of two distinct anel sopasaid principal sum and interest at the times rate parts—the mortgage on the land, and aforesaid, shall be void.” There followed a the promise and covenant to pay the money, covenant in these words: “And I hereby, for which the latter purported to bind the trustee myself and my heirs and assigns, covenant personally. The trust deel of Joy to Jameson with the holder or holders hereof to per gave the latter power only to mortgage the form and observe each and all of, the terms trust property. It gave no power whatever of the foregoing condition.” In explanation to make any promise or covenants to pay any of the meaning of the contract as affecting money on behalf of Joy or on behalf of the the personal liability of Jameson, evidence beneficiaries. With respect to the nortgage, was introduced to show that he obtained no | Jameson was acting solely as trustee, and personal benefit from the transaction, and could not act otherwise, for he had no personal that he was acting throughout solely in the interest in, or power over, the land. interest of the trustor and the beneficiaries. respect to the note and corenant, he was actThere was also testimony of a contempo- | ing solely in his own behalf, for he had no

authority thus to contract except for him There is nothing in section 2267 of the self. Where an agent makes a contract really Civil Code contrary to this conclusion. on behalf of his principal, but which pur is as follows: "A trustee is a general agent ports to be his promise and to bind himself for the trust property. His authority is alone, and he has not in fact any authority such as is conferred upon him by the derto make that particular contract for his laration of trust and by this chapter, and principal, the general rule is that the agent none other. His acts within the scope of will be personally bound by the contract, his authority, bind the trust property to the notwithstanding his lack of personal interest same extent as the acts of an agent bind his in the consideration. He will be conclusively principal.” This refers to the trust property presumed to have intended to bind himself. alone. His acts respecting that property, if This rule is particularly applicable where a authorized by the terms of the trust, bind trustee, in dealing with trust property, makes the property. Ile is to that extent an agent some personal promise to pay money in fur for the property and for the interested partherance of the trust, which he has no author ties. Consequently, the mortgage of the ity to make as trustee. In regard to such trust estate in this case was yalid; but nothcontracts he is a principal and must be pre ing in this section, nor in the deed of trust, sumed to have intended to act for himself gave him an authority to bind the trustor alone. The rule is thus stated by the Su or beneficiaries personally. preme Court of the United States in Taylor We are therefore of the opinion that the v. Mayo, 110 U. S. 330, 4 Sup. Ct. 147, 28 L. personal judgment against Jameson is supEd. 103: "When a trustee contracts as such, | ported by the evidence. unless he is bound, no one is bound, for he has 2. It is further claimed that the action is no principal. The trust estate cannot promise. barred by the statute of limitations. The The contract is therefore the personal under note and mortgage were executed in the state taking of the trustee. As a trustee holds the of Massachusetts, and therefore under subestate, although only with the power and for division 1, $ 339, Code of Civil Procedure, the the purpose of managing it, he is personally action would be barred two years after the bound by contracts he makes as trustee, even cause of action accrued. The action was bewhen designating himself as such. The mere gun on January 3, 1902. By the terms of use by the promisor of the name of trustee the note it did not become due until June or any other name or office or employment | 8. 1900, which was less than two years before will not discharge him. * * * If a trustee, the action was begun. The mortgage procontracting for the benefit of a trust, wants to vided that the sum borrowed should be paid protect himself from individual liability on in three years from its date, "with interest the contract, he must stipulate that he is not thereon, at the rate of 5 per centum per anto be personally responsible, and that the num, payable semiannually." It also conother party is to look solely to the trust es tained the following provision: “But upon tate." There is nothing in the note or mort the default in the performance of any part gage of Jameson that can be construed as a of the foregoing conditions, the holder or stipulation relieving him from personal lia holders hereof may sell the granted premises bility or requiring the lender to look to the

at public auction; such sale to be mortgaged property alone as security. The on or near the granted premises, or at the reference, in that part of the instrument op real estate exchange and auction board in the erating as a conveyance, to the fact that city of Boston, without notice or demand, Jameson was conveying as trustee, was prop except giving notice of the time and place of erly inserted therein for the purpose of desig sale once in each of three successive weeks in nating the source of the power by which he any one newspaper published in said Newton, was assuming to hypothecate the trust prop and may convey the same by proper deed or erty. It only indicates the character in which deeds to the purchaser.

* And out of he acted and the power which he possessed the proceeds of such sale or sales the holder in relation to the part of the contract which or holders hereof shall be entitled to retain constituted the mortgage, and it does not all sums then secured by this deed (whether purport to qualify the direct covenant to then or thereafter payable), including all pay contained in that instrument, nor the ex costs,” etc. Default was made in the paypress promise contained in the note. The ment of the interest due on December 8, 1898, power to "mortgage” the property did not in and again on June 8, 1899. Thereupon on clude power to make a personal promise on June 14, 1899, under the power aforesaid the behalf of the beneficiaries, or the trustor, mortgagee sold the premises for the sum of that they, or either of them, should pay the $2,000. This left a balance of $1,221.68 remoney. It carried power only to pledge, con maining unpaid on the principal and interest vey, or hypothecate the property as security on the note. for money. Civil Code, $ 2920. The defend The argument is that, under the terms of ant's promise to pay the money was not neces the power of sale above set forth, it was sary to the execution of the power, and it necessary for the mortgagee to declare the must be considered as his own personal obliga principal and interest on the note and morttion whereby he became surety for the pay gage immediately due and payable, as a ment of the money.

condition precedent to, or concurrent with,

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