People v. Lewis — 127 Cal. 207

Majority

p. 207

[Crim. No. 549.

Department Two.

December 15, 1899.]

THE PEOPLE, Respondent, v. WILLIAM LEWIS, Appellant.

Headnote

Criminal Law—Obtaining Money under False Pretenses—Larceny— Review upon Appeal.—Where the evidence upon a charge of obtaining money under false pretenses fails of proof thereof, and it is conceded by the attorney general that the evidence indicates that the only offense committed was that of larceny, the judgment of conviction must be reversed; and as the case cannot be tried again upon the charge made, the court will not, upon the appeal, determine moot questions of law.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from orders denying a new trial and denying a motion in arrest of judgment. F. H. Dunne, Judge.

The facts are stated in the opinion of the court.

P. J. Mogan, and J. J. Guilfoyle, for Appellant.

Tirey L. Ford, Attorney General, for Respondent.

Defendant was charged with and convicted of the crime of obtaining money by false pretenses, and he appeals from the judgment, from the order denying his motion for a new trial, and from an order denying his motion in arrest of judgment. At the oral argument the attorney general stated that he was satisfied that if, under the evidence, the appellant was guilty of any crime, it was that of larceny and .not of obtaining money under false pretenses, and thereupon he confessed error. Counsel for appellant, however, contended that there were questions arising out of the evidence, and out of the admissibility of certain evidence, which should be determined here for the benefit of the lower court upon another trial; and thereupon the cause was submitted. Section 1110 of the Penal Code provides that where the false pretense is not evidenced by writing it must be proven by the testimony of two witnesses, or that of one witness and corroborating circumstances. In this case there was no written evidence and the testimony to the false pretenses was that of one witness alone; and appellant

p. 208

contends: 1. That there were no such corroborating circumstances as the law contemplates; and 2. That the court erro-, neously admitted certain evidence touching the matter of 'corroboration; and these are the questions which he asks to have determined. But upon further consideration of the case it is evident that it will not be tried again upon the present charge, and that therefore these are merely moot questions not calling for determination.

Upon the confession of error of the attorney general the judgment and orders appealed from are reversed.