People v. Iden

On information filed by the district attorney of Tulare County the defendant was accused of the crime of felony committed as follows: It was charged that the defendant, on or about the twenty-sixth day of September, 1912, at said county, was'the mortgagor of the following described personal property, to wit: Twenty-five head of dairy cows, twenty-one head of which said cows were branded “I” on the left hip, and which said personal property was then and there located on certain real property described in the information; all of which said personal property had been theretofore mortgaged by said W. A. Iden and his wife to one E.

The first proposition urged in behalf of defendant is that the information does not charge a public offense in that “it fails to charge the offense alleged to have been committed under section 538” of the Penal Code, and that it does not meet the requirements of section 952 of the Penal Code by directly and certainly alleging the particular circumstances of the offense charged. The demurrer to the information stated these objections and especially set forth that “the information nowhere alleges that these were all the cows in the said mortgage, and if not all, it nowhere alleges in said information which cows, nor does it give the description therein alleged to have been made.”

The information was sufficient and set forth the particular facts of the offense charged with all necessary certainty. The mortgage was referred to in such terms that the defendant could not be at any disadvantage in knowing whether it was the mortgage which had been made by him. If he had not made it, that fact alone would be his complete defense. If he had made the mortgage, then he would know whether twenty-five cows were all or less than all of the mortgaged cows. If the mortgage described more than twenty-five cows, then under this information he was not told which ones of the

The first and principal witness for the prosecution was the mortgagee, E'. A. Stellar. The mortgage was received in evidence and in it the cows and heifers are separately described and are consecutively listed by numbers from one to one hundred and sixteen. There appear to have been seventy-three cows and forty-three heifers. The note and mortgage are dated July 18, 1912, and the note by its terms was to mature July 18, 1913. The affidavit to the mortgage was subscribed and sworn to by all the parties on July 19th, and was acknowledged by the mortgagors before a notary on July 19, 1912. There was also a form of acknowledgment before the notary by E. A. Stellar on August 10, 1912, and the mortgage was recorded in Tulare County on August 16, 1912.

The witness Stellar testified that on August 3,1912, he went with the defendant to a place known as the Sherman Ranch, and an adjacent eighty acres which had been leased by Stellar to the defendant, there being a road between the two places; he took the mortgage and compared the stock that was described in the mortgage with the stock that he viewed; that about one hundred of the animals were in one field and the others were on the leased land above mentioned; that he saw the cattle there and that he and the defendant both saw them and diseusged them there together. Stellar further testified that afterwards, on the tenth day of August, 1913, he saw on the ranch of Mrs. Lucy Seimas in Kings County twenty-eight of the cattle that were placed under that mortgage; that he identified them by the description contained in a certified copy of the mortgage which he had with him. The witness then gave the numbers as given in the mortgage, of twenty-

It was admitted by the defendant that on September 26, 1912, he sold thirty cows to H. P. Costa and Lucy Seimas, but denied that any of them were cows that had been included in the mortgage. It was proved by the testimony of Costa that the defendant did not give to Costa or Seimas any information of the existence of a prior mortgage on the cattle sold to them. In addition to the defendant’s denial that those cattle were covered by the Stellar mortgage, the defendant claims that he had a right to make sales of the mortgaged cattle without giving the notices required by the Penal Code, first, because at the time of the sale defendant did not owe Stellar anything on the mortgage, and also because Stellar gave him an oral permission to do so. The numerous specifications of error set forth in the briefs for appellant relate almost entirely to rulings by which the court limited the cross-examination of Stellar and the direct examination of the ■ defendant by his counsel upon matters which they claimed were relevant to these lines of defense.

The defendant objected to the introduction of testimony by which Stellar described the cattle that he saw on the Seimas place and identified them by other marks in addition to the “I” on the left hip. Defendant claims that the overruling of this objection was a flagrant error, but we are unable to perceive any reason why the court should have refused to receive any testimony descriptive of the property, by which the witness was enabled to say that it was the same which he had previously identified in connection with the making of the mortgage. The objection is without merit.

It is contended by appellant that the court erred in refusing to permit him to introduce evidence showing that the mortgage debt had been paid; but the pages of the transcript cited in the brief contain nothing that relates to the point suggested. We are- not under obligation to search through seven hundred and fifty pages of transcript to find something which might

On defendant’s cross-examination of the mortgagee (the witness Stellar) the court sustained the objection made to a question in which the witness was asked to state what cattle those were which in answer to the next preceding question he had said that he was preparing to sell in August, 1913. The ruling was correct. The charge against the defendant was that on September 26, 1912, the defendant had sold a part of the mortgaged cattle without giving the information required by the statute. Even if in August, 1913, the mortgagee undertook to sell the same cows which the defendant was charged with selling wrongfully in 1912, such proceeding by the mortgagee would have no bearing upon the truth of the facts charged against the defendant, or the guilt or innocence of the defendant. And if the object was to show that ultimately the mortgagee obtained full payment of the debt, that also was immaterial. The case against the defendant was to be determined by two facts, both relating to September 26, 1912,—namely: whether the mortgage debt was unpaid and whether the defendant sold some of the mortgaged cows in the manner and under the circumstances charged in the information.

The record does not sustain appellant’s claim that the court erred in refusing to hear evidence about partnership transactions between Stellar and defendant Iden. Counsel for defendant say they would have shown that the mortgage was only an “accommodation mortgage.” The court, while declining to allow 11 extended examination or hearing of evidence as to partnership deals,” further said : “If you have any special transaction which shows that the mortgage was paid, or that the defendant was authorized to sell the property, you

The court did not err in sustaining the objections made on cross-examination of Mr. Stellar to questions asking the witness whether he had not stated, in August, 1913, that owing to certain deals which he had made with Mr. Iden he had not lost anything on him and would not lose anything on him. The court held that “the payment of the mortgage after the offense is committed, if it was committed, does not constitute any defense to the action.” It would scarcely need authorities to support this ruling, but the rule has been affirmed under a similar statute in Alabama. (Steed v. Knowles, 79 Ala. 446 ; Nixon v. State, 55 Ala. 120 .)

The court was justified in striking from the record testimony of the defendant that in the first week of August, 1912, the defendant said to Stellar that defendant would have to sell some cows to care for the rest of his cattle, and that Mr. Stellar replied: “Sell the cows. You are my agent up here and I am your agent down there. Whatever you do is all right. I will take care of that mortgage.” The only reason given by defendant’s counsel in response to the motion to strike was, “We are relying on agency.” The Penal Code, section 538, defining the offense charged herein, requires that in making a sale of mortgaged chattels the mortgagor must, at or before making the sale, inform the prior mortgagee in writing by giving the name and place of residence of the party to whom the sale is to be made; and must also inform the purchaser of the existence of the prior mortgage. Defendant had a right to sell his cattle without permission of the mortgagee, by giving the information as required by law. No question of agency was applicable to the transaction.

On cross-examination of the defendant by the prosecuting attorney, the court did not err in admitting questions designed to meet the direct testimony of the defendant that at the time when defendant made this mortgage to Stellar there was an

The instruction given to the jury on the subject of reasonable doubt is the standard instruction given and approved innumerable times. It does not contradict the instruction offered by defendant on the same subject, but substantially agrees with it, and the court’s action, both with respect to the instruction given and the instruction refused, is approved.

The following instruction was offered on behalf of defendant and refused by the court: “A witness is presumed to speak the truth. This presumption applies to the defendant, when he becomes a witness in his own behalf. But this presumption

Finally, it is claimed on behalf of the defendant that the court erred in refusing to instruct the jury that in order to convict the defendant they must be morally certain not only that the defendant sold to the persons mentioned in the information, and at the time and place therein stated, one or more of the cows described therein, but that they must be satisfied to a moral certainty and beyond a reasonable doubt that the defendant sold and delivered such cow or cows “with the intent in him to defraud the mortgagee named in said mortgage.” In People v. Wolfrom, 15 Cal. App. 732 , [ 115 Pac. 1088 ], the language of section 538 of the Penal Code is construed with reference to the phrase “intent to defraud,” as contained therein. We agree with the opinion there expressed, that that part of section 538 which refers to the selling of mortgage property does not make the intent with which the act is done an indispensable element of the offense, and that “when the intent is not made an affirmative element of

The judgment and the order denying a new trial are affirmed.

James, J., and Shaw, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on June 26, 1914, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 28, 1914.