People v. Lanterman

Defendant was charged by indictment with the commission of the crime specified in section 72 of the Penal Code, and upon trial was convicted as charged. He appeals from the judgment and an order of the court denying his motion for a new trial.

Defendant interposed a demurrer to the indictment upon the grounds, among others, that the indictment did not substantially conform to sections 950, 951 and 952 of the Penal Code, and that the facts stated in the indictment did not constitute a public offense. This demurrer was overruled.

The parts of the indictment material to a consideration of the case are as follows:

That on or about the twenty-sixth day of February, 1907, and before the finding of this indictment, at and in the county of Los Angeles, state of California, the said R. S. Lanterman, with intent to defraud the said county of Los Angeles, state of California, did willfully, unlawfully and feloniously present for allowance and for payment to the board of supervisors of said county of Los Angeles a certain false and fraudulent claim, bill, account and demand on the treasury of the said county of Los Angeles, and against the said county of Los Angeles, the said board of supervisors of the said county of Los Angeles being then and there authorized to allow, pay and order the same to be paid if genuine; which

“Demand of Dr. R. S. Lanterman.

P. 0. Address, Los Angeles.

On the Treasury of the County of Los Angeles,

State of California.

For the sum of Eight 40-100 dollars.

Being for traveling expenses outside county seat on official business.”

(Here follow dates, items and amounts thereof.) “Expenditures authorized and approved by me.

“State of California,

County of Los Angeles—ss.

“The undersigned, being duly sworn, says: That the within claim and the items and statements as therein set out, are true and correct; that no part thereof has been heretofore paid, and that' the amount therein is justly due this claimant, and that the same is presented within one year after the last item thereof has accrued.

“(Sign here) R. S. LANTERMAN.

“Subscribed and sworn to before me this day 'of Feb. 26, 1907.

“By FRED J. WILLIAMS,

“Notary Public in and for the County of Los Angeles, State of California.

“$8.40.

“Demand of R. S. Lanterman on the treasury of the county of Los Angeles, state of California, for Traveling Expenses Coroner.

“Filed Feb. 26, 1907. C. G. Keyes, county clerk; by P.'B. Spears, deputy clerk.

“I have examined the within claim and find the same is a legal charge against the county for the sum of $8.40. J. D. Fredericks, district attorney; by Fleming, actg. chf. deputy. “Examined and approved. George Alexander, supervisor. “Allowed by the board of supervisors March 18, 1907, in the sum of $8.40, payable out of general fund.

“Attest: C. G. Keyes, clerk of the board of supervisors, by J. W. Powell, deputy clerk.

“Countersigned: C. E. Patterson, chairman board of supervisors.

“Warrant No. 5805. $8.40.

“Allowed Mar. 18, 1907, for the sum of eight 40/ dollars, payable out of general fund. H. G. Dow, county auditor; by .........., deputy auditor. . “I do hereby appoint..........my attorney to receive from the county treasurer the money on the within demand. (Sign here.) ............................dated ..............190.. .........................P. O. address.

“(Paid Mar. 23, 1907. John N. Hunt, L. A. County Treasurer.)

“Received payment 3-23-1907. R. S. Lanterman”;

—followed by full allegations as to the falsity of said claim and defendant’s knowledge of such facts.

There is nothing in the indictment showing that any part of the claim set out in full therein constituted indorsements thereon, but, as alleged, the entire matter following the jurat of the notary, down to and including the words, “Received payment, 3-23-1907, R. S. Lanterman,” as written therein constituted a part of the claim as presented to the board of supervisors on February 26, 1907. Appellant’s counsel contend, however, that, although not directly alleged, it is apparent that all of that portion of the claim as set out in the indictment following the notary’s jurat consiste of and is indorsements made thereon after the presentation of the claim and by others than defendant.

Section 72 of the Penal Code, under which the indictment was found, is as follows:

“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, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of felony.”

The chief objection which appellant urges in support of his contention that the indictment is insufficient is the absence therefrom of any allegation of fact which, conceding the claim to be genuine, would warrant the board of supervisors in allowing or ordering the same paid. According to section 957 of the Penal Code, the word “genuine,” as used in

The claim which defendant is charged with presenting is headed as follows: “Demand of Dr. R. S. Lanterman. P. O.

Respondent insists that the statute, section 118, Penal Code, defining perjury, contains provisions analogous to section 72, in that one of the elements of the crime is that' the false testimony must be material to the issues tried, and cites, among other cases, People v. De Carlo, 124 Cal. 467 , [ 57 Pac. 383 ], and People v. Ah Bean, 77 Cal. 12 , [ 18 Pac. 815 ], In the latter case it is said: “There are two modes by which the materiality of the alleged false statement r~ iy be shown in criminal pleading: 1. By setting forth the nature of the issue and the evidence given thereon, so that, as a matter of law, it may be said the testimony upon which the perjury is assigned is material to the issue; 2. By showing an action at issue in a court of competent jurisdiction, the testimony given, its willful and felonious falsity, coupled with the averment that it was material to the issue.” The approval of the second mode of pleading the materiality of the testimony is due to the fact that section 966 of the Penal Code with respect to alleging this element of the offense expressly provides that

The question as to whether or not the board had authority to allow the claim, if genuine, is a question of law (Branham et al. v. City of San Jose, 24 Cal. 585 ; Callahan v. Broderick, 124 Cal. 83 , [ 56 Pac. 782 ]; Hedges v. Dam, 72 Cal. 520 , [ 14 Pac. 133 ]; Spaulding v. Wesson, 84 Cal. 141 , [ 24 Pac. 377 ]), depending upon the existence of facts which should be directly averred, and upon trial, unless admitted, established by legal evidence. The ground upon which the authority of the board was predicated is the fact, as proven at the trial, that’ at the time of presenting the claim, defendant was coroner of the county of Los Angeles, and presented the claim for expenditures made by him in such official capacity. These facts should have, been averred in t'he indictment. When taken in connection with subdivision 9 of section 159, County Government Act, [Gen. Laws, 1906, p. 178], which provides that such coroner is entitled to reimbursement for “his actual necessary expenses in traveling outside the county seat,” they clearly disclose that the claim was one which the board was by law authorized to allow, provided it was genuine.

Conceding the necessity of averring facts from which the court may determine t’he authority of the board to allow the claim, it is, nevertheless, insisted that, measured by such rule, the indictment is sufficient. This contention is based upon the fact that immediately following the signature and official designation of the notary before whom defendant verified the claim there is what appears to be an indorsement upon the claim, as follows: “Demand of R. S. Lanterman on the treasury of the County of Los Angeles, State of California, for traveling expenses coroner.” Appellant insists, and it is not denied by respondent, that this is an indorsement upon the back of the original indictment; hence, no part of the claim as presented by defendant. Appellant further contends that, if this so-called indorsement is considered part of the claim, then other indorsements showing the claim to have been allowed and paid must likewise be considered, from which it would appear that the board had no authority to allow the claim

However this may he, we are clearly of the opinion that the sentence above quoted cannot, whether regarded as an indorsement upon the back of the claim, or otherwise standing alone and disconnected, "be construed as an allegation direct and certain showing the offense charged. (Pen. Code, sec. 952.) Every fact' necessary to allege in the indictment should be stated positively, and where a direct allegation of a material fact is necessary it cannot be supplied by intendment or implication. (Peo ple v. Cohen, 118 Cal. 79 , [ 50 Pac. 20 ].) Pleadings must be strictly construed against t'he party making them. Material allegations must be distinctly stated and not be inferred from doubtful or obscure language. (Gates v. Lane, 44 Cal. 392 .) The obscure and disconnected use of the word “coroner” inserted in the manner here shown would not “enable a person of common understanding to know what was intended.” (Pen. Code, sec. 950.)

A complaint to recover in a civil action otherwise sufficient, but alleging the claim to be one which the board was authorized to allow, and stating the claim as presented contained an indorsement in the language above quoted, would be wholly inadequate to constitute a cause of action. Measured by the rules applicable to civil pleadings, the indictment is fatally defective, and the demurrer thereto should have been sustained.

Another assignment of error upon which appellant bases his claim for reversal is the fact that the court, over his objection, received in evidence certain reports made by two-conductors of passenger trains operating over the Salt Lake Railway between Los Angeles and Pomona. In the demand made upon the board defendant claimed that he had on January 22,1907, made a trip to Pomona upon official business, at' which time he had paid the sum of $1.50 for transportation. The theory of the prosecution and that upon which defendant was tried was that he did not pay any railway fare upon this-occasion, but, as a matter of fact, traveled upon a pass, No. 2255, shown to have been theretofore issued to him by some official of said Salt Lake Railway Company. Upon the trial these two conductors, C. M. Hitchens and Samuel T. Gee by name, were called as witnesses on the part of the prosecution, each of whom was shown a document which he testified, as to

The answer given by the witness Hitchens in reply to the question of the district attorney as to the correctness of his report cannot be regarded as a statement that the same was true, for the reason that it' is apparent from the answer that the witness understood the question as referring to the form of the report rather than the truth of the matter therein contained. Therefore, both reports were received in evidence contrary to the general rule which requires oral evidence to be delivered under the sanction of an oath. We may concede an exception to this general rule where the witness making the entry or report is dead or beyond the jurisdiction of the court, and that a showing of such fact entitles such evidence to admission. (Sill v. Reese, 47 Cal. 342 .) No facts, however, are made to appear which would bring this case within such exception. The witnesses who made the entries are neither dead nor beyond the court’s jurisdiction. On the contrary, both were present in court on the witness-stand, and the sole fact sought to be established by the documents offered was that' this pass had been honored for transportation on said

The documents do not purport to be official records the originals or duly certified copies of which are entitled as such to admission in evidence; neither are they a public record of a private writing the original of which record or certified copy thereof may be received in evidence. (Code Civ. Proc., sec. 1919.) At most, they were mere private memoranda of the facts of a transaction made by a third party. As to such documents the code, section 2047, Code of Civil Procedure, provides: “A witness is allowed to refresh his memory respecting a fact, by anything written by himself, or under his direction, at the time when the fact occurred, or immediately thereafter, or at any other time when t'he fact was fresh in his memory, and he knew that the same was correctly stated in the writing. But in such case the writing must be produced, and may be seen by the adverse party, who may, i£ he choose, cross-examine the witness upon it, and may read it to the jury. So, also, a witness may testify from such a writing though he retain no recollection of the particular facts, but such evidence must' be received with caution. ’ ’ Under this section, the memoranda at most could only be used by the witnesses for the purpose of refreshing a tardy memory to enable them to testify, the defendant having the right’ as a part of the cross-examination to read them to the jury. Says Coen and Hill in their Notes to Phillips on Evidence: “He [the witness] will not be permitted to read his notes or memoranda to the jury, nor can they be admitted as evidence to the jury in any sense.” (1 Phillips on Evidence, 4th Am. ed., 586, note 170.) This language is quoted with approval by our supreme court (Reid v. Reid, 73 Cal. 209 , [ 14 Pac. 783 ]), where it is said: “This general rule seems to be embodied in the Code of Civil Procedure, for, after providing that the adverse party may read the memorandum to the jury, it has t'he following: ‘So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts.’ ” In view of the presence in court of the witnesses who made the reports, and the provisions of said section 2047, the cases cit'ed by the attorney general from other jurisdictions wherein reports of train dispatchers and like employees

The only evidence other than that contained in these reports, tending to show that defendant had used the pass was that given by one Sage, as follows: “I recall accompanying the defendant to Pomona on January 22d, in the case of J. Bermudes; I did not see defendant pay any car fare on that day; he tendered a pass on the Salt Lake road. ... I do not remember the exact date of t'he trip to Pomona on the Bermudes case; I think it was in the latter part of January. ... I sat with Dr. Lanterman, . . . ; I think Dr. Lanterman and I sat together all the way from Los Angeles to Pomona. ... I paid my fare by presenting a pass; I did not examine Dr. Lanterman’s pass on this particular trip; I did.not pay any particular attention as to the way he paid his transportation.” This testimony is vague, uncertain and unsatisfactory, and it cannot be said that the jury would have rendered a verdict without the proof contained in these reports. It must, therefore, be conceded that their erroneous admission was prejudicial to the substantial rights of appellant.

The foregoing views render it unnecessary to consider other assignments of error.

The judgment and order appealed from are reversed.

While we do not approve of all the views expressed in the foregoing opinion, in relation to the insufficiency of the indictment, we nevertheless concur in the judgment of reversal upon the grounds last stated. .

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 March 23, 1909.