People v. Glass ( 1910 )

Defendant was charged by indictment with the crime of bribery, under section 165 of the Penal Code, and having been convicted of the charge he has appealed to this court from the judgment and the order denying his motion for a new trial. After his conviction, and before judgment was pronounced, the defendant made a motion in arrest of judgment, which was by the court denied. As this motion attacked the sufficiency of the indictment it is proper that the ruling of the court thereon be first considered on this appeal.

The motion was based upon certain defects or alleged defects in the indictment. In this connection it is insisted by respondent that in the condition of the record in this case, this court can only consider whether or not the court had jurisdiction over the subject-matter of the indictment, and whether or not the indictment states facts sufficient to constitute a public offense (Pen. Code, secs. 1012 and 1185). No demurrer is contained in the bill of exceptions, and the transcript as originally filed in this court did not, in the judgment-roll, or "record of the action," as it is denominated in the statute (Pen. Code. sec.1207) contain the demurrer.

Upon suggestion of diminution of the record, this court permitted appellant to file a certified copy of the demurrer, reserving, however, for determination at the final hearing, the question as to whether or not such demurrer may be properly considered as a part of the record on this appeal.

All defects appearing upon the face of the indictment, save want of jurisdiction of the court over the subject-matter of the indictment, and that the facts stated do not constitute a public offense, are waived unless the indictment be attacked for such defects, by demurrer (Pen. Code, sec. 1012).

Defects, waived by failure to demur, cannot be made a ground for arrest of judgment, but the same objections that may be raised by demurrer may also be raised on motion in arrest of judgment, if not waived by a failure to demur (sec. 1185).

It is thus apparent that it is important for this court to be informed as to the contents of the demurrer, in order to determine whether or not the court erred in overruling the motion in arrest of judgment. The proper scope of the motion depends upon what objections were raised by the demurrer.

Respondent contends that the demurrer is no part of the record on appeal, and cannot be considered by this court unless contained in a bill of exceptions, citing People v. Long,121 Cal. 494, [53 P. 1097]; People v. Druffel, 3 Cal.App. 731, [86 P. 907], and sections 1172 and 1174 of the Penal Code.

On the other hand, appellant insists that the cases cited have no application to a case where a judgment on conviction is rendered, and that under section 1207 of the Penal Code, the demurrer in such case is a part of the record of the case, and as such must be transmitted to the appellate court after the taking of the appeal (Pen. Code, sec. 1246).

In People v. Long, 121 Cal. 494, [53 P. 1097], the appeal was by the people from an order sustaining defendant's demurrer, and ordering that the case be resubmitted to the grand jury. There had been no judgment of conviction rendered, and the court pointed out that the minute entry of the order sustaining a demurrer could get into and become a part of the record on appeal only by virtue of section 1207. The court simply held that where there has been no judgment of conviction "the statute does not provide for a judgment-roll or a record of any kind, except through a bill of exceptions." (Italics are ours.) The court did not attempt to determine in the Long case what shall constitute the "record of the case," or the "judgment-roll," as it is usually called by the profession, when a judgment of conviction has been rendered.

The case of People v. Druffel, 3 Cal.App. 731, [86 P. 907], decided by this court, was, like the Long case, an appeal by the People upon demurrer sustained, and perforce this court simply followed the doctrine of the Long case.

On the other hand, People v. McPherson, 6 Cal.App. 266, [91 P. 1098], was an appeal by defendant after judgment rendered on a conviction, and the court there pointed out that the doctrine of People v. Long, 121 Cal. 494, [53 P. 1097], has no application to such a case, and proceeded to examine and pass upon the ruling upon the demurrer, although the same was not contained in any bill of exceptions, but appeared in the judgment-roll only.

Section 1207 of the Penal Code provides that "When judgment upon a conviction is rendered, the clerk must enter the same in the minutes, . . . and must, within five days, annex together and file the following papers, which constitute a record of the action:

"1. The indictment or information, and a copy of the minutes of the plea or demurrer;

"2. A copy of the minutes of the trial;

"3. The written instructions given, modified, or refused, with the indorsements thereon, and the certified transcript of the charge of the court; and,

"4. A copy of the judgment."

It is the meaning of the language of subdivision 1 that is involved in this matter. It is contended by respondent that the word "demurrer" should be read as qualified by "a copy of the minutes of the." In other words, that the subdivision may be properly paraphrased thus: "The indictment or information, and a copy of the minutes of the plea or (and) a copy of the minutes of the demurrer."

It may be that this meaning does conform most nearly to the strict grammatical construction of the clause, and yet we do not think it correctly gives the meaning of the clause as intended by the legislature. It is perfectly obvious, we think, that the word "and" must be substituted for the word "or." It is hardly conceivable that the legislature intended to invest a clerk, a ministerial officer of the court, with a discretion to select either a copy of the minutes of the plea, or a copy of the minutes of the demurrer," as making a part of the record of the action. And yet this conforms strictly to the grammatical construction of the clause. "And" must be substituted for "or." What is meant by the word "demurrer," and by what, if any, words it is qualified, must be determined by the entire section, read in the light of its manifest purpose, and other provisions of the law bearing upon the subject.

The primary purpose of this section is evidently to cause to be annexed together, and thus preserved in the form of a judgment-roll, such papers as shall show what issues were presented for determination, and the result of such determination. The first pleading in a criminal action, brought in the superior court, is the indictment or information, which must be in writing. The original indictment, under section 1207 of the Penal Code, clearly becomes part of the judgment-roll. The next pleading is the demurrer, and this also must be in writing. The demurrer must be in writing and filed (Pen. Code, sec. 1005). Strictly speaking, there is no such thing as a minute of the demurrer. It speaks for itself. Doubtless the clerk must enter in his minutes the fact of its presentation and filing and the action of the court thereon (Pen. Code, sec. 1007). But none of these minute entries can in strictness be properly called a minute of the demurrer.

The next pleading is the "plea," and may be of four kinds (Pen. Code, sec. 1016), and is not in writing, but must be oral, and entered upon the minutes of the court in certain prescribed forms (Pen. Code, sec. 1017). The form of each plea that may be made to an indictment being given by the statute, the clerk can have no difficulty in making the proper minute entries. The pleas being oral, the only way they can become a part of the judgment-roll is by putting into the judgment-roll a copy of such minutes. These in connection with the indictment or information, show what issues of fact were presented for determination.

On the other hand, as the demurrer, like the indictment, must be in writing and filed with the clerk, there is no reason why it may not be, like the original indictment, put into the judgment-roll as an original document, and thus, in connection with the indictment, show what issues of law were presented for determination.

We think that such is the meaning and purpose of the section under discussion. To so hold does not entail any great departure from the strict grammatical meaning of the language employed, and produces a result reasonable and consistent with the manifest purpose of the section read as a whole. Certain it is that when the legislature provided that the clerk should annex together and file "the indictment or information, and a copy of the minutes of the plea or (and) demurrer," it intended that some document relating to the demurrer should be annexed and filed as a part of the judgment-roll. It could not have meant "a copy of the minutes of" the demurrer, for, as we have seen, the law makes no provision for any minutes of the demurrer. There are minutes of the plea expressly required to be entered, but there are, properly speaking, no minutes of the demurrer provided for. The demurrer must, like the indictment, be in writing and filed. The minute entry of the action of the court allowing or disallowing the demurrer (Pen. Code, sec. 1007) is in no proper sense a minute of the demurrer.

While the legislative purpose is clumsily expressed, we are satisfied that it is sufficiently clear that the record of the action, or judgment-roll, as it is commonly called, should contain the indictment or information, the demurrer, and a copy of the minutes of the plea, together with the other papers provided for in subdivisions 2, 3, and 4 of section 1207 of the Penal Code. To read the word "demurrer" in section 1207 as qualified by "a copy of the minutes of the" would be to convict the legislature of requiring the clerk to put something into the judgment-roll that has no existence under the law, for, as we have before said, there can be no "minutes of the demurrer." There may, however, be a demurrer, and it is this that the law intends shall be annexed to the indictment, and form a part of the record of the action.

We do not think there is anything in sections 1172, 1173, and1174 of the Penal Code, that militates against the conclusion we have reached as to the scope of section 1207 of the Penal Code.

Sections 1172 and 1173 enumerate seven classes of decisions of the court to which exceptions may be reserved, among which are the decisions of the court in allowing or disallowing a demurrer, or in granting or refusing a motion in arrest of judgment. Section 1174 fixes the time and the procedure for the settlement of a bill of exceptions upon any of these decisions, but throws no light upon what matters become a part of the "record of the case" without being included in the bill of exceptions. This is provided for by section 1207, under which, as we have shown, the indictment, the demurrer, and the plea, as set forth in the copy of the minutes of the plea, are a part of the record of the case.

This brings us to the consideration of the action of the court in denying defendant's motion in arrest of judgment. This motion is set forth in the bill of exceptions, and was based upon the same objections to the indictment as were made by the demurrer appearing in the judgment-roll. It thus appears that none of the objections raised on the motion had been waived by a failure to raise such objections by demurrer. (Pen. Code, sec. 1185.)

The indictment is framed under section 165 of the Penal Code, and, omitting the formal parts, is as follows: "That on the 15th day of March, A.D. 1906, one Thomas F. Lonergan was, and at all times herein mentioned has been, a duly elected, qualified and acting member of the board of supervisors of the said city and county of San Francisco, state of California; that there was then and there pending before the said board of supervisors a matter and subject relating to a franchise for constructing, maintaining and operating a telephone system in the said city and county of San Francisco, and an application made June 12th, 1905, by the Home Telephone Company of San Francisco, a corporation, for such franchise, and a bill and ordinance relating to the same, which said ordinance was on the 1st day of October, 1906, passed and adopted by the said board of supervisors, and was entitled an ordinance ``Granting to the Home Telephone Company of San Francisco a franchise to construct, maintain and operate a telephone system in the city and county of San Francisco, and to construct, maintain and operate through, along, under and in the public streets, alleys and highways of said city and county poles, wires, cables, underground conduits and other appliances for the purpose of transmitting sound, signals and conversation by means of electricity or otherwise;' that on the said 15th day of March, A.D. 1906, at the said city and county of San Francisco, state of California, and while the said matter and subject were pending before the said board of supervisors, the said Louis Glass did willfully, unlawfully, feloniously and corruptly give to said Thomas F. Lonergan, while the said Lonergan was such member of the said board of supervisors, a bribe, to wit, the sum of five thousand ($5,000) dollars, in lawful money of the United States of America, as a bribe, with the willful, unlawful, felonious and corrupt intent in him, the said Louis Glass, to corruptly influence said Thomas F. Lonergan as such member of said board of supervisors, in his action, and in his official vote, opinion, judgment and action, as such member of said board of supervisors, in and upon the aforesaid matter and subject then pending before said board of supervisors as aforesaid, and which was afterward to be considered, and was considered, by said board of supervisors," etc.

It is first objected that it is not alleged that defendant knew that Lonergan was a member of the board of supervisors. The statute under which the indictment was drawn (Pen. Code, sec.165) does not expressly require that the defendant knew the person bribed to be a member of any board of supervisors. The language of the statute in this regard is "with intent to corruptly influence such member in his action on any matter or subject pending before or which is afterward to be considered by, the body of which he is a member." The language of the indictment carefully follows this language of the statute, and we think is all that is required in this respect.

The allegation of the indictment that the bribe was given to Lonergan by defendant "with intent in him, the said Louis Glass, to corruptly influence said Thomas F. Lonergan, as such member of said board of supervisors, in his action, and in his official vote, opinion, judgment and action, as such member of said board of supervisors," necessarily carries with it the fact of knowledge in Glass that Lonergan was a member of such board. To a person of common understanding, when it is charged that a defendant gave money to a member of a board of supervisors with intent to influence him as such member of said board ofsupervisors in his official vote, judgment and action as suchmember of said board of supervisors, it clearly appears that said defendant knew such person to be a member of said board.

This is the view taken of a similar allegation, drawn under a similar statute in State v. Dankwardt, 107 Iowa, 704, [77 N.W. 495].

The case of State v. Howard, 66 Minn. 309, [61 Am. St. Rep. 403, 68 N.W. 1096], does support the contention of defendant, but though it was cited in State v. Dankwardt, it was not there followed. Neither do we think it should be followed.

The other cases cited by defendant on this point are cases for uttering forged instruments, assaults on public officers, and the like, where there was nothing in the indictment that necessarily or at all imported knowledge on the part of the defendant of the forged character of the instrument, or the official character of the person assaulted.

In the case at bar the language of the indictment not only follows the language of the statute, but, to a person of common understanding, necessarily imports knowledge on the part of the defendant of the official character of the person bribed.

It is next urged that the indictment fails to state an offense because it is not alleged that the money was given to influenceunlawfully said Lonergan as such member of said board.

The language of the indictment is "with the willful, unlawful, felonious and corrupt intent in him, the said Louis Glass, to corruptly influence said Thomas F. Lonergan," etc. This fully covers the language of section 165 of the Penal Code, which is: "Every person who gives or offers a bribe to any member of any . . . board of supervisors . . . with intent to corruptly influence such member in his action on any matter, etc." The word "unlawfully" is not used in this section to qualify the verb "to influence," but the word "corruptly" is used instead.

But this section does not specify of what the bribe may consist, and appellant points to subdivision 6 of section 7 of the Penal Code as defining "bribe." It is there said: "The word ``bribe' signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his action, vote, or opinion, in any public or official capacity." It is manifest that the principal and particular purpose of this provision of the statute was to define the word "bribe" used as a noun, and to indicate what things may be given or accepted as a bribe. Section165 relates particularly to the bribery of members of boards of supervisors and similar boards. The use of the word "unlawfully" as qualifying "to influence" in subdivision 6 of section 7, adds nothing to the meaning of section 165. It is inconceivable that any officer may be corruptly influenced in his official action by the giving to him of money without unlawfully influencing him. If defendant had the intent to corruptly influence Lonergan, as a member of the board of supervisors, by giving him money, he had the intent to unlawfully influence him in so doing. There can be no corrupt influencing of a member of a board of supervisors in his official action, by the giving to him of money, which is not an unlawful influencing of such member. There can be no intent to corruptly influence an officer in his official capacity, by giving to him money, that is not an intent to unlawfully influence such officer in such action. The contention of appellant upon this point cannot be sustained.

The indictment is also attacked for uncertainty in several particulars.

Under this head it is claimed that it does not state with certainty what matter and subject were then pending before the board of supervisors, or with what intent the bribe is alleged to have been given.

While the indictment in this regard is not a model to be commended, we think that from the language of the indictment any person of common understanding would know that an application, made June 12, 1905, by the Home Telephone Company of San Francisco, a corporation, for a franchise for constructing, maintaining, and operating a telephone system in the said city and county of San Francisco, was pending before said board, and that the bribe was given with intent to influence said Lonergan in his action as a member of said board on said application, and in this respect the indictment is sufficient. (Pen. Code, sec. 950, subd. 2; sec. 959, subd. 6; People v. King,125 Cal. 370, [58 P. 19].)

It is equally clear that the indictment charges that the matter in regard to which the offense was committed, was not only then pending, but was afterwards to be considered. A matter may be "to be afterwards considered" that is pending at a given time.

It is next urged that the indictment fails to state what acts Lonergan was to do, or omit to do. In considering this objection, it may be well to examine the statute with care. It is divided into two parts — the first is directed against a person who bribes or offers a bribe to a member of certain designated boards, with intent "to corruptly influence such member in his action on any matter or subject pending before, or which is afterwards to be considered by, the body of which he is a member." It appears from the indictment that the bribe was given with the intent to influence Lonergan in his vote and action as a member of said board of supervisors on the described application for the described franchise, and, we think, sufficiently shows that the act intended to be influenced was an official act. We know as a matter of law that the board of supervisors of the city and county of San Francisco has jurisdiction to grant franchises to maintain and operate telephone systems in said city and county. A vote by a member of said board as such on an application therefor would necessarily be an official act. To require the pleader to state with extreme particularity the manner in which it was intended that the person bribed should act or vote in such cases as this would often defeat the purposes of the act.

In the case of People v. Ward, 110 Cal. 369, [42 P. 894], cited by appellant, the defect in the indictment was that it charged that defendant did give a "bribe," without in any way specifying in what the bribe consisted. The indictment thus failed to state the facts as to the bribe, in accordance with subdivision 6 of section 7, and it was for this defect that the indictment was held to be bad. No such defect appears in the indictment in the case at bar.

The motion in arrest of judgment was properly denied.

Over the objections of appellant the court permitted the prosecution to introduce evidence as to acts and doings of the Home Telephone Company of Oakland, and its officers and agents. The effect of this evidence was to show that in 1902, one Mr. Beasley, an attorney of San Jose, acquired a franchise to operate and maintain a telephone system in the city of Oakland, where the Pacific States Telephone and Telegraph Company, of which defendant was vice-president and general manager, had a telephone system, operated in connection with its system throughout the state; that Beasley was induced to procure such franchise by one Halsey, who was a general agent of said Pacific States Telephone and Telegraph Company. This franchise was eventually assigned to the Home Telephone Company of Oakland. All the expenses of this telephone company, amounting to from twelve to fifteen thousand dollars, were furnished by Mr. Halsey. The evidence tended to show that the purpose of organizing this company, and procuring such franchise, was to forestall competition and opposition to the Pacific States Telephone and Telegraph Company.

Also, over the objection of appellant, the court permitted the prosecution to introduce a large amount of evidence in regard to proceedings had before the city council of the city of Oakland in the matter of the application of the Home Telephone Company of Alameda County to obtain a franchise for a telephone system in the city of Oakland. This evidence tended to show that the Pacific States Telephone and Telegraph Company, through its employees and an attorney employed for that purpose, opposed such application, and that its president, Mr. Sabin, who died before the bribery charged in this case occurred, signed a statement, which was read before the city council of Oakland, objecting and protesting against the granting of a franchise to the Home Telephone Company of Alameda County. At the instance of the local attorneys of the two companies a visit was made by certain members of the city council of Oakland to the city of Los Angeles, to examine the operations and workings of the different systems used in that city, and the expenses of such trip were borne equally by the two companies. It was shown that Mr. Glass met two of the councilmen of the city of Oakland at a lunch, arranged by the attorney of the Pacific States Telephone and Telegraph Company, and explained to them the merits of the system of his company (the manual system) over the system of the other company (the automatic system). Much other testimony concerning the Oakland proceedings was given over the objection of appellant.

It is not suggested by any one that any of the proceedings in Oakland involved any criminal act by any person.

Appellant does contend, however, that it was all irrelevant to the offense charged against defendant, and for which he was on trial, to wit, the bribery of Lonergan, as a member of the board of supervisors of the city and county of San Francisco, and for that reason should not have been permitted.

It appears to us to be so. As a general rule, evidence of the commission of a different offense cannot be admitted in proof of the offense for which the defendant is on trial, and this rule excludes all evidence of collateral facts or matters which are incapable of offering a reasonable presumption or logical inference as to the principal fact or matter in dispute. (People v. Lane, 100 Cal. 379, [34 P. 856]; People v. Hurley, 126 Cal. 351, [58 P. 814]; People v. Sharp, 107 N.Y. 427, [1 Am. St. Rep. 851, 14 N.E. 319]; People v. Tucker, 104 Cal. 440, [38 P. 195].)

People v. Sharp, 107 N.Y. 427, [1 Am. St. Rep. 851, 14 N.E. 319], is a very pertinent case in support of the contention of appellant. In that case the defendant was on trial for giving a bribe to a member of the common council of the city of New York, with intent to influence him as such member regarding an application for a franchise to construct a street-railway desired by defendant. The trial court allowed evidence of an attempt to bribe an attache of the legislature concerning a bill that would eventually aid him in procuring the franchise concerning which he was charged with bribing the New York councilman, or, as stated in the argument addressed to the court: "Jacob Sharp was accused and brought to trial for bribing the aldermen of the city of New York, and by that means procuring the grant of a valuable right. Evidence was offered to show that not long before he had attempted to bribe another official person to do an act which, as he thought, would promote the scheme which he had so long pursued." The court held the action of the trial court to be error.

The case of People v. Hurley, 126 Cal. 351, [58 P. 814], is also a bribery case. Defendant was a member of a nominating convention, and was charged with offering to receive a bribe from one Imrie to vote for him for the nomination for school superintendent. The court allowed evidence that he offered to accept a bribe as a member of the same convention from another candidate for the same office, and for this error alone the judgment was reversed. The court said: "The court erred in receiving the testimony. There was no connection between the interview with Miss Thompson and that with Mr. Imrie. The only effect would be to show that he was likely to ask other candidates for a consideration for his vote or influence, or, as said by the district attorney, ``it will tend to show whether or not he approached this other candidate'; but if it had that tendency it was only because he had shown himself capable of perpetrating such offenses. There is no necessary or logical connection between the two cases."

So in the case at bar, there is no necessary or logical connection between the fact that defendant, or the company of which he was general manager, attempted to prevent a rival company from obtaining a franchise in Oakland, and that he or his company attempted to forestall competition in Oakland, and the offense charged that he bribed a member of the board of supervisors of the city and county of San Francisco to prevent a rival company from getting a franchise in the city and county of San Francisco.

The attorneys for the prosecution concede that the evidence did not tend to show that the defendant committed any crime in connection with the attempt to forestall and prevent competition in Oakland, but they claim that the evidence was admissible for the purpose of showing defendant's motive. To this we cannot agree. By no reasonable hypothesis can it be said that the proceedings in Oakland furnish or prove a motive for the bribery of Lonergan. There was no causal connection between the two proceedings. Undoubtedly the primary motive for the several different proceedings was the same, to wit, the advancement of the interests of defendant's company by preventing competition. But the connection between such motives is no different from the connection that exists between the motives for several distinct larcenies committed by the same person, the motive in each case being pecuniary gain for the perpetrator of the larcenies. The defendant had the right to be tried upon the issue made by the indictment and his plea of "Not guilty," and to have all irrelevant and immaterial matters excluded from the jury, as its only effect would be to cloud the issue and injure defendant. The rule that the evidence shall be confined to the point in issue is elementary even in civil cases. In criminal cases, where the liberty of the defendant is involved, and where collateral matters often influence the jury, the necessity for the rule is much stronger. The defendant is expected to come into court prepared to meet the charge in the indictment, but cannot expect to be prepared with evidence as to any collateral matter. The rule is well established that such evidence is not admissible unless it conduces to the proof of a pertinent hypothesis which, if sustained, would logically influence the issue. To admit evidence of collateral matters that do not tend to prove either the issue, the motive, the guilty knowledge, or the probability of a theory, or the identity of the defendant, would be but to oppress the defendant by trying him on a case as to which he has not been notified, and for the trial of which he is not prepared. The indictment charges the defendant with giving a bribe in March, 1906, to a supervisor in the city and county of San Francisco. Any person of ordinary understanding would at once say that defendant had no notice by the indictment as to the many acts and the conduct of the Home Telephone Company of Oakland, in another county, which took place in 1902.

That evidence as to offenses other than the one for which defendant is being tried, may be given to show a motive for the commission of the crime is not doubted. But the motive for the commission of the crime charged must grow out of the collateral crime. Such are People v. Cook, 148 Cal. 341, [83 P. 43];People v. Brown, 130 Cal. 594, [62 P. 1072]. It is not sufficient that both crimes spring from the same motive. If so, one charged with a particular larceny might be proved guilty of many other larcenies, for all spring from the same motive — the desire for gain. So, too, a collateral crime may be proved against a defendant which shows the intent with which he did the act under investigation (People v. Wilson,117 Cal. 688, [49 P. 1054]; People v. Valliere, 123 Cal. 576, [56 P. 433], or that directly tends to show that the defendant committed the crime of which he stood charged. (People v. Rogers,71 Cal. 565, [12 P. 679].)

There is nothing in People v. Craig, 111 Cal. 460, [44 P. 186], that supports the contention of respondent that this evidence was admissible. In the Craig case defendant had testified that the killing of his wife, for which he was being tried, was accidental. To rebut this the people were allowed to prove that immediately after killing his wife he drove to the house of her father and mother, and at once deliberately killed them both. It was held that this, in connection with evidence of previous threats made by him against his wife and her family, tended to show that the killing of his wife was not accidental, but was in pursuance of a previous plan. The facts of the Craig case bear no similarity to the conditions of this case in the matter now under discussion.

The evidence as to the Oakland proceedings was clearly irrelevant to the charge upon which defendant was being tried, and the rulings permitting its introduction were clearly erroneous.

Upon the trial evidence was given that ten of Lonergan's fellow-members of the board of supervisors were bribed in the same manner, for the same purpose, at about the same time, and by the same person, as Lonergan. Appellant insists that the court erred in allowing this evidence over his objections.

We have before stated that, as a general rule, evidence of a different offense may not be given against a person charged with a particular crime; but as we have also before stated, there are exceptions to this rule. Where facts concerning the other offense tend in themselves to prove the defendant guilty of the offense for which he is being tried, they may be proven. The mere fact that such evidence tends to prove defendant also guilty of another crime does not exclude it, if relevant to the charge for which he is on trial. The evidence as to the bribery of the other supervisors, we think, is well within this exception to the general rule. It is not claimed by the people that defendant personally bribed Lonergan, or any other member of the board. Any money that was paid for such purpose was paid by one Halsey, who was shown to be a general agent of the Pacific States Telephone and Telegraph Company, with the special duty of attending to matters pertaining to opposition to the company. It was the theory of the People that the bribery of Lonergan was in pursuance of a conspiracy on the part of defendant and Halsey and one Zimmer, auditor of the company, to defeat the application of the Home Company by bribing the board of supervisors, that is, a working majority thereof. The bribery of Lonergan was but a part of the whole — was one step in a proceeding having one purpose and object. It was shown that checks of the company aggregating between forty thousand dollars and fifty thousand dollars were drawn at the request of Zimmer about the latter part of February, 1906. To whom they were payable was not shown. No vouchers were furnished for these checks, and they were simply carried on tags. These tags, as well as the checks were destroyed in the great fire of the following April. Statements of banks, however, showed that checks of the company aggregating fifty thousand dollars were paid, or the amounts thereof withdrawn from the accounts of the company as follows: —

February 23, 1906: $5,000, $5,000, $10,000;

February 24, 1906: $10,000, $10,000, and

February 26, 1906: $10,000.

The statements from banks show many other withdrawals, but these items are significant as being in round thousands, and as corresponding in the total to the amounts paid the supervisors. The evidence shows that for a few days only, but covering the twenty-third and twenty-fourth days of February, 1906, Halsey engaged three rooms in the Mills Building. The application of the Home Telephone Company was to come up for action before the board of supervisors on Monday, the twenty-sixth day of February, 1906. (The board consisted of eighteen members, and it required at least ten to constitute a majority.) Lonergan testified that on Saturday, February 24, 1906, he visited Halsey at the rooms in the Mills Building, found one Kraus, an assistant to Halsey, there in one room, scantily furnished, and was by him shown into an adjoining room, also scantily furnished, where he met Halsey, who gave him four thousand dollars in currency, and told him to vote to defeat the ordinance granting the Home Telephone Company a franchise. He took the money home and gave it to his wife, who testified that about that time her husband handed her four thousand dollars in currency. Eight of the other supervisors testified to going singly to Halsey's rooms in the Mills Building a few days before the twenty-sixth day of February, 1906, and receiving money in currency to vote against the application of the Home Telephone Company for a franchise. Each went into Halsey's room alone, and was paid by Halsey in currency to oppose the application of the Home Telephone Company, and took his departure. No person other than Halsey and the supervisor being paid was present at any payment. Two other supervisors were paid five thousand dollars in currency, each a little later, by Halsey for their friendship to his company, in the matter of the application of the Home Telephone Company. The total of the payments was fifty thousand dollars, exclusive of one thousand dollars paid Lonergan some days prior to his visit to the Mills Building. These payments were all made to carry out one plan and purpose — to secure a majority of the votes of the board of supervisors to defeat the application of the opposition company.

Several of the bribed supervisors returned to Halsey in currency a part of their bribes, aggregating seven thousand five hundred dollars. It was shown that a similar amount ($7,500 or $10,000), also in currency, was returned to the cashier of the company by Halsey, and credited in reduction of the amounts charged on the tags above referred to.

No rational person, with knowledge of the facts concerning the visits of, and payments to, the supervisors other than Lonergan, on learning that Lonergan also visited Halsey at the time he did, and where he did, and about the same time handed his wife four thousand dollars in currency, but would be impressed with the belief that Lonergan also obtained such currency from Halsey, and for the same purpose as his fellows; and this belief would be engendered without any direct evidence of any payment to Lonergan.

The facts testified to by these witnesses, in connection with other facts above mentioned, tended to show that Lonergan was bribed, and with money drawn from the funds of the Pacific States Telephone and Telegraph Company, by Halsey.

"If several and distinct offenses do intermix and blend themselves with each other, the details of the party's whole conduct must be pursued." (Lord Ellenborough in The King v.Whiley, 1 Lead. Crim. Cas. 185.) The several briberies were to secure one result, and were part and parcel of one scheme.

That the testimony in question was properly admitted is amply sustained by the following authorities: People v. Rogers, 71 Cal. 365, [12 P. 679]; People v. Cook, 148 Cal. 341, [83 P. 43];People v. Craig, 111 Cal. 460, [44 P. 186]; People v. Molineux,168 N.Y. 34, [61 N.E. 286]; People v. Wood, 3 Park. Crim. Rep. (N.Y.) 681; People v. Murphy, 135 N.Y. 455, [32 N.E. 138].

The theory of the prosecution in offering said evidence, and of the court in receiving it, was that the evidence is sufficient to charge defendant with criminal responsibility for the various acts of Halsey; and the views we have expressed are based upon such theory, but we do not intimate our views as to the sufficiency of the evidence to support it.

Appellant urges that error was committed in overruling his objection to a question put to the witness King, a director of the Pacific States Telephone and Telegraph Company, as to whether he knew that a salary of twelve hundred dollars or twelve hundred and fifty dollars a month was paid to Abraham Ruef during the period covering the pendency of the application of the Home Telephone Company for a franchise, but as the answer was in the negative no harm was done by the ruling, even if it be conceded to have been erroneous.

The court did not err in allowing the district attorney, over the objection of defendant, to prove by Mr. Pillsbury, the conversation held between him and the defendant concerning the employment of Mr. Ruef. Mr. Pillsbury was the head of the law department of the company; and in answer to the question objected to testified: "I called Mr. Glass' attention to something I had seen in the papers to the effect that Mr. Ruef was employed, or was to be employed, as an attorney for the company, and asked him what there was in it, and he told me that Mr. Ruef was employed. That was about November, 1905. . . . I asked him if Mr. Ruef was employed. He said he was. I told him if Mr. Ruef was to be a member of the law department of the company that it would eliminate me from it, or to that effect, and he said Mr. Ruef was not employed to represent the company in connection with my department, and had nothing to do with it. That was the substance of it."

The evidence relied upon by the prosecution to connect defendant with the bribery of Lonergan was entirely circumstantial, and depended largely upon showing that he was connected with and a party to a scheme to bribe a working majority of the board of supervisors in relation to the application for the franchise which had been pending before the board for several months before the bribery was consummated.

Defendant had already drawn out from the witness Boxton evidence to the effect that Mr. Ruef was the boss of the board of supervisors, with a representative thereon who had distributed bribe money to the members of the board in reference to another ordinance. Another witness, Supervisor Phillips, testified that he had been offered a bribe by Halsey to stand by his company. Phillips answered that he could not do so unless released by the administration, or Mr. Ruef, and then left Mr. Halsey. Later in the day Halsey telephoned to him to come to the Mills Building, which he did. Halsey then stated to him that from what he knew Ruef was favorable, and Phillips then agreed to stand with him, and received two thousand five hundred dollars in currency, and a promise of five thousand when the Home Telephone ordinance was defeated.

The prosecution had the right to contend that, from the conversation testified to by Mr. Pillsbury, the defendant was responsible for the employment of Ruef. Where circumstantial evidence is relied on to connect a defendant with a given crime, much must be left to the discretion of the trial court in admitting it. It is not necessary that each circumstance, of itself, would to every person appear to connect the defendant with the offense. It is sufficient if such circumstance, considered in relation to other facts and circumstances in evidence, may fairly tend to such result.

We do not think there is any merit in the contention made by appellant of variance between the crime charged and the crime proved. The claim of a variance as to the subject matter for which the money was paid to influence Lonergan, is sufficiently answered by what we have said as to the sufficiency of the indictment.

As to the amount of money paid, the indictment charges a payment of $5,000. The proof showed a payment to Lonergan of $1,000 on one day, with a promise of $4,000 more, for Lonergan's friendship for the Pacific States Telephone and Telegraph Company, which was in fact paid a few days later. Proof of the payment of either $1,000 or $4,000 would have supported the substance of the charge in this regard. Proof of the larceny of $4,000 or $1,000 would sustain a charge of the larceny of $5,000. So it is perfectly clear to us that under a charge of paying $5,000 as a bribe, proof of the payment of such sum in two payments under an agreement to pay and to receive $5,000, as a bribe to do a certain thing, presents no question of variance as to the thing paid as the bribe.

Defendant requested the court to give to the jury certain instructions, numbered 4 and 5, as follows: —

4. "You have no right to indulge in any presumption or inference unfavorable to the defendant because of the refusal of any witness to testify, or the failure of any witness to testify for the prosecution."

5. "The refusal of an alleged co-conspirator, or agent of the conspiracy, who has been placed on the witness stand, and refused to testify, should not be considered by the jury in determining the guilt or innocence of the defendant, and the jury should not presume from such refusal to testify that the testimony of the witness, if given, would be against defendant."

Both of these instructions state a correct rule of law; and that they were pertinent to the case is shown by the following circumstances: The case was submitted to the jury on the evidence introduced by the prosecution, no evidence being introduced by defendant. Evidence had been introduced tending to show that one E.J. Zimmer was the auditor of the Pacific States Telephone Telegraph Company; that the checks, aggregating between forty thousand dollars and fifty thousand dollars, upon which the prosecution claimed the money had been drawn, with which Lonergan and his fellows had been bribed, were drawn by order of said Zimmer, and were delivered to him. When delivered to him the checks bore the signature of the treasurer of the company, but required to be further signed, by any one of the following names: "Henry T. Scott, President," "E.J. Zimmer, for the President," or "Louis Glass, Vice-President." The prosecution called E.J. Zimmer as a witness, and put to him the following questions: "What were your duties as auditor?" "You testified fully before the grand jury in this matter, did you not, Mr. Zimmer?" "Mr. Zimmer, did you answer that question before the grand jury, that I have just asked you here, to wit, as to what your duties were as auditor of that company?"

Mr. Zimmer refused to answer each of these questions, upon the ground that it would have a tendency to subject him to punishment for a felony. He was not compelled to answer.

In the closing argument the attorney of the people claimed that the evidence showed that Zimmer, Glass and Halsey were each guilty of bribing Lonergan; and with reference to Zimmer he used this language: "Mr. Zimmer's name appears on the indictment as a witness before the grand jury. You have not heard what he testified to. You have not received any intimation of what he testified to, although I would have been justified, in making my opening statement in this case, to have said to you what I expected to prove by E.J. Zimmer, whom I called as a witness in this case. I did not do it, because I want to play the game square. I would have had a right to say what I expected to prove, because I had a right to expect that every citizen in the state of California would perform his duty and comply with the social compact by which he receives protection to his life, his property, his wife and his children. I had a right to expect that when Mr. Zimmer was called upon this stand as a witness, he would tell what he knew, and not protect crime by the claim that it might tend to incriminate himself. But, as I say, out of a spirit of fairness, I did not say anything in my opening statement as to what I did expect to prove by Mr. Zimmer, and therefore there is nothing before you."

This language was well calculated to impress upon the jury that the evidence that Zimmer refused to give would have tended to prove the defendant guilty; that his refusal to tell what he knew was to "protect crime." No objection appears to have been made to these remarks of the district attorney, and we only advert to them because they emphasize the necessity that the requested instructions should have been given.

In refusing to testify Zimmer was in the exercise of a clear right given to him by the constitution of the state and the statute, for which under the law no inference against the defendant may be drawn.

The precise point involved in the refusal to give the instructions now under discussion was decided in People v. Irwin,77 Cal. 494, [20 P. 60], where the court said: "The court also erred in refusing to instruct the jury that the refusal of the alleged conspirators, who had been placed on the witness stand and declined to testify, should not be considered by the jury in determining the question of guilt or innocence, and that the jury should not presume from such refusal to testify that the testimony, if given, would be against the defendant."

The language of the refused instruction numbered 5 is taken almost literally from the language above quoted. It contains a correct statement of the rule of law applicable to the condition of this case, irrespective of the remarks made by the district attorney, and these remarks made it all the more necessary that the requested instructions, or one embodying the rule stated, should have been given. The court erred in refusing to give the requested instructions. (People v. Irwin, 77 Cal. 494, [20 P. 60]; see, also, People v. Opie, 123 Cal. 294, [51 P. 989];Phelin v. Kenderdine, 20 Pa. St. 354; Beach v. United States, 46 Fed. 754.)

The court did not err in refusing an instruction requested by the defendant, to the effect that, in passing upon the credibility of witnesses, the jury have the right to take into consideration their motives, fears, or hopes, if any have been proved. This was sufficiently given by the court in reading to the jury section 1847 of the Code of Civil Procedure. "Fears or hopes" but express an amplification of "motives," and really add nothing to the meaning of section 1847

In addition to the points discussed in this opinion, appellant has urged that the evidence is not sufficient to support the verdict of guilty. Inasmuch as the judgment and order must be reversed for the errors above noted, and the case remanded for another trial, we do not deem it necessary to pass upon this question.

The judgment and order are reversed, and the cause remanded for a new trial.

Cooper, P.J., and Kerrigan, J., concurred.