(135 Cal. 266) EOPLE v. HOWARD. (Cr. 763.) MONEY-BOUNTIES-ORDINANCE 1. Pen. Code, § 532, provides that every person who knowingly by false pretenses defrauds any other person of money or property is punishable, etc. Section 661 declares that every person who attempts to commit a crime, but fails, is punishable, etc. Defendant presented a claim to a county board for a bounty offered for squirrels killed within the county, the squirrels being brought from another county. Held that, though the bounty ordinance was illegal, and such invalidity was discovered in time to prevent the payment of the bounty, defendant might be convicted of attempting to obtain money under false pretenses. 2. An instruction, in a prosecution for attempting to obtain money under false pretenses, that there is nothing in the nature of circumstantial evidence that renders it any less reliable than the other class of evidence, and that a man may as well swear falsely to an absolute knowledge of the facts, as to a number of facts, from which, if true, the facts on which guilt or innocence depends must inevitably follow, is not erroneous as invading the province of the jury. 3. Pen. Code, § 1110, provides that on a trial for obtaining money by false pretenses defendant cannot be convicted if the false pretense was expressed in language unaccompanied by a false token or writing, unless the pretense be proven by two witnesses, or one witness and corroborating circumstances. Section 1111 declares that a conviction cannot be had on the testimony of an accomplice, unless he is corroborated by evidence tending to connect defendant with the offense, and that the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof. On trial for attempting to obtain money under false pretenses the court instructed that, while the testimony of an accomplice is admissible, it alone is not sufficient to warrant a conviction, but if it is corroborated by any other witness, or by the facts proved as required by section 1111 of the Penal Code, the jury are warranted in returning a verdict of guilty. Held not erroneous, as failure to instruct that the corroborating evidence must tend to connect defendant with the offense. 4. In a prosecution for attempting to obtain a bounty on squirrels by having certain parties present the squirrel tails to the board of supervisors, and fraudulently pretend that the squirrels were killed in the county, the admission of testimony as to conversations between defendant and his accomplices, after the claim for bounty had been filed, relating to filing more tails at a future time, and also of a sack containing squirrel tails, found on the premises of an accomplice after the commission of the offense, was not erroneous. Commissioners' decision. Department 1. Appeal from superior court, Tulare county; W. B. Wallace, Judge. John A. Howard was convicted of attempting to obtain money under false pretenses, and he appeals. Affirmed. D. E. Perkins and J. S. Clack, for appellant. Tirey L. Ford, Atty. Gen., and C. N. Post, Asst. Atty. Gen., for the People. CHIPMAN, C. Defendant was convicted of the crime of attempting to obtain money under false pretenses. He appeals from the judgment and from the order denying his motion for a new trial. In January, 1899, the board of supervisors of Tulare county passed Ordinance 67, offering a bounty of three cents for any squirrel killed or destroyed within that county. The ordinance required the claims to be supported by affidavit of certain facts, and also provided how and when the claims should be paid. The affidavit was to be accompanied by the tails of the squirrels claimed to have been killed. It is conceded that the ordinance was invalid by reason of some necessary formality in its passage being omitted. Briefly, the information charged defendant with having brought into Tulare county from without that county a large number of squirrel tails, taken from squirrels elsewhere killed, and falsely representing the animals to have been killed in Tulare county, and that defendant attempted to effect his purpose by procuring one Clarkson, a resident of that county, to make the necessary affidavit, present the claims, collect the money, and divide with defendant. It is alleged in the information and appears by the evidence that from and after February 1, 1899, claims were allowed and paid, the board of supervisors supposing the ordinance to be valid, and so continued to be allowed and paid up to the time Clarkson presented the claim in question, and the fact that such claims were being allowed and paid was known to defendant and Clarkson. Clarkson's claim was allowed, and a warrant was ordered by the board and was drawn by the auditor, and Clarkson endeavored to obtain the warrant. The evidence tended to show that defendant brought about 12,000 squirrel tails from Alameda county to Visalia with the intention of getting the bounty offered by Tulare county; that the squirrels from which they were taken were not killed in Tulare county, and that defendant, the better to conceal the crime, and his own connection with it, procured Clarkson, who had been engaged in killing squirrels in Tulare county, to make up and present a claim for part of the animals, and to find some person or persons to present claims for the balance. 1. The point chiefly relied on by defendant is that the crime was not made out, because the ordinance was invalid. It is urged that the officers are charged with knowledge of the law; that on its face the claim showed it to be illegal and its payment not warranted by law, and therefore no pretense or representation could be made to the board which could be the basis of a claim; that the false pretenses intended by the statute are such as assert the existence of some fact calculated to impose upon a man of ordinary caution, and which create the credit given the accused; that, it being the duty of the board to reject all illegal claims, no crime can be predicated of pretenses which could by no possibility create a credit; that, as the claims showed on their face that they were not entitled to * * * * allowance, it must be assumed the officers would do their duty, and reject them; and hence there could be no crime, because no one could be injured or deceived. Sections 72, 532, and 664 of the Penal Code are brought into the discussion. Section 72 declares: "Every person who, with intent to defraud, presents for allowance to any county board, or officer, authorized to allow or pay the same if genuine, any false claim, is guilty of a felony." The ordinance being void, and the board, therefore, not being authorized to allow the claim, this section does not apply. Section 532 declares: "Every person who knowingly, representations or pretenses, defrauds any other person of money or property, * * * * * * by false * * 串 and by thus imposing upon any person obtains credit, and thereby fraudulently gets into possession of money or property, is punishable," etc. Section 664 declares: "Every person who attempts to commit a crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable," etc. Defendant takes the position that neither of these last two sections reaches the case, for the reason that, whether or not he succeeded in collecting the claim, he could not be punished, because the board had no authority to allow it. He puts an illustration thus: Suppose defendant had made a claim for killing cattle, and had presented their tails as evidence, could it be said he was seeking to obtain money by false pretenses, when the board would at once perceive the absurdity of the claim and reject it? The illustration does not meet this case. The board had the power to offer and pay the bounty by ordinance legally adopted, the purpose being to rid the county of a destructive pest. The ordinance was believed to be valid, and claims were then being paid under it. That the board failed to observe the formalities necessary to a valid exercise of the power does not relieve defendant from the criminal intent in seeking to take advantage of the invalid ordinance. The same presumption of knowledge of the law which he seeks to place upon the board attaches also to him, and he must be presumed to have known that he was attempting to obtain money from the county to which the law gave him no right. this was not the crime with which he was charged and of which he was found guilty. His crime was in falsely and fraudulently procuring Clarkson to represent that he had killed the squirrels in Tulare county, believing that the supervisors would allow his claim if he succeeded in deceiving them, knowing at the time that they would not do so if he told the truth as to where the squirrels were killed. Clarkson had collected claims under the crdinance for killing squirrels in Tulare county, and, although the board exceeded its authority in allowing them, Clarkson was innocent of criminal intent, since he made no false representations. But ** * * * When, however, he attempted on his own and on defendant's behalf to obtain money from the county by false and fraudulent pretenses, with intent to defraud the county, believing that his claim would be paid, he and defendant were both guilty under section 664, although they failed in their attempt, and they would have been guilty under section 532 if they had succeeded. In this latter case each of them would clearly come within the statute as a "person who knowingly by false * representations or pretenses, defrauds any other person of money or property, * and by thus imposing upon any person obtains credit, and thereby fraudulently gets into possession of money or property." By attempting to violate section 532 defendant brought himself within section 664. The supervisors were deceived, as is evidenced by the fact that they allowed the claim and ordered a warrant drawn for it. That the ordinance was found to be illegal in time to prevent the consummation of the crime intended is immaterial, since there was in fact another crime committed. Defendant might be convicted of the lesser offense. People v. Defoor, 100 Cal. 153, 34 Pac. 642; Pen. Code, § 1159. In Com. v. O'Brien, 172 Mass. 248, 52 N. E. 77, defendant agreed to convey to one Kearns certain shares in a corporation for $2,000. The indictment charged that defendant falsely represented that he owned the shares. The court said: "The next objection is that the agreement set forth contained an illegal understanding to vote with Kearns to employ Kearns as agent of the company, and that this takes away the criminal character of the fraud, as the money was parted with for an unlawful purpose. If we assume that the promise was not merely not enforceable, but illegal, * * the ques tion remains whether the conclusion follows. As is pointed out by Peckham, J., in his dissent [McCord v. People, 46 N. Y. 470], the criminal law has a public end in view, namely, to deter people from swindling. With the greatest respect for the New York and Wisconsin courts [referring to State v. Crowley, 41 Wis. 271, 22 Am. Rep. 719], we think this. end is more effectually reached if we do not read into the absolute words of the statute an implied exception which allows a knave to cheat any one out of his money if the knave can succeed in persuading his victim into a scheme which has any technical elements of illegality on the victim's side. The question of allowing the latter a personal remedy is essentially different." People v. Martin, 102 Cal. 558, 36 Pac. 952. Appellant contends-as his position logically compels him to dothat, had he succeeded in collecting the money, the case would not have been within the statute, and yet it must be conceded that every element of the crime would in that case be present. Buller, J., said in Young v. Rex. 3 Term R. 98: "The ingredients of this offense are the obtaining money by false pretenses and with intent to defraud. * If the intent be made out, and the false pretense used in order to effect it, it brings the case within the statute." Mr. Wharton says: "The rule may be broadly stated that any designed misrepresentation of existing conditions, by which a party obtains the goods of another, is within the statute." 2 Whart. Cr. Law (8th Ed.) § 1135. Defendant would have us read into the plain words of the statute the proviso that the person defrauded shall have a legal right to part with the money or property obtained by the alleged false pretenses. We agree with the Massachusetts court that the statute should not be thus shorn of one of its salutary objects. Appellant quotes as follows: "It is the obtaining of the money or property that is the perpetration of the fraud; not the making of the false pretenses that constitutes the crime,”citing McClain, Cr. Law, § 680; Com. v. Van Tuyl, 1 Metc. (Ky.) 1, 71 Am. Dec. 455. This cannot be unqualifiedly true, for men obtain money every day without committing crime. The essence of the crime lies in obtaining the money or property by false pretenses with intent to defraud, and hence it is that the fact of the illegality of the ordinance is immaterial, since it was the false pretense used with intent to defraud the county, and not any imperfection in the ordinance, that constituted the crime. 2. The correctness of several of the instructions is challenged, but, as defendant comments upon but two of these in his brief, it will be assumed that the other objections are waived. In the course of an instruction correctly defining the two classes of evidence, to wit, direct and circumstantial, the court said: "There is nothing in the nature of circumstantial evidence that renders it any less reliable than the other class of evidence. A man may as well swear falsely to an absolute knowledge of the facts, as to a number of facts, from which, if true, the facts on which guilt or innocence depends most [must] inevitably follow." It is claimed that this part of the instruction invades the province of the jury. It was held in People v. Wilder (Cal.) 66 Pac. 228, that a similar instruction was not prejudicial error. The court instructed the jury as follows: "The jury are further instructed that, while testimony of an accomplice in reference to the crime with which the defendant is charged is admissible in evidence, and the degree of credit to be given his evidence is a matter exclusively for the jury to determine, the testimony of such accomplice alone and without corroboration is not sufficient to warrant a conviction; but if such testimony, as to matters material to the issue, is corroborated by any other witness, is by the facts and circumstances proved by the prosecution in the manner required by section 1111 of the Penal Code of this state, which evidence satisfies the jury of the guilt of the defendant beyond a reasonable doubt, the jury are warranted in returning a verdict of guilty as charged in the information." It is claimed that this instruction does not correctly state the law as laid down in sections 1110, 1111, of the Penal Code. Elsewhere the court gave instructions embodying the provisions of these sections so far as material. We can discover no conflict between the instruction complained of and either of said sections; nor can we perceive any omission of any material portions of said sections in the instructions as given. The court stated substantially that the evidence must tend to connect the defendant with the commission of the offense. 3. It is objected that the court admitted the testimony of witnesses as to conversations had between the defendant and his accomplice, Clarkson, and one Bock, after the claim for bounty which is the basis of this action had been filed with the board, which conversations related to filing more squirrel tails with the board at some future time; also that the court erred in admitting in evidence a sack containing tails, which sack and tails were found on the premises of Clarkson after the commission of the offense charged. It is contended that these matters were no part of the res gestæ, and tended to prove matters having no connection with the offense charged; citing People v. Dilwood, 94 Cal. 89, 29 Pac. 420; Same v. Stanley, 47 Cal. 113, 17 Am. Rep. 401. It appeared that defendant brought with him from Oakland to Visalia a trunk, which he told Clarkson contained 12,000 squirrel tails. To avoid suspicion, defendant proposed that Clarkson should claim for part, and that he should find some other person or persons to file claims for the balance. To this end one Doke was first spoken to, and agreed to enter into the scheme. Clarkson claimed for 4,889, and Doke for 2,700. The balance were taken to Clarkson's house, and a few days later one Bock was brought into the scheme, and was to make claim for the remaining tail. These latter squirrel tails were seized after Clarkson had filed his claim, and upon information given by him to the county officers. The sack in which they were found was identified as having been brought there by defendant with the squirrel tails in it, and as part of the original 12,000. The testimony objected to related to conversations between defendant and Clarkson and Bock shortly after Clarkson had filed his claim. The principal facts to which objection was made were previously stated by the witness without objection. Livermore v. Stine, 43 Cal. 274; People v. Dollor, 89 Cal. 513, 26 Pac. 1086. The judgment and order should be affirmed. We concur: HAYNES, C.; COOPER, C. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and or der are affirmed. (26 Wash. 435) ROBERTS ▼. CENTER.1 the same, claiming the same as a homesteader thereof. Plaintiff thereupon filed his reply, (Supreme Court of Washington. Dec. 3, 1901.) denying the allegations of new matter set out ACTION FOR POSSESSION OF LAND-EVIDENCE ABSTRACT OF TITLE- ADMISSIBILITY PLEADING-FAILURE TO DENY ABSTRACTADMISSIONS-BURDEN OF PROOF-ANSWER. 1. In an action under 2 Ballinger's Ann. Codes & St. §§ 5519-5551, providing that any person who shall, without permission or color of title, enter upon lands of another, and shall refuse to remove therefrom after three days' notice, shall be deemed guilty of unlawful detainer, and may be removed from such lands, an abstract of title is not admissible to prove plaintiff's title, although section 6046 requires such abstract to be embodied in the complaint or appended thereto. 2. Failure of defendant in such action to deny the abstract embodied in or appended to the complaint does not constitute an admission of such abstract, where plaintiff's title and right to possession are specifically denied. 3. Defendant's answer denied that plaintiff was the owner of the lands, or entitled to the possession thereof, and admitted that one of the parties through whom plaintiff claimed had received a patent for the lands from the United States, but alleged the patent to be void, and claimed the lands by virtue of a homestead entry and occupation. Held, that the answer was not one of confession and avoidance, but a denial of plaintiff's title, which placed upon plaintiff the burden of proving such title by competent proof. Appeal from superior court, Pierce county; W. H. H. Kean, Judge. Action by Austin J. Roberts against Lewis W. Center. From an order denying a motion for nonsuit, defendant appeals. Reversed. George W. Fogg, for appellant. Eric Edw. Rosling, for respondent. MOUNT, J. This action was brought under sections 5549-5551, 2 Ballinger's Ann. Codes & St. The complaint alleges, in substance, that the plaintiff was the lawful owner of the lands described; that the defendant, without having title or color of title, wrongfully and unlawfully entered upon said premises; that on May 13, 1899, plaintiff caused notice in writing to be served upon defendant, demanding possession of said property, and requiring defendant to remove therefrom; that defendant refused and failed to remove therefrom, although more than three days have elapsed. Appended to said complaint, and made a part thereof, was an abstract of plaintiff's title. Defendant, in his answer, denied that plaintiff was the owner of the lands, or entitled to the possession thereof, or any part thereof, or had any right thereto; admitted the service of the notice and refusal to vacate, but made no reference to the abstract; and as an affirmative defense, among other things, alleged that the lands described were on August 1, 1893, public lands of the United States, subject to homestead entry, and that defendant, being a qualified homesteader under the laws of the United States, on said date entered said land as such homesteader, and ever since has occupied and resided thereon and cultivated 1 Rehearing denied February 25, 1902 in the answer. The cause came on regularly for trial before a jury on the issues thus made. The plaintiff, to sustain his case, offered in evidence an abstract of title to said premises, certified by the Fidelity-Security Abstract Company to be a full and complete abstract of all instruments in writing recorded or filed for record in the office of the county auditor of Pierce county, Wash. This abstract was by the court, over defendant's obPlaintiff then jection, admitted in evidence. introduced a sheriff's deed in foreclosure, connecting plaintiff with the last grantee named in said abstract, and, after offering the notice named in the complaint, rested his case, whereupon defendant moved the court for a nonsuit against plaintiff for the reason that there was no legal evidence that plaintiff was the owner of the property described. This motion being denied, defendant declined to proceed further, and judgment was thereupon entered for plaintiff. The defendant appeals. Subsequent to the entry of the judgment, other questions were raised and argued on this appeal, but it is not necessary to a determination of the case that these questions be now considered. It was manifestly error of the court to allow the abstract to be admit ted in evidence to prove title in the plaintiff. There is no rule of law which permits a public record to be proved by the certificate of any other person than the officer having such record in his possession. See section 6046, 2 Ballinger's Ann. Codes & St. The fact that the statute requires an abstract of plaintiff's title to be embodied in the complaint, or appended thereto, does not change the rule in this regard. The defendant by his answer had denied that plaintiff was the owner of the premises, and had set up facts which, if true, showed that he had a lawful claim to the possession of the premises. It was therefore incumbent upon plaintiff to prove by competent evidence that he was the owner. Counsel for respondent argues that, because defendant did not deny the abstract of title, it was therefore admitted to be true. If this position is correct, it was not necessary to offer it in evidence. The abstract of title could do no more than show the line of plaintiff's title, and, when the fact that plaintiff was the owner was specifically denied, it was not an admission to fail to deny the abstract, or the paragraph which referred to the abstract as appended to the complaint. The denial that plaintiff was the owner or enti tled to the possession necessarily denied the abstract, which simply showed the chain of title by which plaintiff claimed. By the twelfth paragraph in the answer of defendant it is admitted that a patent to the lands in question was issued by the United States to the Tacoma Land Company. This paragraph also alleged that this patent was and is null, void, and of no effect. Respondent now claims that the said answer, taken as a whole, is one of confession and avoidance, and that therefore the burden of proof was upon defendant. We do not so read the answer. The effect of this paragraph is to deny plaintiff's title. The other parts of the answer stoutly deny that plaintiff has or ever had any title or right of possession. The gist of the pleadings is that by the complaint the title is in plaintiff. By the answer, the title is in the United States, and defendant is in lawful possession. It is therefore the duty of the plaintiff to prove his title by competent proof. The cause will be reversed and remanded, with instructions to the lower court to grant a new trial. The costs of this appeal in favor of appellant. REAVIS, C. J., and DUNBAR, FULLERTON, ANDERS, WHITE, and HADLEY, JJ., concur. (29 Colo. 57) TOWN OF FAIRPLAY v. BOARD OF COM'RS OF PARK COUNTY. (Supreme Court of Colorado. Oct. 7, 1901.) MUNICIPAL CORPORATIONS-TAXATION-CONSTITUTIONAL LAW-LACHES-PLEADING. 1. Mills' Ann. St. § 3953, providing that the commissioners of the respective counties may levy a tax for road purposes, and shall order that such proportion of the tax levied on property located in any city or incorporated town as to the commissioner shall seem just shall be paid to the corporate authorities of such city or incorporated town in the same manner and at the same time that city or town taxes are paid, which shall be used for the sole purpose of improving the streets, etc., is not unconstitutional, in that it attempts to exempt towns from the payment of taxes levied by the county commissioners. 2. Laches in a municipal corporation in bringing proceedings to enforce its right to taxes collected by the county commissioners is not ground for demurrer. 3. Under Mills' Ann. St. § 3953, providing that the county commissioners may levy a tax for road purposes, and that they shall order that such proportion "as the commissioners shall deem just and proper" of the tax levied on property in any city or incorporated town shall be paid to such city or town, the entire subject of apportioning the tax among the towns is within their discretion, and an action by a town will not lie against the county for failure to make such distribution. Error to district court, Park county. Action by the town of Fairplay against the board of county commissioners of Park county. From a judgment of the court of appeals affirming a judgment for defendant, plaintiff brings error. Reversed. C. A. Wilkin, for plaintiff in error. August Pease, for defendant in error. STEELE, J. Fairplay, a municipal corporation within the limits of the county of Park, claims the right to recover from the county her proportion of the road tax collected by the county for the years 1887 to 1894, inclusive, amounting in the aggregate, including interest, to the sum of about $2,000. The statute under which the town claims is as follows: "The board of county commissioners of the respective counties of the state may levy a property tax for road purposes, which shall not exceed one dollar on each one hundred dollars, to be levied and collected in the same manner and at the same time as other property taxes are levied and collected in each year. The commissioners, at the time of making such levy, shall order that such proportion of the tax levied upon property located in any city or incorporated town, as to the commissioners shall seem just and proper, shall be paid to the corporate authorities of such city or incorporated town, in the same manner and at the same time that city or town taxes are paid, which road taxes so set apart and paid to such corporate authorities of such city or incorporated town, shall be used and expended by them, or under their supervision, for the sole purpose of improving the streets, alleys and public highways of such city or incorporated town, and for no other purpose whatever. The funds so collected under the provisions of this section, except the part so set apart for the use and benefit of cities and incorporated towns, shall be apportioned by the commissioners among the several road districts of their respective counties, and the same shall be paid out only on the order of the board of county commissioners." Mills' Ann. St. § 3953. In the year 1887 the county commissioners of Park county, under this section, directed that one mill of the road tax collected on the corporate property of the towns of Como, Fairplay, and Alma be paid to the authorities of said towns, respectively. Since 1887 no action appropriating money under the statute has been taken by the county commissioners. In the first cause of action, claim is made for the amount collected by the county of Park under the resolution of 1887, which it is alleged has never been paid to the authorities of the town. The other seven causes of action are based upon the alleged right of the town to recover the amount actually paid by the town, with interest, for the repair of the streets within the corporate limits. A demurrer was filed to the complaint, and, upon hearing, the demurrer was sustained, judgment was rendered for the defendant, an appeal was taken to the court of appeals, and the case was sent here from the court of appeals. The demurrer, in general, is upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and upon the ground that the plaintiff is barred from enforcing its claim, if it ever had one, on account of its unexplained and culpable delay and laches in not heretofore bringing and taking appropriate proceedings to enforce the same, and also upon the ground that the said claim in the first four causes of action |