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in such proceedings. But this court has held, zen is interested-in punishing and preventing that our statute is not declaratory of the the crime of perjury; but the perjury in this

case was calculated to inflict upon the wife of common-law rule; that there are other inter- I defendant a direct private injury to her indi. ests not only affecting society at large, but vidual rights and interests. That the crime also peculiarly affecting the marital rela- was against her, in the sense in which every tions, which are as sacred to be protected as

crime is an injury to a particular individual,

cannot be doubted. In the first place, the perprosecutions involving the elements of vio jury was liable to deprive her of the right of lence. Therefore this court held in the case making defense; if deprived of that right, she of Heacock v. State, 4 Okl. Cr. 606, 112 Pac. mig Ola Cr 606 119 Pas might be wrongfully deprived of her husband,

and of her right to support from his estate or 949, that in a prosecution for adultery the from his labor; besides, if divorced, she would husband or wife is a competent witness to be subjected to the stigma of having been false prove the offense. Also in the case of Hun- to her marital vows. A decree of divorce, in the ter v. State, 10 Okl. Cr. 119, 134 Pac. 1134,

estimation of all good people, causes ignominy

and disgrace to fall, more or less heavily, acL. R. A. 1915A, 564, Ann. Cas. 1916A, 612, it cording to the nature of the case, upon the party was held:

adjudged to be in the wrong. The rule of the "In a prosecution against a father for will

common law that a wife may testify against

her husband in a case where he is charged with fully failing to supply his children with neces

a crime of violence against her person rests, it sary food, clothing, shelter, or medical attendance, his wife is a competent witness against

is said, upon the principle of affording her the means of self-protection. In the ruder period

in which the common law took its rise life and In that case the court, speaking through limb were principally regarded. Property was Furman, J., said:

also esteemed worthy of protection. But the "In reason and in justice we believe that,

property rights of the wife were greatly re

stricted, and her personal status was almost enwhenever a husband or wife is guilty of conduct

tirely merged in that of her husband. In the which constitutes a public offense, and which also constitutes a direct violation of the legal

present age there have been great changes; oth

er than tangible things are more highly esteemrights of the other, the crime is against such

ed. Should it, therefore, be deemed strange other, as well as against the public, and that I

that modern legislation should give the wife the such husband or wife should be permitted to

means of protecting that which is often dearer testify in all such cases. Suppose a husband should publish a libel or slander upon his wife,

to her than life, liberty, or property ?" would it not be a prostitution of reason, and a

The reasons given and the argument supmockery upon justice to exclude her evidence, upon the ground that it would impair the sanc

porting those reasons that the wife is a comtity of the home and destroy the confidence, petent witness against her husband in a peace, and harmony of the marital relations to prosecution such as this meet the entire appermit her to testify? Many other illustrations

proval of this court. The doctrine is firmly could be offered. What we are after is the principle involved. the ground upon which the tes-establish

established in this state, and we do not pro timony of the wife is excluded. Considering the pose at this time to take a backward step. substance rather than the form of things, we

This crime was peculiarly injurious to the are of the opinion that the idea that the wife can only testify against her husband for an

wife. It was a crime committed against her assault committed upon her person is a relic to her particular injury. It tended to de of barbarism... We decline to perpetuate any | prive her of certain legal and property such idea in Oklahoma."

rights protected by the laws of this state. In the case of Dill v. People, 19 Colo. 469,

In our opinion, it would be absurd to say 36 Pac. 229, 41 Am. St. Rep. 254, the exact

that the false making of such an affidavit in question here involved was under considera

a divorce proceeding was not a crime against tion by the Supreme Court of Colorado, and

her. It is also immaterial whether or not that court in a very able and exhaustive

exhaustive by reason of such affidavit a divorce was obopinion by Elliott, J., held:

tained. It was through no fault of this ap"Where a husband is indicted for willful and

| pellant that discovery was made of his atcorrupt perjuis in maning a false atfidavit in a suit for divorce against his wife, the wife is tempt to obtain a divorce through perjury a competent witness for the state on the trial and fraud upon the court, and had not this of such indictment."

been discovered and prosecution commenced In the body of the opinion it was said: two days before the case was set for trial "In the case at bar, defendant was charged | we doubt not that by such means this appelwith committing the crime of perjury in an action for divorce against his wife. The purpose

laụt would have procured his divorce. It of the affidavit was to aid him in his suit against is also immaterial, as we view the matter. her; it was to give the court jurisdiction of the whether or not had such divorce been obtaincause without personal service of process upon

ed this prosecuting witness could have by law his wife; and the object of that portion of the affidavit of which perjury is predicated was to

set it aside. Such corrupt practices must be enable him to give the court jurisdiction with put to an end, and under our criminal proout mailing a copy of the summons to his wife,

cedure it is the duty of this court to so conIf in making such affidavit defendant committed perjury, the effect of his crime was to dimin

strue the law that the purposes for which ish the wife's chances of obtaining notice of the it was enacted may be fully carried into efdivorce suit, and thus deprive her of the privi- fect. We are required under our statutes to lege of making any defense. It is clear, therefore, that she was the particular individual

give a liberal construction to the law in order whose private rights and interests would be af- to effectuate its purposes. We admit that in fected by the crime. It is true the crime of the case of People v. Carpenter, 9 Barb. a . perjury committed in such a case was a crime

Y.) 580, it was held that in a proceeding of against the public administration of justice ; the public are deeply interested-every good citi- | this kind the wife was not a competent wit

ness against her husband, but the New York y of not more than $1,000, or that the jury court followed the common-law rule, which might find the defendant guilty and assess this court has already seen fit to discard. both a fine and imprisonment. In other We therefore hold that in a prosecution for words, in the Colbert Case the court failed perjury based upon the making of a false to instruct the jury fully as to the punishaffidavit in a divorce proceeding in order to ment provided for the offense by failing to procure constructive service upon his wife give the alternative punishment that might such crime under our statutes is a crime have been imposed, and for that reason, as against the wife, and that she is competent indicated in the opinion, the judgment was to testify for the state.

reversed. Not so in this case. Here the [2] It is also contended that the court court instructed as to the punishment proerred in giving the following instruction : vided by the statute. If counsel for the ap

"The punishment prescribed by the law of the pellant had desired a more definite and cerstate of Oklahoma for the crime charged in the tain instruction than that given, he should information is imprisonment in the state peni- have requested it at the time. This was not tentiary for a period not exceeding five years. done.

Also it is our opinion that the jury If you find the defendant guilty of said of. fense, you will. in addition thereto, assess his was not misled by the instruction given. punishment therefor."

In the case of State v. Rose, 178 Mo. 25, Under the statutes of this state the crime 76 S. W. 1003, it was held: of perjury is punishable by imprisonment in

"An instruction that the jury, on finding dethe state penitentiary for various terms of fendant guilty, should assess his punishment at years according to the circumstances under imprisonment in the penitentiary for a term of which the false oath was taken. If taken up years, or by imprisonment in the county jail not

not less than two years or more than seven on a trial for a felony, the punishment is by exceeding three months, was not misleading for imprisonment for a period of not less than failing to designate the minimum punishment by ten nor more than twenty years. If taken imprisonment in the county jail.” upon any other trial or proceeding in a court of justice punishment is for a term of not

In the body of the opinion it is said : less than five nor more than ten years. In "The first contention of appellant is that the all other cases punishment is by such impris- failure of the court to designate by express

terms in instruction No. 1 the minimum punonment not to exceed five years. This of-ishment as to the imprisonment in the county fense comes within the punishment prescrib- jail was unfair to defendant, and constitutes ed in the last provision of the statute, and error, That part of instruction No. 1 of which It is contended on bebalf of the appellant form, the jury to find a certain state of facts,

complaint is made, after requiring, in usual that the instruction is erroneous and prej. concludes as follows: "Then you will find the udicial in that it fails to define the exact defendant guilty as charged in the information minimum term of imprisonment. It will be in this case, and assess his punishment at im. noted that the court told the jury, that, if not less than two years nor more than seven they found the defendant guilty, they should years, or by imprisonment in the county jail not assess his punishment at imprisonment in the exceeding three months.' It will be observed penitentiary for a period not exceeding five that in this instruction the jury are told in ex

press terms what is the maximum punishment years. The instruction therefore was practi- by imprisonment in the county jail-not to excally identical with the statute, except that ceed three months in the county jail. This is the court told the jury that in assessing the the usual form of an instruction intended to punishment the jury must fix a definite period are of the opinion that it is not misleading; and

guide the jury in fixing the punishment, and we of time. In our opinion, this instruction it requires but very ordinary intelligence to was equivalent to saying that the jury might understand, from the use of the terms 'or by fix any period of time not to exceed five three months, that any length of time of im

imprisonment in the county jail not exceeding years' imprisonment. But it is contended prisonment may be fixed, so that it does not that in the case of Colbert v. State, 4 Okl. exceed the time expressly designated. There is Cr. 487, 113 Pac. 561, it was held that an in- no merit in this contention, and it must be ruled

against the appellant.” struction which only states the maximum term of imprisonment and omits to state the We hold, therefore, that where the statminimum or alternative punishment that ute fixes the maximum punishment for an may be imposed is reversible error. The Col- offense, but fails to provide a definite minibert Case is easily distinguishable from this. mum punishment therefor, and the court inIn that case the punishment prescribed by structs the jury as to the punishment pracstatute was "by fine of not more than one tically in the language of the statute, and no Thousand ($1,000.00) dollars, or by imprison- more definite instruction is requested by bent for not more than fifteen years, or by counsel for the defendant, the giving of such both such fine and imprisonment." The court instruction in the absence of such a request in instructing the jury only instructed that, is not prejudicial error. "If they should find the defendant guilty, they It is also contended that the court erred in should assess his punishment which is not giving the following instruction: over 15 years in the state penitentiary." In that case the court entirely overlooked

“The defendant is not required by law to the fact that the jury might find the defend-state to prove his guilt. He is, in law, presun

prove his innocence, but the burden is upon the ant guilty and assess only a fine against himed to be innocent of the offense charged against

him, and of each and every necessary ingredients tract giving him the right of sale, and that deof that offense; and unless his guilt is estab- fendant refused to perform, held to sufficiently lished upon the trial of the case to your satis- state a cause of action for cancellation of the faction beyond a reasonable doubt, or if, after contract. a careful consideration of such evidence, facts, [Ed. Note.-For other cases. see Cancellation and circumstances, you have a reasonable doubt of Instruments, Cent. Dig. $ 68.) as to his guilt, you must acquit him."

15. APPEAL AND ERROR 1170(3)-HARMLESS [3] It is claimed that this instruction is ERROR - AMENDMENT OF COMPLAINT-STATmisleading because of the word "such" be- UTE. fore the word "evidence"; that it left the

Where defendant was not prejudiced by the jury to form their own conclusion as to notice

allowance of an amendment to complaint, after

to notice, the cause will not be reversed therefor, what evidence was meant to be considered. in view of Const. art. 6, § 442, providing that With this we cannot agree, for the reason no judgment shall be set aside for error as to that the instruction, considered as a whole,

| any matter of pleading unless the error com

plained of bas resulted in a miscarriage of jusclearly refers to the evidence, facts, and cir- tice. cumstances established on the trial of the [Ed. Note. For other cases, see Appeal and case. Technical objections of this kind do Error, Cent.Dig. 88 4066, 4075, 4098, 4101, 4542.) not meet with the favor of this court. The Appeal from Superior Court, Riverside substantial rights of the appellant were not County; W. H. Thomas, Judge. prejudiced by this instruction, and it states Action by Joseph M. Sbull against W. H. the law correctly.

Crawford. From judgment for plaintiff and For the reasons above given, judgment of order denying new trial, defendant appeals the district court of Oklahoma county is af Affirmed. firmed.

Miguel Estudillo, of Riverside, for appelDOYLE, P. J., and ARMSTRONG, J., con

lant. McFarland & Irving, of Riverside, for

respondent. cur.

SHAW, J. This action was brought to (33 Cal. App. 36) SHULL v. CRAWFORD. (Civ. 2216.)

cancel and annul a certain conveyance of

real estate made by plaintiff and his wife (District Court of Appeal, Second District, California. Feb. 17, 1917. Rehearing Denied by

to defendant, which instrument, while in Supreme Court April 16, 1917.)

form a deed absolute, was in fact conceded 1. CONTRACTS 261(1)–FAILURE OF CONSID to have been given as a mortgage to secure ERATION-STATUTE.

an alleged indebtedness due from plaintiff In view of Civ. Code, 8 1689, providing for

to defendant. The appeal is from a judgrescinding of a contract if consideration becomes entirely void, plaintiff could rescind an oral

| ment in favor of the plaintiff and an order agreement, whereby defendant agreed, but later of court denying defendant's motion for a refused, to teach plaintiff to sell washing ma new trial. chines and subagencies therefor, upon the strength of which plaintiff purchased contract

It appears that a corporation known as the giving him the right to sell subagencies at an Domestic Utilities Manufacturing Company enormous profit, and for purchase price of which was engaged in the manufacture and sale of he had given a mortgage; it being an unexecut

what was known on the market as the "Vacued contract, and defendant was not entitled to foreclose mortgage and leave plaintiff to an

um Clothes Washer." The company had action for damages.

adopted a lengthy, complex, and confused [Ed. Note.-For other cases, see Contracts, form of agency contract in appointing agents Cent. Dig. $$ 1174, 1177.)

and making sales of its washers to those 2 QUIETING TITLE (2) - MORTGAGE AS who could be induced to nurchase the

who could be induced to purchase the same CLOUD-FAILURE OF CONSIDERATION-RIGHT

in lots of 1,667, and whereby the purchaser OF ACTION.

Since plaintiff could show, in foreclosure ac was allotted the exclusive right to operate tion, failure of consideration for which a mort- in territory selected and agreed upon. The gage was given, he may maintain an action to

form and substance of this contract was, ir remove from his premises the cloud of such mortgage.

not intended as a means for the perpetration [Ed. Note.-For other cases, see Quieting Ti of fraud, well calculated to deceive the untle, Cent. Dig. 88 15, 18, 19, 21-23, 25.]

wary and appeal to the gullible, for the rea3. CANCELLATION OF INSTRUMENTS 22-To son that, while the purchaser was required TAL FAILURE OF CONSIDERATION-NOTICE OF

to pay $5,000 for which he received 1,667 RESCISSION

washing machines, it gave him the right, proWhere there is a total failure of considera- | tion, it is not necessary to give notice of re- vided he could find persons equally unsophisscission before bringing suit to cancel the con ticated, to sell like contracts for $5,000, for tract.

each of which he was to retain as his com[Ed. Note.-For other cases, see Cancellation

mission $3,333, the balance of $1,667 going to of Instruments, Cent. Dig. $ 30.]

the company for the 1,667 washing machines 4. CANCELLATION OF INSTRUMENTS 37(8)— TOTAL FAILURE OF CONSIDERATION-SUFFI

which it furnished to the purchaser of the CIENCY OF COMPLAINT.

contract, who likewise was given the righ:, Complaint alleging that defendant orally upon like inducement, to search for "prosagreed to teach plaintiff to sell washing machines

| pects” and, if found, develop them if posand subagencies therefor at an enormous profit, pecta whereby plaintiff was induced to make the con- ( sible. The evidence, however, shows that I

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

render one a successful agent in selling the fendant Crawford to put on said lectures as vacuum washing machines, and particularly hereinbefore alleged, and to educate, post, in selling the contracts, from which latter and inform said Shull in the use of said the profits were to be derived, required that washers and in the methods to be pursued in the agent or purchaser be "posted, informed, securing other agents and subagents for the and educated"; so the contract provided said company was the sole and only considthat an agent making a sale of "family eration which induced the said plaintiff rights," or to persons to whom he might sell Shull to enter into said agreement with said "said articles at wholesale," or those "ap- defendant Crawford, or to accept an appointpointed as subagents," should "post, inform, ment as agent of said corporation, or to exeand educate" them. Whether or not defend-cute said contract as agent with said corant was the holder of one of these valuable poration, or give said note for $3,333 secured contracts is immaterial; at all events, it ap-as hereinabove alleged ; that said plaintiff, pears that he was authorized to sell the Shull, has, by reason of the failure of said same, and selected Riverside as a fertile field defendant, Crawford, to put on said lectures for operation, and where it seems his labor and instruct and inform and post him in the was rewarded by the discovery of plaintiff,

use of said washers, been unable to sell said who was recognized as a “likely prospect." washers or to interest the public therein, or Defendant, it seems, was what is known as a to secure other agents or subagents for said "lire wire” in the business, and without much company"; that had plaintiff known that effort convinced plaintiff that he, too, upon said Crawford would not fulfill his said being "posted, informed and educated,” could, agreement, plaintiff would not have purchaswith like success, find unsophisticated in- ed said contract, and would not have given dividuals whom he could induce to buy the the mortgage to secure to defendant the payprivilege of making like sales in this endless ment from him of said sum of $3.333; all of chain scheme.

which allegations the court, in effect, found On September 22, 1911, defendant consum- to be true. It is also alleged that said deed mated the sale of a contract to plaintiff, un- so given as a mortgage, if left outstanding, der which the latter was appointed the duly would constitute a cloud upon plaintiff's title authorized agent of the company in the ter to the real property therein described. ritory embracing the city of San Diego, and [1] The theory of the complaint, and that received the 1,667 vacuum clothes washers, I upon which the action was tried, was that with the power to sell like contracts of agen

the mortgage was given to defendant, which cy, for which washers he paid defendant as

in fact it was, and not to the utilities comthe agent of the company the sum of $1,667,

pany, which received from plaintiff all that and at the same time executed to defendant

was due to it; that the consideration for the the mortgage as security to him for the pay

mortgage so made to defendant was his ment of his commission of $3,333, which

agreement to perform certain services, withplaintiff knew he was to receive. In his

out which promise plaintiff would not have complaint plaintiff alleges, and the evidence

bought the contract so made by the utilities shows, that, in consideration of his purchase

company, sale of which was made to him by of said contract, the defendant orally promis

defendant; that defendant refused to pered and agreed that he would "post, inform,

form the services constituting the considand educate" plaintiff with reference to said

eration for the sale so made by defendant to clothes washer, so that he would fully un

plaintiff, and upon the ground of a failure of derstand how to operate and demonstrate

consideration moving to plaintiff from de. the same to the best possible advantage, and

fendant, there remains nothing upon which enable him to secure the appointment of

to found plaintiff's promise to pay to defendother agents and subagents, and further

ant the $3,333 for which the mortgage was agreed "that upon said plaintiff's selecting

given; and likewise for a failure of conthe territory in which he desired to have the

sideration defendant is not entitled to a foreexclusive right to sell said washers, that said

closure of the mortgage, which he sought by defendant, Crawford, would accompany said plaintiff to said territory, and would put on

a cross-complaint. Plaintiff was not seek

ing to rescind the written contract made lectures for a period of two months, said lectures to be delivered daily during said period

with the utilities company under and by virwith the exception of Sundays"; that plain

tue of which he obtained the 1,667 washing tiff selected the city of San Diego as terri. machines, but sought to rescind the oruul tory, where he opened offices for the trans- agreement made with defendant whereby he action of said business, and demanded that was induced to enter into the written condefendant put on lectures for the purpose tract, for failure to perform the services in of demonstrating and assisting him in the consideration of which plaintiff purchased sale of said washers, but that defendant at the contract, and to have the mortgage conall times refused to comply with said de- stituting a cloud upon his real estate set mand and deliver said lectures, or to post, in- aside and annulled. Section 1689 of the Civil form, and educate plaintiff in the use of the Code provides that a party to a contract may same or demonstration thereof; "that the rescind the same if the consideration theresaid agreement on the part of the said de- for becomes entirely void from any cause.

The consideration for the purchase of the foral contract made between plaintiff and des contract was defendant's promise of 60 days' fendant, which plaintiff sought to have an. services in posting and educating plaintiff nulled for want of consideration. Considerin the operation and demonstration of said ed upon this theory, we find no prejudicial machines and assisting him in the making error in the rulings of the court. of sales of $5,000 agency contracts at a prof [5] Nor was defendant prejudiced by reait of $3,333, as well as washing machines, son of the court permitting plaintiff to fiie which promise defendant refused to perforia, an amended complaint after notice. Even Nevertheless, appellant contends that he is should we concede such error, it could not entitled to foreclose the said mortgage an:l be said that it resulted in a miscarriage of leave plaintiff to an action for damages. To justice. Section 442, art. 6, Const. our minds, such a course, under the circum In our opinion, the judgment and order stances of this case, would be highly in-appealed from should be affirmed; and it is equitable. In support of this contention so ordered. counsel for appellant cites the cases of Lawrence v. Gayetty, 78 Cal. 132, 20 Pac, 382, 12 We concur: CONREY, P. J.; JAMES, J. Am. St. Rep. 29, and Schott v. Schott, 168 Cal. 342, 143 Pac, 595, in which the plain

(33 Cal. App. 42) tiffs sought to have deeds, which had been made and delivered upon the promise of the

MARVIN V. ENG-SKELL CO. (Civ. 1886.) grantees to support the plaintiffs during their (District Court of Appeal, First District, Cal

ifornia. lives, set aside. Such relief was denied up

Feb. 19, 1917. Rehearing Denied

March 21, 1917. Denied by Supreme Court on the ground that the transaction constituto

April 19, 1917.) ed a fully executed contract. Such, however, 1. SALES 417 REMEDIES OF BUYER is not the case here. It is an unexecuted

FRAUD OF BUYER-SUFFICIENCY OF EVI. contract like that involved in Howlin v. DENCE. Castro, 136 Cal. 605, 69 Pac. 299. Plaintiil written contract to sell and deliver block tin

In an action for damages for breach of a has not parted with his property, but bas pipe, eridence held insufficient to show that the merely given mortgage thereon to secure contract was procured by plaintiff's fraud and his promise to pay defendant $3,333, which misrepresentations. the defendant by a cross-complaint is seek

[Ed. Note.- For other cases, see Sales, Cent. ing to enforce.

Dig. § 1173.) [2] To our minds, plaintiff, as a defense to 2. DEPOSITIONS 81 – FAILURE TO ATTACH

SEAL OF COURT-ADMISSION IN EVIDENCEthe foreclosure action, is entitled to show a

STATUTE. failure of the consideration for which the Where a deposition of a witness, taken out mortgage was given; and, if this be true, it of the state on a commission, did not have atmust follow that he has the right to main-tached to it the seal of the court, as required tain an action to remove the cloud from the by Code Cir: Proc. $ 2024, so that tho court

granted motion to suppress it, but later, on title to his property.

learning that the witness was not in New York, [3] There was a total failure of considera- where he was when the deposition was taken, tion for plaintiff's promise to defendant, avd but somewhere in South America, and that to

liave the deposition taken again would cause an hence it was not necessary to give notice of indefinite delay, the court properly granted morescission before bringing suit to cancel the tion to amend the process of the court by afmortgage. Glass v. Glass, 4 Cal. App. 601, fixing its seal, permitting the deposition to be 88 Pac. 734: Richter v. Union Land, etc., read in evidence, since the court has control

over its process, and it should permit an amendCo., 129 Cal. 367, 62 Pac. 39.

ment in the interest of justice, especially when [4] In our opinion, not only did the com- the party complaining can show no resulting inplaint state a cause of action, but the findings jury. to the effect that the allegations of the com

[Ed. Note.--For other cases, see Depositions,

Cent. Dig. $8 213-217.) plaint were true support the judgment, and they in turn are supported by the evidence. Appeal from Superior Court, City and The action is not based upon fraud, either County of San Francisco; Daniel C. Deasy, constructive or actual, of the utilities com- Judge. pany, nor that of defendant, but solely upo: Action by M. E. Marvin against the Eng. the ground that since defendant failed to per- Skell Company, a corporation. From a judgform the promise in consideration of which ment for plaintiff, defendant appeals. Af. the mortgage was given, it would be inequit. firmed. able to enforce it.

Wm. J. Hayes, of Oakland, for appellant. Numerous complaints are made as to rul- Louis H. Brownstone, of San Francisco, for ings of the court in admitting evidence. respondent. These alleged errors are based upon appel. lant's contention that the action was one to PER CURIAM. This is an appeal by the rescind the contract between plaintiff and the defendant from a judgment in favor of plainutilities company, instead of which the rul- tiff for $194.80 with interest and costs. ings were based upon the theory of the court The action was brought for the recovery that the subject of the litigation was the l of damages for the breach of a written con

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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