Crim. No. 216. First Appellate District. March 3, 1910. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. G. FREDONI, Defendant and Appellant.

[1] CRIMINAL LAW-AIDING AND ABETTING CRIME-INSTRUCTION— USE OF "OR" INSTEAD OF "AND"-DEFECT CURED BY OTHER INSTRUCTIONS.-An instruction in a criminal prosecution to the effect, that all persons concerned in the commission of a crime, whether they directly commit the 'act, "or" aid or abet in its commission are principals, is not injurious, where it clearly appears that the jury were also instructed and understood, that unless the defendant crim inally aided in the commission of the offense they could not find him guilty thereof.

[2] ID.—ID.—ID.-ID.-INNOCENT AID-ABSENCE OF EVIDENCE-IN. STRUCTION NOT MISLEADING.-It is also held, that the jury could not have misapplied the instruction, as there was no evidence tending to show that the defendant innocently aided in the crime.

Appeal from the Superior Court of Fresno County-Geo. E. Church, Judge.

For Appellant-Henry Brickley, W. D. Foote.
For Respondent-Attorney-General Webb.

The defendant was found guilty of the crime of robbery, and sentenced to a term of six years in the state prison at Folsom. He prosecutes this appeal from the judgment and the order denying his motion for a new trial.

The first claim made is that the court erred in instructing the jury that "All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid or abet in its commission, or, not being present, advise and encourage its commission, are principals in any crime SO committed." This instruction was again substantially repeated in a different form; and it is said that the instruction was erroneous and injurious to the defendant, for the reason that section 31 of the Penal Code makes those persons guilty of a crime who "aid and abet in its commission."

A person who innocently aids in the commission of a crime would not be guilty; and if the instruction given was the only one upon the question, and if the evidence showed that the aid given by defendant might reasonably have been consistent with his innocence, the objection would be serious; but upon an examination of the record we find that the court elsewhere instructed the jury that in order to find the defendant guilty the evidence should show "beyond all reasonable doubt and to a moral certainty that the defendant was unlawfully concerned in the commission of the crime as charged in the information;" and again, that if the jury find beyond all reasonable doubt that the crime as charged in the information was committed, and "that the defendant was unlawfully concerned in its commission, and that he, the said defendant, acted together with some other person or persons in the commission of said crime, each unlawfully aiding and abetting in its commission in his own way, then I instruct you that it is all the law requires to make the defendant guilty of the crime charged." The court further charged the jury that unless they believed beyond all reason

able doubt that a crime had been committed as charged in the information, and "that the defendant was unlawfully concerned in its commission, and that he, the said defendant, acted together with some other person or persons in the commission of said crime, each unlawfully aiding and abetting in its commission in his own way, then I instruct you that it is all that the law requires to make the defendant guilty of the crime charged."

[1] It therefore appears clear that the jury were instructed and understood that unless the defendant criminally aided in the commission of the offense they could not find him guilty. This cured the defect in the instruction complained of. (People v. Dole, 122 Cal. 486; People v. Warren, 130 Cal. 683; see also People v. Price, 9 Cal. App. Rep. 218, where it was held that the use of the disjunctive "or" instead of the word "and" could not have misled the jury, and was not injurious to the defendant.)

[2] Not only this, but there was no evidence even tending to show that the defendant innocently aided in the crime, and therefore the jury could not have misapplied the instruction (People v. Morine, 138 Cal. 626).

The next contention is that the court erred in admitting "over the objection of defendant" evidence tending to prove a subsequent and distinct robbery. It is sufficient to say that we have examined the record, and find that no objection was made to the evidence. Therefore we decline to discuss the merits of the contention. The judgment and order are affirmed.

We concur:

HALL, J.

KERRIGAN, J.

COOPER, P. J.

Crim. No. 109. Third Appellate District. March 3, 1910. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. AGOSTINO BORELLO, Defendant and Appellant.

Appeal from the Superior Court of Amador County-R. C. Rust, Judge.

For Appellant-Jas. H. Creely and Alfred H. Cohen.

For Respondent-U. S. Webb, Attorney-General; J. Chas. Jones, Assistant Attorney-General; C. P. Vicini, District Attorney, and Benjamin P. Tabor.

ON PETITION FOR REHEARING.

The petition of appellant for a rehearing asserts that the court, in its opinion filed herein, misapprehended the evidence with regard to the circumstances under which the confession of the defendant was obtained by the prosecuting officers. in the opinion we declared that it appeared from the stenographer's report of the interview of the defendant by the district attorney and sheriff on the evening of February 9, 1908, on which occasion the accused admitted his guilt, that those officers had interviewed the defendant on the preceding evening and that he had then admitted that he

had a hand in the burning of the building. And, after a re-examination of the record, we find that such is the fact. But our attention is called by the petition to other portions of the record wherein the district attorney and the sheriff stated that the defendant made no confession on the previous evening.

In view of the apparent conflict which exists in the record upon this proposition, we think the case should be reopened for further consideration. Therefore, the petition for a rehearing is granted upon the question whether it sufficiently appears from the record that an admission of guilt was made on the 8th of February to justify the conclusion reached by this court in the opinion heretofore filed herein, and upon the further question whether, assuming that it becomes clear that ne admission of guilt was obtained from the accused on February 8th, the circumstances under which the alleged confession was obtained on February 9th were such as to render said confession inadmissible, because involuntary.

Civil No. 625. Third Appellate District. March 3, 1910. 0. FOUNTAIN and SAVINGS BANK OF SANTA ROSA (a Corporation), Plaintiffs and Respondents, v. CONNECTICUT FIRE INSURANCE COMPANY, of Hartford, Conn. (a Corporation), Defendant and Appellant.

[1] FIRE INSURANCE LAW-ACTION ON POLICY-AFFIRMATIVE DEFENSE "FALLEN BUILDING" CLAUSE-FAILURE TO ESTABLISH BY "PREPONDERANCE OF EVIDENCE."-It is held, in this action to recover upon a policy of fire insurance, that the defendant failed to establish by a preponderance of the evidence, its affirmative defense founded on the "fallen building clause" of the policy.

[2] ID.-EVIDENCE-"PREPONDERANCE"-ELEMENTS AND TESTS.-The question whether a fact is established by a "preponderance of evidence" is not determinable alone from the mere number of witnesses whose testimony goes to the proof of such fact, nor by the fact that the testimony addressed to the proof of the fact in dispute may be direct, while that offered to overcome it may be entirely circumstantial.

[3] ID.-EVIDENCE-CREDIBILITY OF WITNESSES-QUESTION FOR JURY. -It is for the jury to pass upon the credibility of the witnesses and to draw any reasonably permissive inferences from their testimony. [4] In-MOTION FOR NEW TRIAL-INSUTFICIENCY OF EVIDENCE TO SUPPORT VERDICT-ORDER DENYING MOTION-APPEAL-DUTY OF APPELLATE COURT.-Upon an appeal from an order denying a motion for a new trial on ground of the insufficiency of the evidence to support the verdict of the jury, if there is any evidence upon which the jury could have found its verdict, it must be upheld.

[5] ID. "FALLEN BUILDING" CLAUSE OF INSURANCE POLICIES-ACCEPTED INTERPRETATION.-The meaning of the clause in fire insurance policies that "if a building or any part thereof, fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease," when reasonably interpreted, is that the insurer is excused from its obligation by either the fall of the building as a structure, or of such a substantial and import

ant part thereof as impairs its usefulness as such, and leaves the remaining part of the building subject to an increased risk by fire. [6] ID.-CONSTRUCTION OF "FALLEN BUILDING CLAUSE"-INSTRUCTION TO JURY-DESTRUCTION OF DISTINCTIVE CHARACTER OF BUILDING— CONSIDERATION OF ENTIRE CHARGE-ABSENCE OF PREJUDICIAL ERROR.— It is held herein, that the portion of an instruction to the effect, that in order to avoid the policy the falling must be of some substantial portion of the building which "would destroy its distinctive character as such", was not prejudicially erroneous, when read in connection with the other portion thereof, declaring "that notwithstanding such injury to the building, if it was substantially standing as a building, so as not to increase the risk to plaintiff's goods by fire and in that condition it was burned", the defendant would not be exempted from liability, and with other instructions explicitly explaining what would constitute such a falling as would avoid the insurance under the policy.

[7] ID.-ID.-ID.-REFUSAL OF REQUESTED INSTRUCTION-ABSENCE OF PREJUDICE.-It is held, that the refusal to instruct the jury that "if such part of said building fell as would, if said building were not repaired, have impaired the usefulness of said building, then, in that case, all insurance under the policy sued on is void", was not prejudicial, as the charge given covered such principle.

[8] ID.-EVIDENCE-PROOF OF ALLEGED CAUSE OF FALL ON OTHER BUILDINGS WHEN ADMISSIBLE.-It is not error to refuse to allow a fire insurance company, in an action on a policy where the fallen building clause is relied on as a defense, to prove the effect of the alleged cause of the fall (earthquake) upon other buildings located in the block in which the building containing the insured property was situated, in the absence of preliminary proof of a substantial similarity in the nature of construction and that the force of the earthquake was practically uniform in such block.

Appeal from the Superior Court of Sonoma County-Thos. C. Denny, Judge.

For Appellant-A. B. Ware and T. C. Van Ness.

For Respondents-T. J. Geary.

This is an action by the plaintiffs to recover upon a policy of insurance issued by the defendant and covering certain goods or merchandise contained in a certain brick building in the city of Santa Rosa, known as the "Shea Building."

The complaint sets out in general terms the conditions and covenants of the policy and alleges that, on the 18th day of April, 1906, the goods upon which said policy was issued were destroyed by fire; that, thereafter, and in due time, plaintiffs furnished the defendant with proof of their loss, and that said defendant has not paid the said loss or any part thereof, etc.

The answer, in addition to denials of the material allegations of the complaint, pleads as an affirmative defense the claim that the building in which the insured goods were situated at the time of their destruction by fire, or a substantial part of said building, had, before said fire had attacked the goods, fallen as a result of the shock of the earthquake which occurred on said 18th day of April, 1906. This defense is founded on the following provision of the policy declared upon: "If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease."

The cause was tried by a jury and verdict returned in favor of the plaintiffs for the sum of $1,000.00, the sum for which the policy

called together with interest on said amount in the sum of $116.66. The court thereupon entered judgment for plaintiffs in conformity with the terms of said verdict.

This appeal is from the order denying defendant's motion for a new trial.

Besides the general verdict, the jury returned answers to a number of particular questions of fact submitted to them by the court.

The validity of the general verdict and the answers to the particular questions of fact are assailed by the appellant upon several grounds: 1. That they are not justified by the evidence; 2. That the court misdirected the jury in matters of law; 3. That the court erred in its rulings admitting and rejecting certain testimony; 4. That the court erred in refusing to compel the jury to return definite answers to certain of the particular questions of fact submitted to them. It is further insisted that the refusal of the court to submit to the jury certain instructions proposed by the defendant involved rulings prejudicial to the defendant.

The dispute between the parties to this action is one of a number of the same kind and involving like issues of law and of fact which have found their way into the courts of this state through the earthquake and fire occurring in many of our coast cities in the month of April, 1906, and the real controversy here, around which revolve all the points upon which a reversal of the order is demanded, arises out of the question presented by the affirmative defense set up in the answer, viz: Whether there had fallen, prior to the time at which the fire attacked the insured merchandise, a material or substantial part or parts of the building in which the plaintiff's store was situated.

The burden was cast upon the defendant to prove by a preponderance of the evidence the contention founded upon its affirmative defense. If the court's interpretation of the "fallen building" clause of the policy sued on, as declared in its charge to the jury, is correct, then, in our opinion, there plainly exists a substantial conflict in the evidence upon the vital point or issue tendered by the special or affirmative defense. Or, to put the proposition more accurately, assuming the court properly interpreted the clause mentioned, the defendant failed to sustain the burden cast upon it to satisfactorily prove the claim involved in its affirmative defense. We think the law of the case was well and correctly stated by the court, as we shall presently undertake to show by both reason and authority. We shall, therefore, first briefly examine the testimony for the purpose of showing that the most that can be claimed by the defendant in that regard is that some of its witnesses gave testimony which, had it been accepted by the jury, would undoubtedly have been sufficient to have sustained a verdict returned in harmony therewith against the power of a reviewing court to disturb it.

The store in which the insured goods were situated and destroyed was a part of a building known as the "Shea Building", but sometimes referred to by the witnesses as the "Eagles' Building" and the "Fountain Building."