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acter stated in the complaint and their rea- that the services were performed for appelsonable value was $1,200; that no payments lant Obear, but, on the contrary, that the had been made thereon; and that demand same were shown to have been performed had been made as alleged in the complaint. for the corporation alone. The record disJudgment was ordered in plaintiff's favor closes evidence tending to show that appelagainst defendant Obear; plaintiff having lant owned all of the stock of the corporadismissed the action as to the corporation. tion, that he represented that he individual

[1] Defendant upon this appeal for the ly owned the property, and that the execufirst time raises a question as to the suffi- tion of the lease in the corporate name was ciency of the complaint to state a cause of done for the purpose of affording some peraction, and this upon the authority of Fair- sonal protection to appellant. The evidence child v. King, 102 Cal. 323, 36 Pac. 649. It further tends to show that the whole conis unnecessary for us here to determine tract was between appellant and plaintiff as whether the case last cited is an existing individuals; that the promise to pay on the authority, or whether a different rule is rec- part of appellant was a personal one. ognized in later cases, notably McDonald v. [6] Appellant's admissions were competent Pacific Debenture Co., 146 Cal. 667, 80 Pac. to bind himself personally, 1090, and Salinas Valley Lumber Co. v. [7] Relley v. Campbell, 134 Cal. 175, 66 Magne-Silica Co., 112 Pac. 1089, in which Pac. 220, is authority for the statement that last case it is said, in referring to a com- where one individual owns all the stock of plaint employing common-law count: a corporation the same is but the corporate "Whatever may be thought of the sufficiency double of the owner of the stock, and such of such a pleading, we will not undertake proof destroys the separate entity of the to overthrow it at this late day.” Irrespec- corporation, and in such event the statetive of the effect of such decisions, we are ments and admissions of the sole owner of of opinion that another well-established rule the stock may be received as establishing may be invoked, namely, that where the par- facts from which an estoppel might arise ties have proceeded to trial upon a pleading, as to the corporation. without objection to its sufficiency to raise [8] It must be the rule that where one proa particular issue, and evidence has been cures services to be performed in connecreceived as to the facts and the issue found tion with property, based upon a belief of upon, the party whose duty it was to object ownership from representations of the parwill not be heard in this court to say that ty sought to be charged, that such party is the finding is not within the issue. Illinois estopped, after such services have been perT. & S. Bank v. Pac. Ry. Co., 115 Cal. 297, formed, to deny ownership. 47 Pac. 60; Wilkins v. Stidger, 22 Cal. 232, [9] Appellant finally contends that the 83 Am. Dec. 64.

judgment is excessive. The action was to [2] Appellant next claims that error inter- recover the reasonable value of services in vened by reason of the action of the trial procuring a tenant and a bond securing the court in sustaining an objection to evidence rental. There is evidence in the record to tending to show that after the lease was the effect that $960 is the usual and ordiprocured plaintiff loaned the tenant money nary charge for procuring a tenant alone to inaugurate and carry on his business. We for a like term at a similar rental, and othsee no error in this ruling. It related sole- er evidence to the effect that the sum found ly to matters arising after the execution of by the court was the reasonable value for the lease and the completion of the contract services in procuring a tenant and a bond involved in this action.

securing the rental. There is evidence in the [3] The fact that the objection to this evi. record to the effect that after the tenant had dence was general and did not specify the been procured and a bond executed securing particulars wherein the same was incompe- the rental, afterwards accepted by appellant tent could not prejudice the appellant, when, as satisfactory, appellant offered plaintiff a as in this case, its immateriality was ap- thousand dollars if he would procure a brewparent from the question itself.

ing company to guarantee the entire $96,000 [4] The mere fact that plaintiff advanced of rental. It is obvious from the fact that money to the tenant, either before or after services had already been performed of the the execution of the lease, in order that he value of $1,200 that, if this offer of a thousmight procure fixtures to be used in leased and dollars was made, it was intended to be premises, would not evince bad faith upon and was in addition to the reasonable value the part of the plaintiff, or even tend to es

of the services theretofore rendered; but tablish an interest inconsistent with the du- such particular surety was not furnished, ty he owed defendant, more especially when tion with the offer of a thousand dollars, and

nor was there any contract made in connecthe uncontradicted evidence is to the effect that plaintiff had and owned no interest in the same is in no sense material. the lease so procured to be executed.

We find no prejudicial error in the record,

and the judgment is affirmed. (5] It is further contended that the evi

(19 Wyo. 170)

or modify a judgment or final order shall be LOBELL 9. STOCK OIL CO.

commenced unless within one year after the (Supreme Court of Wyoming. April 25, 1911.) rendition of the judgment, or the making 1. APPEAL AND ERROR (S_405*)_SUMMONS IN of the final order complained of,” etc. The ERROR-AUTHORITY TO ISSUE.

statutes with reference to the commencement In a proceeding in error, as well as in an of an action are as follows: Section 4351: original action, the clerk's authority to issue "A civil action must be commenced by filing summons is the written precipe therefor.

[Ed. Note.-For other cases, see Appeal and in the office of the proper court a petition, Error, Dec. Dig. $ 405.*]

and causing a summons to be issued there2. APPEAL AND ERROR (8 405*)-TIME FOR on." Section 4352: “The plaintiff shall also PROSECUTING.

file with the clerk of the court a precipe, Under Comp. St. 1910, 88 5111, 5112, re- stating therein the names of the parties to quiring summons to issue on a writ of error as in commencing suit, on precipe; and under the action, and demanding that a summons section 5122, requiring a proceeding in error to issue." And in the chapter treating of the be commenced within one year, a writ of error time of commencing actions, under the head must be dismissed, though the petition was of "general provisions” (section 4305), "An filed within that time where no precipe was filed or summons issued within that time. action shall be deemed commenced, within

[Ed. Note.-For other cases, see Appeal and the meaning of this chapter, as to each deError, Dec. Dig. & 405.*]

fendant, at the date of the summons which

is served upon him, or on a codefendant who Error to District Court, Natrona County. Action between Joseph H. Lobell and the is a joint contractor, or otherwise interest

ed with him," etc. Stock Oil Company. From the judgment,

The question in this case is whether the Lobell brings error. On motion to dismiss.

proceeding in error was cominenced within Writ dismissed.

the meaning of the statute by the mere filing. Frederick J. Lobell, William H. Martz, and of the petition in error within one year from William E. Hardin, for plaintiff in error. the rendition of the judgment—no precipe Norton & Hagens, for defendant in error. for summons having been filed or summons

issued until long after the expiration of that BEARD, C. J. This case is before the time. It is not claimed that there was any court at this time on the motion of defend waiver of the issuance or service of sumant in error to dismiss the proceeding in er- mons, or any attempt to commence the proror for the reason that the same was not ceeding within the year except the filing of commenced within the time allowed by law. the petition. Such being the case, if it was The judgment of the district court became an original civil action, it is clear that, unfinal January 28, 1910, on which date the der the provisions of section 4305, it could motion for a new trial was denied. The pe- not be deemed to have been commenced prior tition in error was filed in this court Jan- to April 8, 1911; that being the date on uary 26, 1911, but no precipe for summons which the precipe for summons was filed. was filed until April 8, 1911, nor was any [1] And in either an original civil action summons issued prior to that date. The mo or a proceeding in error the authority of the tion to dismiss was filed March 29, 1911. clerk to issue summons is the written prec

The statutes governing the question pre ipe therefor. The statute does not presented by the motion are as follows: Comp. scribe what shall constitute the commenceSt. 1910, $ 5109: "A judgment rendered or ment of a proceeding in error, but does prefinal order made by the district court, may scribe that it shall be by petition filed in the be reversed, vacated or modified by the su- proper court, and thereupon a summons shall preme court, for errors appearing on the issue and be served, or publication made, “as record.” Section 5111: "The proceedings to in the commencement of an action." These obtain such reversal, vacation, or modifica- provisions of our statute were taken from tion, shall be by petition in error, filed in a the statutes of Ohio, and the Supreme Court court having power to make the reversal, of that state, as early as the December, 1865, vacation or modification, and setting forth term, held that, while a proceeding in error the errors complained of; thereupon a sum- is not in strictness a civil action under the mons shall issue and be served, or publica- Code, no good reason exists for adopting a tion made, as in the commencement of an ac- different rule in such proceedings from that tion, and a service on the attorney of record prescribed by the Code in civil actions. The in the original case shall be sufficient," etc. court said: "In all suits or proceedings of Section 5112: "The summons mentioned in an adversary character, the court can acthe last section shall, upon the written prec- quire no jurisdiction of the case for the puripe of the plaintiff in error or his attorney, poses of trial or judgment until the party be issued by the clerk of the court in which defendant is brought before it. And so long the petition is filed, to the sheriff of any as the plaintiff neglects to have process iscounty in which the defendant in error, or sued, or any other steps taken with a view his attorney of record is found,” etc. Sec- to bringing in the defendant, and thus givtion 5122: “No proceeding to reverse, vacate, | ing jurisdiction to the court, his action or *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

suit cannot properly be said to have been convict of the crime charged is unmistakably excommenced or to be pending." And it was pressed. held that by analogy the rule in civil actions Cent. Dig. ss 2089, 2090; Dec. Dig. $ 875.*]

[Ed. Note.-For other cases, see Criminal Law, applied to a proceeding in error, and that

DISCHARGE OF such proceeding was not commenced by the 6. CRIMINAL LAW ($_168*)

ACCUSED-FORMER JEOPARDY. mere filing of the petition. Robinson v. Orr,

Though a verdict of guilty of "obtaining 16 Ohio St. 248. The decision in that case property by false representations as charged in has been approved and followed in that state the indictment" is insufficient to sustain a judgsince that time in Bowen v. Bowen, 36 Ohio for obtaining money by false pretense, for fail

ment of conviction under Pen. Code 1901, $ 489, St. 312; McDonald v. Ketchum, 53 Ohio St. ing to find intent to defraud, the judgment on 519, 42 N. E. 322, R. R. Co. v. Ambach, 55 being set aside is not a bar to another prosecuOhio St. 553, 45 N. E. 719, and other cases, tion for the same offense. and was approved and applied by this court Cent. Dig. SS 290-303; Dec. Dig. § 168.*]

[Ed. Note. For other cases, see Criminal Law, in Caldwell v. State, 12 Wyo. 206, 74 Pac. 496, and we see no reason for departing

7. CRIMINAL LAW ($ 168*)-INSUFFICIENT VEB

DICT-FORMER JEOPARDY. from that rule.

Generally, where a verdict is so uncertain [2] No precipe for summons having been that the jury's intent cannot be ascertained, acfiled by the plaintiff in error, and no sum- cused cannot be deemed to have been in jeopmons having been issued within the time ardy so as to entitle him to discharge.

[Ed. Note. For other cases, see Criminal Law, allowed for the commencement of proceed-Cent. Dig. $$ 290-303; Dec. Dig. $ 168.*] ings in error, the motion to dismiss will have to be granted and the proceedings in error

Appeal from District Court, Graham Coundismissed.

ty; before Justice Doan. Dismissed.

Elias S. Kimball and another were con

victed of false pretenses, and they appeal. POTTER, J., concurs. SCOTT, J., did not Reversed and remanded for new trial. sit.

Frederick S. Nave, Archibald C. McKillop,

and W. K. Dial, for appellants. John B. (13 Ariz. 310)

Wright, Atty. Gen., and A. G. McAlister,

for the Territory. KIMBALL et al. v. TERRITORY. (Supreme Court of Arizona. March 25, 1911.)

KENT, C. J. The appellants were indicted 1. CRIMINAL LAW (8 881*) — VERDICT OF under the provisions of section 489 of the "GUILTY"'--SUFFICIENCY. A verdict of guilty implies a finding upon

Penal Code. This section, so far as applicaevery element essential to constitute the offense ble, reads as follows: "Every person who, as .charged, but a verdict which convicts of with intent to cheat and defraud, shall obbut one of several essential elements of an of- tain * * * from any other person fense is insufficient to sustain a conviction for the offense charged.

any money, property, or valuable thing what. [Ed. Note.--For other cases, see Criminal Law, ever, by means or by use of any trick or deCent. Dig. $8 2089, 2093; Dec. Dig. $ 881.* ception, or false or fraudulent representation,

For other definitions, see Words and Phrases, or statement of pretense, or by any other vol. 4, p. 3192; vol. 8, p. 7676.]

means or instruments, or device, commonly 2. CRIMINAL LAW ($ 300*) – PLEA OF Not called the 'confidence game,'

shall GUILTY-EFFECT. A plea of not guilty puts in issue every ma

be deemed guilty of a felony." The jury renterial allegation of the indictment, and there dered a verdict as follows: "We, the jury can be no conviction unless the jury expressly duly impaneled and sworn in the above-enfind against accused on the issue.

titled action, upon our oaths do find the [Ed. Note.-For other cases, see Criminal Law, defendants guilty of obtaining property by Cent. Dig. 88 684-686; Dec. Dig. $ 300.*]

false representations as charged in the in3. FALSE PRETEN SES (8 5*)--INTENT-ESSENTIALITY.

dictment." Intent to defraud is essential to the offense [4] The first assignment of error urged by under Pen. Code 1901, § 489, of obtaining mon- the appellants is that the verdict is insuffiey by false pretense. [Ed. Note.For other cases, see False Pre- that the verdict does not find against the

cient to support a judgment of conviction, in tenses, Cent. Dig. $ 3; Dec. Dig. $ 5.*] 4. FALSE PRETENSES ($ 53*)-VERDICT-SUF

defendants upon the issue raised in the case FICIENCY

upon the indictment and plea of not guilty; A verdict of guilty of "obtaining property the claim being that the verdict finds the deby false representations as charged in the in- fendants guilty of obtaining property by dictment" is insufficient to sustain a conviction under Pen. Code 1901, $ 489, for obtaining mon- false representations, and does not find that ey by false pretenses, for failing to find intent the property was obtained with intent to to defraud, an essential element of the offense. cheat or defraud, or that the false represen

[Ed. Note.--For other cases, see False Pre-tations were in the nature of a confidence tenses, Cent. Dig. $ 65; Dec. Dig. $ 53.*]

game, or that the defendants, or either of 5. CRIMINAL LAW (8 875*)—VERDICT-IMMA- them, knew that the representations, or any TERIAL IRREGULARITIES. Mere irregularity or surplusage in a ver

of them, were false or fraudulent; and, furdict of conviction is immaterial, if intent to ther, that the verdict does not find that the

*

property was obtained within the county in | Ring v. State, 42 Tex. 282; State v. French, which the indictment was found, or that the 50 La. Ann. 461, 23 South. 606; Huffman v. representations were made within such coun- State, 89 Ala. 33, 8 South. 28; State v. ty. The appellants further claim that by Oakley, 103 N. C. 408, 9 S. E. 575; State v. the verdict the jury found the defendants Modlin, 197 Mo. 376, 95 S. W. 345; State v. guilty of a matter not charged against them, Stephanus, 53 Or. 135, 99 Pac. 428; State v. and that the verdict was a verdict of ac- Pollock, 105 Mo. App. 273, 79 S. W. 980; quittal upon the essential elements of the State v. Dewitt, 186 Mo. 61, 84 S. W. 956; offense charged, to wit, the element of in- Harris v. State, 53 Fla. 37, 43 South, 311; tent to cheat and defraud, the element of State v. Parker, 152 N. C. 790, 67 S. E. 35. knowledge or design, the element of the Counsel for the respondent do not, as we knowledge of the falsity of the representa understand their position, controvert the gentions, the element of the confidence game, eral rule, but they claim that, by reason of and the element of venue.

the insertion in the verdict of the words "as [1] The rule is universal that a verdict of charged in the indictment," the verdict in guilty is a finding of the jury upon every this case is not within the rule. A verdict of element necessary to constitute the crime as "not guilty as charged in the indictment” laid in the indictment, and that a verdict is, of course, equivalent to a verdict of not which finds a defendant guilty of but one of guilty, and is a finding by the jury upon all a number of essential elements of a crime of the essential allegations of the indictment. is not a verdict sufficient to sustain a judg. It is also true that in many verdicts there ment of conviction for the crime charged. occur words which can be ignored as sur[2] Under our statutes, the plea of not guilty plusage, but they are words which have not puts in issue every material allegation of the to do with the issues directly raised by the indictment, and no judgment of conviction plea of not guilty, as, for example, in the can be given unless the jury expressly find case.of People v. Jochinsky, 106 Cal. 640, 39 against the defendant upon the issue. The Pac. 1077. There the verdict was, “We, the verdict of the jury in the case before us jury, find the defendants guilty of burglary found the defendants guilty of obtaining in the first degree, and we further find that property by false representations as charged the goods taken from Prince's store on the in the indictment. The obtaining property night of the 13th or 14th of April, 1893, were by false representations alone is not a crime brought from Sonoma county into the city under any of the provisions of our Penal and county of San Francisco, state of CaliCode. Under section 481 of the Penal Code, fornia, by the defendant.” There the jury any person who knowingly and designedly directly found the defendant guilty of burby false or fraudulent representations de- glary in the first degree. This was a finding frauds any other person of money or prop- of all the essential elements of the crime. erty is guilty of a misdemeanor, but there The court properly held that the general verthe mere obtaining of money by false or dict of guilty implied proof of all the facts fraudulent representation or pretense is not necessary to conviction, and that the latter sufficient to constitute the crime specified in part of the verdict was mere surplusage, rethat section, unless the money so obtained sulting in no prejudice to the appellant. We falsely and fraudulently was obtained know- do not see how it is possible to treat the ingly and designedly. [3] Under section 489, words in the indictment, "of obtaining propunder which the indictment in this case was erty by false representations," as mere surdrawn as found by the trial court, the ob- plusage, because they are words which have taining of property by false representation is to do with one of the issues directly raised not in itself made a crime, except that it be by the plea of not guilty. It is a direct finddone with intent to cheat and defraud. The ing of the jury that upon one of the eleintent is a material and necessary element of ments of the statute the defendants were the crime. Therefore, if the verdict before guilty, to wit, the obtaining of the money by us simply finds the defendants guilty of ob- false representations, and it is also a direct taining property by false representations and refusal to find upon another essential eledoes not find that the defendants, with in- ment, to wit, the intent to cheat and defraud. tent to defraud, obtained the property by The words "as charged in the indictment" false representations, then an essentially nec- qualify the phrase "of obtaining property by essary element of the crime has not been false representations." They serve to specify found by the jury. Cases holding that a ver- the property obtained and the false represendict which specifies one element of a crime tations made, but with the expression in the and omits other essential elements will not verdict of one of the elements of the crime support a judgment of conviction are nu- and the omission of another essential elemerous, and there are none, so far as we are ment the defendants, by the words "as aware, holding the contrary. Wharton, Crim. charged in the indictment,” are not found Pl. & Prac. (9th Ed.) 756; Commonwealth v. guilty of anything else as charged in the inCall, 21 Pick. (Mass.) 513, 32 Am. Dec. 284; dictment, and the words in question cannot People v. Small, 1 Cal. App. 320, 82 Pac. 87; be held to incorporate by reference other People v. Cummings, 117 Cal. 497, 49 Pac. facts upon which there is no finding. In the 576; People v. Tilley, 135 Cal. 62, 67 Pac. 42; case of People v. Lee, 237 Ill. 272, 86 N. E.

573, the Supreme Court of Illinois considered which they were "warranted by the law to the following verdict: “We, the jury, find find," and to place undue emphasis upon two the defendant, Leona Garrity, guilty of har- elements, to wit, the obtaining of the propboring a female under the age of 18 years in erty and the falseness of the representations a house of prostitution in manner and form enumerated in the indictment, to the neglect as charged in the indictment." The court of the elements that the property must have said: "To authorize a judgment against the been obtained "with intent to cheat and dedefendant, the verdict in a criminal case fraud.” The trial judge charged that intent must respond to the issues submitted to the must be proved, and then by the form of the jury. Its sufficiency is determined by as- verdict submitted to the jury prevented any certaining whether it is responsive to and juror who desired to vote for a conviction covers the offense charged in the indictment. upon this essential element of the offense It must contain either in itself or by refer- from expressing his conviction that such ence to the indictment every material ele- element had been proved. On the other hand, ment of the crime. * * * The verdict does any juror who was convinced of the guilt of not find directly or by necessary implication the defendants as to the obtaining property that plaintiffs in error were the keepers of by false representations and was not conthe house of prostitution, or that the female vinced as to the intent to cheat and defraud harbored therein was unmarried. These were might have been very easily induced to sign both essential elements of the offense and the verdict in the form rendered in the propconstituted material facts in issue at the er belief that he was thereby only giving extrial. * * * The clause in the verdict 'in pression to the facts that he was satisfied manner and form as charged in the indict- had been proved by the evidence. ment' refers to the indictment for the facts

[5] We agree with the counsel for the apwhich are specially found in the verdict, pellee that, if the intention to convict of the and cannot be held to incorporate by refer- crime is unmistakably expressed in the verence other facts upon which there is no find- dict, any mere irregularity or surplusage ing. The verdict is insufficient to authorize contained in the verdict is immaterial, but we a judgment of guilty." It is claimed by are of the opinion that, upon the verdict becounsel for the respondent that it appears fore us, we cannot say that the intention of from the record that the trial judge at the the jury to convict of the crime was unmisconclusion of his instructions handed the takably expressed. Our conclusion that the jurors two verdicts, one being a verdict of verdict does not support the judgment is not guilty and the other being the verdict in strengthened by the form of the judgment itcontroversy herein, explaining to them that, self, which reads in part as follows: "You if they found the defendants guilty as al- were indicted by the grand jury of this counleged in the indictment, they would return ty for obtaining property by false representhe verdict which is in controversy here, tation in the nature of a confidence game otherwise they would return the verdict of with intent to defraud. To this indictment not guilty.

you pleaded not guilty. On * * * you It is claimed that the jury having brought were given a fair and impartial trial in this in the verdict in question, this fact alone un- court before a jury of your peers and said qualifiedly demonstrates the intention of the jury returned into open court their verdict jurors. We do not think this contention, finding you guilty of obtaining property by even if the record bore out the contention of false representations as charged in the indictcounsel

, aids them in their position that the ment. Have you anything to say or legal verdict expresses the intention of the jury to cause to show why the judgment of this court find a general verdict of conviction. The should not now be pronounced against you? court charged the jury at length of its own The defendant replied, “No, sir. No legal motion, and further gave a great number of cause being shown or appearing to the court, instructions requested by counsel; the in- the court doth render its judgment that structions covering some 50 folios. The trial whereas you, Elias S. Kimball, having been judge specifically charged the jury that it on the 25th day of June, A. D. 1910, after a was necessary that they should find that the fair and impartial trial in this court, found defendants had obtained the money with the guilty by a jury of your peers of the crime of intent to cheat and defraud. At the close of obtaining property by false representations the instructions, the record shows that the in the nature of a confidence game with intrial court stated to the jury: “You will be tent to defraud, it is ordered, adjudged, and furnished with blank forms of verdict that decreed that you, Elias S. Kimball, are guilty express the findings that you are warranted of obtaining property by false representaby law to find in the case." We think, as tions in the nature of a confidence game with contended by counsel for the appellants, that intent to defraud, and that you be punished the effect of that statement, together with therefor," etc. the instructions given by the court and the [6] It is further contended by appellants submission of a verdict in the form returned that upon the state of the record the defendby them, coming as the court's final direc-ants have been in jeopardy and are entitled tions to the jury, was calculated to mislead to be discharged. After the rendition of the

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