was admissible as identification and to show |ing witness who claimed the ownership of ownership of the cow. the cow, and there was evidence tending to [Ed. Note.-For other cases, see Larceny, prove ownership other than by these marks Cent. Dig. § 136; Dec. Dig. § 45.*] and brands as means of identification. 2. WITNESSES (§ 277*) - CROSS-EXAMINATION OF ACCUSED-CONTRADICTION. Ownership of the calf did not wholly deWhere accused had testified in chief that pend upon the evidence given by the moththe calf alleged to have been stolen belonged to er, to which no objection was offered, alhim, it was proper to permit the state on cross-though the witnesses seem to have attached examination to ask him concerning a prior conversation with W. concerning the calf, in which he asked W. to ask prosecutor not to be too hard on him, for impeachment. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 925, 979-984; Dec. Dig. § 277.*] 3. CRIMINAL LAW (§ 855*)-NEW TRIAL-MISCONDUCT OF JURY-DRINKING LIQUor. That a juror drank liquor during recess of the court is insufficient to vitiate the verdict, where fellow jurors testified that the juror while sitting and deliberating as such was sober, intelligent, and in fit condition to understand and deliberate on the evidence, and determine the verdict. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 855.*] Appeal from Superior Court, Modoc County; Chas. M. Head, Judge. Charles Romero was convicted of grand larceny, and he appeals. Affirmed. James H. Stewart and James Wylie, for appellant. U. S. Webb, Atty. Gen., for the People. some importance to her demonstrations in confirming them in their belief, otherwise formed, that the calf killed by defendant belonged to his neighbor. Van Loan. We think there was sufficient evidence to support the verdict. The defendant was a witness in his own behalf. After the defendant had rested, the court permitted him to be recalled for further cross-examination by the district attorney. The following proceedings occurred: "By Mr. Jamison: Q. Did you have any conversation with Wade Williams, here in Alturas, Modoc county, Cal., on Main street of said town, or near the bridge over Pit river, at which conversation only yourself and Wade Williams was present and within hearing of it, in the latter part of October, 1906, just after you had been arrested for grand larceny on the charge of stealing a calf belonging to E. Van Loan, in which conversation, after asking Wade Williams to go your bond, you said to him: "Tell old Charlie'-meaning the older brother of Wade Williams-'not to be too hard on me,' or words in substance and to that effect? Mr. Wylie: We object to that question on the ground that it is irrelevant, incompetent, and immaterial. This is his own witness, and he cannot impeach his own witness. The Court: I understood that he was recalled on cross CHIPMAN, P. J. The defendant was convicted of the crime of grand larceny. He appeals from the judgment on the verdict and from the order denying his motion for a new trial. He claims that the evidence was insufficient to establish his guilt; his contention being based principally upon the fact that the evidence was circumstantial. The larceny charged was the felonious taking of a sucking calf about eight months old. The examination for further cross-examination. criticism of the evidence is addressed to two facts: First, that proof of the ownership of the mother of the calf depended upon the marks and brands upon the cow which had not been recorded as required by the statute; and, second, the circumstance that, while the defendant was killing and dressing the calf, the cow stood in the road bellowing and apparently showing much distress at the loss of her young, and, when driven away, broke from the pasture where she had been placed and returned the next morning and resumed her demonstrations of grief. Mr. Wylie: We were through with him. He was examined in chief by us, then crossexamined, and we had closed our case and rested. He is not our witness now. We were through with him when we closed our case. (Argument by respective counsel.) The Court: The rule is very strict against compelling a defendant to be a witness against himself, and it is about adjourning time. I will think this matter over until to-morrow morning. (Court gives usual admonition to jury.) Court now takes a recess until to-morrow morning at half past nine o'clock. "Court is called to order Thursday, April It seems to have been the theory of de- 15, 1909, Judge Head presiding. Present the fendant's counsel that the marks and brands | defendant and his counsel; also the district found on the cow were no evidence of owner- attorney, jury, and officers of court. Charles ship because they had not been recorded. In Romero, the defendant, is on the witness People v. Bolanger, 71 Cal. 17, 11 Pac. 799, stand for further cross-examination. Mr. it was held that an unrecorded mark is some Jamison: I will say this: Since last evenevidence of ownership. But they were re- ing I have examined into the question that ferred to by the witnesses as one of the the gentlemen raised on the other side, that means of identifying the animal as well as in any circumstances we would not have the tending to show ownership. The marks and right to ask the defendant the question probrands were shown to belong to the prosecut-pounded; and I am not satisfied that I am right in insisting that I ask the question. I 2. ATTACHMENT (§ 88*)-SUFFICIENCY OF AFwill withdraw the question. The Court: Very well. Mr. Romero, you are excused from the witness stand. Mr. Jamison: That is all. The people rest." The Supreme Court held in People v. Arrighini, 122 Cal. 121, 128, 54 Pac. 591, 593, that a defendant in a criminal case "cannot be cross-examined as to other matters (i. e., matters as to which he had not testified in chief) for the purpose of discrediting him by an attack upon his character." Nor could the defendant in this manner be compelled to testify against himself. It appears from the record, however, that the defendant had testified in chief that the calf belonged to him and in effect that he had not stolen it, for he testified that he "had stolen nothing." Having so testified, we think the question was a proper one. In any case, we think it quite clear that the jury were not influenced to defendant's prejudice by what took place. Misconduct of a juryman is urged as ground for a new trial; the claim being that he indulged too freely in intoxicating drinks during the trial. There were some depositions submitted in support of this ground urged for a new trial, that, when not on duty as a juryman, Hayes did drink to excess, but several jury men deposed that at no time during the proceedings while evidence was being taken or when the jury retired to consider their verdict was Hayes intoxicated, but, on the contrary, he was "sober during the trial and in all ways perfectly able to consider the evidence introduced at the trial of said cause and to intelligently exercise his judgment thereon." The trial judge occupies such relation to the trial before him as to be best able to judge of the actual condition of the juryman where the evidence is conflicting upon that point. People v. Sullivan, 129 Cal. 557, 62 Pac. 101. The fact that a juror drank intoxicating liquor during recess of the court will not vitiate the verdict if it appears from the affidavits of his fellow jurymen, as here, "that the juror while sitting or deliberating as a juror was sober, intelligent, and in a fit condition to understand and deliberate upon the evidence and determine the verdict." People v. Deegan, 88 FIDAVIT. that the clerk shall issue a writ of attachment Under Code Civ. Proc. § 538, providing upon receiving an affidavit by or on behalf of plaintiff, an affidavit in an attachment suit by a corporation showing that the affiant was president of the corporation, and personally made the affidavit, "in its behalf," and subscribed and swore to it, is sufficient, though the corporate name was attached to it, and it was subscribed with the corporate name before affiants. [Ed. Note. For other cases, see Attachment, Cent. Dig. 88 221-223; Dec. Dig. § 88.*] Appeal from Superior Court, Solano County; A. J. Buckles, Judge. Action by A. P. Hotaling & Co. against J. T. Brogan. From an order discharging a writ of attachment, plaintiff appeals. versed. Re P. B. Lynch and Theodore A. Bell, for appellant. Joseph M. Raines, for respondent. CHIPMAN, P. J. A writ of attachment issued in this case, which, upon motion of defendant, was discharged on the ground that the affidavit required by section 538, Code Civ. Proc., "is not properly or at all subscribed or sworn to on behalf of the said plaintiff." Plaintiff appeals from the order. The affidavit reads, giving the title of court and cause: "State of California, City and County of San Francisco-ss.: R. M. Hotaling of the plaintiff corporation in the action above named, being duly sworn, deposes and says." (Then follows statement of the indebtedness to plaintiff and other facts required by the statute.) "And this deponent further says" (then follow still further facts required to be stated) "that affiant is the duly elected, qualified and acting president of the plaintiff corporation, and makes the affidavit in its behalf. A. P. Hotaling & Co., by R. M. Hotaling, President. Subscribed and sworn to before me this 29th day of March, 1909. Thomas S. Burns, Notary Public in and for the City and County of San Francisco, State of California." Section 538, Code Civ. Proc., provides that the clerk shall issue the writ of attachment "upon receiving an affidavit by or on behalf of plaintiff." All of the facts necessary to a sufficient affidavit appear in the body of the document Here, leaving the sole question whether it sufficiently appears that the affidavit was made "by or on behalf of plaintiff." In judging of its sufficiency in the particular called in question, we must refer to the entire affidavit. It plainly appears that R. M. Hotaling was, when he made the affidavit, the president of the corporation, and that he made it "in its behalf." That he was the (Court of Appeal, Third District, California. person sworn and the person who made the Jan. 26, 1910.) 1. AFFIDAVITS (§ 11*)-SIGNATURE OF AFFIANT -NECESSITY. An affidavit need not be signed by affiant. [Ed. Note.-For other cases, see Affidavits, Cent. Dig. § 43; Dec. Dig. § 11.*] affidavit and deposed to the facts embodied in it clearly appears from the body of the document which the notary certifies was subscribed and sworn to. It was not necessary that the affidavit be signed. Ede v. Johnson, For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes to vacate the information under Pen. Code, § tion only on the ground that accused had not 995, authorizing the court to grant such a mobeen legally committed by the magistrate, or that the information had not been subscribed by the district attorney. and Information, Cent. Dig. § 483; Dec. Dig. [Ed. Note.-For other cases, see Indictment § 137.*] 3. INDICTMENT AND INFORMATION ( 140*)— VACATION EVIDENCE SUSTAINING COMMIT 15 Cal. 53; Pope v. Kirchner, 77 Cal. 152, 19 | be properly urged or determined on a motion Pac. 264; State v. Washoe Co., 5 Nev. 320. The corporation could not make the affidavit, and the fact that its name is attached to it is of no importance, and involves no ambiguity upon the question as to who in fact made it. That the affiant affixed the corporate name, followed as it is, "By R. M. Hotaling, President," does not change the fact, clearly appearing, that he, Hotaling, personally made the affidavit and was the one who subscribed and swore to it. Taking the document as a whole there can be no doubt as to the essential statutory requirement appearing that a sufficient affidavit must be made "by or on behalf of the plaintiff." Nor do we doubt that the test suggested by respondent is here met, namely, that the affidavit must "be so clear and certain that an indictment for perjury may be sustained upon it if false." Blyth & Fargo Co. v. Swensen et al., 7 Wyo. 303, 51 Pac. 873, is cited by both parties. In that case the affidavit read: "Plaintiff in the action above named, being duly sworn, deposes and says," etc., and is signed: "The Blyth & Fargo Co., by Sherman Fargo, Managing Agent. fore me John W. Sammon, Clerk." The court said: "It is not the affidavit of the plaintiff, for, being a company, it cannot take an oath. It is not the affidavit of the agent, for nowhere in the paper is it purported that the agent makes any statement whatever. The language is that 'the plaintiff deposes and says.' In the case here, however, it appears clear enough that the plaintiff did not make the affidavit, but Ho taling made it; that he was a proper person to make it; and that he made it, as the statute authorized him to do, on behalf of the plaintiff. Subscribed and sworn to be We are well satisfied that the affidavit was sufficient, and the order is therefore reversed. MENT-PRESUMPTION. On the filing of an information corresponding with the terms of the commitment as to the nature of the offense indicated therein, it will be presumed that the evidence was sufficient to justify the magistrate in making the order. and Information, Cent. Dig. §§ 474, 475; Dec. [Ed. Note. For other cases, see Indictment Dig. 8.140.*] 4. CRIMINAL LAW (§ 209*) PRELIMINARY Under Pen. Code, §§ 811, 812, providing for the verification of facts by complainant prior to the issuance of a warrant of arrest by a magistrate, the instrument on which the warrant is authorized is not a "complaint" in the sense of a pleading, but is more like a deposition only, stating the facts verified by the in formant. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 415; Dec. Dig. § 209.* For other definitions, see Words and Phrases, vol. 2, pp. 1363-1366.] 5. CRIMINAL LAW (§ 241*)—COMMITMENT— COMPLAINT. A commitment of accused to answer an information is not alone based on the so-called "complaint," but on all the depositions taken before the magistrate; the information in turn being founded on the order of commitment, which order was not fatally defective because it did not describe the offense, but declared only that the offense "in the within depositions mentioned" has been committed. [Ed. Note.-For other cases, 6. CRIMINAL LAW (§ 241*) see Criminal Dec. Dig. § PRELIMINARY COMMITMENT DESIGNA - TION OF OFFENSE. Where commitment does not designate some offense of which the superior court has jurisdiction as having been committed by accused by a specific description referring therein to the alleged crime for which accused is ordered held under its generic description, the depositions on which the commitment is issued must show the commission of the offense to which the commitment refers, or disclose probable reason for defendant's connection with its commission. [Ed. Note.-For other cases. see Criminal Law, Cent. Dig. § 502; Dec. Dig. § 241.*] 7. CRIMINAL LAW (§ 241*)—COMMITMENT— DESIGNATION OF OFFENse. Where a commitment undertakes to describe the offense for which accused is held for trial on a felony charge, such offense need not therein be stated with the technical nicety and precision required in an indictment or informa tion. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 502; Dec. Dig. § 241.*] 8. INDICTMENT AND INFORMATION (§ 41*)— AUTHORITY TO FILE-COMPLAINT-INDORSE MENT. The district attorney has authority to file an information, though the commitment order was not indorsed on the complaint or on any of the other depositions taken by the magis- [ defendants in order to maintain a prosecution against one. trate. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 152; Dec. Dig. § 41.*] PRELIMINARY 9. CRIMINAL LAW (§ 241*) For other definitions, see Words and Phrases, vol. 5, pp. 4269, 4270.] 10. MONOPOLIES (8 31*)-RESTRAINT OF TRADE -- St. 1907, c. 530, was entitled an act to define a trust and to provide criminal penalties and punishment of corporations, persons. firms, and associations, or persons connected with them, and to promote full competition in commerce and all classes of business in the state. Section 1 defines a "trust" (1) as a combination of capital, skill, or acts of two or more persons, etc., to create or carry on restrictions in trade or commerce, and (3) to prevent competition. An information charged accused as the managing agent of a meat company, pursuant to a combination and conspiracy into which they had previously entered with a butchers' association and the individual members thereof to execute and carry out certain agreements, the effect of which would be to destroy free competition in the retail meat business in Sacramento, and in furtherance of this design compelled R., who was engaged in such business there, to pay accused and the meat company higher prices for meats than accused and the company required the members of the association, each of whom were likewise engaged in such business, to pay for the same character of meats. Held to state all the elements of an offense within the first and third subdivisions of the law, and not defective for failure to allege that the meat company, accused, or the association were able to control the meat market; the gravamen of the offense being the combination to prevent competition in prices. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.* For other definitions, see Words and Phrases, vol. 8, pp. 7116-7124, 7822.] 11. MONOPOLIES (§ 31*)-RESTRAINT OF TRADE -INFORMATION. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 327, 328; Dec. Dig. 124.*] 13. MONOPOLIES (8 31*)-INFORMATION-ACTS OF AGENT. Where an information for conspiracy in restraint of trade in violation of the anti-trust act (St. 1907, c. 530) charged that accused, as managing agent of a meat company, and the company itself entered into an alleged combination and conspiracy with a butchers' association and the members thereof to restrict competition in the fresh meat business, the information sufficiently charged that accused acted in the transactions in question in his representative capacity as agent of the meat company and not independently thereof. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*] 14. MONOPOLIES (§ 29*)-ACTS OF AGENT-De An information for conspiracy in restraint of trade need not allege the dates on which the acts of the alleged conspirators were committed. [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*] 16. MONOPOLIES (§ 31*)-RESTRAINT OF TRADE -INFORMATION. An information for conspiracy in restraint of trade need not allege the acts constituting the actual accomplishment of the object or purpose of the combination or conspiracy; such acts being mere probative facts and not the gist of the crime. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*] 17. CRIMINAL LAW (§ 86*)-OFFENSE-JURIS DICTION. Const. art. 6, § 5, after specifically providing the jurisdiction of the superior courts as to numerous subjects, declares, generally, that such courts shall have jurisdiction of "all cases of misdemeanors not otherwise provided for." Pen. Code, § 1425. confers on justices of the peace jurisdiction of all misdemeanors punishable by fine not exceeding $500 or imprisonment not The information was not defective for fail-exceeding six months, or both; and Sacramento ure to disclose the identity of the persons re- City Charter (St. 1893, c. 7) art. 4, § 50, subd. ferred to therein as "certain and divers per- 3, providing for the city justice court of such sons, firms, partnerships, corporations and as- city, substantially follows section 1425 as to sociations of persons constituting and compos- the justice's jurisdiction. Held, that since neiing" the association, "the names of whom are ther a justice court, generally, nor the justice unknown except as herein stated." etc.; such court in Sacramento, has jurisdiction of the persons being sufficiently identified by the alle- offense of violating the anti-trust act (St. 1907, gation that they were members of the associa- c. 530), punishable by a fine of not less than tion to apprise defendant of the particular per- $50 nor more than $5,000 or for imprisonment sors with whom he was charged with having not less than six months or more than a year, been in league in maintaining an unlawful conor both. such offense committed in Sacramento spiracy. was within the exclusive original jurisdiction of the superior court of Sacramento county, and this though the statute did not designate the jail or prison in which a sentence of imprisonment should be executed. [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*] 12. INDICTMENT AND INFORMATION (§ 124*)JOINDER OF PARTIES-CONSPIRATORS. Where a conspiracy is charged, it is not [Ed. Note.-For other cases, see Criminal necessary to make all the alleged conspirators Law, Cent. Dig. § 125; Dec. Dig. § 86.*] •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 18. CRIMINAL LAW (§ 90*)-COURTS-POLICE | the employment of counsel for the defense or COURTS JURISDICTION-MISDEMEANORS. had otherwise aided therein to show their inPol. Code, § 4426, regulating the jurisdic- terest in the proceeding. tion of police courts in cities, does not confer on such courts any further jurisdiction as to misdemeanors than is conferred on justices of the peace generally by Pen. Code, § 1425. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 130; Dec. Dig. § 90.*] 19. CRIMINAL LAW (§ 90*)-PUNISHMENT— MISDEMEANORS. The Legislature may confer on justices and police courts jurisdiction of all misdemeanors, regardless of the extent of punishment authorized; such courts being limited in the execution of their judgments of imprisonment to imprisonment in a local or county jail. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 133; Dec. Dig. § 90.*] 20. CRIMINAL LAW (§ 27*)-OFFENSES-FELONY OR MISDEMEANOR. Whether an offense is a felony or a misdemeanor is not determined by its characterization, but by the extent and mode of punishment prescribed or inflicted, where the superior court is clothed with a discretion in determining whether the sentence shall be executed by imprisonment either in the state's prison or a county jail, as provided by Pen. Code, § 17. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 29, 31; Dec. Dig. § 27.*] 21. CRIMINAL LAW (§ 1159*)—APPEAL—VERDICT-REVIEW OF EVIDENCE. Where there is a substantial conflict in the evidence, a conviction will not be set aside on appeal because the verdict is not justified by the evidence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. § 1159.*] 22. MONOPOLIES (§ 31*)-CRIMINAL COMBINATION-CONVICTION-EVIDENCE. In a prosecution for entering a combination in restraint of trade, in violation of the antitrust act (St. 1907, c. 530), evidence held to sustain a conviction. [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*] 23. MONOPOLIES (§ 31*)-RESTRAINT OF TRADE -EVIDENCE. Where defendants were indicted for a conspiracy in restraint of trade, the charge being that defendant meat company discriminated against R. in the sale of fresh meat in favor of the members of a butchers' association, evidence that R. was also discriminated against in the meat company's sale to him of smoked and cured meats, which discrimination was not disputed, was admissible as corroborative of the conspiracy. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*] 24. MONOPOLIES (§ 31*)-COMBINATIONS-RESTRAINT OF TRADE-EVIDENCE. In a prosecution of a butchers' association and a meat company for conspiracy in restraint of trade, the association's by-laws were admissible to show the identity of the members of the association, its nature and purposes, and the object of its connection, if any, with the meat company, and, if possible, to prove the conspiracy. [Ed. Note. For other cases, see Monopolies. Cent. Dig. § 20; Dec. Dig. § 31.*] 25. WITNESSES (§ 372*)-CROSS-EXAMINATION -INTEREST. In a prosecution for conspiracy in restraint of trade, the state was properly permitted on cross-examination of defendant's witnesses to ask whether they had contributed money toward [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1193-1195; Dec. Dig. § 372.*] 26. CONSPIRACY (§ 47*)-Proof-CIRCUMSTANTIAL EVIDENCE. A criminal conspiracy may be proved by circumstantial evidence. [Ed. Note. For other cases, see Conspiracy, Cent. Dig. § 106; Dec. Dig. § 47.*] 27. CONSPIRACY (§ 48*)—OFFENSES—INSTRUC TIONS. The court charged that common design is the essence of a conspiracy, and, while it is necessary to establish a conspiracy to prove a combination of two or more persons by concerted action to accomplish the criminal or unlawful purpose, "it is not necessary to constitute a conspiracy that two or more persons should meet together and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly, by words or in writing, state what the unlawful scheme was to be and the detail of the plans and means by which the unlawful combination was to be effective"; but it is sufficient if two or more persons, in any manner, or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a common and unlawful design. Held, that the meaning of the words quoted, in connection with the remainder of the instruction, was that no explicit or formal agreement need be proved, if it be satisfactorily proved that two or more persons came to a mutual understanding to accomplish a common and unlawful design, and was, therefore, not objectionable. [Ed. Note. For other cases, see Conspiracy, Cent. Dig. § 109; Dec. Dig. § 48.* For other definitions, see Words and Phrases, vol. 2, pp. 1454-1461; vol. 8, p. 7613.] 28. MONOPOLIES (§ 31*) TRADE-INSTRUCTIONS. RESTRAINT OF In a prosecution for conspiracy in restraint of trade, an instruction that if the jury should find from the evidence, beyond a reasonable doubt, that pursuant to a common understanding or agreement, express or tacit, between S., a member of a butchers' association, and defendant K., he agreed to and did charge R. more for the meat purchased by him of defendant company than was charged by defendant company to any other member of such association, with intent to lessen competition, the jury should convict, was proper; it being undisputed that S. was a member of the association and on several occasions remonstrated with defendant against his sale of fresh meat sales to R. he was governed by the desires of to R., and K. having testified that in making the members of the association. [Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 20; Dec. Dig. § 31.*] 29. MONOPOLIES (§ 10*) RESTRAINT OF TRADE-CRIMINAL CONSPIRACY STATUTES. St. 1907, c. 530, prohibiting combinations in restraint of trade, is not unconstitutional nor in conflict with Pen. Code, § 182, defining criminal conspiracies. [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 9; Dec. Dig. § 10.*]. Appeal from Superior Court, Sacramento County: C. N. Post, Judge. J. O'Keefe was convicted of violating an act prohibiting combinations in restraint of trade, and he appeals. Affirmed. |