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Beatty, 14 Cal. 566; People v. Fowler, 88 Cal. 136, [25 Pac. 1110]; People v. O'Brien, 96 Cal. 171, [31 Pac. 45].) [5] Where the indictment sufficiently charges the defendant with the crime, it is not impaired by the subsequent statement therein of the facts or circumstances under which it was committed, unless such statement of itself constitutes a negation of the crime. (People v. Ross, 134 Cal. 256, [66 Pac. 229; People v. Handley, 100 Cal. 370, [34 Pac. 853]; People v. Newton, 11 Cal. App. 762, [106 Pac. 247].) [6] Where the acquittal of the defendant under the indictment would be no bar to the further prosecution of the offense, a variance would be material, but where the discrepancy does not affect the validity of the indictment or prejudice the substantial rights of the defendant in his defense, the variance is immaterial. (People v. Arras, 89 Cal. 223, [26 Pac. 766].) [7] Section 954 of the Penal Code permits the charging of different offenses in different counts of the same indictment, where the different offenses all relate to the same act, transaction, or event. (People v. Miles. 19 Cal. App. 228, [125 Pac. 250].) The offense charged in the first count in this case was that of obtaining money under false pretenses. The act, transaction, and event was that of obtaining the money, not the particular false pretenses by which it was obtained. The offense was not the lie, but the taking of the money of the complaining witness by fraud. Under the second count the offense charged was grand larceny. The act, transaction, and event was the taking of the money of the complaining witness without his consent and not any particular one of a series, nor the whole series, of events which culminated in the offense charged. The act under each count was the taking of the money. If the allegations contained in the first count had been proved, the offense would have been that of getting the money of the complaining witness by false pretenses. The defendant was acquitted under that charge and was convicted under the charge of larceny. [8] "Where the possession has been obtained through a trick or device, with the intent, at the time the party receives it, to convert the same to his own use and the owner of the property parts merely with the possession and not with the title, the offense is larceny." (People v. Shaughnessy, 110 Cal. 602, 43 Pac. 2]; People v. Tomlinson, 102 Cal. 23, [36 Pac. 506]; People v. Raschke,

73 Cal. 378, [15 Pac. 13]; People v. Johnson, 91 Cal. 265, [27 Pac. 663].) The theory of the prosecution is amply sustained by the evidence, which shows a bald and cruel scheme to mulet the complaining witness out of his savings. In a case in which a conviction was upheld as against a claim of variance, where the allegation was that money had been stolen and the evidence showed that the defendant had been possessed of a check of the complaining witness which he thereafter cashed, the court swept aside a contention closely akin to that made in the present case. The theory of the state was that the defendant had obtained possession of the check by representing to the complaining witness that certain voices she had heard at a series of seances were the voices of spirits from the other world. These voices urged and advised her to invest in the Fountain Tooth Brush Company. While the defendant was on the witness-stand on his own behalf an objection of the prosecuting attorney was sustained to a question concerning the marketability and probable value of the fountain tooth-brush. On appeal it was claimed that this evidence would have tended to show the good faith of the defendant in urging and advising the prosecutrix to turn over her money for investment in the company, which it was claimed was to be formed for the purpose of manufacturing and marketing the brush. The court said "the trick and device by which the money was obtained was in representations by words and acts that departed spirits were talking to the prosecutrix and advising her to invest in the enterprise. If these representations were false and made with the intent to deceive the prosecutrixand the evidence beyond question so proves-the defendant and his fellow-conspirators by such means obtained possession of the money of the prosecutrix, with the intent to convert it to their own use, it would be no defense to say that they believed the investment that they were advising would be a good one." (People v. Arnold, 20 Cal. App. 35-38, [127 Pac. 1060].)

[9] In this case under the second count the defendant obtained the money of the complaining witness by means of the mechanical device, which he exhibited, and by representations in regard thereto. It is no defense that he may have made other false representations to the complaining witness by which he may have established a more or less

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confidential relationship with him. In some way the defendant became well enough acquainted with the prosecuting witness to play upon his ignorance and to take his money from him.

[10] As was said by the supreme court more than fifty years ago in a case of homicide, "the only reason assigned by the common law why the manner and means by which the homicide was committed should be stated in the indictment, was that the defendant might be fully informed as to the case against him, and thereby enabled to prepare for his defense. As we had occasion to remark in the case of People v. King, 27 Cal. 510, [87 Am. Dec. 95], this reason of the common law was but a flimsy pretext, for if the defendant was guilty, he stood in no need of information as to the means by which he committed the crime, and if not guilty, the information that he did the act in a particular way or by the use of particular means could not assist him in the preparation of his defense." (People v. Cronin, 34 Cal. 200.) In that case it was held that the killing was the ultimate and issuable fact, so in this case the taking of the money of the prosecuting witness was the ultimate and issuable fact, and if the defendant was guilty, he was not deceived in the necessity for his preparation for defense, in view of the use of the machine which was found, together with twenty-five new one-dollar bills and parts for the manufacture of a similar machine, in his possession at the time of his arrest.

The other alleged errors urged by the appellant we consider it unnecessary to discuss. If any errors were committed, they were not such as to call for a reversal of the judgment upon an examination of the entire record.

The judgment is affirmed.

All the Justices concurred.

[Civ. No. 3050. First Appellate District, Division One.-December 18, 1919.]

SAMUEL RAPHAEL, Appellant, v. PEOPLE'S BANK OF BENICIA (a Corporation), Respondent.

[1] PLACE OF TRIAL-CORPORATION AS DEFENDANT CONSTRUCTION OF CONSTITUTION.-The provision of section 16 of article XII of the state constitution, relating to the place of trial where a corporation or association is defendant, means not merely that a personal action against a domestic corporation may, at the option of the plaintiff, be commenced in one of the designated counties other than the one in which the defendant has its principal place of business, but that it may be prosecuted to final judgment when so commenced, unless the defendant can allege and show some sufficient ground for a change of place of trial distinct from the fact that the residence of the corporation is in another county.

[2] ID. CONSTITUTIONAL LAW.-Such a construction of section 16 of article XII of the state constitution is not violative of the fourteenth amendment of the federal constitution.

[3] ID. WHAT DRAWER OF CHECK UNDERTAKES.-The drawer of a check undertakes that the drawee will be found at the place where he is described to be, and that the sum specified will be paid there to the holder when the check is presented, and he is bound to pay at the place named.

[4] ID.

NONPAYMENT OF CHECK ACTION AGAINST CORPORATION.Where a corporation draws a check on a bank in a county other than the one in which it has its principal business, and at its request the check is not paid when presented, the holder thereof is entitled to have an action brought against such corporation to recover the amount thereof tried in the county where the check was to have been paid.

APPEAL from an order of the Superior Court of the City and County of San Francisco granting a motion for a change of venue. Frank J. Murasky, Judge. Reversed.

The facts are stated in the opinion of the court.

A. S. Newburgh for Appellant.

J. E. Rodgers and A. F. Bray for Respondent.

KERRIGAN, J.-This is an appeal from an order granting defendant's motion for a change of venue.

The action was commenced in the city and county of San Francisco to recover the amount of a check executed by the defendant, directing the American National Bank of San Francisco to pay to the order of the Pleasant Spring Distillery Company the sum of three hundred dollars. The complaint alleges indorsement to plaintiff, presentment to the drawee for payment, its refusal to pay based upon the request of defendant, and that the check was protested and payment thereof demanded of defendant and refused. Defendant demurred thereto, and at the same time filed its notice of motion for change of venue. The petition for a change of venue was predicated upon the sole ground that defendant corporation was a resident of and had its principal place of business in the city of Benicia, county of Solano, state of California. The lower court granted defendant's motion, and plaintiff takes this appeal, contending that he is entitled to have the case tried in the city and county of San Francisco, (1) for the reason that the alleged breach occurred there, and (2) that it is the place where the contract was to be performed.

The case involves a construction of our constitutional and code provision relative to the place of trial of civil actions when a corporation is defendant.

Section 395 of the Code of Civil Procedure insures to a defendant the right of trial of actions of the character here involved in the county where the defendants, or some of them, reside. If the rights of the parties herein were dependent upon the statute, we would be required to sustain the order.

[1] By section 16 of article XII of our state constitution, however, it is provided that "a corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases." It is the contention of respondent in support of the order that this constitutional provision refers merely to the place where the suit must be brought and not to the place of trial.

The question thus presented is not one of first impression in this state. The construction claimed by the respondent is

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