Sawtelle v. Weymouth (Wash.). School Dist. No. 80 v. Brown (Kan. App.) 102 Schreyer v. Turner Flouring Mills Co. (Or.) 719 33 .1101 Southern Pac. R. Co., Southern Cal. R. Co. v. (Cal.) .1123 374 650 Southern Pac. R. Co., Southern Cal. R. Co. v. (Cal.) 1124 341 South Side Irrigation Co., Barfield v. (Cal.) 406 905 617 899 Spratlen, Central Nat. Bank of Pueblo v. (Colo. App.) .1048 254 Schwarz v. Superior Court of City and Sroufe v. Soto (Ariz.). 221 580 Stagg, McCaman v. (Kan. App.). 86 Schwendener, Pomeroy v. (Kan. App.). 94 Stallcup, Allen v. (Wash.). 884 Scott v. Bourn (Wash.). 372 Stanfield v. Anderson (Ariz.). 221 Scott, Baker v. (Idaho)..... Scott, Ihrig v. (Wash.). 76 Stanford v. City and County of San Fran633 cisco (Cal.) 605 Scott. Price v. (Wash.). 634 Stanton, Hecht v. (Wyo.). 508 Scrafford, Atchison, T. & S. F. R. Co. v. (Kan. App.). 308 Scully v. Porter (Kan. App.). Sears, State v. (Or.).. 482 State v. Arnold (Kan. Sup.). 267 800 709 928 Seattle Nat. Bank v. Carter (Wash.). Security Savings & Trust Co., State v. (Or.) 331 State v. Cowen (Kan. Sup.). 687 £92 Sehorn v. Williams (Cal.). 8 State v. Etzel (Kan. App.). 798 51 Shaffer v. Hoenschild (Kan. App.). Shain, Kaufman v. (Cal.). Shanklin v. Gray (Cal.). Shannon v. Timm (Colo. Sup.) Shannon, Lamberton v. (Wash.). Sharp, In re (Kan. Sup.). 979 State v. Graves (Wash.). 393 State v. Hanscom (Or.).. 399 State v. Hitt (Wash.). .1021 State v. Kelly (Kan. App.). 336 State v. Kness (Kan. Sup.). 267 State v. Kroenert (Wash.). 376 167 638 299 782 876 Sharp, Tarpey v. (Utah).. 104 Shaughnessy, People v. (Cal.). 2 State v. La Grave (Nev.). 470 875 Shaw, Atchison, T. & S. F. R. Co. v. (Kan. State v. Lenahan (Mont.). 712 Sup.) .1129 Shaw, People v. (Cal.). 593 State v. Lewis (Kan. Sup.). 265 471 Shearer v. Wilder (Kan. Sup.). Union Depot Co., Roth v. (Wash.). Turner Flouring Mills Co., Schreyer v. (Or.) 719. 494 .1039 ... 91 ... 916 641 (Kan. Sup) 766 Streeter, Board of Com'rs of Clay County v. (Kan. App.) 985 Sturgis, Cawston v. (Or.). Stuyvesant v. Western Mortgage Invest 896 .1135 656 Union Pac. R. Co. v. McCollum (Kan. App.) 97 Union. Pac. R. Co. v. Mitchell (Kan. Sup.) 244 144 Union Pac. R. Co. v. Motzner (Kan. App.) 785 .1012 Union Pac. R. Co. v. Ure (Kan. Sup.).... 776 38 Union Pac. R. Co., Gilland v. (Wyo.).. 508 .1001 Union Trust Co. of New York v. Atchison, T. & S. F. R. Co. (N. M.). 701 United States v. Drachman (Ariz.). United States Nat. Bank, Kirwin v. (Kan. App.) 222 796 580 Ure, Union Pac. R. Co. v. (Kan. Sup.),.. 776 Superior Court of King County, State v. (Wash.) Superior Court of King County, State v. Van de Vanter, Cochrane v. (Wash.) 42 (Wash.) 877 Van Eman, People v. (Cal.). 520 Superior Court of King County, State v. Van Houten v. People (Colo. Sup.). 137 (Wash.) 887 Superior Court of Placer County, Barrett v. (Cal.) 519 Superior Court of Snohomish County, State Van Ness, First Nat. Bank of Hailey v. (Idaho) 59 v. (Wash.) 19 Van Tassel, People v. (Utah). 625 Superior Court of Spokane County, State v. (Wash.) Van Zandt v. Shuyler (Kan. App.).. 295 636 Vaughan, State v. (Nev.). 193 Supervisors of Sacramento County, Gett v. (Cal.) 1122 Vincent, Atchison, T. & S. F. R. Co. v. (Kan. Sup.) 251 Swartwood v. Red Star Shingle Co. (Wash) 21 Visalia & T. R. Co. v. Hyde (Cal.). 10 924 Sweet. Dempster & Co. v. Dillon (Wash.).. 637 Sweetland v. Atchison, T. & S. F. R. Co. (Colo. Sup.) .1006 Swift v. Wyatt (Kan. App.). 984 Symns Utah Grocer Co. v. McLaughlin (Utah) 109 Syndicate Imp. Co. v. Bradley (Wyo.)..... 79 Walsh v. Board of Trustees of Helena School Dist. No. 1 (Mont.). 180 Wanamaker v. Manufacturers' Nat. Bank (Kan. App.) 796 528 Ward, Foreman v. (Kan. App.). .1139 Taggart v. Bundick (Kan. Sup.). Tarpey v. Sharp (Utah). 243 Warner v. Fremont County (Idaho). 104 Waters, Coe v. (Colo. App.).... 327 156 Taylor, Broker v. (Cal.). Taylor, Hagler v. (Kan. App.). 387 Watkins, Holt Live-Stock Co. v. (Colo. Sup.) 121 87 Watson v. Beckett (Kan. App.). 787 Territory v. Leary (N. M.). 688 Weaver v. City and County of San Fran Territory, Holt v. (Okl.). 1083 cisco (Cal.) 972 Territory, Jewell v. (Okl.). .1075 Weaver v. Lockwood (Kan. App.). 311 Territory, Jones v. (Okl.).. .1072 Webber v Carey (Kan. App.). 284 Territory, Martin v. (Okl.). .1067 Webster, People v. (Cal.). ..1114 Territory, Shoemaker v. (Okl.). Territory, Silva v. (N. M.). Terry, Lewis v. (Cal.). .1059 Wellman, City of Lyons v. (Kan. Sup.).. 267 690 West v. Badger Lumber Co. (Kan. Sup.).. 239 398 West, Spangler v. (Colo. App.)... 905 Thatcher v. Valentine (Colo. Sup.). .1031 West Aberdeen Land & Improvement Co., Carl v. (Wash.) 890 V. West Coast Grocery Co. v. Stinson (Wash.) 385 Westerman, Gilmore v. (Wash.). 35 345 [Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in 40-42 Pac. This list does not include cases where an opinion has been filed on the denial of the rehearing.] Adler v. Newell (Cal.) 41 Pac. 799. Mesnager v. Engelhardt (Cal.) 41 Pac. 20. People v. Chin Hane (Cal.) 41 Pac. 697. Cox v. Los Angeles Terminal Ry. Co. (Cal.) 41 Riverside Water Co. v. Gage (Cal.) 41 Pac. 299. Pac. 794. Davis v. Ward (Cal.) 41 Pac. 1010. Sabichi v. Chase (Cal.) 41 Pac. 29. Deering v. Richardson-Kimball Co. (Cal.) 41 Smith v. Green (Cal.) 41 Pac. 1022. Diggins v. Hartshorne (Cal.) 41 Pac. 283. Fox v. Hale, & Norcross Silver Min. Co. (Cal.) 41 Pac. 308. Fox v. Hale & Norcross Silver Min. Co., two cases (Cal.) 41 Pac. 328. Freeman v. Campbell (Cal.) 42 Pac. 35. Spinney v. Downing (Cal.) 41 Pac. 797. Tahoe Ice Co. v. Union Ice Co. (Cal.) 41 Pac. Trumpler v. Cotton (Cal.) 41 Pac. 1033. Fudicar v. East Riverside Irr. Dist. (Cal.) 41 Walkerly's Estate, In re (Cal.) 41 Pac. 772. Pac. 1024. Gaberino v. Roberts (Cal.) 41 Pac. 857. Hostetter v. Los Angeles Terminal Ry. Co. Howland v. Kreter (Cal.) 41 Pac. 332. Walkerly's Estate, In re, three cases (Cal.) 4 Walsh v. Cosumnes Tribe, No. 14, Imperial O White v. Superior Court of City and County c THE PACIFIC REPORTER. VOLUME 43. (11) Cal. 655) WHEELER v. DONNELL. (L. A. 91.)1 (Supreme Court of California. COURT APPELLATE JURISDICTION Jan. 8, 1896.) PROCEEDINGS -- FOR REMOVAL OF PUBLIC OFFICER. A proceeding under Pen. Code, § 772, providing for the removal of a public officer for misconduct, on accusation presented to the superior court, in which proceeding, in case the accusation is sustained, a judgment for $500 is also to be rendered for the informer, is not appealable to the supreme court, as a "case at law" involving a demand in excess of $300. Beatty, C. J., and Temple, J., dissenting. In bank. Appeal from superior court, Los Angeles county; Walter Van Dyke, Judge. Accusation filed by one Wheeler against J. A. Donnell. From the judgment dismissing the accusation on a demurrer being sustained, Wheeler appeals. Dismissed. R. H. Chapman and W. T. Kendrick, for appellant. Allen & Flint and Garrison & Goodrich, for respondent. GAROUTTE, J. This is a proceeding brought against J. A. Donnell, district attorney of Los Angeles county, by accusation under the provisions of section 772 of the Penal Code, alleging misdemeanors in office. The accusation was tried upon the complaint and answer, and judgment was rendered upon the merits exonerating the accused and dismissing the complaint. This is an appeal by the accuser, Wheeler, from said judgment. Respondent has moved to dismiss the appeal upon the ground that no appellate jurisdiction in such cases is vested in this court, and this is the only point here involved. In Re Curtis (decision filed Sept. 4, 1895) 41 Pac. 793, the question here involved was directly presented, and this court dismissed the appeal for lack of jurisdiction to entertain it. The reasoning upon which the conclusion was there arrived at is entirely satisfactory to us, and it would hardly seem that further consideration of the subject is necessary. That decision is based upon the broad proposition that the proceeding is a criminal one, not prosecuted by information or indictment, and therefore without the appellate jurisdiction of this court. That this proceeding is a criminal one, and in its nature a prosecution for crime, is evident by every section of the Penal Code found in the chapter where this 1 For opinion on rehearing, see 43 Pac. 578 v.431.no.1-1 accusation is authorized. In addition to this, section 15 of the Penal Code declares: "A crime or public offense is an act committed or omitted in violation of the law forbidding or commanding it, and to which is annexed upon conviction either of the following punishments: *(4) Removal from office." In a case like the present one, if the charges are substantiated, the court must enter a decree that the party accused be deprived of his office, and also enter a judgment in favor of the informer for the sum of $500. It is now sought to avoid the effect of the rule declared in the Curtis Case by claiming the present proceeding to be a case at law in which the demand, exclusive of interest, amounts to $300. Conceding a demand is here involved amounting to $300, such fact of itself is not sufficient to vest this court with jurisdiction. A demand in that amount must be in a "case at law," and here we have no such case. There are many misdemeanors punishable by imprisonment and fine of $500, and it might, upon similar lines of reasoning, be urged that there was a money demand of $500 involved In such cases, and appellate jurisdiction for that reason be vested in this court; but in People v. Johnson, 30 Cal. 98, this court, in construing the provision of the constitution as to its appellate jurisdiction, said: "In view of this clear and precise division of the subject-matter, aside from the ordinary import of the words 'cases at law,' it is clear that those words only refer to civil, as distinguished from criminal, cases. Equity cases are first provided for, then civil cases at law, then probate cases, and lastly criminal cases." This accusation charges a misfeasance in office, and fixes the penalty at removal from such office and fine. As a matter of policy, the law declares that this sum of $500, which is nothing more nor less than a fine, shall go to the informer; and that this money goes to the informer, rather than into the county treasury, is wholly immaterial. Again, the main purpose of the act is to secure the removal of the officer guilty of unlawful conduct, and the money judgment provided for is purely incidental to that purpose. Smith v. Ling, 68 Cal. 324, 9 Pac. 171. This is even more fully apparent when we consider that an accusation presented by the grand jury is not followed by any money judgment in If case a conviction results, and also from the further fact that the entire sum goes into the pockets of the informer. In Woods v. Varnum, 85 Cal. 639, 24 Pac. 843, it is held that the accused is not entitled to a jury trial. the case was one at law, involving more than $300, such a judgment could not stand. Aside from the money judgment provided by the section, the proceeding has no single element of a "case at law." It is in no sense a proceeding in the nature of quo warranto, as was held to be the nature of the action in People v. Perry, 79 Cal. 105, 21 Pac. 423. The subject of litigation in that case was title to the office. In all essentials, that was a case at law. A question of conflicting claims to an office was there presented, and usurpation was charged. There title was denied. Here title is admitted. It was not held in that case that, by reason of a $5,000 fine being authorized by the statute, therefore this court had appellate jurisdiction; but it was held that a money demand exceeding $300 being involved, and the action being substantially a quo warranto proceeding, and in its nature a case at law, therefore appellate jurisdiction was vested in this court. For the foregoing reasons, the appeal is dismissed. 1. One who obtains possession of another's money by inducing him to put it up on a lottery operated in a bunco game, and with the assurance that the money would be returned after a certain number of drawings, the owner not intending to part with his title, is punishable for larceny. 2. Though, on a trial for grand larceny committed in the execution of a bunco game, the court read to the jury section 332 of the Penal Code, which has reference to fraudulently obtaining money by device, trick, etc., the error was cured by following charges to the effect that the person obtaining money from another by fraud or artifice, with the intention of stealing it, the owner not intending to part with his title,-is guilty of larceny. SEARLS, C. An information was lodged against John Shaughnessy, the defendant and appellant here, by the district attorney of the city and county of San Francisco, charging him with the crime of grand larceny, alleged to have been committed at said city and county on the 1st day of September, 1894, by the felonious stealing, taking, and carrying away $2,080, etc., the personal property of one Charles Anderson. He was arraigned tried, convicted, and sentenced to serve a term of four years in the state prison at Folsom, Cal. From this judgment, and from an order denying his motion for a new trial, the defendant prosecutes this appeal. A general outline of the case, as made by the prosecuting witness, Charles R. Anderson, may be stated thus: In July, 1894, said Anderson made the acquaintance of the defendant, Shaughnessy, who professed to be familiar with games and gaming, and who was without money, while Anderson had, or professed to have, some $4,000. The prosecuting witness had a wheel of fortune manufactured, and there were negotiations between the parties looking to a trip to South America for gambling purposes; Anderson to furnish the capital, and defendant the skill, the profits to be divided. About the last of August a third man, a stranger named Sampson, appeared on the scene, made the acquaintance of the parties, and professed to come from South Africa, where he had made money. Defendant professed to have seen Sampson's funds, and to know that he had large means. Thereupon the three agreed to form a copartnership, to go to South Africa, open a saloon, and engage in gambling. An agreement was prepared, and on September 1st the parties started down town to execute this agreement. Ou Grant avenue they stopped at a saloon, at the request of Sampson, to take a drink, where said Sampson was informed he had drawn a prize in a lottery. The parties then went to the lottery office, Anderson objecting, but is induced by the others to go upstairs, and to the room where the lottery is carried They there find a man in charge, who informs Sampson he has drawn $112, of which sum he pays him $110, and, after some discussion, gives him lottery tickets for the $2, with which he draws a prize of some $20, receives more tickets which he divides with Anderson, and they proceed to another dra'wing, whereupon Anderson is informed he has drawn an "approximate prize" of $500, but that to make it absolute some five other drawings were necessary, and in the meantime, and as the drawings progressed, the lot. tery company had a right to demand that cer on. |