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STURTEWANT, J. The appellants were informed against by the district attorney in a joint information. They appeared and moved for separate trials, their motions were denied, a trial was had, and from judgments of imprisonment the defendants have appealed, each filing a separate notice of appeal, and each filing a brief, but both standing on one and the same transcript. Before proceeding further it is advisable to state by way of preface that the case made by the prosecution consisted of circumstantial evidence obtained by working backwards. After the offense alleged in the information was committed, the defendants, Dillard Porter and Albert Young, produced and offered to one Robert Pilotek and William Siegman a grip containing silverware, etc., claimed by the prosecution to have been taken from the residence of the complaining witness, Mrs. Charlotte S. Mack, 1824 Jackson street, San Francisco, on the occasion when her residence was burglarized as alleged in the information. When the possession of the silverware was traced to Pilotek, and Siegman they were arrested. Whén they were arrested they made statements to clear themselves. Separately Pilotek made a statement to the police, which was taken down in writing; so did Siegman, and likewise Porter. Some of those statements covered many other crimes, and referred to matters other than were necessarily involved in the information before the court in the case charged by the information. Proceeding now with the case presented by the appellants, and the points made by the appellants, it may be stated that the information charged that the appellants jointly 'burglarized the apartment of Charlotte S. Mack at 1824 Jackson street, San Francisco, on the 23d day of November, 1922; that both defendants were arraigned and pleaded not guilty; that the defendant Young moved for a severance of the trials; that his motion Was denied; that the cause was then set for a joint trial before a jury; that a trial was had; that thereafter the jury returned a Verdict, “We, the jury in the above-entitled Cause find the defendants Dillard Porter and Albert Young guilty of the crime of felony, to wit: Burglary, as charged in the information. We determine the same to be second degree;” that thereafter the defendants were arraigned for judgment; that they each moved for a new trial; that their motions were denied; that thereafter the defendants Suggested the granting of probation; that the suggestions were denied; that thereafter judgment was pronounced; and, as stated above, thereafter each defendant appealed from the judgment of conviction and from the order denying him a new trial.

Porter's Appeal.

[1] After his arrest the defendant Porter made a purported confession. On the trial

of the case that confession was offered in evidence. Over the objection of defendant the confession was admitted. The order overruling the defendant's objection is by him assigned as error. As we understand the appellant his objection is twofold. One objection is that the confession should not have been admitted until the corpus delicti had first been proved. Taking up that contention first, it may be stated that aside from the confession there was before the jury a story that runs as follows: The two defendants did, prior to the burglary, appear before Theas Young, the consort of the defendant Young, and, presenting to her what purported to be a package of groceries, asked and obtained her writing on the package of the address, “Mrs. Charlotte Mack, 1824 Jackson Street.” Thereupon the defendants disappeared. On the 21st day of November, 1922, Mrs. Mack had left her residence to go to Menlo Park. She did not return until the 24th. While she was absent her apartment was entered, and there were stolen therefrom dresses and silverware of the value of $3,200, but there was left in the residence the package wrapped in the piece of manila paper on which Theas Young had written the address hereinabove mentioned. After the burglary had been committed, and when the officers arrested the defendant Albert Young, they found in his apartment some of the dresses that had been taken from the apartment of Mrs. Mack, and when the arresting officers went to the apartment of the defendant Porter they found a leather case containing tools and appliances which had been taken from the same apartment. Shortly before their arrest the defendants Young and Porter produced in the building occupied by Robert Pilotek a suit case containing practically all of the silverware which had been taken from the Mack residence, each piece of silverware having engraved thereon the letter “M” as the monogram of the Mack family. Moreover, the fact that the Mack residence was burglarized by some one was completely and fully testified to by Mrs. Mack, and, so far as we can notice, her testimony was not challenged by either defendant. It is quite clear, therefore, that the corpus delicti was proved before the confession of Porter was received, and furthermore that there was at the same time some evidence connecting the defendant there with. [2] In the second place, it is contended by the defendant Perter that his confession was not voluntary. It may be conceded, for the purpose of this opinion, that the evidence on that subject is conflicting. However, as we understand the record, Porter's wife, then living as the consort of another man, aided the police in making the arrest. That man, whose name is not given, on one occasion said to the detective sergeant, Richmond Tatham, “There he goes,” pointing to the defendant Porter. The officers gave chase. Irving R. Findlay made the arrest, and, after having done so turned the defendant over to Sergeant Tatham, who accompanied the defendant to the hall of justice. After arriving at that place, the officer said to him :

“‘Porter, we have got it on you, you have got the stuff in your room, and we have found a lot of property in your room; now, Porter, we have got it on you. Are you going to talk? Siegman and Pilotek have talked;’ and he thought it over a little while, and he said, ‘Yes; I will talk.” Q. You didn't coerce him or promise him? A. I did not. Q. Any immunity or award? A. I did not. Q. Any statement he made to you was made freely and voluntarily? A. Absolutely. . Did you reduce his statement to writing? A. I reduced the major part of it. * * * Q. You stated, Detective Sergeant, that before Porter made this statement that he had better make the statement, that Pilotek and Young had already done so, is that true? A. Why, words to that effect; I cannot remember the exact words; I said, ‘You may as well talk'; I said, ‘Now I am going to have this—we will sit down—wait until we get in the Hall of Justice and we will sit down, and you put it all in writing, and start in the very commencement, and you will go right through it,” and he said, ‘I will,” using some epithets against the other defendants. Q. How long after his arrest was it? A. Immediately.”

Considering all of the foregoing voir dire examination, it is patent that the trial court could have gathered from the statements of the officer that the confession was obtained voluntarily and without inducement or otherwise. We cannot say as a matter of law that the trial court erred in holding that the statement was made voluntarily,

[3] Among other instructions the trial court instructed the jury as follows:

“You will understand, ladies and gentlemen, that the mere possession of stolen property, if there was possession of it in this case, the fruits of a burglary, recently after the theft, by the person or persons charged, is not presumptive evidence of guilt, but is a circumstance tending to prove guilt. If the jury believes, from the evidence, that the defendant or defendants were found with the stolen property in their possession, or that they had it in their possession shortly after the alleged commission of this offense, or that either one of them had possession of it shortly after the alleged commission of this offense, then in determining the weight to be attached to that circumstance, as tending to prove guilt, the jury should consider all the circumstances attending such possession, the proximity of the place where found to the place of the burglary, the lapse of time since the property was taken, whether the property was concealed, whether the party having possession had admitted or denied its possession, and the demeanor and character of the accused. All these circumstances, so far as they have been proved, are proper to be taken into account by you in determining how far the possession of the property by the accused, if it has been proved, tends

The appellant complains because the trial court did not insert after the word “circumstance,” “to be considered with the other testimony introduced in the case as.” The objection is without merit. It is patent that the trial court, by the instruction quoted, did not advise the jury that the jury was to consider solely and alone the possession of stolen property. Neither did the instruction conflict with the rule announced in People W. Ah Ki, 20 Cal. 178; People v. Nichols, 3 Cal. App. 33, 177 Pac. 861; or People v. Horton, 7 Cal. App. 35, 93 Pac. 382. [4] The appellant makes a third point to the effect that the court erred by instructing the jury as follows:

“The court further instructs you that, if any property was taken and the property recovered or returned, such is not to be considered by you as a defense in this proceeding.”

In this behalf the appellant proceeds to state hypothetical situations that might have been. It is sufficient to say that there was no evidence in the record of and concerning those hypothetical contingencies. The court did not err in giving the instruction.

Young's Appeal.

[5] The appellant Young sets forth the evidence, and contends that the record shows that the dresses which we have stated were found in his possession were in fact found in the possession of the consort of Young, who was commonly known as Theas Young. We have read all of the record. True it is that there was some evidence in the record to the effect that the dresses, in a certain sense, could be said to be in possession of Theas Young. But it is also true that there was evidence in the record from which the jury could conclude that the possession of Theas Young was the possession of the appellant Young. The conflict in the testimony, the weight of it, and the credibility of the witnesses were all matters which the jury were entitled to determine, and the record does not present any showing of abuse of discretion. We may not interfere. This appellant complains because the confession of Porter was admitted. The confession was clearly admissible against Porter. The trial court made no ruling, or rulings, against the appellant Young wherein or whereby that evidence was not correctly limited to the purpose for which it was legally admissible. [6] As we have stated above, the confession of Porter was taken down in writing; the statement of Pilotek was taken down in writing, and the statement of Siegman was taken down in writing. Thereafter the appellant Young was called before a police of— ficer, and the author of each of said writ

to show guilt.”

ings was also produced; thereupon the of— ficer read to the appellant Young each of the above-mentioned documents. On the trial that police officer was called to the stand and testified to the foregoing facts, and in that connection read the statement before the jury which had been so read in the presence of the appellant Young, and in addition thereto gave testimony of and concerning Young's “conduct in relation thereto.” This procedure was in compliance with the provisions of subdivision 3 of section 1870, Code of Civil Procedure. But the appellant complains that some of those documents contained damaging statements of and concerning other offenses for which the defendant Was not on trial. That is true, but when the officer was about to read the particular Paper the appellant did not ask to see it and mark the irrelevant passages, and ask the trial court to confine the reading to those

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matters only that came within the issue on.

trial. Numerous objections were made by counsel, but we have failed to find a single instance in which the trial court made any error in ruling thereon. The appellant specially calls attention to the fact that Seigman was not called as a witness. If Siegman's statement had not been read in the presence of Young that objection might have merit, but, as we have pointed out above, the value of the incident arises by reason of the statement having been read to Young in the presence of Siegman and the officer's testimony as to what Young said or did in relation thereto. We think it is clear, therefore, that the evidence contained in those documents was properly received by the trial COurt. [1] This appellant also complains that the evidence was insufficient to convict him. It is unnecessary for us to repeat the evidence recited above, which, exclusive of the confession of Porter, proved or tended to prove not only that Mrs. . Mack's apartment was burglarized, but also that the two appellants Committed the act. In addition to that evidence, when the case went to the jury, there Was the additional showing contained in the written confession of Porter, and thereafter read to the appellant Young, in which Porter stated that he and Young did the job. Furthermore there was before the jury the statement of Pilotek and Siegman that, at the time Porter and Young produced the grip containing the stolen silverware, that they then stated that they had taken the same from an apartment on Jackson street. There was therefore plenty of evidence, if the jury believed it, which warranted the jury in bringing in the verdict. We find no error in the record. The judgInent is affirmed.

We concur: LANGDON, P. J.; NOURSE. J.

Ex parte HALL. (Cr. 735.)

(District Court of Appeal, Third District, California. Sept. 28, 1923.)

1. Criminal law 6-228—One accused of threatening to kill another entitled to an immediate preliminary hearing. Under Const. art. 1, § 6, and Pen. Code, § 704, a person charged with threatening to kill another is entitled to an immediate hearing before a magistrate, instead of being kept in jail without bail to await magistrate's conven1ence.

2. Bail ®->40, 43–One accused of threatening to kill another entitled to release from custody on bail pending preliminary hearing. One who was accused of threatening to kill another was entitled to release from custody on bail pending a postponed preliminary hearing before the magistrate, under Const. art. 1, § 6, and Pen. Code, § 704, but not entitled to release without giving bail.

3. Criminal law & 228—Magistrate held not to lose jurisdiction by continuing preliminary hearing. A magistrate held not to lose jurisdiction to hold preliminary hearing by improperly continuing the hearing to a time convenient to him, instead of granting an immediate hearing.

Original application for writ of habeas corpus by Charles A. Hall. Writ granted.

T. B. Scott, of Modesto, for petitioner. William J. Brown, Dist. Atty., of Modesto, for respondent.

FINCH, P. J. Petitioner seeks his release from custody by habeas corpus. August 31, 1923, he was arrested without a warrant and confined in the Turlock jail. On the following day he was taken to the county jail, where he was held without any charge being preferred against him until September 6th. On the afternoon of the latter date an affidavit was filed with a justice of the peace, alleging that on the 31st day of August, 1923, petitioner had threatened to kill one Albert Mello, and praying that petitioner be required to give security to keep the peace. The justice of the peace thereupon issued a warrant for the arrest of petitioner, who •was takea before that officer on the afternoon of September 7th. Petitioner controverted the charge made against him and demanded an immediate hearing. The justice

of the peace was then engaged in the trial

of a case, and had civil and criminal cases set for trial before the court which would occupy practically all of his time until 3 o'clock p.m., September 12th, for which time the justice of the peace set the hearing of the charge against petitioner, denied petitioner's request for an immediate hearing, refused to admit him to bail, and committed him to the custody of the sheriff. On September 12th,

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at the hour set for the hearing, the justice's court was engaged in the trial of a civil action, and, without the consent of petitioner, continued the hearing to September 15th. [1-3] To uphold the proceedings set forth would be to set at naught the constitutional provision that “all persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the preSumption great.” Const. art. 1, § 6. If a justice of the peace has authority to commit an accused without bail, in such a case, for two weeks, pending a hearing, he has authority, under similar circumstances so to commit him for two months, or longer. Section 704 of the Penal Code provides:

“When the person informed against is brought before the magistrate, if the charge be controverted, the magistrate must take testimony in relation thereto.”

It is evident from a reading of the law providing for security to keep the peace that a summary proceeding is contemplated. The person so charged is entitled to an immediate hearing, instead of being thrown into jail, without bail, to await the convenience of the magistrate. It is not necessary to decide whether the magistrate may order the accused into custody during the progress of the

hearing, for no such question is presented

here. No sound reason has been advanced, however, for the release of the petitioner without his giving bail, or to hold that the magistrate has lost jurisdiction to hear the charge. It is ordered that petitioner be released from custody pending the hearing before the magistrate, on giving bail in the sum of 1,000, the bond to be approved by the magistrate before whom the charge is pending.

I concur: HART, J.

PEOPLE v. SANDERs. (cr. 1096.)

(District Court of Appeal, First District, Division 2, California. Oct. 1, 1923. Hearing Denied by Supreme Court Nov. 28, 1923.)

1. Criminal law 3-100s—Revoking parole held not an abuse of discretion. Where one placed on probation, if not afterwards guilty of forgery, associated with the guilty party, and gave worthless checks, obtaining for one of them a phonograph, which he immediately sold and spent the proceeds, and violated the terms of his parole by not reporting to the probation officer or returning to his home as therein ordered, the court did not abuse its discretion under Pen. Code, § 1203, in revoking his probation.

2. Criminal law 3-1 [47—On appeal from order revoking probation, only question is whether court abused its discretion. The only question on an appeal from an order of the trial court revoking probation under

Pen. Code, § 1203, is whether the court abused its discretion.

3. Criminal law & 1001—Notice to defendant of hearing of motion to revoke probation not required. No provision is made under Pen. Code, § 1203, nor other section, for notice to defendant of a hearing of motion to revoke probation.

Appeal from Superior Court, City and County of San Francisco; Michael J. Roche, Judge.

Clinton Sanders was convicted of grand larceny, and from an order revoking probation, he appeals. Affirmed.

Walter F. Lynch, of Stockton, and Ernest B. D. Spagnoli, of San Francisco, for appellant.

U. S. Webb, Atty. Gen., and John H. Riordan, Deputy Atty. Gen., for the People.

LANGDON, P. J. This is an appeal from

an order of the superior court of the city

and county of San Francisco granting a motion to revoke and terminate defendant's probation. Appellant was accused by information of the crime of grand larceny committed in December, 1921. He was convicted on January 26, 1922, and on February 24, 1922, the court granted him probation for a period of three years, and ordered that he return to his home in Oklahoma City, Miss., and report to the probation officer weekly by letter. On October 10, 1922, a motion of the probation officer to revoke and terminate the probation came on for hearing. After several continuances granted at the request of the defendant, the motion of the probation officer was granted. . [1] Appellant objects to the action of the trial court upon the ground that at the hearing on the motion of the probation officer hearsay testimony was admitted, and that defendant was not properly served with notice of said hearing. Apart from any hearsay evidence which appears in the record, there were proven sufficient facts by unimpeachable evidence to warrant the exercise of the discretion of the court in revoking the probation. They are: The defendant did not go to his home in Mississippi, as he was directed to do upon the granting of the probation. Instead, according to his own testimony, he went to Modesto, Cal., where he remained a few days, and then went to Sacramento, and from there to Bakersfield, where he was arrested on the charge of forgery. According to his own testimony he was not guilty of this charge, but was associated with a man who was guilty of the crime. He was confined in the county jail for several months, and when he was released he returned to San Francisco. Here defendant obtained funds from a hotelkeeper upon defendant’s check, which was returned

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(220 P.)

urapaid because defendant had no account at the bank upon which it was drawn. Deferndant then purchased a phonograph, giving in payment therefor a check upon an outof-town bank, which, it was ascertained by telegraphing to said bank, was, of no value because defendant had no funds in said bank. The day after purchasing the phonograph defendant went to an auction house and sold the same, representing it to be his property, and secured $75 therefor. Before the phonograph could be delivered the company from which it had been purchased ascertained by telegraph that the check given in payment therefor was of no value, and reclaimed their property. The auctioneer then caused defendant's arrest upon the charge of obtaining money under false pretenses. At the time of his arrest defendant was in an intoxicated condition, according to the arresting officer, and had been driven to his hotel in a taxicab. He stated to the arresting officer that he had spent in one day the $75 which he had received for the phonograph. There are many other matters in the record which indicate either directly or by inference, that the appellant, at the time of the revocation of his parole, had not been conducting himself in a manner expected and required of one upon probation. [2] It is apparent from the foregoing that the trial court did not abuse its discretion in revoking appellant's probation, and that the record contains sufficient admissible evidence to warrant the action taken. The only question arising in an appeal from an order of the trial court revoking probation under Section 1203 of the Penal Code is as to whether or not the court abused its discretion. People v. Sapienzo (Cal. App.) 213 Pac. 274. [3] The only other question presented is with reference to the service of notice upon defendant. Section 1203, Subsec. 3 of the Penal Code, provides that at any time during the probationary period of the person released on probation any probation officer may, without warrant, or other process, at any time until the final disposition of the case, rearrest any person so placed in his care and bring him into the court, or the court may, in its discretion, issue a warrant for the rearrest of any such person, and may thereupon revoke and terminate such probation if the interest of justice so requires, and if the court shall have reason to believe, from the report of the probation officer or otherwise, that the person so placed upon probation is violating the conditions of his 'probation, or engaged in criminal practices, or has become abandoned to improper associates or a vicious life.

We find no provision for any form of no- ||

tice to a defendant of a hearing of a motion to revoke his probation. In this case the de

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1. Principal and agent 3-194(3)—instruction that lack of authority of agent to appoint subagent immaterial where principal subsequently ratifies appointment held reversible error. The following instruction was given to the jury: “You are instructed that as a general rule an agent has no implied authority to delegate his powers to a subagent, and that persons employed by him as subagents do not become the agents of the principal without the principal's consent; and in this connection you are instructed that the lack of authority in an agent, in appointing a subagent and to bind his principal, is immaterial, where the principal with full knowledge has subsequently ratified the agent's acts in making said appointment.” Record examined, and held, that the giving of the above instruction constituted reversible error in the absence of any evidence that the subagent was employed to act for and on behalf of the principal, and where the uncontroverted evidence shows that he was employed for and on behalf of the agent alone.

2. Principal and agent & 88 — Subagent can look for compensation only to immediate employer. If an agent, having undertaken to transact the business of his principal, employs a subagent on his own account to assist him in what he has undertaken to do, he does so at his own risk, and there is no privity between such subagent and the principal, and the subagent can look for his compensation only to his immediate employer.

3. Factors 6-9–Principal and agent 3-54– Agent has no implied authority to appoint subagents or delegate powers; subagents do not become agents of principal without his consent. An agent or factor has no implied authority to appoint subagents, or to delegate his powers; and persons employed by such agents do not become agents of the principal without the

fendant was arrested charged with a crime.

principal's consent.

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