Schumann-Heink

The Schumann-Heink Company, Inc., a corporation of which the defendant and appellant was the president, was organized for the purpose of carrying on a general stock and bond brokerage business. Its main office was in the city of San Diego, but later an office was opened in the city of Los Angeles. The defendant and appellant devoted most of his time to the management of the latter office, while the active management of the business in San Diego was in the hands of Wilfred M. Clare, who was secretary and treasurer of the corporation.

Prior to the transaction under investigation appellant had executed his personal note to the United States National Bank, at San Diego, for $3,500, which was unsecured. After a time he paid $500 on this note and gave the bank a new demand note, for $3,000 to cover the balance. Thereafter, while appellant was in Los Angeles, the bank demanded payment of the note and communicated with Clare, who thereupon indorsed the note -and offered to secure the same. His offer was accepted, and Clare brought to the bank a list of personal securities from which the bank selected twelve shares of stock of the Security Commercial and Savings Bank of San Diego, which…

I concur. However, in addition thereto, I am of the opinion that prejudicial error was committed by the trial court in its refusal to give to the jury, at the request of defendant, the following instruction:

Particular attention is directed to that part of the instruction by which it was proposed to tell ,the jury that unless from the évidenee it found that Clare was acting under instructions and with the knowledge of the defendant in the transaction, the defendant was entitled to an acquittal of the charge against him. No instruction given by the court to the jury covered the point in question or dealt with it in any way. Manifestly, if in pledging the certificate of stock referred to in the instruction, Clare was acting on his own initiative and without any instructions from defendant so to do, defendant would be in nowise criminally liable for the act of Clare. On the other hand, if in pledging the stock Clare was acting under the instructions of defendant, the knowledge of defendant of the commission of the act would be imputed to him. (1 Cal. Jur. 846, and cases cited.) As a matter of law, the words “with the knowledge of the defendant” added nothing to the instruction. In…