Criminal Law—Bribery of San Francisco Supervisor—Preventing Franchise to ¡Rival—Incompetent Evidence—Prior Fraud in Oakland.—Upon the trial of an indictment of the manager of a telephone company for bribery of a San Francisco supervisor to vote against a franchise to a rival company, evidence of .action taken by him and his associates, long prior in Oakland to prevent a franchise therein by fraud and trickery, in procuring another franchise to a “bogus company,” was incompetent, as having no tendency to prove identity of plan, or the motive of the bribery charged, and its admission was prejudicially erroneous as tending to degrade the character of the defendant in the minds of the jury. [Shaw, J., and Angellotti, J., dissenting.]

Id.—¡Rule Against Evidence of Distinct Acts.—The law would not have permitted evidence of distinct acts even to show a former bribery of Oakland supervisors. Not only is the prosecution forbidden to show a former distinct crime, but it is also forbidden to prove former distinct acts short of crime, the tendency of which is only to degrade and prejudice the defendant in the minds of the jury.

Id.—“Identity of Plan”—Meaning—Plans not Identical—Distinct Efforts.—Identity of plan must mean a desire and effort upon the part of defendant’s company to exclude competition in Oakland, and the same desire and effort displayed to exclude competition in San Francisco. But the plans are not identical as the efforts were distinct. In the Oakland transaction there was no effort at crime, while in the San Francisco transaction the contention was that crime and nothing but crime was contemplated and perpetrated.

Id.—Motive of Crime not in Doubt—Tendency of Evidence to Besmirch Defendant.—The motive of the crime in San Francisco not being in doubt, the evidence of Oakland- transactions could have no legal effect to prove motive, but such evidence could only tend to besmirch and degrade the defendant in the eyes of the jurors, as having resorted to trickery and fraud to prevent competition.

Id.—Bulb Against Prejudicial Evidence.—The rule against prejudicial evidence includes all evidence which would have a tendency to degrade the defendant, to arouse the prejudice of the jury, to divert their minds from the real issues in the case, or to persuade them by matters not judicially cognizable that the defendant for reasons other than those contained in legitimate evidence was more likely to have committed the offense.

Id.—Error not Deemed Harmless—Action of Prosecution in Securing Verdict by Incompetent Evidence—Estoppel—Presumption. —Where the prosecuting attorney, in his zeal to secure a verdict of guilty, has used incompetent evidence, the reply which the law makes to the suggestion that the error should be deemed harmless, is that after injecting it into the case to influence the jury, the prosecution ought not to be heard to say that it was harmless. It must be presumed in favor of the liberty of the citizen that whatever the prosecutor, against defendant’s protest, has laid before the jury, helped to make up the weight of the prosecution which resulted in the verdict of guilty.

Id.—Inadmissible Evidence—Employment of Political Boss as Attorney—Non-action in Bribery Alleged—Assistance to Bival Company.—Mere evidence of the employment of a political boss on salary as attorney for the company represented by the defendant was inadmissible where there is no evidence that he assisted in defendant’s bribery of the supervisor, but the evidence shows that his services were actively engaged in behalf of the rival company which was also spending money freely to secure its franchise.

Id.—Object of Evidence of Such Employment.—The record shows that the evident object of the evidence as to the employment of such political boss as attorney, was to prejudice the jury against the defendant, and to lay the foundation of an argument against his character.

Id.—Charge of Bribery of One Supervisor—Admissible Evidence of Bribery of Others—Part Execution of Conspiracy.—Upon a charge of bribery of one supervisor, evidence was admissible to show the payment of money to other supervisors, not for the mere purpose of showing distinct crimes, but as showing that the specific act of bribery charged was but part execution of one conspiracy or scheme which contemplated the bribery of a sufficient number of supervisors to prevent the granting of the rival franchise.

Id.—Evidence for Limited Purpose—Prejudicial Befusal of Instructions Limiting Purpose.—The evidence of payment made to other supervisors could only have been admitted for a limited purpose, and it was prejudicially erroneous for the court to refuse to give requested instructions limiting such purpose, and to give no instruction on that subject. [Sloss, J., Shaw, J., and Angellotti, J., dissenting.]

Id.—Prejudicial Bemarks of District Attorney—Befusal of Self-Incriminating Witness to Testify—Error not Sufficiently Corrected.—Where the district attorney made prejudicial remarks about the refusal of a witness for the prosecution, who was the auditor of the company represented by defendant, to testify for the prosecution, on the ground that his testimony would incriminate himself, by adverse insinuation therefrom against the defendant, it is held that the prejudicial effect of such remarks was not sufficiently removed or corrected by the instructions of the court to disregard the same. [Sloss, J., Shaw, J., and Angellotti, J., dissenting.]

Id.—Motion in Arrest of Judgment—Sufficiency of Indictment— Waiver of Defects not Attacked by Demurrer.—Upon a motion in arrest of judgment on the ground of alleged defects in the indictment, since all defects appearing upon the face of the indictment, save want of jurisdiction of the court over the subject-matter of the indictment, and that the facts do not constitute a public offense are waived unless the indictment be attacked for such defects by demurrer, it is essential that the court should be informed as to the contents of the demurrer, to determine the sufficiency of the motion in arrest of judgment.

Id.—Demurrer not Included in Bill of Exceptions—Diminution of Record.-—Though the demurrer was not included in the bill of exceptions, yet where a judgment is rendered on conviction the demurrer is a part of the record of the case under section 1207 of the Penal Code, and must be transmitted to the appellate court after the taking of the appeal, and it is proper to require a certified copy of it to be sent up to be considered in reviewing the motion in arrest of judgment.

Id.—Construction of Code—“Copy of Minutes of Plea or Demurrer” —“Or” Read as “and.”-—The words of subdivision 1 of section 1207 of the Penal Code requiring the record of the action to contain: “1. The indictment or information, and a copy of the minutes of the plea or demurrer,” is not intended to include a “copy of the minutes of the demurrer,” since no such minutes exist. The demurrer is in writing and is to be considered separately from “the minutes of the plea,” and the word “or” after those words is to be construed as “and.” The demurrer speaks for itself, and is part of the record of the case.

Id.—Sufficiency of Indictment—Bribery of Supervisor—Language of Statute—Knowledge of Membership of Board.—Although section 165 of the Penal Code, under which the indictment for bribing a supervisor is framed, does not expressly require that it shall state that the defendant knew that the supervisor bribed was a member of the board of supervisors, and the indictment is. sufficient if it follows the language of the statute; yet the allegation that the bribe was given to the supervisor with “intent in him, the said Louis Glass, to corruptly influence said Thomas F. Lonergan as such member of said board of supervisors, in his action, and in his official vote, opinion, judgment and action, as such member of said board of supervisors,” necessarily carries with it the fact of the knowledge of Glass that Lonergan was a member of said board.

Id.—Unlawful Influence.—Where the indictment alleges that the bribe was given “with the willful, unlawful, felonious and corrupt” intent” of defendant “to corruptly influence” the supervisor, “as such member of said board of supervisors,” etc., it sufficiently charges that the bribe was given to influence unlmofully said supervisor “as such member of said board.” It is inconceivable that any officer may be corruptly influenced in Ms official action by giving to him money, without unlawfully influencing him.

Id.—Definition of “Bbibe.”—The term “bribe” is not defined in section 165 of the Penal Code, describing the offense charged, but is defined in section 7 of that code, as signifying “anything of value or advantage present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in Ms action, vote, or opinion, in any public or official capacity.”

Id.—Certainty of Indictment as to Matter Pending Before Board of Supervisors—Application for Telephone Franchise.—The indictment is sufficiently certain to enable any person of common understanding to know the matter pending on which the bribe was given was the matter of an application for the granting of a francMse to the Home Telephone Company of San Francisco, for constructing, maintaining, and operating a telephone system in the city and county of San Francisco, and that the bribe was given to a supervisor to influence Ms vote on said matter.

Id.—Judicial Notice of Power of Supervisors.—This court knows, as matter of law, that the board of supervisors of the city and county of San Francisco has jurisdiction to grant franchises to maintain and operate telephone systems in said city and county, and that a vote of a member of said board on an application therefor, would necessarily be an official act.