Glass

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 652 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 653 A hearing before this court was granted from the decision rendered by the court of appeals of the first appellate district. Upon due consideration we adopt the opinion and views of the court of appeal, saving upon two propositions which will hereinafter be noted. Amplification of certain of the propositions discussed and *Page 654 decided by the court of appeal is called for in answer to the considerations pressed upon this court in the petition for rehearing. 1. A vast mass of evidence was introduced in this case which, for brevity, may be designated evidence touching the Oakland franchise. Admittedly, the transactions covered by this evidence, in point of time, long antedated any of the occurrences properly embraced within the charge of bribery. Admittedly, also, the transactions were entirely separate and distinct, the earlier one having no causal connection with the latter. By the Oakland…

Defendant was charged by indictment with the crime of bribery, under section 165 of the Penal Code, and having been convicted of the charge he has appealed to this court from the judgment and the order denying his motion for a new trial. After his conviction, and before judgment was pronounced, the defendant made a motion in arrest of judgment, which was by the court denied. As this motion *Page 669 attacked the sufficiency of the indictment it is proper that the ruling of the court thereon be first considered on this appeal. The motion was based upon certain defects or alleged defects in the indictment. In this connection it is insisted by respondent that in the condition of the record in this case, this court can only consider whether or not the court had jurisdiction over the subject-matter of the indictment, and whether or not the indictment states facts sufficient to constitute a public offense (Pen. Code, secs. 1012 and 1185). No demurrer is contained in the bill of exceptions, and the transcript as originally filed in this court did not, in the judgment-roll, or "record of the action," as it is denominated in the statute (Pen. Code. sec. 1207 ) contain the demurrer. Upon…

I dissent from the judgment of reversal. The evidence of the conversation between Pillsbury and Glass showed the familiarity of the latter with the inside doings of the company and was competent for that purpose, as was fully shown in Justice Hall's opinion. The evidence of the bribery of the other supervisors, as Justice Hall shows, tended directly to prove the giving of money to Lonergan, which was the specific crime charged. This takes it out of the rule requiring cautionary instructions as to evidence admitted for a limited purpose. The refusal to instruct specially *Page 668 as to the Zimmer episode was fully covered by the instructions given. Any intelligent juror would know therefrom that Zimmer's refusal to testify could not be considered. The misconduct and ulterior purposes of counsel for the prosecution, about which so much is said, are foreign to the case, so far as this court is concerned. Misconduct is not assigned as error. With regard to the Oakland franchise, a mass of evidence was given concerning the previous course of the Pacific States Telephone and Telegraph Company toward the rival concern. Large quasi public corporations operating over an entire state are…

I concur in the judgment of reversal and in most particulars in the opinion of Justice Henshaw. I shall, if other pressing duties permit, present my views in a separate opinion.