59 P. 764 | Cal. | 1899
Lead Opinion
A rehearing was granted in this case for consideration of a question not discussed in the Department opinion, namely, whether "telephone" is included within the meaning of "telegraph," as used in section
The cases are numerous where the question has come under consideration, and the holding of the courts has been uniform that "telephone" is included within the meaning of "telegraph." Many of these cases are noted in 25 American and English Encyclopedia of Law, at page 746. In Attorney General v. EdisonTeleph. Co., 6 Q.B. Div. 244, it was held that a telephone was a telegraph within the meaning of the telegraph acts, although the telephone was not invented or contemplated at the time of the passage of those acts. It was further declared that a conversation through the telephone was a message, or, at all events, "a communication transmitted by a telegraph, and therefore a telegram within the meaning of the acts." In Richmondv. Southern Bell Teleph. etc. Co., 85 Fed. Rep. 19, the circuit court of appeals, construing an act of Congress of 1866 relative to "telegraph companies," and answering the question whether those words included telephone companies, declared that each was but a form of use, the product and result of the same principle, and that the names were only used to distinguish the method of communication. In Chesapeake etc. Teleph. Co. v. Baltimore etc.Tel. Co.,
These cases are sufficient by way of illustration, though many more could be instanced. They are civil cases, it is true, but they at least serve to show the unanimity and uniformity of the courts' determinations upon the question.
If the consideration could be limited to a strict etymological point of view, it would have to be conceded at once that there is a difference in the meaning of the two words, the one conveying the idea of transmission of writing to a distance, the other the transmission of sound to a distance. In the very early history of the telegraph it is a matter of common knowledge that there was an actual recordation of letters under the Morse code. That soon passed away, and the telegraph operator of to-day receives by sound upon a principle no different from that which obtains in the telephone. Again, in the case of submarine cables neither sound nor writing is always employed, but the varying deflections of an indicator within sight of the receiver serve the like purpose. The words, therefore, cannot be limited to their etymological meaning, and consideration must be had to their present sense and acceptation. Anderson's Dictionary of Law, defining "telegraph," says that it "includes any apparatus for transmitting messages or other communications by means of electric signals." Defining "telephone," he declares it to be "a conversation held through a telephone, a message or a communication transmitted by a telegraph — a telegram. A telephone is a telegraph. The idea conveyed by each term is the sending of intelligence to a distance." Accepting these definitions — and they are well supported — the term "telegraph" means any apparatus for transmitting messages by means of electric currents and signals, and embraces within its meaning the narrower word "telephone."
But is this construction justifiable in the case of the penal statute? Section 4 of our Penal Code provides that "the rule of the common law that penal statutes are to be strictly construed has no application to this code. All its provisions are to be construed according to the fair import of their terms with a view to effect its object and to promote justice." In contemplation *317
of this section, in recognition of the fact that a substantial identity exists between the two words, we think no hesitation need be expressed in declaring that under section
The opinion heretofore rendered in Department is, therefore, adopted, and the judgment is affirmed.
Garoutte, J., McFarland, J., Van Dyke, J., Temple, J., Harrison, J., and Beatty, C.J., concurred.
The following is the opinion of Department One above referred to, rendered on the 12th of June, 1899:
Addendum
This is an action to recover damages for malicious prosecution. The complaint alleges that on the seventeenth day of October, 1891, the defendant caused a complaint to be verified and filed against the plaintiff, charging him with a criminal offense, to wit, "with willfully, unlawfully, and maliciously taking down, removing, injuring, and obstructing a line of telegraph in the city and county of San Francisco," and that on said complaint the defendant caused plaintiff to be arrested and prosecuted in the police court of said city. That in so doing "the defendant acted maliciously and without probable cause," and that plaintiff was afterward acquitted of the said offense. The plaintiff was charged in said police court with the violation of section
The undisputed facts as established at the trial were substantially as follows: A number of persons engaged in the business of moving houses in the city and county of San Francisco thought that the telegraph and telephone companies had no right to make the parties so engaged in moving houses pay the expense of moving or changing the telegraph wires when such removal or change became necessary by the removal of a house. Controversies had before arisen as to the right of the companies to exact payment of the house-movers. Accordingly, the house-movers *318
organized for the purpose of testing the law, and employed an attorney. The attorney advised the plaintiff, who appears to have been the treasurer and manager of the association, to serve a written notice upon defendant to the effect that he was moving a house on Union street in said city, and that the wires used by defendant were an obstruction to him, and demanding that the wires be removed by 1 o'clock of the morning of October 17, 1891. The notice was accordingly prepared by the attorney for the association and served by plaintiff upon defendant. Plaintiff, upon serving the notice, said nothing in explanation, but walked away. He had been advised by the attorney so retained that the way to test the law was to cut the wires after serving notice, and that he would then probably be arrested. The attorney prepared a bail bond for him and agreed to attend to the case and to all the "wire cases" that should come up. At 1 o'clock on the morning of the 17th of October the president and superintendent of defendant and several police officers appeared at the place designated in the notice. Plaintiff did not then cut the wires, but the next day, during the busy part of the day, and while no police officers were around, he cut about a dozen of defendant's wires in the presence of an employee of defendant. The employee immediately telephoned for the police officers, and in fifteen or twenty minutes two came up, and upon their arrival the employee arrested the plaintiff and turned him over to the police. The whole party then boarded a Union street car and proceeded to the old city hall, where plaintiff was charged with cutting telegraph wires, contrary to the provisions of law and section
Where there is no conflicting testimony the question whether or not the evidence introduced by plaintiff shows want of probable cause is always for the court to decide, and it is error in such case, where there is no proof of want of probable cause, to submit any question to the jury. (Dwain v. Descalso,
It was therefore incumbent on the plaintiff in this case, in order to entitle him to recover, to prove the allegations of his complaint. He alleged that the prosecution was malicious and without probable cause. The primary question was the want of probable cause for the prosecution complained of, and this must have been established by the plaintiff before he could claim the right to have the case go to the jury. It was therefore essential for plaintiff to prove that his arrest and prosecution were not under such circumstances as would justify a suspicion in a reasonable man that the charge was true. Let us examine the facts and determine whether or not they warranted such suspicion. The section of the Penal Code hereinbefore cited makes it a misdemeanor for anyone to maliciously tear down, remove, or injure any line of telegraph. The plaintiff deliberately, with the advice of counsel, for the purpose of testing the law, with the expectation of being arrested, and during the busy hours of the day, cut about a dozen wires of defendant's telegraph line. The circumstances were such that appellant and his attorney (and we suppose they were reasonable men) expected an arrest to follow. The wires were cut in the presence of an employee of defendant. An act is in contemplation of law done maliciously where it is wrongful and is done intentionally. (Pen. Code, sec.
The rule has often been stated by this court that the plaintiff must recover, if at all, upon the cause of action set out in his complaint, and not upon some other which may be developed by the proofs. (Mondran v. Goux,
And in the case of Nebenzahl v. Townsend, 10 Daly, 235, the court used this language: "The complaint was for false imprisonment and malicious prosecution, which was uniting two causes of action that were inconsistent with each other, for, if the arrest was without lawful authority, it was not a case of malicious prosecution (Bourden v. Alloway, 11 Mod. 180); and if under lawful process there was no false imprisonment, the imprisonment being by lawful authority. Each cause of action is distinct from the other. Thus, formerly for false imprisonment the remedy was trespass, and for malicious prosecution it was case. (Elsee v. Smith, supra.) Both cannot exist upon the same state of facts, or, to put it more clearly, if the one lies upon the facts the other does not." *322
In this case plaintiff did not attempt in his complaint to state a cause of action for false imprisonment, and we do not think under his pleading that he can make the claim for the first time in this court. We have carefully examined the cases cited by appellant's counsel and find nothing in them in conflict with what has been said. In Ah Fong v. Sternes,
The arrest was made by Corcoran, an employee of defendant, in whose presence the offense was committed. A private person may arrest another for a public offense committed or attempted in his presence. (Pen. Code, sec. 837.) If the evidence were sufficient to show a false imprisonment we are again met by the objection that the complaint does not allege any restraint of any kind by defendant, but alleges that the defendant procured a police officer to arrest plaintiff. There is no statement as to whether the arrest was with or without a warrant, and the presumption of law is that a public officer performed his duty, and in this case the presumption would be that the officer either had a warrant or that the "criminal offense" was committed in the presence of the officer. The allegation of the complaint is "that he was charged with a criminal offense," and in such case plaintiff cannot now claim "that he was not charged with any criminal offense." Being charged with a criminal offense and arrested by a police officer, and nothing being averred to the contrary, it is presumed the officer had the proper warrant.
We advise that the judgment and order be affirmed.
*323Haynes, C., and Gray, C., concurred.
