*1 Dist., 3460. Second Div. One. Jan. No. 1942.] [Crim.
THE PEOPLE, Respondent, BROPHY, v. RUSSELL L.
Appellant. *4 Appellant. for H. Carr
Charles Olney and General, Warren Warren, and Earl Respondent. General, for Deputies Wenig, E. Herbert WHITE, grand jury J. In an indictment returned counts County, was accused two Angeles defendant of Los guilty, a trial Following pleas not perjury. crime of counts. of defendant both jury resulted in the conviction denying from the order judgment conviction and From such appeal prosecuted. motion a new trial this
his background prosecution was upon which this The factual defendant, Leonard J. Nevans thus summarized: based individuals, doing were Brophy, L. Russell business city Angeles firm name under fictitious of Los Angeles Company. style Publishing of Los Journalist 6, 1939, firm into On defendant’s entered or about November a Telephone Company, a contract with Southern California corporation, telephone company, referred to as hereinafter agreement the telephone company of which under the terms Brophy
agreed to furnish did furnish to Nevans and place of a telephone at their business connection and service, consisting tables, ten 51 order No. one hundred Brophy trunk lines four business trunk lines. Nevans and paid all installation costs as charges well as all service rendered
company. 18, 1939, Warren, December Earl On the Honorable his capacity Attorney General California, of the State of addressed letter telephone company reading as follows: Powley,
“Mr. N. R. President Telephone Telegraph Company “Pacific Montgomery “140 New Street Francisco, California
“San
“Dear Sir: 30, 1939, a letter
“On November you was addressed to your I called attention to problem law enforcement *5 California, community which practically every affects present peace with which at the struggling officers are time. particular problem This letter was directed to the furnishing book-making of information establishments through telephonic equipment the use of and telegraphic Brophy California, Kreling Normóle and for Southern California, whereby and Cohen for Northern bookmakers throughout illegal carry state could on their activities.
“At I requested your that cooperation time and the immediate
discontinuance of to these individuals service grounds encouraged abetted, on aided, that it perpetration acts, wit, 337a of unlawful violation of section pointed you Penal Code. I also out to section clearly the Penal Code section authorized the immediate cancellation contracts that have been in force with these individuals and which would further authorize companies
communication decline to enter into contracts for similar service.
“Through your good Kreling officesthe and Cohen service was canceled and it Brophy was announced that Normile and however, had their I, abandoned service. now find that necessary again you for me to call cancel the service having Brophy Nevins, of Russell L. Leon J. both them previously
been connected with the Nationwide News Service, are bookmaking who still information to telephonic throughout through establishments the state use
equipment by your furnished company. These individuals operating Street, are from 650 Los Spring South evidence, Angeles, I California, my possession have in definite substantiated, which has prove been that will illegal being activities are on carried these individuals.
“It requested you is therefore immediately cancel the Brophy service Russell L. and Leon J. Nevins.
“Sincerely yours. “Earl Warren, “Attorney General.” Thereupon company addressed a communication reading Nevans, Leonard J. as follows: “Dear Sir: California, Warren, “Mr. Earl General of State 18,
has written letter dated December 1939, requesting immediately us to discontinue you service encourages aids, abets, and ground such service on the to-wit, by you; acts committed unlawful perpetration of the State the Penal Code 337a of of section violations request with In accordance California. give service you this notice General, we therefore discontinued hereto will the list attached enumerated in 1939. December close at the of business truly, very “Yours *6 Rush,
“F. N. Manager.” and General President “Vice to-wit, letter, December receipt on Following of this the company telephone injunction against the complaint a for 23, Nevans, J. such and Leonard defendant filed on of was behalf complaint This by the latter. signed complaint being and verified injunction in the alleged by plaintiffs application the installation of service telephone company for the to the action telephone company of such aforesaid; acceptance the as service; requested payment application; installation the of charges required by the deposits plaintiffs all and service complaint and contained the further telephone company; the the and plaintiffs complied with rules averment that had regulations telephone company, further forth and set of the protest against plaintiffs’ the threatened discontinuance unavailing; telephone protests were service and the fact that such contemplated that the action of the unwarranted, to their telephone remove was service discriminatory, irreparable and in and would result serious damage plaintiffs alleged to business, their which was daily publications giving to that of publishing printing races, prospective the news horse as the such names horses, scratches, their positions, jockeys, probable odds. telephone complaint injunction alleged further that the racing was used service to disseminate free information (cid:127) incoming telephones by
on calls made over such plaintiffs’ publication. readers of and subscribers day filing complaint injunction On of said temporary superior court issued its order to cause show restraining against order telephone company, discontinuing through which the latter was restrained from plaintiffs’ telephone pending hearing service order to show cause. Angeles, a January 1940, city of Los
On in in complaint intervention municipal corporation, filed injunction alleging grounds for intervention proceeding, litigation, in that city that had an interest city duty enforce police department of such had limits corporate within the laws of the State of California company, city; defendant such that the city by plaintiffs, used the service streets authority franchises; virtue of that General city intervene; mayor had asked the cause in violation aid and the use of would assist service penal particular and in California, statutes of section Code; plaintiffs’ 337a of the Penal business was that the unlawful; agencies law enforcement California action, parties were real that the effect interest discontinning judgment restraining from legality plaintiffs service would tend to establish the plaintiffs’ law prevent business and would enforcement agencies effectively preventing from 337a violations section city’s of the Penal complaint Code. The intervention further alleged by plaintiffs the business conducted unlawful, in that the latter published so-called scratch sheets concerning disclosed horse to be information races run throughout on various States; tracks United *7 published by primarily scratch were plaintiffs sheets as an gambling aid to operations, plaintiffs and the rendered bookmaking persons engaged aid assistance to of in violations
laws. January
On 4, 1940, of the General the of complaint State California filed a on behalf intervention the state. complaint alleged of This of California that the State
had litigation an interest in the matter in because the granting injunction of plaintiffs the to would them enable to aid and assist the violation gambling of laws and contribute
to public the nuisances; maintenance of that plaintiffs telephone would use the facilities horse-racing to distribute persons information to by who would the use of such information the violate gambling state, laws of this and that such persons would be enabled to bookmaking maintain establishments ; granting the injunction of the compel would telephone company to aid and bookmaking abet and contribute to the maintenance public nuisances. The telephone company filed an injunction answer in the gen-4 January 1940, 4, pleading consisted case on separate affirmative defense based and one eral denial en-j General tirely letter from the office upon the ' quoted. hereinbefore filed injunction action January 9, 1940, plaintiffs in On and to of the to the answer demurrers by city and interposed complaints in intervention strike filed motions to On the date there were state. same by city and the complaints proffered in intervention portions to answer of state and also strike granting company, well as motions vacate the orders superior The permission city to the state and to intervene. granting orders to vacate the court denied the motions portions also motion to leave intervene and strike company, and overruled demurrers the answer of the complaints and the answer to the in intervention hearing At on the telephone company. order dissolved, temporary restraining show cause the order was January 11, 1940, filed dismissal plaintiffs proceedings litigation were action, injunction thereupon terminated. predicated upon an affidavit
Count the indictment is by herein, Brophy, defendant L. and filed sworn to Bussell by January 2, injunction action, while 1940, him on portion pending superior That the same was before the court. alleged perjurious which is in count affidavit to be “Affiant of the indictment reads: further that the states plaintiffs arrangements any wagering with have no whatsoever persons engaged in
establishments or the business wagers whereby any accepting plaintiffs supply turf by telephoning any news as aforesaid whatsoever or persons.” establishments
Count is based sworn indictment affidavit injunction filed him in defendant and action on alleged January portions affidavit 1940. contrary
count indictment to the false Brophy oath Bussell L. read as taken said follows: they given “Affiant states that have not out to readers or distributors secret numbers use them *8 making place calls Affiant further plaintiffs’ of business. plaintiffs keep do not their states plaintiffs secret. Affiant states that not to his numbers have any knowledge given any ‘pool ever numbers to sellers’ it purpose ‘bookmakers.’ That is not the plaintiffs, they nor do installed use the said lines defendants, ‘rapid, up for the to the dissemination racing including minute horse horses, positions, the names of information
jockeys betting odds,’ knowingly to any ‘pool ‘bookmaker’ or seller.’ Affiant further states that at no they give any any time do person ever information to calling concerning any up betting to the odds or minute betting only given That odds. information readers opinions are probable odds, as to as formulated the so-called
handieappers press plaintiffs’ of the continental or the handicapper. given by
“Affiant further states that no information is plaintiffs to its concerning prior readers to the track odds running any concerning a race nor news whatsoever running of a race until race has been run and the results public
thereof have become news. “Nor financially was this affiant any ever interested time at any Annenberg Enterprises, so-called employ. or their regular “Affiant further plaintiffs that the states do not have Vandyke given subscribers who are numbers different than
8172.” Appellant judgment ground first assails the on the constituting assignments the matter of perjury in both counts was not material to issue in the suit for injunction. defining In allegation, material 463 of section allegation the Code of Civil Procedure “A provides: material in a pleading defense, is one essential to claim leaving which could not be pleading stricken from the without
it insufficient.” Section 1867 of the Code of Civil Procedure
provides allegation material none but a need be proved. is perjury
It axiomatic that predicated upon can be giving testimony only testimony false when such is material presented the issues alleged cause which the testimony given. false is Ordinarily it be said that the testimony is material properly when it could have judge influenced the trial being before whom the case was tried therein; the material issue or issues involved questioned materiality testimony cannot be giving perjury charged right is within the judge the trial in the criminal case to decide in the first instance, and for appeal. fact, this court to decide on In
25 question materiality evidence, or however of whenever arises, (People Curtis, one v. 36 it is for the court. Cal. (2d)
App. 306, (2d) 228]; People Macken, 319 Pac. v. [98 (2d) (2d) App. 31, 173]; People 32 Cal. Pac. v. [89 Bradbury, 215].) Cal. Pac. Section 118 of the [103 Code, appellant convicted, Penal under which reads: was testify, “Every who, having person an oath that he taken will declare, truly depose, certify any competent or before tribunal, officer, any person, the cases which such contrary oath administered, willfully law be oath, to such states as true material matter which he ’’ People false, guilty perjury. knows In the case of McDermott, v. 288, Cal. the court said: “The rule is established, well that the false oath must be material to the and, issue, therefore, prejudicial one, otherwise, to some however willful, perjury.” it cannot be equally It is well established
that the issue must be valid and not false or fictitious. In arriving materiality at conclusion toas portions of appellant’s injunction affidavit in the suit which assigned are perjury, validity of the issues as well, give we must consideration to the purpose nature and litigation in which such affidavits were filed. The record appellant’s complaint reveals that injunction against nothing was than an more action to enforce rights alleged his under a simple contract terms appellant agreed had pay for and agreed company had furnishing furnish and service in form of one hundred lines. express telephone company’s Defendant answer, in addition to denials, some on information belief, purported allege an affirmative defense based on the letter received company from Attorney General. In connection, company’s alleges answer on or about December 1939, Mr. N. R. Powley, president of defendant company, received a letter from Attorney General of the State of stating California Brophy that Russell L. and Leonard J. were
Nevans information to through bookmakers use telephonic equipment furnished defendant and that said letter request concluded with a that immediately telephone service rendered Brophy to said and Nevans
be cancelled. alleged affirmative defense further following receipt of said letter from the Attorney General, the defendant inquiry made said Gen- nature as to the deputies
eral and assistants and his Nevans referred Brophy and against evidence the said Attorney General; that “the to in said letter of the informed the defendant deputies General and his assistants and bookmaking present at had been that law enforcement officers had Angeles and County of Los establishments purpose was used for the information which observed that results wagers placing of and in connection with the over being said establishments received at horse races was therein; said law enforcement telephone equipment installed investigated the source the information officers had from received, and had found that emanated thus *10 California, Street, Angeles, 917, Spring 650 Los room South means of and transmitted from said source was bookmaking establishments.” communication to said allegation that with the The affirmative defense concludes hereinbefore forth company the then sent the letter set under full, wit, company letter the Nevans the from company’s 20, informing plaintiff of the 1939, of December date at close of business intention to discontinue service the 23, December 1939. important emphasize note and also to especially It is allegations fact the contains no of whatsoever answer and of section purporting up to set defense under virtue Code, to in Penal referred of the section was n Attorney letter General as noted. the the of the above But company urge' for failure of defendant such reason section, is from examination a defense obvious said clearly grounds affords for action which section no Attorney for the General as company nor statement in his letter of 18. refers contained December That section only messages to the refusal to send or deliver received for transmission, neglect and willful refusal or to do so is misdemeanor, message made unless such calculated to encourage instigate perpetration unlawful act. remotely applicable It presented is not even to the situation subject Attorney civil action nor to the matter General’s letter.
By pleadings reason outlined, of the and the law as above necessary it becomes to determine the telephone whether obey company bound to follow and order of the request, Attorney General, although literally in the form of a nevertheless, light substance form terms. And request polite thereof, was but an order company can interpreted there that was so interpreted, it would question, manifestly, no unless so be accordingly ignored. presumptuous been considered have obey the a matter of law to If the was bound as Attorney General, order of the then the affirmative defense not, invalidity valid; if above set forth would have been its question, In order it becomes is obvious. to determine that necessary powers to consider the and duties of the office of powers General. now Those duties are derived from section V article of the. Constitution California, adopted by people which section was Formerly state as an initiative measure on November 1934. subject, Constitution was silent this and such powers and only duties were set forth section Political powers Code. The and duties now set forth in the provision constitutional largely are as those same set forth in section 470 of the Political Code.
Section V article part Constitution reads in follows: “Subject powers duties of Governor vested in him Article Y Constitution, General shall be the chief law officer of the State and it shall duty
his see the laws of the State of are California uniformly adequately every enforced in county of the State. He shall have supervision every direct over district attorney and sheriff and over such other law enforcement officers *11 may designated
as be by law, in all pertaining matters to the respective duties of their offices, may require any and of said officers to him make to reports concerning such written
the investigation, detection, prosecution punishment and of crime in their him respective jurisdictions may as to seem advisable. Whenever opinion the Attorney General any law of the being State is adequately not enforced in any county, it duty shall be the Attorney of the General to prosecute any violations of law of which superior court shall jurisdiction, have and in such cases he shall have all powers attorney. a district required When by public interest, by or directed Governor, he shall assist any attorney district in discharge of his duties. . . . “He shall powers also have such perform and such duties as may are or prescribed be by law and which are not inconsistent
herewith. ...” of the above As be seen from an examination will Attorney Constitution, powers section of the General " supervision Manifestly, direct not without limitation. are other every attorney and over such district and sheriff over does designated by law” enforcement officers ás law direction of such officials. contemplate not absolute control and attorneys, and district Especially is this true as sheriffs are officials provision plainly indicates. These as public officers, distinguished employees, with as from mere agents, the public delegated them, as duties and entrusted governmental performance part of which is an exercise of for which particular political of the unit functions they, agents, (Coulter Pool, 187 as are active. v. Cal. attorneys Moreover, 120].) Pac. and district sheriffs [201 In connection it are created the Constitution. that officers nothing in of article be noted there is section should that general any depart Y from the intention to indicates counties, government by scheme of counties and cities state authority cities, provided by as well as local sections By interpreting XI. 7½, 7½a, 8%, of article light section V in of the above-mentioned article not provisions, “supervision” it is evident that does at once attorneys contemplate control, and that sheriffs and district responsibilities cannot avoid or of their evade the duties and respective judgment. permitting offices a substitution of opinion exception appears whenever “in the The sole to be that Attorney any being General law of state is not any duty adequately county, enforced shall be the Attorney shall prosecute,” General to which eases “he attorney.” powers all the But even have district this provision attorney affords no excuse for a district or a sheriff Attorney yield general control of his to the office duties
General.
If powers are thus General performance limited in the direct most the duties of office, authority may what official invade the affairs governmental agencies general utility public other particular? authority companies If there is at all, it must be first sentence of section virtue " noted reads as follows: above General shall be the chief law officer of the state and it shall be duty his laws of the State of see California are uniformly every adequately county enforced in *12 Manifestly, contemplates enforcement of laws state.” enforcement definitely according law, to for which is procedure nothing V in of article There is section established. depart from Attorney
which authorizes the General to connection, provision in no has been procedure; any, attention, nor to find called to our have we been able directly Attorney indirectly General empowers which any in the contained in issue orders nature those Attorney “the telephone company. expression, letter to the officer,” provided General chief shall be the law authority, Y, obviously section of article confers no such light interpreted such expression, at most follow, descriptive, limitations that can be more than no expression authority Attorney vests no more General than the Y, viz., supreme section 1 of article “The executive power magistrate, of this state shall be vested in chief styled governor,” governor. who shall be vests in the authority It is foregoing evident from the law no that the vests General to office order a being service, its to discontinue this true, was not bound abide order General, as was done the circumstances by the disclosed record herein.
If question there can be as to the above conclusion it is at once phase removed of another consideration situation, definitely authority which fixes the exclusive public companies over utility in the railroad commission. The people California, through adoption of section 23 of XII article Constitution, repose have seen fit such power supervise regulate public utilities, which include
telephone companies, solely and alone in the railroad commission, governmental agency is clothed with such power supervision legislature regulation as the section, confer it. As declared the cited constitutional right legislature
“the powers upon confer respecting railroad commission public hereby utilities is declared plenary to be and to by any provision be unlimited (Italics added.) this grant Constitution.” Pursuant to the Constitution, power legislature adopted commonly what is referred as the Public Act Utilities (Stats. 1915, p. 115 and thereto; Deering’s amendments Laws, 6386), Gen. section 30 of “Every Act which provides: public utility obey shall and comply with and every each re- *13 regulation direction, rule every decision, or
quirement order, of by in the matters commission prescribed the made or relating way any in any or matter specified, other herein utility, and do public a shall affecting its business as to or compliance necessary to proper or in order secure everything direction, decision, every order, of and such with observance ’’ officers,agents employees. regulation by all its and rule or of the powers In exercise of its under Constitution the promulgated the commission has Act, Public railroad the Utilities regulation right and 11, governing No. the rule Los power Telephone Company California at of Southern (Railroad to Commission Revised Angeles discontinue service. 7986-T.) canceling Sheet No. 34263-T, No. Revised Sheet Legal question reads in as follows: “D. part The in rule may Company refuse to establish service Requirements: for an or it and disconnect applicant discontinue subscriber, a whenever use or made service to the made premises service of service, or subscriber, prohibited law, ordinance, applicant or is under legal regulation, requirement.” or other inevitably foregoing follows from that the It so-called affirmative defense was invalid and raised no issues. therefore than a In both effect amounted to no more substance respondent recital of certain information that received, nothing had and the source thereof added defense. its value a is clear and decisive question
The law on the though of a contract even enforceability parties one of the knowledge an purpose thereto has intended other by contract, thereof, party, performance means of or policy law or in public violate some the state. The rule of. regard page thus A. L. R. 1364 at 1366: is stated according weight authority, is rule, great “The to the legal a the effect that contract itself is not rendered parties one of unenforceable the mere fact knowledge has an purpose thereto intended of the other subject-matter party thereto, means of contract or state; thereof, policy or public violate some law of some in 6 L. or, p. 696, as is stated R. C. ‘where is moral there no contract, turpitude making performing or in agreement fact that the mere an consideration performance incidentally of which are lawful assists one evading public policy, enforcement, no bar law is to its promisee, performed if contract has been that, agreement knew that promisor it is no defense the law to violate might promisee aid the performance or its promisor state, when defy policy of the public or to accomplish promisee to conspired nor with the neither combined a violation.’ result, shared in the benefits such nor ” quoted courts just The rule has been followed Abbott, Assoc. v. this state Raisin Growers California 767], Cal. Pac. where it was held that the vendor [117 goods may price though he purchase recover the even goods bought illegal knew purpose, that such were provided illegal purpose part made the contract. not Castiglione, App. (2d)
In the case Gallick v. Cal. 858], knowledge (2d) *14 716 it Pac. was held that [38 part sugar purchaser purpose of the seller of that illegally whiskey, thereof towas manufacture was no defense to action for purchase price illegal purpose where part was not doubt, a therefore, the contract. Without telephone injunction company in the ease could have enforced contract against appellant notwithstanding
its by letter written Attorney General, because no claimed illegal purpose part was contract itself. No citation authority necessary is for if the statement that the contract was by parties enforceable one of thereto equally it was by Furthermore, enforceable the other. in it the instant case not appellant law, is claimed that violating himself was he by but that was means of the supplying news persons violating information third who were the law. it If be the law a that contract rendered is unenforceable parties thereto, because one of the performance of his part contract, possible makes a party is third law, violate the rarity there a would be of enforceable contracts. A newspaper, instance, be would unable to enforce its contract with a because, news forsooth, service printing concerning news selling horse its races and newspapers people who used news contained therein for theory gambling purposes in Also, violation of law. if the compelled just correct, mentioned equity be courts would be long-established
to abandon their doctrine that such courts will not undertake to the criminal enforce law and will enjoin not merely commission of a threatened act because the act be a crime. (Weis Superior would Court, v. 30 Cal.
32 It where the App. 730, 464].) only is Pac. [159 public nuisance, a acts constitute threatened will equity is statutes, term is that a court of defined our injunctive processes jurisdiction interpose vested with its injury maintenance prevent from the which will result enjoined as thereof. not crimes be Threatened such, they within grow acts of which come must but out equity a public the definition of a before court nuisance will intervene. specific provides: 3369 of “Neither
Section the Civil Code law, granted penal preventive nor relief can to enforce a ’’ in the except a The rule laid down in the case of nuisance. complained acts quoted applies code section where the merely (People v. constitute a crime crimes. or series of 725].) App. Pac. Seccombe, Cal. [284 racing That bookmakers does the dissemination of news to per emphatically not declared se constitute nuisance was Superior Court, Kreling v. Supreme our Cal. Court noteworthy (2d) It (2d) significant Pac. [118 470]. charged against Kreling petitioner the acts charged just with the acts the case to were identical referred against appellant office General’s against company injunction and as proceeding state to the contained letter officer viz., of and noted, hereinbefore the dissemination functioning necessary supplies of services and bookmaking held establishments; but it was Supreme Court that such facts did not warrant the conclusion petitioner Kreling case constituted the acts of statute. It public nuisance within the terms our *15 alleged from which it can was there held that facts must be furnishing supplies of or information be determined that the such injurious health, activities are to indecent are which senses, or or an the free use offensive to the obstruction to (Civ. Code, People property. 3480; Lim, of v. secs. case, (2d) 472].) Kreling In (2d) Cal. Pac. the [118 allegations supra, the absence of such the court said: “In restraining adequate no for of the had basis the issuance its court which, enjoined petitioners in terms, order broad printing distributing racing from forms and scratch or racing gathering disseminating news sheets, or horse from using printing plants communication facilities and from their or added.) (Italics for purposes.’’ such racing furnishing Respondent’s claim that the of bookmaking by telephone constitutes news to establishments 337a of aiding abetting an a of section the in violation the Penal is without merit. It is not transmission Code concerning telephone use of of the results or a information probable of results of races that-constitutes a violation horse persons quoted section, Penal is the which Code but it use
may acceptance make of information of bets such in maintaining places or reception bets that constitutes
a law. violation Neither the appellant nor in capacity telephone his of a subscriber injunction managing, operating service was in accused suit of participating any gambling or place enterprise in or maintained acceptance wagers for the on races or horse other beasts; contests skill between men or the most charges against telephone can be said of the made company appellant telephone placed company is that in appellant hands means information to locally points, others and at distant information might be to persons provisions used such contravene the of section 337a of the Penal Code.
Public and common utilities carriers not are public private morals, they censors of or nor are authorized or required investigate regulate public private to or or conduct those Simply who seek service at their hands. because personswho information transmittedover received information, facilities enabled resultof if such were inclined, acts, they were to unlawful does so commit telephonecompany makethe ofthe criminal laws. not If violator case, company werethe such would likewise guilty transmitting be permitting its to used facilities newspapers country information prospective to to prizefights, races or thus information horse because published persons transmitted induced engage enabled to or betting unlawfully the resultsof s contests. uch on right company no more refuseits facilities has to persons persons a belief such will use because recipients such service to transmit information that enable violate law railroad than a thereof would carry have persons refuse its trainsbecausethose charge purpose persons thetrainbelieved transported going point a certain commit so offense, compa because ny officersof
34 upon were intent passengers were aware of the fact that the at their arrival visiting bookmaking upon establishment a purpose for the destination, maintained which establishment was Furthermore, unlawfully horse races. receiving bets on racing sporting receiving of or or Teletype (In re gambling not a crime. and is information is not 210, Atl. 533 Super. Machine Pa. [191 No. 33335/126 supporting ably cases 213].) reasoned For well considered and v. Western foregoing views, see Commonwealth Rep. Am. St. Co., Ky. 99 59, Union Tel. 112 355 S. W. [67 153 614], Shaw, 57 39 Minn. L. R. A. State v. [39 305].) N. W. assignments all the appellant upon which statements of to meet up 2 perjury in count based were set are filed the state allegations complaint in in the intervention- his racing by use of appellant disseminating news elsewhere, While, out pointed we telephone lines. have upon in his affidavits appellant the averments of contained immaterial, is charges perjury which were based were 2 they true offered also that in connection with count were allegations no response pleading forth in a which had set validity, states intervention complaint Neither ground for or facts sufficient a cause of action to constitute of intervention. 387 of of Civil Procedure Section the Code any person trial “who authorizes intervention before litigation, or in the success has interest in the matter in against of either the parties, or an interest both.” seeking The burden rests one to intervene show 523.) (20 proper that his is a Cal. Jur. case for intervention. presents admitted, he pleading When an intervener sufficient, true, if establish and files must state facts right claims, longer he no or interest which he or else has standing litigant objection a proper in court as if is made. (Moran Bonynge, 312].) 157 295 Pac. v. Cal. [107
And the interest which entitles a to intervene party be in litigation must an interest matter suit originally brought, present, direct and immediate gain
character will that the intervener either or lose judgment. (Jersey direct effect Milk Products Maid Brock, ; 13 (2d) (2d) Co. v. 661 Pac. La Cal. [91 599] Spring Talley & Salley, Mesa Lemon Grove Irr. Dist. v. 999]; Morgan, Pac. McNeil v.
Cal. Cal. [235 [108 An 69].) permitted Pac. intervener cannot to broaden by urging special proceeding scope function of such proper their forum elsewhere. claims or contentions which have *17 (Wright 915].) Jordan, Pac. Cal. v. [221 what comprehend is difficult or understand
It injunction proceeding city in the interest the or had state that either a direct or immediate character ofwas such gain by operation or the immediate intervener would lose against telephone judgment either for or the effect aof company. judgment restraining A the way discontinuing telephone the in no
from service would regarding bookmaking of affect the enforcement the criminal laws by pointed have city state or authorities. we either As out, appellant telephone nor could company neither be the classed or abettors in violation 337a as aiders of section of Code, right the Penal and the of a subscriber sole issue was the utility telephone compel public for to furnish service to a requirements service when its for such service by applicant were met the therefor. If offices the Attorney attorney city General or to aid desired defense, they its have offered could their court as aid to the amici curiae. sole claim the interveners was that discontinuance appellant’s service the duties of law materially be interest,
enforcement would lessened. Such however, say least, inconsequential, indirect and is as well entirely remote. Attorney To hold that General on intervene behalf state of the in a lawsuit and the city attorney city do likewise on simply behalf of the because they prevention performance believe that of a respective private litigants contract between burdens their prosecution
offices violators the law lessened, would be would absurd lead to results. Under such metropolitan holding a not difficult how, understand if Angeles brought newspaper Los against suit the Associated to restrain Press the latter from discontinuing its the former news service to under providing therefor, contract city attorney General or would have the right to intervene such a lawsuit insist that the Associated
Press should relieved of its obligations contractual newspaper local because readers utilized certain information contained in the Associated dispatches concerning Press accept horse races record bets such thereby races, violating horse section 337a of the Penal Code. notwithstanding all the fact that the office And this not, state, nor General could behalf successfully attorney, municipality, on behalf of the city against newspaper injunction local prosecute a suit simply disseminating racing such news restrain it from because a violation might effectuate information be used to criminal laws. therefore, plaintiffs' question, There can be no permitting injunction the orders action to motion in the vacate Angeles city Los State California being valid granted. true, no have This intervene should been hence intervention, pleadings in were raised issues thereby were false. As heretofore sought to be raised issues issue. predicated on a false noted, cannot be perjury court’s consideration properly There remained then only complaint and injunction plaintiffs’ action issue answer, the sole valid company’s defendant from simple, and pleadings. The raised these issue *18 allegations herein we it follows the what have stated by injunction, as well appellant complaint in for made his in counts of affidavits which both upon as the averments his wholly based, in indictment were perjury contained the were superfluous immaterial, and trial court unnecessary, litigation could have been injunction in the not therefore thereby in prbperly influenced the determination of injunction pleadings raised in the case. material issue against appellant charge perjury could made Before out necessary alleged it was false statements given judicial indictment had in a contained been proceeding valid issue and that same were material requirement In the indictment was deficient. made therein. this assigned None counts perjury matters either immateriality indictment, because of their injunction suit, pleadings the issues framed in the determining the properly could have influenced the court litigation, issue sole in such as to whether or not the company discontinuing should be restrained from the service law, appellant. contrary contracted for If were the investigate then the telephone company bound would be every for application use of its facilities to determine The purpose going for which such service was to be used. only possibly cause action could result from legally pleadings was, in the filed material facts stated opinion, a cause of action based on stated in this heretofore attorneys plaintiff The contract. fact that the action against deemed it advisable to denying hearsay alleged purpose affidavits for the file telephone company, no in the affirmative defense of the holding reason for the averments of such affidavits material.
They rightfully passing could not influence the court in relation, only the contractual and that was the valid issue presented. fact equity The action one in not does alter this situation. The bound court was to follow the law. sought equitable merely ancillary relief in the action was only relationship and served to hold the contractual between litigation parties quo legal aspects in statu until the
had been determined. foregoing In view of the by us, conclusion at arrived it unnecessary becomes to consider the other numerous issues of importance appeal. raised this
For the stated, judgments reasons herein and the order denying defendant’s motion for a are, new trial and each is, of them reversed, and the cause remanded with directions
to the court below to dismiss the indictment.
Doran, J., concurred. YORK, J., dissenting. agree P. I dissent. I cannot with foregoing opinion because of the fact that the false statements to,
sworn opinion, and referred to in said made were for the purpose influencing application court equitable made Appellant relief. makes numerous specifications of occurring error trial cause, but evidence, after an examination of record, including the entire I say am unable complained the errors *19 Const, miscarriage (Sec. resulted in a justice. 4%, VI, art. Cal.) A petition for a rehearing 20, was denied January 1942.
York, J.,P. rehearing. voted
Respondent’s petition hearing by Supreme for a Court February Shenk, denied 1942. J., hearing. voted