The defendant,. charged with obtaining money under false pretenses, was found guilty and judgment entered imposing a fine of one hundred dollars or, in default of its payment, ninety days in jail. Defendant promptly paid the fine, then perfected his appeal. Contending that by this satisfaction of the judgment the' questions presented by the appeal became moot, the People move its dismissal.
So far as we are aware, the precise question thus submitted to us has not been considered by any of the appellate courts of this state. The rule is well established in civil actions, however, that the satisfaction of a judgment, unlеss by way of compromise or with an agreement not to take or pursue an appeal, does not operаte to terminate the right to an appeal. (Warner Brothers Co. v. Freud (1901),
We are satisfied that a defendant convicted of a сriminal offense and faced with a term in jail unless he pays a fine does not by paying the fine waive his right to appeal. There is no basis in fact for the contention that he waives his appeal, for the thing done bears no inconsistent relation to the thing to be done, so there is not factually an election. Nor is the one step a relinquishment of the right to pursue thе other by virtue of any statute or written rule of court. Eather it is a practice adopted by the courts out of necessity, because: “The demands of actual, practical litigation are too pressing to permit the examination or discussion of academic questions, ’ ’ as was quoted in Foster v. Smith (1897),
Turning to the merits of the appeal, and selecting as we must the evidence most strongly supporting the judgment, we find that the defendant and Baris, the complaining witness, had entered into a contract whereby the defendant was to furnish labor and material to accomplish certain building repairs. While these repairs were going on the defendant arrived at work late one morning. An explanation was asked by Baris and in reply the defendant stated he had gone around to the lumber company to obtain a discount by a prompt payment of a lumber bill. The lumber bill whiсh defendant stated he paid, according to> the complaining witness, was one on the Baris job. The fact was, and the defеndant claims he made no statement to the contrary, the bill paid was on another job entirely, and the lumber on Baris building had not been paid for when, some ten days later, Baris paid the defendant one hundred dollars on account. Were we permitted to weigh the evidence we would have no hesitancy in saying that at best the complaining witness was mistaken in what he undеrstood the defendant to have said. Of course, we cannot weigh the evidence, and we speak of its impression uрon us solely because the situation illustrates the wisdom of the requirement of section 1110 of the Penal Code, that on. a triаl for obtaining money by a pretense consisting of an oral statement, “the defendant cannot be convicted . . . unless the pretense is proven by the testimony of two witnesses, or that of one witness and corroborating circumstances”. Baris wаs the only witness who testified that the defendant made the statement that the material bill he had paid was on the Baris job. It was not enough to produce a second wit
The judgment is reversed, with directions that a new trial be had in the Superior Court of Los Angeles County.
McLucas, P. J., and Shaw, J., concurred.