2. V. Construction of section-As to purpose. The purpose of this section is to protect both the mortgagee of personal property and subsequent purchasers, transferees, and encumbrancers.-People Wolfrom, 15 Cal. App. 734, 115 Pac. 1088. 3. Same-As to repeal.-The act of March 9, 1893, entitled "An act to amend section 537 of the Penal Code, and to add a new section thereto, to be known and designated as section 538," relating to the removal, sale, or subsequent encumbrance of mortgaged chattels, repealed the act of March 10, 1887, entitled "An act to add a new section to the Penal Code, to be known as section 537," relative to personal property mortgaged.-Ex parte Ruffin, 119 Cal. 487, 488, 51 Pac. 862. 4. Same-As to requirements on part of seller.-Section 538 of the Penal Code, defining the offense in question, requires that in making a sale of mortgaged chattels the mortgager must, at or before making the sale, inform the prior mortgagee in writing by giving the name and place of residence of the party to whom the sale is to be made, and that he must also inform the purchaser of the existence of the prior mortgage. Therefore, the defendant had a right to sell his cattle without permission of the mortgagee, by giving the information as required by law, and no question of agency was applicable to the transaction. -People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 5. Same-Mortgage "for accommodation," within section.-The claim of the defendant that the mortgage was given "for accommodation" implies that the note and mortgage were made to be pledged or otherwise used in some business transaction, and the maker of such a mortgage is no more excused from observing the provisions of the Penal Code than is the maker of any other chattel mortgage.-People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 6. Defense - Subsequent payment of mortgage, not a.—Payment of the mortgage after the commission of the offense did not constitute any defense to the prosecution. -People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 7. Intent-Not an element in offense.That part of section 538 of the Penal Code which refers to the selling of mortgaged personal property does not make the intent with which the act was done an indispensable element of the offense; and "when the intent is not made an affirmative element of a crime, the law imputes that the act knowingly done was with criminal intent, and it need not be alleged nor proved."— People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 8. Indictment or information-Charging sale-"Intent to defraud," not necessary when. Where the act complained of relates to the sale, etc., of mortgaged property, and not its removal under the first part of the section, the allegation is sufficient even though the words "intent to defraud" are omitted therefrom.-People v. Wolfrom, 15 Cal. App. 735, 115 Pac. 1088. 9. Same-Same—“Intent to defraud”— Apply to what.-The words "intent to defraud" held to apply to the removal of mortgaged property, as covered by the first part of the section and not its sale, etc., as covered by the second part thereof.People v. Wolfrom, 15 Cal. App. 735, 115 Pac. 1088. 10. Same Same Same Surplusage, when.-If the information, charging the owner of mortgaged cattle with selling them without informing the buyer of the mortgage or notifying the mortgagee of the intended sale, alleges that the defendant's acts and omissions were "with intent to defraud” the mortgagee, this clause may be regarded as superfluous, and proof of such acts and omissions on the part of the defendant carry with it a necessary implication of intent to defraud both the mortgagee and the purchasers of the mortgaged property. -People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 11. Same-Sufficiency of. Where the information charges in so many words that the defendant violated the provisions of this section so far as the buyer is concerned, although the language is not clear as to the mortgagee, it must be held sufficient, there being no demurrer.-People v. Wolfrom, 15 Cal. App. 735, 115 Pac. 1088. 12. In this prosecution for the sale of twenty-five dairy cows without informing the buyer of the existence of a mortgage on the cattle or the mortgagee of the intention to make the sale, the information was sufficient and set forth the particular facts of the offense charged.-People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 13. Evidence Claim mortgage "for accommodation" — Cross-examination of accused. If the defendant claimed that the mortgage was made for accommodation and did not represent a real debt, the prosecution was entitled to inquire of the defendant concerning other transactions preceding the execution of the mortgage and apparently inconsistent with his testimony about an alleged debt owing from the mortgagee to him at the time of the execution of the mortgage.-People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 14. Same-Mortgagee may identify animals sold. In such prosecution the mortgagee may be permitted to give testimony as to the identification of the cattle sold by other marks in addition to the brand on them. People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 15. Same-Objections to properly BUStained. An objection to a question propounded to the mortgagee as to what cattle he was preparing to sell at a time prior to the sale by the defendant was properly sustained.-People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 16. Objection was properly sustained to a question propounded to the mortgagee as to a statement made by him that he had not lost anything on the defendant and would not lose anything on him.--People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 17. Same-of payment of mortgage subsequently, inadmissible.-Evidence in such prosecution tending to show that the mortgage was paid by transactions occurring subsequently to the sale, and that ultimately the mortgagee did not lose anything by the defendant's acts in diminishing the security, was properly excluded.People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 18. Instructions-Refusal to give requested proper.-The refusal to give an instruction, for the most part following the language of section 1847 of the Penal Code, as to the credibility of witnesses, was not prejudicial, if instructions are given which substantially cover the same ground.-People v. Iden, 24 Cal. App. 627, 142 Pac. 117. 19. The court did not err in refusing to instruct the jury that in order to convict the defendant they must be morally certain not only that the defendant sold to the persons mentioned in the information, and at the time and place therein stated, one or more of the cows described therein, but they must be satisfied to a moral certainty and beyond a reasonable doubt that the defendant sold and delivered such cow or cows "with the intent in him to defraud" the mortgagee.-People v. Iden, 24 Cal. App. 627, 142 Pac. 117. § 538a. MISREPRESENTATION OF NEWSPAPER CIRCULATION Every proprietor or publisher of any newspaper or periodical who shall wil fully and knowingly misrepresent the circulation of such newspaper or periodical, for the purpose of securing advertising or other patronage, shall be deemed guilty of a misdemeanor. History: Enacted March 11, 1893, and numbered § 538, Stats. and Amdts. 1893, p. 132; amended March 21, 1905, and renumbered § 538a, Stats. and Amdts. 1905, p. 686. § 538b. WEARING BADGE OF SECRET SOCIETY UNLESS ENTITLED TO. Any person who wilfully wears the badge, lapel button, rosette, or other recognized and established insignia of any secret society, order, or organization, or uses the same to obtain aid or assistance within this state, unless entitled to wear or use the same, under the constitution, by-laws, or rules and regulations, or other laws or enactments of such order or society, is guilty of a misdemeanor. History: Enacted by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 467, founded on § 1 Act March 10, 1887, Stats. and Amdts. 1881, p. 82, see Henning's General Laws (1st ed.), p. 502; re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 686. 1. Grand Army badges-Unlawfully wearing, a misdemeanor.-By act March 10, 1887 (Stats. 1887, p. 82, Henning's General Laws, 3d Ed., p. 894), it was made unlawful, and punishable by fine or imprisonment, or both, to wear the badge of the Grand Army of the Republic without being entitled to do So. This act was amended March 1, 1907, so as to read as follows: Section 1. Any person who shall wilfully wear or use the badge or button of the Grand Army of the Republic, or of the United Spanish War Veterans, to obtain aid or assistance thereby within this state, unless he shall be entitled to wear or use the same under the rules and regulations of the Department of California, Grand Army of the Republic, or United Spanish War Veterans, respectively, shall be guilty of a misdemeanor, and, upon conviction, shall be pun ished by imprisonment for a term not to exceed thirty days in the county jail, or a fine not to exceed twenty dollars, or by both such fine and imprisonment.-Stats. and Amdts. 1907, p. 81. CHAPTER IX. FRAUDULENTLY FITTING OUT AND DESTROYING VESSELS. $539. Captain or other officer wilfully destroying vessel, etc. 540. Other persons wilfully destroying vessel, etc. § 541. Making false manifest, etc. §§ 542, 543. No sections of these numbers.] § 5434. Prohibiting unauthorized wearing of society badges. [Repealed.] § 539. CAPTAIN OR OTHER OFFICER WILFULLY DESTROYING VESSEL, ETC. Every captain or other officer or person in command or charge of any vessel, who, within this state, wilfully wrecks, sinks, or otherwise injures or destroys such vessel, or any cargo in such vessel, or wilfully permits the same to be wrecked, sunk, or otherwise injured or destroyed, with intent to prejudice or defraud any other person, is punishable by imprisonment in the state prison not less than three years. History: Enacted February 14, 1872. § 540. OTHER PERSONS WILFULLY DESTROYING VESSEL, ETC. Every person, other than such as are embraced within the last section, who is guilty of any act therein specified, is punishable by imprisonment in the state prison for a term not exceeding ten years. History: Enacted February 14, 1872. § 541. MAKING FALSE MANIFEST, ETC. Every person guilty of preparing, making, or subscribing any false or fraudulent manifest, invoice, bill of lading, ship's register, or protest, with intent to defraud another, is punishable by imprisonment in the state prison not exceeding three years. History: Enacted February 14, 1872. §§ 542, 543. [No sections of these numbers.] § 5432. PROHIBITING UNAUTHORIZED WEARING OF SOCIETY BADGES. [Repealed.] History: Became a law, under constitutional provision, without the governor's approval, March 11, 1899; repealed by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 468, act held unconstitutional, see history, § 5, ante; re-repealed March 21, 1905, Stats. and Amdts. 1905, p. 685, the provision having been incorporated by that act into § 538b. CHAPTER X. FRAUDULENTLY KEEPING POSSESSION OF WRECKED PROPERTY. § 544. Detaining wrecked property after sal- § 545. Unlawfully taking or having possesvage paid. sion of wrecked property. § 544. DETAINING WRECKED PROPERTY AFTER SALVAGE PAID. Every person who keeps any wrecked property, or the proceeds thereof, after the salvage and expenses chargeable thereon have been agreed to or adjusted, and the amount thereof has been paid to him, is punishable by fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or both. History: Enacted February 14, 1872, founded on § 24 Act April 10, 1850, Stats. 1850, p. 176. § 545. UNLAWFULLY TAKING OR HAVING POSSESSION OF WRECKED PROPERTY. Every person who takes away any goods from any stranded vessel, or any goods cast by the sea upon the land, or found in any bay or creek, or knowingly has in his possession any goods so taken or found, and does not deliver the same to the sheriff of the county where they were found, or notify him of his readiness to do so within thirty days after the same have been taken by him, or have come into his possession, is guilty of a misdemeanor. History: Enacted February 14, 1872, founded on § 25 Act April 10, 1850, Stats. 1850, p. 176. As to nature of offense under Federal statutes, see United States v. Stone, 8 Fed. 232. CHAPTER XI. FRAUDULENT DESTRUCTION OF PROPERTY INSURED. 548. Burning or destroying property in- $549. Presenting false proofs in support of a claim upon policy of insurance. sured. § 548. BURNING OR DESTROYING PROPERTY INSURED. Every person who wilfully burns, or in any other manner injures or destroys any property which is at the time insured against loss or damage by fire or by any other casualty, with intent to defraud or prejudice the insurer, whether the same be the property of or in possession of such person or of any other, is punishable by imprisonment in the state prison not less than one nor more than ten years. History: Enacted February 14, 1872, founded on § 7 Act April 19, 1856, Stats. 1856, p. 132. BURNING, ETC., PROPERTY TO DE FRAUD INSURER. 1. As to construction of section-As to head-note. 2. Same-To render criminal act of owner in burning property. 3. Aiding and assisting owner in burning, liability. 4-7. Elements of offense-Insurance must exist. 8. Same-Intent to defraud insurer of building burned. 9. Same-Same-Essence of the crime. 11. Same-Ownership immaterial. 13, 14. Same-Validity or invalidity of insur 24. Same Same-Declaration of confederate. 25. Same Same-Description of property. 26, 27. Same-Same-Knowledge of insurance. 28. Same Same-Motive. 29. Same Same Of ownership, admissible when. 30. Same-Setting fire by owner-Need not be shown. 31-34. Same-Value of property. 35. Same-Variance. 36, 37. Evidence held sufficient. 38. Same-Proof that insurer is corporation de facto. 39, 40. Indictment or information tions in-As to generally. Allega The 2. Same.-To render criminal, act of owner in burning property, though such property does not constitute building. purpose of statute is to prevent fraudulent destruction of property insured. It does not deal with arson, and does not undertake to change character of that crime. And hence refusal to charge that if intent was to defraud an insurance company, defendant could not be convicted under information charging arson, is proper.-People v. Fong Hong, 120 Cal. 685, 687, 53 Pac. 265. 3. Aiding and assisting owner in burning insured property with intent to defraud the insurer may be convicted under the above statutory provision.-See Searles v. State, 6 Ohio C. C. Rep. 331, 3 Ohio Cr. Dec. 478. As to co-operation in the crime of arson, and responsibility therefor, see, ante, section 447, note paragraphs 8-10. 4. Elements of offense.—Insurance must exist, in order to complete the offense, but proof that policy of insurance was valid, and that defendant could maintain an action thereon for loss or damage, is not necessary. People v. Hughes, 29 Cal. 257, 260. 5. The essential facts are that the property was insured against such loss and that the defendant burned or otherwise injured or destroyed the property with intent to defraud or prejudice the insurer. A statement of the fact that the property burned was property of any particular person is not essential to a complete description of the offense, for the defendant might be guilty even if the property belonged to himself. The question of ownership arises only as a matter of evidence for the purpose of showing that the person in whose favor the policy had been issued had an insurable interest in the property described in the policy.-People v. Barbera, 29 Cal. App. 604, 157 Pac. 532. 6. The crine may be complete, though policy held by accused may be invalid if he believes it legal and binding.-McDonald v. People, 47 Ill. 533, 537. 7. Contra: Meister v. People, 31 Mich. 99, 107. 8. Same.-Intent to defraud insurer of building burned is quite as essential to constitute offense under statute as intent to destroy insured building by fire.-People v. Trim, 39 Cal. 75, 77. 9. Same-Same-Essence of the crime.— In a prosecution charging the wilful burning of property with intent to defraud the insurer thereof, the intent to defraud is of the essence of the crime charged, and before such an intent can exist there must be a knowledge that the property is insured.-People v. Rose, 38 Cal. App. 493, 176 Pac. 694. 10. Same-Knowledge of insurance.Essential element of the crime denounced in the above section.-People v. Rose, 39 694. Cal. App. 493, 176 Pac. See People V. Schwartz, 32 Cal. 160, 165; State V. Greer, 243 Mo. 599, Ann. Cas. 1913C, 1163, 147 S. W. 968; Moore v. State, 66 Tex. Cr. Rep. 169, 146 S. W. 183. As to setting fire to property with intent to defraud insurance company, see note Ann. Cas. 1913C, 1164. 11. Same-Ownership immaterial.-One who burns insured property with the intent to destroy is guilty whether the property or possession be his or that of another. -People v. Morley, 8 Cal. App. 372, 376, 97 Pac. 84. 12. Same-Several insurers.-Crime created by statute is wilful burning of insured property, with intent to injure insurer. It is immaterial whether intent be to injure one or several insurers; if act be single, it can not be divided so as to make several offenses, merely because its effect is to injure two or more persons. Commonwealth v. Goldstein, 114 Mass. 272, 278. 13. Same.-Validity or invalidity of the insurance policy is not a material issue in a prosecution under this section. The gist of the offense is the intent to defraud the insurer.-People v. Morley, 8 Cal. App. 372, 375, 97 Pac. 84. |