16. Introduction in evidence of brace to prove that defendant had means to bore certain holes which were found in floor of building, through which ceiling below was saturated with coal-oil, was proper, where it was proved that such brace was found in drawer belonging to defendant, and that no person other than witness could have placed such brace in drawer.-People v. Bishop, 134 Cal. 682, 684, 66 Pac. 976. 17. Where two candles were found premises attempted to be burned, which were partly burned, evidence of experiment to see how long a candle would take to burn that far is admissible, as tending to disprove an alibi.-People V. Levine, 85 Cal. 39, 43, 22 Pac. 969, 24 Id. 631. on 18. Same-Same-Condition of premises. -Where fire was seen to have originated in pile of rubbish, and witness testified that she was awakened by smell of burning rags, evidence that there was pile of rubbish in yard near building burned, is admissible.-People V. Fournier, 5 Cal. Unrep. 620, 47 Pac. 1014. 19. Where evidence showed that defendant, on day previous to fire, had removed some of property in the building burned, evidence on the part of defendant to show reason for such removal is admissible.People v. Fournier, 5 Cal. Unrep. 620, 47 Pac. 1014. 20. Where evidence was introduced to show that fence along which fire ran from pile of rubbish to defendant's building smelled of coal-oil at time of fire, evidence as to odor of coal-oil about fence at other times, was admissible. People V. Fournier, 5 Cal. Unrep. 620, 47 Pac. 1014. 21. Where evidence showed that fire originated in pile of rubbish, and ran from there along fence to defendant's building, evidence that there was fire in rubbish day before was admissible.-People V. Fournier, 5 Cal. Unrep. 620, 47 Pac. 1014. 22. Same-Same.—Contents of contract of insurance may be proved by oral evidence and written memoranda, where defendant's attorney declined to produce policy, which was in his possession.— People v. Vasalo, 120 Cal. 168, 170, 52 Pac. 305. and 23. That property was insured, amount of such insurance, may be proved by parol.-State v. Cohn, 9 Nev. 179, 188. See People v. Goldsworthy, 130 Cal. 600, 603, 62 Pac. 1074. 24. Same-Same-Declarations of confederate.-Where evidence had been introduced, showing confederation between defendant and his wife, declarations of wife, made to insurer, that she wanted money for insured property then and there, which statements were made day after fire, are admissible to prove intent.People v. Trim, 39 Cal. 75, 78. 25. Same-Same-Description of property. Evidence that building burned was occupied as summer hotel during previous summer was admissible in description of building. Commonwealth v. Wesley, 166 Mass. 248, 44 N. E. 228, 229. 26. Same-Same-Knowledge of insurance.-Evidence tending to establish that accused knew that burned premises were insured, and evidence tending to show that he procured or sought to procure payment of the value of destroyed insured property from insurer, are pertinent to establish intent to injure and defraud such insurer. People v. Trim, 39 Cal. 75, 77. 27. Knowledge that property insured on part of accused must be established by the prosecution.-State v. Greer, 243 Mo. 599, Ann. Cas. 1913C, 1163, 147 S. W. 968. 28. Same-Same-Motive. - Where several buildings were burned in same fire, and evidence was introduced to show that defendant's buildings were insured, as showing motive, evidence that others of buildings burned were also insured was admissible.-People V. Fournier, 5 Cal. Unrep. 620, 47 Pac. 1014. 29. Same-Same-Of ownership, admissible when. Evidence of conversations with defendant respecting insurance of building is admissible to show that defendant owned it, where there was evidence tending to show that building was personal property, so that title could pass without deed or writing.-Commonwealth v. Wesley, 166 Mass. 248, 44 N. E. 228, 229. 37. Where it was shown that building was property of defendant, that he burned it, and that at such time it was insured against loss by fire, jury was fully justified in finding as fact that defendant burned building with intent to defraud insurer.-People V. Vasalo, 120 Cal. 168, 170, 52 Pac. 305. 38. Same.- Proof that insurer is corporation de facto is sufficient, under indictment charging burning of building, with intent to defraud, which building was at time insured against loss by fire by duly incorporated company.-People v. Hughes, 29 Cal. 257, 259, followed also in People v. Schwartz, 32 Cal. 160, 166. 39. Indictment or information-Allegations in-As to generally.-In a prosecution for the crime defined in section 548 of the Penal Code, providing "that 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." it is not necessary to state in the indictment the name of the person to whom the property belonged, or who was the beneficiary of the insurance; as the question of ownership would arise 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.-People v. Barbera, 29 Cal. App. 604, 157 Pac. 532. 40. The information is not void for uncertainty because of the failure to state P. C.-41 facts constituting the intended fraud 'upon the insurance company, or the particular circumstances connecting the defendant with that element of the offense.-People v. Truax, 30 Cal. App. 571, 158 Pac. 510. 41. Same-Allegation as to corporation's incorporation.-Indictment charging burning of building, which was insured in insurance company then doing business, such company being legally established and doing business aforesaid, is defective, in failing to allege that said company is corporation or partnership, expression, "such company being legally established," not being equal to averment that company was corporation, nor is such allegation unnecessary because of fact that it is unnecessary was that company to prove order legally incorporated in to support averment.-People v. Schwartz, 32 Cal. 160, 164. See Commonwealth v. Goldstein, 114 Mass. 272. As to proof of de facto corporation insurer being sufficient, see par. 38, this note. 42. As to necessity to allege whether insurer is a corporation or individuals, see Staaden v. People, 82 Ill. 432, 434. 43. Same- Allegation as to guilty intent.-An indictment or information must allege guilty intent, and that building was insured against loss by fire, and that accused set it on fire with intent to injure insurer. Staaden v. People, 82 Ill. 432, 434, 25 Am. Rep. 333. 44. Same-Allegations as to insurance.— It is unnecessary to allege amount of insurance upon house, company in which it is insured, or other facts in relation to insurance. It is only necessary to allege that at time house was burned it was insured.-Baker v. State, 25 Tex. App. 1, 8 Am. St. Rep. 427, 8 S. W. 23, 24. See Commonwealth v. Goldstein, 144 Mass. 272, 276. 45. Indictment need not contain averment that accused held valid policy, or any policy, but simple averment that act was done with intent to defraud company is sufficient.-McDonald v. People, 47 Ill. 533, 47. Same- Sufficiency of.-Where the facts constituting the crime described in this section are set forth in the information, it is immaterial that the information also designate the offense as "arson."-People v. Morley, 8 Cal. App. 372, 373, 97 Pac. 84. 48. Instructions to jury-As to generally. -In such a prosecution an instruction defining malice as a necessary ingredient of arson is erroneous, since the crime charged is not arson, but it is such prejudicial error as will alone justify a reversal of the judg ment.-People v. Barbera, 29 Cal. App. 604, 157 Pac. 532. 49. In such a prosecution it is not error to admit in evidence certain photographs taken a few hours after the fire, showing the appearance of the building at the time te photographs were taken.-People Barbera, 29 Cal. App. 604, 157 Pac. 532. V. § 549. PRESENTING FALSE PROOFS IN SUPPORT OF A CLAIM UPON POLICY OF INSURANCE. Every person who presents or causes to be presented any false or fraudulent claim, or any proof in support of any such claim, upon any contract of insurance for the payment of any loss, or who prepares, makes, or subscribes any account, certificate of survey, affidavit, or proof of loss, or other book, paper, or writing, with intent to present or use the same, or to allow it to be presented or used in support of any such claim, is punishable by imprisonment in the state prison not exceeding three years, or by a fine not exceeding one thousand dollars, or by both. History: Enacted February 14, 1872. 1. Construction of section-As to headnote. The head-note "Presenting false proofs in support of a claim upon policy of insurance" is not a mere editor's note, but an integral part of the section.-Matter of Application of Wilson, 30 Cal. App. 567, 158 Pac. 1050. 2. Same Accident insurance not included. This section does not include the presentation of a false or fraudulent claim or proofs in support of such claim upon a contract of accident insurance; and information charging such states no criminal offense under this section, and one convicted thereunder may be discharged habeas corpus.-Matter of Application of Wilson, 30 Cal. App. 567, 158 Pac. 1050. on 3. Indictment or information Allega tion claim false and fraudulent.-An indictment alleging that total loss was not sum inserted in proofs presented, and that particular claim against company was not justly due, and that both claims were false and fraudulent, to knowledge of defendant, and were feloniously presented, is sufficient. -People v. Spiegel, 143 N. Y. 107, 9 N. Y. Cr. Rep. 399, 38 N. E. 284, affirming 75 Hun 161, 9 N. Y. Cr. Rep. 60, 26 N. Y. Supp. 1041. 4. Same Allegation presentation made to court of justice, not necessary. An indictment charging a violation of section 549 of the Penal Code, which makes it a crime to present a false claim of loss to a fire insurance company, is not demurrable because of failure to allege that the presentation of the claim was made to a regularly constituted court of justice.-People v. Panagoit, 25 Cal. App. 158, 143 Pac. 70. 5. The statute is not confined to claims arising in courts of justice, but includes the presentation to any person who might be cheated or defrauded thereby. The intent to defraud is the gist of the offense; and the design of the legislature was to provide a punishment for the presentation of false fire claims with the intent to defraud, irrespective of the person to whom such claim might be presented.-People v. Panagoit, 25 Cal. App. 158, 143 Pac. 70. 6. Same-Presentation of claim in county where indictment found, not necessary.— The validity of the indictment for such offense can not be questioned because the testimony taken before the grand jury fails to show that the presentation of the claim was made in the county wherein the indictment was found.-People v. Panagoit, 25 Cal. App. 158, 143 Pac. 70. 7. Evidence-Admissible to show incorporation.—In a prosecution for presenting a false claim of loss to a fire insurance company, testimony as to the general reputation of the company for doing an insurance business is sufficient to show that it is a corporation.-People v. Panagoit, 25 Cal. App. 158, 143 Pac. 70. § 552. "FALSE WEIGHT" AND "MEASURE" DEFINED. A false weight or measure is one which does not conform to the standard established by the laws of the United States of America. History: Enacted February 14, 1872, founded on Act April 4, 1861, 1. Commissioners' note says: "Our statute recognizes the superiority of the act of congress given in note to section 3209 of the Political Code, being approved July 28, 1866, and our statute, on which the sec tions of the code are based, was approved April 4, 1861, p. 86." As to weights and measures, see Kerr's Cyc. Pol. Code, 2d ed., §§ 3209-3223 and notes thereunder. § 553. USING FALSE WEIGHTS OR MEASURES. Every person who uses any weight or measure, knowing it to be false, by which use another is defrauded or otherwise injured, is guilty of a misdemeanor. History: Enacted February 14, 1872, founded on § 14 Act April 4, 1861, Stats. 1861, p. 86, and § 133 Criminal Practice Act 1850, Stats. 1850, p. 246. 1. As to what constitutes use of.-Under ordinance prescribing penalty for using incorrect scales, fact that scales became out of balance because wrong pans were put in them after cleaning does not constitute defense, purpose of ordinance being to prevent purchasers from getting underweight, and purchaser will be just as effectively cheated by light scales, whether resulting from imperfection in scales, or from some one tampering with them, or by some one mixing up pans.-City of New York V. Biffle, 91 N. Y. Supp. 737. 2. Evidence of falsity of weight by comparison with standard shown to be correct is competent.-State v. Frolick, 95 Iowa 424, 64 N. W. 264. 3. Evidence held sufficient to justify conviction for using false weight.-State v. Kellner, 22 Neb. 668, 35 N. W. 891. 4. Conviction for giving false weight can not be sustained, where evidence showed that coal was sold at 72 pounds a bushel instead of 80, as required by standard, but that purchaser knew difference in weight.-Blanchard v. State, 3 Ind. App. 395, 29 N. E. 783. As to regulation of weights and measures by city ordinance, see note and brief 13 L. R. A. 286. 5. What is false weighing-machine—A question of fact; thus it has been so held in relation to weighing-machine which was SO constructed that only articles placed exactly in center of platform were weighed correctly. Queen v. Baxendale, 44 J. P. 763. See Lane v. Kendall, 19 Cox Cr. Cas. 399. 6. Same Paper placed over scoop of weighing-machine to facilitate the weighing of tea, riee, etc., renders the weighing machine false; that is, renders the balance unjust, and renders the user liable to prosecution under the statute.-Love v. Rendall, 19 Cox. Cr. Cas. 399. 7. Same-Steelyards, with a ball affixed to the long arm, by means of which it can be adjusted, when thrown out of gear by atmospheric conditions or other causes, was held not to be an incorrect weighingmachine, within statute 5 and 6 Wm. IV., chapter 63, section 28, providing a penalty for weighing-machine found incorrect, it being only the use of the machine which was incorrect.-London, etc., R. Co. v. Richards, 2 Best & S. 326, 8 Jur. N. S. 539, 110 Eng. C. L. 326. § 554. STAMPING FALSE WEIGHT, MEASURE, OR TARE ON CASKS OR PACKAGES. Every person who knowingly marks or stamps false or short weight or measure, or false tare, on any cask or package, or knowingly sells, or offers for sale, any cask or package so marked, is guilty of a misdemeanor. History: Enacted February 14, 1872. § 555. SELLERS TO GIVE FULL WEIGHTS. In all sales of coal, hay, and other commodities, usually sold by the ton or fractional parts thereof, the seller must give the purchaser full weight, at the rate of two thousand pounds to the ton; and in all sales of articles which are sold in commerce by avoirdupois weight, the seller must give to the purchaser full weight, at the rate of sixteen ounces to the pound; and any person violating this section is guilty of a misdemeanor. History: Enacted February 15, 1876, Code Amdts. 1875-6, p. 112. § 556. SALE OR OFFER FOR SALE OF COAL UNDER FALSE NAME, MISDEMEANOR. No person shall wilfully or knowingly, with intent to defraud, sell or exchange, or offer or expose for sale or exchange, coal of a specific name or kind under any other name or description, or as the output of any mine other than the mine of which it is the product, and any person who shall violate any of the provisions of this section is guilty of a misdemeanor. History: Enactment approved June 8, 1915, Stats. and Amdts. 1915, p. 1290. In effect August 8, 1915. |