case. "If a witness should absolutely discredit his own testimony by swearing to opposite statements so that one or the other must be false, under our laws his testimony is not of necessity to be rejected. It is still evidence in the Under such circumstances the jury must receive and weigh it. They are bound to look upon it with suspicion and distrust, and may reject it. But, upon the other hand, they may as they determine accept as true one or the other of the contradictory asseverations. Thus, upon a review of the evidence by this tribunal, we may not examine with minuteness claims that witnesses are discredited, or that their testimony is unworthy of belief, or look to see whether some other conclusion might not have been warranted by the evidence. Blythe v. Ayers, 102 Cal. 254 [36 Pac. 522]. Ad ques tionem juris respondent judices, ad questionem facti respondent juratores;' and than this no maxim of the old law has been more carefully preserved in its integrity under our system." But we do not see that the stories of these witnesses are so utterly incompatible as counsel would have us find them. It is quite within the bounds of reason that both saw parts of the same circumstances and occurrences but that Oxman saw more than the other witness could observe from the place which he occupied. But we cannot tell what may have been the exact mental processes of the jurors. For all we know they may have rejected all of Oxman's testimony and may have acted entirely upon that of MacDonald; or the reverse may have been true; or they may have credited parts only of the testimony of each witness. All that this court may do is to determine whether or not there is sufficient evidence of any sort to support the verdict, and we cannot escape the conclusion that it is amply supported. While Oxman and MacDonald were the only witnesses who stated that they saw Mooney at Steuart and Market streets near the time of the murders, there was other testimony which, if the jurors believed it, established the relationship of Mooney and Billings. In this case, as in the case of People v. Billings, witnesses testified that they saw Billings with a suit case at 721 Market street less than four-fifths of a mile from the junction of Market and Steuart streets shortly before his arrival at the scene of the crime. Miss Sadie Edeau said that she saw Billings on the roof of the building at 721 Market street. He had a suit case in his hand and was leaning over the edge of the building. Witness, as she said, was standing on the sidewalk, and after seeing Billings she moved to a place in front of the Kamm Building nearby, and while there saw Mooney and his wife coming from the direction of 721 Market street. She stated that the Mooneys rushed into the entrance to the Kamm Building, and he placed something for his wife to sit upon; that at that time Billings was talking as he stood near the edge of the sidewalk to police officer Moore, whom the witness did not then know; that then Billings walked over and met Mooney near the middle of the sidewalk; and that then Billings the ferry and in the direction of Steuart street. Then she saw Israel Weinberg get into an automobile which stood near the place where Billings and the police officer had been standing. He drove away towards the east. Herbert A. Wade, principal of a government school in Hawaii, testified that he was in the vicinity of 721 Market street on the afternoon of July 22, 1916; that while he was looking into a showcase containing an exhibit of a dental office, Warren K. Billings passed him, and went up the steps into the office; that Billings had a suit case; that afterwards witness saw a man and a woman there, but could not identify them as the Mooneys. Police Officer Earl R. Moore as a witness told the jury of seeing Billings in front of 721 Market street shortly before the parade. Moore was clearing the street of automobiles in preparation for the procession. One car was standing near the curb, and the officer sounded its horn in an effort to attract the attention of the owner. Finally Billings walked out to the sidewalk, and in response to an inquiry said that he did not own the automobile, but that the owner would be there "in a minute." At this juncture duty called the policeman away, and when he returned the car had disappeared. Mrs. Nellie Edeau substantially corroborated the testimony of her daughter, Miss Sadie Edeau, and said that after Mr. and Mrs. Mooney joined Billings she heard the latter say: "We have to make the ferry before two o'clock." He Peter Vidovich told of a visit to the office of a dentist at 721 Market street on the afternoon of July 22, 1916, and of there meeting Billings as the latter was going up the stairway. Billings, he said, had a suit case. described it as resembling a drummer's sample case. By the testimony of George H. Speed, who described himself as the "secretary of the I. W. W.," the prosecution sought to establish the fact of communication between Billings and Mooney on the 19th of July, three days before the commission of the murders. He testified, that, on that day, he carried a note from Billings to Mooney, who said he would meet the writer at the "Blast" office. The "Blast," as was developed on the of cross-examination Detective Sergeant Proll, was an anarchistic paper. [3] It will be seen from the review of testimony given above that both the manner of placing the deadly bomb and the defendant's guilty connection therewith find abundant support in the evidence. The defense introduced evidence tending to contradict the showing of the use of a bomb concealed in a suit case and also that of the presence of the defendant near the scene of the crime, but, as the jury resolved this conflict of testimony against the defendant, we may not disturb the verdict. No principle of law is Appellant's counsel, while conceding, as, appellant's counsel. These are based upon of course they must, that where conflicting the admission of certain evidence. A ball testimony is given upon any matter perti- bearing found in Steuart street by witness nent to the questions at issue in a trial, this court is powerless to set aside the verdict of a jury, nevertheless contend that the showing of Mooney's absence from the corner of Steuart and Market streets at the time when the suit case was left there is so complete as to amount to a demonstration, and that therefore this court should reverse the judgment and order from which defendant has appealed. In this behalf they call our attention to the testimony of a witness for the people, Capt. Matheson of the San Francisco police department, who, speaking of the time of the explosion, testified as follows: "It was at six minutes past two. I happened to look at the clock in the Ferry Building, and I looked at the clock in the saloon, which had stopped at the time of the explosion." Mr. and Mrs. Mooney both testified that they spent all of the time after the head of the procession came in view and until the parade had passed on the roof of the Eilers building at 975 Market street, except a few moments during which the defendant went to his wife's studio in the building to get a newspaper. There was testimony which, if believed by the jurors, would have corrobo rated this account. Certain pictures were in Ormston was properly admitted. It was found, as the witness testified, very soon after the tragedy in the immediate vicinity of the explosion, and it had blood on it and was warm. These circumstances would justify a conclusion that it had formed a part of the bomb. The fragment of a ball bearing found by witness Airola was also admissible. It was picked up about 15 minutes after the explosion, and the fractured part was bright as if the break were very recent. This would indicate that a great force had been applied to the metal very recently, and the jurors would be but following the simplest logic if they found it to have been one of the fragments of the bomb. [5-7] The firearms and cartridges found in the room occupied by Billings and the cartridges found in defendant's room should have been admitted, as they were. The cartridges found in Mooney's room were of the kind and caliber of those picked up afterwards at the scene of the explosion. They indicated possession by the defendant of the means for the perpetration of the crime. All of the other alleged errors have been discussed in People v. Billings, and we again adopt the ruling of the District Court of Appeal and the part of the opinion relating thereto as follows: "The fact that the cartridges found in the room of the defendant after the commission of the crime were of the same character and caliber of those found in the bodies of the victims of the explosion was admissible as tending in a measure to show that the defendant had the means at hand to commit the crime charged against him, in the manner and by the means which it was shown were employed to commit the crime. 1 Michie on Homicide, pp. 851, 855, 857, 859; 21 Cyc. 945. troduced in evidence. These were the work of a young man who photographed the people on the roof of the Eilers Building. Some of the photographs showed defendant at that place, which was more than 6,000 feet from the corner of Steuart, and Market streets and more than 7,000 feet if a journey were made between the two places by way of Mission street, which is parallel with Market street. These pictures also show a clock on a build- "While it is true that no ball bearings were ing near by, and, according to the time in- found in the bodies of the victims of the explodicated, Mrs. Mooney was on the roof at 2 sion, nevertheless the ball bearings admitted in evidence were found, immediately after the exminutes of 2 o'clock, and she and her hus-plosion, in the midst of other things which, band were there at 1 minute after 2 and at when considered in connection with all of the 4 minutes after 2. Assuming that the clocks circumstances shown in evidence concerning the involved in the testimony were correct, we parently constituted a part of the bomb, and character of the explosion and its effect, apcannot see that the alibi is, as counsel for were therefore admissible as tending in some defendant contend, scientifically established. degree to show what were the constituent eleAll of the testimony regarding the time when ments of the bomb. In this connection it may the suit case was placed on the sidewalk is to admit any evidence which may have a 'the tendency of modern decisions merely approximated the hour. The length tendency to illustrate or throw any light on the of time during which the suit case was seen by the witnesses who testified that they observed it was estimated by them, and we cannot say that within the estimates as given, if they were taken as substantially correct by the jury, the defendant could not have proceeded by automobile from the scene of the purposed explosion to the Eilers Building and to the roof before the operation of a time device to detonate the bomb. All of these matters pertaining to the alleged alibi were before the jury. It was for the jurors to say from the evidence whether or not any real alibi was established. be noted that transaction in controversy, or give any weight [8] The evidence at the trial was to the effect that the cartridges found in the room occupied by Billings were contained in a tin The bullets were of the caliber known [4]. Certain errors are asserted to exist by as "22 short" and "22 long," similar to those can. The found near the place of the murder. can was almost half filled with these cartridges, and the two kinds were mixed together. There was a piece of paper around the top of the can. The jurors were of course, entitled to consider the quantity and the manner of assembling these cartridges as indicating whether they might have been acquired for use in the manufacture of a bomb or for the small rifle which was also found in Billings' room. [9] There was testimony sufficient, if credited by the jury, to establish a conspiracy between Billings and Mooney to commit the crime. From the record before us it appears that the defendant was confronted by testimony from many sources which fully supports the verdict found by the jury. He was defended with great ability in the superior court, and he was similarly represented in this court. We cannot find that he was deprived of any right, statutory or constitutional, or that any material error of law was committed calling for a reversal of the judgment or an abrogation of the order denying his motion for a new trial. The judgment and order are affirmed. (36 Cal. App. 40) Safety Act of 1917 (Stats. 1917, p. 875) provides that: "Within thirty days after the application for a rehearing is denied, or, if the application is of the decision on the rehearing, any party afgranted, within thirty days after the rendition fected thereby may apply to the Supreme Court of this state, or to the District Court of Appeal of the appellate district in which such person resides, for a writ of certiorari or review, for the purpose of having the lawfulness of the original order, rule, regulation, decision or award, or the order, rule, regulation, decision or award on rehearing inquired into and determined." The petition was received at the office of the clerk of this court and was filed on Jan uary 24, 1918. The application for the writ comes too late, and the writ is therefore de nied. St. 1917, p. 221, § 3, providing that every person who carried in any municipal corporation any pistol, revolver, or other firearm concealed upon his person without license, shall be guilty of a misdemeanor, and guilty of a felony if previously convicted of any felony, or any crime made punishable by the act, is a reasonCOM-able police regulation. NEAL v. INDUSTRIAL ACCIDENT MISSION OF CALIFORNIA. (Civ. 1817.) (District Court of Appeal, Third District, California. Jan. 24, 1918.) MASTER AND SERVANT 417(3)-WORKMEN'S COMPENSATION ACT-CERTIORARI-TIME FOR FILING. Where order of Industrial Commission denying petition for rehearing was made and entered December 22d, an application for certiorari to appellate court to review such order, filed by the clerk January 24th following, came too late, and writ will be denied, in view of Workmen's Compensation Insurance and Safety Act (St. 1917, p. 875) § 67a, providing that within 30 days after the application for a rehearing is denied any party affected may apply to the Supreme Court or District Court of Appeal for writ of certiorari or review, for the purpose of having the lawfulness of the rehearing inquired into and determined. Application by E. E. Neal for a writ of certiorari against the Industrial Accident Commission of the State of California. De nied. E. E. Neal, in pro. per. PER CURIAM. The petitioner in the above-entitled case seeks a writ of certiorari to review the proceedings wherein on his application to the respondent above named for a rehearing, his petition was denied. It appears from the petition herein that the order denying the rehearing of which petitioner makes complaint was made and entered December 22, 1917. Section 67a of the Workmen's Compensation Insurance and 2. CONSTITUTIONAL LAW 208(1) CARRYING CONCEALED WEAPONS-CLASS LEGISLA TION. St. 1917, p. 221, § 3, is not objectionable as class legislation, since it operates uniformly on all persons in the same category; there being reasonable basis for the classification. 3. CONSTITUTIONAL LAW 203 — CARRYING CONCEALED WEAPONS "Ex POST FACTO" STATUTE. St. 1917, p. 221, § 3, is not objectionable, as ex post facto, on account of the provision prescribing a heavier penalty for one previously convicted. and Phrases, First and Second Series, Ex Post [Ed. Note.-For other definitions, see Words Facto.] 4. WEAPONS 2-CARRYING CONCEALED SUBJECT FOR STATE LEGISLATION. The subject of carrying weapons is not purely a municipal affair; the prevention and the punishment of crime being always a proper subject for state legislation. Appeal from Superior Court, Alameda County; F. B. Ogden, Judge. Charles Smith was convicted of a violation of St. 1917, p. 221, relating to and regulating the carrying, possession, sale, or other disposition of firearms capable of being concealed on the person, etc., and he appeals. Judgment affirmed. R. M. Royce, of Oakland, for appellant. U. S. Webb, Atty. Gen., and John H. Riordan, Deputy Atty. Gen., for the People. LENNON, P. J. The defendant was charged with the violation of section 3 of chapter 145 of the Statutes of 1917. The information also charged him with a prior con Cal.) viction of grand larceny. Upon his arraignment the defendant pleaded guilty of the crime charged, and admitted the prior conviction. The indeterminate sentence provided by law was thereupon imposed, directing that the defendant be taken and confined in the state prison at San Quentin for a period not to exceed five years. [1] This is an appeal from the judgment in which the only question raised is as to the constitutionality of the section of the statute under which defendant was charged and convicted. That section reads: "Every person who carries in any city, city and county, town or municipal corporation of this state any pistol, revolver, or other firearm concealed upon his person, without having a license to carry such firearm as hereinafter proIvided in section six of this act, shall be guilty of a misdemeanor, and if he has been convicted previously of any felony, or of any crime made punishable by this act, he is guilty of a felony." Stats. 1917, p. 221. The section in question is a reasonable police regulation. Ex parte Cheney, 90 Cal. 617, 27 Pac. 436; Ex parte Luening, 3 Cal. App. 76, 84 Pac. 445. [2] While the statute provides a heavier penalty for one who has been previously convicted of a felony than for one who has suffered no prior conviction, nevertheless it operates uniformly upon all persons in the same category, and there is a reasonable basis for the classification. Therefore it is not objectionable as class legislation. [3] Nor does the provision prescribing a heavier penalty for one previously convicted of a felony render the law ex post facto. "A law is not objectionable, as ex post facto, which, in providing for the punishment of future offenses, authorizes the offender's conduct in the past to be taken into the account, and the punishment to be graduated accordingly." Ex parte Gutierrez, 45 Cal. 429. [4] The objection that the subject of carrying weapons is purely a municipal affair is not well taken. The prevention and punishment of crime is always a proper subJect for state legislation. Judgment affirmed. We concur: KERRIGAN, J.; BEASLY, Judge pro tem. (36 Cal. App. 114) PEOPLE v. ELGAR. (Cr. 566.) (District Court of Appeal, Second District, California. Jan. 31, 1918.) EVIDENCE - 1. CRIMINAL LAW 371(9) In a prosecution for rape committed May 6th, there being evidence of two acts, committed then and May 14th, the instruction that it was not incumbent on the prosecution to prove the exact time and place of the offense, it being sufficient that the prosecution establish its commission beyond a reasonable doubt at any time within three years prior to the filing of information August 8th, was erroneous, though the court told the jury that if they believed that defendant on or about May 6th did willfully, unlawfully, and feloniously have and accomplish an act of sexual intercourse with and upon the person of the prosecuting witness, they should find him guilty as charged. Appeal from Superior Court, Orange County; Z. B. West, Judge. Jim Elgar was convicted of rape, and from the judgment, and an order denying his motion for new trial, he appeals. Reversed, and cause remanded. T. A. Wells, S. M. Johnstone and M. C. Atchison, all of Los Angeles, for appellant. U. S. Webb, Atty. Gen., Robert M. Clarke, Deputy Atty. Gen., and Robert B. Camarillo, of Los Angeles, for the People. WORKS, Judge pro tem. The appellant was convicted of the crime of rape, and was sentenced to not less than 50 years in the state prison. The appeal is from the judgment and from an order denying a motion for a new trial. [1, 2] There is evidence in the record which tends to show that the appellant committed two acts of rape upon the prosecuting witness, one about May 6th, the other about May 14th, both in 1917. The information charges that the act was committed on or about the 6th day of May, 1917, and the district attorney told the jury, near the commencement of the trial, that he selected the act of May 6th, or thereabouts, as the one upon which he would ask for a conviction. This statement was made in connection with a remark of the court showing the reason for the admission of evidence as to the act of May 14th. Evidence of that act was of course admissible to show the lascivious disposition of the appellant toward the prosecuting witness and the consequent probability of the commission of the act of May 6th (People v. Koller, 142 Cal. 621, 76 Pac. 500); but the court instructed the jury that: "It is not incumbent upon the prosecution to prove the exact time and place when the offense, for which the defendant is being tried, occurred; it is sufficient if the prosecution established the commission of said crime, beyond a reasonable doubt, at any time within three years prior to the filing of the information in this case, which information was filed in this court on the 8th day of August, 1917." Its sub This instruction was erroneous. ject-matter comes directly within the strictures passed upon a similar instruction in People v. Williams, 133 Cal. 165, 168, 65 Pac. 323, 324 (and see, also, People v. Harlan, 29 Cal. App. 600, 156 Pac. 980), although in that case there was evidence of many illicit acts: "A verdict of guilty could have been rendered under such an instruction, although no two jurors were convinced beyond a reasonable For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes doubt, or at all, of the truth of the charge, as to any one of these separate offenses. Even worse than that was possible. As to every specific offense which there was an attempt to prove, and which could be met by proof, the defendant may have established his defense, and yet upon the general evidence of continuous crime, which, in the nature of things, he could only meet by his personal denial, he may have been convicted. And how could he defend when he was not informed as to what particular offense, out of hundreds testified to by the prose cutrix, he was to be tried? * case, as well as in any other, the prosecution must charge a specific offense, and the conviction, if one is had, must depend upon the proof of that offense alone. Other incidents are important only as tending to prove the one specific offense for the alleged commission of which defendant is on trial." * In this Hocker & Austin, of Los Angeles, for petitioner. Christopher M. Bradley, of San Francisco, for respondents. WORKS, Judge pro tem. The respond. ent Industrial Accident Commission allowed compensation to W. J. Husong for an injury received while he was in the employ of petitioner, and petitioner now asks that the award be annulled. It is conceded that the employment was casual. It is also contended by petitioner that the injury did not occur in the usual course of his business. The commission found that petitioner "was in the business of leasing certain road-making machinery and outfit, and that it was neces It is true that in this case the court told sary and in the usual course of said business the jury, in another instruction: "If you believe * * that the said Jim Elgar, on or about the 6th day of May, 1917, * did willfully, unlawfully, and feloniously have and accomplish an act of sexual intercourse with and upon the person of one Clementina Elgar, * * you should find him guilty as charged in the information." That, however, does not materially help the situation. The mention of May 6th in the instruction just quoted did not eliminate the damage done by the other instruction, in which the jury was plainly, told, without mention of dates, however, that they might convict appellant of the commission of the crime charged to have been committed on May 6th if they believed from the evidence that he had committed one on either May 6th or May 14th. There are other errors shown by the record, but as they pertain to questions which are not likely to come before the court on a new trial, we do not deem it necessary specifically to mention them. to keep the said machinery and outfit in repair; that the work and employment of the applicant at the time of his injury was the repairing of such machinery, and was therefore in the usual course of the business of the employer." The finding that petitioner was engaged in the business of leasing road-making machinery and outfit is amply supported by the evidence, but the finding that the applicant was injured while making repairs on machinery used in that business finds no support whatever in it. In addition to the machinery used in the business, the petitioner had in his possession a certain clamshell dredge, which he had acquired from a contractor who had been using it in harbor work. It was in no sense road-making machinery or equipment. This dredge petitioner was about to lease to another, with an option to purchase the same, but some repairs were necessary upon it before it could go out. The applicant for compensation was The judgment and order are reversed, and employed to make these repairs, and was inthe cause remanded. We concur: CONREY, P. J.; JAMES, J. (36 Cal. App. 68) STANSBURY v. INDUSTRIAL ACC. COMMISSION OF CALIFORNIA et al. (Civ. 2446.) (District Court of Appeal, Second District, California. Jan. 26, 1918.) MASTER AND SERVANT 373 WORKMEN'S COMPENSATION-"COURSE OF EMPLOYMENT." An employé injured while repairing a clamshell dredge which his employer intended to sell was not injured in the course of his employer's business of leasing road-making machines. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course of Employment.] Original application by Charles Stansbury for a writ of review to annul an award to W. J. Husong under the Workmen's Compensation Act, made by the Industrial Accident Commission of the State of California. Award annulled. jured while prosecuting the labor. The work being performed by the applicant was no more nearly in the course of the employer's business of leasing road-making machinery than if it had been the work of shoeing a horse or repairing a mowing machine owned by the employer. The case is directly within the rule laid down in Maryland Casualty Co. v. Pillsbury, 172 Cal. 748, 158 Pac. 1031. The award is annulled. |