The herald., 1893-07-22
WHY GIBBS GOT A NEW TRIAL.
Soothing Reasons After a Years
Waiting.
Every Point Made by the Defense
Sustained.
A Mythical Witness Decided to Be Very
Much Alive = Some Important
Legal Points Settled by
the Supreme Court.

A few days ago the supreme court
granted f. A. Gibbs new trial. Tele-
graphic advices OF this opinion were re.
ceived, but the opinion itself has not
yet arrived in this city.
A copy of the decision was obtained
yesterday, and it covers some points of
considerable Importance, the answers to
the defense being completer than in any
opinion that has been handed down for
long time, sustaining them in every
point.
The opinion, after reciting that the
defendant was convicted OF obtaining
money by false pretenses and sentenced
to seven years in the penitentiary at
Folsom, says:
"On April 13, 1891, one ]. H. Anderson
sold and delivered to the defendant GER
tain horses, buggies, harness, etc., COM
prising the outfit of his livery stable in
Los Angeles, and took in payment
therefor an assignment of note secured
by mortgage on certain real estate for
the sum of $1333. SO, executed and de-
livered by Donald Mckay to the defen-
dant, payable two years from date
thereof, and it is upon that transaction
this prosecution is based. The follow
ing are the representations charged to
have been falsely and fraudulently
made: l, That the note and mortgage
referred to had been executed and de-
livered to the defendant by said
Mckay; 2. That the defendant
was acquainted with said Dom
aid Mckay and the latter
, was then residing on the land described
In the mortgage; 8. That said Mckay
was then a man of large means and
abundantly able to pay said note 4.
That the defendant was familiar with
the land described in the mortgage and
had sold the same to said Mckay and
the title thereto was good and perfect in
the latter; and, 5. That said land and
mortgage were good and sufficient secu-
rity for the money mentioned in the
note.
A great deal Of evidence was intro
duced by the prosecution at the trial to
show that Donald Mckay was fcti-
tious PERSON, but the effect of the evil
dence was entirely overcome by the
appearance of Mckay himself at the
trial and by the testimony OF many wit
nesses who had known him for several
years. The representation that Mckay
was a man of large means and abun-
dainty able to pay the note stands un-
challenged in the evidence. There is
not word of testimony to show
whether he was or was not man of
means or able to pay the note.
AS to the fourth representation, it is
clear that Anderson did not rely upon
ho dofo lop tot ta 10 i
to the land. The documents which were
handed to him by the defendant prior to
the contamination of the sale, including
a certificate Of title, were taken by him
to an attorney for advice upon that sub
ject, and the agreement between the
parties showed the source of defendants
title. So that, conceding that charge
of obtaining property under false pre-
lenses may be predicated on repre-
eentation as to ones title to real
estate, 1t is clear that no reliance
was placed upon the representation of
the defendant in that regard. The fifth
representation was matter of mere
opinion, and, If proved, no conviction
could be had upon it, butit ia sufficientto to
say that it stands upon the same ground
as the representation first above referred
to. Only one of the representations ell
legged was proved thas is the represen-
tation that mckay was living on the
land" If this representation be regard
ed as material it is sufficient to say that
it was not proved as required by law in
order to make out the offense. Section
1I10 OF the penal code provides that "de-
fendant cannot be convicted if the false
pretense was expressed in language un.
accompanied by false token or writing,
unless the pretense or some note or
memorandum thereof be in writing,
subscribed by or in the handwriting of
the defendant, or unless the pretense be
proved by the testimony OF two wit
nesses or that of one witness and cor
roborating circumstances"
Applying this test to the case at bar,
none of the pretenses alleged were sub
stantiated. To make out the case
charged it was necessary for the prose-
cution either to show that there was no
such person as Donald Mckay, and that
the note and mortgage were false tokens.
or to corroborate the testimony of the
prosecuting witness by some other tes-
timony or by some noue or memoran-