The herald., 1893-07-22

was done; as stated before, the note
and mortgage were shown to be genuine,
and not only did the prosecution fail to
show by two witnesses that the defend
ant made the representations charged at
the time of the transaction, but the de-
tense proved by two of the three per-
sons present at the time that no such
represeD tations were made. 1t has been
held that check on a bank may be q
false token, and would be considered go
II the drawer knew when he gave it that
he neither had funds to meet it nor
credit at the bank on which he drew it.
People vs. Donaldson, 70 CAL, 11S. But
no case has been called to our attention
holding that a prowissory note can be
used as false token.
The court instructed the jury that in
order to convict there need be only one
false pretense proved if they believed
thst Alderson relied upon such pretense
or representation, and was induced
thereby to part with his property. AS
an abstract proposition of law this is
correct, but there ia no evidence in the
record that Anderson relied upon any
one OF the Representations charged.
10 show that the defendant did not
believe his title to the property was good,
the prosecution introduced in evidence
the judgment roll in the case of Juan
de Tora, Edward A. Gibbs (defendant),
and others, plaintiffs, vs. Robinson and
others. defendants; an action to quiet
the plaintiffs title to an interest in the
rancho known as the Los Coyotes, the
land described in the mortgage above re-
ferred to being portion of said rancho.
This Judgment roll showed that on the
10Th of October, 1889, judgment was en-
tered in favor of the defendants in that
action. Counsel for the defendant in
connection Herewith introduced in evil
dence notice Of appeal from said iudg-
ment to the supreme court, filed Sep
tember Is, 1890.
The remittitur from the supreme court
showing an affirmance of the Judgment
was issued October 26, 1891. Notwith-
standing the evidence that the appeal
was pending at the time Of the transac-
tion between Anderson and the defend
ant, and that the cause was not finally
determined until six months thereafter,
the court below instructed the jury that
'the decisions, judgments and DEGREES
of the superior courts of this state are
conclusive and binding upon all parties
to the action or proceeding wherein such
decision, Judgment or decree is rendered,
and all such parties are bound to take
notice thereof until the same is either
modified, set aside or reversed by the
supreme court of this state" This was
clearly erroneous. The judgment of the
court during the appeal was suspended
for all purposes, and was not evidence
upon the question therein at issue even
between the parties. Woodbury. vs.
Bowman, 13 CAL, 634 Murray vs. Green,
64 CAL, 300.
The court below erred in refusing to
allow the witness Osbourne to testify to
conversation and circumstances occur
ring at the time of the transaction be-
tween Gibbs and Mckay. The theory
OF the prosecution was that this transac.
tion was entirely simulated; that Nc
Kay was myth, but that if such person
existed the transaction was not in good
faith, but for the purpose of enabling
the defendant to cheat and defraud. All
the circumstances were therefore proper
matters for the consideration Of the
jury.
The Judgment and order appealed
from are reversed and the cause is re-
manded for new trial.