and her uncle that he had lied about the mortgages, that the money had not been loaned, that he had used it himself in furthering a certain resilient tire scheme which he was promoting, and promised to give Mrs. Jansen a note for the amount of money which he had used, signed by himself, his father and one Dr. C. O. Cartwright. To this arrangement Mrs. Jansen consented. The defendant further stated that if Mrs. Jansen would return on the following morning he would have the note signed and ready for delivery. Upon the return of Mrs. Jansen on the following morning the defendant delivered to her a note dated October 7, 1913, for the sum of $7,600, to which was attached the names of the defendant, James Cornell, and C. O. Cartwright. The indictment alleges that the names James Cornell and C. O. Cartwright were forged, and upon such charge the defendant went to trial and was found guilty. The opening statement of the district attorney included, in substance, what has heretofore been recited, and was objected to in so far as it referred to the placing of the sum in the hands of the defendant by the witness Jansen, and also as to the conversation or relation of matters which took place between the defendant and the witnesses Jansen and Lauridson on the 6th day of October, 1913, by reason of an admission made by counsel for the defendant preceding such opening statement, and the introduction of any testimony, such statement being as fol lows: "Mr. Bell: May it please the court, before any statement is made by the district attorney in this case, and before the testimony or evidence is introduced on behalf of the prosecution, the defendant desires that it be made a matter of record in this court that his sole defense to this charge is that he had authority from James Cornell and C. O. Cartwright to sign their names to the note in question, and the defendant will rest upon that as his sole defense." And, further, when the witness Jansen was placed upon the witness stand, the further admission: ceive why the circumstances of the creation of that debt could be harmful to the defendant, or upon what theory the prosecution would be excluded from proving the facts just admitted by the defendant, in the event it did not wish to rely entirely upon such admission. The testimony of the witnesses that the sum of $7,600 was placed in the hands of the defendant in 1910 for the purpose of being loaned out on mortgage securities did not, of itself, prove any embezzlement; it simply established the naked fact of the money having been placed in the defendant's possession for a particular purpose. [1] On the 6th day of October, 1913, when the witnesses Jansen and Lauridson called upon the defendant and asked for the mortgages upon which such money was to be loaned, a conversation was had between the defendant and said witnesses, in which all the facts, practically, stated by the district attorney in his opening statement were gone over, and the defendant then and there promised to give, and did thereafter give, the note in question. This conversation did tend to show that the defendant had embezzled the money theretofore left with him by the witness Jansen. Such conversation, and the occurrences then and there had, constituted the reason and the inducing cause for the execution and delivery of the note which the defendant then and there stated he would have signed and ready for delivery to the witness Jansen on the following morning. It is clear that all that took place between the defendant and the witnesses Jansen and Lauridson on the 6th day of October, which led to the giving of the note and was consummated by the delivery of the note on the following morning, constituted but one transaction, and, irrespective of whether it tended to show the defendant guilty of a prior offense, was a part of the res gestæ, and admissible in testimony to show the circumstances attending the giving of the note. The defendant relies strongly upon the decicision in the case of People v. King, 23 Cal. "Mr. Bell: Now, we can save a good deal of time, I think, and clear up the atmosphere. There will be no dispute that this note was giv-App. 259, 137 Pac. 1076, wherein the undisputen by the defendant to the witness upon the stand on October 7, 1913, as evidence of an antecedent debt, and I claim that any evidence prior to that time could not be admitted upon any other theory than to show that there was an antecedent debt of $7,600, for which the note was made, thereby showing that the note was given for the full consideration." It is apparent from this statement that the testimony of the witnesses Jansen and Lauridson that $7,600 was prior to the execution of the note in question placed in the hands of the defendant, in and of itself would be no more than simply a confirmation of the admission by the defendant of the creation, and therefore existence, of an antecedent debt in the event that the defendant used such money for his own purposes. The existence of the debt being admitted, it is not very easy to per ed rule that proof of an offense distinct from and wholly disconnected with the particular crime charged against a defendant is not admissible in evidence, is set forth and applied. In that case the defendant was charged with embezzlement. The defendant admitted the receipt of the money, and set up in defense that he had returned the same. Notwithstanding such defense and admission made by the defendant at the beginning of the trial, the prosecution was allowed to prove other distinct acts of embezzlement. We do not see that there is any necessity for either criticizing or approving the decision in the King Case, as it is readily distinguishable from the one at bar. The circumstances of previous embezzlement by the defendant King had nothing to do with the actual embezzlement of the moneys for which he was being tried, and ining its own witness, and that the cross-exwhich it was claimed by him he had returned | amination was for the purpose of discrediting to the owner thereof. the testimony of the witness and inducing the In the case at bar, the testimony as to prior jury to disbelieve his statements. While the offense admitted is the conversation had be- ruling of the court in this particular may tween the defendant and the witnesses Jan- have been technical error, a reading of the sen and Lauridson on the day preceding the testimony of the witness James Cornell does giving of the note about the deposit or leav-not disclose anything really prejudicial, and, ing with the defendant of certain moneys to in view of the decision in the case of People be loaned on mortgages, inquiry for said v. Leyshon, 108 Cal. 440-446, 41 Pac. 480, mortgages, admission by the defendant that which will be further discussed herein, it is no such mortgages were ever taken, after clear that the defendant suffered no injury having stated that such mortgages were in from the course of the district attorney in the recorder's office, the further admission by this particular, or of the ruling of the court the defendant that he had used the money; in relation to such testimony. a statement by one of the witnesses that the defendant might be sent to prison for such offense, and the offer by the defendant to give the note for the forging of which he was tried and convicted. [5, 6] Misconduct on the part of the district attorney is assigned as having occurred in the course of his cross-examination of the defendant. The transcript shows the following: "Mr. Jones: Question. How long have you been engaged in this business-this tire business? Answer: Well, it has been several years. It was early in 1910. It might have been in 1909-the latter part of 1909-when that propoQuestion: sition was first presented to me. You have spent a great deal of money in it? Answer: Yes. Question: Spent a great deal of money that you have got from other people [2] The King Case and others, following the rule therein laid down, wherein testimony as to other offenses is held inadmissible, rests upon an entirely different state of circumstances; such testimony being excluded only when the offenses are disconnected, and, whether the testimony as to the leaving of the $7,600 with the defendant in 1910, as re-in it?" lated by the witnesses, before anything was said of the conversation had between the defendant and the witnesses on October 6th, was or was not admissible, the defendant was not prejudiced thereby, because all the facts showing his prior embezzlement of the moneys are included in the circumstances occurring on the 6th of October, upon which the note involved in this case is based. The asking of this question was assigned as error, and in the course of the colloquy that ensued, the court stated the matter as follows: "He (referring to the defendant) stated that so far as one of the persons is concerned-that is, Mrs. Jansen-he spent her money. As to any other person, Mr. Jones, your question is improper" -and, after an apology by the district attorney, instructed the jurors to pay no attention to the question. The question, in and of itself, does not directly assume that the defendant had improperly spent any money belonging to others, and the jury hav [3] Again, whenever the question of motive, or purpose, or reason for an act is involved, testimony showing such motive, reason, or purpose is always admissible, even though it may establish the commission of other offenses. People v. Soeder, 150 Cal. 12, 87 Pac.ing been promptly directed by the court not 1016; People v. Argentos, 156 Cal. 720, 106 Pac. 65; People v. Sanders, 114 Cal. 216, 46 Pac. 153; People v. Cook, 148 Cal. 340, 83 Pac. 43; People v. Hatch, 163 Cal. 378, 125 Pac. 907; People v. McPherson, 6 Cal. App. 266, 91 Pac. 1098; People v. Courtright, 10 Cal. App. 522, 102 Pac. 542; People v. Mack, 14 Cal. App. 12, 110 Pac. 967. A large number of other cases might be cited, but these will suffice to illustrate the point in controversy, and, in our opinion, clearly establish the admissibility of the testimony referred to. [4] During the course of the trial the defendant's father, James Cornell, was placed upon the witness stand by the prosecution and asked as to whether he had or had not authorized the defendant to sign his name to promissory notes. The witness not answering the question directly, or rather having answered in a more or less evasive manner, the district attorney proceeded to interrogate the witness further, over the objection of the de to pay any attention to the question or to any inference that might be drawn therefrom as to any other moneys, we do not think that the defendant was materially prejudiced. That the act of the district attorney was not sufficient to warrant reversal, we refer to People v. Glaze, 139 Cal. 159, 72 Pac. 965; People v. Lawrence, 143 Cal. 156, 76 Pac. 893, 68 L. R. A. 193. The question by the district attorney of the defendant, as to whether he had not spent considerable money in riotous living, was not objected to, and therefore need not be considered. Other objections were also urged against the admission of certain testimony, but they do not seem to be of sufficient importance to require any statement herein. [7] In behalf of the defendant's second assignment of reasons for reversal, it is argued with considerable insistence that the court erred in instructing the jury, and especially in the refusal to give defendant's proposed instructions numbered 7 and 8. Defendant's "You are instructed that if the testimony in this case in its weight and effect be such that two conclusions cannot be reasonably drawn from it, the one favoring defendant's innocence and the other tending to establish his guilt, the law demands that the jury shall adopt the former and find the defendant not guilty." (Assum-in ing that the word "cannot" was a clerical error and should have been corrected by the court to read "can," we will consider the instruction in its corrected form.) the defendant beyond a reasonable doubt be- Defendant's proposed instruction No. 8 ment must be established to the satisfaction of reads: "You are instructed that when, from the evidence, a man's conduct may be as consistently and reasonably referred to, two motives, one criminal, the other not criminal, the law will ascribe it to that which is innocent, and it is your duty to so find." These two instructions, while different in form and language, convey practically the same idea, to wit: That the law presumes innocence, and where two conclusions may be drawn from a defendant's acts, the jury must find him not guilty. Was it error on the part of the court to refuse said proposed instructions? Upon the question as to whether a partnership existed between the defendant and C. O. Cartwright, and whether the defendant did or did not have a right to sign the name of the said C. O. Cartwright to the note in question, as such partner, the jury was fully Instruction No. 41 proposed by the defendinstructed. Also the jury was clearly and ant and given by the court reads as follows: pointedly instructed that the defendant could "In this case, C. O. Cartwright has testified not be found guilty of the offense charged that the defendant had no authority to sign his because he might have been guilty of misapname to said promissory note. I instruct you|propriating the moneys belonging to the witthat you are sole judges of the fact as to whether the defendant had authority so to do, or believed that he had such authority, and unless you feel an abiding conviction to a moral certainty that the defendant did not have such authority and did not believe that he had such authority, then you must find the defendant not guilty." Further, defendant's proposed instruction No. 37, given to the jury by the court, reads: "I charge you that if after an entire comparison and consideration of the evidence in this case you entertain a reasonable doubt as to whether the defendant and C. O. Cartwright became partners, and that defendant signed the name of C. O. Cartwright to said promissory note, believing that he had the right to sign the name of C. O. Cartwright as his business associate or partner, then you must find the defendant not guilty." Defendant's proposed instruction 38 on the same point, and given by the court, is as follows: "If the defendant believed that he had the right to sign C. O. Cartwright's name to said promissory note by reason of the claim made by the defendant that he and said Cartwright were associated together in business, then I charge you that such belief destroys all criminal intent, and you must find the defendant not guilty." ness Jansen. [8] It may be here proper to remark that the trial court, after once instructing the jury clearly upon the points involved in the case, was not required to repeat the instructions with all the variableness and shadows of turning possible to skillful and learned attorneys. Forty-four distinct and separate instructions were asked for by the defendant in this case, which necessarily devolved upon the trial court the duty of sifting out and excluding a large number of them, even though they might be correct statements of the law, as most of them constituted only repetition of what had already been given, with variations in language. [9] The third reason assigned as grounds for reversal is as to the sufficiency in form and substance of the verdict. It is as follows: "People of the State of California versus Joseph D. Cornell. We, the jury in the aboveentitled cause, find the defendant guilty of the crime of forgery, as charged in the indictment, of the promissory note set forth in the indictment; and we further find that said defendant forged the name of C. O. Cartwright to said and we further find the defendant guilty of utpromissory note, as charged in the indictment; tering and passing the forged promissory note as charged in the indictment. "Robert E. Clark, Foreman." Further instructions given by the court were to the same tenor and import as these just recited. The two theories upon which the case was tried, by the admission of the defendant through his counsel at the beginning thereof, were, on behalf of the pros- No question was raised at the time of the ecution, that the defendant had no authority return of the verdict as to its form or suffito sign the names as signed in the note, and, ciency, and it was first presented to the trial on the part of the defense, that he was so court upon the defendant's motion for new authorized, and it was these matters which trial, hence, whether the court should or the instructions just recited directly and should not have returned the verdict to the forcibly instructed the jury that they must jury and directed the jury to reconsider the ascertain and find from the evidence against | same, as provided by section 1161 of the Pe nal Code, is not presented for consideration. | burglary was committed. The objection was Section 1150 of the Penal Code provides: "That the jury may render a general verdict, or when in doubt as to the legal effect of the facts proved, they may, except upon a trial for libel, find a special verdict." Section 1152 of the same Code defines a special verdict as: held invalid. In State v. Bowen, 16 Kan. 476, the verdict returned by the jury read: "We, the jury, find the defendant not guilty in manner and form as charged in the information, but do find him guilty of manslaughter in the second degree." Upon this the defendant moved to be dis "One by which the jury finds the facts only, charged on the ground that murder includes leaving the judgment to the court." The appellant insists that the court erred in submitting a special form of verdict to the jury. An examination of the sections above referred to shows that there is nothing in this claim. There is nothing in the verdict, which is special in its nature, as defined by section 1152 of the Penal Code. There is a clause in the verdict which is particular, as language is ordinarily understood, in its reference to the defendant having forged the name of C. O. Cartwright. A special verdict is one which simply finds the facts. To have made this verdict special, under the definition contained in the Code, it must have set forth the facts of the defendant signing the name of Cartwright without authority, etc., but, instead of so doing, the jury finds the general fact of forgery, in that the defendant forged a particular name. Is the verdict sufficient to support the judgment? [10] Looking at the verdict and reading it as a whole, it is clear that the jury intended to find the defendant guilty of forgery, as charged in the indictment, in this, to wit: That he forged the name of C. O. Cartwright to the instrument set forth in the indictment, and thereafter uttered and passed the same as charged. Bishop, in his Criminal Procedure (2d Ed.) § 1005a, speaking of verdicts, says: "The language of the verdict, being that of lay people, need not follow the strict rules of pleading or be otherwise technical. Whatever conveys the idea to the common understanding will suffice, and all fair intendments will be made to support it. As in an indictment or a pleading bad grammar or spelling does not vitiate, so, a fortiori, it does not in the verdict unless the meaning becomes inadequate. Surplusage is harmless. The finding must be construed as a whole, not in its separate parts." In People v. Brady, 65 Pac. 824,1 the court says: "Where the intention of the jury is unmistakable, mere clerical errors should be disregarded." In People v. Jochinsky, 106 Cal. 640, 39 Pac. 1077, the verdict was as follows: "We, the jury, find the defendant guilty of burglary in the first degree, we further find that the goods taken from Prince's store on the night of the 13th and 14th of April, 1893, were brought from Sonoma county into the city and county of San Francisco, state of California, by the defendant." The objection there was that the verdict was both general and special, and that it was faulty because it did not specify where the re 1 Reported in full in the Pacific Reporter; ported as a memorandum decision without opinion all the degrees of manslaughter, and the first part of the verdict finding him not guilty in manner and form as charged was responsive to all the charges, and acquitted him of guilt not only of murder but as to all the degrees of manslaughter, and therefore the latter part of the verdict should be disregarded as surplusage. The court held the point not well taken, and that the verdict must be taken as a whole, and its meaning determined from a consideration of every part, and, when so taken, there was no chance for misconception as to the meaning of the jury, and that it found him guilty of the crime of manslaughter. In Kimball v. Territory, 13 Ariz. 310, 115 Pac. 70, the court says: "Where the intention to convict of the crime is unmistakably expressed in the verdict, any mere irregularity or surplusage contained therein is immaterial." In that case, however, the verdict simply found the defendant guilty of obtaining property by false representations, without finding him guilty of any intent to defraud, which constituted a necessary part of the crime. In People v. Gilbert, 57 Cal. 96, the verdict was: "We, the jury, find the defendant guilty, as indicted, to the sum of $90." The defendant was charged with the crime of embezzlement. The reference in the ver dict was held to make it explicitly appear that the jury found him guilty of embezzlement, and that they further found that the sum embezzled was $90, and the verdict held legally sufficient. In State v. Arbruzino, 67 W. Va. 534, 68 S. E. 269, a verdict was returned in the following form: "We, the jury, find the defendant, Tonio Arbruzino, not guilty of the felonious and malicious assault charged in the within indictment with the intent therein charged, but we do find him guilty of the unlawful assault therein charged with the intent therein also charged." The court held that what the jury meant was to be ascertained by reference to the indictment, and that the verdict should always be read in connection therewith, and if it be certain, upon reading them together, what the meaning of the verdict may be, it is sufficient (citing a number of authorities). In the same volume, 68 S. E., on page 458 (Barber v. State, 8 Ga. App. 28), the sufficiency of a verdict was passed upon, and it was there said: "A verdict is to be given a reasonable intendment, and, when ambiguous, may be construed in the light of the issues actually submitted to if, when so construed, it expresses with reasonable certainty a finding supported by the evidence, it is to be upheld as legal." In Willingham v. State, 62 Tex. Cr. R. 55, 136 S. W. 470, the jury returned a verdict in these words: "We, the juror, find the defendant guilty and ses his pently at sixty days in jail & $25 fine." The court, in upholding this verdict, said: "It is well settled, where the sense is clear, that neither incorrect orthography nor ungrammatical language will render a verdict illegal or void, and that it is to be reasonably construed, and in such manner as to give it the meaning intended to be conveyed by the jury" (citing a number of authorities). In State v. Schweitzer, 18 Idaho, 609, 111 Pac. 130, the verdict read: "We, the jury in the above-entitled case, find the defendant, George Schweitzer, guilty of selling by short weights as charged in the complaint." This was held sufficient, as the intent of the jury was clear in that it found the defendant guilty. The words "selling by short weights" might be treated as surplusage, and still the verdict held good, for then it found the defendant guilty as charged in the complaint. This case distinguishes the general current of authority from the case of People v. Tilley, 135 Cal. 61, 67 Pac. 42, where it was held that a verdict in these words, "We, the jury in the above-entitled case, find the defendant, Charles H. Tilley, guilty of receiving stolen property," was insufficient, as it must, in order to constitute a crime, include the knowledge that the property was stolen, and also the intent to deprive the owner of the same. It may be stated also that the verdict in the Tilley Case did not refer to the indictment or information, which also distinguishes that case from the one at bar, where the indictment is clearly and distinctly referred to. "We find a verdict of 'guilty' against all the others named in the indictment, to wit (setting forth the names) and find a verdict of 'involunand laid down by the court under the head of tary manslaughter,' 'not a felony,' as charged Involuntary Manslaughter, and pray the * * mercy of the court in its sentence and punishment, and so say we all." * The court said: * "The verdict clearly shows an intention to convict, and the grade of the offense is fixed by declaring it to be involuntary manslaughter. But whatever may have been the intention of the jury, by no possible construction could we reach the conclusion that the jury meant to acquit the defendants, for they not only found them guilty in terms, but recommended them 'to the extreme mercy of the court in its sentence and punishment.' Whether the crime of which the defendants were found guilty was or was not a felony did not lie with the jury to declare-the statute does this. There is no good reason why the verdict of a jury should not have a reasonable construction and be given effect according to its manifest intention. The words 'not a felony' should be rejected as surplusage, and the general verdict of guilty of involuntary manslaughter' should stand as the verdict." [11] Appellant further urges that, admitting the verdict finds the defendant guilty of forging the name of C. O. Cartwright, it is yet silent as to the forging of the name of James Cornell, unless the first clause in the verdict finds the defendant guilty of forging both of the names as charged in the indictment, and that, in such case, as the testimony is insufficient to support a verdict finding the defendant guilty as to James Cornell, a new trial should be granted. This contention is answered in the negative in the case of People v. Leyshon, 108 Cal. 445, 446, 41 Pac. 480. There the defendant was tried on an information charging forgery to a note of the names of Mrs. Maggie Henry and Eliza J. Clark. "The defense interposed was that the business In People v. McCarty, 48 Cal. 557, the ver- relations between the defendant and the two dict returned was: "We, the undersigned jurors, find a verdict of murder in the second degree. A. J. Chase, Foreman." This verdict, being recorded, was read to the jury, and each of the jurors answered that it was his verdict. It was there stated, in upholding this verdict, that: "While the Penal Code sets forth a form of verdict, it does not bind the jury, and that a mere departure from such form does not of itself vitiate the verdict, if it can be clearly understood as being a general verdict of guilty or not guilty, and that there was no difficulty in understanding the verdict there rendered as being one finding the defendant guilty of murder in the second degree as charged in the indict ment." In People v. Perdue, 49 Cal. 427, the verdict returned was: "We, the jury in the case of The People of the State of California vs. Charles Perdue, do find a verdict of manslaughter. By the Foreman, Wm. A. Creps." This verdict was held sufficient. In the case of People v. Holmes, 118 Cal. 444, 50 Pac. 675, the portion of the verdict pertinent here was: women whose names appeared upon the note were such that defendant either had authority, or supposed he had authority, to sign their names thereto. As to Mrs. Maggie Henry, there was evidence tending to show some foundation for the position assumed by the defendant; but there was a conflict in the evidence on this point, and upon well-recognized principles the verdict cannot, under such circumstances, be set aside for such cause. As to the name of Eliza J. Clark, signed by defendant, we find in the record not an iota of evidence tending to show in the defendant any authority, or ground upon which to found a belief of authority, to use her name upon the promissory note. As to her, the case presented a bald case of forgery, not relieved by any pretext worthy of consideration. The proof that defendant forged the name of Eliza J. Clark to the promissory note described in the information is sufficient alone to uphold the verdict, and for that reason the several rulings of the court upon the admission and rejection of testimony touching the business relations existing between defendant and Mrs. Maggie Henry need not be considered, for, if erroneous, such rulings do not, under the circumstances, call for a reversal." In this case, as heretofore stated, the defendant sets up a like defense. The testimony as to whether the defendant did or did not have authority to sign the name of |