Opinion of the Court-Shafter, J. By the Court, SHAFTER, J.: 109-422 This is a petition for a writ of prohibition to the County Judge of the county of Santa Clara, restraining and prohibiting him from exercising probate jurisdiction in the matter of the estate of George Harlan, who died intestate on the 8th of July, 1850. It is insisted on behalf of the petitioner that the estate of Harlan is not subject to administration under the Probate Act of 1850, in force at the date of Harlan's death, for the reason that no proceedings were taken under that Act prior to its repeal, May 1, 1851 (Stat. 1851, 489), for the *settlement of the estate; and it is further insisted [505] that the estate is equally unaffected by the Act of 1851, that Act being, as is claimed, prospective and not retroactive in its operation. The counsel for the petitioner relies, in support of these positions, upon Grimes v. Norris, 6 Cal. 621; Tevis v. Pitcher, 10 Cal. 477; De la Guerra v. Packard, 17 Cal. 193; Soto v. Kroder, 19 Cal. 87, and Downer v. Smith, 24 Cal. 114. It is to be observed that the owners of the estates referred to in those decisions all died before the organization of the present State Government, while in the case at bar the death was not only subsequent to that event, but occurred while the Act of 1850 was in full operation. It is true that the Court in the cases cited, say, generally, that the Act of 1851 is not retroactive; still nothing can be considered as having been adjudged by those cases except that estates the owners of which died under the Mexican system, were not within the purview of the Act. The particular question raised upon this record is now presented for the first time in the Court of last resort. The Mexican system was superseded in this State by the adoption of the common law on the 13th of April, 1850. (Stat. 1850, p. 219.) But the common law method of administration on the estates of persons deceased was opposed in some of its features to the principles upon which our institutions are based and to our long-settled habits of public Opinion of the Court-Shafter, J. action; and, furthermore, it must necessarily have failed here for the want of the needful agencies to conduct it. Hence the Probate Act of 1850. We consider that the Legislature intended that all estates whose owners had deceased prior to the passage of the Act, and subsequent to the abrogation of the remedial system of the Mexican law, should be settled according to the method of the Act. To that extent at least the statute was intended to be retroactive. The intention could not have been that this class of estates should be closed out according to the Mexican method, for the Mexican system had been [506] superseded *before the Act was passed; and if it was not intended to subject them to the Act of 1850, it follows that it was in the mind of the Legislature to leave their settlement to the rule of the common law-a result which we cannot regard otherwise than absurd. As to the Act of 1851, we regard it as retroactive to the same extent as the Act which preceded it and of which it was but a revision. We rest this conclusion not only upon the grounds on which the retroactive effect of the Act of 1850 has been argued, but on the further ground that the repeal of the Act of 1850, and the passage of the Act of 1851, were contemporaneous events; and furthermore, the Act of 1851 contains a provision saving all pending cases from the operation of the repeal. Can it be supposed that the Legislature intended to make a distinction between estates to which the Act of 1850 was in a course of application at the date of its repeal, and other estates like them in every historic and meritorious particular, turning the latter over for settlement to the imperfect and objectionable methods of the common law? There is nothing in the language of the Act which forbids us to consider it as retrospective. The Act does no more. than change the common law mode of administration, and, therefore, it may well be intended that the legislative purpose was that the Act should apply to the "settlement of the estates of deceased persons," irrespective of the dates at which the deaths occurred. (Smith's Com. 308; People v. Points decided. Tibbets, 4 Cow. 384; Dash v. Kleeck, 7 John. 447; Galland v. Lewis, 26 Cal. 48.) To hold that no estate can be settled under the Act of 1851 where the owner died in advance of its passage, would be to hold, in effect, that the numerous amendments which have from time to time been made to the Act, applied only to the estates of persons who deceased subsequent to their adoption. A certain class of estates has been withdrawn from the operation of the Act of 1851, by the decisions upon which the petitioner relies; but the case at bar is not within the scope of those judgments. Those cases can neither be appealed to as precedents, nor be used in argument as starting an available analogy. *The other points urged by counsel are not of juris- [507] dictional consequence. The petition is denied. Mr. Justice RHODES being disqualified, did not sit in this cause. THE PEOPLE v. MOSES FRANK. 108-447 111-25-2 111-65-1 1 INDICTMENT CHARGING A SERIES OF ACTS.-Where a statute in defining an offense enumerates a series of acts, either of which separately, or all 112-2 106-3 together, may constitute the offense, all such acts may be charged in a' 84-56 single count in the indictment. INDICTMENT FOR FORGERY.-An indictment for forgery which charges the defendant, in the same count, with having forged an indorsement on a SAME. An indictment for forgery which charges that the defendant forged 3 EVIDENCE ON TRIAL FOR FORGERY.-On a trial for uttering an instrument 1. Approved, People v. De la Guerra, 31 Cal. 461; People v. Tomlinson, 35 Cal. 508. 2. Approved, People v. Tomlinson, 35 Cal. 507. 3. Cited, People v. Garnett, 29 Cal. 631. Statement of Facts. with a forged indorsement on it, other instruments claimed to have been forged and uttered by defendant about the same time may be used as evidence for the purpose of proving guilty knowledge, notwithstanding they had been the subject of other indictments on which the defendant had been tried and acquitted. 1 SAME. An indictment for forging an indorsement on an instrument and uttering it with a forged indorsement on it, knowing it to have been forged, and a trial and acquittal, does not estop the People from using it as evidence on a trial for forging an indorsement on and uttering another instrument about the same time, unless it appear from the evidence offered in support of the estoppel that the jury by their verdict decided that the defendant did not commit any of the several acts charged as constituting the forgery. VERDICT OF ACQUITTAL AS AN ESTOPPEL.-A trial and acquittal upon a charge of forging an indorsement on an instrument, and uttering it, knowing an indorsement on it to have been forged, does not necessarily make the judgment of acquittal of itself an estoppel upon any matter except the forgery of the indorsement by the defendant. EVIDENCE TO SHOW GUILTY KNOWLEDGE ON TRIAL FOR FORGERY.-On a trial for forgery no precise rule can be laid down with regard to the distance of time between the offense charged and the occurrence of collateral facts offered in evidence to prove guilty knowledge. OBJECTION TO TESTIMONY.-A general objection to testimony offered that it is irrelevant is not sufficient if the real ground of objection is that no proper foundation has been laid for its introduction. [508] 2 EVIDENCE OF ACTING AS A CORPORATION.-Upon a trial for forging a draft on a corporation, evidence that it was acting as a corporation is sufficient. INTERLINEATION IN FORGED INSTRUMENT.-If, on a trial for forgery, it appears that an interlineation was made in the instrument after the forgery, by the consent of the defendant, and the indictment sets forth the instrument as interlined, there is no such variance as to entitle the defendant to an acquittal. APPEAL from the County Court, City and County of San Francisco. The indictment charged that the defendant, on the 17th day of August, 1864, had in his possession a draft, the tenor of which was as follows: " UTAH MINING COMPANY, "AURORA, N. T., August 10, 1864. "Ten days after sight, pay to the order of H. Bloomingdale & Co., in United States gold coin, seven hundred and 1. Approved. Garwood v. Garwood, 29 Cal. 523. 2. Cited, People v. Ah Sam, 41 Cal. 652; People v. Barric, 49 Cal. 344. Statement of Facts. fifty dollars, value received, and charge the same as advised. "To EDWARD CONNER, Esq., "F. J. BAUM, Sup't. "Sec'y Utah Mining Company, San Francisco." And that he feloniously made, forged, and counterfeited, and aided and advised and encouraged another to make, forge, and counterfeit, on the back of the draft, an indorsement in writing in tenor following, "H. Bloomingdale & Co.," with intent to defraud said Utah Mining Company, a company duly incorporated under the laws of California, and also one James L. Howard, and other persons; and also that the defendant, on the 17th day of August, 1864, had in his possession said draft-the same before the uttering and passing thereof having on its face been accepted by one Edward Conner, then the Secretary of the Utah Mining Company, and having been indorsed on the back thereof "F. J. Baum & Co.," and then having said forged indorsement thereon—and did feloniously utter, publish, and pass as true and genuine said forged indorsement of said *draft with intent to defraud said Utah Min- [509] ing Company and said Howard, and that defendant at the time well knew the forged indorsement was false and forged. On the trial it appeared that defendant took the draft to James L. Howard to be discounted, and that Howard refused to discount it unless it was made payable in gold coin, and that he then, with the consent of defendant, interlined the words "in United States gold coin," and purchased it. Defendant by his attorney objected to the draft being received in evidence, because the draft offered in evidence and set forth in the indictment was not the same one the indorsement was forged on, having been changed by the interlineation. The Court overruled the objection. The defendant by his attorney also objected to the draft being received in evidence because it was not stamped, and this objection was overruled. 113-179 |