Argument for Appellant. We contend that under the first count of the indictment the name of the alleged principal, Paul Tibeaux, should have been proved as alleged, and the failure so to prove it constituted a material variance between the allegations and proofs. Defendant was chargeable only as an accessory before the fact, and it was necessary to indict him as such. (People v. Campbell, supra.) And in indicting him as such, it was necessary to allege the name of some principal, known or unknown-(for how can there be an accessory unless there is a principal?); and the name of the principal being necessarily alleged, it ought to have been proved as alleged. If the indictment states the name of the principal to be unknown contrary to the truth, the defendant is entitled to an acquittal. (1 Wharton Criminal Law, Sec. 251.) And surely when the indictment states the name of a known principal, the people must prove the name alleged. Again "no allegation descriptive of that which is charged can ever be rejected." (1 Greenleaf's Evidence, Sec. 56, note 1.) The name Paul Tibeaux is descriptive of defendant's offence. His offence was not the killing of Said, but the standing by, aiding and abetting, etc. Aiding and abetting whom? Paul Tibeaux, the principal named in the indict ment. Again, strike out the word Paul Tibeaux from the indictment, and the sense and meaning of the whole instrument is destroyed, and the rule is that whatever can not be stricken out without getting rid of a part essential to the cause of action must be retained, and of course must be proved, though it be described with unnecessary particularity. (Greenleaf, 1 vol. Secs. 63-65.) Again, any variance in sound in the names of material third parties is fatal at common law. (1 Wharton Crim. Law, Sec. 259, Subdivision 4, and Sec. 595 and 596.) But it was suggested by the people's counsel in the Court below, that the Common Law does not govern this case, but the Statute does. What statute? Section 253 Crim. Pr. Act only covers the case of an erroneous allegation as to the person injured or the person intended to be injured;" and Argument for Respondent. even if that section was applicable to this case, it surely could not be contended with any show of reason that the defendant could be convicted of the murder of a man named Paula or Paul under an indictment charging him with the murder of Paul Tibeaux. When substantial error is once shown, the law presumes that it was to the prejudice of the defendant, and the record in the present case affirmatively sustains this presumption. of the law, for the conduct of the defendant, in refusing to put in any evidence in rebuttal of the offence proved, can only be explained by the fact that the offence proved was not the offence alleged. Jo Hamilton, Attorney-General, for Respondent. First-The challenge in this case was not addressed to the panel, but it was addressed simply to the talesman who was summoned to fill up and complete the jury, the number of which is provided by the statute, and is not such a challenge as is contemplated by the statute, on which appellant relies. The statute provides the manner and mode by which the panel which tries a case shall be summoned, and in the event a jury is incomplete after the panel is exhausted how it shall be complete (Art. 3,887, Sec. 18, 1 Hittell, page 564.) Section 337, Crim. Pr. Act, provides for a challenge to the panel from which the jury is formed, the challenge goes no further. Section 18, supra, makes and recognizes a difference between the regular panel and such special talesman summoned to complete a jury, calling the latter special trial jurors, and seeming to guard by special care against the objections urged by the appellant, provides that the persons thus summoned shall be as competent, in all respects, as if drawn and summoned before the commencement of the term. (Also, Section 21, of same Act.) The special jury law as fixed by the Act approved April 23d, 1863, and subsequently amended by the Act approved April 4th, 1864, Stat. 1863-4, page 450, being special in its character nullifies and repeals so much of Section 337 of Argument for Respondent. the Criminal Practice Act as is relied upon by appellant if it was ever in point. Under the Act known as the Criminal Practice Act, passed in 1851, the Sheriff himself or his deputies selected the grand and trial jurors. Prejudice on the part of the summoning officer might very readily endanger a criminal defendant; but, under the Act of 1863, the Sheriff is simply a ministerial officer of the Court, whose duty it is to bring into the Court the persons whose names have been drawn as provided by law. But I further respectfully submit that the challenge referred to in Section 337, relied on by appellant's attorney, relates not only to special jurors, but does not refer to trial jurors at all, but applies alone to grand jurors. (Crim. Pr. Act, Secs. 321, 159, 180-190.) Second-Appellant's second point does not sustain the plea of variance between the indictment and proof; the only question is, was the proof full enough? I think it sufficient on this point to reply that it is not Tibeaux on trial, but the defendant "Coyodo." If, on the trial under the second count in the indictment, any of the defendants did the killing, and the defendant aided and abetted or assisted therein, then the crime is made out. It would also be sufficient under the first count. (1 Chitty Criminal Law, 260, and authorities in note "A" thereto.) Where several defendants are jointly indicted, and sever on trial, I do not understand that on the trial of one the guilt of all must be proven. The indictment and proof under the second count are good under the authority of the People v. Cronise, (34 Cal. 210;) Crim. Law Pr. Act, (Sec. 253); People v. Coyodo, (6 Cal. 23;) People v. Beurs, (10 Cal. 68.) The defendant being associated in a common and unlawful cause (robbery), any act done by one in furtherance of the common cause was alike done by all. Opinion of the Court - Temple, J. TEMPLE, J., delivered the opinion of the Court, RHODES, C. J., WALLACE, J., and CROCKETT, J., concurring: The defendant was convicted of the crime of murder in the first degree. At the trial, from the regular panel, ten jurors were selected and sworn-the regular panel being then exhausted. By this time the defendant had exhausted all his peremptory challenges. A special venire for six additional jurors having been issued, was served by the Sheriff, and the jurors summoned appeared in Court. The defendant then interposed a challenge to the panel returned on the special venire, on the ground that the Sheriff had formed and expressed an unqualified opinion that the defendant was guilty. The challenge was denied, and on the trial of it the Sheriff was sworn, and from his evidence it appears plainly enough that he had formed and expressed such an opinion as would have disqualified him from serving as a juror in the case. Section 337, of the Criminal Practice Act, provides that a challenge may be made to the panel on account of any bias of the officer summoning them, which would be good ground of challenge to a juror; and we think the ruling of the Court in denying the challenge clearly erroneous. We find nothing in the Act Concerning Jurors, passed April 27, 1863, (Stats. 1863, p. 630), inconsistent with the provisions of the Criminal Practice Act. It expressly enacts that either party may have the number of the peremptory challenges, and the challenges for cause now provided by law; and it makes no provisions for the manner in which the challenges shall be interposed. This is left for the Criminal Practice Act, and we think clearly implies that its provisions upon the subject are still to continue in force. We think the word "panel" includes within its definition the jurors returned upon a special venire to fill out the deficiency after the regular panel has been exhausted. Section 337 of the Criminal Practice Act was intended to apply to just such a case as that presented in this record. Argument for Appellant. The indictment, in the first count, charges the homicide to have been committed by one Paul Tibeaux, and that the defendant aided and abetted. The second count charged that the defendant and others did kill and murder Elkanah Said. The Court instructed the jury that they must acquit the defendant unless they find that the deceased was killed by Paul Tibeaux, while the defendant aided and abetted the killing. The evidence was that the fatal shot was fired by a Frenchman by the name of Paul, and there was no evidence to show that Paul Tibeaux had anything to do with the homicide. The failure to prove that Paul was the same person known as Paul Tibeaux was probably a mere oversight, but the total absence of proof upon that point is fatal to the verdict. It would be contrary to the instruction of the Court, and, therefore, erroneous. Judgment reversed and new trial ordered. No. 2,404. THOMAS GRAHAM, (admr., etc.,) RESPONDENT, v. A. J. PLATE, APPELLANT. TRADE-MARK-MEASURE OF DAMAGES.-In an action to recover damages for a violation of plaintiff's trade-mark, the profit actually realized by defendants from the sales of the spurious article under the simulated trade-mark, is a proper measure of damages, but the recovery of the plaintiff is not limited to the amount of such profits. APPEAL from the District Court of the Twelfth District, City and County of San Francisco. This is an action by the plaintiff for damages for an alleged violation of the trade-mark of his intestate, by the defend ant. Judgment was rendered for plaintiff, and defendant appealed. The other facts are stated in the opinion. Crittenden & Wilson, for Appellant. In cases of this character, there are usually two sources of damage—first, injury to reputation; and second, loss of VOL. XL.-88 |