I concur. However, in addition thereto, I am of the opinion that prejudicial error was committed by the trial court in its refusal to give to the jury, at the request of defendant, the following instruction:
"I instruct you that if you are satisfied from the evidence that the stock of the Security Commercial and Savings Bank which it is claimed was pledged to the United States National Bank, was in fact the property of Schumann-Heink Company and was pledged by Clare as security for the note of the defendant which he, Clare, had endorsed, that is not sufficient of itself to justify you in finding the defendant guilty, but in addition to that unless you find from the evidence that Clare was acting under instructions and with the knowledge of the defendant, your verdict must be not guilty."
Particular attention is directed to that part of the instruction by which it was proposed to tell the jury that unless from the evidence it found that Clare was acting under instructions and with the knowledge of the defendant in the transaction, the defendant was entitled to an acquittal of the charge against him. No instruction given by the court to the jury covered the point in question or dealt with it in any way. Manifestly, if in pledging the certificate of stock referred to in the instruction, Clare was acting on his own initiative and without any instructions from defendant so to do, defendant would be in nowise criminally liable for the act of Clare. On the other hand, if in pledging the stock Clare was acting under the instructions of defendant, the knowledge of defendant of the commission of the act would be imputed to him. (1 Cal. Jur. 846, and cases cited.) As a matter of law, the words "with the knowledge of the defendant" added nothing to the instruction. In order adequately to protect defendant's rights it was, therefore, necessary that the jury should be instructed that, *Page 230 unless it found "from the evidence that Clare was acting under instructions and with the knowledge of the defendant," its verdict should be "not guilty."
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 25, 1929, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on May 9, 1929.
All the Justices present concurred.