A re-examination of the record in this cause discloses the fact that counsel for the defendant did enter an exception to the form of the verdict at the time of its return by the jury. This exception does not appear to have been set out in the reporter's notes, and was inserted *Page 447 in close, typewritten form in the minutes of the clerk, where it was not readily discernible and therefore was not seen. The exception simply went to the form and not to the sufficiency of the verdict, and it nowhere appears that the court was requested to return the verdict to the jury and instruct the jury to further consider the same, as provided by section 1161 of the Penal Code. But, as appears from the opinion of the court hereinbefore rendered, the form and the sufficiency of the verdict returned by the jury in this case have been carefully and fully considered, as having been properly presented for consideration upon motion for new trial in the court below, and as presented to this court on appeal, no injury has resulted to the defendant. However, that no further misapprehension may arise, and in the furtherance of accuracy, the following words, "No question was raised at the time of the return of the verdict as to its form or sufficiency, and it was first presented to the trial court upon the motion for new trial, hence whether the court should or should not have returned the verdict to the jury and directed the jury to reconsider the same as provided in section 1161 of the Penal Code, is not presented for consideration," will be, and the same are hereby, stricken from the opinion heretofore rendered. Every question concerning said verdict which could have been considered if the court had been requested to return the verdict to the jury under said section, having been fully set forth by this court in its consideration of the form and sufficiency of the verdict in its opinion, no reason is presented why a rehearing should be granted to consider the provisions of said section.
The appellant also urgently insists that a rehearing should be granted in order that further consideration may be had of certain instructions not specifically set forth in the court's opinion, and also for the reason that his cause has been prejudiced by the language of the court in reference to his alleged partnership with Dr. C. O. Cartwright.
The defendant was not on trial for embezzlement, and hence instructions 42, 43, and 44, not specifically mentioned in the opinion heretofore rendered, requested by the defendant and refused by the trial court, were properly refused, though correct statements of the law.
Instruction 44, in so far as it had any bearing upon this case, was included in instruction number 45, given at the *Page 448 request of the defendant, wherein the jury was instructed that evidence of an offense different from that alleged in the indictment could not be considered by them as rendering it more probable or likely that the defendant committed the offense charged, etc. Nor does it appear that the modification of instruction number 23 by the trial court was such as to cause any miscarriage of justice. The jury was instructed that "a general partner is agent for the partnership in the transaction of its business, and has authority to do whatever is necessary to carry on such business in the ordinary manner, and for this purpose may bind his copartner by an instrument in writing." This would necessarily include promissory notes as an instrument in writing. This instruction is followed by one stating that authority to sign one's name to a promissory note might be given by mere word of mouth.
Defendant's instructions 24, 25, 26, and 27 were covered by instructions given by the court.
Instruction 20 was properly refused, as there was no testimony upon which it could be based.
To show that there has been no miscarriage of justice, as contemplated by section 4 1/2 of article VI of the constitution, by reason of any technical errors of the trial court, and also that the defendant has not been prejudiced by this court in applying a quotation from the opinion of the supreme court in the case of People v. Leyshon, 108 Cal. 440, 445, [41 P. 480], to the cause at bar, the defendant's own testimony may properly be set forth.
The seven thousand six hundred dollars misappropriated by the defendant was received by him in the year 1910. In reply to the question (Tr., p. 100), "What did you do with the money, or in what manner, if any, did you loan or invest it for her," he testified: "The money was invested by me in the development and operation of a certain patent resilient spring tire. The money was practically loaned to the Crosbie Resilient Tire Company, which was organized for the purpose of exploiting and developing and placing on the market that tire. I do not recall at the moment when the corporation was organized, but I believe in 1910 or early in 1911. I had absolute charge of the business of the corporation."
As to what took place between the defendant and Dr. Cartwright most clearly appears from the testimony of the defendant in reply to questions by the court (Tr., p. 150 et seq.): *Page 449 "Prior to November 9, 1911, had you had any conversation on that particular subject as to becoming associated with him? Ans. I think not. I think that the conversations that I had with him prior to that time were along general lines as to the development of the tire and its possibilities. Ques. Well, now, what was that conversation, in substance? Ans. We were speaking of the tire, its possibilities, and speaking of the foreign patents, and I told the doctor of the large amount of money that it was taking to exploit and develop this tire, and how much more it was taking than I ever thought it would take in the first place when I went into it; the patents and all the incidental expenses, and I stated to him, however, that I had the utmost confidence in it, and my confidence was growing as I observed the development of the tire. And he also expressed confidence in the tire; in fact, had always had confidence in it. And then I suggested to him that he become associated with me in business — in the foreign business, not the United States patents or the United States business, but the foreign business. Ques. Well, you say, 'I suggested to him that he become associated.' Did you say: 'Doctor, I would like to have you associated with me in this?' Ans. Probably words to that effect. I won't say just exactly what the words were; but I did tell him that I would like to have him become associated with us in it and reap the benefits with us when there were any benefits to be reaped, and assist us in any way possible in the development if it became necessary. Ques. Well, then, what did he say? Ans. Well, he stated that he would be willing to do so; and I told him that I would then give him an assignment; that I could not give him stock in the foreign patents because there was no foreign corporation covering the foreign patents, but that I would give him an assignment covering my interest in the foreign patents, and that thereafter when the tire had developed sufficiently so that we could commence to market foreign patents or do something with them, and a corporation would be then formed for that purpose; then stock would be issued to him proportionately to the value of the assignments, whatever it might be. Ques. Well, was there another conversation in reference to the subject matter? I am not speaking now in reference to the tire generally, but I mean in reference to his association with you. Ans. Yes; there was some; undoubtedly we held a conversation when I delivered the assignments to *Page 450 him, but all the conversations were practically along the same lines. If you got one, you practically got them all."
After testifying that the words "association and partnership" were not used in any conversation, that no books were ever opened, that no accounting was ever had, the following testimony appears: (Question by the court.) "I am speaking now as to whether or not there was a partnership. I am trying to get at any conversation that may have been had touching any partnership which was actually formed, or which you thought was formed. As I understand, the result of your testimony was that it was only that one time that you remember specifically that you spoke about him being associated with you? Ans. Well, I cannot recall the definite conversations; but I know that many times he did speak about — when it comes to specifying the time of the conversations, I cannot do it, I cannot recall it; I don't remember it, just when they were. Ques. That is the only time that you can recollect, is the one time when the conversation occurred as you say? Ans. Yes; the specific time that I recollect. Ques. And you said something about becoming associated, and he said 'All right?' Ans. Yes. Ques. And he said in effect, 'All right?' Ans. Yes. Ques. And you do not recall any subsequent conversation, or the details of it, in reference to that particular subject matter. I mean about the association part, other than you said a moment ago? Ans. Only specifically in regard to the conversation which followed about the subsequent formation of an actual partnership. Ques. Yes, but that was never consummated? Ans. No, that has not yet been consummated."
At about the time to which this conversation relates, the defendant delivered to Cartwright an instrument transferring to him for life a one-third interest in the defendant's one-third interest in and to all patents pending and applied for in foreign countries in reference to said tire. The trial was had in September, 1915, and by the defendant's own testimony it appears that the alleged partnership with Dr. Cartwright had not even then been consummated.
The chronological order is as follows: The money was left with the defendant in 1910, to be loaned upon real estate mortgages. The defendant applied it to the uses and purposes of the Crosbie Tire Company, a corporation, of which he was sole manager. In November, 1911, he had a conversation *Page 451 with Dr. Cartwright about becoming associated with him in foreign patents concerning said tire, which were not being handled by the company. In October, 1913, the note for the forgery of which the defendant was tried and convicted was given to cover the money that had been used by the defendant in the corporation in which he does not testify that Dr. Cartwright had any interest whatsoever. The trial was had September, 1915, at which time, as above stated, partnership relations had not been established.
The testimony of the defendant is quite voluminous, but, as he said to the court, "When you get one conversation, you get it all."
The foregoing, in connection with the opinion heretofore rendered, we think sufficient to show that the defendant's petition for a rehearing herein should be denied, and it is so ordered.
Chipman, P. J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 21, 1916.