People v. Ah Ngow.

in determining the probabilities for or against him the probabil. ity of his guilt or innocence. The weight to which that circumstance is entitled is a matter for the jury to determine in connection with all the facts called out in the case. I will read to you what has been said on that subject, from Wharton's Criminal Law: "A presumption arising from attempts to escape or evade justice. Such an attempt, if shown, amounts to a strong presumption

of guilt.'

"It is admissible for the prosecution to prove that the prisoner advised an accomplice to break jail and escape, or that he offered a bribe to one of his guards, or that he killed an officer of justice when making such an attempt. Evidence of an attempt to bribe or intimidate witnesses gives rise to the same presumption. So with flight, to which no proper motives can be assigned, and with the act of disguise, concealment of person, family, or goods, and many other ex post facto indications of mental emotion. By the common law flight was considered so strong a presumption of guilt, that in cases of treason and felony it carried the forfeiture of the party's goods, whether he was found guilty or acquitted.''

It will be seen from the foregoing extract from the charge to the jury that the court below made the flight of the defendant strong presumptive evidence of his guilt. It is true that in other parts of the charge, the jury was told that flight was a circumstance entitled to greater or less weight, and in many cases, to no weight whatever; of all of which the jury was to judge.

In the first place, let us inquire into the correctness of that portion of the charge which construes flight into a presumption of guilt. Was not that part of the charge in violation of the provision of law which gives to the jury the exclusive right to judge of the facts, and prohibits the court from charging the jury on questions of fact? The correctness of the doctrine laid down by Mr. Wharton is not denied in its application to the Federal courts and the courts of other States, where the right exists to charge upon questions of fact; but it is claimed, on behalf of the defense, that it is not law under our system of practice.

"It is well settled, that the flight of a person suspected of crime is a circumstance to be weighed by the jury, as tending, in some degree, to prove a consciousness of guilt, and is entitled to more or less weight, according to the circumstances of the particular case. Such evidence is received, not as a part of the res gesta of the

People v. Ah Ngow.

criminal act itself, but as indicative of a guilty mind." Roscoe Cr. Ev. 18; People v. Stanley, 47 Cal. 113.

But the vice in the charge consists in the fact that the court instructed the jury, that a presumption of guilt arose from the fact of flight. In the case of People v. Walden, 51 Cal. 588, the court uses the following language:

"The court below charged the jury, that the possession by the defendant of the key, unexplained, raises a reasonable presumption that he had it for the purposes shown by the evidence it could be used for; or, in other words, if you believe it would open the clerk's office, where these ballots were kept, then the possession by the defendant, unexplained, raises a reasonable presumption that he had it for the purpose of opening that door." The court proceed to say: "In no view can this charge be sustained. If it be said that it was an attempt to charge in respect to a legal presumption, it was clearly error, since no such presumption would arise from the fact stated, as a matter of law. If it was an attempt on the part of the court to instruct the jury that the existence of one fact, in view of the ordinary experience of mankind and connection of events, must be presumed from the existence of another, this was an interference with what, as we have shown, is the exclusive province of the jury. It was charging the jury, with respect to matters of fact,' and was a contravention of § 18, art. 6, of the Constitution of the State."

But it is claimed, on behalf of the prosecution, that the charge, as a whole, is correct, and therefore the judgment should stand. There is no doubt that in one part of the charge the law on this subject (flight) was correctly given to the jury; but the charge was contradictory, and that which was bad cannot be aided by that which was good. The case of People v. Valencia, 43 Cal. 552, is in point. There the court say: "It is not doubted that that part of the charge is erroneous, as it omits from the definition of murder in the first degree the essential qualities of deliberation and premeditation; but it is contended by the prosecution, that the court had correctly defined murder in the first degree, and as the jury would consider together all the parts or propositions of the charge, the error in the part above cited is cured by the correct definition which had already been given. The two parts of the charge are contradictory, and the jury would not be able to say that the court intended that the former, rather than the latter, should be

Helbing v. Svea Insurance Company.

received by them as the correct definition of murder in the first degree."

It is unnecessary to pass upon the other errors assigned, as the one already noticed calls for a reversal of the judgment.

Judgment and order reversed, and cause remanded for a new

trial.

Judgment reversed.

THORNTON, MCKINSTRY, ROSS, MYRICK, MCKEE and SHARPSTEIN, JJ., concurred.

HELBING V. SVEA INSURANCE COMPANY.

(54 Cal. 156.)

Insurance-fire — warranty against overvaluation — false swearing.

An insurance warranty against overvaluation is broken only in case of an intentional overvaluation; and a provision that fraud or false swearing shall work a forfeiture means intentional false swearing. (See note, p. 74.)

A

CTION on a policy of fire insurance. The opinion states the facts. The plaintiff had judgment below.

J. W. Winans, for appellant. The application by plaintiffs for the insurance of the stock was an overvaluation, and vitiates the policy. By an express provision, the amount or value of the property insured, stated in the application, is made a warranty; and whether fraudulent or not, binds the assured; and if the value is overstated, the policy is void. Levy v. Bailley, 7 Bing. 349; s. c., 20 E. C. L. 157; Clark v. Phoenix Fire Ins. Co., 36 Cal. 176; Moadinger v. Mechanics' Co. of W. N., 2 Hall, 400; Franklin Ins. Co. v. Culver, 6 Ind. 137; Moore v. Protection Ins. Co., 29 Me. 94; May on Ins., § 477. The burden was on the plaintiffs to establish that the discrepancy was the result of error, and not of intention to defraud; and in the absence of satisfactory explanation, fraud must be presumed. Marcheseau v. Merchants' Fire Ins. Co., 1 Rob. (La.) 442; Hoffman v. Western Marine Fire Ins. Co., 1 La. Ann. 216; Regnier v. La. State Fire Ins. Co., 12 La. 336; Parker v. Phonix Ins. Co., 19 Up. Can. 122.

Helbing v. Svea Insurance Company.

Paul Newman and D. Freidenrich, for respondent.

MCKINSTRY, J. The fourth clause of the policy contains the following: "The application or survey, upon which the issuance of a policy is predicated, shall be considered a part of it, and a warranty by the assured. If the assured, in a written or verbal application for insurance, or by survey, plan, or description, or otherwise, makes any erroneous representation, or omits to make known any fact material to the risk, or overvalues the property, *then, and in every such case, this policy shall be void." And the eighth clause provides: "Persons sustaining loss or damage by fire shall forthwith give notice of said loss to this company, and as soon thereafter as possible render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property. * * * The assured shall, if required, submit to an examination or examinations, under oath, by any person appointed by the company, and subscribe to such examinations when reduced to writing; and also shall produce their books of accounts and other vouchers, and exhibit the same for examination at the office of the company, and permit extracts and copies thereof to be made. The assured shall also produce certified copies of all bills and invoices, the originals of which have been lost. All fraud, or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on the company under this policy."

It is claimed by appellant, that inasmuch as there was a discrepancy of five hundred dollars between the sum named in the "application" and the verdict, the burden of proof was cast upon the plaintiffs to establish that the statement in the application was not intentionally false. But under our system, fraud is ordinarily a question of fact, and the court is not authorized, except where by statute a legal presumption is created, to instruct a jury that the existence of one fact is to be inferred from the existence of another. People v. Walden, 51 Cal. 588; Stone v. Geyser Co., 52 id. 315; People v. Carrillo, 54 id. 63. The jury may not have believed that the application was intentionally false, even in the absence of explanatory evidence.

The same is true in reference to the difference between the statements of the assured (sworn or unsworn), made after the fire, and VOL. XXXV —10

Helbing v. Svea Insurance Company.

the verdict. It may indeed be true that if the discrepancy, in view of all the circumstances, is so great as to convey the conviction of fraud to the reasonable mind, the jury should find fraud, as they should find in accordance with the fact in respect to every other subject, and in a plain case of a finding against evidence the trial court should grant a new trial. But it must be apparent that thə effects of such discrepancies must vary innumerably, reference being had in each case to the circumstances under which the statement is made by the assured, its greater or less positiveness, and the consideration whether the verdict itself is in the particular instance to be treated as based upon positive data, or as an estimate only, approximating exact justice. So complicated a question is one peculiarly for the jury, the determination of which by that body can only be set aside when the court is clearly convinced, after full consideration of all the incidents made to appear at the trial, that the verdict is wrong.

The court below properly instructed the jury that the "false swearing" constituting fraud within the meaning of the policy was willful or intentional false swearing, "not a mere discrepancy or innocent error." It cannot be maintained that the mere discrepancy (supposing it to exist) creates a presumption, as matter of law, that the insured contemplated fraud when his statements were made.

[Omitting matters of fact.]

Ross and MCKEE, JJ., concurred.

--

Judgment and order affirmed.

NOTE BY THE REPORTER. That overvaluation, to vitiate a policy when a mere represen tation, must be intentional, is held in Fuller v. Boston Mut. F. Ins. Co., 4 Metc. 206; Field v.. Ins. Co. of N. A., 6 Biss. (N. S.) 121; Stewart v. Phœnix F. Ins. Co., 5 Hun, 261; Laidlaw v. Liverpool and London Ins. Co., 13 Grant Ch. 377; Cox v. Ætna Ins. Co., 29 Ind. 586; Bonham v. Iowa, etc., Ins. Co., 25 Iowa, 328; Rinch v. Niagara, etc., Ins. Co., 21 U. C. (C. P.) 464; Williams v. Phœnix F. Ins. Co., 67 Penn. St. 373; Am. Ins. Co. v. Gülbert, A Mich. 429; Park v. Lycoming Ins. Co., 79 Ind. 402.

Mr. Wood (Fire Ins. 5220) states the rule as to misrepresentations of value: "It must either be shown that the insured knew that it was worth less, or the actual value of the property must be so much less than that stated as to warrant a presumption that the error was intentional, and the burden is on the insurer to show the fraud."

So in Wall v. Howard Ins. Co., 51 Me. 32, where the valuation of the insured was $2,400, and the jury found the value $1,040, the insurer was held released; and in Catron v. Tenn. Ins. Co., 6 Humph. 176, a valuation of $12.000 by the insured, the actual value being $8,000, was held as matter of law a fraudulent over valuation: and so in Phoenix Ins. Co. v. Mun day, 5 Cold. 547, where the loss was stated at $15,989.18, and the jury found it $12,043: and in Protection Ins. Co. v. Hall, where the valuation was $4,500 and the real value from $3,000 to $3,600.