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tended, the law would fasten upon the legatee a trust for such beneficiary, and enforde it, if needed, on the ground of fraud. Equity acts, in such case, not because of a trust declared by the testator, but because of the fraud of the legatee. For him not to carry out the promise by which alone he procured the devise and bequest is to perpetrate a fraud upon the devisor, which equity will not endure. The authorities on this point are numerous. [Here follows a long list of cases.] The circumstances in these cases were varied and sometimes peculiar, but all of them either recognize or enforce the general doctrine. It has been twice applied in our own state. (Brown v. Lynch, 1 Paige, 147; Williams v. Fitch, 18 N. Y. 546.) In the last of these cases the making of a bequest to the plaintiff was prevented by an agreement of the father, who was next of kin, to hold in trust for the plaintiff; and the English cases were cited with approval, and the trust enforced. All along the line of discussion it was steadily claimed that a plain and unambiguous devise in a will could not be modified or cut down by extrinsic matter lying in parol or unattested papers and that the statute of frauds and that of wills excluded the evidence; and all along the line it was steadily answered that the devise was untouched; that it was not at all modified; that the property passed under it but the law dealt with the holder for his fraud and out of the facts raised a trust ex maleficio instead of resting upon one as created by the testator. The character of the fraud which justifies the equitable interference is well described in Glass v. Hulbert, 102 Mass. 40; 3 Am. Rep. 418. It was said to consist in the attempt to take advantage of that which has been done in performance or upon the faith of the agreement while repudiating its obligation under cover of the statute."" The other parts of the opinion discuss the question whether as the charitable uses could not be enforced because forbidden by the statute the legatees could be held as trustees for

the heirs but that question does not arise in the case at bar.

We have thus referred at length to the O'Hara case because it contains a lucid statement of the principles which apply to the case at bar and for the additional reason that in the opinion of the court and the briefs of counsel nearly all the authorities bearing upon the question are cited. We also refer especially to the case of Williams v. Vreeland, 32 N. J. Eq. 135, which declares the doctrine above stated; and in the notes to which are collated extracts from about forty different cases, all of which are confirmatory of said doctrine. (See also Hooker v. Axford, 33 Mich. 453; In re Fleetwood, L. R. 15 Ch. D. 594; In re Boyes, L. R. 26 Ch. D. 531; and Riordan v. Banon, 10 Ir. Eq. 469.) The cases cited will show that it is immaterial whether the instructions given by a testator are oral or in writing. Indeed, in the opinion of the court in the O'Hara case (above quoted), where the phrase "lying in parol, or unattested papers,' is employed, the word "parol" is evidently used in its usual meaning, as synonymous with "verbal" or "oral," and not in its broader meaning of "not under seal." The California cases of De Laurencel v. De Boom, 48 Cal. 581, Estate of Shillaber, 74 Cal. 144, and Estate of Brooks, 54 Cal. 475,-while in harmony with the principles above stated, are not directly to the point involved in the case at bar. Our conclusion is, that the court below correctly decided that Francis Berton, deceased, properly distributed the property in France, in accordance with the instructions given him by the testatrix when the will was made, and which instructions he at that time agreed to carry out. Of course, the case must be distinguished from one where a testator, intending to give certain property directly to a certain person, for that person's sole benefit, fails to designate in the will either the property or the person. In such a case no question of trust could arise. These views make it

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unnecessary to determine the other two points made by respondent. 1. That the order for the property in France, given by the testatrix to Berton at the time the will was made, constituted a transfer of 'the property in præsenti; and 2. That the action was barred by the stat ute of limitations.

The judgment and order are affirmed.

THORNTON, J., and SHARPSTEIN, J., concurred.

[No. 20492. In Bank.-June 5, 1889.]

THE PEOPLE, RESPONDENT, v. B. A. STEPHENS, APPELLANT.

CRIMINAL LAW-LIBEL-SEVERAL DEFAMATORY CHARGES IN SAME ARTICLE ONCE IN JEOPARDY-FORMER ACQUITTAL.—In a prosecution for libel, pleas of once in jeopardy and former acquittal of the offense charged are sustained by proof of a previous prosecution, trial, and acquittal of the defendant upon a charge of libel in the publication of a distinct faise and defamatory charge against the same individual, contained in another paragraph of the same published article, and it is error to exclude evidence of such indictment, trial, and former acquittal in support of said pleas. ID. SPLITTING UP CRIME.--The state cannot split up one crime and prosecute it in several parts; nor can a defendant be convicted and punished for two distinct crimes growing out of the same identical act. The law does not permit a single individual act to be divided, so as to make out of it two distinct indictable offenses. One newspaper article containing several alleged libels is but one act, and constitutes but one criminal offense.

APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order refusing a new trial.

The principal facts are stated in the opinion of the court. The evidence offered in support of the pleas of once in jeopardy and former acquittal consisted of the record of a previous prosecution, trial, and verdict of acquittal of the defendant in the same court upon a charge of having published in another paragraph of the same

newspaper article which contained the libelous charge, specified in the information in this case, a distinct charge of and concerning Horace Bell, viz., that "he is now suing Louis Messmer in Los Angeles for blackmail money."

C. C. Stephens, and G. Wiley Wells, for Appellant.
Attorney-General Johnson, for Respondent.

SHARPSTEIN, J.-Appellant was tried and convicted of libel, upon an information which alleged that he published of and concerning one Horace Bell that “it was a common report at the time his wife went crazy that it was because that just subsequent to confinement she detected him in flagrante delictu with a female negro ser

vant."

In addition to the plea of not guilty, the defendant pleaded once in jeopardy and former acquittal. On the trial the defendant offered to prove by competent evidence that he had been indicted, tried, and acquitted upon a charge of libel based upon the publication of the same article upon which the information in this case is based. To the introduction of such evidence the prosecution objected, on the ground that it was incompetent, immaterial, and irrelevant. The objection was sustained and the defendant excepted.

The question presented by this exception is, whether there may be as many prosecutions for libel maintained upon a single article published in a single issue of a newspaper as there are false and defamatory statements concerning a single individual in such article. So far as we know, this question has not heretofore arisen or been passed upon by any court in a case of libel. "No person shall be twice put in jeopardy for the same offense," is the language of the constitution. The Penal Code provides that "no person can be subjected to a second prosecution for a public offense for which he

has been prosecuted and convicted or acquitted." (Pen. Code, sec. 687.)

The only question in this case is, whether the second prosecution is for the same offense as the first. If so, it cannot be maintained. The first prosecution was for a libel contained in an article published by the defendant in a newspaper. The second prosecution is for a libel contained in the same article and published in the same issue of the same newspaper as the first. The words alleged to be defamatory are not the same in both informations. If they were, the case would be a plain one. But the publication in both cases was one and the same act. "The act which is the essential element in the wrongs, slander and libel, is a wrongful publication of language." (Townshend on Slander and Libel, 121.)

The essential element of the offense was the same act in both cases. In Regina v. Erlington, 9 Cox C. C. 86, Cockburn, C. J., said: "It is a fundamental rule of law that out of the same facts a series of charges shall not be preferred."

Bishop says: "To give our constitutional provision the force evidently meant, and to render it effective, 'the same offense' must be interpreted as equivalent to the same criminal act." (1 Bishop's Crim. L. 1060.) "The state cannot split up one crime and prosecute it in parts. A prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime." (Jackson v. State, 14 Ind. 327.) In State v. Lewis, 2 Hawks, 98, 11 Am. Dec. 741, the first indictment was for the burglary accomplished by the actual commission of the larceny; and the conviction on it was for the larceny only. The second indictment was for the robbery, and it was held to be barred by the first. In State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490, it was held that a defendant could not be convicted and punished for two distinct felonies growing

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